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War Graves and Divers

The following is an extract from Hansard House of Commons Debates for the 1st of November 2000.

Mr. Patrick Nicholls (Teignbridge): On 10 December 1941, one of the Royal Navy's newest battleships, HMS Prince of Wales, and the battlecruiser HMS Repulse were sunk by Japanese torpedo bombers off the coast of Malaya. The loss of life was substantial: some 840 men perished. It was one of the critical naval actions of the 20th century, presaging the final dissolution of the British empire and ending European supremacy in the far east.

The attack took place within 72 hours of the attack on Pearl harbour, and it meant that the British and United States' maritime supremacy in the western Pacific was destroyed virtually at a stroke. Its effect on the morale of those defending Malaya and Singapore was devastating. If ever it could be said that a naval defeat had substantial consequences, this was surely the one.

In some ways, it all seems a long time ago. I am over 50, and I did not fight in the war; I was not even born then. Equally, it would be common ground between us all here, including myself and the Minister, that the fact that we are here having this debate is due directly to the sacrifice of people such as those 840 men.

Although it is a long time ago to us, for some people the loss is every bit as poignant today as it was at the time, and it was thought that the site would be a final resting place for the men who died there. Such people include Shirley Ward, a senior staff reporter on the Mid-Devon Advertiser in Newton Abbot. Her father was Lt Horace Ward, the ordnance officer on HMS Repulse. His death was not the first tragic incident for the Ward family. Her uncle, Warrant Officer Roy Ward, had died when HMS Courageous was torpedoed off the coast of Ireland in the first days of the second world war. For some people, those memories remain fresh. Those who lost relatives, husbands, uncles, brothers or sons would have expected and hoped that the wrecks would remain the final and undisturbed resting place of their relatives and friends.

Sadly, it was not to be. Time will not allow me to describe the various depredations and spoliations that have taken place on the sites, but I can give a suggestion of them. There is substantial evidence of not simply minor pilfering of personal mementoes, but serious commercial plundering. I understand that some eight tonnes of the port-side propellers of HMS Repulse have already been removed commercially, and some press reports, which I cannot verify today, suggest that the propellers on both sides may have been taken. There is no doubt that numerous personal belongings have also been lifted.

One of those who has campaigned hard on the issue, and I pay tribute to him for doing so, is Lord Clifford of Chudleigh, whose father was instrumental in having such sites designated war graves in the 1970s. I am indebted to Lord Clifford's briefing, which drew to my attention that Japan, a defeated and beaten nation, took steps immediately after the war to recover the bodies from the wrecks of their ships. That says something about how Japan regarded the sites. My attention has been drawn to a publication by an organisation called Scapa Flow Technical and John's Charters which shows that the MV Karin is available for dives on HMS

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Repulse and HMS Prince of Wales. It states that the ships lie in shallow waters and an article written by one of the divers states:
The article continues:
The Press Association reported the comments of a survivor, Albert Burnell, about the spoliation of these wrecks. He said:
I loved my ship and still do. We lost a lot of brave men and they should be honoured and respected...You wouldn't have people taking handles off coffins, would you? Why is this any different?
It is not any different; indeed, it is worse. Some of the things that have been taken away amount not to taking the handles off coffins but to opening them and stripping the rings off fingers. That is the enormity of the matter that we are discussing, which

Lord Clifford raised in the House of Lords as long ago as 1995. Campaigners on the issue are now calling for the sites to be designated and protected.

I am delighted that the Minister is present and I am grateful to him to for writing to me on the matter. He stated in his letter:

I hope that the Minister will not take it amiss if I say that that may be a fine starting point, but as a final position it will not do; more will be required. I want from the Minister a commitment to act and, because I believe in bringing solutions as well as problems to the House, I will suggest ways in which that might be done.

I understand those who campaign on the issue who believe that the Protection of Military Remains Act 1986 may be the way forward, but I am not so sure about that, for reasons that I shall explain. I pay tribute to Professor Nicholas Gaskell of the Institute of Maritime Law at Southampton university, the leading institution on the subject in the United Kingdom. Professor Gaskell has advised the Government on similar issues.

Professor Gaskell said that the 1986 Act, useful as it is, does not do any more than protect those wrecks within United Kingdom waters that might be at risk from United Kingdom citizens or from boats registered here. Registration under that Act has its place, but it is not sufficient. Professor Gaskell told me that the Merchant Shipping and Maritime Security Act 1977--especially sections 24(1) and 24(2)(b)--is more use. Section 24(1) states:

I understand from Professor Gaskell that if an international agreement were reached, it could be given force under the 1997 Act.

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There is a third possible approach, for which I am again indebted to Professor Gaskell. He tells me that schedule 11 to the Merchant Shipping Act 1995 gives effect in United Kingdom law to an international convention. The relevant provision is article 19 of the salvage convention.

All the relevant law is fearfully complicated, but I understand from Professor Gaskell that article 19 would be relevant if Her Majesty's Government had reason to believe that nationals of a particular country were involved in pillaging sites. Those remain Crown property, wherever the sinking took place--subject to one proviso that I do not think I need to mention in a debate of this length. It is possible to implement the article, provided that steps have been taken in the relevant country, by way of an advertisement or article in the press or some such method, to draw to general attention the fact that the sites remain under the protection of Her Majesty's Government. Once that is done it is possible, under the convention, to sue or prosecute in the local courts. Again, Professor Gaskell tells me that there is no reason to suspect that Singapore would not be prepared to co-operate in that way. Singapore is relevant because many of the divers who visit the sites do so from there.

I have tried briefly to outline areas of law, which, although they are spectacularly complicated, suggest that, provided that the Minister can state a commitment to act, there is a way forward. Professor Gaskell, who is already in contact with the Government on related issues, assures me that if they want to speak to him about what I have described, he will be delighted to help.

This is the first occasion in recent times that this matter has been debated on the Floor of the House of Commons, although Lord Clifford raised it several years ago in the House of Lords. It is an all-party matter. Labour, Liberal and Conservative Members have expressed concern about it. The hon. Member for Basildon (Angela Smith) raised it at business questions, but this is the first time that we have had the opportunity for even a short debate on the matter. It is almost a matter of concern to all nations. Lord Clifford wrote to The Daily Telegraph on 10 October about the Scharnhorst, a German battleship that went down with the loss of nearly 2,000. He wrote as eloquently as he always does, and concluded:


A commitment from the Minister is needed to make progress with this matter. There will be talk--indeed, there has been talk already, I believe--of setting up yet more all-party groups, which will campaign over the years to bring about a successful conclusion. I bear in mind that the Minister, as far as he was able, and with his usual skill, hinted pretty broadly yesterday in this Chamber that an announcement may well be made shortly to bring to an end a campaign that many of us have been waging on behalf of former Japanese prisoners of war. By a happy coincidence, that may yet be achieved in time for Remembrance Day. If the Minister were to give a commitment today on the matter that I have raised, it could be dealt with by Remembrance Day next year.

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The poet Rupert Brooke wrote about another war, which was called a war to end all wars:


For a great many of our constituents, what I have described is the nearest that they will get to that foreign field. What is needed from the Minister is not simply an assurance that he is reviewing and considering what might be done, but a direct commitment to the idea that what is happening to the graves in question is unacceptable. We need to know what steps have been taken or, if the process is to start today, that the Minister will write to the Governments in question and use the available law. He could go one better if he wanted to, and announce that the matter will all be dealt with by next Sunday. However, I stress in as friendly a way as I can that I should be appalled if I had to stand here again next year and learn that the same things were happening as are happening now. If the Minister will give a commitment to act, there is every reason to think that the law, complicated though it is, can be used.

 

12.44 pm

 

 

 The Parliamentary Under-Secretary of State, Ministry of Defence (Dr. Lewis Moonie): I congratulate the hon. Member for Teignbridge (Mr. Nicholls) on securing this debate on the important subject of protecting the sites of HMS Prince of Wales and HMS Repulse. That is an important matter and an example of the interest shown in the subject of the protection of wrecked military vessels that are the last resting place of ships' companies.

I acknowledge that the matter is of increasing concern to a number of groups and individuals. I pay tribute to the efforts of various survivors' associations, the Friends of War Memorials and others who campaign tirelessly to bring the issue to the notice of Departments and Government agencies, local authorities and others--such as police forces, port and harbour authorities, museums and academic and professional bodies--which have a responsibility for or an interest in the conduct of diving and the protection of wrecks.

I pay tribute to Lord Clifford and others who have written to my colleague Baroness Symons and me about protecting HMS Prince of Wales and HMS Repulse. I shall deal with the protection of wrecks generally, before dealing with specifics. I disagree with nothing that the hon. Gentleman has said. If he wants a commitment that I shall do everything in my power to take things forward, I am happy to give it. I cannot say whether I shall be successful. If he provides me with details of Professor Gaskell's advice and location, I shall be happy to get in touch with him.

We have heard how HMS Prince of Wales and HMS Repulse were lost on 10 December 1941, following strikes by Japanese torpedo bombers. Repulse and Prince of Wales sank with the loss of 513 and 327 lives respectively. The wrecks of those vessels lie in international waters off the east coast of Malaysia. As the 60th anniversary of that sad loss approaches, I am glad to note in passing that the Royal Navy was able to conduct a service of remembrance at the wreck site and HMS Newcastle laid a wreath in commemoration on 31 July.

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I state unequivocally that the Government share the widely held view that war graves should remain undisturbed and protected so far as that is practical and that diving on any other wreck should be unobtrusive. I would find it abhorrent if human remains in war graves were disturbed, unless there were overriding imperatives of marine or environmental safety. I am certain that the vast majority of people feel likewise.

The sport of recreational diving has recently enjoyed a significant growth in popularity. Technological advances in the equipment and navigational aids used by modern sports divers allow them to dive on sites to a greater depth and with greater precision than before. I have little doubt that the vast majority of sports divers are decent law-abiding people, who would wish to associate themselves with the remarks made by the hon. Gentleman about the protection of wrecks.

I pay tribute to the diving associations and the responsible and positive action that they are taking to educate their members about wreck protection. The three major associations have this year developed and launched a code of practice for their sports diver membership, which gives clear guidance about the need to respect and not to intrude on wreck sites. We welcome and encourage that initiative. I wish the code of practice every success, because, in the short term at least, a regime of informed self-regulation deserves to succeed. My officials and those in other Departments have supported that enterprise and will continue to do so.

It is imperative that the diving community and survivors' associations work together to ensure that due respect is paid to wreck sites and that they are not pillaged. Legislation alone is not the solution, although it can help. Respect through education is the best form of protection, certainly in the first instance, backed by legislation and the clear indication that action will be taken if necessary.

In a similar vein, I welcome the proposal by the Marine and Coastguard Agency to promote a wreck amnesty. Legislation provides that any wreck recovered from UK territorial waters, or brought within them, must be reported to the receiver, who is an official of that agency. The amnesty will encourage finders of wrecked material and artefacts who were perhaps ignorant of the law to come forward and report past finds. It should also allow the receiver of wreck to clarify the correct procedures to finders, and to encourage future compliance with the procedures.

Today, I have been specifically asked about the prospect of protecting the site of HMS Prince of Wales and HMS Repulse, given the provisions of the Protection of Military Remains Act 1986. By implication, I have also been asked what legal and other actions the Government can and should take to discourage or prohibit intrusive diving on wrecked military vessels by a wayward or unscrupulous minority that does not heed the good sense of the diving associations' code of practice.

The 1986 Act empowers my right hon. Friend the Secretary of State to designate by statutory instrument that the Act apply to any vessel that has sunk or been stranded while in military service, irrespective of whether its location is known.. A place containing the remains of such a vessel, provided it is in United Kingdom waters or international waters, becomes a

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protected place. He is further empowered to designate as a controlled site any area, whether in UK or international waters, that appears to him to contain the remains of a vessel that sunk or was stranded in military service.

In broad terms, the Act makes it an offence to interfere with the remains of vessels within a protected place or controlled site, unless a licence permitting the interference has been issued by the Secretary of State for Defence. Thus, most intrusive diving activity on a designated vessel or wreck site will be prohibited unless a licence allowing diving to take place has been issued.

To date, the Ministry of Defence has not designated any vessels or controlled sites. I readily acknowledge that the situation regarding wrecks is changing, and have already mentioned how advances in the technology available to salvage and sub-aqua divers, coupled with a sustained increase in the popularity of diving as a sport, have meant that previously undisturbed wrecks may become potential targets for trophy hunters. This, together with the increased public respect for wrecks that are war graves, provided the impetus for a review of policy on the subject. I recognise the growing importance of the matter. Previously, I have said that my Department is reviewing the protection of vessels and wreck sites, and that I will respond fully to inquiries that I have received.

In considering the designation of vessels or wreck sites, I have given due consideration to the views of those campaigning for the designation of war graves. I have noted the coastal industry that revolves around sports diving, in which a small but significant number of individuals rely on diving for their livelihood in areas where options for alternative employment are limited. I am also conscious of the efforts that are being made by the diving associations to increase sports divers' awareness of the need to respect all those who lost their lives at sea. My Department intends to increase its support for those initiatives, through further information and guidance of its own.

I am not persuaded that that should be the Department's sole approach, however. I view the issue as being a conflict of interest between aspects of the diving community and the interests of survivors' associations. I believe that education is the most effective mechanism by which wreck sites can be offered the best protection, but it may not be sufficient. In the balance of conflicting interests, we must always err on the side of the survivors' associations.

 

 Mr. Nicholls : What the Minister says is most encouraging. Does he agree that much of it relates to good practice and enforceability in the UK's immediate sphere of influence? I have also drawn his attention to the fact that out and out commercial pillaging is taking place overseas. Would he be prepared to make representations to foreign Governments on such matters to ask for their co-operation, once he was satisfied that the law enabled him to do so?

 

 Dr. Moonie : That is certainly what I have in mind. I shall make some remarks about the international situation shortly.

Moral authority rests with the rights of survivors rather than divers' recreational pursuits. It is for that reason that I have asked my Department to consider

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further the specific implications that designation of sites--either as protected places or as controlled sites--will have for the diving community from both a legal and economic perspective.

Additionally, I want to reassure the hon. Gentleman that all wrecks of Her Majesty's ships, be they war graves or not, remain the property of the Crown. If we are able to gather evidence that individuals have been involved in pillaging of such vessels, it will be presented to the police for them to consider what action may be taken. I recognise that there is a need to take a tougher stance with the rogue element of the diving community. I ask all responsible elements of the diving community to pull together to stamp out the rogue elements and enable protection of Crown property to become a tangible reality. That area will always be difficult, and I believe that survivors' associations understand that, but platitudes are not sufficient when property is stolen or graves are desecrated.

HMS Prince of Wales and HMS Repulse lie in international waters off the coast of Malaysia. Representations have been made by my officials both in Kuala Lumpur and Singapore to officials within the respective Governments. The Navies of both Malaysia and Singapore have been asked to keep my officials informed of reports of intrusive diving or salvage or any untoward activities in the area of the wrecks.

Diving on those wrecks is likely to attract sports divers of many nationalities as well as local divers from Malaysia and Singapore. The 1986 Act does not extend to foreign nationals on non-British controlled vessels, and enforcing it at such a distance from home waters would present significant practical difficulties for all concerned, as the hon. Gentleman recognised in his remarks. It is unlikely to provide the degree of protection for HMS Repulse and HMS Prince of Wales that the hon. Gentleman seeks. However, I believe that designation will provide evidence of the wrecks' status and the Government's commitment to honour its war dead. It is for that reason, therefore, that I have requested my officials to look again at detailing what

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designation will entail and what it will provide, and whether that can be linked effectively to ensure better protection.

My officials, together with those from the Foreign and Commonwealth Office are working with the international community on how wrecks may best be protected. Several countries support our position that historical wrecked vessels and military war graves should be left undisturbed. UNESCO is discussing a draft convention on the protection of under-water cultural heritage. The United Kingdom and other major maritime powers are fully engaged in this process, particularly as it relates to historic warships. However, the hon. Gentleman must be aware that the process of working through UNESCO can be time consuming.

The Government share the desire, expressed today, that, where practicable, significant wrecks, whether civil or military, which are part of our heritage or are dangerous, should be properly protected. The issue goes beyond defence, and we need to take account of the rights and freedoms of the legitimate users of our territorial waters as well as peoples' aspirations for the protection of wrecks. I hope that the hon. Gentleman will be reassured by my words today that the Government take the matter seriously. To that end, I am grateful to the hon. Gentleman for initiating this worthwhile debate.

I repeat the hope that I expressed earlier that the diving associations' efforts at self-regulation and, in particular, the recent code of practice, will bring about the improved behaviour that we all desire. If self-regulation proves inadequate, I remain ready to take further action to ensure that proper respect is paid to those sites in perpetuity. Some may be disappointed that I have failed to announce any concrete proposals today. They should not be disappointed, however, as more consideration is required. All my experience tells me that it is best to move forward slowly and, where possible, with the agreement of all parties concerned in such delicate areas. Consequently, before I make an announcement of the best way ahead, I propose to consult the relevant parties and shall do so as quickly as possible. Nevertheless, I hope that the tenor of my approach is clear. My Department supports the aspirations of survivors' associations and of the hon. Gentleman. In my opinion, time is up for rogue divers.

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For further information, please contact:


JANE MADDOCKS
BSAC UNDERWATER HERITAGE ADVISOR

Email -
uwheritage@bsac.com



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