I am happy to introduce the Second Stage of the National Monuments (Amendment) Bill, 1986. Everybody in this House is aware of the importance of our architectural and archaeological heritage and of the need to protect it adequately. When we realise that it is over 50 years since the principal Act came into force and more than 30 years since an amending Act was passed, we must question if the legislation is now grossly out of date, or was it so good that it stood the test of time. The answer is a little of both. Let us hope that this piece of legislation will also prove to be effective for many years to come.
The main provisions of this Bill are not entirely new. On two previous occasions Bills of similar content were introduced in Dáil Éireann, the first by the present Minister for Finance in 1978 and the second by Deputy Donnellan in 1980. Both attempts were resisted on the grounds that comprehensive legislation was in preparation. It would have been better to have allowed the proposals to go through. We could have been spared some of the heartaches of the past eight years. Besides which, the comprehensive legislation proved illusory. Important issues concerning the constitutional right to private property and other matters were coming before the courts. Some were resolved, others remain to be resolved. It is not possible today and will not be for quite some time to have the definitive answers which would enable comprehensive legislation to be drafted.
The Bill which we are now discussing does two things. It up-dates the existing legislation and it breaks new ground. One important area requiring up-dating is the level of the fines which can be imposed. Under the present Acts, the highest fine that can be imposed is £50. Such an amount is derisory by present-day money values. Of course the term of imprisonment of six months which might accompany, or substitute for, the fine still has its deterrent force. Under the new Bill, the level of fines will go up to £1,000 for the more serious offences. Some still consider these too low. They may even wonder if we are losing our nerve especially if we consider how severe the law was in the past. It is worth recalling that the first enactment for the preservation of monuments in these islands, the Act of the 8th and 9th Victoria, chapter 44, section 1, passed in 1845 made it a misdemeanour, punishable by imprisonment not exceeding six months and a public or private whipping, once, twice or thrice, at the discretion of the court, to unlawfully or maliciously destroy or damage any picture, statue, monument or painted glass in any church, chapel or other place of worship; or any statue or monument exposed to public view.
The level of fines and penalties is in the end the test of our seriousness. Not that we wish to err by excess but we must show that we are in earnest when it comes to preserving our heritage. Can the Members present visualise a recent occurence where a farmer asked an official of the Office of Public Works on the telephone the amount of the fine for destroying a monument because, as he said, "if it is the right amount I will go ahead and bulldoze the monument". Hereafter if you find an archaeological object and fail to report it, or falsely report, you may be fined £300 instead of £10. If you excavate in search of archaeological objects without a licence, you can be fined up to £1,000 instead of £25 as heretofore. If you bury a corpse within a national monument in contravention of a burials prohibition order, you can be fined up to £300 instead of £20 as of now.
In many other ways too, the Bill up-dates the present law. However, its main thrust is to face the new challenges of today. Heritage preservation has been marching forward in a more united fashion recently. The European countries have been co-ordinating their efforts through the Council of Europe. There are some milestones along the way. The year 1975 was European Architectural Heritage year. Its purpose was to call attention to Europe's rich and varied architecture and the unique character of her historic towns which was fast disappearing through neglect, demolition and ill-considered redevelopment. It sought to sound the alarm and produce action before it was too late. That year produced model conservation projects throughout all the countries which became involved. It generated much interest in Ireland also. It culminated in the congress on the European Architectural Heritage Year held in Amsterdam from 21 to 25 October 1975 which signalled the formal adoption of policies of integrated conservation. No longer was the preservation of the heritage to be viewed in isolation. It was to be built into the planning process. Local authorities were to be more intimately involved. There should be citizen participation also. Ireland took a lively interest in these proceedings and participated in the subsequent drafting of the convention for the protection of the architectural heritage of Europe. This convention was signed by my predecessor in office, Deputy Joe Bermingham, at Granada, in October last, and I am confident that it will be brought before the Oireachtas for ratification in due course.
The reconstitution of the National Monuments Advisory Council on a wider academic basis and under the new title of the Historic Monuments Council is designed to be a major factor in the implementation of integrated conservation policies. It is a body which will have to be consulted in regard to all proposals which affect heritage properties. I hope to chair the first meeting of the reconstituted council within the next fortnight. I also hope many of the issues that will be raised by the public and here in the Seanad can be channelled through our advisory council when it comes to considering them at Committee Stage.
Integrated conservation will be carried a step further by the declaration under this Bill that all pre-1700 AD buildings or sites rank as historic monuments and qualify for protection. This, of course, does not mean that the national monuments legislation is not also concerned with post-1700 structures. There is nothing in the Bill or in the National Monuments Acts which precludes the OPW from taking protective action in regard to such buildings. The commissioners already have in their care a small number of post-1700 buildings as national monuments and I need hardly mention that the commissioners also look after a number of post-1700 buildings which are of architectural or historical importance and which are in use for State purposes. Furthermore, the new concept of "Archaeological Area" is introduced. This would cover in a rural context an extensive site such as that of an ancient field system. In an urban context it would cover topographically definable areas of archaeological importance and, in particular, areas of original or medieval settlement.
It is never sufficient, however, to take unto ourselves powers of protection without going to the trouble of identifying the buildings and sites which make up our heritage. Back in 1666, the Boy King Charles XI of Sweden, with the help of his mother and council, drew up the most comprehensive monuments decree that could be conceived. Although he was too young even to sign it on his own behalf — his mother, Hedvig Eleonora had to append her name to the royal proclamation — it gave Sweden a head start in heritage preservation that no other nation could equal. As a result, the Swedish people have been conscious of their heritage in a way that others have not been. Nevertheless, this has not meant that monuments in Sweden have not been destroyed for the simple reason that many monuments had not been identified and, in fact, the local museums on whom the survey work has been devolved are still engaged in the identification of the heritage. If we had achieved our objective of bringing in a comprehensive Monuments Bill which gave blanket protection to all historic monuments, this still would not have sufficed. The two things have to go hand in hand, identification and protection.
I am happy to say that the work of identification has been proceeding at a more rapid pace recently. On 27 May last I launched the archaeological inventory of County Louth: sites and monuments records for Counties Meath, Carlow and Wicklow and reports on the urban archaeological surveys of Counties Laois, Offaly and Dublin city. Further sites and monuments records for Donegal and Wexford are to follow later this year and by the end of the decade such records will be available for the entire country. The availability of these surveys to planners, to farm development officers and to the public generally will make the task of protecting our heritage much easier for a start.
Under the new Bill, a register will be established. Entry into this register of a monument or an archaeological area will mean that an owner proposing to do some work to the monument, or within the area in question, must give two months notice to the Commissioners of Public Works. This will give time for a decision to be reached as to whether or not the heritage interest in the site should be recorded by archaeological excavation, if not already recorded, and the site then should either be given legal protection or allowed to be utilised as desired by the owner for development or otherwise. Monuments and areas entered in the register may also be registered in the Land Registry as burdens affecting land. The effect of this would be that persons buying land would know if a protected site or monument encumbered the land. This is, in fact, a sincere attempt to avoid the heartbreak which can occur when a person buys land for development and subsequently finds his plans halted because a monument or archaeological area of which he was not aware is found to exist there. It is not possible, however, to provide for every situation that may arise. No matter how comprehensive the survey carried out, something unsuspected may still turn up. Ploughing or land clearance reveals souterrains used for the storage in olden times and as places of refuge when danger threatened. Study of urban buildings may discover features indicating a history going back further than anybody suspected. These are part of the hazard of living and while we strive to ameliorate the adverse effects of such discoveries, the old adage caveat emptor must still apply. But by implementing the measure now before us, we can progressively eliminate the problem.
I now turn to another area that is new; the control of metal detecting. We are all aware, I am sure, of the damage that has been done to archaeological sites by treasure hunters. Reports have been received from almost every part of the country of sites which have been scarred by their operations. Coins and other objects providing valuable dating evidence have been removed from their context. This represents irretrievable loss and it is clear that something has to be done about it.
On publication of this Bill, there was an outcry from groups representing the users of metal detectors. It was alleged that under the Bill one could not use a metal detector even in one's own back garden without committing an offence. There was over-reaction in this. On the other hand, some archaeologists have said that we are not going far enough, that metal detectors should be banned altogether.
I am convinced that most persons will find the provisions of this Bill adequate and reasonable. Up to the present, it would have been necessary to catch an offender red-handed in the act of extracting archaeological objects from the ground to be sure of achieving a successful prosecution. This Bill puts the shoe on the other foot. Anybody caught with a metal detector at a protected monument or site is liable to conviction unless he can prove his innocence. At the same time, persons using metal detectors for legitimate purposes such as mineral prospecting, and tracing pipes and cables have no need to fear that they will be inconvenienced in any way.
What of treasure hunting? Treasure hunters using metal detectors may no longer bring them on to protected sites on land or under water without a licence. What then if they use them at archaeological sites which have not as yet been afforded protection under the National Monuments Acts? If a person armed with a metal detector is found using it at a known archaeological site it will be presumed under this law that the device was being used for the purpose of searching for archaeological objects and he or she will be guilty of an offence.
Does this mean that treasure hunting with metal detectors is being made totally illegal? No, provided those treasure hunters keep away from known archaeological sites, and that they are not specifically searching for archaeological objects. The great problem has been that, in the past decade or so, one archaeological site after another has been ransacked by the users of metal detectors.
Holes have been dug all over certain sites. The Hill of Tara itself has indications of such probes. This is appalling vandalism and the perpetrators cannot be unaware of the damage they are doing. Bodies representing groups of metal detector users insist that their members observe a very strict code and that a few people have been giving a very bad name to the whole fraternity. That is undoubtedly true.
The problem, moreover, is not confined to Ireland. The report produced by the Parliamentary Assembly of the Council of Europe on the subject in 1981 under the joint editorship of Deputy Flanagan and Mr. Alan Beith indicates that concern is being felt in all the countries of the Council of Europe in regard to this problem. The Parliamentary Assembly in fact in its recommendation R. 921 (1981) invites Governments to respond to the problem of affording full legal protection to all archaeological remains. This, however, has not been considered sufficient because one would still have to catch an offender in the act of interfering with an archaeological site. Hence it has been found necessary to build into this Bill the presumption already referred to of such interference where a person is found in possession of a metal detector at a site of known archaeological interest.
While it is not the intention of the Bill however, to outlaw all use of metal detectors as a hobby, it is well to remember that treasure hunting almost always involves breaches of the common law. There is trespass on private property, interference with such property and, possibly, theft of property. I consider the provision necessary and fully justified.
The next major development which this Bill has to deal with is that of underwater archaeology. The proliferation of amateur diving clubs has inevitably forced the pace here, particularly because of the number of historic wrecks being discovered. This, in turn, has revealed a certain imbalance in our situation. On the one hand, we have the increasing capacity of sports divers and others to discover historic remains preserved under water, whether in lakes, rivers or in the sea. On the other hand we have a dearth of archaeologists and conservation facilities to deal with this heritage area. One must pay tribute to the work of the Maritime Institute of Ireland in persuading a significant number of the diving fraternity to cooperate in the preservation and recording in situ of wrecks and artefacts under water. We must also recognise the work of the CFT or Irish Underwater Council in training so many amateur divers and bringing their members to a high level of performance and of observance of safety procedures.
Indeed only last week I was presented with the outline survey of the most important wreck, the Queen Victoria, which was done at the instigation of the Maritime Institute with the total co-operation of the Office of Public Works and involving three different sub-aqua clubs and divers who gave of their time voluntarily and I would like to commend all concerned. It is but a beginning; we have to build on that outline survey.
The question of the increased capacity to locate objects of historical interest under water and the limited academic and conservation resources to deal with the discovered material has engaged the attention of the Council of Europe. In 1978 the Parliamentary Assembly of the Council of Europe published a 200 page report on the matter, following which an international committee was convened to draft a convention for the protection of the under water cultural heritage. While this convention has not yet been open for signature, the final draft represents a broad agreement on how this heritage should be protected.
The present provisions of section 3 of this Bill are in line generally with the relevant provisions of the draft convention. One of the significant features of the draft European convention is that it avoids interference with the rights of identifiable owners, the law of salvage and other rules of maritime law, these being considered to be too useful to be set aside, leaving a vacuum to be filled with new law which would, in turn, have to be tested in the courts.
What section 3 does is to introduce sufficient controls to ensure that satisfactory recovery and conservation procedures are followed. It is to be understood, of course, that the Commissioners of Public Works would never issue a licence to conduct salvage operations at the site of an historic wreck unless they were satisfied that the operation would be subject to adequate archaeological supervision. However, once such an operation has been authorised, the existing machinery of salvage law and the role of the receiver of wrecks under the Merchant Shipping Act, 1894, would come into operation so that salvage claims and claims to ownership rights could be dealt with.
While discoveries of historic wrecks have provided the motive power to bring us to this point in our legislation, from an archaeological point of view wrecks are but one aspect of the very wide field of underwater archaeology. Crannogs and other early habitation sites have been preserved intact over many centuries by reason of being underwater. The section is so drafted that it may be used to protect such sites as well.
The reference to the continental shelf arises from the fact that historic wrecks are occasionally located in the course of offshore oil exploration. Already the licences issued to offshore operators include a requirement to report any such finds. The next logical step is to be able to afford some sort of protection to such discoveries. Obviously there is no question of policing the entire area of our continental shelf but it is important to have the power to intervene if the need arises.
The Bill provides for the setting up of the Historic Monuments Council. This council will have a broader academic base than the National Monuments Advisory Council which it replaces. It is hoped as a result that greater attention will be given to its recommendations. As successor to the National Monuments Advisory Council, it will be a prescribed authority under the planning regulations for the purposes of referral of planning applications which affect sites of archaeological or historical interest or buildings of artistic, architectural or historic interest.
Because of the heavy academic representation on the new council there is of course, less room to accommodate representatives of local archeological societies. However, it is felt that their real place is on the historic monuments advisory committees which local authorities are authorised to establish under section 22 of the Principal Act as amended by section 14 of this Bill.
A problem with the old council was that the terms of office of all members lapsed together so that a hiatus would occur between the lapsing of one council and the reappointment of the next. This problem is now overcome by an arrangement where half the members' terms will lapse after three years while half will continue for six years. This will mean that, at no future time, will all members' terms lapse together.
The remainder of the provisions in the Bill, while of minor order are nevertheless useful and necessary for the proper protection and management of our heritage of monuments and sites.
I commend the Bill to the House.
