Before Committee Stage begins I want to inform the House that Amendments Nos. 69 and 70 have been ruled out of order on the ground of involving a potential charge upon revenue.
SECTION 1.
National Monuments (Amendment) Bill, 1986: Committee Stage.
Government amendment No. 1:
In page 3, subsection (1), lines 18 to 20, to delete the definition of "archaeological area" and to substitute the following definition:
" `archaeological area' means an area which the Commissioners consider to be of archaeological importance but does not include the area of a historic monument standing entered in the Register;".
This amendment is being introduced for the purpose of clarity. There is a danger that the present wording could be interpreted as meaning that an area which contains a national monument could not be an archaeological area. Nearly all archaeological areas such as the mediaeval cores of our towns and cities would contain structures which are by definition national monuments. However, as the Bill provides different types of protection for archaeological areas than it does for monuments, it is necessary to exclude historic monuments from the archaeological areas in which they are situated. In other words, an archaeological area will be the entire area of archaeological importance less the area of any protected monument within its bounds. The revised wording clarifies this intention.
There are two provisions in the Bill relating to archaeological areas, namely, section 2 which provides that possession of a detection device in an archaeological area without a consent is an offence and section 5 which provides that an archaeological area may be entered in the register and that owners of the property within the areas are required to give two months notice of the intention to carry out works.
I am not altogether clear regarding this amendment. The only difference, as I understand it, is that the wording has been changed around: "standing entered in the Register", has been added. That is the only effective change. The Register of Historic Monuments is dealt with in section 5. The amendment defines an "archaeological area" as "an area which the Commissioners consider to be of archaeological importance but does not include the area of a historic monument standing entered in the Register". With regard to the matter of being considered by the Commissioners, would it not be necessary to tie this in to section 5, for example, to phrase it in such a way as to say "as set out in section 5", or "as detailed in section 5" in order to make it clear that there is more to consider than just a determination by the Commissioners that it actually refers to section 5. That is the important question I want to ask. Secondly, I am not clear why the area of an historic monument is excluded. Presumbaly it is for some technical reason. I wonder is it necessary to exclude the site. I take this to mean the actual site of an historic monument.
This is just a definition and we will be redefining it here, to apply to any section of the Bill specifically sections 2 and 5. The Senator's concerns in that area, I feel, are adequately taken care of. I referred to them just a few moments ago and I accept what he is saying. This is needed for the purposes of clarity because, as the definition is at the moment on page 3 section 1 (1), it is possible to interpret what is already there in the Bill as meaning that an area which contains a national monument could not be an archaeological area. This is our draftsman's advice to us and we are accepting it. There is nothing involved other than clarity in ensuring that we achieve what we are setting out to achieve. The definition as we now redefine it will apply to all sections, particularly section 5.
Amendment agreed to.
Amendment No. 2 is related to amendments Nos. 3, 4 and 5 which are alternatives and may be discussed together. Senators were notified about the groupings.
Government amendment No. 2:
In page 3, subsection (1), line 21, after "includes" to insert "a prehistoric monument and".
Amendment No. 2 is being introduced at the request of the National Monuments Advisory Council to remove any doubt that might exist that the term "historic" also includes "pre-historic".
Are we dealing with those one by one or are we taking the four together?
We are dealing with amendments Nos. 2, 3, 4 and 5.
I paused for a moment actually. In relation to Amendments Nos. 3 and 4 there may be some confusion about the purpose of including the phrase "and also includes all monuments in existence before 1700 A.D.", in the definition of an historic monument. The intention is that all monuments which were in existence before that date will be historic monuments by reason of their age and without regard to whether they have any architectural or historical interest. This does not mean they must necessarily be preserved, but it does mean that they are worthy of note and of being recorded and that consideration should be given to any proposals to remove or to destroy them.
Since the commencement of the National Archaeological Survey in the sixties it has been accepted that any monuments which were in existence before 1700 A.D. should be recorded and the survey of urban archaeology which was commenced in 1982 and which is now nearing completion also takes 1700 A.D. as the cut off point. The selection of any date is arbitrary but it will be seen that the year 1700 A.D. is now well rooted in archaeological practice in this country. Of course all monuments post 1700 A.D. which are associated with the commercial, cultural, economic, industrial, military, religious or social history are also historic monuments.
Senator Fitzsimon's amendment substituting "1900 A.D." for "1700 A.D." would bring a very large section of the existing building stock of the country within the ambit of the Bill. Post-1700 A.D. buildings, as I have said, are not excluded but our protection of these has to be selective. For these reasons I cannot accept either of these amendments. Amendment No. 5 is suggested also by the National Monuments Advisory Committee. It will go some way towards meeting the wishes of Senators that a later date than "1700 A.D." should be specified. This will allow the Minister for Finance to revise the dateline in the course of time. However, I am convinced that the task of identifying all the pre-1700 monuments should be more or less complete before a later date is set.
My amendment is to substitute "1900 A.D."for "1700 A.D." The Minister said the date is an arbitrary one. It does seem that 1900 A.D. is a more realistic date considering the fact that an historic wreck, is determined as being 100 years old or more. From that point of view it is more realistic to have the date 1900 A.D. By retaining 1700 A.D. we exclude many important monuments. I mentioned the workhouses which were erected before the Famine in, 1845. Very few of them are in good condition. I specifically mentioned one of them in Dunshaughlin as an example of a building more or less in its pristine state externally, and it could be easily restored to what it was originally. That type of building is excluded. The workhouses in Dunshaughlin, may be the only example of its kind extant. Also the sites of confrontations in the 1798 insurrection would be excluded. I refer to one in my own area where the final battle took place, Rathlin Hill. The insurgents took their places in a field of corn and the soldiers on the hill were able to pick them out, mark them and defeat them very easily. That is an historic site and it is worth retaining.
I hope I made myself clear. Quite honestly we are not excluding all post-1700 A.D. buildings. I apologise if I am not clear enough. It could save a lot of cross discussion if I repeated what I said. Post-1700 buildings are not excluded but our protection of these will be selective rather than on a blanket and automatic basis. Any of those monuments Senator Fitzsimons mentioned will be and could be included. There is no blanket exclusion for everything post-1700.
Why not include a date that will be a blanket protection for them as well? The Minister dealt with this when the Bill was introduced on Second Stage in this House. I am tempted to quote the Minister, but the quotation might be too long. In replying to the Second Stage debate, the Minister again dealt with this matter and reiterated that the year 1700 A.D. was adequate. In The Irish Times of Saturday, 31 December the Minister is reputed to have stated in London that under current legislation national monuments are limited to buildings of historic interest that pre-date the year 1700 but the new legislation will include buildings of historic or architectural interest, regardless of their age.
My question is: if the Minister is so sure the year 1700 is sufficient, why introduce an amendment to insert "or such later date as the Minister may appoint by regulations"? I presume this amendment, if agreed by the House, would be sufficient to give the Minister power to make regulations. I cannot see this power in the Bill except in relation to fees. If the Minister is absolutely sure 1700 A.D. is an appropriate date it would not be necessary to include this amendment. In tabling this amendment, the Minister is admitting that, to leave the section as it is with the date 1700 A.D., is not satisfactory.
In discussing this amendment I would just like to explore it a little further. The question of 1700 A.D. puzzles me. I understand what the Minister has said. "Historic monument" includes any monument associated with the commercial, cultural, economic, industrial, military, religious or social history of the place where it is situated or of the country and also includes all monuments in existence before 1700 A.D. Am I to take from that, that every monument prior to 1700 A.D. will be listed and that other monuments post-1700 A.D. which have a commercial, cultural, economic industrial, military, religious or social history attached to them could well be included in the list of historic monuments?
That is correct.
That brings up a number of questions for the Minister and the Office of Public Works. The Minister's appointment is recent — I hope she will be there for many years to come. She has been there for a relatively short time. Ministers come and go and I am not talking in particular about the Office of Public Works. This is part and parcel of the way in which we manage our affairs. These Bills are meant to last much longer than Ministers or Governments, Taoisigh or whatever. In the greater Dublin area, the city of Dublin — I am taking the boundaries as they existed prior to the 1985 local elections — the following monuments are listed by the Office of Public Works: Grange Abbey Church, Raheny and St. Audeon's Church in High Street. I played a major part in getting funds for the restoration of that church. Some parts of it date back to the 6th century. The Casino in Marino, the Chapter House in Mary's Abbey, Howth, and Wood Quay are there as well. I understand that when a question was posed recently to the Office of Public Works they did not mention Wood Quay as one of them. Perhaps there is some difficulty with the construction or buildings completed on the site.
No comment.
They are familiarly known as the bunkers around this town. Will we get movement in the Office of Public Works and a recognition of monuments, buildings, sectors of our architectural heritage which have been ignored by the Office of Public Works to an extent which is unbelievable in international terms. Large parts of this city — I am speaking of 18th century Dublin — have been denied recognition by this State. There is a form of recognition under list 1 of the city development plan. I realise that what is in the minds of the Office of Public Works, the commissioners and, the chairman of the commissioners is that, if they recognise a building as an historic monument and list it as such, inevitably those who own the structures will be looking for funds from the State to restore, rehabilitate and keep it in good order. Merrion Square, in my view, should be treated as a national monument. It is not a national monument and, as far as I can see from the way the Bill seems to be falling into place at present, it will not be a national monument in living memory. It is not just a problem of not having funds to spend on these squares. I grant the Minister this in relation to the question of funds — funds are scarce for conservation.
I ask the Minister to consider the point I am trying to make. Many buildings post-1700, squares, parts of the fabric of the city in Dublin and towns through the country will not get recognition from the Office of Public Works if they get away with this. I do not trust in the Office of Public Works to actually start recognising buildings, or terraces of buildings, or squares that have some value, historical and architectural, but so far have got limited attention. The Office of Public Works are going for cover. They do not want to release money. They have not got the money to give historic monument status to an area like Merrion Square. If they would move, we could give it a status well and truly above the status it has at the moment under list 1 of the development plan.
We will deal with all that under amendment No. 59. We are amending it and we will take on board just what the Senator is suggesting. I agree with the Senator that it is necessary, but we are jumping the gun a little bit.
My difficulty is that for reasons of having——
I disagree with the Minister. To me you were in order.
I did not say he was not in order. I was careful of my words.
I must have a good look at amendment No. 59.
If you would prefer to leave it.
My trouble is that I am taking part in a show not too far from here.
Where are the Senator's priorities? I reiterate the various points I made in relation to what I feel are really unfounded fears about the inclusion of the date 1700. Everything pre-1700 will automatically be included and be deemed to be an historic monument. Anything post-1700 that should be included on the register under the various categories we have, commercial cultural, economic, industrial, military, religious or social history, can be included and the provision and the mechanism will be there for inclusion.
For pragmatic reasons really the year 1700 was taken and also because that has been well tried and practised in this area previously on other archaeological issues and one thing and another. We could not include everything up to 1900. I do not think it would be pragmatic and I do not think at this point it would be necessary. The reason we are allowing the Minister to move the date forward from 1700 to any other date he may see fit in the future is that, as time marches on, in the year 2010 or 2020 when we are looking at this legislation, perhaps 1800 will be a better reference date to have blanket inclusion in relation to our Register of Historic Monuments.
We should have a National Monuments Bill before then.
If it takes as long as it has to get here today to get to the next one, I am not sure that we should have it. I really do think the fears are unfounded and I hope I can convince the Senator that that is the case. I would just like to refer again to the point Senator FitzGerald made and his very genuine concern about groups of buildings not having been protected. They have never been protected because, up to now, our definition of a national monument, or now as we redefine as an historic monument, has been in the singular, a building or a structure above or below the ground. Amendment No. 59, if the Senator cannot be with us when we get it, will broaden that definition to include groups of buildings so we can protect our streetscapes and our urban scapes and all these other areas that we all have tremendous concern about particularly in our bigger cities and here in Dublin.
With regard to wrecks we are taking the datum line of around 1900, give or take 14 or 15 years. From that point of view it seems to me realistic to more or less keep to that date. I have followed very closely what the Minister has said but, at the same time, an historic monument is defined here in this section as a monument in existence before 1700 A.D. Section 5 deals with the Register of Historic Monuments. So clearly, a monument on the Register of Historic Monuments will be protected.
I am not clear whether the Minister is saying there was scope within the Bill before this amendment to include a monument that came into existence after the year 1700 but it seems to me that there must have been serious doubt in the Minister's mind when this amendment was moved. In giving the Minister power to make regulations to update the period, the Minister will not be updating one particular monument, in other words, later on if it is changed to the year 1800 it will not be for a specific monument; it will cover a period.
It would be pre-1800 if it was moved forward.
Therefore from the point of view of consistency with regard to wrecks and monuments, with regard to the special protection given to historic monuments, I really feel 1900 should be included. I agree that this amendment gives the Minister power which can be exercised presumably when representations are made by the Office of Public Works and by other bodies as well. At this time it can be amended to bring it up to the year 1700 A.D. and it seems to me that that is the proper course to take.
I have to agree with Senator FitzGerald's and Senator Connor's amendment because, in effect, that does widen the scope to bring the time up to the present if necessary. It is a reasonable amendment having regard to all those facts. I do not understand the definition of historic monument where it says, "where it is situated or of the country ..." Does that mean it belongs to the country? I am not too clear about that. With regard to a pre-historic monument, I understand that means before the formal writing of history. I am not sure what period that applies to. It would be before the year 1700. It seems unnecessary to include this definition, seeing that all monuments of this kind before the year 1700 are included anyway. Pre-historic times go back much further than 1700 A.D.
I am sorry to find myself at variance with my fellow Senators. I think to advance this from 1700 to 1900 is a retrograde step in regard to getting on with the work of trying to deal with our national monuments. The Bill says every monument before 1700 is an historic monument. I look back to section 2 of the original Act to find out what is a monument, and it includes "any erection whether above or below the surface of the ground." I think what we now say in the Bill unamended is that every scratching stone standing in the middle of a field that has been there since before the year 1700 is an historic monument and must be taken account of by the Board of Works. During the Second Stage debate we heard that they are finding difficulty reaching on all the work that has to be done on historic monuments. An undue burden has been already placed on those who have to carry out the work by talking about "everything". Every erection that has been there since before 1900 is a monument and according to this is an historic monument and, therefore, must be taken into account in the inventories, in the lists and eventually in the surveys. It would be disastrous to bring that up to 1900. It might be better to shove it backwards.
I do not entirely agree with Senator Dooge. I wonder whether in introducing the year 1700 we are isolating all the protection of the Office of Public Works to buildings or structures prior to 1700. I would have thought that it would be much better obviously to be protecting our early civilisation and then to be taking care of buildings of architectural importance through the ages, including the eighteenth century when the highest points of craftsmanship in this country were achieved on such buildings that merited attention by the State. Can we expect the Office of Public Works to begin to include squares, terraces and buildings post-1700 A.D.?
That is the whole point of it.
I know the Minister wants to see this happen, but I would like to feel sure that we will get recongnition for some of the later periods.
That amendment was at my personal request to the Parliamentary Draftsman.
I am happy with that provided it is followed up in the Office of Public Works and that we get movement. Outside the area of finance and burdening the State in that area, could we get recognition and give status to buildings, terraces and squares that are of importance? The Minister mentions in the Bill, under the heading of "historic monument" the religious or social aspect. I want to talk about the religious aspect. Churches continuing to be places of worship are not allowed to be included as historic monuments.
That is correct.
There may be some learned thesis on this subject which I should have read.
Too many of them.
In this day and age with some of these places of worship having few enough followers and given that some of these places of worship are architectural gems in different parts of the country, why can we not get over this problem? I understand there may be some constitutional difficulty with it. I would be interested to hear the Minister's view.
That is correct. Senator Fitzsimons was wondering why we had the 100-year rule in relation to the wrecks, and the year 1700 was mentioned in relation to other historic monuments. In relation to the wrecks and underwater archaeology generally, we are being said, as it were, by the Council of Europe's committee of experts on this. This is, the year or the figure A.D. that the Council of Europe recommends and is the one we are following in line with. In fact, we are ahead of some of our European partners but we are falling in line with what the experts in Europe feel we should be doing and that is why we are taking a pre-100 year rule on this occasion. Anything later than 100 years old in relation to wrecks can, and will more than likely, if there is historical, archaeological or artistic importance attached to them be deemed to be historic monuments in the same way as will any particular wreck less than 100 years old. The year 1700 still seems to be troubling some of the Senators. Our archaeological survey has been based on the year 1700 A.D. and with blanket coverage for anything before that year. As Senator Dooge pointed out, there is an enormous amount of work. There are pragmatic and logistical problems involved in bringing any year forward and taking any arbitrary year but we need not fall out over it. We would weaken the work we are doing with our older monuments if we bring in all the newer, important structures. We are not denying their importance. The more important under the various categories we have mentioned can be selectively included as historic monuments. Nothing important post-1700 A.D. need be excluded. There will not be automatic inclusion of structures post-1700. There are good pragmatic reasons why we should not bring that year forward but we have left the provision there for any future Minister to choose another year, if needs be. If our archaeological survey is complete and we have done our work as we should on everything pre-1700, there is no reason why we should not come forward in steps, but we will take that as it comes. As of now, I think 1700 is a reasonable year. It has been well tried in the archaeological area generally as a reasonable year to cut off in terms of blanket coverage, but selective coverage will be done where necessary, on any monument post-1700.
Churches and various other issues were mentioned. There are constitutional problems in relation to subventing religion which is where the churches are being actively used, and so on. There is also an enormous problem with our embarrassment of riches in the area of churches and all of this heritage. If we once put our foot in the door, I do not think we are in a position to be able to help realistically, except perhaps we could consider some listing or protection in that way, but that is not as it is at present, or it has been.
Senator A. Fitzgerald mentioned the point we will be dealing with in amendment No. 59 in terms of streetscapes. Under the UK law they operate conservation area orders which I would love to have in this country. That would come under planning Acts and the Department of the Environment legislation. We cannot afford to wait until we have a Bill that will protect our streetscapes and our conservation areas. There is a mechanism by which we can include protection by extending our definition of historic monuments from the singular to the plural. I think we must do that while waiting for our planning law and the planning Acts to be amended and further broadened in relation to this area. That is why I have requested that we put it somewhere in our Statute Book so that at least we have requested that we put it somewhere in our Statute Book so that at least we have a vehicle in case we need to get in and protect an important streetscape or area. We will then be able to do it. That is long awaited. I hope I have covered the various points.
I will have questions on Committee Stage.
Your duty is on the ramparts.
Mr. F. FitzGerald
I want to ask about State-owned buildings, buildings that are presumably in the care of the Office of Public Works. Occasionally the Office of Public Works takes a decision. The commissioners meet or the Minister meets the commissioners on a Friday morning behind closed doors. They decide they will put a building that has been in the protection of the State for public tender and they dispose of it. This does happen occasionally. Now, are these buildings protected, whether they are before 1700 or after? Obviously if they are before 1700 they are but if you have a building after 1700, would the State not decide to put it on the market but not to give it any recognition as a national monument because that would complicate things from their point of view or from the market point of view.
I do not think that you are in order.
I do not wish to open a can of worms here. I would just like to ask the Minister — she just touched on it for a second — what, very briefly, are the constitutional problems about subventing religion and churches under this section?
It is not an area I can pretend to know an awful lot about: all I know is that we cannot subvent a religion. The churches that are in active use for various denominational services cannot be subvented on that basis. I do not pretend to be an expert, but I can correspond with you if you want any more information on it.
It is an example of how far behind is our Constitution when we realise that some of the Communist States actually support the renovation of churches because in their opinion, they are national monuments. We have a little bit to learn. This happens in countries like Hungary. What they have done would put some of the churches this side of the Iron Curtain to shame.
We renovate churches that are not in use for religious ceremonies.
Yes, but the eastern bloc churches that are in use for religious purposes are renovated by the State — in Hungary, in particular.
They can afford to be selective.
They can but they can also afford to do it. I just want to thank the Minister for the explanation that she gave on this other section we were dealing with. I come from a county that is fairly rich in historic monuments, as you know, apart from the controversial recent one which was discovered. There are historic monuments at Cashel and Clarecastle, and other sites around Carrick-on-Suir. The State has expended a lot of money in my county and it would be remiss of me if I did not acknowledge it. Apart from the dates chosen here, I think it is appropriate to put on record the appreciation of people in South Tipperary for the tremendous work done, particularly on the Rock of Cashel, on Cormac's Chapel and the Vicar's Choral, which I used, with the permission of the Constitution, for an act of worship.
It is a lovely idea.
It is a lovely idea, yes. My wife also thought so. I just want to thank the Minister for that. With regard to our county development plan I want to pay a tribute to our retired County Development Officer and Planning Officer, Eamonn McLoughlin. He has listed every particular monument, whether the Office of Public Works have it in charge or whether they might in the future take it in charge. Anything worth nothing in the county has been listed. I would suggest that if the Minister wanted to extend the date or to bring in other dates she should refer to the county development plan. There she will find every conceivable scratching stone and everything else listed and documented historically and otherwise. That is a tribute to somebody like Eamonn McLoughlin, who managed to do that as part of his work.
I appreciate that Senator Ferris comes from an area that has an abundance of historic records and historic monuments. Indeed, I do as well. No matter what part of Ireland one comes from, there is an abundance of very important monuments. With regard to what Senator Dooge has said, that even scratching stones which were erected before 1700 will be preserved, I am not sure what category they would come into, whether commercial, cultural or economic. At the same time, I accept the point he is making that monuments which pre-date 1700 are well catered for generally. I understand him to be making that point and I accept that point.
The 18th century was a very important time for this country and we have very important monuments dating from that period. I appreciate what the Minister has said, that for the monuments which pre-date 1700 there is this automatic inclusion of protection. The point is that there are many people who feel that a hundred years later, in the 18th century, there were many monuments which should automatically be protected. I will just make this final comment.
Take for example, the graveyards, cemeteries or whatever we like to call them around the country. I know quite a few of them that have very important remains from the penal times such as thatched churches. There is a little graveyard within two miles of Kells at Dulane, which has a national monument. It is the remains of a very important structure. The Minister will correct me on this if I am wrong, but it seems to me that there is no prohibition on anybody with a metal detector going in to those graveyards and within the sight of an old church to excavate and see what can be found. There are many such areas. In that period when we had the famine we had the workhouses built, as well as some wonderful bridges and thatched houses, all things are worth preserving. They are worthy of automatic protection and inclusion.
In tabling this amendment, the Minister also concedes the point that there are many monuments which are worthy of protection. That facility is available to the Minister but I do not think it should be left as a choice to the Minister. I think it should be incorporated in this Bill. By getting a datum line which is more realistic — which is a possibility and I accept what the Minister has said — will improve the Bill. That important period I mentioned should be included and it should not be left to the decision of the Minister or for somebody to make representations to a Minister.
I would like to thank Senator Ferris for his kind remarks. I will convey them to the relevant sections in the Office of Public Works. Indeed, I am very aware of the enormous amount of good work we do. One of the big problems with the Office of Public Works is that they have been in the front-line for criticism for some minor issues — and even major issues — but the enormous amount of good work they have done consistently in the area of protection of our built-in natural heritage has gone unlauded. It is time we recognised and got our perspective correct in relation to this most important work that is going on.
Pre-historic versus historic — I forgot to comment on that aspect. I think it was Senator Fitzsimons in his second last contribution who mentioned it. The word "pre-historic" is being included here also on the recommendation of the National Monuments Advisory Council, lest any purist would take us up on the definition of what is actually historic or recorded. You could have a very old monument, artefact or structure that would be pre-historic. If anyone wanted to be purist, they could perhaps say it is not historic, it is pre-historic, and could try and make a difference between both of those. It is on advice to ensure that we do not leave ourselves open for challenge in relation to the definition of what is historic that we have included the word "pre-historic" there also.
I will not go into the argument again about the datum line of 1700. I made my point reasonably clear, I hope, in relation to it. I have listened carefully to what the Senators have said. I would like to say, however, to Senator Fitzsimons in regard to his mid-18th century graveyard and metal detector scenario that it would be illegal to go into that graveyard with a metal detector searching for any archaeological object regardless of whether it was listed as a national monument or not. As long as it is your intention to search for archaeological objects you would be out of order, according to this Bill. That situation would be protected under this Bill. There is nothing to stop that graveyard being selectively included as a historical monument or, indeed, any other structure or building or group of structures or buildings above or below the ground if they are post-1700 A.D. on our register of historic monuments. That would be as I intend it to be. I intend it to be fairly thoroughly done.
I imagine an enormous amount of pre-1800 structures of any kind would be included because of their status in terms of what we are talking about. Pre-1900 you would have a lesser amount, but more selective. As the next century gets closer, we are talking about a vernacular architecture and it would be even on a more selective basis. We would have to preserve as monuments the best examples of each generation's built heritage and, indeed, natural heritage to some extent, too, and that is what we are about. The blanket coverage would only date pre-1700.
Amendment agreed to.
Amendments Nos. 3 and 4 not moved.
Government amendment No. 5:
In page 3, subsection (1), line 24, after "1700 A.D." to insert "or such later date as the Minister may appoint by regulations".
Amendment agreed to.
Section 1, as amended, agreed to.
SECTION 2.
I move amendment No. 6:
In page 4, subsection (1), line 10, after "person" to insert "shall not own or use a detection device without licence and".
Many people feel detection devices should be licensed. There are very few areas in which a metal detector is used apart from searching for buried treasure. I know the Minister has referred to somebody using a metal detector to locate an underground pipe or an underground cable but, to my knowledge, such cases are few and far between. The majority of people who have a metal detector have it for the purpose of searching for buried treasure, artefacts and other items buried under the surface. Therefore, no matter what legislation is introduced a metal detector is a danger in most circumstances. Perhaps when this Bill is enacted and becomes law there will be less sale for metal detectors because there will be less use for them. From the point of view of potential damage to archaeological sites by people with metal detectors, it would be a simple matter to provide that those who purchase, have or own a metal detector are obliged to take out a licence.
Following what Senator Fitzsimons said, would there be a danger that if people had a licence they would feel completely free to go all over the place, as distinct from people who at the moment are going all over the place, perhaps feeling they are not legally doing so, but chancing their arms? I would be afraid if you licensed people to have these detectors they would have a sense of freedom and would feel they were within the law almost and that you could not stop them. I see that difficulty about what the Senator has just said.
I do not consider that this amendment would help very much. To own a detection device at a particular place could be confusing. To be in possession of one at a certain place is a clearer definition. The Senator may have in mind that nobody should legally own a detection device except with a licence. This would be going further than intended. There are many legitimate uses for metal detectors. They are used for tracing pipes and cables. It was not the intention to extend the scope of this section to cover such uses. Neither was it the intention to completely outlaw treasure hunting as a hobby. In fact, we are going further than any other country in the restrictions we are imposing in relation to metal detectors.
Amendment, by leave, withdrawn.
Amendments Nos. 9 and 10 are consequential on amendment No. 7 and may be discussed together, by agreement.
I move amendment No. 7:
In page 4, to delete lines 20 to 23.
Senator Harte in this amendment is suggesting the removal of the words between lines 20 and 23 on page 4 of the Bill, in section 2 (1) (b) to delete, "use, at a place other than a place specified in paragraph (a) of this subsection, a detection device for the purpose of searching for archaeological objects". This suggested amendment would make it much simpler for the parliamentary draftsman. The effect of the section is to restrict the use of metal detectors. Apparently infringing the prohibition involves a fine of £1,000 or six months imprisonment.
Section 2 (1) (b) is open to challenge on three grounds: on the propriety of its policy, on the uncertainty of the offence, and because the penalty is excessive. It could be readily accepted that the unauthorised use of metal detectors at known archaeological sites should be prohibited. This is the intention of section 2 (1) (a). The presumption in that, if the sites are in State care or are sites of which the new register will have cognisance, the authorities are perfectly capable of organising their own searches and will not welcome help or interference. In Great Britain the proposed section 2 (1) (a) has a counterpart in section 42 of the Ancient Monuments and Archaeological Areas Act, 1979, which makes it an offence to use a metal detector in a protected place involving a fine of £200. The British Act does not, however, make it an offence to search for archaeological objects at places other than the known protected sites.
This leads one to ask why a person should be forced to obtain permission to look for archaeological objects, or why he should be penalised with a fine of £1,000 or six months imprisonment if he had neglected to obtain permission. On the balance of probability, the enthusiast would spend his weekends searching for archaeological objects with a metal detector and would be doing something no official or professional agency would be attempting. The Minister has confirmed that in her contribution. On the same balance of probability it can be suggested that the enthusiast will, in the unlikely event that he finds something of value, give news of it to the world, as has happened. In any case, there is no harm in searching for things because if harm is done it will be through inexpert excavation. To discourage searching, however, is to place obstacles in the way of the increase of knowledge. The right policy is surely to encourage people to report what they may find. This is a principle that the draftsman has obviously recognised in dealing with wrecks in section 3 of the Bill which states:
A person who finds a wreck (being a wreck which is more than 100 years old) or other object (being an archaeological object) that is lying on, in or under the sea bed or on or in land covered by water, shall, within 14 days after such finding, make a report of the finding to a member of the Garda Síochána or to the Commissioners...
The fine for failure to comply with this section is £1,000. There is no threat of imprisonment. It may be observed that if the draftsman had sought to protect wrecks in the manner in which he proposes to protect objects in the earth, he would have prohibited diving with intent and made the possession of an aqualung in the vicinity of a wreck an offence akin to that of being equipped. It is respectfully submitted then by Senator Harte, however, that the draftsman has got it right with regard to wrecks and that the proposed section 2 (1) (b) should be deleted in favour of an obligation to inform the Commissioners of any find. The Minister has already responded to the previous amendment to this section, which covers the point made by Senator Harte. I believe Senator Harte would accept what the Minister suggested as moving towards what he was worried about. For that reason the amendment will not be pressed unless the Minister has any comment to make on Senator Harte's views.
These amendments are interrelated and I will take them together. These deletions cannot be accepted without seriously weakening the Bill in an important way. The object of these provisions is to make use of metal detectors for archaeological purposes subject to the consent of the Commissioners in the same way that excavation or digging for such purposes is subject to licence from the Commissioners.
When the Bill becomes law the register of historic monuments will be opened but at that date it will contain no entries. Therefore, the effect of Senator Harte's amendment, as moved here by Senator Ferris, would be that the restriction on the use of metal detectors would be enforced only at the 1,000 or so monuments in ownership or guardianship of the Commissioners, or of local authorities, or where preservation orders are in force. The making of entries in the register will be a gradual process commencing with those monuments which are already listed under the present legislation and continuing with the monuments which are at present being recorded in the National Archaeological Survey.
It is expected that within a decade or so a very large percentage of the monuments in archaeological areas throughout the country, which total around 80,000, will have been entered in the register but the register will never be closed as new monuments and archaeological areas will continue to be discovered. Likewise, in the case of restricted areas which, as Senators will see from the definition in section 1, are areas designated in historic recorders, it is expected that such areas will continue to be discovered and to be protected by orders as the years go by. Accordingly, I feel that Senators will accept that it is necessary to retain the provision in the Bill for making the use of metal detectors for the purpose of searching for archaeological objects subject to licence no matter where this search is intended to take place.
Amendment, by leave, withdrawn.
I move amendment No. 8:
In page 4, subsection (1), between lines 23 and 24, to insert the following:
"(c) advertise for sale or otherwise promote the use of detection devices for the purpose of searching for archaeological objects."
The Minister has, to some extent, referred to this. The purpose of my previous amendment was that if damage was caused it would be done by a person who was licensed to have a metal detector and therefore could be traced. I do not accept Senator Browne's contention that that would more or less encourage them to do it because the same could be applied to a licence for a gun.
It seems to me that when we are talking about searching for treasure it is invariably archaeological finds that are involved. I know many sites that are not identified as of great archaeological significance. I know one particular site, for example, in the wilderness of a bog near my home which was the site of a church in penal times. It is marked by a cruciform building on the first six inch map of the area. That was in the 1830s. The local people are unable to identify the site. In fact the site is identified some considerable distance from the actual site shown on the map.
I would like to take a person with a metal detector to that area, go over it and see if there is something important there. No archaeologist will ever excavate there to find out what is there. It is an important site. I am quite sure something of significance could be discovered there. There may be many other such sites which are not easily identified but by use of area maps it is possible to trace them. Those sites can be plundered because most of them are in very remote rural areas.
When advertising the sale of metal detectors it should be unlawful to promote the sale by recommending that a particular metal detector is more suitable for the tracing of important objects, that a particular detector is more sensitive than another. At the end of the day it depends on how sensitive the metal detector is. The more sensitive it is the more costly it is. I do not know what proportion of the more sensitive ones are sold. A Bill of this kind should endeavour to prohibit excavation in any area of archaeological significance that is not easily identified. If the Bill does not do that it will be a failure.
I want to make a brief comment on this. It seems to me that following the Derrynaflan case it may very well be that there will be a sudden rekindling of interest in metal detectors. Sales may reach new records, particularly in view of Christmas. During the course of my Second Stage contribution I adverted to the fact that I had seen advertisements promoting metal detectors specifically alluding to the fact that they would, of course, be extremely valuable, useful and functional in the area of uncovering and discovering archaeological artefacts and items of interest.
In the wake of the publicity attaching to the Derrynaflan case, I can very well see that there will be redoubling of that type of commercial hype in relation to the sale of metal detectors. I am concerned about this. At the same time I see the Minister's point that the Bill does not want to rule out totally the notion of treasure trove. It is legitimate in certain areas to happily pursue what is a very pleasant hobby. I wonder, in the light of recent events, if it is not necessary to have a fresh look at that. I will be interested to hear what the Minister has to say in reply to this amendment.
I agree with the Senators and I am prepared to accept this amendment in principle. If people are innocently led to buy such devices for the purposes of searching for archaeological objects they may then feel aggrieved when they are told that they will be breaking the law by using them for such a purpose. A consequential amendment to section 19 may be required. I propose to introduce an appropriate amendment or amendments at Report Stage.
Amendment, by leave, withdrawn.
Amendments Nos. 9 and 10 not moved.
Amendments Nos. 11, 12, 20 and 21 are related and may be discussed together.
I move amendment No. 11:
In page 5, line 10, subsection (2) (d) (ii), to delete "any time" and substitute "one week's notice".
These amendments are self explanatory. Consent under this section should not be capable of being revoked at any time in the sense that it could be revoked immediately. It would be reasonable to give one week's notice. The same applies to the revocation. It should take effect seven days after the person named in the consent is notified of the revocation.
In theory I could envisage a situation where somebody who had got this consent could make an important discovery. It might be in the interests of archaeology and research to revoke the consent but I feel that under this section to be able to revoke immediately is unjustified. The same applies to amendments Nos. 20 and 21.
I do not think that a week's notice should be given of the revoking of consent to use a detection device. If such revocation is deemed necessary the circumstances might well indicate that the holder of the consent would do damage to an archaeological site. A week's notice might give him or her time to do further damage in that case. It might be then necessary to revoke consent without notice. I, therefore, cannot accept these amendments.
I am not sure what situation is envisaged with regard to revocation of consent. It seems to me that if permission is given that certain excavations may be carried out, at a particular point something of importance may be discovered. Presumably, there would be no overseeing of the excavation by somebody from the Office of Public Works. In general, it seems to me that the only way somebody in authority would know that an important discovery had been made would be where the person or persons report this situation. Clearly, somebody who would go to the trouble of making an application and getting consent would be concerned about the archaeological treasures and would be a person whom the Minister or the Commissioners of the Office of Public Works could trust. Could the situation arise in reality — I know it could arise in theory — if where somebody who had got permission to excavate found some important artefacts or treasure in the archaeological sense, the commissioners would be in a position to know that and to act by giving instructions to cease the excavation immediately?
I am inclined to agree with the Minister on this point. The country is full of people who now have metal detectors. We are not doing anything to stop that. It is probably something to be condoned if used in the way the vast majority of people use these things, on beaches and on footpaths at rivers, etc. It is a weekend pastime with a lot of people. Some people can make a living out of it by finding coins.
In the first place when they apply to the Minister for a permit they tend to go out with no fixed purpose in their search. The probability is that they will only find tin cans, tops of bottles or debris from our present era deposited with abundance around the country. They are usually deposited by people who have very little feeling for the environment. That is usually all they will find. They might even find coins, buttons or old cartridge cases which apparently react strongly to these metal detectors. No doubt, at the back of their minds they would hope against hope and offer an occasional rosary that they might find another Derrynaflan Chalice. We do not know if that will ever happen again. The next man to find a treasure like that will have to convince the court that he had no interest at all in archaeology, that he had set out only to collect the tops of milk bottles or something like that.
We are trying to define also what is an archaeological object. It is defined specifically in the National Monuments Act, 1930. For the record I quote section 2 of the 1930 Act:
The expression "archaeological object" means any chattel, whether in a manufactured or unmanufactured state which by reason of the archaeological interest attaching thereto or of its association with any Irish historical event or person has a value substantially greater than its instrinsic (including artistic) value...
The same expression includes "ancient human and animal remains". It does not include "treasure trove" in which the rights of the State may have been waived. I am extremely concerned that if somebody who innocently went out for pastime or otherwise came across something of archaeological importance or suddenly discovered something that was of interest to the State, because he had already got a licence which allowed him to do whatever he is doing as a pastime he could not be stopped from continuing to search in that particular area if the Minister did not have the power to revoke the consent immediately. That is, as I understand it, the object of the section. It is the only reservation I have.
Many innocent people use these machines and really enjoy themselves. If they come across something now of tremendous importance it is inevitable that they will report it since there has been so much publicity. I hope that the publicity will not stop people from reporting finds of articles which are of importance. If my constituent had gone home, put the find in the cupboard and said nothing think of how much poorer the State would be. It is important that the Minister, if she issues a licence, should have the power to revoke it but it should only be revoked in the event of something extraordinary happening which would involve the interests of the State.
I would like to make one point with regard to what Senator Ferris has said. I do not disagree with him but I feel that with regard to an archaeological object, disturbing the site itself should be condemned. In many instances where no treasure or archaeological object is found the history which is written into the layers of the soil is disturbed. In many instances archaeeological would regard treasure, artefacts or the archaeological objects of less importance and less consequence to the story that is told in the actual layers and composition of the soil at a particular place.
I am somewhat disappointed that somebody with a metal detector can go to some of the places I mentioned, for example, the site of an old church which is not considered a site of archaeological importance. He may not necessarily find any worthwhile archaeological objects but he will have destroyed the story that is written into the layers of the soil. I am disappointed that, to a large extent, people with metal detectors will still be free to roam around the countryside. Under this Bill they will be prohibited from entering historic sites so it appears that they will have to concentrate on other areas outside those sites. Therefore those sites are in imminent danger. With that in mind I moved that amendment.
I find Senator Fitzsimons's last contribution to be somewhat contradictory to the amendment. He fears for certain old churches and graveyards which date back to the post-1700 problem and what a metal detector might be used for. As I stated earlier, if there is any intention at all of looking for archaeological objects, or any reasonable assumption that they are looking for archaeological objects in such an important or historic site, it is an offence. Even if there is a consent to use a metal detector and if there is an abuse or misuse or even a fear of abuse or misuse, the Senator in his amendment is saying we must give seven days notice before we revoke it. I cannot marry those two viewpoints. I must stand by the point I made in rejecting the Senator's amendment earlier. It is in the interests of the nation and in the interests of the common good that if we fear abuse or misuse or if we are aware of abuse or misuse of consent that we act immediately without giving seven days notice for people to continue their action to the eleventh hour and then withdraw. It is in our interests that we do not take the Senator's amendment on board even though I realise his concern and what motivates him in relation to it.
Amendment, by leave, withdrawn.
Amendment No. 12 not moved.
I move amendment No. 13:
In page 5, subsection (3), between lines 28 and 29, to insert:
"(c) In deciding on an application for a consent any training or experience by an applicant in archaeology or historical research shall be taken into account."
This is self-explanatory. Indeed, in relation to the previous amendment and what the Minister said was my feeling, that in a situation where somebody has got a consent and consideration has been given to his application, he must be considered trustworthy, he must be considered competent, it was from that point of view that I moved the amendment. In this situation I would be happiest if the individual were a trained archaeologist but the next best person is somebody who has considerable experience and above all considerable concern and, therefore, somebody who has studied archaeology. A person who has engaged in historical research should be a person who would be capable of carrying out a proper investigation. In the area of adult education it would be very desirable that courses would be available for training in archaeology because this is an area, as Senator Ferris said, in which there is great interest.
From the viewpoint of our concern for this archaeological heritage, anybody who would get a consent would have to be a person who would be reliable. In relation to my last amendment, if that person came on an artefact or some situation of great importance he should immediately report that to the commissioners. The commissioners would be dependent on getting that information from the individual concerned. Anybody who is granted a consent, should have training or experience in archaeology or historical research.
In deciding on such applications, any qualifications or experience that the applicant might have in archaeology or related subjects would, in the normal course, be taken into account along with other relevant factors such as his or her past record or that of any group to which he or she might belong. However, I see no need to provide for this in the Bill. It would in any case be inconsistent with existing provisions for the issue of licences for archaeological excavations. We do not insist on this provision under the present situation for issuing licences for archaeological excavations under the National Monuments Act, 1930 and it is done in practice. Before a licence is issued we ask the relevant questions and ascertain the relevant facts. Therefore, we feel there is no need to provide for it in this Bill, as suggested.
Amendment, by leave, withdrawn.
Acting Chairman
Amendments Nos. 14 and 22 are related and may be discussed together.
I move amendment No. 14:
In page 5, subsection (4), line 30, after "be" to insert "delivered by hand or".
It seems to me that this is a sensible amendment. In many instances it might be easier and faster to deliver by hand. In normal circumstances in any situation it is accepted that letters of importance, for example, those relating to the Planning Act, could be sent by registered post or delivered by hand. In situations with regard to the Planning Act the actual time and delivery of the letter would hardly be of importance but in this situation it may be of some importance to deliver an application immediately. I would like to see this amendment accepted.
I am willing to accept this amendment in principle since it deals with the situation where postal delivery is not feasible. However, the wording of the amendment would defeat the purpose of the provision which is to establish the dates of posting and delivery. I will have the matter examined to see if a suitable wording can be found to meet the Senator's point without otherwise weakening the section. I might add that similar provisions in the Planning Act perhaps have a different basis because in the past most planning authorities or local authorities had their own messengers or town sergeants who did a lot and we are talking about a more localised geographical area. In principle I will look at the amendment and return to it on Report Stage.
Amendment, by leave, withdrawn.
Government amendment No. 15:
In page 5, lines 37 to 42, to delete subsection (7) and to substitute the following subsection:
"(7) It shall be a defence for a person charged with an offence under subsection (5) of this section to show that the act constituting the offence——
(a) was the subject of a consent under this section granted to him, or to a person in relation to whom he was acting as servant or agent at the time of the commission of the act, and in force at that time and was not a breach of a condition of the consent, or
(b) was authorised by a prospecting licence granted under Part II of the Minerals Development Act, 1940.".
On Second Stage debate Senator Dooge expressed concern in regard to restriction in the use of electronic devices for the purpose of genuine geophysical exploration. This is a reasonable point and I am introducing this amendment to provide that possession of a prospecting licence under the Petroleum and other Minerals Development Act, 1960, will be a valid defence for a purpose charged under section 2 of the Bill. In effect, this will mean that a person will not be charged with the illegal use of a metal detector if he produces his prospecting licence to the Garda. This will not, however, mean that a person with a prospecting licence will be free to excavate in a protected site.
I accept that this is an improvement but it seems that somebody with a prospecting licence would be using more sophisticated means than a metal detector. I am not very experienced and I have not any great knowledge in this area. While I accept that this may be the case, somebody using a metal detector would hardly be doing justice to an investigation for metals. Perhaps there is some very sophisticated type of metal detector which would indicate if metals were present at great depths and if that is the situation it is very important to include that amendment.
I would like an opportunity to thank the Minister for meeting this point. She has said it was reasonable. It is not for me to say that the original plea was not reasonable. The Minister has been most accommodating.
Amendment agreed to.
I move amendment No. 16:
In page 5, subsection (8), lines 45 and 46, to delete ", but does not include a camera".
We are talking of a wreck. If somebody is searching for iron, steel or ferrous metal in a wreck a metal detector might be of little use. I can envisage the situation where a wreck would be buried in sand and where the detector might be used to locate the wreck but I can envisage also a situation where the wreck would be submerged in water and above the seabed and in that case a metal detector would be of very little use. While using a camera would not interfere with the wreck or the monument, it would through its findings if they were very favourable, encourage somebody to interfere with that wreck.
I am not disposed to accept this amendment. While many complaints have been made in regard to damage caused to archaeological sites by the use of metal detectors, I am not aware of complaints against a person or persons using cameras. Even underwater I cannot see that the restrictions on the use of cameras would serve any useful purpose. Effectively what the amendment is saying is that one could not take photographs of the Rock of Cashel, or that tourists or visitors could not be in possession of a camera when they tour the Rock of Cashel or any of our other monuments. I do not find that to be very practical.
In some countries where there are archaeological treasures the use of flash cameras, in particular, are precluded by order. Would the Minister consider making an order forbidding flash cameras in certain circumstances? I think what Senator Fitzsimons has in mind is that flash cameras can damage some treasures which are protected in subdued lighting. The normal use of cameras for outdoor or underwater work is accepted as being all right but there could be situations in which the Minister should have the power to preclude the use of flash cameras.
In this Bill we are introducing by-laws in relation to certain monuments and where there might be deemed to be any danger to monuments or artefacts from the flash device of cameras we could prohibit same under by-laws rather than by this section.
Amendment, by leave, withdrawn.
Section 2, as amended, agreed to.
SECTION 3.
I move amendment No. 17:
In page 6, subsection (2)(d), line 27, after "made," to insert "and in any event within a period of twenty-one days,".
This is a simple amendment and it may not be of any great significance. It is regarding provisions which shall apply in relation to historic records. Section 3(2) (d) says: "a copy of the order shall, as soon as may be after it is made, be deposited." It should read: "a copy of the order shall, as soon as may be after it is made and in any event within a period of twenty-one days." A period of 21 days is reasonable. It might be desirable to tidy up the section to confine it to a maximum of 21 days.
While I do not see any advantage in this amendment, I possibly see disadvantages in that in the unlikely event of a delay outside the control of the commissioners in depositing copies of an order under this section with the local district court clerk, a person interfering illegally with a protected historic wreck might escape prosecution. For instance, in the event of a vacancy arising for a District Court clerk, a delay beyond 21 days might be unavoidable.
Amendment, by leave, withdrawn.
Acting Chairman
Amendments No. 18 and 19 are alternatives which are similar to amendments Nos. 23 and 24 respectively. Amendments Nos. 18, 19, 23 and 24 may be discussed together.
I move amendment No. 18:
In page 7, subsection (4), line 14, to delete "(being a wreck which is more than 100 years old)".
We dealt with this before and it would be better if this qualification were removed. Amendment No. 19 proposes to delete "100" and substitute "50". That would be an improvement on the section if the Minister is not prepared to accept amendment No. 18. Amendment No. 20 proposes in page 8, section 3 (5) (c) (ii), line 5, to delete "any time" and substitute "one week's notice". Amendment No. 23 proposes in page 8, section 3 (6), lines 26 and 27, to delete "(being a wreck which is more than 100 years old)." Amendment No. 24 proposes that in page 8, section 3 (6), line 27, to delete "100" and substitute "50". If the Minister is not prepared to accept amendment No. 23 perhaps she would agree to amendment No. 24 as an improvement.
I find myself not convinced by these arguments and rather unhappy. I thought when I read the "100 years" that probably we were managing by doing this not to engage in any conflict with maritime law with the question of when ownership of a ship ends. If you are going to come down to something like "50 years" we are really courting danger in regard to a conflict of law because after all it may well be that the ownership of a wreck may be governed by a law other than the law of this State and there could be a serious conflict of international law. I would be happier leaving it at 100 years which, as the Minister has already indicated, has the sanction of agreement by the Council of Europe.
The effect of amendment No. 18, which is to simply delete the words "being a wreck which is more than 100 years old", would be that every wreck even the one that occurred last week in West Cork, the Kowloon Bridge, would come within the provisions of the national monuments legislation. It may well need to come under stricter legislation than we have now but I doubt if it is the national monuments legislation at this stage. This is obviously unacceptable. With regard to the proposals to substitute “50” for “100,” the 100 years date was set as it can be assumed that wrecks which occurred before that date will tell us something of our history which cannot otherwise be told. In the case of more recent wrecks it is probable that the circumstances in which the wreck occurred and details of the ship and of its equipment will be well recorded. Whatever date one chooses can be said to be arbitrary. The figure of 100 years is reasonable and is in accord with the consensus view of the Council of Europe's committee of experts on underwater archaeology as I pointed out some time ago. As I said on Second Stage this does not mean that wrecks of more recent age which have particular significance cannot be protected under this legislation.
In relation to amendment No. 23, the deletion of words in brackets as proposed in these two amendments would mean that every wreck, including recent wrecks would come within the ambit of this Bill. It would mean that in effect nobody could touch any wreck even one of recent date without a licence from the commissioners or Kowloon Bridge et al. As I said already the section as it stands can apply to any wreck which is considered to be of historical, archaeological or artistic importance whatever its age but there is blanket coverage of wrecks more than 100 years old. The figure of 100 years is reasonable in this regard and I repeat that it is the consensus used at the Council of Europe's committee on underwater experts in relation to underwater archaeology.
While the Senator pointed out that it may be difficult to know how old a wreck is the law has to specify some criteria and the onus will be on the person discovering a wreck to establish as best he can whether it is 100 years old; and it must be reported and not tampered with. If he does not take these precautions he may run the risk of prosecution and heavy penalties. There is the whole area of maritime law which Senator Dooge referred to and we would be really incurring the wrath of many far beyond our shores if we tampered or tread on toes in this area too seriously.
I agree that it seems logical that most wrecks would be documented for dates but I could envisage a situation where somebody might discover a wreck that would not be documented. It might be very difficult to determine the date of a particular wreck and it seems in a sense unreasonable to put the onus on somebody who discovers a wreck to determine the exact date. Somebody could quite innocently come to a conclusion that the wreck was of a later period and under this Bill if somebody makes that mistake they would be guilty of an offence and would be liable to very heavy penalties. I am not familiar with the workings of the situation where somebody would discover a wreck but in this Bill, as Senator Ferris said, we are concerned that with regard to the discovery and reporting of a wreck, a person might find it more discreet not to report it in certain circumstances.
There is little I can add to what I have already said on a couple of occasions in relation to this except to point out that there is blanket coverage for wrecks over 100 years old and selected coverage of the more important wrecks that are this side of 100 years old. There is also the fact that we have the recording and know more or less where to find or where to expect to find in relation to the younger wrecks. The more important ones of those will be deemed to be historic monuments regardless of their age. To delete 100 years and leave no datum there in relation to wrecks is not pragmatic; it makes no sense. I reiterate that despite all the hardship this country and the environment has suffered from the Kowloon Bridge we are hardly about to designate it a national monument or historic monument which is effectively what the Senator's amendment says.
I hope the Minister will accept that my concern is to be very careful and to err on the right side. Maritime laws have their place and if they take precedence well and good but I hope the Minister will understand that my concern is that nothing of importance would be lost.
I accept that fully.
Amendment, by leave, withdrawn.
Amendments Nos. 19 to 24, inclusive, not moved.
Government amendment No. 25:
In page 8, subsection (6), line 29, to delete "14" and to substitute "4".
I am taking amendments Nos. 25 and 62 together. These amendments are proposed by the National Monuments Advisory Council. Fourteen days was the time allowed for reporting archaeological finds under the National Monuments Act, 1930. In today's situation this amount of time appears excessive and since reporting to the local Garda station involves no inconvenience I think that we can agree to the four days proposed here for reporting historic wreck finds or other archaeological objects in lakes, rivers or on the sea bed and to the adjustment of the provision in the 1930 Act so that the same time scale applies to all reporting of finds. Particularly in the case of wrecks, this amendment may be important. Once an historic wreck is discovered its position will tend to become known and while the finder may not intend any damage, other persons could avail of the 14 day period to remove much of the valuable material from the site.
Amendment agreed to.
I move amendment No. 26:
In page 9, subsection (10) (a), line 13, after "expenses" to insert "reasonably".
I put down this amendment so that section 3 (10) (a) (ii) (I) would read: "to the said receiver, any expenses reasonably incurred by him, and his fees, in relation to the wreck..." I am sure that in certain situations the temptation would be to submit perhaps inflated expenses. I would like to see some control with regard to this because under the section as it is the expenses submitted would have to be accepted. That may not be so and if the Minister confirms that I will accept it. There should be some control, to limit it to reasonable expenses. That would improve the Bill.
I cannot accept this amendment. The receiver of wreck must be allowed all the expenses which he or she incurs. It is assumed that he or she will not incur any unreasonable expense. The receiver is normally the local customs and excise officer.
Amendment, by leave, withdrawn.
I move amendment No. 27:
In page 9 subsection (11) (a), line 30, to delete "place" and substitute "contiguous District Court district".
Section 3(11)(a) of the Bill states:
Proceedings for an offence under this section committed in an area consisting of part of the sea bed may be taken, and the offence may for all incidental purposes be treated as having been committed, in any place in the State.
It would be more desirable and more appropriate that an offence would be dealt with in an area reasonably close to the place where the illegal act was supposed to have been committed. If this amendment is not acceptable to the Minister, perhaps some different wording would achieve the same purpose.
I do not accept this amendment. The existing wording allows flexibility. For instance, an offence committed on our continental shelf could, for the convenience of all concerned, be heard in the Dublin District Court under the present wording rather than a contiguous District Court district as would be obligatory under the amendment. The same situation applies under the Continental Shelf Act, 1968. There is precedence under similar-type legislation for this wording.
For example, if the offence were committed off the coast of Kerry, would it not be logical that the court in that area would deal with it rather than having the case heard in Dublin, Sligo or somewhere else?
I imagine that in most circumstances it would be heard in the contiguous District Court. We do not want to tie hands absolutely to say it has to be, we want to leave the flexibility in the law. What the Senator suggests is what I expect normally happens.
Amendment, by leave, withdrawn.
Section 3, as amended, agreed to.
SECTION 4.
Acting Chairman
Amendments Nos. 28 and 29 are related and may be discussed together.
I move amendment No. 28:
In page 10, subsection (3), between lines 6 and 7, to insert the following:
"(c) a representative of the Minister for Education nominated by the Minister for Education."
I know the Minister has made the case that the membership of the Historic Monuments Council is big enough and that perhaps to add more to it would leave it too unwieldy. Nevertheless, in this area the Minister for Education should have some input. Therefore, I simply make the case that a representative of the Minister for Education should be nominated by the Minister. This should be incorporated in the Bill.
Amendment No. 29 states:
In page 10, subsection (3), between lines 8 and 9, to insert the following:
"(d) a representative of the Minister for the Environment to be nominated by the Minister for the Environment,
(e) the Chairman, for the time being, of the General Council of County Councils".
The Minister for Environment certainly should be in a position to nominate somebody to the council because of all the work done in this area by the Department of the Environment and by An Foras Forbartha.
With regard to "the Chairman for the time being of the General Council of County Councils", public representatives have a major part to play in this area and this should be recognised in the Bill. This would be one very tangible way of doing it so as to get the interest of the elected representatives. If the Minister agrees to accept those amendments, it will improve the Bill.
I am very much attracted to the idea that the Minister for Education would figure in this as one of the nominating Ministers because the Taoiseach and the Minister for Communications are listed. I am not the slightest bit prejudiced in this field but in the country many teachers down through the years have done much in this line. One could argue that education is well represented by Trinity College, the university colleges, and so on — I regard those as the experts on defining many things — but the workers who have done much to preserve many of the monuments are not represented. On Second Stage I mentioned the number of people not involved with education who are in societies such as the Old Carlow Society and who have done tremendous work and have given much of their time to preserving monuments.
The Bill uses the following wording: "such other persons not exceeding five in number as the Minister may determine from time to time". People who are very much involved in much of this work for many years should be officially recognised. It would be an acknowledgment of the amount of work they have done on the ground in saving many monuments. I would be sorry if my colleague Professor Dooge thought the university people were not representative of the teachers of Ireland; they probably are but I am talking about the nitty-gritty of digging and carrying out preservation work. People may be actually destroying things when they are excavating or opening drains. The Minister for the Environment should be very much involved in this area.
I feel those two points are very reasonable but I have to differ with my colleague, Senator Fitzsimons, because I have a certain hang-up about chairmen of bodies being appointed to select groups. If the chairman is interested in this it is fine, but very often the chairman for the time being may be a marvellous person directly concerned with what is going on but his successor may not have the slightest interest in it. I hate having people who have no interest in the work nominated to go on to sub-committees. People who know me at council level will know exactly how I feel about this. I ask people, unless they are interested, not to go on these sub-committees. At our council meeting when we were reorganising our own national monuments committee I said that unless people were interested in the work it was no place for them. If you nominate somebody simply because he holds a certain position, you can often put a square peg in a round hole and it does not work to the benefit of anybody.
With regard to the proposal to have representatives of the Ministers for Education and for the Environment on the council, the Ministers concerned have not sought this representation. It will be recalled that the transfer of the National Museum from the Department of Education to that of the Taoiseach likewise transferred the representatives from the Minister for Education to the Taoiseach. It is, in my view undesirable to have too many civil servants on the council, particularly at the expense of the representatives of learned bodies or persons with a particular interest in the area. I would not favour having the chairman for the time being of the General Council of County Councils on the Historic Monuments Council for a number of reasons. I understand this is an annual appointment and this would offend against the principle of continuity which the six-year term of office establishes. Furthermore, the elected chairman has, no doubt, many calls upon his time without adding to these — as Senator Browne pointed out — and he might be a person whose main concerns were with issues other than national monuments.
In recent legislation which has come before the House we have many instances of reserve functions introduced by the Minister and I welcome those warmly. My concern in this regard was to recognise the importance of the elected representatives and to give that recognition in the Bill. I accept that a particular Chairman of the General Council of County Councils might not necessarily be interested in national monuments but provision could be made where he could nominate somebody who was interested in national monuments.
He could have that power and in that way recognition would be given to the elected representatives. I accept the point raised by the Minister, that it would interfere with the continuity of office which lasts for a term of six years. At the same time, there is a deficiency in the Bill in that recognition is not given to the part that can be played by the public representatives and, therefore, to encourage a greater part to be played by them. An opportunity has been lost in this instance.
I would be slightly worried concerning what the Minister has just stated, of too many civil servants being nominated by the Minister. I sincerely hope the Taoiseach will not be nominating a civil servant, nor will the Minister for Communications, nor would I expect the Minister for Education to dream of nominating a civil servant. I hope they would nominate people who are on the ground and who have a proven track record in the matter concerned.
They did nominate civil servants.
They did nominate civil servants. I am shocked.
Good civil servants.
I sincerely hope that if this amendment is accepted the Minister for Education will not nominate civil servants. This is shocking. Why are the people on the ground working and giving a three-star performance if they are going to be forgotten?
It is amazing that Senator Browne's hopes are the same as my own. I would have hoped that any nominees that Senator Fitzsimons was talking about in this amendment would be people outside the Civil Service.
Politicians?
The trouble about appointing politicians, who could be experts, is that the Minister would be accused of doing it for political reasons. Do not let us shelter behind that accusation and appoint civil servants, because then the Minister might be accused of not being motivated. I do not want it to be inferred that civil servants are not capable of serving in an excellent capacity in these areas, but I want to defend the point made by Senator Fitzsimons that publicly elected representatives in various constituencies throughout the country already serve, on a voluntary basis, on national monument committees of their own county councils and otherwise, and they make a major contribution. The only co-ordinating body I am aware of which brings all elected councils together is the General Council of County Councils. It is not inappropriate to ask them to choose from their members a particular person with an expertise in the matter. It does not have to be the chairman. Indeed I would not give the power to the chairman. I would prefer to leave it to the whole general council to pick out somebody who would have a proven track record in this area. From my knowledge of public representatives I would much rather see a public representative on this council than I would anybody else and I do not mind what might be their political affiliations.
With a preference for the Royal Irish Academy?
If the nomination is left to the general body, it may be made on the overall on a political basis depending on the majority but at least the Minister would allow the nomination procedure to take place at the general body and formally make the appointment. That has been done in the past by other Ministers and I can see the argument in its favour. I was a bit shocked when the Minister confirmed that civil servants had been appointed in the past and would be appointed again in the future and that these nominees, if any, might be civil servants. I do not want to rule out either them or public representatives; we just want to allow the facility to be there for a public representative with a specific commitment, to have the opportunity of serving on what is a very important national body. I will deal with amendment No. 30 in a moment and give Senator Harte's reason for including somebody else. I know there is a limit to what you can do in this area, but it is important that we put in on the record the kind of people we feel should be on this body.
Yes, I confirm my interjections to Senator Browne that the Taoiseach's nominee and the Minister for Communications' nominee et al were the civil servants — excellent civil servants in this case, but it was the general principle I was referring to rather than the specific, I hasten to add. I am in greater sympathy with the idea of allowing the Minister for the Environment to have a nominee. That could well be the Chairman of the General Council of County Councils if he so wished. I am worried about that particular one because I think continuity is essential if this is going to be a work-man-like body; that will advise, research and help the Commissioners of Public Works in this most important area. I will come back to the Seanad on Report Stage, having considered again the implications of extending the Historic Monuments Council, now that we fixed on a figure of 18. I will not give any commitment and I do not want to be dishonest and pretend that I am accepting the amendment. I am very much in sympathy but not in the other areas for reasons I have outlined.
Perhaps the Minister for the Environment's nomination might kill two birds with the one stone. As far as I know, there will be nothing to stop him appointing a representative of members of local authorities, whatever the status of that member may be, or indeed another civil servant. He has excellent people; I can put on my Minister of State's hat at the Department of the Environment and say there are excellent people in the Department of the Environment with wonderful knowledge in this area in relation to listing, planning Acts and various other things that are very akin to some of the areas here. The bottom line appears to be that the Minister for Communications and the Taoiseach and others requested a nomination. The other Ministers did not. I ask the Seanad to leave it with me and I will come back on Report Stage. I am not giving any guarantee at this stage but I will certainly look into it in depth between now and then in relation to the Minister for the Environment's nomination.
Amendment, by leave, withdrawn.
Amendment No. 29 not moved.
I move amendment No. 30:
In page 10, subsection (3) (d), between lines 20 and 21, to insert:
"(xi) the Military History Society of Ireland,".
Senator Harte is anxious that the proposed Historic Monuments Council which is to be set up under this section would be charged with the task of compiling a register of sites and he considers it would be the stronger by the inclusion of a nominee of the Military History Society of Ireland. Ten bodies including universities and the maritime institute are given the right to nominate members of the Historic Monuments Council. The Military History Society of which the President of Ireland is a patron, has long devoted itself to the study of the battlefields and military monuments of the country and is the repository of considerable expert knowledge. It is a society which should be considered for inclusion among the bodies listed in section 4 (3). Senator Harte was anxious that the Minister would actively consider it between now and Report Stage if she cannot accept it in its present form. That society has a keen interest in what the national council will be doing. We are anxious that they would be given active consideration by some of the Ministers if not in their own right.
I agree with amendment No. 30. I see that there is a problem in this area because there are so many important societies on which the Minister would like to have representatives. Amendment No. 31 states:
In page 10, subsection (3) (d), between lines 20 and 21, to insert the following:
"(xi) An Foras Forbartha,".
We know the important work that is being done by An Foras Forbartha. Their most recent survey deals with the state of the environment, which was a major task. There are many experts in this area which I think should be represented.
Amendment No. 32 has been taken care of with regard to the General Council of County Councils. Senator Ferris has made suggestions in that regard with which I agree.
In page 10, subsection (3) (d), between lines 20 and 21, to insert the following:
"(xi) the General Council of County Councils."
Most of these monuments will be located in rural areas. Obviously farmers and the farming community are very important. To have representation from the General Council of Committees of Agriculture would give recognition of the important role which the farming community have to play in this regard.
Amendment No. 34 states:
In page 10, subsection (3) (e), line 22, to delete "five" and substitute "three".
This amendment is proposed on the assumption that the Minister will accept some of the previous amendments, therefore the council could become unwieldy. For that reason Senator Mullooly and I felt that if the Minister did accede to our requests with regard to the other areas perhaps there would be a counterbalance by reducing the numbers nominated from "five" to "three".
If I were to accept all these amendments the effect would be to increase the number of the committee by five at the maximum. All the proposals are good but there is a much longer list of representatives of other organisations which would feel equally entitled to be represented and which could be drawn up.
During the debate on Second Stage a total of 12 additions to the list were proposed by Senators. The line has to be drawn somewhere. A number of approximately 18 as proposed in this Bill is the optimum number. I would not be in favour of reducing drastically the number to be selected by the Minister for Finance, certainly not from five to three. In considering a nomination from the Minister for the Environment I will look at the logistics of reducing the number from five to four in future councils, perhaps one from the Minister for Finance, and including one for the Minister for the Environment. I will come back to all of this on Report Stage.
It is very important that there should be good balance on the council between specialists in the relevant disciplines and members of the general public who have a particular interest in the field. The Minister for Finance, on this occasion, has included a practising farmer who has a particular interest in historical and archaeological matters which is a good balance. We cannot have all academics just as we cannot have all civil servants. We have to have people that represent Joe and Mary Soap as well as higher academia. This is what the whole purpose of giving the Minister for Finance five nominations is all about.
The balance can best be achieved by the Minister for Finance nominating a sizable proportion of the membership. I also feel strongly that a too large and unwieldy council would not achieve the effect we want. If we could try to facilitate the suggestion that the Minister for the Environment had a nomination it could be someone representing An Foras Forbartha, someone from the General Council of County Councils. It could solve some of the difficulties or accommodate some of the wishes of the Senators as articulated here this evening.
It could also include the General Council of Committees of Agriculture. Although they are under the Department of Agriculture, part of their nominating process to the county committees of agriculture are from the elected representatives of the councils. I agree with Senator Fitzsimons that the land on which most of this excavation is going on is in the ownership of farmers and the General Council of Committees of Agriculture would have a direct input through ACOT and An Foras Forbartha as they work hand in hand. If the Minister for the Environment was specifically responsible for nominating from either the General Council of County Councils, county committees of agriculture, An Foras Forbartha and so on he could meet some of the problems we have in this area. All these areas are represented by public representatives who have specialised interests in this subject.
Amendment, by leave, withdrawn.
Amendments Nos. 31 to 34, inclusive, not moved.
I move amendment No. 35:
In page 10, subsection (4), between lines 27 and 28, to insert the following:
"(c) the Council shall, at its first meeting, appoint a vice-chairman from among its members."
There is provision for the election of a chairman. There are some committees who do not appoint a vice-chairman. I think it is a mistake not to have a vice-chairman. If the chairman cannot attend then somebody has to be elected for that day. The Minister has emphasised the importance of continuity by making provision for the election of a vice-chairman, which would ensure greater continuity.
Subsection (9) provides that the council shall regulate, by rules or otherwise, the procedure and business of the council. It would be undesirable to impose restrictions on the council. No doubt they will appoint a vice-chairman from among their members, as well, presumably, as a secretary, but they may not wish to make the initial appointment at their first meeting. It should be borne in mind that the council will be a continuing body. They will have one first meeting only and will be free to set the period of office of the various officers, apart from the chairman, and make arrangements to fill the vacancies as they fall due.
Amendment, by leave, withdrawn.
I move amendment No. 36:
In page 10, subsection (5), between lines 37 and 38, to insert the following:
"(c) Appointments as member of the Council shall be made strictly after three years and thereafter at regular intervals of six years.".
The position with regard to drawing lots to see who is lucky or who is unfortunate to be left off the council is unsatisfactory. There is no provision in this Bill for members who might voluntarily wish to resign from the council after three years. My amendment is to overcome this unsatisfactory position of drawing lots. To accept this amendment would overcome that problem.
The Senator is presumably trying to ensure that in future, a hiatus does not occur in the life of the council. The arrangements proposed will prevent this happening. As time goes on, members will be due to retire and will be re-appointed and replaced at different times. There will not, therefore, be a complete re-appointment of the entire council at any time in the future as the Senator seems to think.
If somebody is elected, say, after a vacancy occurs, could provision not be made that the appointment would cease at the end of three years, or six years, or whatever and not six years from the date of the appointment? Presumably this council will be set up on a particular date and after three years half the membership will resign or the appointments will be terminated either by lot, agreement or otherwise. Is it not possible, within the terms of the Bill, to ensure that when a vacancy occurs, the six years will not apply but the time will coincide with the end of that six-year period?
I have a feeling that all of this has been adequately taken care of in the section as it now stands. Basically, what we envisage happening is that once this legislation is enacted, the existing National Monuments Advisory Council, as reconstituted only in the last month or so — indeed I chaired the inaugural meeting — would de facto become the Historic Monuments Council. It was set up along the lines we have outlined in this Bill before us today. Now, at their first meeting, when they become the Historic Monuments Council — when this Bill is enacted — lots will be drawn among them and eight of them will be drawn on lot to retire after three years and the other eight will continue for a six-year period so that after three years half the Historic Monuments Council will be replaced. They can be re-appointed from among them and others can be replaced depending on the nominating body or the nominating person. We will have no hiatus where all 18 go out and a new 18 come in. At any one time up to eight will be continuous. If someone resigns, dies or retires they can be replaced at that particular time so it will not be a two-step — one at three years and one at eight years — replacement.
Given the nature and the make-up of the council, it is quite likely that there will be a few coming and going over the six years for different reasons. So I envisage no hiatus or gap, as it were, or no possibility as happened with the last National Monuments Advisory Council of everyone's term coming to an end for whatever reason, good or bad, and not being replaced, so that we could end up without an Historic Monuments Council. It will be continuous now, with no hiatus. I really do not feel that the Senator's amendment adds anything to the provisions that already exist in this particular subsection.
Amendment, by leave, withdrawn.
Amendment No. 38 is consequential on amendment No. 37. Amendments Nos. 37 and 38 may be discussed together.
I move amendment No. 37:
In page 10, subsection (6), line 42, after "person", to insert "or body".
I think that is self-explanatory.
Amendment No. 38 states:
In page 11, subsection (6), line 3, after "person", to insert "or body".
I think again that is self-explanatory.
I am advised that these amendments are not necessary as the word "person" will include "body". However, I accept what the Senator says and my initial reaction would be to agree with him entirely so I will, before Report Stage, have this whole question confirmed by the parliamentary draftsman and, if amendments are necessary, I will include them on Report Stage.
Amendment, by leave, withdrawn.
Amendment No. 38 not moved.
Government amendments Nos. 39 and 52 are related. Government amendments Nos. 71 and 72 are consequential. Government amendments Nos. 39, 52, 71 and 74 may be discussed together.
Government Amendment No. 39:
In page 1, lines 16 and 17, to delete subsection (11).
These are simply improvements in the drafting of the Bill. It is proposed to transfer their appeals which are in sections 4 (11) and 5 (11) to section 22 so as to group all their appeals together. This will make for easier reference when the Bill becomes law.
Amendments agreed to.
I move amendment No. 40:
In page 11, between lines 17 and 18, to insert the following:
"(12) The Council shall hold an annual meeting and publish an annual report. This report shall be laid within twenty-one days of its publication before each House of the Oireachtas."
In addition to the valuable work which the council will do, it is important that the council should hold an annual meeting. It is very important that an annual report will be published. This report should be laid, within a reasonable time of its publication, before each House of the Oireachtas. As well as encouraging the council and giving an impetus to their work and by being subject to some kind of scrutiny would enhance the work of the council and certainly improve the Bill.
As I have already said, I do not think it would be a good idea to prescribe times at which the council would meet. There would be little point in the council meeting just to fulfil such a requirement in the Act. In any event, I do not foresee any danger and the council may wish to meet at frequent intervals. An annual report would be useful. However, we must remember that the raison d'être, of the council is to advise the Commissioners of Public Works and any such report would have to be submitted to the commissioners in the first instance. It has been the practice of previous councils to prepare reports at intervals. Sometimes, however, the council felt it more important to prepare reports and submissions relating to particular matters. In general, I would favour giving the council as much discretion as possible as to how they will proceed. No doubt they will take cognisance of the Senator's view and, if they find it practicable, they will furnish periodic reports.
I would like to press the Minister a little more and ask her to consider this particular point of the annual report between now and Report Stage. I think there is not only the question of the professional operations of the Commissioners of Public Works and of the advice that they do receive, but I think if the work is to be successful, we do need quite a degree of public education. We do need to do everything within our power to make sure that public opinion realises the importance of what is being done, and one way in which to carry out this function of public enlightenment is that there should be an annual report of some type.
It may well be that it might not be this particular report. It may well be that the Minister would like to put in a section on Report Stage saying that the Commissioners of Public Works would produce an annual report but I feel that an annual report on what is being done in regard to historic monuments could well generate an enthusiasm that could not be otherwise than be helpful. I raise the question and ask the Minister to consider it between now and when we come to the matter again.
I agree fully with the point that an annual report in relation to the works being done by the Office of Public Works and by the Commissioners of Public Works in relation to our built and natural heritage generally would be most useful particularly in raising public consciousness. It has been one of my priorities in my short term in office and I will look to that between now and Report Stage. Whether it would be exactly as the amendment before us indicates as demanding an annual report of the Historic Monument Council or through another vehicle I will discuss and come back to the Seanad.
I take it if it did take the form of a report by the Commissioners of Public Works that it would refer to the work of the advisory committee, that would be an essential part of it. If it was an honest report it would report any differences between the advisory council and the Office of Public Works.
Amendment, by leave, withdrawn.
Section 4, as amended, agreed to.
Progress reported; Committee to sit again.