Line 23 of section 1 states that "‘the Minister' means the Minister for Arts, Culture and the Gaeltacht;" As the Minister is aware, changes are sometimes made to the titles of Departments when Taoisigh appoint Ministers. Does the Minister want to change this line? The Bill refers to the current title of the Minister responsible for this area but what would be the position in the event of a change?
National Monuments (Amendment) Bill, 1993: Committee Stage.
Donegal South-West): This is a reasonable question. A change would involve a change of functions. This situation arises often and questions such as this are asked. There is no difficulty. We do not envisage any change of functions but in the event of such a change the Bill will apply to the Minister with responsibility for this area.
May I refer the Minister to section 2 (2) which refers to the ownership of archaeological objects? It defines "owner" as "the person for the time being having such estate or interest in the archaeological object as entitles him to the actual possession thereof." What rights does this give to the person who owns the property or the land where the object is found? It seems to me that it suggests that if somebody finds the archaeological object, he or she becomes the owner rather than the property or land owner having rights to it. Perhaps the Minister could clarify that for me. I apologise to him for landing it on his lap, so to speak, without notice.
(Donegal South-West): It will not be a question of just rewarding the land owner who may not be the finder. It is a question of rewarding the finder and the owner of the land.
Am I correct in saying that the owner of the property or land on which the object is found has rights attaching to the object although he might not be the person to discover or find it?
(Donegal South-West): We have to differentiate because when it is an archaeological item it is owned by the State. However, there would be a reward for both the finder and the land owner. Of course, we would need proof of ownership, it is a question of title.
If an archaeological object is vested in the State and the State is paying a reward, I presume that the reward would be placed in trust or on deposit while the persons involved prove their title and the true owners are established.
(Donegal South-West): To qualify for a reward we must have proof that there is no known owner. It is important for this to be defined because the owner at all times of the archaeological object is the State.
The Minister is saying that the owner is the State but the section states: "the person for the time being having such estate or interest in the archaeological object as entitles him to the actual possession thereof". Is the finder entitled to the reward?
(Donegal South-West): The finder would be entitled to the reward, there is also the possibility of the owner of the land being rewarded. As there is no known owner, ownership is vested in the State.
Does section 2 deal with the reward? I thought that the issue of the reward would come up under section 10.
Yes, the reward is dealt with in a subsequent section.
There is obviously an overlap here. I will wait until we come to section 10.
I think I understand what the Minister said, I just need some clarification. For example, in a hypothetical situation of a man working in a field whose JCB unearths an archaeological object which he takes home, given that the ownership will be eventually vested in the State but that there are parties who would claim to be owners, the land owner and the owner of the JCB, who will get the money?
(Donegal South-West): Ownership of the item would be immediately vested in the State. It is not a hypothetical situation but a real one. A JCB driver could unearth an object, his helper could find it while they are working on land they do not own. All those people could at least have discussions with us in relation to the reward. There is no entitlement, a point I want to underline. There is only one owner, in this case the State. However, when a number of parties are involved, all of them may be entitled to a reward.
I move amendment No. 1:
In page 4, line 18, after "object" to insert "and ensure its return to the owner".
When an archaeological object becomes the property of the State, the Minister, on the advice of the director of the museum, may occasionally waive the State's ownership of that object. I have known of people who gave items of major historical importance to the National Museum. They later sought the return of these items but have not got them back for one reason or another. They thought these objects were on display but they were not. They were not aware of what use, if any, was being made of them.
One may meet many well-meaning citizens who will present artefacts to the State without seeking any reward but, as Senator Dardis said, people with bulldozers may unearth an ancient historical item or archaeological object which would be vested in the State; they would generously give it to the director. He will hold it until the matter is fully investigated. By that time, however, many of the finders may have died or have left the country. There should be a specific inclusion in the Bill to return the object to the owner, their predecessors in title or other relevant beneficiaries.
My amendment was put down to encourage people who find such objects to turn them over to the State. If the item is retained by the State, they may be seeking a reward, and well and good if they get one. However, if the object is not of significant value to the State and the finder wants to retain it, care should be taken to return it to its owner rather than what is happening at the present time.
(Donegal South-West): Senator Enright will be aware from section 2 of the Bill that the State's right to ownership has been extended to include archaeological objects found in the State after the coming into operation of the legislation where there is no known owner at the time of discovery. Therefore, any object coming within the scope of this section will have no known owner other than the State. Senator Enright's amendment would place an impossible burden on the Director of the National Museum.
Where it is decided that an object coming within the scope of sections 2 and 3 of the Bill is not to be retained by the State, it is likely that it could be returned to the person who reported the finding of the object to the director. If there is any dispute as to the ownership of the object at that stage, it will be a matter for the individuals concerned or, if necessary, for the courts to decide upon.
I regret I am not able to support this amendment.
I do not intend to push my amendment to a vote. I appreciate what the Minister said but my point is that the Minister can waive ownership of the object after getting advice from the Director of the National Museum. The State may not be as interested in the object as the person who originally gave it to the State. My amendment is designed to ensure that finders would be encouraged to come forward with these items. They may have a personal, family or local interest in the object and they may give it to the State for those reasons. This amendment would encourage them to come forward with these objects. I hoped the amendment would be accepted thereby facilitating the retention of an object pending a decision on the person to whom it should be returned.
(Donegal South-West): The Senator possibly appreciates the difficulties that could arise if we were to provide for the return of objects to owners. If an object is of no value and there are a number of such objects in the possession of the State it might be an example of where it would be returned to the finders. It is a matter for those who sighted and found it and those who own the land to decide to whom it should be returned. We would be put in an impossible position if we were to enshrine this in legislation.
Amendment No. 2 is out of order as it involves a potential charge on the Revenue.
May I make a comment?
I have ruled as you know.
I accept your ruling although the amendment involves a very minor charge on the State. I intended here to try to devise a system whereby people would not have to pay the cost of postage. It is a minor point but everything should be done to facilitate people who must return documents to the State and the onus should be on the State to look after them.
I made inquiries of An Post and I understand that in the case of the Department of Education in certain circumstances, when documents are being posted to Athlone, one has to pay the registration fee on the letter but not the postage. The Bill explicitly says at the outset that there will not be a charge, nevertheless I ask the Minister to ensure that people are facilitated when returning these documents so if they find objects there are no impediments to their notifying the State.
(Donegal South-West): I accept the point made by Senator Dardis. We want to ensure that those who find such objects will not be burdened with any cost. If there is a reward to an individual those costs will be taken into consideration. I assure the House that the director will be more than anxious to facilitate such people and if we are serious about our archaeological objects then we should facilitate them. I accept the point but I do not think it necessary to enshrine it in legislation. It will, however, be brought to the attention of the director.
(Donegal South-West): The purpose of the amendment is to provide the Director of the National Museum with flexibility by the inclusion of an option to waive the reporting requirements of section 5 in the interest of facilitating at least the temporary return to this State of archaeological objects situated outside the State and which may have been found in the State after the passing of the Principal Act. Although such an object may have been illegally exported in the past any possibility of proceedings might well have been exhausted at this stage and there would no longer be any other method open to the director to obtain the return of the object. As drafted, section 5 could be a deterrent to the return of such an object on any basis.
The section also has the effect of creating a mechanism whereby the director may be made aware at the earliest juncture of action being contemplated by any person in the State to have an archaeological object returned to it. The mechanism is also designed to counter a potential defence which might be made by a person to explain non-compliance with the reporting requirements set out in section 5.
The second part of the Minister's amendment reads: "Provided, however, that no such contract may be performed in the State...". Does this relate to an exhibition and to a contract relating to the exhibition? Will the Minister clarify that?
(Donegal South-West): The best explanation is that if an object has been brought back for an exhibition the director must be informed in advance. If he is not it could create a difficulty.
I would like the Minister to re-examine section 7 which states:
A member of the Garda Síochána may without warrant seize and detain ... [and then we come down to subsection (b)] ...any diving equipment which he reasonably believes is about to be used or has been used in any waters protected by underwater heritage order made under section 3 (1) of the Act of 1987.
The sub aqua and diving clubs throughout the country do great work and give great service to the community. I am concerned that this measure is draconian and I would like the Minister to re-examine it. The divers are doing great work in our area, they are a very responsible body. This measure is analogous to any of us going out to look at our heritage and being stopped because we were seen to be threatening the area we were looking at. This section gives too much power in this regard. If we move into this area we will alienate the whole sub aqua community. We should try to bring them onside as they do a lot of work.
I agree with Senator Ormonde's comments in regard to this section. The thrust of her argument should be considered by the Minister at this early stage in the debate. This Bill will go to Report Stage and then to the other House and the Minister will have adequate opportunity to research the matter. The section states" ...may without warrant seize and detain a detection device". If this equipment is found near some of these archaeological sites the section is understandable, but the Bill also states that diving equipment which the garda has reason to believe is about to be used in any water protected by an underwater heritage order may be seized. I see why the Minister has included this provision where the area is protected, nevertheless as there is no necessity for a warrant and as the garda may seize and detain the diving equipment, this provision is excessive. Why was it inserted? I would also like to know the position in regard to people who may not be fully aware that a heritage order has been served in a particular area. I know that many people swim off Clonmacnoise on the Shannon and that a diving group swim there. They would be aggrieved if because of this amendment their diving equipment, which they use for rescuing people in difficulties and water safety activities, was seized. Perhaps the Minister would look into that.
I agree with Senator Ormonde and Senator Enright. The section as phrased would give gardaí the power to come to one's house if they had reason to believe a person had been in Clonmacnoise. The section gives the gardaí wide powers. The intention to protect our underwater heritage in the same way as our land heritage is a good one, but the section does not give the diver sufficient protection; it treats everyone who engages in sub-aqua diving as a potential criminal.
(Donegal South-West): Perhaps we are thinking the same way, but when I first read the Bill I raised the same point. The explanation I was given, which I hope will be acceptable to the Senators, was that the seizure would not be permanent. This would be a matter for the courts, and it is explained later in the section. The equipment is only seized for evidence. We are referring to underwater heritage areas, and the only one of concern in the country is in County Leitrim where there are two crannógs. The equipment would only be seized for evidence because it would take time to obtain warrants and then it could be too late. It would have to refer to the responsible attitude of our divers who would be aware of important underwater heritage areas. We are only talking about one specific area and the seizure for the purpose of evidence. The responsibility of the divers is important and this should be taken into consideration.
At first reading it would appear that the tactic is to seize the equipment permanently but that is not the case. At present, we have jurisdiction only in County Leitrim where there are two crannógs.
Amendment No. 5 is an alternative to amendment No. 4 and both may be discussed together.
I move amendment No. 4:
In page 7, subsection (2), line 28, after "person" to insert "on giving seven days notice in writing to the owner,".
The object of this amendment is to ensure that the director or a designated person cannot decide willy-nilly to enter lands or premises to do whatever is necessary to protect the archaeological object. This is a dangerous area in terms of rights to property; from a constitutional point of view I could raise questions about section 8 (2). I do not know of any circumstances where people can enter land without due notice. In relation to compulsory acquisition for motorways or roadways, one is served with a notice to treat, then one is given the day and people enter. This amendment states that notice in writing must be given to the owner that the director or designated person will enter lands.
I can give a practical reason for this, other than the more serious legal or constitutional reasons, and it relates to farming. There could be a standing crop of wheat in a field which is worth a lot of money, and the director arrives with his Land Rover and 40 foot articulated lorry to remove the boat which has been uncovered by the JCB we were talking about earlier. This section gives them extraordinary powers to plough on, so to speak, through the land. I can accept there is an obligation to protect the artefact or archaeological object, but I do not see that it requires somebody to trundle in immediately to achieve that objective. This is to do with the rights or property and the individual. Even the Garda do not have a right to enter without due cause. If they suspect a crime has been committed they have to get a warrant. To give the director that type of discretion is not acceptable and that is why the amendment is proposed.
A number of people who had been looking over this Bill with me were concerned about the wording of this section. Section 7 states that the Garda will have power to seize equipment without a warrant and under the provisions of this section, somebody can enter your lands and property without notice.
Section 8 (1) states:
Where the finding of an archaeological object has been reported to the Director or a designated person under the provisions of the National Monuments Acts, 1930 to 1993, the Director may inspect, or cause to be inspected by a designated person, the land or premises under which or in the vicinity of which the said object has been found.
Section 8 (2) states that:
The Director or a designated person may enter on any lands or premises and there do all such things as may be reasonably necessary for performing his functions under the National Monuments Acts, 1930 to 1993, including carrying out an inspection or excavation.
These are quite wide-ranging powers. It would be wrong to grant such powers to the director to enter a person's land without the landowner having the opportunity of knowing beforehand. The director or his representative should also see if the landowner is agreeable to the visit. Unless this section is amended it could lead to problems in the future.
A garda cannot enter your house without a warrant, or enter your lands or property without a good and substantial reason such as the suspected commission of a crime or other serious offence. In this instance a person, because he believes you have an archaeological object, may enter your lands. Senator Dardis's amendment seeks to insert the words "on giving seven days' notice in writing to the owner." My own amendment is similar and seeks to insert the words "after service of adequate notice in writing on the owners or occupiers." At least they would then know someone is coming from the director's office and I am quite certain that most people would give full co-operation. I do not think it is wise to proceed in this way. This matter could be better dealt with by adopting a carrot rather than a stick approach to get people's co-operation. It is essential to have the co-operation of farmers, landowners and others where the item is found. Otherwise I am quite certain there will be widespread problems.
Senator Dardis mentioned a field of wheat. Many other areas could also be affected and, for many reasons, someone might not want the director to enter their land. There would be widespread objections from members of the farming community as well as private individuals who may have a small portion of land — a house on two or three acres — for sporting purposes. They would not be aware that any archaeological importance was attached to it, and might find excavations being carried out which are totally unsuitable for them at a particular time. They may wish to vary the time and I am sure they would give assurances of co-operation. However, notice must be given in writing.
(Donegal South-West): The purpose of section 8 of the Bill is to enable immediate action — and I emphasise “immediate”— by the director, or a designated person, on the site where an archaeological object is found. The physical context of a find of this nature is often more important than the object itself and it is vital that action be taken quickly to preserve the site from damage. Other objects or fragments may be nearby or the finding of one object may indicate a site of immense importance. To require seven days or any period of notice would defeat the purpose of the section and increase the possibility of irrevocable damage to a potentially important site through, for example, weather, vandalism or natural deterioration of ancient objects exposed to the elements due to the delay.
I emphasise that one would expect these powers to be exercised with sensitivity and the co-operation of the land-Quinn owner or occupier would be sought in all cases. I expect that such co-operation would be given in the vast majority of cases. However, the power to conduct an immediate investigation is essential. Under section 8 of the 1987 Act, the Commissioners of Public Works already have the power to enter land to inspect monuments. The important aspects of this are immediate inspection, consultation, sensitivity and a reasonable attitude on the part of all parties. I hope that if a field of wheat was involved there would be no question of arriving overnight without consultation with the farmer or occupier.
I regret I cannot accept the amendments.
I accept the degree of urgency that would be required in the need to protect a find of substantial archaeological or historical significance. However, the Minister has expressed the hope that there would be consultation. The difficulty is that there is nothing in the legislation to give effect to that hope. It is open to the director to do whatever he or she considers fit without consultation or co-operation. That is the central point of the argument.
I can give an example to illustrate the point. There is a major historical site called Connellmor Abbey close to my home in County Kildare. It was an important monastery but is now almost entirely covered by grassland. That grassland is prime stud farming land. Let us assume that something is found on that land and a thoroughbred stallion worth between £6 million or £7 million is kept in the field. I can guarantee the Minister that the owner of that land will not be very pleased if somebody arrives at the gate to enter that field without consultation.
There is no onus on the director, under this legislation, to enter into the type of consultation which I and the Minister would expect. It is not enshrined in the law. The director can enter the land without reference to such consultation or co-operation. That is not acceptable. We may be dealing with people who have absolutely no knowledge of the countryside or farming and who do not understand animals, crops or farmers. In their enthusiasm to protect what they regard as an artefact of supreme archaeological significance, they may get carried away to the point where conflict could arise. Subsection (3) states:
No person shall impede the Director or a designated person in the exercise of his functions under this section.
They should not be able to impede the director provided they are given adequate notice. This provision does not give them adequate notice.
(Donegal South-West): I will refer to the necessity for the immediate inspection of the objects which might be in the area to which Senator Dardis refers. It is vital that action is taken quickly to preserve the site from any damage. That necessity could be enshrined in legislation but we have an obligation to our own — and future generations — to look after our archaeological objects. We expect people to behave reasonably. We are dealing with archaeologists who should fully understand the problems raised by Senator Dardis and that the co-operation of the landowners is vital.
As I said, and the Minister referred to it in his speech on Second Stage, the area in which the object is found may be equally — or more — important than the object itself. Co-operation is necessary, if the object is taken away it does not mean that the object itself is all important, the area may be important. Co-operation with the landowners at all times is essential and the co-operation of the owners is necessary if we are to succeed. As I said earlier, this is new and section 8 of the 1987 Act says that the Commissioners of Public Works have power to enter land to inspect monuments. Immediate inspection is necessary. The object itself could be damaged and irrevocable damage might be caused to a potentially important site by weather, vandalism or natural deterioration of the object or objects concerned. I regret I cannot accept either amendment.
I accept that co-operation is necessary, that is my point. The way in which this legislation is framed is guaranteed to ensure that there will not be co-operation. If it comes to a point where the director informs the owner that he is coming and the owner objects, the owner's reaction will be negative to the point, in the extreme, where action might be taken to damage the artefact. I accept what the Minister says about the need to protect the archaeological object and quick action. However, one cannot achieve that on the one hand and infringe upon the rights of the property owner on the other. It comes to a point where the two are irreconcilable. The owner should have an absolute right to be consulted before somebody enters property or land. I raised the point earlier about the constitutionality of the matter with regard to property and I think there is a difficulty there. I hope this is not another Bill which will have to be referred to the Supreme Court.
There is a difference between this Bill and the National Monuments (Amendment) Act, 1987 which deals with the inspection of historic monuments. Section 8 states:
The Commissioners may cause such inspections, investigations and reports as they may direct (either generally or particularly) to be made by their officers, services, agents or other persons duly authorised by them in that behalf in regard to——
(a) historic monuments and places where the Commissioners have reason to believe that historic monuments may exist, and
(b) restricted areas..."
That refers to inspection. However, in this Bill we are dealing with inspection and excavation.
While people might have agreed to the site being inspected, this Bill will permit excavations. On occasion I have seen excavations, they can be quite extensive and entail a lot of disruption of normal farming practices. There is a definite constitutional problem, not alone with the inspection but with the inspection and the excavation — which is a considerable power to give to anybody — without notice. Somebody can enter property, inspect and excavate it. These are extreme powers and, coupled with section 7, will cause problems in future.
(Donegal South-West): I refer the House to section 8 (2) which states: “The Director or a designated person may enter on any lands or premises and there do all such things as may be reasonably necessary for performing his functions.” Senator Dardis suggested notice of seven days and Senator Enright left it open, but if a warrant is challenged in the courts and goes through the system it could take much longer than a number of days. Damage could be caused to the site or the object. This is a matter where there should be co-operation and consultation and I refer again to the words “reasonably necessary for performing his functions” under this Bill.
Because of the importance of this matter it will arise again and I will be pressing for a vote on my amendment.
I move amendment No. 5:
In page 7, subsection (2), line 28, after "may" to insert", after service of adequate notice in writing on the owners or occupiers,".
- Belton, Louis J.
- Burke, Paddy.
- Cregan, Denis (Dino).
- Dardis, John.
- Enright, Thomas W.
- Farrelly, John V.
- Honan, Cathy.
- McDonagh, Jarlath.
- Manning, Maurice.
- Naughten, Liam.
- Neville, Daniel.
- Ross, Shane P.N.
- Sherlock, Joe.
- Bohan, Eddie.
- Byrne, Seán.
- Calnan, Michael.
- Cashin, Bill.
- Cassidy, Donie.
- Crowley, Brian.
- Daly, Brendan.
- Fahey, Frank.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Tom.
- Gallagher, Ann.
- Henry, Mary.
- Hillery, Brian.
- Kelly, Mary.
- Kiely, Dan.
- Lanigan, Mick.
- Lydon, Don.
- McGennis, Marian.
- McGowan, Paddy.
- Maloney, Sean.
- Mooney, Paschal.
- Mullooly, Brian.
- Norris, David.
- O'Brien, Francis.
- O'Sullivan, Jan.
- Ormonde, Ann.
- Quinn, Feargal.
- Townsend, Jim.
- Wall, Jack.
- Wright, G.V.
Amendment No. 6 is out of order as it involves a potential charge on the Revenue. I am sorry about that, Senator Dardis.
I move amendment No. 7:
In page 7, subsection (2), line 41, after "Director" to insert "and the Board of Visitors of the National Museum of Ireland".
This comes back to the question of the powers of the director and giving the director as one individual such extensive powers. It is important that there should be consultation and co-operation as the Minister said. Section 9 (2) states:
This section shall not apply to an archaeological object which, in the opinion of the Director, is not of sufficient archaeological or historical interest to justify its retention by the State.
I propose to extend that discretion to include the Board of Visitors of the National Museum. One might say that this is not a statutory body but there are plenty of precedents in legislation where interested bodies have been included in legislation. One example is An Bord Glas where different farming and trade organisations were given rights to be on the consultative board. Therefore, I argue that there is precedent for a provision such as this. I would like it extended beyond just the director. I take the point that the director would, in normal circumstances, probably consult with experts in the field. However, under the legislation, the director can decide unilaterally; there should be more people involved in decisions on such matters.
(Donegal South-West): The National Museum was established under the provisions of the Dublin Science and Art Museum Act, 1877. The terms of an agreement in 1881, by virtue of an enabling provision contained in section 16 of the 1877 Act, provided for a board of visitors for the National Museum, and, incidentally, the Botanic Gardens. The 1881 agreement, which was between the Royal Irish Academy and Royal Dublin Society on the one hand and the then Department of Arts and Sciences and the Office of Public Works on the other, limited the role of the board of visitors to making annual reports on the condition, management and requirements of the museum and to giving advice on points affecting administration. The board of visitors has no day to day administrative functions. Accordingly, it would be most inappropriate to place the responsibility envisaged by this amendment on the board. One would have to unravel an agreement which is over a century old.
The Minister is responsible for the administration of the museum and these functions are exercised through the director. The function of deciding whether an object is of such national significance as to warrant its retention by the State is best exercised through the director. Apart from his competence, he will have a wide range of advice available to him from many interested parties, including his own specialist staff of which many are distinguished academics.
The Minister has signalled his intention to bring forward legislation to establish an autonomous board of management for the National Museum and has recently circulated proposals to his Cabinet colleagues for comment. Any statutory powers given to the director by virtue of the provisions of the Bill before the House will be exercised under the general authority of that board.
I regret that I cannot support this amendment. The board of visitors has defined functions and it has no day to day administrative role.
It is not my intention to press this matter but the Minister said that this function would be exercised through the director rather than by the director and I take this as a distinction. I am sure the Minister will give us an assurance that the director would consult these competent people. If an object is found and there is an expert on the era relevant to that artefact, I am sure, in the normal way, they will be consulted by the director. Can the Minister say it would be the intention of his Department and of the director to consult with these people before reaching a decision?
(Donegal South-West): In his initial contribution Senator Dardis referred to the advice that is available to the director. I assure the House that the director will draw on the wide range of advice available to him from many interested parties and from his own staff who are specialists in that field, many of whom are distinguished academics.
Amendment No. 8 is out of order as it involves a potential charge on the Revenue.
I move amendment No. 9:
In page 8, between lines 18 and 19, to insert the following subsection:
"(6) The owner of the land and the occupier of the land on or under which an archaeological object was found shall have the right to appeal to a court of competent jurisdiction any decision taken in accordance with subsection 1 of this section.".
The director should have authority to reward the relevant owner or occupier of the land in some way. This amendment seeks to incorporate an arrangement to this effect. As worded, section 10 (1) of the Bill states: "The Director may, following consultation with the Minister and the Minister for Finance and with their consent given in writing, pay to each or any of the following...". In the event of the director and the Minister not making any payment, this amendment provides for the right of appeal to a court of competent jurisdiction. A person may feel aggrieved if there was an archaeological object found on his land and no reward of any kind was made. In such circumstances this amendment would provide that person with the opportunity of going to a court of competent jurisdiction to obtain payment.
Given the powers set out in the Bill, such as the power to take items without warrant and powers of inspection and excavation without any real authority or notice, it is important that the Bill includes incentives to encourage people to co-operate and for the director to obtain their good will.
At present there is a danger of creating conflict. Points of agreement should be settled before addressing points of disagreement. In this instance the cart is being put before the horse. In view of this, some kind of safeguard should be provided which would be effective, given goodwill and co-operation. Since the director and other officials and groups working for the National Museum are held in high esteem throughout the country, when drafting legislation it is important to ensure that this goodwill is not only retained but extended and expanded.
I expressed concern about this aspect of the Bill on Second Stage as I was unable to ascertain if there was a framework for assessing the circumstances in which rewards may be made, the intrinsic value of the objects and the kind of people qualified to make such assessments.
Senator, you may comment on the section when all amendments have been addressed.
Perhaps the framework in amendment No. 9 should be included in the legislation for assessing rewards. I mentioned on Second Stage that such a framework did not appear to be in evidence in the legislation. If it were incorporated into the legislation this would address the concerns raised by Senator Enright. With such a framework the right of appeal would be granted.
I am tempted to get into a procedural wrangle over amendment No. 8 which has been ruled out of order, because it appears to me that if the director may, following consultation, award compensation, then, by definition, there is a charge on the Revenue. I am proposing that this same charge should be "definite" rather "probable".
Section 10(4) states: "Nothing in this section shall impose an obligation on the Director to pay a reward unless he is satisfied that it is in the public interest to do so.". This again raises the aspect of discretionary behaviour on the part of one individual. Surely there must be some objective criteria by which the object is valued?
In addition — and returning to the amendment dealing with disturbance and excavation which was ruled out of order — I cannot envisage any circumstances where the director, not having given any notice to the individual who owns the land, trundles across it, digs it up and then advises that some compensation may be awarded. That is unacceptable. For instance, there are statutory obligations which must be adhered to if the land was being used to build a roadway.
There is an element in this legislation suggesting that the State owns everything under the ground and has the right, irrespective of what others may decide, to attach those objects.
I support this amendment. Under section 10 there could be aggravated behaviour on the part of those who own land where there is a find made. This amendment provides an admirable addition to this section as it protects both the director and the individuals on whose land a find is made.
Section 10 (4) states: "Nothing in this section shall impose an obligation on the Director to pay a reward unless he is satisfied that it is in the public interest to do so." Section 10(1) states: "The Director may, following consultation with the Minister and the Minister for Finance...". The Director does not have to consult with the Minister for Finance under the provisions of section 10(4). This is contradictory. Senator Enright and other Senators have commented on this.
Amendment No. 9 seeks to address the matter by stipulating: "The owner of the land and the occupier of the land on or under which an archaeological object was found shall have the right to appeal to a court of competent jurisdiction...". Is an opportunity being created to make people aware of the fact that there is a method of appeal which will be fair to all parties involved, including the State and those on whose land a find has been made? What kind of appeal system should be created to deal with this matter?
If it is decided that the director will make the final decisions, can he do so without reference to the Minister for Finance? By inserting the word "shall", and requiring consultation with the Minister for Finance under section 10 (1), while not requiring such consultation under section 10 (4), the proposed legislation is unfair. We are creating situations where finds will be made but not declared. The opportunity must be created for those with an interest to declare finds because many valuable objects have been found and not declared or have entailed legal battles in the High Court or the Supreme Court.
The addition to the Bill afforded by this amendment creates a fair opportunity for all and I see no reason for not considering a compromise.
I would not be happy with the insertion of this new subsection because it gives the impression that every archaeological object has monetary value and it would raise the expectations of many people beyond its value. The value of an object found on an archaeological site is in the amount of information it gives about the site, era or epoch in our history. Often an object's value has nothing to do with its value on the open market. If people are given the right to take the National Museum to court, there is a danger that a plethora of cases would be taken. It would be costly for the State to appeal each case and would raise expectations beyond belief.
(Donegal South-West): Subsection 3 sets out the criteria whereby the Director of the National Museum may evaluate whether a reward should be paid, namely the intrinsic value and importance of an object, the circumstances of its finding and amounts paid in other comparable cases. The amount paid would vary according to the different factors involved. Apart from the celebrated Derrynaflan court case — the problems arising from it are dealt with in the Bill — in virtually all other instances there has been little difficulty in reaching reasonable and amicable conclusions with finders when the question arises.
Section 4 expressly states that there is no obligation on the Director to pay a reward unless it is in the public interest. For example, it would be in the public interest to pay a reward to a person who legitimately finds an object and who otherwise behaves responsibly. In such instances, a reward would encourage people to declare a find. It would not be in the public interest to pay a reward to a person who has been convicted for using a metal detector in contravention of metal detector licensing provisions in the National Monuments Act, 1987, or a person who has been warned not to engage in unlawful metal detecting.
We should differentiate between a reward and compensation. This is not a question of compensation, but a reward. The object is owned by the State, not by the person who detects it, the owner or, indeed, the occupier of the land. The amendment tabled by Senator Enright would be more appropriate in a situation where some form of compensation was made rather than a reward. However, this is not the case in section 10 which provides a mechanism to allow the rewarding of responsible citizenship, rather than payment for an archaeological object. The reward is not designed as an entitlement or a right. To make such a provision would encourage professional treasure hunters who seek such objects without regard for the context in which they are found. Regardless of whether a reward is paid, such objects are the property of the State and it should not have to negotiate with the finder for their surrender.
A section of the Bill states that a reward can only be paid with the agreement of the Minister and the Minister for Finance. This ensures that a decision is not in the hands of one person. While there is no modus operandi where one may have a right of appeal, it does not prevent an individual from instituting proceedings and taking a case to court where it would be decided. It would be wrong to include a provision to give that right of appeal and we should differentiate clearly between the question of reward and compensation. I cannot accept the inclusion of subsection 6 tabled by Senator Enright.
It is not our intention to put this to a vote. However, will the Minister consider it on Report Stage? My amendment states: "any decision taken in accordance with subsection 1 of this section"; it specifically refers to a reward, not compensation. I couched it in that manner because I did not want people using metal detectors and other equipment and seeking a reward. People will usually hand over objects of importance but, of course, some will try to take them out of the country. In the midlands there are valuable objects which may be put in the boot of a car or station wagon and taken out of the country. In these instances, it might be in everybody's interest for a court to decide. I would have been happy to go along with the Minister in framing changes to my amendment to bring it into the ambit of what I am trying to do. It is important that there is a mechanism whereby people who find objects are provided for and that there is a basis for them to obtain a reward.
I accept most of what the Minister said. The question of a reward for an object is one aspect of the argument. Where an object is legitimately found, there should be a responsibility to pay for that object on the basis that it has an intrinsic value. The Minister said there was no question of compensation, I understand that is in relation to an object. However, it is inconceivable the State should enter property and possibly do damage, dig holes or tear up the ground without compensating the owner for the damage. When a motorway was going through my land, Kildare County Council dug test holes and for each one a payment was made, which is proper. I cannot conceive a situation were the Director may come at his discretion and do what he likes without providing compensation.
I am prepared to accept that when the Minister spoke about compensation he was referring to the artefact rather than damage. I accept the State should be in a position to acquire these objects and that it should be an absolute right. However, there must be safeguards to protect those affected by the State's right to acquire those objects. There are not adequate safeguards in this Bill.
May I add to what Senator Enright said? The Minister makes the argument about compensation. I agree the word "compensation" never arose. However, the impression might be that we should compensate people for what they have handed over. There is no great difference between a reward and compensation, both involve a payment. The Minister said the person would have the right to put his case before a court and allow it to decide the issue. However, it would be better for such issues to be decided by a person or persons appointed by the Government under this Bill rather than in the courts. Legal costs are also faced by the State if people go to court. Instead of spending money on compensation and rewards, I would prefer to devise the structure under this section, about which Senator Enright spoke, so that disputes between the director or the Minister for Finance and the person who makes a find can be settled without going to court. There are too many situations where the State is in conflict with people.
I would not allow anyone on my land given that they can do what they like on it and are not liable to compensate me for any damage they do. I see no mention in the Bill of awards for damage caused. Is there such a provision? If not, there should be, otherwise, when people find objects they will bring them elsewhere. I do not want any valuable objects still under the ground in many parts of Ireland to be lost to the State. Senator Enright's argument is fair. The Minister readily admitted that people have the right to go to court. If people do not have this right, they are in big trouble. We should encourage people to come forward with finds.
(Donegal South-West): Senators referred to the damage which may be done. Amendment No. 4 refers to the giving of notice to landowners. Amendment No. 9 refers specifically to a reward in respect of the object. I believe that if a modus operandi giving this right were in place, this would encourage professional treasure hunters to seek out these objects. If they are unhappy the right is there under general law for people to proceed through the courts. The Department and the director will not take the initiative in this respect. We have made an advance in that at present the payment of rewards is discretionary whereas the Bill now puts this on a statutory footing.
Section 10 (3) lists the criteria in deciding whether to pay a reward: these are the intrinsic value and the general historical and archaeological importance of the object found, the circumstances of the finding of the object and the amount of the rewards paid in the State in respect of the finding of other comparable archaeological objects. I am happy that the legislation will deter professional treasure hunters from seeking such objects. There is a recourse available to individuals who wish to pursue this.
I move amendment No. 10:
In page 8, subsection (1), lines 25 to 33, to delete paragraphs (c), (d) and (e).
This is one of the most important matters in the Bill. Section 11 allows the commissioners to acquire land and monuments. I am most concerned about section 11 (1) (c) which refers to "any land that is in the vicinity of such a monument and is intended to be used by them [the commissioners] for the provision of facilities for persons having access to the monument under the National Monuments Acts, 1930 to 1993.".
I would be interested to know what "in the vicinity" means. Does paragraph (c) mean that if a field or a building is within a short distance of a national monument we will have an interpretative centre, a coffee bar or some other edifice not in keeping with the monument? We are again into the subjective definition of taste and what should or should not be allowed. In my view this gives far too much power to the commissioners. They should be forced under the Bill to seek planning permission in the event of their providing such facilities on adjacent land. It is very difficult to see how these paragraphs can be amended and that is why I am proposing their deletion.
We are back again to property rights. Paragraph (d) refers to "any right, easement, title or interest of any kind in, over or in respect of such a monument or land." This gives the commissioners wide powers. I accept there is an onus on the commissioners to protect monuments and ensure they are left in as pristine a condition as possible for the benefit of subsequent generations. However, I am not prepared to accept that the commissioners should have powers which would allow them to decide arbitrarily what they consider to be in the best interests of society and the country in areas not directly related to the condition of the monument. This is the difficulty I have with paragraphs (c), (d) and (e). Section 11 (1) says they "...may so acquire any such monument or land whether they or a local authority are or are not the guardians of the monument and whether a preservation order is or is not in force in regard thereto.". This seems to give them very wide powers. I am questioning the powers given to the commissioners and the degree to which we can be confident, having framed the law, that they will exercise them with the discretion we believe is required.
I support this amendment. The powers set out in paragraphs (c), (d) and (e) are extensive. The section states that the commissioners may
acquire by agreement or compulsorily in accordance with the Schedule to this Act all or any of the following...any land that is in the vicinity of such a monument and is intended to be used by them for the provision of facilities for persons having access to the monument under the National Monuments Acts, 1930 to 1993.
This does not refer only to the land on which the monument is sited but to land in the vicinity. Who will decide how far the vicinity extends because there is no definition of "vicinity"? It sounds extreme but a large number of acres of land could be acquired, perhaps an entire farm. I am concerned about the powers contained in these paragraphs.
Section 11 (1) (c) states: "for the provision of facilities for persons having access". If there were a considerable number of tourists coming on to the land on a continuous basis it would change a person's standard of living and way of life. For example, buildings could be erected on 30 acres of a 50 acre farm for the benefit of tourists. A person can appeal if they are not satisfied with the compensation being offered if this is being done by compulsory purchase but that is not good enough. This is a particularly draconian subsection.
Section 11 (1) (d) states "any right, easement, title or interest of any kind in, over or in respect of such a monument or land". Improvements have been made to a considerable number of our monuments. The commissioners and the State have great powers but what powers does an individual have if the commissioners fail to make repairs? We have been lucky in parts of Offaly. A tremendous amount of money has been spent on Clonmacnoise and its restoration and development is an excellent achievement.
However, in other areas the commissioners have decided that certain monuments are national ones and have stuck black or green signs on them to signify this. Everybody can see that these monuments are falling into a state of disrepair but nothing is being done about them. Many people who would welcome the right to take action if a monument is falling into disrepair. People are aghast at the neglect of some of these sites. We should give individuals the right where they feel action is necessary to report it to the commissioners. Then, if the commissioners fail to take action, the individual should be able to do so if they own the land. As it is phrased in the Bill, the owner of the land in the vicinity of such a monument has no rights — or very restricted rights — and it can be acquired from him. However, he cannot compel the commissioners to carry out work on these monuments. I support the amendment.
I share Senator Dardis's concern. On Second Stage I referred to our lack of concern about the scale or size of facilities which we put up around various monuments and important archaeological sites. I pointed out to the Minister who was in the House that I had recently visited Filatosa, the most important megalithic site in Corsica, and the facilities which had been provided there appeared to be housed in a building about 30 feet by 15 feet. They were perfectly adequate and in keeping with the scale of the site. I also referred to the nuraghe in Sardinia where facilities were provided in a very small area. We, in contrast, have recently developed an unfortunate tendency for overkill at many of our archaeological sites.
There seems to be little concern about the feelings of the local people when it comes to the size of the facilities. There seems to be no concern that facilities may be put up where satisfactory facilities are already available locally. This is a heavy handed approach and could lead to an overkill on these sites. Facilities which have been considered adequate may be superseded by new ones with little consultation with the local people.
I do not agree with this amendment. I welcome the Minister's integrated approach to the local planning authorities. The functions of the Office of Public Works and the local authorities should complement each other. The local authorities have extended their role to include the preservation of amenities. Any buildings or archaeological objects of note will have to be looked at in the context of the overall setting. We need to consult with local authorities and note what they say about any archaeological sites in their area. For example, if there is a linear parkway leading from a town or village which incorporates a historical site of note, the local authorities will have to play a role in its development.
The Minister has gone a long way with this integrated approach and such a consultative procedure would overcome these problems. There will then be local democracy in relation to these sites. I would not be in favour of deleting any of these paragraphs. I would favour a consultative procedure with the local planning authority which I think would be sufficient.
My understanding was that the Minister already has this power and that it would be unnecessary to include it in new legislation. However, deleting these paragraphs would leave the Commissioners of Public Works in an almost impossible position. For example, two of the biggest issues which have arisen in the Burren have been in connection with the closing off of national monuments. Access to Leamanagh Castle, one of the most historic sites in Ireland, has been denied because of difficulties of acquisition of access. The castle and the adjoining lands are privately owned and if the owner chose to fence off the castle the deletion of these subsections would mean that the Minister would have no power to intervene. The same can be said about the Poulnabrone Dolmen which is probably one of the most written about and photographed historical sites in Europe and we have had terrible difficulty in regard to it. The owner of the lands adjacent to and surrounding the site is anxious to make an arrangement allowing access to it but his worry is that, in doing so, people who injure or harm themselves on it can take him to court and get compensation for damages.
I appreciate what Senator Dardis is trying to do. However, one should not confuse what is happening in Mullaghmore with the Minister's statements. The lands for the interpretative centre at Mullaghmore were acquired by negotiation from a local landowner a long time ago and the Commission of Public Works can continue to do this, regardless of its size. However, if one closes off this power to the Minister, he would be precluded from intervening in places like Leamanagh Castle and the Poulnabrone Dolmen. The only access to Quin Abbey, for instance, is through private property. The landowners involved are keen to negotiate with the Minister, but if he does not have any right to do that, effectively many of our important sites and monuments would close. I referred to those two examples because I am familiar with them but there are thousands of others.
The question of Mullaghmore should be separated from this matter because it is not the same as discussing land adjacent to a monument. I am aware of the castle in County Clare, but what arises here is the fundamental right under our Constitution to property. To bring this argument to its logical conclusion, one can conclude that a site like Castletown House, in private ownership, should be automatically open to the public and become the property of the State because of its international importance. This provision in the Bill does not provide an integrated planning approach with the local authorities. It says that "the Commissioners may so acquire any such monument or land whether they or a local authority are or are not the guardians of the monument." There will not be much consultation if the local authority decides it does not want to release the land. The commissioners are in a strong position to do what they like, irrespective of whether the site has a preservation order on it. The powers here are draconian.
The Minister, by becoming involved in this area, is interfering with the rights to private property. One must strike a balance between this right and that of the State to acquire and maintain the monuments, which are enshrined in section 11 (1) (a) and (b). Where does "the vicinity" end? That question has been raised and needs to be answered. What does "the vicinity" mean? At what point does it get to the stage where one can take a whole townland because it happens to coincide with an interest which has nothing to do with the preservation of the monument, but with putting up an interpretative centre or "facilities". What does "facilities" mean? Giving the commissioners that type of discretion is the major difficulty with the proposal. We have already given the Director of the National Museum tremendous discretion. Now the commissioners will have the same discretion.
The question of shipwrecks off our coasts was referred to some time ago. There was a similar argument about insurance claims in relation to passing through private property to get to them. This matter is similar in nature.
Under these provisions, the Minister has the right to purchase land on any site or side of a national monument, such as the Burren, for example. If one wants to provide facilities such as toilets for people visiting national monuments, they will have to be built a good distance from the site so as not to spoil it. Land will have to be purchased to provide these facilities. How will that be done? Facilities should not be built within a three mile radius of the site of a national monument. No individual should have the right to damage a family who have held that land for the last 300 years. It is the same for any person owning a private building. The Minister may feel it should belong to the State and demand that it must be handed over. Indeed, the entrance, which could be as much as five miles long, would be also purchased.
Senator Daly's argument regarding compensation for covering landowners is not adequately explained in the Bill. We may never, because of financial shortages, purchase these lands but the general public will still be using them. How will we cover the landowners? The Minister says that all these lands will be bought, but that will not happen. How will Senator Daly's point be covered? In parts of the country, many farmers will not even let fishermen on their land because of compensation claims.
Although I agree the wording of the amendment may be too extreme, it raises a point. Will the Minister define "vicinity"? It could mean 12 miles from the monument. At the end of the day, this wording may be tested in court. However, it is too easy to say that the courts will decide the matter, they will only make a decision on what we produce.
(Donegal South-West): This section has aroused a lot of interest, judging by the many contributions from the Senators. I will first refer to section 11 in general terms.
This section updates the provision in section 6 of the National Monuments (Amendment) Act, 1987, for the acquisition, either by agreement or compulsory purchase, of national monuments, parts thereof, and lands in the vicinity by the Commissioners of Public Works, by making new provision for the acquisition by the Commissioners of rights of easements, titles or any other interest. Provision is also made for a specific mechanism of compulsory purchase and calculation of compensation on the basis of set criteria. Section 6 of the 1987 Act is lacking in this regard in that it does not set out the precise procedure to be gone through by the commissioners in the process of compulsory purchase.
The Bill seeks to rectify this deficiency by setting out in the Schedule procedures similar to those in the Shannon Navigation Act, 1990. As a result of this deficiency in the compulsory purchase aspect of section 6, it has not been invoked. Even if the compulsory aspect had been operated, it has been and continues to be the policy of the commissioners that this power be used only as a last resort.
The policy of the commissioners is to try to reach a voluntary, amicable arrangement with the land owner for maintenance of the site. This policy has been successful in the main but, occasionally, problems have arisen and no doubt will arise, particularly in respect of rights of way to certain important sites. Therefore, while it is anticipated that the compulsory aspect of the purchase would rarely be used to buy land outright or to purchase a right of way, the option the power represents is, nonetheless, considered an essential tool in the maintenance of the inherent right of people to visit, without unnecessary hindrance, physical manifestations of our national heritage.
Section 11 (1) provides that with the consent of the Minister for Arts, Culture and the Gaeltacht and the Minister for Finance, the commissioners may acquire, by agreement or compulsorily, any monument that, in their opinion, is a national monument, a part of such a monument, land in the vicinity of such a monument for the provision of facilities for persons having access to the monument, rights, easements, titles or any other interest in respect of the land or monument being acquired and easement over land to provide access to or service for the monument being acquired. The subsection also provides that the commissioners may acquire such monuments or lands regardless of whether they or a local authority are the guardians of the monument and whether there is a preservation order on it.
Compulsory acquisitions of monuments or land must be carried out in accordance with the Schedule which sets out the procedures which must be adhered to by the commissioners when they propose to compulsorily acquire any monument or lands. These include the publication of the intention to acquire the land and the notification of the owners and occupiers of the property to be acquired, the lodging of objections by the owner or occupier of the land or monument, the conditions which must be met before the consent of the Minister is given and the mechanism whereby the property is acquired. The Schedule also provides for the payment of any outstanding debts to the State relating to the property being acquired, the calculation and payment of compensation in respect of rights associated with the property and the prescribing by regulation of vesting orders giving effect to acquisitions.
With regard to the amendment tabled by Senators Dardis and Honan, the provisions in paragraph (c) are already in section 6 of the 1987 Act which is being repealed by this Bill. It is clearly necessary that the State should have power to purchase lands in the vicinity of national monuments to provide necessary facilities such as car parking and toilets and an access pathway to the monument. This should be provided in the vicinity and not, as suggested, three miles away. Planning permission would obviously be required and that was highlighted last year when matters relating to planning were brought before the courts.
The procedure for the purchase of land is adequately covered in the Lands Clauses Acts. Paragraphs (d) and (e) of section 11 (1) are merely technical provisions to enable the State to acquire clear possession of lands and to enable them to provide services and access to monuments in its care. Section 11 provides the commissioners with the power to acquire property voluntarily or compulsorily and, without the provisions in (c), (d) and (e) of this subsection, they would be debarred from acquiring property around the monuments and property for a right of way.
Compulsory powers are rarely used by the commissioners and it is not envisaged that they will be used in future. It is, however, necessary to have them available for use as a last resort. There are sufficient safeguards built into this section and the Schedule to ensure that the compulsory powers will not be used needlessly. The approval of two Ministers is required for any purchase — the Minister for Arts, Culture and the Gaeltacht and the Minister for Finance — and where an owner or occupier objects to proposals to compulsorily acquire his property, the two Ministers must again give their consent before the compulsory purchase procedures can go ahead.
I am convinced that paragraphs (c), (d) and (e) are essential and will enable the State to acquire clear possession of lands. If paragraphs (c), (d) and (e) were to be deleted from section 11 it would cause insurmountable difficulties and I do not believe that is the intention of the Senators who tabled this amendment. Therefore, I am not in a position to accept amendment No. 10.
I am not sure that debarring commissioners from acquiring land would be unacceptable, that is part of my argument. The argument is not about the procedures to be adopted, what is in the Schedule or how compensation would be paid. The argument is about what we acquire, not about how we acquire it. It would be far more beneficial to compensate landowners whose land was being crossed by people going to national monuments for public liability insurance. That would do far more to allow access to national monuments than acquiring land and less expensive.
Landowners are fearful about people climbing fences to cross their fields to get to a national monument and falling and breaking a leg, resulting in an occupier's liability claim. That is the difficulty involved in access to national monuments. It is not about building nice gravelled pathways through farmland and acquiring lands to put up toilets and so on.
The extent to which the public should have access to national monuments is a difficult question. It is desirable that people have access but not at the expense of private property. There is a constitutional issue here which will have to be addressed and it may well be addressed by people aggrieved by the provisions of this Bill.
Unfortunately I was not a Senator when the 1987 Act was debated. If I had been I might well have tried to amend it. By adopting section 11(1) and (2) which provides for the repealing of section 6 of the 1987 Act would logically follow. However, the question is why we need to change it. The Minister has restated what is in the Bill. We do not agree and we would like it improved.
I support the view expressed by Senator Dardis that it is necessary to deal with the public liability issue. There have been many reports and discussions on this issue but little action as a result. I support Senator Dardis and agree that it would, to a large extent, eliminate many of the problems. In light of the additional powers being given to the Minister with regard to compulsory acquisition, I impress upon him the desirability of dealing with this in a sensitive way because it is a delicate issue. Compulsory acquisition of what is to a large extent private property, but which is inside public places, will have to be dealt with in a very sensitive and caring way by the Commissioners of Public Works.
In relation to the Burren, it is important to underline the fact that all the land for the Burren national park, including Mullaghmore mountain, was purchased through negotiation with the farmers and landowners concerned. There was no element of compulsory acquisition in the acquisition of the land for the national park or of Mullaghmore mountain itself.
There is one very simple way to resolve this issue. The Minister should bring in an amendment to delete the words "or compulsorily", in other words, land must be purchased by agreement and not by compulsion. Senator Daly is right. That is the best way of doing things. The State must have certain rights in respect of the monuments themselves but the degree to which it should be able to compulsorily acquire lands in their vicinity has to be open to question. It is a question of the use to which the land will be put. The Minister said that planning permission would be needed. I am very glad to hear that and I accept that assurance on that basis.
(Donegal South-West): Following the passing of the Local Government (Planning and Development) Bill, State authorities, including the Commissioners of Public Works, require planning permission for any works they wish to carry out. I cannot understand why Senator Dardis should say it might not be a bad thing if the Commissioners of Public Works were not in a position to acquire land. I would remind Senator Dardis of a period when neither him nor I would have been here — 1930. Section 16 of the 1930 Act——
I do not go back quite that far.
(Donegal South-West): We have to go back to 1930 to fully understand the importance of this. Under section 16 of the 1930 Act, the public must have access to monuments. The Act states that the Commissioners of Public Works shall admit the public to monuments. We have to live with that situation at the moment. People may visit these monuments and public liability is a problem. Why should not the State acquire land in the vicinity of a monument to ensure access? If that is the situation then the State is liable for any public liability. At present, individuals cannot be prevented from visiting our national monuments and since there is a public liability problem, why not acquire the land, voluntarily if possible?
We have an obligation to ensure that if individuals are not prepared to negotiate on a voluntary basis the State can compulsorily acquire this land. If we were to follow through the Opposition's logic if we wanted to build a road and the persons owning the land were not prepared to sell the land voluntarily, we could not acquire that land by compulsory purchase order.
We have learned to live with compulsory purchase orders at local authority and national level. I am convinced from my experience that the Commissioners of Public Works would not acquire land compulsorily unless they could not agree purchase with a land owner. It is important to have that relief valve there in the best interests of the State, in the interest of protecting our national monuments and in the best interests of those who want to visit our national monuments.
There was a question earlier about the definition of "vicinity" to which I did not reply. "Vicinity" is very difficult to define. It depends on the monument concerned and would be examined in relation to the individual monuments.
The Minister's explanation has given me cause for concern which I did not have during the debate. I listened to part of the debate on the monitor. I can interpret what the Minister has said. This provision is a substitute for the State facing up to its obligations in regard to the public liability of landowners. That issue is being avoided here. As I understand it, the Minister says that under the 1930 legislation the public have a right of access to public monuments and the State is bound to uphold that right of access.
Senator Daly referred earlier to developments in my county. The dolmen in Poulnabrone is an example. Barriers have been erected to prevent access to the monument because the ground over which the public would have to travel is rough stony ground and it is likely that members of the public would hurt themselves going to see that dolmen. The easy way out of this problem is for the Government to face up to their responsibilities on the matter of public liability, which at present rests with the land owner. If the Government is not prepared to face up to it — and this is what alarms me — what is proposed here is that the State compulsorily acquires a piece of land across that landowners farm, thereby interfering with the free use of that farm and causing considerable disruption to the operation of the farm itself. There is a very simple way around this problem. The State should accept responsibility or put in place the necessary mechanism to cover public liability of landowners. It is far easier than giving the State the authority to compulsorily acquire a piece of land across a farm, disrupting the operation of the entire farm and depriving the owner of the use and enjoyment of that land.
The Minister has also stated that the last thing the State will do is compulsorily acquire the property. In my constituency — I do not know if Senator Daly will agree with me — there are examples where the State has been anything but sensitive in its dealings in regard to land. Because of that I want to warn the Minister who comes from a rural constituency that he is sowing seeds which will cause enormous dissension unless this matter is handled in a very sensitive way. There is an easy way out of this and I have told the Minister what it is, but it worries me that by going down this road now he is implying, rightly or wrongly, that the State is more or less opting out of its obligation to look after the liability of the landowner and using this legislation as a substitute for it.
(Donegal South-West): I stated that as far as national monuments in State care were concerned, under the 1930 Act the public must have access to these monuments. To follow Senator Howard's logic, is he suggesting that a member of the public visits one of those monuments and damage is caused or if the individual is hurt climbing over fences to get to the monument, that the State should accept public liability? We are trying to regularise this to acquire the area of land that is necessary in the vicinity of the monument and to negotiate as far as possible with the land owner to acquire that land voluntarily if possible. However, if that is not possible, there is a compulsory aspect to this legislation. At all times the policy is to try to reach a voluntary and amicable agreement with the landowner. We are regularising what was a serious situation so that one may gain access to a national monument in the State's care from any part of the circumference of the area around the monument. That would regularise the situation to purchase an area of land around a monument and then the State would be responsible for public liability. This should be a welcome development, but I understand the reference made by Senator Dardis to its compulsory aspect, which is still necessary.
We, as local authority members, could not say that the local authority should not have the right to acquire land by compulsory purchase order to build a road through an area. This compulsory clause must be included if such a development is necessary. I assure the House that the State and the Commissioners of Public Works have at all times tried to acquire land on a voluntary basis. I will not agree to amendment No. 10 because it would create a serious situation.
I do not want to discuss this matter interminably. I am fascinated by the statement in the explanatory memorandum which says these proposals will not cost the Exchequer any money. Some of the amendments were ruled out of order because they might have posed a charge on the Exchequer. It seems we are becoming involved in an area of substantial cost if the State intends to acquire land around these national monuments.
If we read Lord Killanin's Shell Guide to Ireland, we will see that almost every townland has a national monument. It is inconceivable that the State will acquire land around all these monuments to allow access to them. We are talking about the primary national monuments which many people visit. It would be cheaper and more effective in terms of allowing access if landowners were indemnified for public liability insurance. As every rural Senator knows, this is a major bone of contention. It has got to the point in Senator Daly's constituency where landowners will not allow people, irrespective of what it says in the 1930 Act, to cross their land to see these monuments because of the liability involved if someone falls and is injured. That is the way to address this area and we are concentrating on this to the exclusion of the facilities. This section gives the Commissioners of Public Works too much power in determining what they might consider to be desirable in the vicinity of a national monument and, as a result, some undesirable edifices could be placed around national monuments. Therefore, I will press this amendment.
The Minister is giving the impression that this is not a question of finance. Section 11 states that the "Commissioners may, with the consent of the Minister and the Minister for Finance, acquire by agreement...", but one does not acquire something without purchasing or offering a reward or compensation. Everything in this section will involve a certain amount of expenditure and anyone who gives the impression that we cannot speak about money is crazy.
I cannot believe the Minister is giving the impression that the Department or the Commissioners of Public Works will not consider the idea of purchasing property — for example, a pathway. The pathway to a monument may be four miles long and providing a roadway may be in the interests of the common good. I do not disagree with the Minister when he says we want people to look at our national monuments and if they cannot get to them we must use a compulsory purchase order.
I cannot understand why the Government is not prepared to consider public liability for people who want to cross private land to get to a monument, this would be cheaper for the taxpayer. What is wrong with this idea? There is no reason it cannot be done. We are prepared to spend millions of pounds to purchase land but we will not give a farmer public liability cover at a lower cost to the public. I ask the Minister who is trying to fool whom?
There are national monuments which are of educational benefit to our young people but they cannot visit them because the farmer will not let them cross his land in case they make a claim against him and try to get something which belongs to the country. The farmer is right. I would do the same if people were visiting a wreck on the shore and they had to cross my land because I am responsible while they are on my land. Who is trying to fool whom?
Surely the Government could cover people against public claims; it is only right to do so. Why should we spend millions of pounds to purchase land to get from one part of a monument to another? This is a serious argument and there is no logic in having wired fences which prevent people from crossing ditches. If people want to cross a ditch to see something on the other side of a farm and if they hurt themselves in the process, they should not be able to claim off a landowner. We must provide a general policy which will cover the nation against any such claim. The claim cannot be very big if people are crossing rough land but, if it is, we should be able to cover it with the number of people employed in the courts to defend the nation. I see no reason there should not be private liability cover. I cannot accept what is in this Bill because I hold the opposite view.
(Donegal South-West): We are trying to facilitate the people who want to visit national monuments in State care and to regularise the situation. If, for example, there is a monument in the centre of ten or 20 acres, should we allow access from the entire circumference of that area and say the State is liable for any accident which takes place there, regardless of whether one is going up hills and down dales or trying to cross rivers? We are trying to allow access to monuments so that there will be no question of our landowners denying people the right of access, which they already have.
We are trying to make entrances to our national monuments which will entice people to visit them. We will be unable to entice people to visit these monuments if they must cross fields and hedges. I put it to the House that we would be able to entice more people to visit our national monuments and to be proud of them if we had a walkway or drive to them with all the necessary facilities. That is what we are trying to do and I am surprised to hear some Senators say the opposite.
Public liability, to which Senator Dardis referred, is a serious matter. The House will be aware that the Law Reform Commission produced a report on public liability. The introduction of legislation to improve the position in relation to public liability is a matter for the Minister for Equality and Law Reform, Deputy Taylor, and I accept the necessity for this. I am not being difficult on this matter; in fact, I would be the most amicable person here if I thought we could improve the situation, but I do not believe this amendment will improve it and I ask the House to accept that.
I understand what the Minister is saying.
Will we have to accept liability if we own these public pathways to the monuments? Will this be less expensive than the liability suggested by Senator Cregan and Senator Dardis?
(Donegal South-West): Yes, if there are pathways it will be the responsibility of the commissioners to accept public liability but it would be much more structured and less chances of claims in that respect than if you were trying to scale ten-foot walls to get into areas. Quite honestly, I believe that this is——
The Minister is a fair man if he can scale that.
(Donegal South-West): I suppose if Senator Dardis thought there would be a vote in it he would do exactly the same. I am not going from the sublime to the ridiculous, I am being realistic and practical about this.
The Minister is not going from the sublime to the ridiculous but the Bill is. While the Minister is being fair, the Bill is not and that is important because its provisions will be enshrined in law. I agree with the Minister because he wants to create pathways through which people can walk. Is the Minister prepared to say that there could be common law pathways, in other words rights of way? There is no reason to destroy a whole area through which people want to walk on a Sunday to visit to a national monument, and which, for the rest of the week, nobody is using, yet it belongs to the State. Why can the Minister not put in a provision to create a common right thus covering public liability? Of course we should have pathways but we should not make demands on a farmer or his family in whose name the farm has been owned for the last 300 or 400 years.
The wording of section 11 (1) (c) which mentions "any land that is in the vicinity of such a monument" is very important because such land could be purchased. We could create an opportunity for people to say that they might as well take the lot because it is no good to him. Could that happen? The wording should be: "any opportunity for pathways to be created between both parties, and public liability, should be covered by the State".
There would be opportunities for the Government, commissioner or Ministers for Finance to purchase enormous amounts of land irrelevant to national monuments. That is the danger. However, it is clear that the Minister does not want that kind of opportunity to be given to a commissioner. Neither do I. Nevertheless, pathways should provide a common right for people to walk at weekends or in the summer and the State should cover public liability to make sure everybody has that right.
Farmers and others living where national monuments are situated want to help in every possible way but we should also help them in every possible way. We should not create a situation in this Bill where farmers' rights are infringed.
(Donegal South-West): That may appear to be the situation but, looking back at the history of the commissioners of public works, practically all acquisition of land is as a result of negotiation on a voluntary basis. Section 11 (1) provides that any of the following may be acquired by agreement or compulsorily: the monument itself; part of a monument and land in the vicinity of such a monument. We might also negotiate in relation to rights of way, easements, titles or any other interests in respect of the land or monument being acquired.
Senator Cregan referred to the damage that could be caused and taking away rights. Let us take a practical situation where thousands of people are crossing through a field. Is he suggesting that wheat and potatoes will grow in the area? Damage will be caused there anyway. We will compensate the farmer to acquire that land whether as a right of way or purchasing it outright. We are being very reasonable and the views I express — those of the vast majority in the House — are reflected in the Bill. Negotiation will be extremely important. It would narrow down the question of public liability and, indeed, people visiting monuments would be covered by public liability which is not now the case. We are being reasonable, practical and realistic.
I do not underestimate, or doubt the sincerity of Senators who contributed and who may have another view. However, they should look at the practicalities. We accept it being put to a vote but in future they may say I was right. The consent of the Minister for Finance will be required before any compulsory acquisition. Given the responsibilities of the Minister for Finance of the day, it is unrealistic to expect him to preside over the unnecessary acquisition of vast tracts of land. If we were to concede public liability cover in the vicinity of a national monument, I shudder to think of the result. Claims could be quite expensive on the State, perhaps much more expensive than acquiring tracts of land.
Is amendment No. 10 being pressed?
- Byrne, Seán.
- Calnan, Michael.
- Cashin, Bill.
- Daly, Brendan.
- Farrell, Willie.
- Finneran, Michael.
- Fitzgerald, Tom.
- Gallagher, Ann.
- Hillery, Brian.
- Kelleher, Billy.
- Kelly, Mary.
- Kiely, Dan.
- Ormonde, Ann.
- Roche, Dick.
- Townsend, Jim.
- Kiely, Rory.
- Lanigan, Mick.
- Lydon, Don.
- McGennis, Marian.
- McGowan, Paddy.
- Magner, Pat.
- Maloney, Sean.
- Mooney, Paschal.
- Mullooly, Brian.
- O'Brien, Francis.
- O'Kennedy, Michael.
- O'Sullivan, Jan.
- Wall, Jack.
- Wright, G. V.
- Burke, Paddy.
- Cotter, Bill.
- Cregan, Denis (Dino).
- D'Arcy, Michael.
- Dardis, John.
- Enright, Thomas W.
- Farrelly, John V.
- Henry, Mary.
- Honan, Cathy.
- Howard, Michael.
- Lee, Joe.
- Manning, Maurice.
- Naughten, Liam.
- Neville, Daniel.
- Ross, Shane P.N.
(Donegal South-West): This is a technical amendment designed to clarify section 11 (1) (e): “any easement over land to provide access to or service for a monument” relates to any national monument or part thereof, regardless of whether the acquisition at issue takes place under section 11, including access to monuments already in State ownership or care. It is a technical amendment. In effect, it means that if we want to acquire easement over land to provide access and we do not have this amendment, we can only provide this to a monument acquired under section 11 after the enactment of this Bill. We are anxious to ensure that this legislation will also cover monuments which were acquired prior to it. A typical case in point would be Dún Aonghusa on the Aran Islands. If we were anxious to acquire a stretch of land for entry to the monument and we did not insert these words in substitution it would create a problem. The amendment is deleting “any such” and substituting “such a”.
May I raise one point arising from section 11 of the 1987 Act which contains the definition of a national monument? The definition excludes a building or a part of a building which would be used for ecclesiastical purposes. That section creates difficulties in many respects in relation to some of our most historic and important monuments, I refer in particular to monuments on Scattery Island in the Shannon Estuary and to St. Mary's Cathedral in Limerick, where the Commissioners of Public Works were excluded form providing assistance because ecclesiastical services were taking place in the building which was a national monument.
I asked on Second Stage whether the Minister would put down an amendment to clarify this matter, by changing the definition under section 11 of the 1987 Act or by changing the Churches Act, or by bringing in some arrangement whereby buildings which are national monuments would not be excluded from financial support because ecclesiastical services were taking place there. I am aware that this is a complicated issue and would need more detailed consideration by the Minister. I raised it on Second Stage in the hope that on Committee Stage the Minister would find a way to deal with it. There are constitutional and other issues involved.
I raise the matter again in the hope that the Minister might at a future date find a way to deal with it. The issue creates some anxiety in relation to Scattery Island in the sense that, if restoration takes place in some of the historic buildings on the island, because ecclesiastical services take place there, it could be excluded from support from the Commissioners of Public Works.
(Donegal South-West): Senator Daly raised this matter on Second Stage. Under the National Monuments Acts a building used habitually for ecclesiastical purposes cannot be a national monument. This has consistently been the position since 1930 and it is too broad an issue to deal with under this Bill. It could be considered in connection with future amendments to the National Monuments Acts.
There is also a possibility of constitutional issues. The Constitution provides that the State cannot subvert any religion and it might be unconstitutional to provide that the State could provide financial support for a church which is in use for religious purposes.
I would accept that reply if we could be satisfied that it would not be put on the long finger and that we would not find ourselves in the same position when those amendments are being looked at. This is a critical issue and is being followed closely by people involved in the historic and cultural organisations who are interested in the development and preservation of some of these important sites. I refer again to Scattery Island which is being developed by the Kilrush Community Development Company and SFADCo in conjunction with the Commissioners of Public Works. This provision may cause difficulty in undertaking important restoration and preservation work on the island buildings.
(Donegal South-West): There are never any guarantees in life, but as far as possible I can assure the Senator that all Senators' views are taken on board and taken seriously by the Department. I assure the Senator and the House that we will look at this matter but without giving any guarantees. We would have to look at the constitutional aspects and that would entail an in-depth study.
I am sure that the Minister of State will come across some cases like this in his forthcoming campaign.
(Donegal South-West): I am bigger than that now. I would not want to focus in on specific areas.
Are we having an adjournment debate for the Minister of State?
I move amendment No. 12:
In page 8, subsection (1), line 40, to delete "may" and substitute "shall, in consultation with such voluntary, scholarly and conservation bodies as the Minister shall from time to time appoint,".
The genesis for this amendment is An Taisce who wrote to the Minister for Arts, Culture and the Gaeltacht, Deputy M. Higgins, in November. That body asked that consideration be given to the establishment of a national register. The Programme for a Partnership Government says the Government will undertake a full audit of national monument sites and that is why my amendment uses the word "shall" rather than "may". The Bill says the commissioners "may" establish and maintain a record of monuments and places. The word "shall" confers a degree of compulsion consistent with the commitment in the programme for Government.
While An Taisce welcomed the intention to put the record on a statutory basis it regards the Royal Society of Antiquarians as a body which could provide research facilities for those interested in historical and archaeological structures on a nationwide basis, similar to the Historic Buildings and Ancient Monuments Council in Britain. While welcoming the provision, An Taisce urged consideration of a national archive which could provide for input by voluntary, scholarly or conservation bodies. That is why I tabled the amendment. It is reasonable because bodies within the State are anxious to help in these matters and could make a valuable input, even at local level. There are precedents in other legislation for allowing outside, non-statutory agencies to be involved with bodies established under law. This would be a case where they might usefully be employed to assist the State in drawing up a record. Perhaps the Minister could explain if there is a difference in law between maintaining a record of monuments and a register of monuments. I recommend to the Minister that bodies expert in the field are consulted when making such a record.
I support this amendment because nothing can be more valuable than involving voluntary and local bodies. Without their expertise and enthusiasm for what one wants to conserve and record, there can be difficulties. These bodies could be of assistance to the commissioners and they would provide expertise at little or no cost. I would be glad if the Minister could accept the amendment.
(Donegal South-West): The intention to establish a statutory heritage council was announced in the programme for Government and it is hoped to bring the necessary legislation forward at an early date. It is intended that the council will have broad ranging functions in relation to all aspects of heritage, including national monuments and that body will provide the type of advice sought by the Senator. It would only lead to confusion and a waste of resources if a separate body was appointed to advise on this section of the Bill.
The substitution of the word "shall" for "may" could give rise to practical difficulties, particularly in maintenance of records. It is expected the records which already exist will need to be revised from time to time in the light of new knowledge; that is, as new monuments are discovered or perhaps when features now considered to be monuments are proven on closer inspection to be natural features. This will inevitably cause delays in publishing revised maps, but in such understandable circumstances, the commissioners could be deemed to be in breach of their duties if the word "shall" is included in this section.
The 1987 Act states that the owner of each monument must be notified before it is put in the register. There are 150,000 such monuments so it would create practical difficulties for us.
I thought the Government was committed to openness. If there are expert agencies in the country who are available and want to help, they would be allowed to make an input if there was a spirit of openness in Government.
My point in using the word "shall" is precisely that it creates a compulsion to do what is stated in the Programme for a Partnership Government. It is quite explicit; it says: "We will undertake a full national audit of archaeological sites." Using "shall" involves a degree of compulsion and prevents it being discretionary. It will not let this provision lie in the legislation for years before the commissioners ultimately decide, at their discretion, to compile a record. One distasteful aspect of this thinking is that it implies the repository of knowledge resides with the commissioners and that those in Government and outside that closed circuit have no input, no expertise and no legitimate view on how the monuments should be developed and registered.
I will not reopen the debate on lands in the vicinity of monuments in section 11. However, we have established that the Government will acquire lands in the vicinity of 150,000 monuments which reaffirms the point that dealing with public liability would have been much cheaper than putting footpaths into all these monuments. That will not happen in practice but it is the scale involved.
If we are serious about open Government, consultation and subsidiarity, as it is described in Europe, there is no legitimate argument that bodies who have expertise and knowledge and wish to help should not be involved in this process.
(Donegal South-West): A full record has already been completed. In keeping it up to date, there has been consultation between the Office of Public Works and other bodies. All sources are used to keep our records up to date. There is no need to put this in legislation because it is done as a matter of course.
Over the past two decades — and especially the last ten years — a preliminary but comprehensive national record, detailing where it is believed monuments and monument places known as sites are located, has been compiled on survey maps by the Office of Public Works. Those details are held on individual files located in its office. The maps are constructed on a county by county basis and the nationwide survey was completed in 1992. The detailed maps have been distributed to all local planning authorities and are already open for inspection to those who wish to know where monuments are located.
These maps are known as sites and monuments records or SMRs. About 150,000 such monuments are recorded and this section provides for a formal exhibition of the SMRs in each county in a manner to be prescribed by the Minister. This will provide landowners with the opportunity to establish if there are any monuments on their property. This is transparent and reflects the openness of Government.
We now discover that we have already what we are seeking to establish in law. The question arises why it is here in the first place if it is already established. What is the point of that? Subsection (2) states that "The Commissioners shall cause...to be published". First they "may" decide and then they "shall publish". If it is a commitment in the Programme for Government, the word "shall" should be there and it should be established in law. In terms of consultation, we are now told that we have already consulted all these bodies. If we this has already been done, what is the danger of putting it into the legislation that we continue to consult them?
Is the amendment being pressed?
It was agreed on the Order on the Business that we would adjourn Committee Stage debate at 6 p.m. Minister, thank you for being with us.