Amendments Nos. 4, 9 and 10 are related. Amendments Nos. 5, 6 and 7 are alternatives to amendment No. 4, so amendments Nos. 3, 4, 5, 6, 7, 9 and 10 may be taken together by agreement, agreed.
SECTION 7.
I move amendment No. 3:
In page 7, subsection (1), line 1, to delete "without warrant" and substitute ", if satisfied that an offence has been committed or is about to be committed,".
This section empowers the Garda to seize and detain without warrant, time limit or subsequent charge any diving equipment which a member of the Garda believes is about to be used in any water protected by the Underwater Heritage Order and this power is unrelated to any offence in the Principal Act.
This is a draconian set of powers given to any member of the Garda Síochána. The section is specifically anti-diver, as it gives the Garda power to seize equipment prior to any activity in the belief that an illegal act may take place subsequently. This is the kind of power that we give to the Garda in relation to drug-related offences or terrorist offences. We should not give that kind of power to the Garda in relation to the Bill we are about to enact here for a number of reasons, not least of which is the fact that Irish sports divers have in the past very generously assisted the Office of Public Works and the National Museum in underwater archaeology at potential heritage sites. If this Bill were to be enacted as it stands, this activity would then become illegal.
No sports diver, as far as I know, has ever been charged with infringement of the National Monuments Act so I argue that the proposed powers are arbitrary, too wide and would be counter-productive if they were to be enacted as they currently stand. I ask the Minister to accept my amendment. Amendment No. 6 is in a sense related to amendment No. 3. The proposed legislation is specifically anti-diver in so far as it refers to diving equipment as such and not to underwater equipment in general. The distinction is important because the raising of most wrecks is done by trawlers, not divers, yet the dragging of wreckage areas by trawlers may still be legal if this Bill is passed as it is currently worded.
This was one of the sections of the Bill which caused greatest public outcry, particularly amongst the diving community who felt that they were being specifically and unfairly targeted as pillagers of our heritage when in fact the vast majority are law-abiding. Indeed, in the past they have been of assistance to the National Gallery in notifying them of and assisting them with finds of major importance.
I have sympathy with the amendment moved by Deputy Quill but I am concerned about the latter half of it. Deleting "without warrant" and substituting "if satisfied that an offence has been committed" seems to me to be quite all right, but to add on "or is about to be committed" seems to me to give extraordinary powers of interpretation to the Garda. It would be a very dangerous provision. Because of that I proposed amendments to section 7 (1) (b), deleting "is about to be used in the commission of an offence" because that gives extraordinary powers to the Garda. Where a local garda may be under duress to act in a particular regard that power is extraordinarily wide and I have great reservations about it.
The Minister's amendment by and large deals with the reservations we had in this regard. I concur with Deputy Quill that we should place on record here our appreciation of the work carried out by the diving community in conjunction with the director of the National Museum and the Office of Public Works to assist us in interpreting, finding, and putting on display objects of extreme importance. All of us know the assistance which they have been to local communities in a voluntary capacity.
I had personal experience of voluntary divers being involved in searches for bodies in unfortunate circumstances in my constituency. There was a danger that the blanket targeting of all divers might erode that assistance, which was always available. I welcome the Minister's amendment which would appear to redress the fears which we had about it being draconian in terms of the powers it granted and about it being specifically anti-diver.
It is not just diving equipment that can be involved. Trawling has been used successfully to plunder much of our underwater heritage and was not specifically mentioned in this Bill. It was probably more destructive in its effect than diving equipment could have been. The Minister's amendment is welcome.
I would support the initial part of Deputy Quill's amendment, where a garda may intervene if he is satisfied that an offence has been committed. However, to give the power to interpret what may be about to be committed is not desirable.
I thank the Deputies for there concern and I would immediately say that it had never been the intention in the legislation to make the assumption that divers in general were involved in activities that were inimical to our underwater heritage. I have attempted in my amendments Nos. 4, 9 and 10 to address the issues raised by the Deputies. There was considerable correspondence about this and I decided to respond to it.
In the original text of the Bill the provisions about which the Deputies have spoken only arose in relation to where there was a danger to an underwater heritage area. There was only one such area specified so far to protect some crannógs in the midlands. That is the only area where there has been an underwater heritage order made. I take the points that have been made. It shows the wide esteem in which divers are held.
Many Deputies wrote to me about this and I listened carefully to the arguments made and decided to respond to them. It is not only an issue of substance but is also how it might be perceived. I appreciate the concerns of the Deputies that have given rise to their amendments. They sought to limit the scope of the enforcement powers proposed in relation to the seizure and forfeiture of diving equipment. I ask them to bear in mind that it had been limited initially and also the enormous danger that exist at times to our underwater heritage. Strong and effective powers are needed.
I have listened with care to the valuable contributions of Deputies during the debate on Second Stage and I note their expression now in concrete proposals to amend the provision in question. Having reviewed the matter, I am happy to introduce these three amendments. They will remove the specific targeting, for example, of diving equipment and they limit the seizure power to the use of equipment in the actual commission of an offence. As a consequence, I would appreciate if the Deputies would consider withdrawing their amendments in order to lend their support to the ministerial proposals which address the concerns they have expressed.
Amendment No. 4 provides that the seizure of equipment will only arise where any type of equipment, including diving equipment, is found in the course of being used — I have addressed that issue there by including "any equipment" so that people will not even perceive that it is directed against the equipment of any one activity — to tamper with, damage or survey with a view to recovering archaeological objects wrecks over 100 years old or parts thereof from the sea bed or from land covered by water where such equipment is found being used in or near particular identified types of site. I have addressed the concerns represented in the Deputies amendments, and I ask them to consider that these have been addressed by amendments Nos. 4, 9 and 10.
I tabled my amendments before I got the list of ministerial amendments. Having read the ministerial amendments I concede that what I had sought to achieve in my amendments is met fully in the Ministers' amendments. It is perhaps met in a more reasonable and comprehensive way. I am happy to withdraw my amendments. I am glad the Minister has been sensitive to the balance that must be struck between the overwhelming need to protect our underwater heritage and not alienating people who might be our best allies in trying to achieve the objectives of this Bill. The Minister has accepted that point fully. The matter was not anticipated in the original draft of the Bill but is accommodated in the ministerial amendment. I give my full support to the Ministers' amendments.
I am grateful to the Deputy.
Amendment, by leave, withdrawn.
I move amendment No. 4:
In page 7, subsection (1), lines 10 to 13, to delete paragraph (b) and substitute the following:
"(b) any equipment (being equipment of a kind capable of being used in a contravention of section 3 of the Act of 1987) which he reasonably believes is being used in the commission of an offence under the said section, found in, at, or in the vicinity of—
(i) the site of a wreck, or
(ii) an archaeological object that is lying on, in or under the sea bed or on land covered by water, and
where such wreck or object is in, or in the vicinity of, an area to which this paragraph applies.".
Amendment agreed to.
Amendment Nos. 5 to 7, inclusive, not moved.
I move amendment No. 8:
In page 7, subsection (1), between lines 13 and 14, to insert the following:
"(c) the Garda Síochána shall return the seized detection device or salvage equipment if there is no prosecution against the alleged offender as soon as such a decision is made.".
Given that we have agreed to change the specific identification of diving equipment, I am not sure at this stage if my amendment is correctly phrased but I ask the Minister to consider it. If a garda acts properly under the legislation in seizing equipment and subsequently no charges are brought against the owner or user of the equipment, it is only right that some procedure should be included in the Bill whereby the seized equipment can be returned as soon as is practicable and legally permissible. It would go some way to allaying the fears — by and large allayed by the Minister's amendment — that the diving community was in some way being targeted. It is a sensible provision and I ask the Minister to treat it fairly.
I broadly support this amendment, but it is not as urgent now as it appeared to be before the Minister tabled his amendment which we have supported. Nonetheless, it is a practical and proper provision that in the event of equipment being seized and no charge being brought, an obligation would be clearly stated in law that the equipment would be returned and done so within a specified time. It is good law to include the provision and I support it.
In the spirit in which the Bill is being discussed I am anxious to help Deputies. Subsection (3) of this section makes it clear that the power of permanent forfeiture is a matter for the courts. If a garda seizes equipment and no subsequent prosecution is taken, the court would be behaving in an extraordinary way if it did not make an order as to what would happen the equipment.
Such is the position as set out in the text of the Bill. Nevertheless, I will address the issue raised by both Deputies. If it assures people that what we seek is beyond what I believe is the only construction of this subsection of the Bill, and if Deputies feel that there may be merit in making an express provision regarding the return of the equipment where no prosecution has followed, I agree to make such a provision. However, in this respect, the wording of the proposed amendment would not work, therefore I will introduce a wording on Report Stage which will address the issue raised. I accept the spirit of the amendment.
I thank the Minister for his co-operation on this issue and I look forward to his response on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 9:
In page 7, subsection (4), line 21, to delete "diving" and substitute "other".
Amendment agreed to.
I move amendment No. 10:
In page 7, between lines 32 and 33, to insert the following subsection:
"(7) Paragraph (b) of subsection (1) of this section applies to all or any of the following areas, namely,
(a) an archaeological area which stands registered in the register by virtue of section 5 of the Act of 1987,
(b) a restricted area,
(c) a monument of which the Commissioners or a local authority are the owners or the guardians or in respect of which a preservation order is in force,
(d) a monument recorded under section 12 of this Act.".
Amendment agreed to.
Section 7, as amended, agreed to.