Select Committee on Social Affairs debate -
Tuesday, 26 Apr 1994

SECTION 8.

Mr. Creed

I move amendment No. 11:

In page 7, subsection (2), line 39, after "may" to insert "after service of adequate notice in writing on the owners or occupiers".

There are good practical reasons for this amendment. A landowner, finding himself the centre of attention by the Director of the National Museum or the Commissioners, may have good, practical and economic reasons for wanting time to make provision for their entry onto his lands. For example, a tillage farmer may have a crop which is about to be harvested or is at an advanced stage. Given this, it would an enormous inconvenience and an economic burden if there was entry onto his land.

We are advised that this legislation is revenue neutral and that there can be no payment of compensation. In view of this, it is only fair that as long as there is no suggestion that he is about to interfere with that which is the centre of the immediate attention of the Director of the National Museum or the Commissioners, provision should be made to enable the landowners to make due preparation to ensure that he would not be at any financial loss.

Section 7 gives gardaí power to act without warrant and section 8 gives the Commissioner authority to act without notice. This raises questions regarding constitutional rights to private property which the Minister may wish to consider. I do not claim, no more I am sure than the Minister, to be an expert on constitutional matters regarding the ownership of private property, but doubtless the Minister has the necessary advice available to him on this matter. However, extraordinary powers appear to be granted to the Commissioners arising from this provision. If they are legal and constitutional then they do not appear to be fair if it is a case that they can be executed without due notice being granted to the owner, who will be the only person immediately affected, and often financially affected by the intrusion of the Commissioner in this manner.

The purpose of this amendment is to ensure that the landowner is given adequate notice. In this respect, adequate notice should apply in the broadest sense, especially in the area where the landowner has a crop, be it a potato crop or wheat crop, which may be severly damaged by the intrusion of the Commissioners or any heavy machinery required by them.

Miss Quill

This is an area which merits broader discussion. If the Bill is passed the Commissioners will have been granted advanaced powers to enter land and to do so without notice. This is a power which is not granted, for example, to local authorities when they try to acquire land or explore the acquisition of land in connection with road widening or any of the other exercises in which local authorities engage which involve land.

I am unhappy that this kind of unqualified power should be granted to the Commissioners without at least putting a requirement on them to give notice to the owners of land. In law they are entitled to such notice and this is also the case in moral law. In addition, if this kind of power is granted, it will only serve to make the owners of land resistant to the implementation of the law.

Without wishing to go down the road of folk history, there is a tradition in this country where every farmer protects his own patch with great stamina. It does not take a John B. Keane to understand how every Irishman feels about his own field and the extent to which he will go to protect the field from intrusion by outsiders. The objectives of this Bill would be met more fully if the amendment was to be accepted and incorporated into the new law. If this were the case, we could expect and demand on behalf of the State greater co-operation from landowners regarding the activities of the Director of the National Museum or the Commissioners. In view of this I ask the Minister to give this matter full consideration.

I would not like to see this Bill ending up in the Supreme Court over this issue. The rights of private property are clearly and repeatedly delineated in the Constitution. This is something that must be considered when granting powers to people to enter private property on behalf of the State to carry out functions or exercises. This is a good Bill, a timely one and I do not wish to see it delayed for any reason deriving from any overt powers granted to any State agency to enter private property without giving due and correct notice to the owner of that property.

Mr. M. Higgins

Lest people misconstrue what is afoot, it is not proposed that either the Director of the day of the National Museum or myself will send armies through the cornfields. An examination of section 8 will reveal that, for example, there is provision for the Director, or a designated person to visit on his or her own. They will visit sensitively, so I do not foresee acres of barley falling by the arrival of Dr. Wallace or whoever will succeed him.

Section 8 does not deal with the Commissioners at all. The Commissioners do not require authority granted by me in this legislation. They are already have the powers to examine a monument. I have not heard any reports from around the country that there have been land wars, conflicts or whatever. The powers which the Commissioners already have are not referred to in section 8, which merely refers to the Director or——

Miss Quill

Or a designated person?

Mr. M. Higgins

That is correct.

Mr. Creed

Singular, therefore no more than one person.

Mr. M. Higgins

That is correct. Such people go to examine an inspection or excavation where: "the Director considers that an archaeological object or the site thereof is in immediate danger of destruction or decay". There are times when the immediate inspection by the Director, or a designated person, of the site where there has been an archaeological find is necessary. Many of us who are not experts have come to appreciate that the valuable scholarly aspect or archaeological richness of a find is very much part of the physical context and is often more important than the object itself. It is vital that action be taken quickly to preserve the site from damage. Objects or fragments may be close by, or the finding of any object may indicate a site of immense importance. To require notice of an inspection in these circumstances would defeat the whole purpose of the section. Rather than being of help, it would increase not the probability but the possibility of irrevocable damage to a potentially valuable site of a discovery through, for example, weather, people acting in ignorance of the significance of the find, vandalism or the natural deterioration of ancient objects exposed to the elements because of the delay.

I have no doubt these powers will be exercised with sensitivity by the Director or the designated person. In the past the practice has been to secure the co-operation of the landowner or occupier. I think this co-operation will be forthcoming. If one envisages the situation I have described of there being a discovery, the site of which is vulnerable, and the Director wants to act quickly, to require notice frustrates the purpose of the section.

Miss Quill

I accept the Minister's point that there are certain cases where speed may be of the essence and it would not be sensible to have a long delay. I am fearful of what may emerge on the ground. The Minister has invited us to imagine a situation where a designated person, who is stranger, enters a field or a section of a farm. When does that individual cease being a designated person and becomes a trespasser on somebody's land. This is a thin line in respect of which I need to be convinced. Would that person not be deemed to be a trespasser if he or she walked into my back garden? I do not have any works of archaelogical value; I wish I had. If I found a strange man in my back garden on an August afternoon, my initial reaction would be that he was a trespasser.

Mr. M. Higgins

I am intrigued by the scenario constructed by Deputy Quill. She would know that not only John B. Keane but also Zola have dealt with the issue of land and the crossing of ditches and boundaries. This scenario of there being a stranger in the field makes one imagine that the children of farmers are out watching to see who is coming. Coming from Clare, which is a much less agriculturally rich area than the land either of the two Deputies are familiar with, I can remember people watching out for all sorts of people who might have been coming for different reasons. There are parts of Connemara where an alert takes place when the gauger comes.

We must be sensible about this. Deputy Quill raised the important issue of the rights of private property and the public interest. I referred on Second Stage to Mr. Justice Finlay's judgment, which I regard as republican in the best sense. In this judgment he says that the basis of sovereignty is in the people, who have a heritage. He deals with the argument that objects which are found and have no known owner are in a grey area and may be casually allocated to one form of ownership or another. He says that where such objects are essential and significant aspects of the people's past, they are part of the people's heritage. I liked this assertion.

I will not stray into the constitutional dimension in any depth. There is already in Bunreacht na hÉireann a certain tension regarding private property. We as legislators must realise that it is not an absolute right but must be negotiated with sensitivity. We are speaking of something which is beyond private ownership and which the Director or a designated person is coming to examine. It is beyond the land, the landowner or any of us because it is a heritage object. The normal procedure will be that the Director will identify himself or herself and will seek entry in the normal way. This is the effect of the section.

With regard to people who speak about what is deep in the psyche of the people, I do not apologise for saying that the rights of the people to their heritage are signficantly advanced by this legislation. As Minister, I am responsible for those rights and for their exercise through the Director. The Director may have to secure what is the heritage of the people. Rights to privacy will not be infringed as the Director will not arrive with an army or a bulldozer. Most of the time he uses a trowel or other small instruments to examine the significance of a site. The Deputies are right to be sensitive to the wonderful romantic tension caused by those who say nobody will step onto an inch of their land, which reminds one of the works of Zola. I have to protect the national heritage and this Bill does so.

Miss Quill

I and Deputy Creed totally support the Bill and want its provisions to work. We are as republican in our aspirations in this and other respects as he is.

Mr. M. Higgins

With a small "r".

Miss Quill

I agree fully with the Minister on the principle that the people have a sovereign right to ownership of heritage items. How the Bill functions on the ground and how this principle will work in practice concerns me. It is a good precaution to write into the Bill the provision that minimum notice would be given to a landowner that the Director or a designated person is to enter the land. This would avert tensions and problems which may arise later.

Mr. M. Higgins

I am grateful to the Deputies for raising this issue. It is not enough to have good legislation; it must also operate well. I am happy that any Director of the National Museum, who is a senior public servant, would behave properly and identify himself or herself. This is my assumption. If one takes the other assumption that, irrespective of the circumstances, notice will be given, the risk would be to render this section nugatory. I will take note of what the Deputies said, but unfortunately I cannot accept the amendment. I believe this section will be exercised with discretion and sensitivity. It is important that it always would be. It is good that these matters are raised as the Bill passes through the Oireachtas.

Mr. Creed

Having listened to the Minister's assurances that armies will not march through the cornfields, I am anxious to facilitate him by withdrawing the amendment. However, I believe that there is a case to be made, out of courtesy if nothing else, for notifying a landowner. I am agreeable to withdrawing the amendment but I ask the Minister to look at it to see how far that aspiration can be accommodated in the legislation and perhaps he could return to it on Report Stage.

Mr. M. Higgins

I am grateful to the Deputy.

Amendment, by leave, withdrawn.

Chairman

Amendments Nos. 12 and 19 are related and may be discussed together.

Mr. Creed

I move amendment No. 12:

In page 7, subsection (2), line 40, after "premises" to insert "the owner of which shall be exempt from liability".

This is the nub of the reservations which I have about the Bill. As the Government has so far failed to resolve an ongoing problem about owners' and occupiers' liability, proceeding with the powers contained in this section — desirable in many regards — without tackling the problem of liability for owners and occupiers for persons who enter onto their lands without invitation and, with regard to the section which we have just passed, without notice, is to an extent putting the cart before the horse.

The Government has for some time been hiding behind the cloak of the Law Reform Commission on the issue of legislation to deal with this matter. This manifested itself last year, and will again this year, with notices being put up by landowners that the public are not welcome onto their lands to visit these archaeological monuments or areas of scenic beauty. The latter are perhaps not covered by this piece of legislation, but there is a danger that the goodwill which exists and which landowners are anxious to preserve will evaporate if the Government does not immediately deal with this fear, which is real and legally based and has cost landowners significant amounts of money.

It is unfair that this legislation will not protect the landowner from liability for the Director or designated persons who will enter onto his land, if the legislation goes ahead without resolving this matter, without notice. In that sense the section of the Bill which we have just passed — although the Minister has agreed to return to it on Report Stage — is a double insult and will in a short space of time ensure the complete disappearance of that goodwill.

My colleague, Deputy Deenihan, last year moved a perfectly adequate piece of legislation in the Dáil in Private Members' Time to deal with this matter. It appeared that the only fig leaf which the Government had to hide behind at that stage was the long awaited report from the Law Reform Commission. We are still waiting and farmers and landowners are still suffering and living in fear of the big claim which will put them out of business. It is totally unacceptable that the powers contained in this section should proceed without that matter being resolved. It is, as I said, putting the cart before the horse.

My colleague in the Seanad, Senator Neville, is, I understand, to reintroduce a Bill along similar lines. The spirit in which this debate has developed to date has been one of broad agreement and co-operation and it should be possible for the Minister to indicate today whether the Government is agreeable to accepting the Bill as published by Senator Neville which will resolve this particular matter. In the absence of that agreement, I will have to push this amendment if the Minister does not accept it. The Minister rightly referred to the rights of private property as opposed to the public interest. That is essentially what is at stake in this amendment, because landowners are no longer willing to sit idly by and allow their holdings to be, effectively, open territory for archaeologists and the public without adequate protection under the law.

If the Director of the National Museum, designated persons or employees of the Office of Public Works under this legislation enter onto land without having to give notice and slip and break their leg, who is liable in that situation? If they had to give notice, that might deal temporarily with some of my reservations. However, it would appear that under the law at the moment if one of these people injure themselves on land while acting as director, designated person or employee of the Office of Public Works, the landowner will be left with a potentially huge liability. That is totally unacceptable and I hope that the Minister will be in a position to indicate that we can continue the debate on this Bill in a spirit of co-operation and that the Government is willing to step out from behind the fig leaf of the Law Reform Commission and accept the Bill as published by Senator Neville, which I understand will be before the Seanad in the next week or so.

Miss de Valera

Knowing the watchful landowners of Clare, to whom the Minister has already referred, I know of their tremendous anxiety with regard to occupiers' liability, particularly with regard to the acquisition of and access to national monuments. I am sure that the Minister is only too well aware of the problems which existed in north Clare, in particular, with access to certain national monuments in the last tourist season. I brought this matter up under Deputy Deenihan's Private Members' Bill and on Second Stage of this Bill. As we all unfortunately know, we are living in a culture which can be termed a compensation culture and I would agree with the statements made by Deputy Creed in this regard.

I brought up on Second Stage the question of the acquisition of monuments which perhaps could in itself solve some of the problems. However, in reality all these monuments will not be acquired in the short term, so it still leaves the difficulty of access. This may come under the responsibility of the Minister, Deputy Taylor, rather than the Minister, Deputy M. Higgins. But, with regard to access, could the Government in some way create a provision for landowners whereby if the Government was to take over access to particular monuments, then the State rather than the individual landowner would be responsible for any liability which may incur?

The situation is really unfair at the moment where we have no proper legislation with regard to occupiers' liability. Access to national monuments in my own constituency was not as free in the last tourist season as it was previously. The only reason for this is that farmers and landowners are very worried about their legal position and feel at this stage in a limbo situation with regard to their legal rights and responsibilities. This part of the Bill raises certain concerns which I hope that the Minister will be able to put to rest.

Miss Quill

I am glad this amendment was moved because I see this as a key area of concern in relation to making this Bill work. On the previous amendment we discussed the question of someone entering land without notice. Just for the sake of argument, assuming that that person — the Director or the designated person — finds a substantial item of archaeological value in a farmer's field, the next move is that it will be removed from the field and taken for evaluation, perhaps to the National Museum. To enable that to happen——

Mr. M. Higgins

You might destroy the site if you do that.

Miss Quill

In some cases it might happen that it would be removed. In other cases it might happen, as I understand it, that repair work would be carried out.

Mr. M. Higgins

Yes.

Miss Quill

A number of these activities may happen in relation to the find, any of which would involve the sending of some kind of machinery onto that land. The Director comes with his trowel and if he finds a fairly substantial piece is in need of repair, and the decision is subsequently made to repair and restore it——

Mr. M. Higgins

If I could be of assistance, a Chathaoirligh, what we are really talking about here is section 8 which deals with inspection and excavation by the Director or a designated person.

Miss Quill

If consequent action is not taken it is a useless exercise but if consequent action needs to be taken and is taken it certainly will involve additional people and perhaps machinery entering on to that land. To do that without first making provision for public liability is storing up problems.

I understand we are adjourning at 5.30 p.m. but this is a point that I want to return to when we resume because I believe this Bill cannot really be effective until the whole question of occupier's liability is settled in advance, otherwise we are storing up future problems for ourselves.

The Select Committee adjourned at 5.32 p.m. until 11 a.m. on Thursday, 28 April 1994.