Amendment No. 15 is ruled out of order.
SECTION 10.
Amendment No. 15 not moved:
I move amendment No. 16.
In page 8, between lines 28 and 29, to insert the following subection:
"(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.".
Subsection (1) provides that the Director, in consultation with the Minister for Finance, may pay a reward to the finder, owner or occupier of land and, by implication, he also may not. The Bill appears to give power to the State, in that the Director may, without notice, enter land and the gardaí may seize, without a warrant. It is important to balance the provisions of the Bill in the public interest and to encourage co-operation between citizens and the Director of the National Museum or designated persons. People should have recourse to the law if they feel aggrieved by a decision. We are not talking about compensation for producing a find which, because of the Webb case, is the property of the State, but about encouraging people to co-operate. It is important to provide access to the courts in the event of dissatisfaction with the decision of the Director.
The Bill states it is revenue neutral and does not have any charge on the Exchequer. Under this section the Director may pay a reward to the finder, owner or occupier. That would appear to be a charge on the Exchequer. Will the Minister clarify this matter?
This section will not create a new charge as to date rewards have been paid. On the substance of Deputy Creed's amendment, on Second and Committee Stages I emphasised that we were not talking about compensation for property. The payment was designed to reward and recognise responsible citizenship. The Deputy mentioned the consent of the Minister for Finance, after consultation with the Minister for Arts, Culture and the Gaeltacht. Both Ministers are involved to allay public concern that the decision might be in the hands of one person.
The purpose of section 10, is to provide a mechanism to reward responsible citizenship. It is not to pay for an archaeological object or compensation. Existing rights are not changed by this section. It only makes provision to reward a person who has acted responsibly.
This is an extremely valuable and important amendment. The meanness of the State and the parsimonious way it dealt with people who made valuable finds gave it a bad reputation with the result, people were inclined not to notify the authorities when they found treasures. We are aware of the great losses the State sustained when some treasures were brought, illegally, to the United States. There should be a system such as that contained in Deputy Creed's amendment.
One of the great treasures in the National Museum, the Moylough Book Shrine, was found in a bog in Tubercurry, near my native home. As far as I am aware, the reward for that great treasure, which was handed over immediately by the finders was approximately £15. Had there been a decent award early in the Derrynaflan case, the legal wrangle would never have arisen. Perhaps it was a good thing as it put everything on a proper footing and we now know that the State is the owner of these treasures.
By contrast I would point out what happened in the discovery of the Lough Kinale Book Shrine when I was in the area. This shrine which now ranks with the Ardagh Chalice, the Moylough Book Shrine and the Derrynaflan Chalice was found on a Monday. By the following Monday because we made a generous offer we had recovered the Lough Kinale Book Shrine. All the legal elements had been tied up and it was in the possession of the State simply because we made a generous offer for the recovery of a major national treasure which is now on exhibition in the National Museum. Therefore, it is important people know they will be fairly treated by the State and that Deputy Creed's amendment be accepted. We are not talking about compensation as these treasures belong to the State and no monetary reward could compensate for them. However, the people who discover treasure should have total confidence that they will be well treated. The State has a very bad reputation for paying out the minimum, if anything, and for trying to get away without paying any reward. I know of the thefts of very important gravestones in my area — one was found in the boot of a priest's car on its way for export to America. The public need to have the utmost confidence that they will be well rewarded for any treasure they recover to encourage them to keep an eye out for treasures and ensure that they are not damaged and are reported immediately.
As the Minister will be aware, when a treasure is found people are inclined to hold on to it for a period not knowing whether they own it or will get a large sum of money for it. The State will not have a reputation for generosity without a facility or mechanism by which the finder can bring this treasure to some form of arbitration. Will the Minister consider setting up a treasury ombudsman or something similar to give people confidence they they will be properly rewarded when they hand up a treasure immediately?
Deputy Nealon's information is as usual very valuable. I have taken the concerns into account in the Bill. Section 10 (3) states:
(3) The Director shall take account of all or any of the following criteria in deciding whether or not to pay a reward under subsection (1) of this section, namely:
(a) the intrinsic value and the general historical and archaeological importance of the object found;
Deputy Nealon described the historical importance of the object he used as illustration.
(b) the circumstances of the finding of the object;
(c) the amount of the rewards paid in the State in respect of the finding of other comparable archaeological objects.
Section 10 (3) is a new provision following legal deliberation and decision. I appreciate Deputy Nealon's support for the premise that the State should not be put in the position of negotiating what is the people's. Nor should the State negotiate to exercise its right in relation to that of the people. One wants to adequately reward responsible citizens and this is a new provision to do that. The figure nominated by the Director would have to be agreed by the Minister for Arts, Culture and the Gaeltacht who is accountable to the Dáil in a more direct sense than an ombudsman and in turn by the Minister for Finance, who is also accountable to the Dáil.
What is the problem?
The whole point is that the Minister for Finance is not in it on his own. The Minister for the Arts, Culture and the Gaeltacht agrees and the Minister for Finance consents. If, having been through that process using these new provisions which reward responsible citizenship, a person feels aggrieved, he will still be free, under judicial review, to assert the provisions in this legislation for the first time. I take the point in the amendment but it raises a very interesting issue as to ownership and occupation and it could not be easily implemented. It would be best handled by giving the section with the new provisions, the accountabilities and legal redress a chance.
What the Minister has said strengthens the case for Deputy Creed's amendment on two counts. I now find that there are criteria by which the reward given will be judged. The person who finds this treasure may dispute whether the authorities have conformed with existing criteria. As the Minister said, it can go to judicial review and that means we will have a long tortuous court procedure. The finder would probably prefer to make his case through a simple arbitration system than go through a long tortuous law case. We want to avoid disputes on treasures which belong to the State. Thanks to this and other legislation there will be no dispute. However, we do not want a repeat of disputes over the reward. One way to avoid that would be to adopt Deputy Creed's amendment or, perhaps, a ministerial amendment to introduce an arbitration system.
The section is a clean, statutory, accountable, transparent way of dealing with the issue. With respect, I suggest the amendment would achieve the result Deputy Nealon seeks to avoid, that it would be non-statutory, protracted and outside the immediate accountability and transparency of the Dáil. I have to differ with Deputies Nealon and Creed. The mechanism I have put in the Bill is the best way to handle it. We must remember that Ministers are accountable to the Dáil. The criteria laid down will try to remove arbitrary decisions. The section with these new provisions should be given a chance. I cannot accept the amendment.
Amendment, by leave, withdrawn.
Section 10 agreed to.
Amendments Nos. 17 and 18 are related and will be taken together by agreement.
I move amendment No. 17:
In page 8, subsection (1), lines 35 to 43, to delete paragraphs (c), (d) and (e).
We had an extensive debate about occupier's liability and I do not intend to raise that issue again. Extraordinary powers are being granted to the Commissioners. Section 11 states: "The Commissioners may, with the consent of the Minister and the Minister for Finance. . . .". Let us dwell on that aspect for a moment because their boss is the Minister of State at the Department of the Taoiseach, Deputy Dempsey. We are painfully aware of the lack of harmony on issues that impinged on the responsibilities of the Minister and the Minister of State. Consent from the two Ministers may not always be forthcoming. To give them powers to acquire land in the vicinity of such a monument is extraordinary. The words, "in the vicinity", are critical. What is the definition of "in the vicinity"? Could the Commissioners acquire large holdings?
It is the same definition as in the 1987 Act.
It goes on to state "for the provision of facilities". Will the Office of Public Works or the Commissioners be able to acquire land for the construction of interpretative centres such as those at Mullaghmore and Luggala, and coffee shops and so on that are not in keeping with the inherent and intrinsic value of these monuments on the vicinity.
I have serious reservations about the extraordinary wide-ranging provisions in subsections (c), (d) and (e). I am sure the Minister obtained legal advice as to their propriety but he does not strike a proper balance in this legislation. I will not go into the issue of occupier's liability again but it is related and these are extraordinary powers. If we acquire land for the provision of facilities in the vicinity of archaeologically important sites, we run a serious risk of diminishing the intrinsic value of these monuments to the detriment of their preservation.
This section is poorly thought-out and I know the Minister is painfully aware of the debate on interpretative centres and the problems with them which could develop at every site at which the Commissioners decide to improve access and facilities. It is undesirable that the heritage section of the Office of Public Works does not come directly within the remit of the Minister for Arts, Culture and the Gaeltacht as those who introduce legislation should be in a position to police it. Given the lack of harmony between the Minister and the Minister of State the law on occupiers liability and the rights of private property, this is an alarming provision and should be withdrawn.
I will not repeat what Deputy Creed said, by my concerns are the same. I have no difficulty with subsections (a) and (b) of section 11 which are in accordance with the objectives of this Bill. I am very uneasy about subsections (c), (d) and (e). We must protect, preserve and maintain a correct balance between the rights of the State and the rights to private property enshrined in our Constitution. The word "vicinity" in this Bill gives powers far in excess of those given under the 1987 Act. Bearing in mind that this Bill gives powers to acquire land compulsorily the word "vicinity" is far too vague and wide-ranging. How do we defind the word "vicinity"; is it an acre or a yard? How much land may be acquired compulsorily for the provision of facilities under this Act? The word "facilities" has taken on a new meaning since the 1987 Act was enacted. Facilities nowadays can mean interpretative centres, coffee shops, ice cream parlours, souvenir shops or anything of that nature. I would not give consent to a Commissioner, or anybody acting on behalf of the State, to acquire land compulsorily to make provision for that type of commercial activity.
When framing legislation we must be careful how "vicinity" is defined and how we view essential and non-essential facilities. The obligation of the State is to provide access to public monuments and we must define how we propose to do this. Anything that happens after that is a commercial activity and we have no obligation to make provision for it. For all the reasons outlined by Deputy Creed subsections (c), (d) and (e) should be revised. The Minister should accept our concerns and return to us on Report Stage if he thinks those concerns are valid. It should be possible to provide access without leaving loopholes in the legislation whereby we acquire land compulsorily to be later used for commercial purposes to distort and destroy the essential purpose of the national monument.
My amendment was prompted by correspondence from An Taisce who have a detailed and daily understanding of the importance of national monuments and how future law on their preservation and protection ought to be framed.
It states:
"(d) any facilities proposed, excluding access i.e. any purpose built interpretative or refreshment facilities must be the subject of planning permission particularly if they are within the curtilage of a monument".
This is an important amendment which the Minister should seriously consider.
It is crucially important that the law would not permit the type of development described in my amendment, within the curtilage of a national monument. Certainly any such proposal ought to be subject to the planning laws. The only way the State can retain an element of control over the type of building erected and its purpose is to have planning laws to ensure that buildings which would take from the importance of a national monument are not erected. The only way we can exercise our control is by the proper use of the planning laws. To this end I have proposed a new section.
Deputy Quill's amendment is a part of the Local Government Planning and Development Act, 1993 under which State authorities are obliged to seek planning permission for any new facilities. All facilities mentioned by the Deputy are covered by that law and the amendment is unnecessary. On Section II, I agree that paragraphs (d) and (e) are new; we have no difficulty with paragraphs (a) and (b), but paragraph (c) is the same as the text in the National Monuments (Amendment) Act, 1987. The only difference is the 1987 legislation referred to the combined national Monuments Acts 1930 to 1987——
Is that why we have Mullaghmore?
Let me finish the point. Paragraph (c) in this Bill refers to the National Monuments Acts 1930 to 1994. I want to address these issues in as helpful a way as I can. The word "vicinity" is used in the 1987 legislation and is used in the same way in this legislation. I will not score points in the limited time we have on the difficulties described by Deputy Creed. The Minister for Arts, Culture and the Gaeltacht is responsible for future policy on heritage matters and the Minister of State with responsibility for the Office of Public Works is responsible for the administrative programme on a yearly basis. I will not attempt to suggest there have not been difficulties in defining this new territory, but Deputies should welcome the difference between the 1987 and the 1994 legislation. Let us take the hypothetical landowner who in this legislation has something that was not there before. The consent of two Ministers, the Minister for Arts, Culture and the Gaeltacht and the Minister for Finance is required to implement any powers. In addition, should the landowner in question object, the consent of both Ministers is required to go beyond the objection. On the issue of "vicinity" the word is used as in the 1987 legislation. Paragraph (c) states:
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 1994.
It would be a clear breach of this section if one attempted to go beyond the powers there. If one is in favour of access, one has to allow a provision that will enable facilities to be provided and I have done so. History indicates that in negotiations with the Commissioners difficulties have been rare but now a mechanism and safeguards have been put in place to deal with possible difficulties.
Section II seeks to give power to the Commissioners to acquire property voluntarily or compulsorily but compulsory acquisition is the exceptional case, and where this arises the approval of two Ministers is required. When people ask which Minister is responsible, I do not make any apologies for the fact that a change had to be negotiated under the Minister for State's powers in relation to the Office of Public Works. These powers were originally transferred from the Minister for Finance. If the Minister for Arts, Culture and the Gaeltacht was to be given powers in relation to future policy in heritage a new mechanism was needed and putting a new mechanism in place can be difficult. These difficulties are resolved and I am responsible for future policy. I have chosen to exercise my responsibility by giving accountability to the people. Two Ministers will be involved now and the best balance possible, has been struck.
The paragraph states, "facilities for persons having access". Who defines the range of facilities? This could include facilities such as ladies washrooms, a coffee shop and then a dance hall and so on. This is much too vague. Time and again, I see people driving a coach and four through planning and other laws. I am talking from a ground up position. Will the Minister respond to my fear that the wording at that point is too vague and wide-ranging?
I do not want a misunderstanding on this issue. I meant necessary facilities such as essential car parking and toilets. I will look at the wording between now and Report Stage to see if it can be tightened but I am not giving an undertaking. I do not disagree with the Deputy about what she wants to achieve. I will look at the text to see if it can address her fears.
That is all I am asking.
In view of the Minister's indication that he will review the wording which is causing us problems in paragraph (c) I will withdraw the amendment.
I do not want to mislead the Deputy. I cannot give him an undertaking, but I will examine it.
That is as much as can be hoped for at this stage. Section 11 has to be looked at in terms of past experience. It provides that the Minister with responsibility for the Office of Public Works, with the consent of the Minister for Arts, Culture and the Gaeltacht and the Minister for Finance have the powers between them. I do not want to dwell on this, but it is regrettable that the Minister lost the battle over Mullaghmore because the intrinsic value of the sites in question was compromised by the developments proposed there. That is also the Minister's view.
All parties were divided on it.
I accept that. Under the powers in paragraph (c) we are concerned that the intrinsic value of these sites may be demeaned by commercial development in the curtilage of the monuments. I welcome the Minister's intention to review the wording for Report Stage.
While I am looking at it, I invite the Deputies opposite to reflect the significant advance in the legislation I am proposing, in that the Commissioners cannot acquire any property voluntarily or compulsorily without my consent. I have chosen to put that into the legislation as an assurance to the public. I am willing to look at the language again to see if I can further improve it.
The Minister's consent will be required for acquisition but will the subsequent development of facilities by the Office of Public Works, which he does not have contol over, have carte blanche?
I must correct the Deputy's assertion that I do not have control over development of facilities. The heritage policy development unit is in my Department. I do not wish to go into this issue but I do not want to leave uncorrected, misconstructions of the situation.
Amendment, by leave, withdrawn.
Amendments Nos. 18 and 19 not moved.
Section 11 agreed to.