I move: "That the Bill be now read a Second Time".
I wish Deputy Creed every success on his appointment as spokesperson in this area. I will be delighted to co-operate with him as I have with other spokespersons. The Bill represents an important step in the process of enhancing the administrative structures and procedures for identifying, preserving, and exhibiting physical representations of our national heritage whether they be in the form of archaeological objects found, monuments or sites of archaeological interest.
The measures proposed in this Bill should be seen against the background of a Government Department which for the first time has the overall responsibility under one administrative structure for co-ordinating policy in respect of all the strands encompassed within the discipline of archaeology ranging from the moment an object is discovered in a field, the conservation and interpretation of the object found, its public exhibition and its integration into the contexts of history, education and art. I will be bringing before the House in the coming months other related legislative proposals in a Bill to put the Heritage Council on a statutory footing, and in a Bill which is at an advanced stage of preparation to establish the National Museum as an autonomous entity with the objective of affording it as much freedom as possible to develop its role as an integral part of the national culture. I also take this opportunity to point to my recent decision to establish an interim board to advise me on the future direction of the National Museum. I wish its chairperson, Barbara Nugent, and her fellow members well in their endeavours.
In anticipation of these wider proposals coming to fruition in the near future it is appropriate at this juncture to note the pivotal role of the National Museum in providing the vital link between the world of academic scholarship and research — exemplified by the work of archaeologists — and the wider public dimension within which such contribution must be assessed. I have already paid tribute to the work carried out in the public interest by the Royal Irish Academy and the Royal Dublin Society which were authorised by the Crown, especially during the 19th century, to collect, record and protect the most precious of our artefacts, which led in time to the creation of the repository of these treasures in the National Museum. The 1877 Dublin Science and Art Museum Act which created the museum was a major achievement of co-operative action between the various main bodies involved acting in the public interest and is still the cornerstone of our administrative structures.
Such co-operative action has always needed legislative and financial back-up, as well as administrative structures deriving their authority from the State. There has always been an obligation on the State to underline its role and purpose, by providing the necessary legislative tools with which to preserve, protect and foster the heritage of the people.
Renewed attention to the structures within which the work of archaeology will be conducted in the future is particularly important at this juncture, not just for broad cultural reasons which would enjoy the support of everybody in this House but because at the core of this Bill are provisions dealing in a comprehensive way with the ownership and protection of archaeological objects.
The Irish State has an honourable legislative record in its efforts to protect the physical manifestations of our cultural and artistic heritage. In its day the National Monuments Act, 1930 was an early reflection of the fledgling Irish State's capacity — and will — to afford adequate protection to archaeological objects as well as preservation of national monuments, but the characteristics and needs of a society are constantly evolving and what was sufficient in one era may no longer suffice in another. While the Act was updated in 1954 and 1987, it is no longer adequate for the tasks which face us today.
The primary element of the Bill can be tracked back to the finding of the Derrynaflan hoard on the afternoon of Sunday, 17 February 1980 by Mr. Michael Webb and his son Michael. This event was a dramatic example of the unpreparedness of the State to deal with a problem in the latter part of the 20th century with non-legislative administrative tools crafted in the middle of the 19th century. As we know, the Webb v. Ireland case led, ultimately, at the end of 1987 to an invitation to the Oireachtas from the Supreme Court led by Chief Justice Finlay — backed by the late Mr. Justice McCarthy and Mr. Justice Walsh — and outlined in their landmark judgment to provide a statutory basis for the State's claim to ownership of objects of archaeological interest of national importance which are discovered with no known owner.
The judgment was of great importance not just for establishing the right of the State to the ownership of a specific remarkable hoard rivalling in importance the great finds of the 19th century. The importance extended to the judgment's conclusions concerning all important objects of antiquity in the context of the State's overall role and purpose. In the judgment it was reasoned that the State had a right to the ownership of treasure trove — described by one leading legal authority as "gold or silver in coin, plate, or bullion found concealed in a house or in the earth or other private place, the owner thereof being unknown"— not as a result of any ancient royal prerogative but as an inherent right of the people of Ireland. Mr. Justice Finlay said:
... the essential point is that by virtue of the provisions of the Constitution of 1922 what was being created was a brand new sovereign State and that the function, power or position of the King in that sovereign State was such only as was vested in him by that Constitution and by the State created by it.
It is necessary to highlight the judgment's declaration that the State's prerogative on behalf of the people derived not just from the 1922 Constitution but also from Article 5 of the 1937 Constitution which declares that "Ireland is a sovereign, independent, democratic State" and from Article 10 which attributed to the State "all royalites and franchises within that jurisdiction". I am struck by the insight, clarity and vision of Mr. Justice Finlay's words: "... it would appear to me consistent with the framework of the society sought to be created and sought to be protected by the Constitution that such objects should become the exclusive property of those who by chance may find them."
Of necessity much time has had to be devoted to the task of absorbing the lessons of the judgment by all those concerned with the interaction of the Constitution on the legislative matrix of the State. We have been enormously assisted by the penetrating clarity of the words of Mr. Justice Finlay. Not least of those concerned with this interaction of the Constitution on the legal matrix of the State was the late and distinguished Mr. John Kelly, who so often spoke in this House with such power, conviction and humour. Speaking in Trinity College on the occasion of the celebration of the 50th anniversary of the Constitution he said in his preliminary remarks:
the three judgments..., if not a buried treasure, are a sort of open-cast mine of material on the Constitution of the Irish Free State, the Constitution of Ireland, the incidents of sovereignty, the fate of the royal prerogative, the extent of rights of land ownership, the mode of conveyance of chattels, the interpretation of statutory words, the admission of non-statutory materials in explanation of a statute's reach, the bearing of the possible commission of an offence on the offender's possible rights at civil law arising in the same transaction.
As John Kelly and all those either interested in or affected by the Supreme Court's analysis of the nature of the royal prerogative in the context of a sovereign independent Republic recognised — and remember beyond the argument of 1922 and 1937 the State had now been declared a Republic — this judgment would show a capacity to mould the future evolution of the State. Whatever one's political response, the judgment still stands as an integral part of the law of the land, clarifying as it does the scope of the State's power in the area of royalties.
The primary purpose of the Bill is, therefore, to give statutory expression to the central call of the Supreme Court to legislate for the ownership of treasure trove to take greater cognisance of the State's continuing obligation to protect and preserve the heritage of the people, as represented by all antiquities of importance and not just treasure trove, and to take on board the court's suggestions, in the interest of common justice, to expressly provide for the payment of a reward to persons reporting the finding of such objects.
Accordingly the main challenge posed to us as legislators has been to strike the right balance between the constitutional rights of all, with the obligation on the State to ensure the preservation and, where it arises, the acquisition of objects and artefacts which are important representations of our heritage.
The central provisions of the Bill are designed to underpin the fundamental finding of the Supreme Court that the people of the State have a right of ownership to archaeological objects which otherwise have no known owner. All items found after the enactment of the Bill where there is no known owner must be reported to and are deemed to be the property of the State. The Bill redefines the term "archaeological object" to include the concept of treasure trove — one of the suggestions made by Chief Justice Finlay. The possession, sale and acquisition of archaeological objects found after the enactment of the Bill is prohibited unless the State has waived its rights to ownership, a right that is based in the constitutional expression of the rights of all the people of Ireland.
So that the State will at least be aware of the existence and location of every archaeological object found in the State since 1930 and in private hands, the Bill will require that all such objects must be reported to the Director of the National Muesum and that any transaction of such an object must be likewise reported. At present, by virtue of the National Monuments Act, 1930, there is only an obligation on the finder of an object in the State to report the discovery of an archaeological object. There is no parallel obligation on the possessor of such an object to make a report. The effect of these provisions will be to allow protection to be extended to all such objects in private hands while not affecting the right of an established owner to sell them. The Bill provides, of necessity, for offences and penalties for breaches of these provisions, consistent with the seriousness of the offences.
In addition, the Bill amends certain provisions of the National Monuments Acts, 1930 to 1987 by extending the protection given to monuments and historic sites under these Acts by closing loopholes in the legal controls and by aiding co-operation between the main conservation agencies.
The Bill also proposes to empower the Commissioners of Public Works to establish a record of national monuments and of sites where they believe national monuments may be located so that every known national monument will be given the cloak of a basic protection and in such a way as also fully respects the rights of landowners.
For many people, it is the artefact or monument itself that symbolises the identity of a people. The images such as those printed on the front cover of every school child's homework copy as a daily reminder of the physical manifestation of our heritage are part of what we are — the Ardagh Chalice, the Tara Brooch, the Monasterboice High Cross and the Borrisnoe Collar. There is more. To have visited an historic site such as Clonmacnoise or Newgrange leaves one with the knowledge — and responsibility — of knowing that we are but the latest inheritors of a long, proud and inspiring past. While the artefacts and monuments, in themselves, are very important, in more recent years it is the sites in which such artefacts have been discovered, particularly when in an undisturbed site, that have been seen to yield up or constitute a reservoir of amazing information about our ancestors and, through them, about ourselves. When archaeologists have been given the opportunity properly to excavate such sites, they have, using the strict disciplines of their profession and helped by modern forensic technology, been able to begin piecing together the complex jigsaw of the past.
With this broader perspective in mind I would like to draw the attention of Deputies especially to section 15 of the Bill which extends legislative protection to such sites of archaeological importance. The proposal arises from the commitment made in the Programme for a Partnership Government 1993-1997 to “prohibit the giving of consent to the demolition of monuments without approval by the Oireachtas in exceptional circumstances and after a full archaeological excavation”.
At present the Commissioners for Public Works, or the local authorities acting jointly with the commissioners are empowered, under the National Monuments Act, 1930, to give consent to the demolition or alteration of a national monument in the care of the commissioners or of a local authority or a national monument in private ownership which is the subject of a preservation order. The consent may be given by the commissioners in the interests of archaeology or for any other reason.
In the majority of cases where such a consent would be sought the purpose would be to allow an archaeological excavation. However, it may also happen that other physical changes to a monument might be required for reasons of public safety or health, for instance, if a monument is in a dangerous condition. It can happen too that consent would be given when the purpose is to allow a building programme to proceed. The most notable example of a consent of this nature would commonly be regarded as the joint consent given by the commissioners and the local authorities in respect of the Wood Quay site in Dublin in 1979.
The clash of interest between the imperatives of heritage and the exigencies of development over the fate of the archaeological site at Wood Quay involved the people of Ireland as never before. When called upon, the State's legislative and administrative structure, as with the Derrynaflan case, was insufficient for the task of channelling the argument in a manner acceptable as fair to all involved. What happened at Wood Quay was perhaps the single most important incident affecting the administration of archaeology in this State and the trauma has reverberated to the present day. While in the intervening decade administrators have done much to accommodate the often competing needs of development and archaeology, in the absence of broader and more democratic legislative structures there is nonetheless still a potentiality for damaging conflict. In the present co-operative environment it can be anticipated that cases like Wood Quay should not arise. However, where such a conflict of interest does arise there will at least be a process in place that will allow an informed debate and the ultimate decision to be taken in a manner which permits prior maximum consultation and open expression of views.
I will now give a more detailed explanation of the various substantive provisions of the Bill. Section 2 expressly establishes the State's right to ownership of all archaeological objects which have no known owner and which are found in the State after the Bill is enacted. This is the single most important provision in the Bill. It removes any doubt which might exist regarding the State's right to the ownership of archaeological objects found after the enactment of the Bill.
Section 3 provides the State with a waiver of its rights to the ownership of an archaeological object. It is not necessary to retain possession of every single artefact found. In many cases it will be sufficient simply to know the details and the circumstances of the find. The situation may also arise that there are already a number of similar samples of the object under full State control, and it would be unnecessary to retain all such similar objects.
Sections 4 and 5 provide for restrictions as to the possession, sale, exchange or disposal of an archaeological object found in the State after the enactment of the Bill or objects not properly reported under the National Monuments Act, 1930. Section 4 in particular is designed to place a complete prohibition on transactions in objects found after the enactment of the Bill, unless the State has waived its rights to ownership. Section 5 is to ensure that the director of the National Museum is made aware of transactions in archaeological objects found at any time between the passing of the National Monuments Act, 1930 — when controls on finds of archaeological objects were first introduced — and the enactment of this Bill. These sections also provide, of necessity, for heavy penalties arising from breach of these restrictions. Such penalties are based on the fact that what is being damaged is our heritage, the common good and our future citizens.
Section 6 permits the director of the National Museum to designate a person to carry out his or her functions in relation to receiving archaeological objects, and to designate places where such objects may be placed for safe-keeping, such as Garda stations or other secure locations.
The purpose of this provision is to allow for delegation of the director's functions regarding finds made after the passing of the Act in a situation where the director is not immediately available to take charge of the protection or preservation of an archaeological object or the site of a find of this nature. At present there is no statutory provision for the delegation of the director's functions, nor is there any statutory provision for the approval of locations outside the National Museum suitable for the safe storing or exhibition of archaeological objects, but this matter is being addressed.
Section 7 provides for the seizure by the gardaí and forfeiture by the courts of unauthorised detection devices and diving equipment found at the site of a national monument or a site protected by an underwater heritage order. There is only one underwater heritage order in place at present protecting two crannogs in County Leitrim. In making provision for this stringent enforcement power it is important to bear in mind that it will only be applicable where the threat is to a site of national importance.
The introduction of the control measures in the National Monuments Act, 1987, curtailing the use of metal detectors was necessary to bring to an end the widespread and systematic destruction of our physical heritage which unguided and unsupervised use of detection devices had wrought in the early 1980s. As a result of the legislative measures taken and the enforcement action of gardaí and the archaeological authorities the destructive use of metal detectors was largely halted. However, unauthorised use by a hard core of offenders is still persisting despite the precautionary measures already in place. The purpose of the provision is to provide an effective deterrent against the use of such equipment by the small minority that are persisting in unauthorised search for archaeological objects within the State.
Section 8 provides for inspections and excavations to be carried out by the director of the National Museum where the director perceives an immediate threat of decay or destruction to the site of the find. This is because the context of a find is often more valuable in terms of the information which can be gleaned than the object itself and it is essential that the director be in a position to derive the vital information swiftly and without any potential delaying factor. It is intended that the work of the director will encompass no more than the immediate task of evaluating and recording the characteristics of a site. While some excavation of a minor nature may be necessary this would encompass only the immediate surroundings of the find. Should the investigations and accompanying excavation, if any, point to the desirability of a more important and wide-ranging excavation at some future time then this would have to be dealt with under the broad provisions relating to monuments.
The purpose of section 9 is to give general effect to the Supreme Court judgment in the case relating to the Derrynaflan hoard which clarified that archaeological objects which are discovered and which have no known owner are the property of the State. Accordingly, this section sets out the mechanism whereby the State can take possession of archaeological objects with no known owner found after the coming into operation of this Bill. The provision empowers and requires the director of the National Museum, on behalf of the State and the people, to take possession of the archaeological object on behalf of the State.
The section also provides that this provision shall not apply to an object which is not, in the opinion of the director, of sufficient historical or archaeological interest to justify its retention by the State.
Section 10 provides for the payment of a reward to a person finding an archaeological object. Where such object is retained by the State the Director of the National Museum is empowered to make payment to any or all of those associated with the finding of an archaeological object, namely the finder of the object, the owner of the land on which the object is found, or the occupier. I emphasise it is a reward for responsibility rather than a transaction.
While rewards have been paid in the past it is important to emphasise that these were by way of administrative sanction only, by grace and favour of the State. Now there will be a provision which gives clear statutory basis for such payments. Section 10 also establishes, as it must, that while rewards may be paid in the public interest, there is no suggestion that the finder of an archaeological object could have any claim to ownership of the object as the object in question will be owned by the State. The provision sets out, in so far as it is reasonably feasible to do so, the criteria which the Director of the National Museum must take into account when evaluating whether a reward should be paid and how much — the criteria includes the intrinsic value and importance of the object, the circumstances of its findings and amounts paid in other comparable cases. The provision makes clear that the reward is not an entitlement or a right. The intention is to reward the conscientious finder of an object who reports the find responsibly to the director of the museum and not the professional treasure hunter who only reports the finding of an object simply as a last resort. In accordance with established practice in matters involving a possibly very substantial payment from public funds, a reward would be made only with my consent as Minister and the consent of the Minister for Finance.
Section 11 updates and extends the scope of the provision of the 1987 Act which deals with the acquisition of national monuments by the Commissioners of Public Works. The amending provision gives the commissioners new power to purchase rights of way and other easements at national monument sites and introduces a specific mechanism for compulsory purchase and calculation of compensation should such an eventuality become unavoidable. The underlining principle behind these provisions is governed by the obligation of the commissioners under the national monuments Acts to facilitate people in gaining access to view monuments of national importance.
It is important to stress that the policy of the commissioners is to always try to come to a voluntary amicable arrangement with the landowner for purchase of the site. This policy has been successful in the main but occasionally problems have arisen particularly in respect of rights-of-way to certain important sites. Therefore, while it is anticipated that the compulsory aspect of the purchase would be rarely used whether to buy land outright, or to purchase a right-of-way, the option that the power represents, is considered nonetheless an essential tool in the maintenance of the inherent right of people to be allowed visit without unnecessary hindrance, the most significant physical manifestations of our national heritage.
Section 12 provides for the establishment by the Commissioners of Public Works on a statutory basis of a list of all monuments and places where they believe monuments are located. Over the past two decades, and during the last ten years in particular, 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, details of which are held on individual files located in that office. The maps are structured on a county by county basis. The nation-wide survey was completed in 1992 and the detailed maps have been distributed to all planning authorities throughout the country and are already open for inspection for those wishing to know where monuments may be located. These maps are known as Sites and Monuments Records or SMRs. There are about 150,000 such monuments recorded on SMRs.
This provision is a key addition to the protection which can be afforded to our immoveable heritage. Monuments and sites recorded under this section will be immediately put under the protection of the Commissioners of Public Works. Two months notice must be given before work of any nature can begin on sites recorded under this provision except in the case of emergencies and then only with the consent of the commissioners. Action in this period would involve consultation with the owner or occupier as to how best to accommodate his or her legitimate interests and concerns while ensuring that the most appropriate means of protecting the monument is taken. By providing for a formal exhibition of SMRs in each county landowners will also have the opportunity of establishing for themselves if any monuments exist on their property.
Another positive effect of the provision will be to remove the inherent unfairness that exists in the law that makes it an offence for an archaeologist to excavate at the site of a monument without a licence but places no restraint on others who may dig out or completely destroy a monument for any other purpose because that monument has not been accorded specific protection from such treatment. The section also extends the prohibition contained in the National Monuments (Amendment) Act, 1987 on the possession and use of detection devices at a monument or place so recorded.
Section 13 sets out the penalties for non-compliance with the various offences. The penalties have been pitched at a level commensurate with the seriousness of the offences.
Section 14 makes a key amendment to the existing definition of archaeological object by including the concept of treasure trove.
Section 15 sets out the circumstances in which the commissioners shall give their consent to the alteration or destruction of a national monument in their care or to a removal of a preservation order from a national monument. The commissioners, or the commissioners and local authorities jointly, will continue to be empowered to give a consent for reasons of archaeology without reference to the Minister. If consent is sought for reasons of threat to public health and safety it will now have to be submitted to the Minister for decision. In these circumstances the Minister would have the authority to refuse such consent. Should the Minister wish to give such consent for any reason other than for threat to public health or safety he or she would be required to make an appropriate statutory order but the order would not become operative until the Houses of the Oireachtas had been given the opportunity to debate and annul the order if either House so desired.
The purpose of section 16 is to change a reporting procedure so that all archaeological objects and associated materials found in water or on land covered by water are now to be reported to the Director of the National Museum, rather than to the commissioners or the Garda as at present, as it is the National Museum which is the State's repository of all archaeological objects.
At present the 1987 Act provides for the mandatory reporting by the finder of all wrecks over 100 years old and for the reporting of wrecks under 100 years old but only when found on a restricted area site where there is an underwater heritage order in place. The new provision provides that an archaeological object, which could encompass the wreck itself regardless of its age, found in water, under 100 years old, and whether or not found in a restricted area, must be reported by the person who found the object.
Section 17 revises and extends the procedures for reporting the finding of archaeological objects as first set out in the Principal Act.
At present objects must be reported within four days of discovery to the Garda or the Director of the National Museum, basic details about the find must be provided, the object must be allowed to be examined and photographed, and the director to take possession of the object for a period not exceeding six weeks. The purpose of the amendment is to provide an updated and streamlined procedure whereby archaeological objects found after the passing of the Act are to be protected and preserved prior to a decision being taken by the Director of the National Museum as to whether such items should be retained by the State. The administrative changes from the provision contained in the 1987 Act include the reporting of all finds to the Director of the National Museum only, the removal of the maximum period for which an object may be held by the director, more precision in the details to be provided by the finder. As well as the changes inserted are new provisions setting out how an object found under the Act is to be handled prior to coming into the possession of the director. The level of penalties has been increased substantially to reflect the seriousness of the offence committed now that such objects are the property of the State.
Section 18 extends the provisions of section 25 of the National Monuments Act, 1930 by prohibiting the cleaning, restoring or sampling by any process of archaeological objects except under and in accordance with a licence issued by the Minister. The purpose of this amendment is to afford comprehensive protection to archaeological objects by prohibiting other potential sources of damage which might not in themselves constitute injury, defacement or destruction.
Section 19 formalises a process of consultation between the Director of the National Museum and the Commissioners of Public Works before an excavation licence is granted by the commissioners, for instance, on the most appropriate measures to be taken, and perhaps stipulated on the licence, to ensure adequacy of provision for the permanent and temporary storage and conservation of excavated finds.
Section 20 clarifies that where a search warrant has been issued to a member of the Garda Síochána, in relation to a possible offence under the National Monuments (Amendment) Acts such member may be accompanied by the Director of the National Museum or other person so designed.
Deputies will have appreciated by now that the Bill is designed to deal with the fundamental requirements of identifying, acquiring and preserving our national heritage.
Cuireann an Bille atá os comhair an Tí struchtúr cosanta ar fáil chun séadchomharthí agus earraí gaolmhara a chaomhnú — struchtúr a bheidh láidir go leor, tá súil agam, do riachtanais an lae inniu chomh maith le do riachtanais na nglún atá le teacht. Creidim féin go gcaithfear glacadh leis na forálacha seo chun cothabháil ár n-oidhreachta corportha — bíodh sí sonraithe i rudaí fisiciúla nó in imlínte na tíre — a chinntiú. It will be for the archaeologists to continue their work of interpretation to illuminate the past, to find out what really happened, how, when and if possible why and what lessons were learned from it.
We have, in this Bill, taken a lead which, I have no doubt, will be an example for legislators throughout the world. We have put into legislative form a clear unequivocal statutory right to our heritage and clear provisions for action against those who would seek to diminish it. Most important of all we will have gone a considerable distance towards fulfilling our duty as custodians of something which is far larger than the concerns of any one generation and provides a continuing option for peering into the lives of our ancestors.
Molaim an Bille don Teach.
