Section 30 relates to the transfer of staff of the Minister to boards. Will the Minister clarify the position of the staff of the Genealogical Office in the context of this section? I raised this matter on a previous occasion and perhaps the House might benefit from the Minister's elucidation on the historical context of the Department of Education's involvement in this regard. From further research, I discovered that those involved are effectively library staff. Is there any prior claim by the Department of Education on Genealogical Office staff?
National Cultural Institutions Bill 1996: Committee Stage (Resumed).
It would be useful were I to clarify the purpose of the section which does not address the issue in relation to the parallel thrown up by the nomination of the Department of Education by Government decision as the administrative Department. Section 30 empowers the Minister to designate members of his staff, not currently employed exclusively as staff of the National Museum and National Library, to become members of the staff of the board on the basis of conditions not less favourable than before the transfer, except as might later be agreed otherwise, and on the basis of continuance of the status quo in relation to superannuation benefits.
Take the case of a person who is not working full-time in the two areas. This section provides that they can become a member of the board on foot of the conditions to which I referred. I met the staff of the library and the museum to discuss how the Bill would affect them. In that context, I stress the relevance of the phrase "on the basis of conditions not less favourable than before the transfer, except as might later be agreed otherwise, and on the basis of continuance of the status quo in relation to superannuation benefits”. This important section provides a facility for general Civil Service staff who might wish to remain staff of the National Museum and National Library following their establishment and it covers clerical and administrative staff, whose numbers are very small. It is envisaged that this provision will be utilised only when the agreement of the person proposed to be designated has been obtained.
With regard to support staff, I understand that, apart from those who are strictly staff of the Genealogical Office, this section also covers two clerical assistants involved in typing, secretarial and reception work. These people are usually recruited from the general service and often return to the parent Department after a brief period, which in this instance is probably the Department of Arts, Culture and the Gaeltacht. I further understand the present incumbents have worked in the office for three years and six months, respectively.
Work involving access, cloakroom, security and other matters is dealt with by the science and art attendant grade. Does responsibility for this grade come within the remit of the Minister's Department? I understand there are seven such staff and each is rostered for a variety of duties throughout the library. Who will be employing the support staff?
Let me clarify by means of analogy. I was a statutory lecturer in political science and sociology of the National University of Ireland and I worked in University College Galway. I worked within a particular building and department at UCG but I had a specific employer. In the event that the Senator misunderstood the position, we are discussing library staff. No one is exclusively employed by the Genealogical Office. It is library staff who work there — there is no argument on that point. The staff are employed to work exclusively in the library so no professional staff will transfer under section 29.
Under section 30 the Minister will designate clerical and administrative staff. The professional staff in the Genealogical Office would transfer automatically and the clerical staff would be designated to transfer it they wish or if they are on loan. The categories the Senator mentioned are covered and the provisions will lead to an orderly and reasonable arrangement by agreement.
Section 32 refers to superannuation. Subsection (6) states:
No superannuation benefit shall be granted by a Board nor shall any other arrangements be entered into by the Board for the provision of such a benefit to or in respect of a member of staff of the Board otherwise than in accordance with a scheme under this section or with the consent of the Minister and the Minister for Finance.
Will the board be able to make a special payment with the consent of the Minister? Subsection (6) seems to indicate such a possibility.
Subsection (6) attempts to achieve two competing principles — first, consistency in relation to the public service superannuation provisions, the role of the Minister and the Minister for Finance and, second, flexibility. In respect of the first principle, subsection (6) provides that the superannuation benefits shall only be granted by a board on the basis of schemes approved under the section or as otherwise approved by the Minister with the consent of the Minister for Finance.
The reference to "otherwise approved by the Minister with the consent of the Minister for Finance" is a new provision for legislation such as this. Hitherto is was assumed that all pensions would be through schemes laid before the Houses of the Oireachtas but this may be seen as a way of reaching specific deals with members of staff, particularly senior staff, in particular situations without Oireachtas involvement. It is to achieve the second principle of flexibility in particular cases which might be negotiated for reasons which could not be envisaged by legislation. It will allow for exceptional cases where special circumstances have to be taken into account, for example, hardship or unusual circumstances — I do not wish to give specific or personal details.
The Minister anticipates my next question.
I do not wish to discuss personal cases. I referred to clerical, professional, administrative and other staff. In the nature of movement between jobs in one institutions or in a slightly different professional capacity in another institution and the acquisition of credit and protection, including health protection in terms of superannuation, circumstances may arise which should be taken into account. A person may give excellent service but may, for an unusual reason, fall foul of a particular condition. The advantage of this provision is that while it is expressed that the schemes in general should be consistent and be approved by the Minister in the usual way, with the consent of the Minister for Finance, it allows that if the board heard a particular case and wished to enter into negotiations on a reasonable basis, it would have the power and flexibility to do so, subject to approval, which is only right.
Can I assume that if such a case came before the board or the Minister, under this legislation it can be responded to and if it is proven, a special payment over and above the norm can be made to that individual?
I want to be careful not to mislead the House. I will approach the particular case raised as sympathetically as possible. That is all I will say about that case which is not covered by the legislation. When the Bill is passed, the flexibility which the Senator is seeking will be possible.
Given the unique circumstances in which individuals may find themselves during the transition period, is the Minister stating that the principle is established by this Bill and that he would be guided by the spirit of this section, even if he was not statutorily obliged to act?
I want to be careful about this. It is not a principle; the principle is that the superannuation scheme will be approved by the Minister in consultation with and with the approval of the Minister for Finance. Having said that, the board will be able to listen to special cases. It is an exception rather than a principle and the board, with the consent of the Minister, will be able to respond to exceptional cases based on hardship or compassion.
Would the Minister agree that this is a new departure in legislation in regard to this type of payment and that it is to be welcomed?
It does allow flexibility. However, I want to make it clear that it will be the exception rather than the rule. It would be inoperable if this were seen as a discretion which stood as an alternative to the operation of superannuation schemes. It allows flexibility to respond to exceptional human cases.
We are all sadly aware of publicised cases where civil servants, for whatever reason, have felt that the system has not responded fairly or sympathetically to their situations. This is why I have asked the Minister to go down this road and I am glad that he has had this opportunity to clarify the meaning of this section. I hope it would act as a benchmark for future legislation regarding civil servants. The system does not always work in their favour and, because of a lack of flexibility in the past, people have felt a grievous wrong was done to them. I do not wish to go any further on this but I felt it important that the Minister and I should tease out the implications of this subsection. I am grateful to him.
Amendments Nos. 56 to 59, inclusive, are related and may be discussed together.
I move amendment No. 56:
In page 25, subsection (5) (b), line 15, to delete "6" and substitute "3".
I am attempting to steal the clothes of my colleague Senator Quinn who, on occasions such as this, refers to what he calls best practice. These amendments are of a technical nature relating to the timing of publication of accounts and the financial obligations which are being imposed on the boards. In that context I would be interested in the Minister's response. I appreciate that I am reducing his proposals in the case of publication of annual accounts from six months to three months. I am also suggesting a tightening up of the language on subsection (5) (c) which says that "A copy of the accounts and auditor's report thereon shall be presented to the members of the Board and to the Minister as soon as may be..." I am asking that this would not be later than 12 months after the end of the financial year.
The reason for this is self-evident: in the commercial sector these accounts are made available in the shortest possible time after the end of the current financial year. I appreciate that there has been an intellectual argument about the altruistic nature of these institutions and that their integrity in that regard should not be attacked. However, we are attempting to put these boards on a semi-commercial footing and they are being given sweeping powers. Section 33 refers to their ability to borrow money and we are attempting to not only focus their minds on the issues at hand, but we are also expecting them to raise finance and generate income for themselves. Whether they like it or not, and some of them may not like it, they are moving into the commercial arena and I see no reason they should not be required to conform to the norm in that environment.
I support these amendments. I have raised this matter during debates on previous Bills. I can never understand why, in today's computerised business world, we have to wait six months for accounts and reports. Throughout the year we receive reports from organisations dated a year or 18 months earlier. This is ridiculous. When the small airport in County Kerry calls its annual general meeting it presents its report for the year. Every pound, shilling and penny is accounted for at the end of the year. My brother has a business in Dingle and, at the press of a button, he knows his debits and credits through a computerised accounting system.
We on this side of the House, have been very generous in our support of this Bill. As Senator Mooney suggested — and the staff in the relevant institutions may not like this, but, in our opinion, this is the normal and correct procedure — the reports should be available as soon as possible. The Minister has been generous in accepting amendments and I urge him to accept these as well.
I support the approach adopted by Senator Mooney and Senator Fitzgerald. I would be strongly supportive of reducing the timescale for reporting from six to three months. This conforms with best management practice for this type of report. We put off compiling reports until the last possible moment because it intrudes on the daily rush of business. By far the best way is to compile it as one goes along and keep in mind during the year that a report must be furnished close to the end of the year, rather than allowing everything to pile up. If the deadline is brought closer to the end of the year, the attention of those responsible for the report will be more focused on the need to issue it quickly. That strengthens the board vis-a-vis the director and vice versa. In terms of good management practice, a three month deadline will assist not just those outside the body to know what is happening but also those inside to organise their affairs in a more focused manner.
The Minister may be surprised to hear that I sympathise and empathise with the principle of Senator Mooney's amendments. At this time of year we are receiving public sector annual reports for 1995; sometimes they are issued up to a year and a half after the expiry of the period concerned. That is by no means satisfactory and, at a time when we want greater accountability, this position must be examined. The Minister may not be able to accept these amendments but the principle must be pursued by Departments and semi-State bodies as a matter of national policy. A retail, commercial or manufacturing outlet could not conduct its business effectively in this manner. The very Departments, such as the Department of Finance, that demand accounts from businesses do not do what they want the private sector to do. The Minister may not be able to accept the amendments as worded but the principle must be taken on board in the public sector.
Before the Minister replies, I should inform him that I wish to argue amendment No. 59 separately, so perhaps he could address the arguments made about amendments Nos. 56, 57 and 58, if that is in order.
Is that agreeable to the House? Agreed.
It is not for me to decide that point and I will try to restrain myself from dealing with amendment No. 59 in anticipation of our discussion. Senators have shown a great anxiety that the cultural institutions be run efficiently and an even greater sensitivity for their character, so they will appreciate that two kinds of report are envisaged in the amendments. I will continue with my pragmatic response but let me make one prefatory remark. Both this Government and its predecessor were anxious to tackle the unacceptable practice whereby semi-State bodies would report up to two years late. The Government is dealing with it and the reporting is now fairly up to date. It is not a case of public sector versus private sector. In my experience, many private sector reports are less concerned with giving information than promoting the image of the company. There is a huge variation in the amount of hard information, even as regards the accounts and the relative emphasis given to a profit and loss account and a balance sheet.
These institutions produce two types of report, one on matters of finance, made to the Minister and to the Comptroller and Auditor General, and one on activities. I appreciate that a report on activities would contain more information about policy than would a financial report. One problem is that, if the time for submitting the report is shortened, people may meet the deadline with an inadequate report whereas if the time allowed is reasonable and standardised, the dead line can be met with a good report. One does not want to defeat the intention by allowing too short a time.
I can accept that reports of accounts and of the auditors should be presented to the board and the Minister within a set time frame as suggested by Senator Mooney. He suggests replacing the words "as soon as may be" with a definite period. I will return on Report Stage with a form of words to replace the current provision.
However, that exhausts my generosity and I am inclined to retain the period of six months rather than change it to three months. I suggest this period because it also applies to the National Treasury Management Agency and the Radiological Protection Institute of Ireland, both of which deal with urgent matters. Even the Irish Horseracing Authority, which is on the periphery of cultural activity, is allowed six months in which to produce a report. I suggest that six months meets the requirements.
I am disposed to accept the spirit of amendment No. 57. I accept the phrase in the Bill is too general and I will return to it on Report Stage. However, I am anxious to keep six months rather than three months for another practical reason, which touches on a point made by Senator Fitzgerald. If the accounts were available on new technology a three month deadline could be easily met but that is not the case in these institutions, although I do not say that they should not move to that position. I would prefer to have a good report after six months rather than a rushed report after three months.
In anticipation of the discussion on amendment No. 59, we have accepted that the Genealogical Office is part of the National Library and is recognised and regarded within it. Therefore, it would not make much sense to have a separate report, as the office's report should be part of the overall report of the body which has administrative responsibility for it.
I appreciate the Minister's concession on amendment No. 57, which relates to section 34(5)(c) and states:
A copy of the accounts and the auditor's report thereon shall be presented to the members of the Board and to the Minister as soon as may be [.]
The amendment proposes that "as soon as may be" would be changed to "not later than 12 months after the end of the financial year". The Minister accepts the spirit of that amendment.
He made a distinction, of which Members are aware, between financial accounts and policy reports. Section 34(5)(a) states:
The accounts of a Board for each year shall be prepared in such form and manner as may be specified by the Minister...
while section 34(5)(b) states:
The accounts shall be submitted as soon as may be but not later than 6 months after the end of the financial year [.]
Will the Minister clarify this? Neither paragraph appears to refer to a policy document as such but to accounts and auditor's reports, in other words, a financial statement.
I hope this is constitutionally correct. The Comptroller and Auditor General has recently prepared a report on this and I have a personal view on what appears in reports I have read over the years. For instance, the report of a semi-State body may mention travel expenses. When a return is made at the end of a year, if there is a difference between the amount vouched and the amount paid this shows up in the Comptroller and Auditor General's report as a matter for which there must be an explanation. It may be best practice to send in vouchers or receipts on a daily or a weekly basis, although I think a certain type of mind is attracted by such a system and it is not necessarily the same frame of mind that is moved to excellence in aesthetic or cultural matters. I did not mean to mislead the Senator. He was right when he said I had to make my point about policy because it is a cultural institution. The Senator is right to say that other issue are involved, but why should the library and the museum have to satisfy the Comptroller and Auditor General within three months when even financial agencies have six months to do so? I thought six months was a more reasonable period.
I have said that I was inclined to be pragmatic and frank in any legislation I am introducing. I am not interested in putting in things for gestural reasons. It is much more important to put in a reasonable time period and make it happen rather than to impose an excessive statutory burden. I am open on this amendment. I accepted amendment No. 57 because, as worded, it is too loose. I will come back to it on Report Stage but I would prefer to keep to six months, even if only to ensure consistency between these institutions and the others I mentioned.
I am grateful to the Minister. As he has cited the three institutions on at least two occasions in his reply, would he give us the benefit of his experience of these institutions and tell us whether they have complied with the statutory requirements? Is he happy with the working of that requirement in relation to the three bodies to which he referred?
I do not know. I often had aspirations to be responsible for matters financial but it was never to be my gift. I can find the information for the Senator. I have said all I can say about it at this stage.
I did not wish to create difficulties for the Minister. I am sorry to be trying to hoist him by his own petard, but I was curious to know about those three institutions. I do not wish to delay the House.
I do not know whether it is in the NTMA Act in relation to the Radiological Protection Institute but my view is that in relation to the NTMA it has because I remember being interested in it.
The Minister and I are not all that far apart; millimeters rather than inches. I was attempting to ensure that the new boards would be aware from the beginning that they have obligations other than directly to the cultural institutions over which they will have power. There are wider issues of public policy here and certain obligations will be placed on them. As Senator Fitzgerald, Senator Lee and Senator Taylor-Quinn said, we have all had the experience of semi-State bodies which have not adhered to deadlines for publication and when they eventually arrived they were irrelevant and out of date. I will not press the first amendment in light of the Minister's comments.
In the context of expenses, I presume the Minister means that the three month period might not allow sufficient time for receipts to be forwarded. I am not being mischievous but the Minister is aware that Members of the Oireachtas forfeit expenses not claimed within 90 days; that is a three month rather than a six month period. I could not help thinking about it when the Minister was speaking. However, I take his point. It is a different scenario and a different environment. The Minister might use his good offices to extend that claim period for Members to six months in line with all the other institutions. In relation to my other amendment, I am grateful to the Minister and await his wording.
I move amendment No. 59:
In page 25, between lines 27 and 28, to insert the following new subsection:
"(2) The Minister shall request the Board of the National Library to prepare and submit a report in writing in both the English and Irish language by the Chief Herald and Genealogical Officer on the activities of his or her office at the end of each year and the Minister shall cause copies thereof to be laid before each House of the Oireachtas.".
The Minister is aware where I am coming from in this regard. This might be referred to as the thread that has been running through this debate in relation to the status of the Genealogical Office and of the Chief Herald's Office. It is an attempt to emphasise the uniqueness of the office and to convey yet again to the Minister the concerns which have been expressed outside of this House by those working in the genealogical and manuscripts area.
I reflected for some time on whether I should place this amendment before the House because I was aware of its implications. I felt it was important to have it debated at least and to put forward a view on it. I read the reports of the National Library over the last number of years. I appreciate that the reports — and this goes back to the Minister's earlier comments about the distinction between accounts and policy documents — are not only about the activities of the previous year but about the mission statement, future policy and so on.
Reference has been made to the activities of the Genealogical Office and the Office of the Chief Herald. If a separate report cannot be produced, perhaps there could be an addendum to the existing report or an assurance from the Minister that the board would be directed to ensure sufficient reference to the Genealogical Office and the Office of the Chief Herald in its annual report. The Minister has now established the separateness of the Genealogical Office and the position of Chief Herald as a branch of the National Library and it is the only branch of the library which is now covered in legislation. No other area of the library is included in statute. As the position of Chief Herald and the Genealogical Officer and by implication his or her office is now a separate branch within the library, it seems to me that the separateness of the activities of the Chief Herald and the Genealogical Officer should be recognised in the annual report rather than having it listed as yet another activity of the National Library.
I was not aware that there was a separate report by the Chief Herald prior to this. If it did not exist prior to this, why should we ask for it now? It would be putting a burden on the office to produce an annual report and it might not be in keeping with the work they are doing.
My main concern is the quality of service to the users. I assume that in the annual report of the activities of the National Library there would be a specific section on the genealogical branch. That would be essential and would, I hope, go some way towards meeting the concerns expressed. A specific section on the genealogical dimension of the library's activities is necessary in its annual report.
I can ask the board to ensure that in its report there will be an appropriate section dealing with the work of the Chief Herald and the Genealogical Office. However, I want to make one point perfectly clear so that there will be clarity where confusion and some mischief has prevailed, which is that the report is the report of the board. The director of the library appointed by the board is in charge. A person allocated an office and a function is responsible to that director and does not have an autonomous existence whereby he or she can tell the director to "get lost"— it is my habit to speak plainly.
Therefore, there is a structure of accountability, administration and reporting. For the first time, the Office of the Chief Herald will be properly and legally recognised, and we have negotiated on the best way to do that. There is appropriate recognition of the Genealogical Office. They are perfectly mentioned in the primary statute. No other description of it is truthful.
Having taken care of the office and its functions, it is perfectly reasonable for Senators to request an assurance from me that there will be recognition of that in the annual report. I give them that assurance. The amendment seeks to have a separate report. If I accepted the amendment and there were a separate report in addition to the report of the board, one would have fallen into the trap set by those who want confusion to continue for their own strange reasons. The confusion has been ended. The office's functions and the professionalism, quality and standard of the work are recognised and I assure Senators it will be an identifiable part of the report. A separate report would be an invitation to continue to have a mixture of bogus history and archaic argument masquerading as fact. That is now over because it is in everybody's interest to have clarity.
I welcome the Minister's assurance that a section of the report of the National Library will deal with the Genealogical Office, which is extremely important. The recognition of that speciality in the report will make it easier to highlight and identify it.
I also welcome the Minister's assurance. I have argued consistently for the centrality of the genealogical dimension in our understanding of our heritage and it is appropriate that it should be a part of the general report. That will encourage others who might not appreciate its significance to become more aware of it. I take it that the Minister is willing to convey to the board of the National Library our understanding that it should be an appropriate and substantial section, although I do not want to say how many pages or words it should contain.
I am grateful to my colleagues and the Minister. I believe I have largely achieved what I attempted to establish by tabling this amendment. I would like to go a little further than Senator Lee, although our shared aspiration is for an identifiable separate section within the report. Annual reports are becoming increasingly elaborate. They are so creative in their presentation and content that they must be aiming to win awards. They are sometimes over elaborate, which returns to the Minister's point or obfuscation; there is a great deal of shadow but not much substance in these highly colourful reports which are produced at enormous expense. I am staggered by the amount spent on the printing of annual reports, mainly in the commercial sector.
Perhaps, we could turn that to our advantage. When the Minister issues something short of a directive to the board as part of its guidelines, could he ask it to inject a certain degree of creativity and to enhance the presentation and content of this section in an unrivalled way? I am reluctant to use the word "majesty"——
It depends of the type of creativity the Senator is looking for; some of them have been quite creative already.
The majesty of the office and all that is inherent in it should be highlighted in the report.
They could use a film director.
I stop short of suggesting the Chief Herald should be decked out in ceremonial robes and silk tights for the annual report. The Minister has a good idea of what I am saying and I do not wish to labour the point. I am grateful to him.
Some matters have been drawn to my attention since the last day of this debate by people whose dedication to archival activities cannot be doubted. They are disturbed by the lack of specific reference to archival material throughout much of the Bill. In section 2 "library material" is defined as including any manuscript or book. I presume "manuscript" stands, in effect, for archival material throughout the Bill, and that any reference to "library material" incorporates and includes archival material, where appropriate. Questions were raised about vesting but I think that covers it and that the fears are unwarranted.
Questions were also raised about the fate and status of archival material which is not yet 30 years old but will come to maturity under the tenure of the nominated boards. I am not sure if the Minister can answer that question on the spot. I do not know what its implications are but perhaps it is worth thinking about for later in the discussion if there is not an instant answer to it.
I can take the point between now and Report Stage. I am happy that the use of the word "manuscript" covers the material. However, I take the point made by Senator Lee and I will examine it between now and Report Stage in order to assure myself that the archival dimension is properly incorporated.
The question of material which is less than 30 years old relates to the definition of what constitutes an archive. I am reminded of a distinguished librarian who told me when we were passing the National Archives legislation that there was a big difference between the National Archives and the national attic. If the cut off point is below 30 years there is a difficulty that everything will be included. However, I will look at it. I want the Bill to be as flexible as possible rather than to be dependent on definitions and other legislation. I will look at where it lies in relation to the base archives legislation between now and Report Stage and I hope I can satisfy the Senator on that point.
I am very grateful for that assurance because, as I said, those who raised the matter with me are genuine and dedicated. Even if their fears are groundless, they deserve to have them assuaged. I am grateful to the Minister for his forthcoming response in that regard.
Does this section terminate debate on the legality of the transfer of property from the Ulster King of Arms to the Genealogical Office in 1943?
It does. Everything is now clear with regard to the past——
Famous last words.
——and the functions with regard to the office to which the Senator refers, which among other matters — I must be careful about making the slightest error with regard to the elaborate past — was involved with the Keeper of the Book of Pedigrees. Senator Norris mentioned the efforts regarding the recovery of the insignia after the death of a person and the search of the house of the dead person to recover the collar relating to the Order of Saint Patrick.
They will come after the Minister.
When I read one of the files of the 1940s on this it was apparent that there was much greater concern about the furniture than anything else. The memorandum to the Government raised the question as to what the then office holder was doing in Dublin. Nobody could answer the question as to how and in what form people were being paid, but there was a great concern, which usually surfaced much earlier than for other matters, about the furniture and the office equipment. It is one of those curious kinds of memos for historians and others. To answer the Senator's question, let me be cautious, but I believe "yes".
Perhaps the Minister would confirm this for Report Stage? There was much debate about the legality of the transfer of the Ulster King of Arms in 1943. The Department of Education was involved. In addition, the order of 1986 did not result in an effective transfer. I hope, therefore, that this legislation will end the debate.
The Minister's point on the furniture is well made. However, the emphasis on the furniture does not detract from the fact that others had an interest in what was the archival manuscript and other royal arms in the office.
The heraldic insignias, equipment, paraphernalia——
Silk stockings and such like.
——are State property over which the board will have a duty of care and management. This section deals with the other matters to which I referred, such as office furniture and equipment. However, we are not reducing the other matters to "equipment" in that sense. That is already covered with regard to the purpose of the Bill in its defined status as State property.
I take a jaundiced view of a section which deals with consultants and advisers. I appreciate that there is a need for these boards to enlist the help of outside expertise. I also appreciate that there may be occasions when they will need help in mounting exhibitions, packaging their products and so on.
However, will the Minister assure the House that this will not be a carte blanche which will allow for creative annual reports detailing the use of consultants? I question the reasons for their use in some instances. Apart from all the other powers the board has been given, I am concerned that it will also have the power to engage consultants and pay them inflated fees — I am aware of this from working in the media — for their time, work and effort put into producing slogans or getting their art people to create logos or whatever. One only has to consider the horrendous amount of money spent by Bord Fáilte on replacing its logo. Aer Lingus made minimal changes to its shamrock logo — I cannot detect any change — at a cost of £8 or £9 million, to include a change in livery and packaging. This kind of expenditure entails the use of “Monopoly” money.
I do not want to engage in scare mongering, but I ask the Minister to assure the House that, in granting powers under this section for the engagement of consultants and advisers, a Ministerial eye will be kept firmly on the ball. Is the Minister satisfied that the powers he is granting to the board are not carte blanche, that there are checks and balances which will allow accountability and transparency in this area?
I am grateful to Senator Mooney for raising this issue. I have spoken here on several occasions about the country's apparent fetish for consultants. The quality of their reports varies enormously. Some can be outstanding, but there is also much drivel. One can see where these come from — they are removed from shelves and contain recycled rubbish. It is a waste of public money. I do not refer to the Minister's Department in this, but to other, more economically oriented Departments, which are presumably concerned with financial matters.
We must be careful as we know that money for these institutions is scarce. We also know, and the Minister accepts, that they are grossly under-budgeted in terms of what they ought to have. The idea that an optimum use of very scarce resources could be the hiring of consultants at grossly inflated rates must be questioned. Many of us will have been consulted by cultural consultants from time to time, not least on the issue of the shamrock, over a drink or a meal and will have offered such advice as we can give without even thinking of asking for the drink or meal to be paid for. They can then charge a fortune when compiling their reports.
If the Minister is doing the job properly he or she will appoint, as members of the board, people who are able to give advice on a wide range of areas. They will be appointed not only for their specific knowledge but also for their interest. It will reflect badly on the calibre of persons nominated to the board if, in due course, they have to consider the hiring of consultants because they do not have among their number people who can advise on the issues that arise. Otherwise, what are they being paid for?
Will the Minister elaborate on his thinking in this area? Users' committees can bring to the attention of boards issues that may arise and consultants could proceed to get the views of users and then weave the results into a report. I do not intend to provoke Senator Taylor-Quinn into talking about the superiority of cultural people, but many people in the cultural community who are deeply involved in these affairs would gladly respond to requests for advice or opinion without calling themselves consultants and charging accordingly. It might be a different matter if it related to a building or its architectural design, but the nature of the consultants should be closely defined. There is nothing more demoralising for the cultural community than to see what everybody accepts as scarce money frittered away, or potentially frittered away, on consultancy and advice which is not needed and may not even come from the best people.
I cannot understand what the fuss is about.
The section states:
... the Board shall comply with any directives with regard to such consultants or advisers which the Minister may give to the Board with the consent of the Minister for Finance.
This should allay Senators' fears. There are many instances where the board may need to hire advisers. For example, if it came into possession of fine copies of the Koran, how many people in Ireland have hands on knowledge of Islamic? In such circumstances, it may be necessary to bring in somebody with expertise from a university in Cairo, Beirut or elsewhere. He will not travel to Ireland to enjoy the rain; he must be adequately reimbursed for his efforts. Perhaps bad practice among consultants has given the profession a bad name but consultants are needed from time to time.
Senator Kelly is correct and I am glad Senator Mooney and Senator Lee raised the matter because it gives me an opportunity to explain the purpose of the section. Many State boards can hire consultants without reference to the Minister in the appropriate Department. Section 39 takes the opposite tack by providing that consultancies will be carried out to enable the board to carry out its functions with the permission of the responsible Minister in consultation with the Minister for Finance. The section provides two levels of consultation which do not exist in other State boards. The section was worded in this way to cover the point raised by the Senators.
I can assure Senators that consultancy for its own sake will not be approved. The section specifies that consultancies may be engaged to advance the board's functions. This goes beyond the issue of why the board exists; it is not an invitation for existentialist excess at a cultural level. The two filters, which do not exist in other State boards, were included to ensure that money is spent by major cultural institutions in the best way possible at times of scarce resources and for the reasons advanced by the Senators. The section is sufficiently strong.
I am grateful to the Minister. I did not put down an amendment to the section because it is better to include the section in the Bill. In the context of other sections which give sweeping powers to the two boards — for example, section 12 in relation to functions and section 14 in relation to by-laws — the provision is loose in terms of the powers which will be given to the boards to promote and expand their activities. If section 39 was not included in the Bill, it is possible that the boards could, without reference to the Minister, indulge in expenditure and engage consultants and advisers. I welcome the Minister's points which clarified the matter. The provision creates checks and balances in relation to the appointment and engagement of consultants. If the section was not included, the boards could engage consultants from their existing funds without reference to the Minister. This would defeat the argument put forward by myself and Senator Lee that scarce resources could be used for that purpose.
Given that the Minister considered it important to include the section, does he anticipate that the boards will at some point wish to engage consultants and advisers? The section states that, having regard to the guidelines, the money shall be paid by the board from moneys at its disposal. Will the Minister clarify what is meant by "moneys at its disposal"? This aspect relates to the annual Vote from the Department specifically to the two boards. In keeping with the view expressed by Senator Lee, a separate extra payment should be made if the boards come to the Minister with a proposal to engage consultants and advisers rather than the payment coming from their existing limited resources.
I am grateful to the Minister for clarifying the matter. However, I am still uneasy about what might happen and how it is envisaged the section will function. Senator Kelly mentioned an example of Islamic manuscripts. However, given the scarce resources of the institutions and the focus on Ireland, although I am committed to comparative perspectives, the vast bulk of material with which the institutes will be concerned will probably be Irish. In that case, the expertise should be available in this country and I am sure it would be made available without going through the hoops of consultancy. I do not suggest that academics in principle should sell themselves below market rates but there is a great fund of goodwill towards the institutions in the cultural community.
The more things are monetized, the more they will be approached in purely market terms and the fund of goodwill will diminish rapidly. I accept the Minister's reasoning and the goodwill behind the provision. It may contribute towards what Senator Mooney and I are striving to achieve but I am uneasy about some of the implications. It would be desirable to have more specific guidelines regarding the areas in which consultancy may be deemed appropriate.
I appreciate the Senators' interest and I am trying to give them all the information available to me. At present I am managing various types of capital expenditure, particularly in relation to the museum in Collins Barracks. The type of consultancy which will be required relates to, for example, computing systems and the second phase of Collins Barracks. It will be a most exciting development when the museum moves to the barracks. Many more staff and much more money than are available are required for that cultural institution but it will be an exciting time.
In the second phase of Collins Barracks, museum policy includes a number of options, for example, how the new facility can be marketed to the best extent. Specific marketing niche information is required in relation to the future of the museum. A point was made on Second Stage and during Committee Stage, on which there is general consensus, about the new exhibition space fulfilling its function. It will fulfil many things in relation to the traditional concept of a museum but there is greater interest among the public and a desire for it to be accessible for educational purposes. If one wanted to use CD ROM technology for exhibitions, one would require specific consultants.
As in the past, the board would discuss specific types of consultancy and would ask the Minister of the day for permission to engage in that consultancy. There may be an upper limit on the length of time and the amount of money spent which would come from the Department of Finance. They would be the points of reference. I hope I have made the matter clearer by giving examples of what might arise on foot of this section. I gave examples mostly from the viewpoint of the museum. Examples from the viewpoint of the library might deal with conservation, but the same arguments would apply.
Táim fíor-bhuíoch as an míniú sin. That goes some way towards providing clarification on the type of activity. I understand what the Minister said as regards computing facilities. However, when he spoke about marketing I became more sceptical in that a great deal of so-called marketing expertise is grossly exaggerated. What are presented as "unique insights" might cross the minds of many of us while strolling down the street. We cannot charge for that but they can. Why cannot those appointed to the board for their expertise contribute to a number of possible areas? Without pushing this matter further, it would be helpful if guidelines were prepared before Report Stage — I do not know if it would be possible — on what constitutes legitimate consultancy. It may be difficult to include this in legislation but I hope the intensity of the concerns expressed will be taken on board.
I share Senator Lee's concerns. In fact, that was the reason I raised this matter. I am not happy with this section. I appreciate what the Minister said and that it is better this section is included than excluded because it provides some checks and balances. Senator Lee made the point that the section does not go far enough although the tenor and the sentiment behind it is excellent. Does the Minister envisage a situation where the two boards would engage the same firm of consultants under two separate briefs at the same time? A firm of consultants could be employed by the board of the National Library and, at a future date, by the board of the National Museum to carry out the same work.
Senator Lee asked about the activities and expertise of the 16 board members. We agreed that sales and marketing would form part of the requirement for the appointment of such people. Surely it is not beyond their ken to create a subcommittee to deal with marketing and to come up with common sense ideas on how to sell and market? What will be the role of the directors? The directors of both institutions will have to address the question of the expansion of powers under the Bill. There is no answer to this problem but the Minister must issue guidelines. Board members must do more than attend meetings and rubber stamp decisions if appointed for their expertise.
It is time to speak plainly. I will deal with the issue of board members because there may be a genuine difference between us, but I hope that is not so. When the board is being composed one will take account of the expertise one needs to have available to the board as a whole. However, a person appointed will not say they were appointed to deal with one area. I would not make such a narrow appointment nor have I ever done so. I appointed a person to the Film Board who had a knowledge of film distribution and when that question arises everybody does not shut up except the person appointed for their expertise in that area. That person was appointed because we needed someone with a knowledge of distribution but they also read scripts and are involved in every aspect of film. A person may bring their expertise to the board, but they must contribute to the totality. A board member will not switch on only when their expertise is required. Boards in the past have been disastrous because that approach was taken. A board member must make a commitment to the totality of the policy which transcends his or her expertise. That clarifies a formative point in relation to the board.
The board will establish a policy for a number of years which the director will administer and report on. The board will know whether it is succeeding. The director will know if there is no expertise among the staff in relation to computers. When I spoke about marketing I was referring to the form of the exhibition rather than selling. One could argue that the two boards will not be able to do what other boards have done. I said there are two restrictions in terms of seeking permission from the responsible Minister and the Minister for Finance. If one goes any further, the boards will not have autonomy. The occasional, but responsible journalist has frequently reported on my respect for autonomy, which is important to me. I define my relationship with the semi-State bodies for which I am responsible as autonomy with responsibly. Boards must have some autonomy. Why should we place a restriction on these two cultural institutions with their many specialist areas, which has not been placed on any other body? There will be accountability because the permission of the Minister is required. A Minister who sanctions the exotic will be accountable to the Oireachtas. If we go any further, we are saying these institutions are distrusted in a way other institutions are not and, therefore, are entitled to lesser autonomy.
I accept much of the Minister's reasoning but I am still uneasy. Senator Mooney and I were not suggesting that board members should be appointed on the basis of narrow expertise and should keep their mouths shut when any other topic arises. That was not even implied. We agree with the Minister's interpretation on the type of person one would want on the board. More than one person may bring a particular expertise to bear. Presumably, they could progress discussion on museum or library policy some distance within the board, perhaps to a point at which consultants may be redundant.
I draw a distinction between cultural institutions which have a supportive cultural community and which regard themselves as stakeholders in the types of services provided by these institutions. There is a great deal of goodwill towards the activities of these institutions which may not be the case with the activities of other State boards. Hiring consultants in any area beyond the technical one referred to by the Minister, which I fully accept, should be a last resort rather than a first resort. These boards should consider themselves as representatives of a society as well as a State and should be willing to seek advice without calling in consultants who may charge an excessive amount for that advice. If that expertise is not available on a commitment basis, only then should consultants be considered although those consultants may be inferior to those giving advice that is freely available.
Could the Minister assure me that, given the context of advisers and the debate on the composition of the boards, a situation would not arise where the board would employ one of the board members for his or her specific expertise and pay them accordingly for advice? They would be sitting on the board as nominees of the Minister as distinct from their commercial expertise, a distinction the Minister has made.
In such a case there would be a clear conflict of interest. The chairperson would be required to draw that to the attention of the member. In drawing on my memory of previous occasions with other State bodies for which I have been responsible, it is understood that the chairperson would draw any conflict of interest to the attention of the board. I agree with the Senator and the answer to his question is, yes. It will not happen.
The same would apply to the companies employed as consultants if there were a potential conflict of interest. As the Minister is aware, some boards get around this by ensuring the member of the board is absent from the meeting at which the decision is taken to make the appointment. This should really be a question of openness, transparency and accountability because of the checks and balances built into the section but it does not state that. I agree that everyone will know if this happens.
Like Senator Lee, I too have a jaundiced view of consultants and the manner in which they operate. They operate in a netherworld where there is not always public accountability. Only when questions are raised are answers forthcoming. They are a secretive elite and obtain money — public money in many cases — which is hardly justified in the circumstances. Before I get the entire profession down on my head, I want to make the distinction that there are excellent consultants but they suffer from a bad public image.
The rise and fall of disciplines in the contemporary world is interesting. Homeopathic medicine is much more assured now than it used to be but economic, public and administrative consultancy has fallen back.
If one wants a consultant to tell one what one wished to decide in the first place there is always the danger of tautology and circularity. There is also the danger of repetition of a methodology that might be scant and the absence of originality. That is not to say that some consultancies are not capable of flashes of creativity and insight. I assure Senators that everything will take place with probity, prudence and in the best interests of the cultural institutions.
There is a very committed voluntary community of scholars and people interested in the activities of these institutions many of whom have taken time and trouble over the years without thinking of it as a marketing relationship. I am uneasy about the degree of ministerial power in the Bill even when autonomy is part of the principle invoked simultaneously, parallel, overlapping and God knows where the circle ends sometimes.
I would hate to think that anything in this Bill would discourage the degree of voluntary commitment given to these institutions by people who give it without thinking of themselves as consultants.
Senators should remember that I gave instances of the limited technical areas in which consultancies would be sought, and did so not by being conjectural but by drawing from areas where we would need consultancy, such as the major relocation of the National Museum to Collins Barracks.
Senators are right to stress that it should be an exceptional and residual decision rather than a usual one, which answers Senator Lee's point. He is right when he says that the great allies of the cultural institutions at the time when resources were scarce were the volunteers who supported them. Their role in the future will be central.
Amendments Nos. 60 and 70 are related. Is it agreed that both be discussed?
I am not sure I agree with that amendment No. 70 expands on amendment No. 60. They are two separate issues although they overlap. I would be grateful if they could be debated separately.
Is the Senator insisting on a separate debate?
Yes. I move amendment No. 60:
In page 26, line 43, after "material" to insert "genealogical records and heraldic devices".
This is a self-evident amendment. It ensures that genealogical records and heraldic devices will be included. The earlier parts of the Bill do not convince me that these areas are adequately covered.
The Senator has my assurance that the definition covers the matters he mentions. There is a downside to the Bill if the amendment is accepted. If one has a generic definition that includes these matters, a whole range of matters will be included but if one proceeds to list, one is left with an interpretation wide open to suggestion on that which has not been listed or covered by the definition. There is clearly a downside in relation to drafting and one goes for a definition which is inclusive, but to go for listing leaves one wide open in the future. It seems to ask: "Why did you not list the rest as follows?". One is then unable to sustain the argument that the definition included a, b, c and d because one has specified a and b and therefore one is silenced on c and d. That weakens the base definition.
I assure the House that I have taken advice on the definition and I am satisfied it that it includes the matters to which the Senator refers. I will confirm before Report Stage that proceeding in this way will be more inclusive, whereas listing would leave me open to the leaving matters out.
Will the Minister explain why there is a distinction between the definition of "cultural object" and "library material" when only "cultural object" is referred to in this section?
The spirit of the Senator's amendments in other areas is achieved by the use of the phrase "cultural object", which includes library material and material which is not in the institutions. It is the widest possible generic use and it achieves what the Senator sought in other amendments. "Cultural object" is the more inclusive term.
I accept the Minister's judgment on this. I raised a point about archival material earlier and it includes the great bulk of theological material, although I do not wish to substitute one for the other. I hope this is one of the phrases the Minister will keep in mind in this section as in other sections if redrafting is necessary.
This is a technical amendment. I acknowledge my error in regard to an institution for which I have the greatest fondness and respect and change its title from the Ulster Folk Museum to the Ulster Folk and Transport Museum.
Will the Minister clarify the position of private institutions, for example, parish and school registers? Subsection (1)(a) refers to a register "which has been in the care or under the management of the institution for an uninterrupted period—".
These sections deal with the concept of indemnification. There has been a great deal of publicity about other aspects of the Bill but these are valuable sections. Until now every time a person wanted to mount an exhibition of objects or paintings the Minister responsible had to go to Cabinet to make a proposal for indemnification. One of the more recent examples was the Louis le Brocquy retrospective at the Irish Museum of Modern Art. Curators were often doing things at the last minute and had to arrive at valuations of the objects and paintings. However, under the Bill the State is doing the act of indemnification.
The Senator had a question on the register which I will answer by giving an example. "The Taking of Christ" by Carvaggio is in the ownership of the Jesuit Order but on loan to the National Gallery and the register will cover that.
Therefore, it only refers to those cultural objects which are on loan to the State as distinct from those which are retained by private institutions.
That is the case.
Section 45(1) refers to cultural objects entered in the register which are in the ownership of a person other than an institution specified in the Second Schedule. It specifies the two bodies referred to in the Bill along with the Chester Beatty Library, the Crawford Gallery, the Hugh Lane Municipal Gallery of Modern Art, the Irish Museum of Modern Art Company and the National Museum of Ireland. Are all these institutions in the ownership of the State or has the Minister identified them as institutions under this Bill?
An indemnity arises if a cultural object which is in private ownership is made available. There is a second category where an object is owned by the Irish people. The private person needs to be indemnified because the cultural object will be part of an exhibition. I have committed myself to regionalism with regard to cultural institutions and while other institutions will be included in the Schedule from time to time I decided to start with two, the Hunt Museum in Limerick and the Crawford Gallery in Cork. They are able to meet the requirements of security and curatorial capacity.
Will other institutions which come within the guidelines laid down by the Minister be added by order?
They will not be added by order because I wanted to protect myself and all future Ministers from the accusation of being arbitrary. There will be an order put before the Houses of the Oireachtas for agreement.
Does it require amending legislation?
No and I keep stressing the democracy involved.
Will the Minister be taking steps to encourage the lending of cultural objects which are in private hands or is it an accepted procedure that once people loan an object to the State they are indemnified anyway?
The Senator raises a good point beyond the scope of the Bill in terms of cultural policy. If people want to make materials available the indemnification procedures enable them to do so without cost. The Bill responds to those who want to behave as the Senator suggests and these sections enable many things to happens which did not before or which happened with great trouble.
I am not au fait with the procedure in terms of the lending and transfer of cultural objects. Did a problem exist which has been resolved by the insertion of this section? Can people be confident that if the they wish to loan a cultural object to any of the institutions listed they will be indemnified? This should act as a motivating factor for them.
The Senator is right. Without putting a tooth in it, a slow tortuous, cumbersome, prohibitive procedure which had to be invoked on each and every occasion is replaced by a provision in a Bill which enables the indemnification to happen and the exhibitions to take place in a normal way.
I applaud the Minister's initiative in this regard. It is an important section the implications of which should not be lost in the context of all sections.
The purpose of this amendment, which is a response to concerns raised on Second Stage, is to provide a procedure in certain circumstances to resolve disputes between the museum and a public or local authority concerning entitlement to care for and manage archaeological objects with no known owner. This was suggested by members of the Irish Museums Association. While it is not anticipated that any problems of the above nature should arise in practice, nonetheless it is considered that any concerns there may be on this issue will be allayed by the introduction of this procedure. As the Heritage Council has a remit in respect of museums generally, it would be an appropriate body to assume an arbitration role.
Under the National Monuments (Amendment) Act, 1994, an archaeological object found in the State with no known owner was formally declared the property of the State. Prior to this Act, and as a result of the Supreme Court judgment in late 1987 regarding the Derrynaflan hoard case, Webb v Ireland, the State has a claim to ownership of all such objects found in the State at least since the enactment of the National Monuments Act, 1930, when controls on archaeological objects were first introduced. The arbitration process will cover disputes over objects found prior to the 1994 Act which were held by local or public authorities for at least five years.
I am grateful to the Minister for responding to concerns raised on Second Stage. If memory serves me correctly, this matter relates to situations where there might have been competing interests between local authorities and the National Library and National Museum. Will the Minister clarify whether this will apply to artefacts because there was an ongoing legal dispute in connection with the Armada wrecks at Streedagh and other wrecks off the coast of Ireland? Was the Streedagh case resolved and does the section provide for eventualities of that type occurring in the future?
The case of the Streedagh wreck was resolved in the High Court. The protection of sites was dealt with in the 1994 legislation. As regards the Lusitania I do not want to prosecute in that case but I made an order regarding the site of the wreck. There are unresolved legal issues. One has been concluded and two remain before the courts. These arise in connection with the duties that fall by way of the public interest in relation to the protection of the site. There are also separate issues which arise with regard to the ownership of the contents of a wreck.
When the National Monuments (Amendment) Act, 1994, was being debated, it was my intention that people should be rewarded for good citizenship but we should not sacrifice the issue of ownership. The heritage of Ireland is the property of the people. I would never concede that a person discovering an object that is the property of the people should enjoy even temporary ownership of it. This is reflected in the legislation. However, I did make provision, through the agencies responsible, to reward good citizenship. When I introduced the National Monuments (Amendment) Act, 1994, I was influenced by the conclusions reached in the Finlay judgment in the Webb case in relation to a specific point. The Streedagh case was resolved by the High Court but that litigation preceded my term of office.
I am open to correction but, with regard to the ongoing legal disputes about the wreck of the Lusitania, there is an unproven allegation that Sir Hugh Lane was transferring paintings back to Ireland which are lodged in sealed containers on the wreck. The State would have a genuine interest in this regard because he may have been acting on his own behalf or that of the State at that time. However, the State is the beneficiary of the Hugh Lane bequest.
Is the Minister satisfied that there are sufficient legislative instruments in place, coupled with the amendment, to ensure that there will not be any doubt about the State's ownership of such objects? Will he assure the House that commercial profiteers will not benefit from the plunder of Irish cultural objects, whether discovered off the coast or on the island of Ireland? Is he satisfied that, although this amendment relates to disputes between local authorities and the museum, it is possible that local authorities may obtain these artefacts through a private donation or on loan? We discussed this matter in relation to indemnification. Is this amendment sufficient? According to the wording, it seems that the dispute will be between the museum and the public authority but there might be a third party involved.
I am relying on my memory of the preparations for the different litigations involved. There is no concept of "treasure trove" in Irish law — that was the effect of the 1994 legislation. I remember facing the legal issue that arose in that regard when I was dealing with that legislation. The reason for it, as I said, is that the heritage of Ireland belongs to the people. It is something of a republican concept — the idea of the common ownership of that which is our common heritage. The concept of "treasure trove" in another jurisdiction has an interesting history. That is the background to my suggestion that any reward is for good citizenship. If a person behaves responsibly it should be possible to reward them. There are certain criteria to be taken into account in that regard. Archaeological objects are the property of the people.
Some objects found prior to the 1994 Act might have been in the care of a public body, a university for example, for many years. The museum may now wish to take the objects into its care and this amendment is designed to deal with such an eventuality.
There has been a Supreme Court decision on the Streedagh case but there are no artefacts involved. The section refers to objects found prior to 1994. I took a great interest in Hugh Lane connection to the Lusitania to the amusement of some in the other House who wondered if I would make a site inspection myself.
Will the Minister put on a diving suit?
I made an underwater protection order on the Lusitania. Such an order had only been made once before in relation to a crannóg in a lake. In conjunction with other legislation dealing with shipwrecks, the order on the Lusitania was designed to protect the site from indiscriminate diving. A person must seek permission and a licence from the Department to make a dive on the site.
In another case, Mr. Bemis who is suing the State through the Minister for Arts, Culture and the Gaeltacht, sought three separate cases — one arose out of the insurance claim concerning the ownership of the shell of the vessel and another related to the artefacts and their possession. The relatives of the passengers would have private rights to possessions but there is also the issue of the paintings, for example. I decided to defend the case in relation to the beneficiaries. The National Gallery would have been the agents at the time for the Hugh Lane collection and I took the necessary legal action in that regard. I believe Mr. Bemis lost the case in relation to the possessions and is left with certain rights in relation to the wreck itself.
There were suggestions that there was one painting which may not have been in Hugh Lane's possession but in that of a passenger who might have on the Lusitania. Clear evidence that some of Hugh Lane's paintings were on board has not been established. There was speculation about sealed containers and their contents. The whole site is subject to an underwater protection order and the legal measures have been taken to defend any possible benefit in the name of the people of Ireland, the National Gallery and any other beneficiary. That has been vindicated successfully in the American courts.
I am grateful to the Minister because it is important that these matters be clarified, particularly as they involve historical artefacts. The Lusitania disaster is second only to that of the Titanic which took place three years earlier. However, the Lusitania was sunk within Irish territorial waters. It will be interesting to establish whether, as is suggested, there are valuable paintings in the wreck. The weight of evidence suggests there are not.
The amendment seems to deal with disputes involving the museum. I presume the reference to the museum includes the National Library. Does the amendment take account of a third party being joined in a dispute because of the ownership issue we discussed earlier in relation to indemnity?
The issue of the third party is dealt with in the fundamental part of the Bill. As we are referring in this section to archaeological objects the museum is the appropriate institution. I wanted a mechanism for the resolution of disputes. Section 46 empowers the main collecting institutions to lend, borrow and exchange. Should a dispute arise regarding the acquisition of a cultural object the Minister has the final decision and he may, by agreement, designate by order other institutions for such intra institution loans and transfers and revoke such designations.
It is not in anybody's interest for a cultural object to be pursued by every institution because that could result in the object being pushed beyond the institutions' powers of acquisition. This mechanism is at a distance from the Minister, yet the Act establishing the Heritage Council as a statutory body provides an opportunity for mediation.
I have no difficulty with the sentiment with which the Minister has clarified the matter. However, I am not sure whether I enthusiastically support his republican concept. My heart would agree with it but my head tells me not everybody would share our view. If a person found an important artefact on their land good citizenship may not be their first thought. Rather they may wonder how much the artefact might be worth to them and why they should give it to the State. There are elements of the Bill in which there would be an onus on people to act with good citizenship but, unfortunately, filthy lucre invariably raises its head. I wonder if the Minister has due regard for human frailties.
The balance of rights as they exist in the Constitution, which includes private rights, has been left intact in the 1994 Act. I am pleased that legislation has been enacted as I wished. Instead of leaving the objects which are in the possession of the people of Ireland to the mercurial decisions of people more interested in making money, I established it as a matter of law that these objects are the property of the people of Ireland. That is a fact. We are straying into other legislation but my amendment relates to the management exchange of objects which are in State ownership.
Amendments Nos. 63 to 69 are related and may be discussed together.
I move amendment No. 63:
In page 30, subsection (2), line 38, to delete "may" and substitute "shall".
These amendments are of a technical nature. I am sure that the Minister has a reason for not including the wording I have suggested and I would like him to respond to my initiative.
When these amendments are taken together they seek to expand the basic consultative structure which will involve the creation of the register of cultural objects. I appreciate Senator Mooney's concern to achieve a register of objects based on all the relevant interested institutions. However, I am of the view that this is best achieved within the tight framework set out in this section. It should be noted that the word "objects" does not apply to collections of items. I am confident that the museum, library and gallery will be in a position to take a comprehensive view of all the objects that need to be included. This section provides for those institutions to consult relevant experts. That is an important provision which is sufficient to achieve a consensus on inclusions.
I would also wish the Minister of the day to have discretion in the setting of considerations rather than operating under a mandatory requirement. It is necessary to have flexibility in view of the novel nature of this section because we are doing something new. There would be many considerations involved in compiling the objects which should be recorded in the register — age, rarity, historic, aesthetic and cultural value, market value and the degree to which such characteristics present in an object would constitute a serious loss to the country if that object was, for instance, exported or destroyed. It is also important to establish the register by degrees according to available resources and as expertise develops in respect of each class of object.
I appreciate the supportive intent behind Senator Lee's proposals. However, the interests of the provision are better catered for by leaving the discretionary elements intact. I would prefer to do this because, if one thinks of the criteria across which an object is described as having value, there will be a judgment which may be more inclusive in the future. I want to cater for this.
As regards Senator Lee's proposal that an entry in the register should be amended or deleted only after consultation with the Heritage Council, I can accept the amendment in relation to deletion. However, I would not consider this appropriate to amendments which are likely to be more technical and I will put forward an appropriate amendment on Report Stage which, I hope, will address this point.
I am grateful to the Minister for accepting that part of the amendment before I had even spoken on it. The reason I included it was that section 47 (5) (b) states: "The Minister may, after consultation with the Heritage Council, enter the aforesaid object or objects...". It seemed there was a non-sequitur in being able to delete without consultation. I do not have any emphatic view on the matter but it is better to have consistency. I also accept the Minister's point about the amending powers and I will not press that at this stage.
I am not sure that the Minister has addressed the reasons he objects to the extension of the list he has to consult. I cannot see the difficulty. For example, section 47 (2) states: "the Minister may direct a Board or the Governors and Guardians...". It would have been more sensible to state that the Minister "shall" direct. I know that questions of autonomy and flexibility are involved but why include such loose terminology that the Minister may or may not direct, depending on what he or she feels like on a particular day? Why not be more specific and say that the Minister "shall" direct the board and the guardians? Will the Minister address that point?
Let me make one general point in relation to the exercise of discretion. Instead of having several different sources of collection, one would know exactly the body through which the register was working. If one extends the register one would end up with, for instance, a Department having to co-ordinate information from several sources. This would be slow and cumbersome. We do have the capacity to change this later because of the word "may". Beyond that you also have discretion, which is part of the point Senator Lee's amendment makes. I want to be as helpful as I can so perhaps it would be better if I spoke about the entire section.
Section 47 provides for the establishment by the Minister of a register of certain classes of cultural object whose export from the State would constitute a serious loss to Ireland's heritage. We are agreed on that. Towards this end, key cultural institutions, under the aegis of the Minister, are to compile the relevant list because these institutions are identifiable and one will not have a variety of compilers. The Minister is empowered through a set criterion for inclusion on the register. The Minister has power to delete objects from the register and I am bringing forward an amendment that this will only be done in consultation with the Heritage Council. Recommendations by others for inclusion on the list may also be made.
It is considered highly desirable that, given the risks to our moveable heritage, there would be a central list of the most important objects in public and private care in Ireland. This list will assist in the protection of objects by identifying the most important ones held in the State and it will facilitate the provision of more stringent protection for certain objects through the export licensing provisions and will allow, in exceptional circumstances, for the compulsory acquisition of certain objects. This is what people want.
If this list is to be meaningful, it is necessary to limit it to a small number of significant items rather than every object considered in any way important by the professionals involved. For this reason the definition talks of "serious loss". The Minister can also limit the class and value of objects to be included in the list. For example, the setting of a high minimum value per object would limit it to the more significant objects of high value to export markets.
I can now answer the question directly. Subsection (1) provides that the Minister shall create a register of cultural objects whose export from the State would constitute a serious loss to the heritage of Ireland. I have spoken on that. The register may be limited by the Minister to a particular class or classes, including values specified by the Minister of the day.
Subsection (2) provides that the Minister, before compiling such a register, shall direct the board of the museum or library, or the governors and guardians, to provide him or her with a list of cultural objects which are, in their opinion, outstanding examples of those classes of objects required by the Minister for inclusion.
To answer a question and anticipate another, if "shall" was used rather than "may" in section 47(2), entry could then only be made after a direction from the Minister, whereas subsection (5) as it stands allows a board to initiate an entry by recommending it to the Minister without a direction being issued. In other words, the board will have the information and can take the initiative rather than relying on the traffic being in the other direction.
However, by virtue of subsections (3) and (4) the Minister may require that specific consideration be given to such matters as he or she directs when the register is being compiled and that there should be consultations with persons with a special knowledge of the matter. That is intended to cover consultation with such bodies as the Royal Irish Academy, Trinity College and others who would have an opinion.
Subsection (5) provides for the making of recommendations for inclusion in the register and subsection (6) provides for amendments to and deletions from it. I am perfectly happy to hear the opinion of the Heritage Council before making a deletion because there would then be no danger of doing so arbitrarily.
Because the term "national treasure" is not defined in EU law, it has been applied, fairly widely, as desired in member states. However, if it were separately defined in this Bill the effect would be to place a question mark over existing export controls on archaeological objects. Accordingly, the term "national treasure" is not used in the Bill, although it was envisaged in the original Heads of the Bill.
I explain all this to give the maximum information. I re-emphasise the point touched on by Senator Mooney when he mentioned the distinction between his heart and his head in these matters. There is no longer room in Irish law for confusion. It is my intention to invoke sanctions and I will be inclined to increase rather than reduce them.
After I introduced the 1994 legislation, a dealer in Great Britain suggested it was so severe that it might be counter-productive. We have found the opposite to be the case — the pro-active assertion, defence and seeking of strong sanctions is a good way to defend Ireland's heritage. My instructions to those staff for whom I have responsibility will be to seek strong prosecutions and maximum sentences as much as possible so as to defend our heritage. In this country there is no such thing as "treasure trove", only the property of the people of Ireland. There has been and will be rewards for good citizenship but there is no possibility of making the slightest concession, even on a temporary basis, on the ownership of anything belonging to the people of Ireland. I am straying back to the 1994 legislation, which is now the law of the land.
I am grateful for the Minister's explanation. Section 47(2) provides that the Minister "may" direct. The Minister justifies that wording by referring to section 47(5)(a); I take the point about that paragraph but why was there a need to include the wording in section 47(2)?
The Minister acquires the responsibility under section 47(1), which states that he "shall, as soon as may be after the commencement of this Part, establish and maintain a register of cultural objects". The obligation is clearly on the Minister. If "shall" was used in section 47(2), that would have meant the Minister was doing it by prescription, whereas the subsection as it stands is consistent with section 47(5)(a), under which the board, expressing an opinion, may make a suggestion to the Minister and the Minister may act. It allows a flexibility so that the decision to include an object on the register may come easily from both sides. This is the appropriate balance.
Does the Chair intend to seek direction on amendment No. 63 exclusively?
No, I said that amendments Nos. 63 to 69, inclusive, were related and to be discussed together. I will ask whether each amendment is being pressed as I come to it.
I take on board what the Minister has said. He may argue that these amendments are not necessary but there is no compelling argument for not including them. He said that the section provides an opportunity to add, as the Minister sees fit, to the list of cultural institutions which may require consultation. Not only would it be practical, it would be an aid to the efficient working of the board of the National Library if the director of the National Archives were consulted. I appreciate that he can be consulted but it is not written into the Bill. The section mentions the governors and guardians of the National Gallery but the director of the National Archives has as much if not more right as they have to be consulted about certain National Library materials.
When I say the Minister can add, he can add to the consultation or he can direct that there be consultation between the library and museum and another body. The Senator is correct about the National Gallery. From consultations, I can tell him that the National Archives are happy to allow the library take its role but the point is that, under the legislation, it is perfectly open that the consultation which the library would undertake would include the National Archives, if the matter was relevant. It is happy with this arrangement.
As to the other cultural institutions designated by order, I had in mind those which would be outside the scope of the existing legislation and institutions, so that it would allow an opportunity for those with expertise who operate in these cultural institutions to put forward a point of view. That was the reason for moving the amendment.
I do not mean to be obstructive, but section 46 states that the director of the National Archives may act with the consent of the National Archives Advisory Council. Is there a large enough distinction between what is involved in section 46 and in section 47 that one may consciously include the Archives in one section and consciously exclude it in the other?
Section 46 deals with the lending and acquisition of cultural objects. The National Archives is mentioned because it could lend material. Section 47 deals with a different issue, a register of cultural objects, in which regard the National Archives is happy that the National Library should be the appropriate lead body. Also, under the legislation a Minister is perfectly free to tell the National Library that it should consult in relation to archives. Section 46 relates to lending, so it is necessary to include the National Archives to give them the power to lend; section 47 relates to the register and the archives is perfectly happy that the library would be the lead institution to fulfil the obligation of that section.
One is concerned that the relationship between the National Library and the National Archives be the correct and appropriate one in all these cases. I am happy to accept the Minister's judgment on these matters but it is important that this be kept in mind.
I tabled these amendments to section 47 because I was strongly influenced by the wording of section 46 and I am grateful to Senator Lee for raising that issue with the Minister. It seemed incongruous that this was provided for in one section and not the other.
Will parish and school registers be included in the register? Under section 47, the register is to be established and maintained as soon as may be after the commencement of the legislation. I am raising this issue for a variety of reasons.
Parish registers are held in churches throughout this country and I wish to compliment the keepers of those records who come under increasing pressure from people seeking details of their family background who go to the church as a first point of reference. These people work in a voluntary capacity and are to be complimented for what the Minister referred to earlier as citizens' responsibility in this area. They know it is a very important aspect of genealogical research and they respond accordingly. These parish registers are outside the scope of this legislation. However, there may be a constitutional issue involved here on the question of private ownership. I would be grateful if the Minister would address this issue. I am anxious for specific acknowledgement of the existence of these registers.
Some school registers were abandoned as a result of the closure of rural schools. School registers are distinct from school rolls in that the school roll will only have the name and the attendance record of the pupil but the school registers include full family details. As a result of rural depopulation there have been incidents where the last teacher to leave the school has locked the door and left this material behind. Many of these former rural schools have been bought by non-nationals. I do not mean that they are any more ignorant than Irish people but they would not have the same awareness of the importance of these records for our national culture. I fear that many of them have been lost.
Those that might still be in existence are pillaged to a degree, mainly by our returning second and third generation Irish people who go back to their local school, discover one of these registers, find their family name and details on it, decide that it would look lovely on their mantelpiece back home and take it away. I am not suggesting that this Bill should be so all embracing as to incorporate every and any aspect of our cultural life but, arising from my own research in this area and from representations made to me, we would be grateful for clarification as to the protection of these records that are held in private institutions.
I will be as forthcoming as I can. The register as we have defined it includes material which would be a serious loss to the country if it were to be exported. In answer to some of the points made by Senator Mooney, it includes materials in public or in private ownership. If the materials he mentions qualify as library materials they are included in the definition of "library material". Whether they are held in public or private ownership does not matter. I can confirm that that protection is there.
Section 48 (2) states that the Minister may, by order, declare any document which is in his or her opinion of national, historic, genealogical or literary interest to be an article to which this part of the legislation applies. That deals with the issue of whether material is covered under section 48. Section 48 deals with restrictions on the export of articles. There is protection in the definition of "library materials" and there is no inhibition on that protection whether material is in public or private ownership. We will deal with the other issue when we are debating section 48(2).
I am very sympathetic to what the Senator is trying to achieve. In my discussions with the Heritage Council I will be very anxious to ensure that we come up with a strategy that would make safe as much of that kind of material as possible. In this section we are discussing the register of cultural objects which, of its nature, cannot include everything. When we come to section 48 we will discuss restrictions on exports. As well as those two requirements I will look at policy issues.
This is an extremely important discussion. I appreciate Senator Mooney's contribution and the Minister's reply. Anyone who has worked with parish registers or school records is aware of how much has been lost by neglect over the years. For a people who are reputedly obsessed with history we have been as neglectful of our heritage in that area as we have been in the architectural area. While it is easy to rouse public concern about vandalisation of buildings, even if sometimes not in time to prevent the vandalisation, it is far more difficult to focus attention on the gradual erosion of the documentary basis to much of our existence. This sort of material is essential for genealogical purposes and family histories and it will become more concerned with the history of ordinary people as we will as time goes on. This is crucial material, so our understanding of its importance is crucial.
I am concerned about another aspect of this provision. Section 47 (1) states that subject to the provisions of this section, the Minister shall "as soon as may be" establish a register. The principles the Minister has enunciated are impeccable but how soon is "as soon as may be"? Of course there are implications for resources here and we are agreed on the inadequacy of the resources hitherto devoted to these institutions, not least to the National Library, for these purposes. Who will compile these registers? Who will establish them? It will be in the first instance the responsibility of the directors and those working under them.
The Minister said it will be a register of meaningful objects but decisions have still to be made as to which items, among a plethora of objects, are meaningful. Directors, in practice, carry a great part of the burden nominally associated with boards but unless they are given more resources, when are they to find the time and energy to fulfil the aspirations expressed in this section? We can applaud the principles all day but until "as soon as may be" can be turned into a concrete and realistic time period, the principles will not lead to an improvement in the situation.
We are dealing with principles here. I take the point the Senator is making. Ultimately the impact of the legislation is at its best when resources are made available. In preparing the legislation I have to assume that these resources will be available. If I had to wait for resources to become available before I legislated, I would not have got anything done. I encountered the same argument on Teilifís na Gaeilge. It is occasionally suggested that I should have reformed broadcasting legislation first, found all the money for ten years and then set about explaining to people what a good idea it was. With the greatest respect, I suggest such a strategy might not have yielded the happy result we have now. I must word legislation in a way which assumes the best. I will go further and say that my instructions will take immediate effect on the passing of this legislation, if that is possible.
I move amendment No. 70:
In page 31, subsection (1)(d), line 28, after "objects" to insert "(which includes genealogical records such as parish and school registers, estate records and maps)".
The purpose of this amendment is to ensure that the term "objects" specifically includes genealogical records such as parish and school registers, estate records and maps. As the Minister indicated he had a view on this, I would welcome his response to the amendment.
I dealt already with the theory of this amendment when discussing the advantages and disadvantages of listing. Members will appreciate that there is no difference between us on this issue — it is a matter of how it is achieved. Therefore, my argument remains the same. With respect, although I am not a Member of this House, we have already dealt with amendment No. 70.
I understand that although amendment No. 70 was to have been discussed with amendment No. 60, a decision was taken earlier to discuss them separately.
That is how I was confused. I do not want to waste the time of the House by repeating myself. I assure Senator Mooney that the term "library material" in section 2 is drafted in such a way as to include this material. The term "cultural object" is defined to include "library material" and, therefore, I confirm it includes genealogical records and heraldic material. I am responsible for the drafting of terms and I see considerable danger in listing items. It is better to confirm that the definition used includes this material, which the Senator is right to raise, and other material which has not been listed today. Rather than take the risk of excluding, it is better to proceed as I have done. I advanced this argument on a previous section.
Perhaps I contributed to the Minister's confusion in this regard. While amendment No. 60 refers to similar terminology, the main thrust of amendment No. 70 relates to parish and school registers, estate records and maps. I accept what the Minister said and that we could end up requesting a very long list.
The Minister has clarified that under section 48(2) "The Minister may by order declare any document, which is in his or her opinion of national, historical, genealogical or literary interest, to be an article to which this Part applies". While the wording of the section includes genealogical and literary interest, I was anxious to ensure parish and school registers, estate maps and the other paraphernalia which are very important to an understanding of our historical and cultural past would not be forgotten about and that the legislation would be comprehensive enough to ensure the owners and keepers of such important memorabilia could not infer it was not included. That was my primary intention in tabling the amendment.
I am constantly puzzled by the way in which drafting gets in the way of what we agree we want to achieve in this House. Surely it is not beyond the wit of draftsmen to find a form of words such as "including but not confined to" which would make it clear that it is not an exclusivist inclusion.
I think Senators will agree that we are actively legislating as we go, particularly in relation to this Bill. I take Senator Lee's point. I do not want to cause further confusion, but I suggest Senators look at section 48(2). I am moved by the arguments Senators are making.
If Senator Mooney did not seek to amend "cultural objects" to include those items but instead concentrated on the existing list in subsection (2) of "national, historical, genealogical or literary interest", I would be disposed to examine subsection (2) between now and Report Stage. I can accommodate the principle there without infringing the principle which I mentioned earlier. We all wish to establish the maximum protection. Senator Lee made a good point — the main consideration is not to make the legislation in the slightest way frail. There is the possibility of changing the wording of subsection (2) to include parish records and the other material to which the Senator referred, and I am willing to look at that.
I am very grateful to the Minister. We are at one in attempting to ensure there is comprehensive protection and that no loophole will be left in the legislation. I presume the Minister is suggesting that he will table the necessary amendment on Report Stage to accommodate the points raised.
I said I would look at it. I am fairly confident I can find a wording for that subsection which I could not find for the other.
Amendments Nos. 71 to 75, inclusive, are related and may be discussed together.
I move amendment No. 71:
In page 31, subsection (2), line 36, after "order," to insert "after consultation with the Heritage Council".
I tabled this amendment in the spirit of my earlier one to ensure internal consistency. I hope the Minister will accept it. If not, I am sure he will point out why the cases are different.
We are now moving onto the territory of section 48 which deals with the question of the restriction on the export of articles to which this Bill applies. Amendment No. 71 would place a requirement on the Minister to consult with the Heritage Council before an article was declared to be a document for the purpose of the export licence requirement. I do not see that as being necessary. The Minister will use his or her discretion according as the need demands, depending on the quality of expert advice received from whatever quarter or institution, including the Heritage Council.
I am moved by one point, which is that there may be a need for the Minister to act swiftly in a given situation. It is understood that the Minister would draw on the advice of the Heritage Council in particular. For example, I have already given way on the idea that the opinion of the Heritage Council should be sought before any item is deleted from the register. In this case, it is important that the Minister can respond quickly, for example, to a matter raised in either House of the Oireachtas.
The amendment proposed by Senator Mooney would make forfeiture of the registered cultural object mandatory. The Deputy will know how amenable I am to the concept of that which constitutes the people's heritage and property and he will also know my lack of sympathy for those who would steal from the people. However, the Office of the Attorney General has advised me that forfeiture is so severe a sanction that such a decision would, in the interests of equity, have to rest with the courts.
Senator Mooney also proposed an amendment to deal with publicity regarding export licences. I am not sure that notices on every State and local authority building would be the most appropriate way to deal with this. I accept that a satisfactory implementation of the Bill's provision would require my Department to acquaint both public institutions as to their rights and obligations with regard to such objects and members of the public as to the various provisions in the Bill which affect them.
I see the point of Senator Mooney's amendment. Other institutions for which I am now responsible put things in Garda stations out of archaic practice and nobody sees them. I assure the Senator that I will seek to advertise in the most appropriate, modern and general way. However, I will not take the route he proposes because I do not need such amendments. The institutions will be contacted.
When the Heritage Council was put on a statutory basis we included not only a reference to but a proactive role for education. It is important that schools, including those with transition years, be aware of the significant changes to legislation regarding the people's heritage. They should also be utilised for the purposes of communicating the new arrangements. I will use more modern forms of communication and there will be no question of attempting to satisfy a minimum by putting up archaic notices in places where people would be unlikely to see them.
With regard to Senator Lee's amendment, I have outlined the importance of the ability to move with speed. While I will continue to look at the points raised in Senator Mooney's amendment, I am bound by the advice of the Attorney General. There are other ways of proceeding and other sanctions which I may consider. On the question of forfeiture there is an issue of equity which would require resolution in the courts.
I am grateful to the Minister. He referred to one's heart leading one's head. I am sure he would agree that our hearts as much as our heads are forming an opinion on this.
The Attorney General's legal advice is interesting. It raises the question as to why any reference to the court should be included if there is a restriction on the type of wording that may be used. Section 73(5) states that the courts "may order the object to be forfeited". My amendment states that the courts "shall order the object to be forfeited", the implication being that it is forfeited to the State. I am confused by the Minister's advice that this is a matter best left to the discretion of the court. Perhaps he will address this.
The balance between the Legislature and the courts is such that we create the capacity for the courts to judge. That is why the word "may" is used. The use of the word "shall" amounts to a direction to the courts. I believe we can operate with the word "may" because the courts will know what the legislation intended and it leaves them free to exercise within their remit.
In proposing this amendment I am aware that there is a clear separation of powers between the Judiciary and the Legislature, although both are equal under the Constitution. While we can legislate, we can only influence and recommend to the Judiciary. We cannot force or direct it.
The Deputy knows my views on this. It is a matter of judgment as well as having the strongest possible legislation. I do not want the Bill to fall on a constitutional point. Private property rights are enshrined in the Constitution. The Finlay judgment in Webb v. Ireland is interesting in that it introduces the concept of the greater good, or the good of the Irish people, which I chose to interpret when drafting the National Monuments (Amendment) Bill, 1994, as something that was not simply conterminous with private rights enshrined in the Constitution but was almost a transcendental right because it refers to the people's property and heritage.
In this context, is the use of the word "shall" tantamount to giving a direction to the courts? The courts argue for sovereignty in their practices in that they must, for example, have the right to take mitigating circumstances into account. In this context the word "shall" is a direction rather than allowing for the flexibility and interpretation to which the courts are entitled.
However, I take the Senator's point that the word "may" appears to be a lesser suggestion than that intended by the word "shall". I can undertake between now and Report Stage to find a formulation stronger than "may". If this is possible while remaining within the bounds of the Constitution I will consider it.
I accept the Minister's greater expertise in this area. None of us would have any sympathy for those who attempt to illegally transfer important and expensive items of our culture out of the State in the belief that they will only have perfunctory fines placed on them. I am seeking the ultimate sanction here because of the importance we all attach to the subject matter under debate. I appreciate the Minister has a difficulty here. It is a problem that arises from time to time. I am interested in where his further research may lead him and would be grateful if he would advise the House on Report Stage.
I understand the Minister's position on amendment No. 75. While I accept his bona fides on the promulgation of the various sections of the Bill as they relate to the public, I am not sure future Ministers will have as full an appreciation of the media and modes of information as the Minister. A future Minister may leave it to his excellent civil servants who may have other priorities.
This important Bill puts on a sound footing two of our major cultural institutions. Implicit in it, and in this section, is the question of how we treat our cultural objects, including those objects that are intrinsically valuable and are an essential part of our national culture, and how we treat individuals who do not approach this issue with the respect accorded these objects by this legislation.
I am a firm believer in education and as much information as possible should be given to the public. The inclusion of the amendment would ensure that a significant portion of the general populace who visit State buildings, including all the cultural institutions and departmental offices around the country and local authority buildings, such as libraries and other ancillary buildings under their control, are aware of the position.
The Minister said he will ensure that modern means of communication are used. I did not cover schools or the educational area and perhaps that is a flaw in the amendment. However, its purpose is to ensure that the public is aware of the severe fines proposed in the section for the illegal export of cultural objects. Given that as many people visit Ireland annually as live here, perhaps an unambiguous message should be sent that we will not tolerate pillaging of our national culture in any form.
I understand Senator Mooney's concern and we agree with the general principle of his argument in relation to putting as severe a restriction as possible on somebody who attempts to sneak objects of great value out of the country.
It would be difficult for the Minister to replace the word "may" with "shall" because it would involve including a particular offence in criminal law. It would have to be listed as a specific criminal offence and that is not possible in the Bill. However, I appreciate the Senator's point. We value the independence of the courts system but given all the matters covered by the Bill, judges with any understanding of the legislation will appreciate the serious view the Minister, the Department and the Oireachtas take of this issue. One hopes that the Judiciary, in terms of its prudence and freedom to assess each case individually, will take the strongest line possible with regard to the section.
Regarding the amendment, the Minister could be accused of interfering with the freedom of the court if he specifically directed it to take a particular direction. It may be necessary to examine the position in relation to criminal law and to establish a list of statutory criminal offences in this area.
One of the great merits of the 1994 legislation is that it is already a criminal offence for which one can be imprisoned for two years. If I amend that legislation in the future, my inclination will be to raise the prison sentences rather than reduce them. I take Senator Taylor-Quinn's important point. The word "may" respects the discretion of the courts, particularly in relation to mitigating or other circumstances. This also applies on the other side of the divide in terms of bad circumstances. I will examine the matter between now and Report Stage.
I have a difficulty with Senator Mooney's amendment in any case because it mentions a public notice in all State and local authority buildings. This would include water towers, public toilets and other such buildings. The Senator's intention is that if legislation is in place and we go to the trouble of amending it, the provisions should be made known properly. I will examine the position between now and Report Stage in terms of whether a phrase such as "the section having come into force as law, the Minister shall take such appropriate measures" or a similar phrase can be included to ensure the Senator's intention is achieved.
I am grateful to the Minister because that is my objective. The best way to open up the debate was to table the amendment as worded. I was aware that if I relied on the expertise of the Minister and his Department, they would create the necessary and essential form of words. I presume the Minister means he will consider an amendment to the section on Report Stage to encompass the sentiment of the debate.
I am concerned that the information is imparted and that people receive it. It should not be allowed to gather dust on yellowing paper in offices around the country. I had the tourism market primarily in mind rather than the domestic market. Tourists may feel, out of ignorance rather than mischief, that if an object came into their possession they could take it away with impunity. I am grateful to the Minister for his clarification and his assurances in relation to Report Stage.
Will the Minister clarify the purpose of the amendment?
This allows for the amendment by ministerial order of the minimum limit of £35,000 for decorative art objects, subject to licensing requirements. This issue was raised on Second Stage and it was pointed out then that the amount is in line with the equivalent EU regulations. I am reluctant to reduce it until we have experience of the volume of material likely to be coveréd but the amendment would allow for a reduction in future if it were considered desirable. Provision is also being made for a similar flexibility to reduce the minimum age for a number of categories.
Subsection (1)(a) states "any document (other than a document wholly in print) which is not less than 70 years old,". Many documents relating to historical events, such as the de Valera papers, may be only 30 or 40 years old but they may relate to events in 1916 or 1921. They are important and valuable documents although they are less than 70 years old. Age does not always determine value, relevance or importance. Why is 70 years specified in the section? More recent documents may be of value and the amendment goes some way towards realising this point by giving the Minister power to change the age if he wishes. What is the rationale behind including 70 years as distinct from 25 years or 50 years?
I was a little taken aback when the Minister said the flexibility which he is seeking as regards the £35,000 would be with a view to reducing it. Would there be a possibility of raising it if only in line with inflation if the figure selected here was the correct one? Inflation is deemed to be under control at present but in ten years time, even with an inflation rate of 3 per cent which depends on matters beyond our control, there would be a significant difference between £35,000 today and what it would be at that stage. I hope the phraseology allows flexibility in either direction. The intent seems to be to reduce it as distinct from maintaining it in line with inflation.
Senator Kelly made a good point. The Minister mentioned European Union practice as regards the value of objects. What are the implications of European Union definitions of cultural objects and archival holdings? I do not know the degree of binding powers this has, but the Official Journal of the European Communities lists cultural objects as archives and any element thereof of any kind or any medium which are more than 50 years old. Is there an implication for our 70 years in terms of the EU's 50 years? What relationship does the Minister envisage between them as circumstances unfold?
Senator Kelly and Senator Lee raised issues that attracted my attention. Given what is involved in section 48(2), are the provisions in section 48(1) (a) necessary because of the powers the Minister has under section 48(2)? Is he seeking double protection?
Section 48(1)(a) is necessary to define where the offence lies. A person who does not satisfy section 48(1)(a) is in breach. Section 48(2) defines circumstances in relation to the ownership of a cultural object and is necessary to ensure a person will comply. Senator Howard's interpretation was correct in that it provides a stronger protection for the State. If this subsection was not included, one would appear to have a description of an administrative process. Section 48(1)(a) is clear in that one may acquire a licence. There are actions which are in breach of that which will be clearly understood. It also helps in relation to sanctions.
On the point raised by Senator Lee, when we discussed this previously the issue was not about adjusting the £35,000 upwards with inflation but about reducing it. Members suggested the figure was too high and that objects could be valued at £15,000 to £25,000 below that figure. I was urged to create the capacity to reduce the figure to cater for objects of intrinsic value worth £5,000. The amendment enables amendment by ministerial order across all classes of objects within the decorative arts and it gives the Minister great flexibility. Senator Henry said an important object may not be valued at £35,000; something which might have a relatively modest price in gross terms could be very valuable within a class of objects. That is the reason for that flexibility.
We are at 100 years in terms of the time limit. To go from 100 to 50 years would have huge resource implications. I decided to move from 100 to 70 years with the capacity to move quickly to 50 years depending on resources.
I am grateful to Senator Kelly for raising the question of time. I studied the comparable legislation in the United Kingdom. The British Library Act, 1972, refers to objects which it appears to the board to have been printed not earlier than the year 1850. The British Museum Act, 1963, refers to an object which appears to the trustees to have been made not earlier than the year 1850. How did the Minister come up with the figure in section 48? Does it mean that anything older or younger cannot leave the State without a licence?
Anything older than 70 years will require a licence. When passed this legislation will join the National Monuments Act, 1994, and will be succeeded by the Wildlife Bill. This will give us the strongest package of heritage legislation in Europe. It is more radical in that respect than some of the British legislation, and deliberately so. If one takes from 1850 onwards, there is a raft of material which is outside the boundary of protection. As we are moving from 100 to 70 years, we are including everything for 30 years and it is my aspiration to move quickly to 50 years. Rather than setting this down as immovable stock, I created the flexibility to vary. I gave an example about the status of an object within a class of objects and the reason to protect its value. Equally, within a category of material, one may need to vary — a point made by Senator Kelly and others. This amendment provides the flexibility to address this and as resources are built up, we will shorten the period to 50 years. We will be able to cater for objects below that and gradually include more objects. This Bill is more inclusive and up to date than comparable legislation elsewhere.
I accept the Minister's point that there is no such thing as treasure trove under the 1994 legislation and about objects of cultural significance and of intrinsic value to the State. Would copyright extend to that because it would be within the rights of the State?
I must resist the temptation to speak about copyright because it does not arise here. When amending the National Monuments Act I confined myself to archaeological objects. That legislation is being used as a model by other countries in Europe.
The issue of intellectual property is for another day and will require separate legislation. Handling this requires not just my Department but the principal Department, which is the Department of Enterprise and Employment. There is a huge issue coming up in December in Geneva where the international significance of this will be raised, including the question of what constitutes intellectual property and non-physical material. Archaeological objects were dealt with in the 1994 legislation.
The Act applies to exporting articles. In the case of a book or library material, in which original copyright would have been vested in the creator of that intellectual material, which passes to the State, does the State own the copyright? As the Minister would be aware, the term of copyright has been extended in Europe from 50 to 70 years. Would this get over the difficulty to which Senator Kelly referred about newer material because it would be under copyright and the State had the copyright vested in it? I refer to printed material.
I am reluctant to stray into the area of copyright but the last example is not covered by copyright. Copyright falls within this legislation and is adverted to in section 49(6):
Where copyright subsists in an Article referred to in subsection (4), the making of copies pursuant to that subsection shall not constitute an infringement of that copyright.
That was to deal with a situation where something goes abroad under export licence and a copy is kept. In making and keeping such a copy, copyright is not infringed.
Section 48(4)(a)(i) and (ii) refers to fines. Section 48 (4)(a)(i) states "... a fine not exceeding £1,500 or to imprisonment for a term not exceeding 6 months..." and subsection (ii) states "in case the offence relates to any other article, to a fine not exceeding £1,500...." In subsection (4)(b), the term of imprisonment is two years and the amount of the fine is £50,000. Is the Minister satisfied the fines and prison terms are adequate sanctions?
We have covered a range of issues but the Minister made a general point on the importance of diffusion in referring to transition years and related matters. Diffusion of this general legislation is crucial to enable its full potential to be realised countrywide. Anybody aware of the work going on in local history at third and second levels will be aware of the importance of bringing this legislation to the attention of all the possible users and beneficiaries.
Organisations like the History Teachers' Association of Ireland and the local archaeological and historical societies should be informed as explicitly as possible of this. The way they are told about the legislation will bring the scope now offered to the attention of the biggest number of beneficiaries and users. Tremendous work is going on already and more will be done when full knowledge of the potential under this legislation is made more widely known.
On section 48, my query relates to the powers the Minister can have. In relation to documents, that is well provided for in section 48(1)(a) and (c) and 48(2) but section 48(1)(b) is not nearly as strong on the protection of paintings or in relation to any object as stated in section 48(1)(f).
The only protection in relation to paintings is contained in section 48(1)(b). If one compares that to the protection of documents in the Bill it looks inadequate. Section 48(1)(f) states:
any object specified in the Third Schedule which is made in Ireland, is not less than 70 years old and the value of which is less than £35,000,
Looking at the Third Schedule, it is not an exhaustive list and the protection being given to objects in section 48(1)(f) is confined to what is specified in the Third Schedule. Is the Minister satisfied there is enough protection of these objects and that there is enough protection of paintings bearing in mind the more extensive protection provided for documents?
Section 48(1)(b) states:
any paintings (other than paintings in the ownership of the person who painted them) not less than 25 years old which are painted entirely by hand on any medium and in any material and which either——
Effectively, the only thing protected stronger than that are the objects already debated for inclusion when we discussed a register of special objects. The 1994 Act relates to archaeological objects. In relation to the precise point of section 48(1)(f), I will look at the Third Schedule because section 48(1)(g) states: "any classes of cultural objects designated by order of the Minister". The Third Schedule has every kind of object one can think of because we are in a new area of protection in relation to furniture, wallpaper, ceramics, etc. In case the Third Schedule was not inclusive, the force of section 48(1)(g) was to enable that to be added to without difficulty.
Is the Minister satisfied with the adequacy of the fines and prison terms?
As a former member of the McBride Commission on Prisons, I am very aware of the effects of incarceration on people and felt that two years was a good long period.
My question was more on the fines than the prison sentences.
A fine would not deter some people. There is an amazing need for a prison sentence to concentrate the minds of high upper-middle-class people who are glorified thieves of the people's heritage, without putting a tooth in it.
They are well heeled, articulate thieves.
This is consistent with the National Monuments Act but in the spirit of co-operation I will look at it for adequacy.
This is a technical amendment.
Does this section apply to boards or institutions wishing to temporarily export for exhibition purposes?
Amendment No. 77 is related to amendment No. 76 and both may be discussed together. Is that agreed? Agreed.
This amendment clarifies that the Minister can delegate part of his functions and not just all or nothing. It provides an option for the Minister to delegate "such one or more of his or her functions" in respect of licensing of cultural objects for export or in regard to offences cited in the section. The option of delegation is to distinguish between the classes of cultural objects, paintings and library material involved. If the Minister wished to delegate a power, he or she can do so. In practice, it is likely that there would not be delegation of the licensing power in respect of cultural objects in the register but there could be in respect of objects under a certain age or valuation. It is likely in terms of the National Gallery and the Irish Museum of Modern Art Company that a delegated licensing function would be divided between them depending on the age of the painting involved. The Bill as originally worded was defective as it would only allow delegation of all or nothing.
The original wording indicates that the Minister was delegating his or her functions in toto and the wording of the amendment allows for some cherry picking. The Minister can decided which functions he should reserve.
It is quite the opposite. As originally worded the Minister would have to delegate in total in regard to all functions. It is not cherry picking as it enables the Minister to delegate in appropriate circumstances where it arises with regard to a class of objects, for example, where an expert opinion may be called for.
Will the Minister explain the circumstances in which he envisages a transfer of functions?
I do not envisage it happening normally with regard to matters on the register but I see it arising in terms of a valuation or age. I do not see it being used to evade ministerial responsibility.
I do not doubt the Minister's bona fides but I am confused. The original wording means there would be a comprehensive transfer of functions but the amendment is more specific about functions. I cannot understand why the original wording was changed. What is the justification for that? I am not totally convinced by the Minister's argument.
At present the museum makes a proposal on an object and gives an opinion on a licence which is then returned to the Minister. It makes it possible for the Minister of the day to delegate his or her functions under section 49 to the board of the museum in relation to museum heritage objects and to the board of governors and guardians of the National Gallery and the board of the Irish Museum of Modern Art Company in relation to painting and the board of the National Library in relation to library material. Prosecution functions arising with regard to exports may also be delegated by a Minister to a board. It simply gives them the flexibility to act instead of having to come back to the Minister every time.
The Minister says in the original wording that, by order, the Minister will delegate his or her functions and the amendment states "such one or more of his or her functions as he or she specifies in the order". Is the Minister suggesting that the original wording was flawed and that there could be a difficulty in its execution?
Yes, the original wording was inflexible. This wording works better because the Minister can delegate what is to be done to the museum, library and gallery.
Amendment No. 80 is related to amendment No. 79 and both may be discussed together by agreement.
Why is amendment No. 80 related to amendment No. 79? They deal with two separate issues. One relates to the deletion of wording and the other deals with a separate issue.
Does the Senator want to take them separately?
Yes, in order to avoid confusion.
Is that agreed? Agreed.
I move amendment No. 79:
In page 34, subsection (1)(b), line 42, to delete "wholly or substantially".
I confess that I erred. The same wording is used in section 49(2)(a) where it refers to any other institution owned or funded wholly or substantially by the State. I picked up on this wording in section 51 which relates to cultural objects entered in the register and for an uninterrupted period of five years were in the care of an institution owned or funded wholly or substantially by the State. Why is this wording used here? If an institution is funded by the State it should be obligated to comply with the Bill.
Senator Mooney proposes that a cultural object which is entered in the register and is in the care of an institution funded by the State or any public or local authority may be considered for acquisition under this Part of the Bill rather than institutions wholly or substantially funded by the State. We could reach a point where a large number of private institutions would have received funding from the State. If all of them qualified for registration the public repository would be at a disadvantage compared to private institutions.
If the intention is to widen the scope of objects which may be acquired, I would be a little concerned that the amendment would widen the provision to such a degree that it would become not only unworkable but also inequitable in that largely private institutions which have received any source of public funding could find themselves covered by the provision. I have tried to achieve a balance between private property rights and the public interest and to confine the provision to objects in the care of what would commonly be regarded as public bodies. I am happy with that. I came down in favour of that in the interest of being manageable and of trying to direct the State's actions at where the maximum public benefit will fall.
I am grateful to the Minister. If institutions, private or public, receive State funds, and an increasing number of private institutions now receive national lottery funding, they should have responsibility in this regard and I am not quite convinced of the necessity for the words "wholly or substantially". I know this may be overly semantic.
We are talking about compulsory acquisition and I gave the theoretical justification of what I believe is the moral transcendence of the public's rights over individual property rights which co-exist in the Constitution. If one starts extending powers of compulsory acquisition beyond the boundaries of the public institutions in a primary sense, one begins to get on to constitutionally thinner ice.
Who defines "substantially"? At the end of the day, is that an issue for the courts if there is court challenge? Is there an accepted constitutional definition of "substantially"? Can the Minister by order determine what is "substantially"?
It is more than 50 per cent.
Why not include "more than half" instead of "substantially" in such a Bill?
I was somewhat confused by this terminology. Could it not have been a little clearer? I understand the Minister's intent and I think he is suggesting that accepting the amendment would give the impression that it was confined to State institutions. I still do not understand his objections.
In fact, it is quite the opposite. The Senator's amendments would have the effect of so extending the application as to dilute, first, its manageability and, second, its qualification to create the capacity for purchase. I believe it is extending the powers. I do not accept I am giving any ground away in relation to a compulsory purchase power. By extending it over a much wider territory, one is beginning to run into the danger of a court challenge under the private property rights of the Constitution.
All I was suggesting was that it would refer to any other institution owned or funded by the State.
The reality is there is a huge difference between owned and funded. Any funding would qualify in the second category. A provision which would include anybody who had enjoyed any funding whatever would be an extraordinarily wide one.
I believe I have achieved a balance. I would advise Senators that the acquisition of certain cultural objects by the Minister is the purpose of the section. Having regard to the legal advice available to me, I believe I have gone quite far. I can examine the definition but I do not see much scope in it. Ultimately, the main point is that it should relate primarily to public institutions. One could not widen it to any institutions which had ever enjoyed State funding. It would become both unmanageable, unworkable and constitutionally frail.
My point may be a frivolous one. I am intrigued by the use of the word "substantially". Suppose the funding to an institution which has been substantially funded for years suddenly drops to 49 per cent. Does it thereby drop out of the schedule? Where an institution hovers around the 50 per cent level, and may be a little above it one year and a little below it the following year, does it depend on the luck of the draw as to when the issue arises?
Is the Minister stating that retaining the words "wholly or substantially" means in practice that these are State institutions as distinct from any institution which receives State funding? Essentially, does retaining the words "wholly or substantially" in this particular subsection mean in practice that it refers primarily to State institutions and not private institutions?
It can be put in another way; it does not include every private institution that wanted to qualify by the back door. It includes ones which are primarily public in purpose and funding.
On the question of the use of the word "substantially", there is an advantage in retaining it rather than a percentage so that when one drops a percentage point or two one is not arguing about qualification or disqualification. I have gone as far as I can to retain an advantage for the public institutions.
I move amendment No. 80:
In page 35, subsection (4), line 25, after "Oireachtas" to insert ", specifically for the purpose stated in this section and requested by the Minister as a separate Vote under his Department's Estimate".
Again, this relates to moneys and resources. Section 52(4) states:
The price or compensation payable on the acquisition of a cultural object to which this Part applies shall be paid out of moneys provided by the Oireachtas.
My amendment suggests that the words ", specifically for the purpose stated in this section and requested by the Minister as a separate Vote under his Department's Estimate" be there inserted. The Minister and I have exchanged views on this on an earlier section in relation to the allocation of resources. We all agree there are will never be enough money available. I hope there might be enough at some point but, while it is a noble aspiration, the reality is there will always be a need for significant State funding for these two bodies. My concern is that it might interfere with their annual budgetary requirements and that where a situation arose under this subsection, the moneys would not be taken out of the annual Vote of the Department but from a separate payment and that it would not interfere with the bodies' budgetary or development plans.
I cannot accede to this amendment. I know what is behind it. It is perfectly clear, for example, that in practice a major purchase would have to be handled out of a Supplementary Estimate. It is also clear that one should take account of what is available in the purchase of something significant. However, I have dealt recently with cases in which there were savings in other areas, for example. It is best to leave it in terms of the flexibility of the normal financial arrangements.
I do not think there is a problem in any event because if I were to accept the amendment, one is introducing a separate source of funding, an acquisitions fund. The Senator is talking about compulsory purchase powers in legislation which refers to funds provided by the Oireachtas. It is best left as it is.
In the context of the acquisition of cultural objects, section 52(1) states "if it appears to the Minister that the common good requires that the object should be in the ownership, care and control of the State, the Minister may, with the consent of the Minister for Finance, acquire the object by agreement with the owner thereof...". Section 52(4) states that the price or compensation payable on the acquisition of a cultural object, where the Minister decides the common good is best served by its acquisition, shall be paid out of moneys provided by the Oireachtas. From where will that money come? Will it be included in the Estimate for the Minister's Department at the end of each year or will it take the form of a Supplementary Estimate for the specific acquisition of the object, which will not be balanced against the annual subvention to the national boards involved?
I propose to deal first with the tougher part of the Senator's question. If I am being asked to state that the boards shall be immune to the cost of exercising this power, the answer is I cannot do so. On the other hand, if it is being stated that this would involve an exceptional measure — I already indicated what is meant by "moneys provided by the Oireachtas"— I can provide the following assurance.
If one were obliged to make an acquisition for the sake of the heritage of the State and the people, it would be entirely wrong if that acquisition were allowed to deplete the budget of the institution involved. I believe this is the basis of the Senator's point. In that case it would be likely that a Supplementary Estimate would be introduced and the acquisition would not be allowed to dislodge the board from its functions. However, it is entirely different to state that the boards should be entirely immune from the effects of a particular exercise and I cannot do so. With regard to exceptional circumstances where a substantial sum is involved, the exercise of which would dislodge the board from its functions, the more likely mechanism put in place would be the introduction of a Supplementary Estimate.
In section 52(1), is the Minister retaining the power to decide the common good as it relates to the acquisition of an object or is the function being devolved to the board? Subsection (1) states that whenever the owner of a cultural object to which this Part applies requests the return of the object, if it appears to the Minister that the common good requires that the object should be in the ownership, care and control of the State, the Minister may, with the consent of the Minister for Finance, acquire the object by agreement of the owner thereof. I raise this point because the subsection refers to the Minister, not the board.
It is quite clear that the Minister, with the consent of the Minister for Finance, may acquire the object and that is as it should be. The Minister can be advised by the board, but the decision ultimately rests with the Minister.
Perhaps the funding mechanism will be different under the new statutes to establish the boards. However, in recent years the board of the National Library approached the Minister seeking moneys to acquire an object of cultural value. The board was informed that funding was not available to do so. I do not wish to open a can of worms but I understand another cultural institution in the State applied to the Minister for lottery funds to acquire the object. It was subsequently purchased, much to the chagrin of the National Library. It would not be correct if, in the future, the National Library or National Museum wished to acquire an object but funding was refused by the Minister and another cultural institution could then use State funds, either wholly or substantially, to acquire the object.
It is for this reason I am seeking assurances that, if the Minister acts upon a recommendation of the board which he believes to be in the common good, moneys will be made available. I do not wish the Minister to repeat his earlier reply because everyone is becoming tired. I merely want to ensure that moneys will be available if the other elements of the jigsaw fall into place.
I recall providing £100,000 to the National Library for the acquisition of the DeVesci papers. One must remember, however, that the section refers to a compulsory purchase, we are not discussing spending a day at an auction. The Senator is referring to the confusing situation which could arise if an agency asked the Department to develop the capacity to make an offer for an object and another institution bid against it for the acquisition. The section provides the Minister with the power to arrange for the compulsory acquisition of an object. However, as the Senator stated, there must be good coordination and other parts of the Bill deal with this matter.
We engaged in a useful quasi-ideological discussion earlier in the debate, but the State should not be the principle sucker in the land simply because it has the right to purchase objects in the name of the Heritage Council and the people of Ireland. I pay tribute to the dedicated individuals who donated papers to the people of Ireland, who stand with those who sold papers to the people of Ireland at a reasonable cost. There is another group of individuals who sold private papers and papers relating to their areas of expertise at great personal benefit to themselves, sometimes within the country and sometimes outside it. I am aware of the basis of the Senator's argument which relates to what I am trying to achieve.
Has the Minister received representations, or does he retain the capacity to act, in relation to the disposal of important items of Irish furniture from Headford House? I understand these will be placed on auction outside the country during the coming week. Can that happen if the Bill is enacted?
The Senator is correct that, had the Bill been enacted, the difficulties to which he referred, which are a matter of public concern, would not arise. The Bill gives my Department the power to deal with the situation to which he referred. A number of Senators raised this issue with me and I can inform the House that the Heritage Council is involved in active negotiations for the acquisition of the items. The auction was to take place tomorrow but I understand an extra period of time was negotiated. I am happy with the state of the negotiations involving the Heritage Council. This again illustrates the benefit of placing the council on a statutory basis with precise functions and the legislation which did so was introduced in this House.
I remind Senator Mooney that the points he raised in his last question are extraneous to the amendment before the House. I must ask him to confine his comments to matters of relevance concerning the amendment.
Would the Minister agree it is extraordinary that this matter only entered the public domain when an eagle-eyed observer noticed an advertisement in a national newspaper? I presume mechanisms will be put in place when the Bill is enacted to ensure that an alert system will be introduced to prevent this sort of activity. In the context of his reference to compulsory acquisition where moneys are involved, does the Minister have an opinion on old houses that have fallen into neglect?
I am obliged to confine discussion to matters relevant to the debate on the amendment. The Senator's question is not relevant or appropriate to the discussion of amendment No. 80.
I do not wish to challenge his ruling, but I ask the Acting Chairman to read the wording of the amendment.
I read the wording of the amendment and I will allow the Minister to answer the question.
He might then make a judgment more in keeping with the tenor and temperament of the debate, which has been conducted in a pleasant atmosphere. I hope that continues because our deliberations will not last much longer. Under the legislation and the amendment and in the context of the compulsory acquisition of objects he believes are in the interest of the common good, is it the Minister's opinion that there would be an opportunity to acquire or is it only specific to the two institutions? We were talking about Headfort House and the acquisition of objects. It occurred to me that there are many derelict large houses and I wondered if this legislation deals with them.
As regards architectural heritage two good reports were submitted in September, one to my Department and one to the Department of the Environment. Full architectural protection must include not just the facades of houses but also the interiors, including wallpapers and furniture. This legislation will assist in relation to the problem of the export and the registration of items. The buildings themselves would require separate legislation. It is my intention to bring forward such legislation in 1997, resources permitting.
With regard to Headfort House, this Bill would have helped in so far as the export of the furniture is concerned but it would not have assisted in its acquisition because the furniture was not in public care. We will be in a stronger position when this legislation is passed.
Sections 52 to 57 provide a mechanism by which the Minister can make a compulsory order to acquire items. Section 58 enables a person against whom a compulsory purchase order is made to have redress to the High Court for compensation if he or she is not satisfied. I compliment the Minister for the thoroughness invested in the process of the compulsory acquisition of objects. Those who may feel aggrieved have the option of sorting out their differences in the High Court. It is an admirable approach.
Subsection (1) provides a mechanism for an appeal to the High Court and specifies the period of time within which a person may reasonably expect to have the matter dealt with. I am glad the section recommends itself.
Senator Henry raised the issue of permitting the National Gallery to dispose of property. There is an argument as to whether "property" includes the paintings. It is suggested that the National Gallery would have the power, with the consent of the Minister, to dispose of both movable and immovable property. It was not intended that this provision would apply to paintings in the collection of the gallery although it could be interpreted in this way. I have looked again at the detail of the provision and, accordingly, it is my intention to clarify this matter in an appropriate amendment on Report Stage.
I thank the Minister for clarifying the matter and I look forward to his amendment on Report Stage.
I am a little concerned about the functions conferred under section 59(1)(c). Section 60 (1) states:
Sections 25, 33, 34, 35 and 40 shall apply in relation to the National Gallery as they apply in relation to a Board with the modification that the references to a Board shall be construed as references to the Governors and Guardians and with any other necessary modifications.
In effect, that means it refers to the National Gallery. The sections mentioned relate to the issue of entry charges. If this section is agreed it will have the same effect as the section on which we argued in relation to entry charges to the National Gallery. The Minister indicated that over a million people visit the National Gallery each year. Entry to the gallery is free. The Minister has promised to consider the matter of entry charges.
I have no wish to inhibit the commercial or fundraising activities of any of the institutions. However, it should be a matter of fundamental public policy that we should not introduce entry charges to the National Gallery, the National Museum and the National Library.
I support Senator Mooney. It is important that entry to the gallery would be free of charge. Special exhibitions which the gallery hosts incur additional expense and such exhibitions might be treated differently. However, free entry to the institutions is very important.
The Act that governs the gallery is the 1854 Act. At any time the gallery could introduce charges without reference to the Minister. This legislation brings all the cultural institutions under a similar regime. That will be the effect of sections 25, 33, 34, 35, 40 and 60 taken together.
I will examine the issue of charges between now and Report Stage in relation to a mechanism whereby the imposition of such charges would be a policy decision with a measure of accountability in the Oireachtas.
We have discussed the National Museum, the National Library and the National Gallery. How does the Natural History Museum fit into the scheme of things?
There is a lot to be said for integrating them if one could. It is part of the National Museum.
I am grateful to the Minister. More people should go to the Natural History Museum; it is quite superb. I do not want to over-emphasise the point but I wish to advise the Minister that it will be my intention to go down to the wire in relation to public entry charges to our cultural institutions. I am aware of the Minister's thinking in this regard and what he may propose. I do not want to pre-empt the Report Stage debate, but if there is to be any division at this late stage it will be on this issue. I am vehemently opposed to entry charges as a matter of public policy and I believe every Government should adopt that as a permanent feature of public policy.
We have had a very high level of contributions. We have dealt with culture and heritage and all matters relating to them and a great deal of idealism was evident. For that reason I am reluctant to intervene at this stage with an aspect which might be regarded as crude commercialism.
The devil's buttermilk.
In principle, I do not have any objection to what is proposed. However, I am concerned at how widely this section is drafted and I wish to raise a number of concerns.
In view of the nature of these institutions is it wise or appropriate that we should introduce into them what I would, in broad terms, describe as the pub culture? I do not wish to be too dramatic but I can visualise a situation where a coach load of somewhat inebriated and uncultured people would be turned loose within these institutions.
The way section 61 is drafted is quite unusual in relation to liquor licensing. The Minister becomes a licensing authority and he will issue a certificate and the Revenue Commissioners will have no option but to issue a licence on the strength of that certificate. That is a very privileged position for these institutions to enjoy as opposed to those of us who must satisfy the courts, the Garda, the local authority and the Revenue Commissioners. We are also disadvantaged because fundamental to all liquor licences has been section 2 of the Intoxicating Liquor Act, 1927, as amended by the Acts of 1988 and 1995. The licences that will be issued to these institutions will allow trading, in theory, at all times on the premises. The crucial phrase in 61(6) states that: "liquor may be consumed on such premises at any time during which members of the public are permitted to enter and remain on such premises". Should events be so organised, this could mean 24 hours a day. That is a unique advantage for these institutions.
There are other somewhat similar institutions which have been granted a liquor licence in recent times and who have subcontracted that function. It does not require much ingenuity on the part of that subcontractor to ensure that the public has access at all times. Will the Minister reflect on this before Report Stage as it is a totally new aspect of the liquor licensing régime?
There is another point arising from this. How much of the National Library or the National Museum can be utilised as a public bar? What are the constraints? Will there be designated areas or will the entire premises be available for that purpose? All these provisions mean that no offence can be committed and consequently no penalties can apply.
The major institutions mentioned in the legislation are the National Museum, the National Library, the National Gallery, the Irish Museum of Modern Art, the Hunt Museum and the Chester Beatty Library. Lest anyone think that they will turn into all night shebeens or places of the greatest debauchery, let me say that what they are seeking is the right to sell alcoholic drink in their restaurants. With the greatest respect I have to say to Senator Howard that this it is a perfectly normal requirement. At the age of 56 and looking forward to such years as may be allowed to me, I may look forward to a glass if wine if I visit a cultural institution in the future. I do not see why, if I go to the restaurant in one of these institutions, I should be precluded from that enjoyment on the grounds that there are a number of competing, marvellous pubs in the vicinity. It is also important to bear in mind that I have listed the institutions involved.
The notion of a subcontractor is a fantastic construction because such catering arrangements as might be entered into would be accountable to the board and the director and would have to meet the requirements of the institution. I do not think that a situation would arise where the National Gallery was a pub with pictures or that the museum was a pub with objects in the back or that the library was a pub with books on the walls. I do not think it will come to that.
The certification powers I enjoy are the same as those enjoyed by the Minister for Transport, Energy and Communications as regards licensing at an aerodrome. The Senator need not be too worried because this is a specialist licence which already exists in some theatres and, at the other end of the spectrum, at greyhound racecourses. It is to provide a facility such as would fit in with the purposes of the national cultural institutions.
The normal provisions relating to intoxicating liquor licence holders will apply as regards licence fees, tax clearance, etc. They will also be confined to the opening hours set out in the Bill and the standard penalties for non-compliance will apply.
I do not see the board of the National Gallery having an all-night exhibition to facilitate all-night drinking. However, between now and Report Stage I will look at the text to see that the Bill achieves what is intended. I am very much in favour of this section; it is interesting that this was the only part of the Bill mentioned by one of our national newspapers when the legislation was first published but I think it is a normal, modern provision.
I share the concerns of my friend and colleague Senator Howard. Without anticipating the Minister's views, he is correct in this. The provision brings us into line. I do not drink myself so I should declare that interest.
I have no reason for not drinking other than that I do not like it, but I do frequent pubs. In the context in which the Minister has responded to Senator Howard's concerns, those being facilitated are people who enjoy the interiors of our cultural institutions and wish to avail of a glass of wine or beer over a meal.
My concern is with the Minister being involved in granting liquor licences. He has said that a similar provision in respect of granting licences to aerodromes refers to the Minister for Transport, Energy and Communications but why should a Minister be involved? Why can it not be left to the board?
A number of boards and institutions are mentioned in the legislation. As the responsible Minister, I furnish a certificate that the body applying is the body mentioned in this Bill, and the Revenue Commissioners grant the licence.
That was precisely my reading of it. It is a layer of bureaucracy. The board will decide that it wishes to seek a licence and will communicate this to the Minister of the day who in turn will deliberate within his Department and convey his decision to the board and to the Revenue or alternatively, having conveyed his decision to the board, it will go to the Revenue. We have spoken about the board having wide flexibility and autonomy but in this provision it is caught in a bureaucratic act and must proceed along these lines.
The institution is responsible to the Minister who must be satisfied with the reasoning behind this application. Other conditions must also be satisfied — the Revenue Commissioners have their own criteria. This is a mechanism for making sure that it is not casually granted but goes through the proper procedures. It is not the relationship of an ordinary client to the licensing laws — I do not want to provoke Senator Howard into an exposition on that subject but one must be satisfied as to the character of the applicant for the licence, among other things. In this case, the Minister for Arts, Culture and the Gaeltacht is responsible for these institutions and therefore, if they are to make an application, it is appropriate that he know the conditions under which the application will be forwarded. The compliance with licensing regulations is a matter for the Revenue Commissioners.
Is there a form of certification for liquor licences or does the Revenue receive a form of words put together by the Minister to convey the decision? What does the Revenue receive from the board once the decision is taken?
I would communicate to the Revenue Commissioners that there is an application and certify that the applicant is an institution listed under section 61 of this Bill.
This provides that those appointed under this section to become members of the governors and guardians of Marsh's Library would serve under broadly similar conditions to those applying to the boards of the National Museum and National Library. One of these conditions is that such persons could be paid an allowance by the Minister for their participation. This is standard practice, as we have mentioned in discussing another section. Other members of the board of governors and guardians of Marsh's Library do not receive remuneration and, accordingly, it has been clarified that ministerial nominees will not receive such payment. This is by agreement with the board of Marsh's Library, with whom we have had the greatest co-operation and good will in relation to its inclusion, at its request, in this legislation.
I support the Minister's amendment. We should be most grateful to the guardians, the board and all the staff of Marsh's Library for the work they have done for centuries, particularly to Mrs. Muriel McCarthy for her stewardship of that institution. The 1865 Act mentions that the governors of Marsh's Library declined to move their library to part of a building designed to receive it. It is interesting to consider what would have happened to Marsh's Library if it had agreed to move and to be subsumed into the National Gallery/National Library complex. The governors did us a great favour by keeping it as a unique little gem within Dublin.
Does section 62(3) repeal the Act of 1707 or is it incorporated into the new section? I mention this as an historical footnote since it is the earliest legislation referred to in this House — other than the legislation relating to Ulster passed in 1553 under King Edward VI — and I felt that, in passing, one should shed a quiet tear for an Act passed by an all-Ireland parliament.
I am not repealing that Act. In subsection (3) I am giving the derivation of the membership of the board of Marsh's Library. I note in the legilation that:
"the Act of 1707" means The Act of the Irish Parliament... which... provided... for the establishment of the Library now known as Marsh's Library [.]
I felt that, because of its elegance, it was useful to refer to it in section 62(1) also.
I welcome that reference. Do I take it that the Act of 1707 will remain on the Statute Book?
It is a nice piece of continuity. I always refer to these earlier Acts passed by a parliament which admittedly was not the most democratic of bodies but which was representative of the entire island of Ireland. It gives the lie to those who contest the two nation theory. The historical fact is that there was one parliament for the whole island.
Is this a carryover from existing legislation or is it introducing new legislation to exempt all the institutions listed from (a) to (i)? If so, does the same apply to other institutions of a cultural nature across the country or are they rated by local authorities?
The section refers to property occupied on or after the commencement of this section. Why is it necessary to include the word "after"?
For example, we are not yet in occupation of Collins' Barracks. The provision relates to future acquisitions and future occupancy. The museum might move part of its collection to Turlough House in Castlebar, for example, and this provision is to protect such future movement.
The rest of the provision is to create consistency. It provides that any property occupied by certain cultural institutions, bodies whose remit comes within the sphere of arts and heritage, should be exempt from the rate chargeable by a local authority. The provision is designed to ensure that there is and will be consistency of treatment in the matter of local authority rates in respect of each listed body. The museum and library are established as corporate entities.
At present the rating position of this country's cultural institutions continues to be founded on the Scientific Societies Act, 1843, which provides that scientific and fine arts societies are to be exempt from rating. This provision is founded on the definition of the arts in the middle of the 19th century which extended to scientific and fine arts societies. It is not yet established that the National Museum and National Library or the Heritage Council would automatically be adjudged scientific societies for rates exemption purposes.
In addition, while a centrally important cultural institution, the Irish Museum of Modern Art in Kilmainham has managed to retain rates exemption in respect of its activities; the Abbey Theatre, also centrally important, has been refused rates exemption. The Bill, therefore, ensures that certain listed cultural institutions including the National Museum and the National Library, engaged exclusively in the fields of the arts and heritage, should be exempt from rates.
Other provisions enhancing the independence of cultural institutions include a facility permitting the issue of intoxicating liquor licences for certain key collecting institutions. Only those bodies with important collections and under the aegis of the Minister for Arts, Culture and the Gaeltacht will be included. The listed institutions either come directly under the aegis of the Minister or arise from the special arrangements agreed between the Minister and the Arts Council involving the National Concert Hall, the Museum of Modern Art and the Abbey Theatre.
Am I correct in suggesting that this is a pre-emptive strike by the Minister? If it had been left to the good offices of the local authorities concerned, they might have moved very quickly to protect their turf in this regard. Is this essentially an initiative on the Minister's part to protect these cultural institutions? Is it also an indication that he will extend this list? Does he have that right? The section seems to be very specific.
The Minister mentioned the Abbey Theatre. I am amazed that the Abbey Theatre is not exempt from rates. The Minister should include it in this provision. The theatre could have some section of the building set aside for museum purposes.
I am glad the provision will assist the Abbey Theatre. The other matter is to achieve consistency and will assist the institutions.
Does this provision benefit the Abbey Theatre?
Yes. At the moment the Abbey is not exempt and it will be under this legislation.
We should not let the occasion pass without thanking the Minister for including the National Theatre Company, which is effectively the Abbey Theatre, in this section. It is extraordinary that Dublin Corporation did not act on this initiative. This is our most important theatrical institution. Nobody would object to the exemption of the Abbey Theatre from rates, even in County Leitrimwhere we need every penny we can get.
I move amendment No. 82:
In page 39, subsection (3), line 41, after "magnetic tape," to insert "compact disc".
This is very straightforward. It extends the definition of "material" to include compact disc. I am including compact disc because — the Minister refered to this earlier in another context — more and more information on the information superhighway is stored on CD ROM. I know CD ROM is the current technology and I deliberately omitted using that term because it may in the future be superseded by something else. By using the term compact disc, material will be protected under the legislation, irrespective of what format CD it is stored on. The consensus in the industry at the moment is that most if not all present and future information will be stored on compact disc.
I believe that the term "sound recording" includes compact disc but just in case as I agree with the spirit of of the amendment, I will accept amendment No. 82.
I have expressed concern about the position of film archive, the need to ensure that there is definite copyright for film under this section and that the National Library will have a statutory right to copies of film. Has the Minister been able to clarify this situation?
I am aware of the importance of the film archive and the O'Leary collection in particular. On Second Stage Senators raised the issue of material being deposited in the library that might be held in other institutions, such as the film archive. I am pleased to say that the library is currently in discussion with the film archive as to how it might co-operate with the library in the administration of the copyright provisions set out in section 63 as it affects film library material. I am glad to be able to inform the House that I hope to be in a position, as a result of this discussion and once agreement has been reached between the library and the film archive, to use my powers under section 46 to designate the Film Institute of Ireland as a body appropriate to receive deposit material on long-term loan from the National Library.
The film archive owes a great deal to the pioneering work of Liam O'Leary among others. I would like to think that were he alive he would take some satisfaction from the film archive collection being enabled, through the mechanisms in this Bill, to form a cornerstone of a new national collection of film material relating to Ireland.
On foot of representations I have received in recent days from many interested parties, I am also examining whether there is potential for the provisions set out in this section to be further strengthened for the purpose of enabling the National Library acquire library material in relation to Ireland more comprehensively. If so, it would be my intention to bring forward amendments to this section on Report Stage. This has gathered momentum and other bodies are now involved. There have been intimations that Trinity College wishes to be part of these arrangements. Between now and Report Stage I hope to be able to report considerable progress in relation to this.
I thank the Minister. I know of his great interest in film and I am delighted to see that he has moved so far in this direction. One of the most cheering things about this Bill has been the number of representations we have all had from a diverse body of people. It is very good to see that so many people are encouraged by the legislation and by the Minister's attitude to it that they feel if they have good ideas they can bring them forward. I am delighted that some people have contacted the Minister directly rather than coming through some of us.
I thank the Minister for accepting the amendment. I appreciate that the term "sound recordings" covers this. I was concerned about the copyright implications and that some people could get around it. I echo Senator Henry's well deserved kind words to the Minister. It is heartening that he is moving so fast to ensure this important area of cultural life will be protected and enhanced.
Am I to assume from the Minister's comments that he intends to strengthen the film archive? For a moment I thought he was going to say that it will be created and maintained within the confines of the National Library, which does not have enough room to exhibit what it already possesses. The Minister referred earlier to the national attic, which is a pretty good definition of the items which the National Library has not exhibited.
Is the Minister moving in the direction of strengthening, expanding and resourcing the Irish Film Archive and bringing it into line with similar archives in the developed world? As he correctly pointed out, we have an enormous film heritage, not just within the Irish film industry from the 1920s onwards but also in regard to Irish people who developed cinematic techniques in Hollywood. There are films still extant which should be incorporated in the archive. Without asking the Minister to be more specific, is that his intention? Is a legislative device required to enable him to do that or can he do it by expanding the existing resources?
The deposited material is dealt with in the Bill and the National Library deals with funding. The library's discussions with the Film Institute of Ireland in respect of the film archive have been very positive and co-operative. I hope to be able to use the power given in section 46 to put in place the arrangements to which they are coming.
When that matter is sorted out, I want to look at possibilities between now and Report Stage of strengthening the power of the library to acquire material related to Ireland. In other words, when the position of the film archive has been straightened out, I want to look at strengthening the National Library's role in the Bill in relation to acquisition and making it comparable to film archives elsewhere.
The Minister is aware of the prohibitive cost of the maintenance and restoration of film. I appreciate that in embarking upon this imaginative exercise he will, with the best will in the world, be frustrated by a lack of funding. I hope he will use his undoubted energy to ensure that many of these films are not lost. In the Hollywood archives, Technicolor film plates from as late as the 1950s were found to have deteriorated to an irreparable extent. I am sure the Minister is aware of the need to move quickly on this matter. I will encourage him and give him every support to ensure this exciting dimension of the debate is developed further.
This section relates to copyright. Subsection (1) states:
Section 56(5) of the Copyright Act, 1963, is hereby amended by the substitution of "£500" for "twenty pounds".
Will the Minister clarify the meaning of that change?
Section 65 harmonises the penalty level as set out in section 56(5) of the Copyright Act, 1963, in respect of books, with the penalty level set out in this section. A similar definition of the term "publish" set out in this Bill is to become applicable to the provisions in the Copyright Act, 1963. It takes the provisions from this Bill to that Act.
Does it change the original 1963 Act?
We dealt with one part earlier in relation to the definition of "publish" as set out in this Bill. The change relates to the definition of "publish" in relation to books.
Will the Minister explain the implications of changing the penalty from £20 to £500? Perhaps he could refer to it on Report Stage.
We are talking about an obligation to deposit. There is a penalty of £500 for failure to deposit and the penalty in the Copyright Act is being made consistent with that.
I do not oppose that but it is quite severe to increase the penalty from £20 to £500. I presume it means that the National Library is like the British universities of deposit in that, as in the previous section, all printed matter and publications relating to cultural matters must be deposited with the library. Under this section, if one does not comply with that, one will be fined £500 instead of £20. The Minister is in a very severe mood this afternoon in relation to fines.
A sum of £25 in 1963, if one was lucky enough to have it, would, with CPI adjustments, be equivalent to between £350 and £400 today. The extra £100 has been added as a disincentive.
I knew there was a masochistic streak in this proposal.
It is a sadistic streak.
This section relates to the power of disposal and is an amendment of the National Monuments Acts, 1930 to 1994. Subsection (2)(a), which refers to the waiver of ownership in and disposal of archaeological objects by the State, states:
Where, after the commencement of this section, an archaeological object becomes the property of the State, the Director may, at his or her discretion, waive the ownership of the State in such object if he or she is of the opinion that the object is not of sufficient archaeological or historical interest to justify its retention by the State and the Director may dispose of the object by whatever means he or she thinks fit.
We dwelt on this matter in some detail earlier in the debate. I am raising it under this section because I have a fear that the disposal of property which it is decided is not of any great interest to the State could lead to public controversy. Is the Minister satisfied that in granting this power, which seems fairly sweeping in its implications, due caution will be exercised? Is he also satisfied that we will not end up with screaming newspaper headlines about an object which they consider to be of intrinsic value because perhaps an individual decides so? Is he concerned that in such circumstances we will have a cause celébre and that we may go down the same road as we did with the Chief Herald, the Genealogical Office and the Royal Court of Arms etc., because a small vocal minority decide to write to The Irish Times?
This provision allows for flexibility of practice. For example, it allows the Director of the National Museum to decide that a pot in the ground should be left where it is and not be moved to the museum, thereby preventing it from being filled with everything that is rooted up. I do not wish to appear felicitous on this because everything carries its own story, reflects the history of those involved with it and should be treated with great care. Section 67(2)(a) states:
...the Director may, at his or her discretion, waive the ownership of the State in such object if he or she is of the opinion that the object is not of sufficient archaeological or historical interest to justify its retention by the State...
The House will note that, in the interests of gender occupancy of posts such as that of the Director, I have provided for the terms "him" and "her" in this and most other legislation. This provides that if the Director's advice is sought and if the item is less valuable than those which constitute the national collection he or she will have the authority to decide that it may be left where it is.
I thank the Minister for his clarification. Remnants of an old monastery were unearthed during the construction of a new shopping development in Mullingar. Is this the kind of scenario which would give rise to the Director making a decision on site as to whether such objects were of intrinsic value and whether the State could, for example, prevent further excavation?
The National Monuments (Amendment) Act, 1994, enables the Director to act without giving a reason. This provision restricts that power by stating the circumstances in which the Director may so act.
This addresses my concerns. The Minister suggests that the provisions minimise if not eliminate any potential for public controversy because of the checks and balances that are built in.
The Minister is aware that some of my colleagues expressed concern that a definition of "all objects" be included. Is he satisfied that all possible definitions of a decorative art object are included here or is he contemplating expanding it?
It is always open to a Minister to consider how a Bill is working in practice. The export provisions set out in Section 48 gave rise to this question. Section 48(1)(f) refers to objects specified in the Third Schedule. Senator Howard raised this aspect and I drew his attention to section 48(1)(g) which states: "any classes of cultural objects designated by order of the Minister." This enables the Minister to specify by order. It addresses the Senator's inquiry.