To make good law we must always strike a fair balance between the rights of the State and the rights of the citizen. In this case we are concerned about the constitutional rights of a citizen to private property and all the other rights that derive from that. Under this legislation we are authorizing an officer of the State to enter into the privately owned lands of a citizen without being required to give due notice and without any obligation to offer compensation in the event of damage to the land. We are putting no liability on the State. In the event of an accident the liability for compensation will remain with the landowner. The balance between the rights of the State and the rights of the citizen has to be an essential element of all good law and I fear this type of law would not stand up in court. Will the Minister take what I said seriously to ensure that we do not give excessive rights to an officer of the State? If public liability and occupier's liability had been settled, this question would not arise under this legislation.
SECTION 8.
I will try to unravel some of the arguments put forward in favour of this amendment. I hesitate to remind Deputies that we are discussing section 8. In an earlier discussion Deputies proposing this amendment satisfied themselves that we are not talking about armies of people invading people's fields as originally suggested, but about the director or a designated person. The director is there because an object has been found which, not only in its own right but in terms of its position and location, may reveal something of immense significance. The Deputies proposing this amendment have to realise that they are disturbing the balance between the rights of the people and the rights of the private property owner — in this case the landowner — because they are willing to sacrifice the safety of the heritage by insisting that a measure to facilitate quick action will be made nugatory by the requirement that a prior notice be served. The history of the relationship between the Museum and landowners has been one of courtesy and sensitivity and there is no reason to suggest this will not continue. I accept that in legislation one must strike a balance between different types of rights but we also want the legislation to work. There is a danger in putting into a clause in national monuments legislation conditions which are sufficient to render the section useless.
We may have to disagree on this, as I cannot support an amendment which proposes a blanket exemption from liability for landowners. I do not see how section 8 could work if I accept the amendment. I have tried to strike a balance between the rights of property owners and the rights of the people to have their heritage intact.
I will come back to the other issues on liability if necessary. I take very seriously Deputy Quill's point which clearly places the rights of individual landowners above the rights of the people to the common heritage. I thought she has accepted this point earlier when I was making the case for the legislation. I am unequivocal on this. After the definitive decision in the case of Webb v. Ireland when the sovereignty of this country was vested in the people of Ireland, the heritage of Ireland became their property. Legislation must take that into account and we must try to strike the balance with sensitivity. This amendment would render the assertion of the rights of the people nugatory in the face of the rights of private landowners. We may have to disagree on how to strike this balance.
On landowners' liability how reasonable is it for section 8 to carry the burden of the debate on landowners' liability? It is a good political point to make, that it would have been nicer if legislation on that was in place before I introduced this Bill, but I have responsibility for heritage and this is excellent legislation which establishes unambiguously the heritage rights of the people. I am not responsible for the other area but I will assist the committee by giving them reasonable information.
The Law Reform Commission reported on occupier's liability and produced a consultative document which opened up discussions with a number of interested organisations. I understand those discussions are now complete and we may anticipate a final document answering these questions. It is the Government's intention to legislate soon after the submission of the final document. It is not better to deal with occupier's liability in legislation prepared specifically to deal with it rather than trying to deal with it in section 8 of this Bill. I respect the sensitivity of Deputies to the need to strike a balance between issues of private property and the rights of the people to their heritage. I have struck a reasonable balance, and I accept that we may have to agree to differ on this.
I am disappointed the Minister cannot see fit to redress part of the problem created for landowners and occupiers by the Government's reluctance to expedite legislation on owners' and occupers' liability. Deputy Quill and I do not want to give supremacy to the rights of landowners over to the rights of people to their heritage. However, in this legislation, the Minister is giving people right of access to their heritage at the expense of landowners.
The section deals with designated persons or the director but that does not mean that either of these people could not be the subject of injury which could result in compensation claims against the landowner. The Minister, together with his Cabinet colleagues, has responsibility to legislate in this regard. It should not be addressed in a piecemeal fashion here but the Government's reluctance to expedite this legislation has forced us in this Bill and other Bills which come before us to try to build in safeguards for landowners and occupiers. To accuse Deputy Quill, me and other Members who express viwes on this of acting in a cavalier fashion with regard to the rights of the public to have access to their heritage is most unfair. It is a rather feeble effort to defend the Government's incompetence.
For how long must this consultative process continue before there is a coherent legislative response to the Law Reform Commission report? This has continued for far too long already. Under this legislation it is possible to exempt landowners from liability should anything happen to the people specifically referred to here while on their property. Given the inordinate unacceptable delays to date, I am disappointed the Minister will not exempt landowners from liability for certain people. Last year in the tourist season landowners for their own protection, felt obliged to put up signs — admittedly with no legal effect — to deter visitors from visiting scenic areas, national monuments and other archaeological sites. That is serious given the efforts of the Minister for Tourism and Trade, Deputy McCreevy, to increase the number of tourists to this country and to market cultural tourism. It is a glaring example of efforts being frustrated by inadequate legislative provisions. This amendment is not a solution but it will deal with a certain aspect of the problem. As the Minister will not agree to further consider this amendment on Report Stage, I must press it to a vote.
I have been more than reasonable in addressing issues raised by Deputies. I would ask them to consider what acceptance of these amendments would mean. Amendment No. 12 inserts after premises, "the owner of which shall be exempt from liability". If notwithstanding anything in existing legislation the owner or occupier of land on which a national monument is located shall not be liable for any injury or damage arising from work done in connection with public access to the national monument, that would be a blanket exemption.
I have said that legislation on occupiers' liability is promised. I want to be fair to my colleagues who are responsible for such legislation. If the Law Reform Commission produce a consultative document and the consultative process takes place, one is accused of consulting too far. On the other hand, if the consultative process does not take place one is accused of not consulting. The consulation process is over, the legislation is at a very advanced stage and will be ready shortly. The choice is whether to incorporate these amendments seriously damaging section 8 to deal with one category, only to have to harmonise that later in legislation that will specifically address occupiers' liability.
I did not attempt to smear Deputies, but I will not allow Members escape by making arguments about striking a balance. If I am invited to strike a balance between occupiers' rights and the rights of the people to access to their heritage, I will take on that debate. In this legislation, I am removing residual notions that something which was accidentally found, which was central to the people's heritage, enjoyed a designation as treasure trove. I welcome the decision of Chief Justice Finlay, that the moment people declare themselves independent and declare their sovereignty, they acquire their heritage held in common. If that is accepted, surely if something valuable is discovered the director, usually arriving with a trowel and a brush, and a designated person, not an army of people, have the right to go onto the site.
Deputies are right to be sensitive to the position of landowners on whose land is a monument. I am also concerned. Such landowners deserve legislative protection and they will get it. Consultation with the Law Reform Commission is over, legislation is being prepared and will shortly be presented to the Dáil. That is the place to tackle that task, not in this legislation. If these amendments were successful, we would have to align the special position on liability for people under this legislation with the overall adequate provision. I know Deputies hold strong views on this and Deputy Creed is pressing his amendment but, I am afraid, I cannot accept it.
I am getting a little confused by the debate. I too worry about occupiers' liability. I accept this is not solely the responsibility of the Minister and that it must be dealt with by the Minister's colleague, Deputy Taylor, through the introduction of legislation. The Minister has accepted our worries and fears. A number of problems about access to national monuments arose in the last tourist season in north Clare. What will be the procedure once this Bill has been enacted? The Minister outlined specific exemptions. Will such exemptions supersede current law on occupiers' liability? I realise the Minister is not in a position to say what will happen in future and how this will dovetail with future legislation on occupiers' liability, but where do exemptions for access to national monuments stand under occupiers' liability?
We are all concerned at the delay in introducing legislation on occupiers' liability. I am glad the Law Reform Commission has completed the consultation process and legislation can now be prepared. While I urge the Minister to expedite the introduction of this legislation it would be wrong of us to link it to the measure before us because it inevitably would have to be amended very quickly. I do not oppose the thinking behind this amendment and concern has been expressed by landowners. Too much emphasis has been placed on occupiers' liability in the past few years. Continued emphasis on it will damage development in tourism. On a number of occasions this issue was used for political purposes which does not help urgently needed legislation. I appeal to Deputies to withdraw these amendments as the issue will be dealt with in future legislation.
The Labour Party is as committed to and is as aware as anybody of the difficulties of landowners and farmers. Farmers are becoming more reluctant to let people onto their land. There is great concern about the development of a compensation mentality in society. It has to be dealt with in a reasonable way and public liability has to be covered in separate legislation on the problems that arose as a result of this compensation mentality. The assurances given by the Minister should be sufficient for the committee. The Labour Party would encourge our colleague to ensure that legislation is brought before the Dáil this year.
I have no difficulty replying to Deputies de Valera, Leonard, Bell and others. Occupiers' liability as referred to in section 8 affects only the director or a designated person. In such a case, if a person is injured or should liability arise, one would have recourse to the common law. Beyond the assurances I have given, the Programme for Competitiveness and Work has made an explicit commitment to introduce legislation during 1994 to cover occupiers’ liability and that type of legislation will deal more effectively with this matter. I hope it will be in place as soon as possible.
Deputy Leonard raised the same point and is sensitive to the point that other legislation will deal with the issue. I do not wish to score a point but if I had accepted some other amendments which said the director was "invited" by a landowner, it would have changed liability as those with legal training will appreciate. I am trying to strike a balance. Legislation on occupiers' liability will deal with the issue properly. I am only dealing with the director as a designated person. I know Opposition Deputies see this as symbolic of an issue on which they have not yet seen legislation. I respect their right to take that view. I cannot add much more.
Is the amendment being pressed?
Yes.
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Tá |
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Allen, Bernard. Boylan, Andrew. Bradford, Paul. Browne, John (Carlow-Kilkenny). |
Creed, Michael. Deenihan, Jimmy. Higgins Jim. Nealon, Ted. Quill, Mairín. |
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Níl. |
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Bell, Michael. de Valera, Sile. Fitzgerald, Brian. Kirk, Seamus. Kitt, Michael. Leonard, Jimmy. Moffatt, Tom. Morley, P. J. |
Foley, Denis. Higgins, Michael. Kenny, Sean. Moynihan-Cronin, Breeda. Pattison, Seamus. Ryan, Eoin. Shortall, Róisín. |
Amendment No. 13 is ruled out of order.