Seanad Éireann - Volume 114 - 29 October, 1986
National Monuments (Amendment) Bill, 1986: Second Stage.
Question proposed: “That the Bill be now read a Second Time.”
Minister of State at the Department of Finance (Mrs. A. Doyle) Minister of State at the Department of Finance (Mrs. A. Doyle)
Minister of State at the Department of Finance (Mrs. A. Doyle): I am happy to introduce the Second Stage of the National Monuments (Amendment) Bill, 1986. Everybody in this House is aware of the importance of our architectural and archaeological heritage and of the need to protect it adequately. When we realise that it is over 50 years since the principal Act came into force and more than 30 years since an amending Act was passed, we must question if the legislation is now grossly out of date, or was it so good that it stood the test of time. The answer is a little of both. Let us hope that this piece of legislation will also prove to be effective for many years to come.
The main provisions of this Bill are not entirely new. On two previous occasions Bills of similar content were introduced in Dáil Éireann, the first by the present Minister for Finance in 1978 and the second by Deputy Donnellan in 1980. Both attempts were resisted on the grounds that comprehensive legislation was in preparation. It would have been better to have allowed the proposals to go through. We could have been spared some of the heartaches of the past eight years. Besides which, the comprehensive legislation proved illusory. Important  issues concerning the constitutional right to private property and other matters were coming before the courts. Some were resolved, others remain to be resolved. It is not possible today and will not be for quite some time to have the definitive answers which would enable comprehensive legislation to be drafted.
The Bill which we are now discussing does two things. It up-dates the existing legislation and it breaks new ground. One important area requiring up-dating is the level of the fines which can be imposed. Under the present Acts, the highest fine that can be imposed is £50. Such an amount is derisory by present-day money values. Of course the term of imprisonment of six months which might accompany, or substitute for, the fine still has its deterrent force. Under the new Bill, the level of fines will go up to £1,000 for the more serious offences. Some still consider these too low. They may even wonder if we are losing our nerve especially if we consider how severe the law was in the past. It is worth recalling that the first enactment for the preservation of monuments in these islands, the Act of the 8th and 9th Victoria, chapter 44, section 1, passed in 1845 made it a misdemeanour, punishable by imprisonment not exceeding six months and a public or private whipping, once, twice or thrice, at the discretion of the court, to unlawfully or maliciously destroy or damage any picture, statue, monument or painted glass in any church, chapel or other place of worship; or any statue or monument exposed to public view.
The level of fines and penalties is in the end the test of our seriousness. Not that we wish to err by excess but we must show that we are in earnest when it comes to preserving our heritage. Can the Members present visualise a recent occurence where a farmer asked an official of the Office of Public Works on the telephone the amount of the fine for destroying a monument because, as he said, “if it is the right amount I will go ahead and bulldoze the monument”. Hereafter if you find an archaeological object and fail to report it, or falsely report, you may be fined £300 instead of  £10. If you excavate in search of archaeological objects without a licence, you can be fined up to £1,000 instead of £25 as heretofore. If you bury a corpse within a national monument in contravention of a burials prohibition order, you can be fined up to £300 instead of £20 as of now.
In many other ways too, the Bill up-dates the present law. However, its main thrust is to face the new challenges of today. Heritage preservation has been marching forward in a more united fashion recently. The European countries have been co-ordinating their efforts through the Council of Europe. There are some milestones along the way. The year 1975 was European Architectural Heritage year. Its purpose was to call attention to Europe's rich and varied architecture and the unique character of her historic towns which was fast disappearing through neglect, demolition and ill-considered redevelopment. It sought to sound the alarm and produce action before it was too late. That year produced model conservation projects throughout all the countries which became involved. It generated much interest in Ireland also. It culminated in the congress on the European Architectural Heritage Year held in Amsterdam from 21 to 25 October 1975 which signalled the formal adoption of policies of integrated conservation. No longer was the preservation of the heritage to be viewed in isolation. It was to be built into the planning process. Local authorities were to be more intimately involved. There should be citizen participation also. Ireland took a lively interest in these proceedings and participated in the subsequent drafting of the convention for the protection of the architectural heritage of Europe. This convention was signed by my predecessor in office, Deputy Joe Bermingham, at Granada, in October last, and I am confident that it will be brought before the Oireachtas for ratification in due course.
The reconstitution of the National Monuments Advisory Council on a wider academic basis and under the new title of the Historic Monuments Council is  designed to be a major factor in the implementation of integrated conservation policies. It is a body which will have to be consulted in regard to all proposals which affect heritage properties. I hope to chair the first meeting of the reconstituted council within the next fortnight. I also hope many of the issues that will be raised by the public and here in the Seanad can be channelled through our advisory council when it comes to considering them at Committee Stage.
Integrated conservation will be carried a step further by the declaration under this Bill that all pre-1700 AD buildings or sites rank as historic monuments and qualify for protection. This, of course, does not mean that the national monuments legislation is not also concerned with post-1700 structures. There is nothing in the Bill or in the National Monuments Acts which precludes the OPW from taking protective action in regard to such buildings. The commissioners already have in their care a small number of post-1700 buildings as national monuments and I need hardly mention that the commissioners also look after a number of post-1700 buildings which are of architectural or historical importance and which are in use for State purposes. Furthermore, the new concept of “Archaeological Area” is introduced. This would cover in a rural context an extensive site such as that of an ancient field system. In an urban context it would cover topographically definable areas of archaeological importance and, in particular, areas of original or medieval settlement.
It is never sufficient, however, to take unto ourselves powers of protection without going to the trouble of identifying the buildings and sites which make up our heritage. Back in 1666, the Boy King Charles XI of Sweden, with the help of his mother and council, drew up the most comprehensive monuments decree that could be conceived. Although he was too young even to sign it on his own behalf — his mother, Hedvig Eleonora had to append her name to the royal proclamation — it gave Sweden a head start in heritage preservation that no other  nation could equal. As a result, the Swedish people have been conscious of their heritage in a way that others have not been. Nevertheless, this has not meant that monuments in Sweden have not been destroyed for the simple reason that many monuments had not been identified and, in fact, the local museums on whom the survey work has been devolved are still engaged in the identification of the heritage. If we had achieved our objective of bringing in a comprehensive Monuments Bill which gave blanket protection to all historic monuments, this still would not have sufficed. The two things have to go hand in hand, identification and protection.
I am happy to say that the work of identification has been proceeding at a more rapid pace recently. On 27 May last I launched the archaeological inventory of County Louth: sites and monuments records for Counties Meath, Carlow and Wicklow and reports on the urban archaeological surveys of Counties Laois, Offaly and Dublin city. Further sites and monuments records for Donegal and Wexford are to follow later this year and by the end of the decade such records will be available for the entire country. The availability of these surveys to planners, to farm development officers and to the public generally will make the task of protecting our heritage much easier for a start.
Under the new Bill, a register will be established. Entry into this register of a monument or an archaeological area will mean that an owner proposing to do some work to the monument, or within the area in question, must give two months notice to the Commissioners of Public Works. This will give time for a decision to be reached as to whether or not the heritage interest in the site should be recorded by archaeological excavation, if not already recorded, and the site then should either be given legal protection or allowed to be utilised as desired by the owner for development or otherwise. Monuments and areas entered in the register may also be registered in the Land Registry as burdens affecting land. The effect of this would be that persons  buying land would know if a protected site or monument encumbered the land. This is, in fact, a sincere attempt to avoid the heartbreak which can occur when a person buys land for development and subsequently finds his plans halted because a monument or archaeological area of which he was not aware is found to exist there. It is not possible, however, to provide for every situation that may arise. No matter how comprehensive the survey carried out, something unsuspected may still turn up. Ploughing or land clearance reveals souterrains used for the storage in olden times and as places of refuge when danger threatened. Study of urban buildings may discover features indicating a history going back further than anybody suspected. These are part of the hazard of living and while we strive to ameliorate the adverse effects of such discoveries, the old adage caveat emptor must still apply. But by implementing the measure now before us, we can progressively eliminate the problem.
I now turn to another area that is new; the control of metal detecting. We are all aware, I am sure, of the damage that has been done to archaeological sites by treasure hunters. Reports have been received from almost every part of the country of sites which have been scarred by their operations. Coins and other objects providing valuable dating evidence have been removed from their context. This represents irretrievable loss and it is clear that something has to be done about it.
On publication of this Bill, there was an outcry from groups representing the users of metal detectors. It was alleged that under the Bill one could not use a metal detector even in one's own back garden without committing an offence. There was over-reaction in this. On the other hand, some archaeologists have said that we are not going far enough, that metal detectors should be banned altogether.
I am convinced that most persons will find the provisions of this Bill adequate and reasonable. Up to the present, it would have been necessary to catch an  offender red-handed in the act of extracting archaeological objects from the ground to be sure of achieving a successful prosecution. This Bill puts the shoe on the other foot. Anybody caught with a metal detector at a protected monument or site is liable to conviction unless he can prove his innocence. At the same time, persons using metal detectors for legitimate purposes such as mineral prospecting, and tracing pipes and cables have no need to fear that they will be inconvenienced in any way.
What of treasure hunting? Treasure hunters using metal detectors may no longer bring them on to protected sites on land or under water without a licence. What then if they use them at archaeological sites which have not as yet been afforded protection under the National Monuments Acts? If a person armed with a metal detector is found using it at a known archaeological site it will be presumed under this law that the device was being used for the purpose of searching for archaeological objects and he or she will be guilty of an offence.
Does this mean that treasure hunting with metal detectors is being made totally illegal? No, provided those treasure hunters keep away from known archaeological sites, and that they are not specifically searching for archaeological objects. The great problem has been that, in the past decade or so, one archaeological site after another has been ransacked by the users of metal detectors.
Holes have been dug all over certain sites. The Hill of Tara itself has indications of such probes. This is appalling vandalism and the perpetrators cannot be unaware of the damage they are doing. Bodies representing groups of metal detector users insist that their members observe a very strict code and that a few people have been giving a very bad name to the whole fraternity. That is undoubtedly true.
The problem, moreover, is not confined to Ireland. The report produced by the Parliamentary Assembly of the Council of Europe on the subject in 1981 under the joint editorship of Deputy  Flanagan and Mr. Alan Beith indicates that concern is being felt in all the countries of the Council of Europe in regard to this problem. The Parliamentary Assembly in fact in its recommendation R. 921 (1981) invites Governments to respond to the problem of affording full legal protection to all archaeological remains. This, however, has not been considered sufficient because one would still have to catch an offender in the act of interfering with an archaeological site. Hence it has been found necessary to build into this Bill the presumption already referred to of such interference where a person is found in possession of a metal detector at a site of known archaeological interest.
While it is not the intention of the Bill however, to outlaw all use of metal detectors as a hobby, it is well to remember that treasure hunting almost always involves breaches of the common law. There is trespass on private property, interference with such property and, possibly, theft of property. I consider the provision necessary and fully justified.
The next major development which this Bill has to deal with is that of underwater archaeology. The proliferation of amateur diving clubs has inevitably forced the pace here, particularly because of the number of historic wrecks being discovered. This, in turn, has revealed a certain imbalance in our situation. On the one hand, we have the increasing capacity of sports divers and others to discover historic remains preserved under water, whether in lakes, rivers or in the sea. On the other hand we have a dearth of archaeologists and conservation facilities to deal with this heritage area. One must pay tribute to the work of the Maritime Institute of Ireland in persuading a significant number of the diving fraternity to cooperate in the preservation and recording in situ of wrecks and artefacts under water. We must also recognise the work of the CFT or Irish Underwater Council in training so many amateur divers and bringing their members to a high level of performance and of observance of safety procedures.
 Indeed only last week I was presented with the outline survey of the most important wreck, the Queen Victoria, which was done at the instigation of the Maritime Institute with the total co-operation of the Office of Public Works and involving three different sub-aqua clubs and divers who gave of their time voluntarily and I would like to commend all concerned. It is but a beginning; we have to build on that outline survey.
The question of the increased capacity to locate objects of historical interest under water and the limited academic and conservation resources to deal with the discovered material has engaged the attention of the Council of Europe. In 1978 the Parliamentary Assembly of the Council of Europe published a 200 page report on the matter, following which an international committee was convened to draft a convention for the protection of the under water cultural heritage. While this convention has not yet been open for signature, the final draft represents a broad agreement on how this heritage should be protected.
The present provisions of section 3 of this Bill are in line generally with the relevant provisions of the draft convention. One of the significant features of the draft European convention is that it avoids interference with the rights of identifiable owners, the law of salvage and other rules of maritime law, these being considered to be too useful to be set aside, leaving a vacuum to be filled with new law which would, in turn, have to be tested in the courts.
What section 3 does is to introduce sufficient controls to ensure that satisfactory recovery and conservation procedures are followed. It is to be understood, of course, that the Commissioners of Public Works would never issue a licence to conduct salvage operations at the site of an historic wreck unless they were satisfied that the operation would be subject to adequate archaeological supervision. However, once such an operation has been authorised, the existing machinery of salvage law and the role of the receiver of wrecks under the Merchant Shipping Act, 1894, would  come into operation so that salvage claims and claims to ownership rights could be dealt with.
While discoveries of historic wrecks have provided the motive power to bring us to this point in our legislation, from an archaeological point of view wrecks are but one aspect of the very wide field of underwater archaeology. Crannogs and other early habitation sites have been preserved intact over many centuries by reason of being underwater. The section is so drafted that it may be used to protect such sites as well.
The reference to the continental shelf arises from the fact that historic wrecks are occasionally located in the course of offshore oil exploration. Already the licences issued to offshore operators include a requirement to report any such finds. The next logical step is to be able to afford some sort of protection to such discoveries. Obviously there is no question of policing the entire area of our continental shelf but it is important to have the power to intervene if the need arises.
The Bill provides for the setting up of the Historic Monuments Council. This council will have a broader academic base than the National Monuments Advisory Council which it replaces. It is hoped as a result that greater attention will be given to its recommendations. As successor to the National Monuments Advisory Council, it will be a prescribed authority under the planning regulations for the purposes of referral of planning applications which affect sites of archaeological or historical interest or buildings of artistic, architectural or historic interest.
Because of the heavy academic representation on the new council there is of course, less room to accommodate representatives of local archeological societies. However, it is felt that their real place is on the historic monuments advisory committees which local authorities are authorised to establish under section 22 of the Principal Act as amended by section 14 of this Bill.
A problem with the old council was that the terms of office of all members  lapsed together so that a hiatus would occur between the lapsing of one council and the reappointment of the next. This problem is now overcome by an arrangement where half the members' terms will lapse after three years while half will continue for six years. This will mean that, at no future time, will all members' terms lapse together.
The remainder of the provisions in the Bill, while of minor order are nevertheless useful and necessary for the proper protection and management of our heritage of monuments and sites.
I commend the Bill to the House.
Mr. Mullooly Mr. Mullooly
Mr. Mullooly: There are many who would regard the measures contained in the National Monuments (Amendment) Bill, 1986, as being long overdue. There are also many who would regard them as being too little, too late.
The Bill proposes to amend and extend the National Monuments Acts of 1930 and 1954 and to make further provision for the protection and preservation of national monuments and archaeological objects. It includes measures to deal with the use and possession of detection devices such as metal detectors. It also makes provision for the protection and preservation of historic wrecks. Other sections in the Bill, as the Minister has stated, provide for the establishment and maintenance of a Register of Historic Monuments and also for the reconstitution of the former National Monuments Advisory Council under the new title of the Historic Monuments Council. Penalties provided for in the Principal Act are increased and new penalties are introduced. As in most Bills which have come before the House in recent times, provision is made to enable fees to be prescribed for consents and licences granted under various sections. It would now appear that a consideration in relation to every piece of proposed legislation is the extent to which it can be used as a revenue raising device.
I support the Bill in a general way. Anyone would have to support the Bill in so far as it goes, but one is entitled to  ask if it goes far enough or whether it should go much further. Sadly, in recent years many important archaeological sites throughout the country have disappeared or have been destroyed as a result of modern development. Historic earthworks in general and ring forts in particular have greatly suffered as a result of the amount of land reclamation that has been carried out in all parts of the country in recent years. I am not suggesting that all of the damage and destruction which occurred as far as these earthworks are concerned was deliberate or intentional. I accept that quite a lot of it was probably unintentional but certainly some of it was definitely deliberate. The Minister in her speech referred to the case of the particular developer who phoned the Office of Public Works with the query which she mentioned.
It is generally accepted that, according to the best estimates, hundreds and, possibly thousands, of historic sites and monuments have been totally destroyed. For centuries one of the greatest protections that such sites had was the superstition which existed, particularly in rural areas, especially in relation ring forts and fairy mounds. This superstition ensured these sites were not interfered with but now it seems to have disappeared completely. Therefore, it is vital that it be replaced with some other form of protection. That protection can only be provided through effective legislation which should be strictly enforced.
Vandalism and greed have also contributed in no small way to the destruction and disappearance of part of our archaeological heritage. The Irish Times of Saturday, 27 September 1986 reported the unauthorised removal in 1984 of five decorated early Christian grave slabs from a monastic site in Carrowntemple, County Sligo. The carved slabs were stated to be worth an estimated £10,000 each on the United States art market. They were part of a set of ten carved stones at Carrowntemple, believed to date from between 800 and 1000 A.D. The stones were elaborately decorated with Celtic crosses, spirals, abstract designs and, in one case, a full human  figure. According to that Irish Times report a National Museum spokesman described them as “unique and irreplaceable”. To make matters worse, this is not the only incident that has occurred in County Sligo. The report continued:
Three similar carved stones are missing from another medieval site at nearby Mount Irwin, also in County Sligo, and there are fears that several of the estimated 30 to 50 early Christian monastic sites and cemeteries in County Sligo may have been looted. The three Mount Irwin stones are believed to have been smuggled out of Ireland for sale in the US.
A spokesman for the Board of Works, which is responsible for the conservation and security of ancient monuments, said yesterday it was “practically impossible” to give an accurate estimate of the value of the Carrowntemple slabs. But a comparable carving had been sold at Sotheby's last year for £12,000, he said.
The report then quoted a spokesman from Sligo County Council who stated that the council owned the cemetery in question and that the items referred to had been removed from it without their knowledge or permission. He then went on to say that a full statement of the facts of the case had been lodged with the Garda and that the council were anxious a prosecution would be taken and the culprits brought to justice. However, the report concluded with the following paragraph:
But official sources in Dublin cautioned yesterday that a successful prosecution was doubtful because of legal difficulties in establishing ownership of the carvings, and uncertainties in the law relating to unlisted national monuments and archaeological treasures generally. Last year the State withdrew from a similar case in which a German national was appealing a District Court conviction relating to the theft of stone carvings from Clonmacnoise. Three of those carvings have never been recovered.
 That report by John Armstrong gives some idea of the extent to which archaeological objects are at risk. However, in case anyone thinks that what happened in County Sligo was an isolated incident, I should like to refer to a further item, again by John Armstrong, which appeared in The Irish Times of Saturday, 25 October 1986, exactly four weeks after the report to which I have just referred. Last Saturday's report was headed “Stolen carving ripped from wall”. This report referred to the theft of a unique early Christian stone carving this time for a 7th century monastic site at Inis Caltra on Lough Derg. The report went on:
The carving of an interlaced cross inset with abstract designs was ripped from steel brackets embedded in a stone wall.
A spokesman for the Office of Public Works is quoted as saying that they were absolutely dismayed by this latest outrage. He went on to add:
We will obviously have to re-examine our whole policy of leaving historic monuments in their natural environment in the light of this and other recent developments.
The report then referred to the removal of the five stone carvings from Carrowntemple and the reports of systematic looting of early Christian sites at other locations in County Sligo and along the west coast. In relation to the Inis Caltra theft, the report went on to say:
The director of the National Museum, Dr. Brendan O'Riordan, said yesterday he was “horrified” by the theft, and he appealed to people in the area to report any suspicious traffic between Lough Derg and the mainland to the gardaí. He said: “This kind of vandalism has become a serious threat to parts of our national heritage. The best defence against it is the vigilance of local people.”
According to the Office of Public Works the Inis Caltra carving—
“...a very beautifully decorated and  important artefact” — was stolen within the past four weeks. The steel clamps holding it upright against one of the original monastery walls were broken with a crowbar or hammer, and the carving lifted out. “It has been reported to the gardaí but so far they have drawn a blank,” the spokesman said.
Inis Caltra, one of the most important early Christian sites in County Clare, contains the ruins of five churches, the earliest dating from the 7th century, and a round tower. Brian Boru is said to have built one of the churches and the site was abandoned during the 14th century or the 15th century. It later became a place of pilgrimage.
According to Dr. Liam de Paor of University College, Dublin, who excavated part of the site during the 1970s it is now “virtually impossible to safeguard monuments left in places where they had been perfectly safe for hundreds of years”.
Dr. de Paor added that another stone cross had been stolen from Inis Caltra some years ago and never recovered. There were suspicions that some of the looting was carried out by “well heeled tourists” on boating holidays on the Shannon.
If I wished I could catalogue many other incidents in relation to our archaeological heritage in order to establish the extent of the destruction and vandalism that has taken place and is taking place. However, that is not necessary. Everyone who is interested in these matters realises that the situation is serious. Clonmacnoise, for instance, has lost several of its carved tomb slabs. Souvenir hunters, treasure seekers and amateur archaeologists have done untold damage in the vicinity of many of our more important sites, not to mention the damage which has undoubtedly been caused to lesser known sites in every part of the country.
The widespread availability and use of metal detectors in recent years led to a situation where every archaeological site  in the country was at risk from treasure hunters. I am sure it will never be possible to quantify the amount of damage been done over the years by such people. I am glad this Bill makes some effort to control the use of detection devices, such as metal detectors, and to provide penalties for their unauthorised use for the purpose of searching for archaeological objects. The Bill also makes it an offence to bring one of these devices onto the site of a protected monument, archaeological area, or wreck site. However, I wonder if the Bill goes far enough. I believe serious consideration should be given to the introduction of a licensing system for metal detectors and similar detection devices and that it should be an offence to own or be in the possession of such a device without being the holder of a current licence.
The advertising of detection devices, such as metal detectors for treasure hunting, should also be prohibited in my view. I also believe the law should be strengthened in relation to the whole area of treasure troves. All treasure trove should automatically become the property of the State. There should be very severe penalties for non-disclosure. There should be no question of compensation being paid to anyone finding treasure trove. The laws of trespass, in addition to the other relevant laws, should be vigorously enforced against anyone found searching for treasure or for archaeological objects on property other than their own. The damage that can be done by the treasure hunter or the amateur archaeologist can never be over-emphasised.
The point is very well made in the last section of that excellent booklet entitled “Irish Field Monuments' which was published last year by the National Parks and Monuments Service of the Office of Public Works. The section, on page 23, is headed “Archaeological Excavation” and it states:
Modern archaeological excavation is a highly skilled activity requiring much expertise in the recovery of the evidence and in its interpretation and publication. Contrary to popular opinion  archaeologists do not excavate in order to find gold or other valuable objects. Rather their intention is to get the maximum information about the past from the ground. Objects found in an excavation are important principally because of their recorded association with other objects, structures, layers or features. For this reason it is important that unqualified persons should not undertake archaeological excavation and if by accident a discovery is made everything should be left as it is without any further uncovering of the object or feature or any other disturbance of the immediate area until an official inspection has been made.
I believe that is a message which cannot be over-emphasised.
Another important provision of the Bill is the section which enables the Commissioners to make orders protecting wrecks on the seabed or in inland waters. This section also makes it obligatory to report the discovery of historic wrecks or ancient objects under water. It prohibits interference, dumping, surveying, diving and salvage involving such wrecks or objects by making these operations subject to licence. This section of the Bill is very welcome.
As we approach 1988, which is the quadricentennial of the loss of the ships of the Spanish Armada around our coast, it is inevitable that increasing interest will centre on these wrecks and that, therefore, they require urgent statutory protection. In view of the rapid advance of salvage technology this is a very necessary and important section of the Bill. However, I have one reservation about this section, that is, that it appears it will apply only to wrecks which are more than 100 years old. If this is the case I would be very interested to hear why 100 years and not 50 years or 60 years are mentioned. In my view 50 years would be a reasonable period after which ownership of a wreck should lapse and pass on to the country in whose waters that wreck lies. Surely 50 years would provide any owner with ample opportunity to salvage his wrecked ship. If we do not change  the 100 year condition it will mean that wrecks which only date back to the early part of this century or to the First World War will not be protected for many years to come. With the rapid advance in salvage technology the likelihood is that they will require statutory protection long before that.
We are told in the explanatory memorandum that the concept of an historic monument is being introduced in the Bill to cover the generality of monuments so as to allow the title “national monument” to be reserved for those whose protection is of national importance. According to the Bill the term “historic monument” is intended to include any monument associated with the commercial, cultural, economic, industrial, military, religious or social history of the place where it is situated or of the country and also includes all monuments in existence before 1700 A.D. Section 5 of the Bill lays down that the commissioners shall cause to be established and maintained a Register of Historic Monuments. This register will contain the name, location and a brief description of all historic monuments and archaeological areas which are known to the commissioners at the time when the Act comes into force or which became known to them afterwards.
The monuments and archaeological areas entered in the register will enjoy a considerable degree of protection since the owner will not be permitted to carry out any work affecting the monument or the archaeological content of the area without giving two months prior notice to the commissioners. However, since a full archaeological survey of the country is still only in the early stages of being carried out it is inevitable that many important monuments and sites will not be included in the register. I believe that there are steps which can be taken which will ensure that omissions will be reduced to a minimum.
In many parts of the country there are very active historical and archaeological societies whose members would be only too delighted to assist the commissioners in ensuring that the register would be as  accurate and as complete as possible in relation to their areas of operation. The commissioners should seek the assistance of such groups through public advertisements, requesting submissions from them in relation to the compilation of the register. I would like to pay a tribute to the various archaeological and historical societies around the country who are doing such excellent work, first of all, in creating an awareness of our many historic monuments and sites and also for playing such an important part in the preservation of the sites.
Some local authorities also over the years have taken an active interest in identifying, surveying and preserving various relics of the past in their areas. I am pleased to say that the local authority of which I have the honour to be chairman, namely, Roscommon County Council, have been in the forefront in this regard. Several years ago Roscommon County Council carried out an archaeological survey of the county. The records of that survey, which involved the inspection of over 2,200 sites, are available in the County Library headquarters in Roscommon town. I am sure that other local authorities also have carried out similar surveys. I feel that the results of such surveys would be of great assistance to the commissioners in ensuring that the proposed register is as complete as possible.
The Bill also provides for the reconstitution of the former National Monuments Advisory Council under the new title of the Historic Monuments Council. It would appear that the functions of the council will be mainly advisory although the wording contained in the subsection is that “it shall be the function of the council to advise and assist the commissioners”. Perhaps the Minister will tell the House if or how it is envisaged the council might assist the commissioners other than with advice.
I hope that the advice given by the council will always be treated very seriously and acted upon by the commissioners. I would like to see a situation where the council would be the policy  makers and the commissioners would be obliged to implement the policies determined by the council. However, as the section is drafted it would appear that the commissioners could ignore the advice of the council in relation to any matter. The Minister should consider strengthening this section of the Bill so that the advice of the council, certainly where that advice was unanimous, would have to be acted upon by the commissioners.
This Bill envisages that the council will consist of 18 members nominated by various individuals and bodies and appointed by the Minister and that the Minister will also appoint one of the members as chairman. The representation set out in the Bill should be extended to include the three other representatives. This would increase the membership of the council to 21 but I do not think that to increase the number to 21 would make it too unwieldy. I believe the additional representation which I have in mind would be beneficial to the council, first, in their public image and, secondly, in carrying out their role and functions.
In view of the involvement of the Minister for Education with the National Museum and because of the educational dimension which attaches to the protection and preservation of every part of our cultural heritage, I believe that a representative of the Minister for Education, nominated by the Minister, should be a member of the council. Because of the involvement of local authorities in the ownership and guardianship of historic monuments, because of the provision in the Bill that a local authority may establish an historic monuments advisory committee and also because of the fact that heretofore the majority of local authorities did have national monuments advisory committees, there should be local authority representation on the proposed council. The appropriate body to nominate such a representative would be the General Council of County Councils.
The local authorities will have an increasingly important role to play in relation to our historic monuments in the years ahead. Much needs to be done in  the areas of providing proper public access to the various monuments and sites, proper signposting and also information plaques describing the archaeological significance of the site or monument in question. For all these reasons I appeal to the Minister to give favourable consideration to the inclusion of a nominee of the General Council of County Councils in the membership of the Historic Monuments Council.
My third suggested representative is a representative of the agricultural community. The vast majority of the historic monuments and sites throughout the country are situated on private property or the means of access to them are through private property. The goodwill of the farmers and landowners in question is vital and their co-operation is essential to the long-term success of any scheme for the development, preservation and protection of our archaeological heritage. That is why I believe their interests should be represented on the council. The most appropriate body to nominate such a representative is the General Council of Committees of Agriculture.
The General Council of Committees of Agriculture is the most authentic voice of Irish agriculture in the country at present. Its membership is drawn from the committees of agriculture throughout the country. The committees consist of elected representatives of the farming community, together with representatives of all the various rural and farming organisations. The General Council of Committees of Agriculture would be the ideal body to nominate a representative of farming interests for membership of the Historic Monuments Committee. I hope the Minister will be prepared to give favourable consideration to extending the membership of the council to include the three interests I have mentioned. Their inclusion would strengthen and benefit the council and would ensure the widest possible support for their aims and endeavours.
I do not intend to go into detail as far as the other provisions of the Bill are  concerned. In so far as they will assist in achieving the objectives of the Bill, I welcome them. I look forward with my colleagues to giving every section of the Bill the type of detailed scrutiny it deserves when it reaches Committee Stage. I hope we will introduce amendments which will improve the Bill. I have given some indication of the main areas in which I believe the Bill could be improved. Perhaps the Minister will consider bringing forward amendments which will embrace some of the suggestions I have made.
I will conclude by reiterating the general welcome I have given to the Bill. I come from a county which has a great wealth of historic sites and monuments dating from every age and ranging from the ring forts and megalithic tombs of the royal site of Connaught at Rathcroghan to the magnificent ruins of the Cistercian Abbey in Boyle, founded by Abbot Morris O'Duffy in 1161. We have crannogs and cairns, ruined castles and churches. From more recent times we have the burial places at Kilronan of Turlough O'Carolan, the last of the great harpers, and the burial place of Douglas Hyde, the first President of Ireland, at Rathra, near Frenchpark. These memorials of the past stand like so many milestones marking the advance of civilisation and the progress of history from the earliest times to the present day. It is our duty in this generation to take whatever steps are necessary for their protection and preservation. I welcome this Bill which is a significant step in that direction.
Professor Dooge Professor Dooge
Professor Dooge: It is usual when speaking to a Bill to say whether one welcomes it or that one is disappointed with it. I find myself in both moods in regard to this particular Bill. The actual items that are included in the Bill are indeed welcome, but I find at this stage the scope of the Bill, as introduced, indeed a disappointment. It has long been clear, not only to professional archaeologists but also to practising politicians, that our code based on the 1930 Act, as amended by the 1954 Act, is no longer  capable of dealing with the situation. It is the normal task of professional archaeologists to document the remote past and to record the wars and the social life of those remote ages. For the past 20 years our archaeologists have had to take time off in order to document the present and to document the growing danger to our heritage and the growing crisis in this regard.
The statements that have been made and the reports that have been prepared have not been ignored by politicians. The Minister for Finance, Deputy John Bruton, interested himself in 1978 in the preparation of a Private Members' Bill. In 1980 a Private Members' Bill was introduced into Dáil Éireann, sponsored by Deputy John Donnellan, in order to deal with the really urgent problems. If we look at that Private Members' Bill of 1980 — I took the trouble to take it out of the Library in order to do so — what do we find in it? We find section 3 dealing with the question of sea wrecks, section 8 dealing with the use of electronic devices and section 7 dealing with the problem of finding. We had already in the Private Members' Bill, which was the National Heritage Bill, 1980, the key problems. The things that satisfy me and satisfy Senator Mullooly were already there in that Bill of 1980. Unfortunately that Bill was opposed by the Government of the day on the grounds that comprehensive legislation was needed and in October 1980 it was defeated on Second Stage on a vote in Dáil Éireann. Here we are now, over six years later, and where is the comprehensive legislation that required the defeat of that Private Members' Bill rather than its acceptance and adoption as a Government measure for further pilotage through the two Houses of the Oireachtas? We do not have it. It would be unfair to say we have no more in the present Bill than was in the National Heritage Bill, 1980, but we do not have a great deal more.
The next attempt was made in 1982. Fianna Fáil were in office and the National Heritage Bill, 1982, was introduced into Seanad Éireann. This did  allow the Bill to be thoroughly debated. The Bill was introduced in June 1982 and the Second Stage was debated on 30 June, 1 July, 14 July and 15 July. I must, as Leader of the House, apologise to the Minister of State that the Seanad was not able to react as quickly to the introduction of the present Bill into the Seanad. That Bill was supported on all sides of the House, as I am sure the present Bill will be, and a great deal of useful Committee Stage work was done up to 3 November 1982 when, one can read at column 489 of the Official Report of that date that Committee Stage was adjourned until the following week. The following week there was a dissolution of Dáil Éireann and another Bill, another attempt to deal with this problem had fallen. I might say it was a more comprehensive attempt. At least it endeavoured to justify the defeat of the earlier Bill by attempting to be more comprehensive, bringing national monuments and national parks all under the one umbrella. Now we have this Bill introduced last May and we have only now got around to debating Second Stage. I hope there will not be any undue delay. I hope there will not be any untimely dissolutions that will interfere with its passage through the House on this occasion.
When we look at the present Bill, what have we in it? We have, essentially, an exercise in crisis management. We have here the dealing with the two great problems of sea wrecks and electronic detection which created a crisis of greatest magnitude in regard to our national monuments and our heritage generally. It is good and I welcome the fact that we have these provisions but I must lament that we do not have more. One cannot be unduly critical of the Minister of State who is with us this evening because she has not been in charge of this particular Department for very long. I hope she will concentrate her energies on the question of following up this Bill which meets the immediate crisis by starting immediately on the comprehensive problems.
We are in grave danger here of coming  up against what has been called the principle of unripe time. The time never seems to be ripe for the comprehensive attack on a problem. It may be that this legal difficulty exists, that another legal difficulty is there that money would not be available. All of these things have got to be tackled and I believe they can be tackled in a realistic way. We have got to face up to the problem that a national heritage is a national heritage.
Too many times in regard to matters like this, and other matters of legislation, we have had people reading far more into the private property rights of our Constitution than exists there. An overstrict reading of the Constitution, not by lawyers but by politicians and by their advisers, has prevented many a good Bill from coming to the floor of this House and to the floor of Dáil Éireann. In this instance, even after this Bill has been passed, to deal with the major critical areas we still have — the Minister of State recognised this in her speech — the continuing problem of our heritage being lost, our heritage being damaged and, as time goes on, the losses becoming greater and greater.
We should look not just at what is in this Bill; on the Second Stage of this particular Bill we should look at the problem as a whole. I suggest to the Minister we can all appreciate that for economic reasons the time is not ripe to undertake a massive effort, but that is no reason why the machinery should not be put into place so that such an effort can be made without delay when funds become available. I do not think this Bill puts the general machinery into place. That is part of my disappointment with it.
What is the nature of the problems we face? I will base a fair amount of what I say on the material contained in the presidential address of Professor Frank Mitchell to the Royal Irish Academy in October 1978 — the title of his presidential address was Planning for Irish Archaeology in the Eighties — and propose what can be done under this Bill as we draw towards the close of the eighties against what Professor Frank Mitchell said on that occasion.
 I will use the structure he used in order to discuss this problem. This is a suitable yardstick against which to judge the Bill for a number of reasons. One is the content of that presidential address because it was forward-looking and it was practicable, also because of who the author was, a man who is not just an expert in one subject but an expert in many subjects, possibly to a greater extent than any of our scholars and, at the same time, gifted with a great deal of common sense.
I also think it suitable in dealing with the question of our national heritage and the question of archaeology to treat it against this most recent statement made within the ambit of the Royal Irish Academy because since its foundation the Royal Irish Academy has been concerned with our heritage. But for the efforts of the Royal Irish Academy, the loss of our heritage would have been greater by several orders of magnitude.
I would like as a member of that Academy, elected as a member for science and not as a member on the other side of Academy House which goes by the name of Polite Letters and Antiquities, to remind the House of what the Royal Irish Academy did since its foundation 200 years ago. It is probably no accident that the Royal Irish Academy was founded by the Earl of Charlemont who was also the founder of the Irish Volunteers, a man who saw a connection between the preservation of the physical heritage, between the promotion of knowledge and between the question of establishing political independence.
Right from the very beginning 200 years ago, the Royal Irish Academy established an antiquites committee and gathered a large amount of material which might otherwise have been lost. About the year 1840 it commenced controlled excavations for the first time in this country. Indeed it is on record that in 1847, when a very eminent committee of the Academy commenced the excavation of Dowth, in fact, this was done with tools borrowed from the Office of Public Works. This is possible the first connection between the Office of Public  Works and controlled scientific archaeological excavation. It was probably due to influence because Colonel Harry Jones, who was a very eminent military engineer and administrator was both a member of the Academy's antiquities committee and also chairman of the Office of Public Works. He is a man who even before that date had shown a great sense of preservation. I would like to put these achievements of the Academy on the record.
I would like also to put on record here the achievements of the members of my own profession of engineering throughout the 19th century who, in the middle of their expansive engineering works, paid a regard to archaeological remains which has been matched in recent years but not matched in some of the intervening years. Harry Jones himself worked first on the Shannon commission, the first establishment of the Shannon navigation, and he diverted the workmen on that scheme to the preservation of monuments in the neighbourhood of the works, including the first clearing of the great national monument of Clonmacnoise and the examination of the safety of the foundation of the monuments here.
It was the Royal Irish Academy who saved many of our treasures, some of them indeed from the melting pot, others from sale abroad. It was the Royal Irish Academy who in 1839 purchased the Cross of Cong. Here we find among that group a public spirit a regard for our heritage that we take for granted. We of this generation are, perhaps luckier than we deserve with these enlightened gentlemen, because the ladies did not participate in those days, of the Royal Irish Academy of the Royal Dublin Society who showed the degree of enlightenment which they did.
In fact, in 1888, when the National Museum was founded, there was already there the makings of a national museum. I would also like to pay tribute to the 19th century engineers, many of whom were officers of the Royal Engineers of the British Army, for their work starting  with those who supervised the ordnance survey. If we look at the work of the ordnance survey it was the first ordnance survey in the world. It was, in fact, used as a trial for the British ordnance survey so the standards that were established in the 1820s in Ireland became the model.
One thing which is remarkable about the ordnance survey is not only the way in which national monuments were marked on the ordnance survey maps of the periods but the great detail in which they were described in their notebooks, which still exist in manuscript. If we look back over what happened in the last century we can see that we have indeed been lucky that those generations met the problem of their day with the diligence with which they did.
What then is the problem as it faces us today? I said I was going to structure what I had to say on the basis of what Frank Mitchell said in his presidential address talking about planning for Irish archaeology in the eighties. He identified seven elements and I propose to deal with them in turn. These seven elements can be summarised as:
(6) document; and
(7) the publication.
How well are we doing at the moment? How well will we be able to do after the enactment of this Bill under those seven headings?
Let us take the first of them. It is the first essential step that must be taken in regard to the preservation of an archaeological heritage and that is to record. I have already said that we have an excellent headline here from the office of engineers of the ordnance survey in the 1820s, over 150 years ago, men of the calibre of Thomas Larcom who went on to make a most distinguished career in the Irish Civil Service and particularly in the Office of Public Works and left most valuable archives to the National Library  that tell us so much of the history of public works in the 19th century.
How far have we improved on what these busy sappers did in the first ordnance survey? We established a register in the 1954 Act. This was essential in order to record, but this was not enough and it was quite clear that this was not enough. The Minister said she hoped that more attention would be paid to the advice of the new national advisory committee than was given to the advice of the past. My understanding is that it took a tremendous effort on the part of the National Monuments Advisory Committee, set up under the 1954 Act, in order to get the proper recording under way and to get a survey unit established in the Office of Public Works, as was done in 1960.
The Minister has said — indeed we welcome it — that she was happy to announce that there already had been a publication of a number of records which were the result of this work and she said that the procedure had become more rapid. So it has but I am afraid it is also true that it has become more superficial. What is really required is an archaeological survey. I believe I am right in saying that, of those published only one, or possibly none, is a full archaeological survey. If a full archaeological survey cannot be established it is scaled down to be an inventory and if you have not enough staff to make up an inventory it then becomes a record of sites and monuments.
I accept that the exigencies of the constraints on the survey unit must be such that there is a choice between doing thorough survey work in certain areas or trying to do the more superficial work over a wider area. That choice must have been a difficult one but we must realise that it was a choice. We should realise that, in fact, in what was done we were falling short of what constitutes adequate recording of an archaeological heritage. Can the Minister tell me if there is a plan that goes beyond what is being done now? Let us accept the financial restrictions of what is being done now, but let us have a plan. Otherwise we will find that we  will, perhaps, cover the country with a record of sites and monuments by the end of the eighties that will go very little beyond the work at Colby, Larcom and of those who directed the first ordnance survey over 150 years ago.
I am not saying that next year so much more should be done. I recognise the reality of the situation, but I think there must be a recognition that what is being done is well short of what most people who have examined the subject would wish to do, and also what I am sure the Minister of State would like to do.
We need full surveys, inventories and records of sites and monuments, but what we do not need is a self deception which would lead us to believe that a site and monument record is a substitute for an archaeological survey or even a substitute for an inventory. I suggest to the Minister that there is a duty on her and on her office to draw up a major plan for the adequate carrying out as soon as possible of this first function of recording.
The second of the seven activities I have listed is that of protection. In this regard we must welcome what is in the Bill. In dealing with the question of the protection of what is there, we must be concerned with protection of monuments that are above the ground, the protection of monuments that are below the ground, and the protection of monuments that are below the water. I think it is one of the more welcome aspects of this Bill that it extends greatly the protection of monuments below the water and also through section 6 extends greatly the protection of monuments below the ground.
Seanad Éireann 114 National Monuments (Amendment) Bill, 1986: Second Stage.