Seanad Éireann - Volume 115 - 18 December, 1986

National Monuments (Amendment) Bill, 1986: Committee Stage (Resumed).

Sections 12 and 13 agreed to.

SECTION 14.

Government amendment No. 60:

In page 15, line 39, to delete “subsection” and to substitute “section”.

Minister of State at the Department of Finance (Mrs. A. Doyle): This is a drafting amendment.

Amendment agreed to.

Mr. Fitzsimons: I move amendment No. 61:

In page 15, after line 45, to insert the following:

“(2) A Historic Monuments Advisory Committee shall meet at regular intervals and not less than four times each year.”

With regard to amendment No. 59, which we passed yesterday evening, I have grave doubts that simply by adding provisions like this to the Act we will protect our heritage in this way. We have dealt with that, and I will take it up again on Report Stage. Two very important amendments which I submitted are properly ruled out of order but it indicates the way we are inhibited in this House with [1367] regard to improvements of a Bill. I was trying to deal with the situation as regards compensation and ownership. These problems have not been confronted in the Bill. I want to make that point.

With regard to the Historic Monuments Advisory Committee, I have been chairman of the local advisory committee in my own town. I have also been elected to the country advisory committee. I am secretary of the parliamentary all-party heritage group. The chairman is Deputy Oliver Flanagan. I am very sorry to learn he is ill and I wish him well. I know all the Members of the House will join with me in wishing him a speedy recovery. The big problem I find is that initially there is great enthusiasm and then for want of meetings this enthusiasm wanes.

The Meath County Council Advisory Committee was appointed after the last local government election. I am casting no aspersions on the officials. No meetings have been held since then. Only one meeting was held by the all-party heritage group. This does not help. If there was some statutory obligation to meet at regular intervals, whether quarterly or yearly, it would be a great improvement.

Professor Dooge: The requirement that the advisory committee should meet several times a year is an extremely advisable one. I am not too sure about the question of meeting at regular intervals because we might run into a problem of definition of regularity and it would not give flexibility. There might be times of the year at which it would be suitable for the advisory committee to meet in successive months. There are times of the year, for example, in preparation for the summer excavation period, when the advice of this committee would, like the advice of its predecessors, be taken by the Commissioners of Public Works before they issue their grants for summer excavations.

It might well be found that the workload on the advisory committee might not occur regularly throughout the year. I would not agree with the question of regular intervals. In regard to the question [1368] of ensuring that the committee do meet more than once I certainly support this. I want to say quite frankly that the record of the committee which this replaces was not good. The record of the Commissioners of Public Works in summoning the National Monuments Advisory Council left a great deal to be desired.

Mrs. A. Doyle: I think, Senator, we are talking about two different things.

Professor Dooge: We are talking about two different committees?

Mrs. A. Doyle: I am on the local authority committees and you are speaking about the national committee.

Professor Dooge: I stand corrected and sit down, but I let the criticism stand on the record.

Mrs. A. Doyle: I have a lot of sympathy with this amendment. I understand that some advisory committees are not very active, while in some counties they do not exist at all. It would be somewhat contradictory, however, to provide that a local authority may or may not establish a local advisory committee and then make it obligatory on the committees that are established to meet at certain intervals. I feel, too, that simply obliging committees to meet would not necessarily mean that they would be more committed to the conservation of our monuments. As upholders of local democracy and as members for many years of local authorities, we have all complained about being turned into rubber stamps by central government. I am sure the Senators are only too familiar with that argument. It is up to interested councillors to press for the establishment of local advisory committees and then, when established, to ensure that they play an active part in the conservation of our heritage generally. It is really in the interests of true local democracy to leave that with the councillors. The secretary and chairman of this committee play a particularly important role. If we treat local democracy seriously we should trust [1369] it on this matter. I do not blame the Senators for being somewhat doubtful at this point given the history of these local advisory committees to date, but I am not sure that we should take on board centrally any failings of local government. We should first try to make local government be true local democracy.

Mr. Fitzsimons: The Senator was perfectly right. We were making the same case for the National Monuments Advisory Council — exactly the same case. When the Minister says that it should be left possibly to the discretion of the chairman and the vice chairman in regard to calling meetings, the problem is that with regard to the council in Meath — and I am not casting reflections in any way — they have not met. There is no chairman and there is not vice chairman.

Mrs. A. Doyle: Would you not request a meeting? I think any councillor is free to press such a meeting.

Mr. Fitzsimons: It is the obvious question — “Why did you not request a meeting?” Time passes, and I think myself that it is a pity that there is no obligation. I would be satisfied with Senator Dooge's suggestion that they should be obliged to meet annually.

Amendment, by leave, withdrawn.

Question proposed: “That section 14, as amended, stand part of the Bill.”

Mr. Fitzsimons: The Minister has rightly said that the appointment of an advisory committee is at the discretion of a local authority. Subsection (1) of section 22 of the National Monuments Act, 1930, provides that a local authority may establish an advisory committee, which in that Act is referred to as a local advisory committee, to perform the functions mentioned in section 22 and that every committee shall be styled and known by the name of the functional area of the local authority by whom it is established, followed by the words [1370] “national monuments advisory committee.” I think it is a mistake that the local authority should have that discretion. It should be mandatory to form a local advisory committee. If we are to be serious about this particular legislation, the Minister should consider an amendment to make it mandatory on local authorities to appoint local advisory committees in every instance.

Mrs. A. Doyle: My reasoning in relation to the last amendment — and my difficulty in accepting it — would stand in relation to this. I agree with the Senator. Every local authority should have such an advisory committee. I would hope they would have. If we are to treat local government and local democracy seriously we cannot dictate to every local authority what they must do on every issue. The discretion must be there. It is an indictment of the area, and perhaps of councillors' interest to some extent, if they do not have such an advisory committee. I would hope that they would all take a greater interest, particularly from now on, and establish such committees. I pull back at the point of dictating centrally that they must do so. The councillors themselves must take a role in this and make the decision for themselves. There is nothing stopping any local authority now having such an advisory committee. They have had those powers for some time. Regrettably, all too few have set up these committees and of those that have been set up, even fewer have functioned as we would like them to function. Because there have been failings in the system and because, perhaps, Local Government has not been as effective as it should be in relation to their own patch in this question, I hesitate to dictate any further to them from central government. Quite frankly with my local authority hat on for a moment, the feeling among county councillors and local councillors generally is that we have had too much of that, that we are effectively just rubber stamps now. We are adding to that argument. This is an area, in particular, which would be very easy to overcome if there [1371] was any interest at all from local councillors. Even one councillor is enough to be a catalyst in relation to setting up such a committee.

We will circularise all local authorities pointing out the advisability and desirability of setting up these committees and suggesting that they do so. I will be doing that early in the New Year. I pull back at making it mandatory, if we are true believers in local government and local democracy.

Mr. Fitzsimons: I do not want to over-labour the point. I do not see why the Minister should hesitate to dictate to local authorities. I would not have reservations about that. After all, this is what the Act is about — to establish a certain enthusiasm and here is one opportunity. The fact that the advisory committees may not have been as successful in the past as they could have been and as they should have been means that something should be done. I am sure this is a reflection on those counties where committees have not been active. I am not sure whether it is sufficient to say that one member could change that situation. If the Minister agreed to this suggestion of meeting annually and to some kind of report and to injecting some kind of enthusiasm into the advisory committees it would change the whole situation. This is what is needed. It is not compulsion through penalties or fines. It is to bring the people together and let them understand. It is to convince the people that there is something worthwhile here. The Historic Monuments Advisory Committees could be very powerful tools if worked properly. We are not availing of this opportunity when we are finalising this legislation.

Question put and agreed to.

NEW SECTION.

Government amendment No. 62:

In page 16, before section 15, to insert the following section:

“15.—Section 23 of the Principal [1372] Act is hereby amended by the substitution of `4' for `fourteen' in subsection (1) and the said subsection, as so amended, is set out in the Table to this section.

TABLE

(1) Every person who finds any archaeological object shall, within 4 days after he has found such object, make a report of such finding to a member of the Garda Síochána on duty in the district in which such object was so found or the Director of the National Museum and shall when making such report state his own name and address, the nature or character of the said object and the time and place at which the circumstances in which is was found by him, and shall also, and whether he has or has not made such report as aforesaid, and irrespective of the person to whom he has made such report (if any) give to any member of the Garda Síochána or to the said Director on request any information within his knowledge in relation to such object or the finding thereof and shall permit any member of the Garda Síochána or the said Director to inspect, examine or photograph such object.”.

Mr. Mullooly: The section deals with a situation where a person finds an archaeological object and it sets out the procedure the finder must follow. It states that he must inform either a member of the Garda Síochána or the Director of the National Museum. The section then goes on to state:

“and shall permit any member of the Garda Síochána or the said Director to inspect, examine or photograph such object”.

If the director of the National Museum wishes to inspect, examine or photograph such an object, it would appear from the section that he must do so personally. It is not open to him to nominate somebody to do so for him because it would appear that the individual who finds the object [1373] is not obliged to allow any nominee of the director but only the director himself to do so. It would be a little unreasonable to expect that the director would have personally to inspect, examine or photograph any object which he wished to inspect, examine or photograph and that he could not nominate somebody to do so on his behalf or that there would be no obligation on the finder of the object to allow a nominee of the director to do so on his behalf.

Mr. Fitzsimons: I take the same view as Senator Mullooly. In examining a work of art, or in taking photographs of a discovery of this kind, we are in a very specialised area. Very expensive and specialised equipment and lighting would have to be used. There is a problem from the point of view of a proper examination or proper photographs. I would be happy if the Minister would confirm that the director would be empowered to engage specialists to do this work for him.

Mrs. A. Doyle: The case the Senators have put seems to be very reasonable. My initial reaction, subject to confirmation from my adivs ers, is that it would appear that a director of the National Museum could get the Garda Síochána — I am just referring to a point in a previous Act——

Mr. Fitzsimons: This is the amended section.

Professor Dooge: Perhaps as the point has been substantially raised on Committee Stage we could leave it for elucidation on Report Stage.

Mrs. A. Doyle: I will accept that suggestion, with the Cathaoirleach's permission, and I will come back to it on Report Stage.

Amendment put and agreed to.

SECTION 15.

Amendments Nos. 63 and 64 not moved.

[1374] Section 15 agreed to.

SECTION 16.

An Cathaoirleach: Amendments Nos. 65, 66 and 68 are related and may be discussed together.

Government amendment No. 65:

In page 16, lines 19 to 21, to delete subsection (1) and to substitute the following subsection:

“(1) Sections 14 (4), 24 (3) and 25 (3) of the Principal Act are hereby amended by the substitution of:

`shall be liable—

(a) on summary conviction, to a fine not exceeding £1,000 or, at the discretion of the Court, to imprisonment for a term not exceeding 6 months or to both the fine and the imprisonment, or

(b) on conviction on indictment, to a fine not exceeding £50,000 or, at the discretion of the Court, to imprisonment for a term not exceeding 12 months or to both the fine and the imprisonment'

for `shall be liable on summary conviction thereof to a fine not exceeding fifty pounds or, at the discretion of the Court, to imprisonment for any term not exceeding six months or to both such fine and such imprisonment' ”.

Mrs. A. Doyle: Amendments Nos. 65, 66 and 68 have been grouped together. Breaches of the National Monuments Acts, 1930 to 1986, have up to now been regarded as offences to be dealt with in the District Courts. However, I think that the time has come for us to take a more serious view of damage to our heritage. As I said during Second Stage debate on this Bill, the level of fines and penalties is in the end the test of our seriousness. A number of people have said to me that the fines proposed in the Bill, while considerably greater than the derisory figures that apply at present, are still far too low and, on reflection, I agree with [1375] them. Therefore, I am proposing that provision be made for certain breaches of the National Monuments Acts to be indictable offences with maximum penalties of £50,000, or 12 months imprisonment, or both.

The offences to which these will apply are as follows. The first category is demolition, removal, disfiguring, defacing, altering or in any manner injuring or interfering with a national monument in the ownership or guardianship of the commissioners or of a local authority, or subject of a preservation order. The second category includes the exporting or attempting to export an archaeological object without a licence, or defacing, destroying or injuring an archaeological object. Thirdly, digging or excavating for the purpose of searching for archaeological objects or for any archaeological purpose without a licence. Fourthly, the use of a detection device in contravention of section 2 of this Bill. Fifthly, contravention of subsections (3), (4) and (5) of section 3 of this Bill, namely the interference with a historic wreck or acting in breach of a licence under that section. Sixthly, carrying out work at or in relation to a monuments or an archaeological area which is entered in the Register of Historic Monuments within two months of having given notice to the commissioners, except in a case of urgent necessity and with the consent of the commissioners.

I should stress that the figure of £50,000 is a maximum and I would expect that a fine of this order would be imposed in only the most exceptional circumstances. However, we must have deterrents which will prove to be effective in dissuading both our own people and foreigners from pillaging our heritage for monetary gain.

Professor Dooge: I want to say a few words on this. I almost feel like cheering rather than speaking. This amendment, which the Minister has brought in, is most welcome. As the Minister said, the large [1376] figures which are expressed here are maxima, but there may well be cases — and ther have been cases in the past——

Mrs. A. Doyle: Recent past.

Professor Dooge: ——where fines close to these maxima would be appropriate. The Minister will have allayed the anxieties of many people. I know the Minister will have allayed the specific fears of the National Committee on Archaeology of the Royal Irish Academy. I am sure the chairman and members will be duly greatful that the Minister has acted on this point. I think, of all the amendments which we have had from the Minister, which have all been welcome, this is the most welcome of all.

Mr. Fitzsimons: I am not too sure that I would feel like cheering with Senator Dooge. I do not want to give the impression that I am throwing cold water on this because it is an important Bill and it is a serious attempt to deal with the situation. The Minister could claim that, no matter what suggestion she would make, it would be criticised. From the point of view of recent problems, if we are talking of a penalty of £50,000 against a hoard valued at £5½ million plus, it is quite reasonable. Some people would say that perhaps it is not sufficient. I am not too sure that having fairly heavy penalties will of itself solve any great problem. I referred before to the litter problem which we have in this country. Increasing the penalties is not improving the litter problem. The problem is an inherent carelessness, some lack in the people as a whole compared to any other country in the world. No matter what fines or penalties are imposed I do not think that in itself without education and some social commitment is going to solve that problem. Therefore, I believe that the penalties must be realistic.

It seems a case could be made to double the penalty to £100,000. I realise they are not mandatory and that there are limits. In having that kind of limit, it must be anchored to some kind of reality. I [1377] appreciate that heavy penalties must be provided for in the Act. I am not discounting the figure of £50,000 or condemning it but, thinking out loud, I wonder will that solve many problems? When we compare this with the original section 16 which provided for maximum penalty of £1,000 and section 19 where the maximum period for imprisonment was six months and where there was no provision for trial on indictment, we see we are considering a major change. It must have been motivated by events in the past.

I know it is a very emotive issue and when such an emotive issue is getting the headlines I am not so sure that it is a good time to decide on penalties of that kind. Since I am not familiar with the legal area, I am at a loss to understand how in a particular situation a decision is made with regard to summary trial or trial at a higher level. In my view this is determined by the value of the works in question, for example a chalice. I feel that £1,000 would be the limit for a summary trial and anything over £1,000 could not be tried on summary. How is an evaluation made of whatever art works are in question?

For example, when I leave in my film for processing there is an undertaking by the company that in the event of damage to the film they will give a film in exchange but that has not bearing to the actual value of the film and there could be some very valuable photographs on that film. On the radio this morning I heard where somebody was trying to insure a 1923 Morris Minor car and the value for insurance purposes was £200 whereas the value that the assessor would put on it would be £200,000. Is there a problem determining the value? Who determines it? Would it be like the film, would it be simply the material that would be valued? There are many questions to be answered. At the end of the day we must ask ourselves whether this legislation, including heavy penalties, will be an improvement? The answer to that is very firmly in the affirmative. It will, of course, because the penalties at present at £25 [1378] are totally out-of-date. From that point of view I welcome it.

If somebody committed a minor indiscretion with regard to a very valuable object, how many people could afford to pay a fine of £10,000 or £20,000 or £50,000? There is power under the law to impose such fines but I do not think people will be able to pay those penalties.

Mrs. A. Doyle: It took me a long time to realise that Senator Fitzsimons is supporting the amendment, I thought initially he was against it. I welcome his support with the reservations he made. I will deal about the point of the small man being lobbed into the Circuit Court and being fined £50,000. The commissioners, with the advice of the DPP, will decide on the particular procedure to be followed in each indiscretion. The circumstances of each case, not just in terms of monetary value, will be taken into account in relation to that decision. It is a maximum fine and it can be anything from £5,000 to £50,000 that can be imposed depending on the circumstances of the individual, the deliberation and various other factors involved. We have only to remind ourselves of a recent case: there was outcry in the debate on the Adjournment in the Dáil and also in the Seanad in relation to Kilcullen and a particular desecration that happened down there. Under the 1930 Act the maximum level of fines which could possibly be imposed even in a major case of desecration like that is £50. We are not talking about an individual local person who commits some indiscretion, however, deliberate or otherwise. We are talking also of multinational interests, of a major companies and people who flagrantly disregard the law. I think £50,000 in those type of examples is not too much.

Senator Fitzsimons was pressing an amendment last night that we should take the advice of the Historic Monuments Council. He was suggesting it should be mandatory on the commissioners, he will be pleased to know that the advice of the Historic Monuments Council in this case is that £50,000 should be the maximum fine. We are being consistent on that. [1379] Even though I did not accept his amendment on making their advice mandatory, we will do so in most cases. There would have to be extremely good reason for not accepting their advice. We have accepted their advice in relation to this, too, and it concurs with my sentiments and with the views expressed by various Senators during the Second Stage debate.

I also accept the point made by the Senator that fines in themselves will not resolve the appalling problem of desecration, the lack of interest and vandalising of our national heritage. It will not, but it will indicate how seriously we treat such behaviour and such indiscretions. I hope it will influence public opinion and show the seriousness we attribute to these acts. I accepts that before we talk about punitive measures we have to do everything to influence and educate the public generally about our national heritage, we have an enormous job to do there and a long way to go.

As a second line, I feel very serious fines are a major deterrent. They point out to the public that we no longer accept what has gone on and that we consider it a major offence against our country, against our people, against our heritage for this to continue and that we intend to treat it with a seriousness that it is due. I was tempted to suggest that the Morris Minor car referred to by the Senator will shortly be declared a historic wreck but perhaps that is for another Chamber.

I welcome very much Senator Dooge's kind comments on this amendment and I accept everything he says. I know indeed that many organisations in academia will be very pleased in relation to this. Again it really indicates and underlines the seriousness of our intent in relation to resolving the difficulties in this area.

Mr. Fitzsimons: I agree with the Minister totally. If we are talking of multinational companies or somebody who is trying to become wealthy in this way, of course £50,000 is not excessive but a case could be made that it should be far more. That will not apply in very many cases. It is unfortunate that there could [1380] be no kind of division, that that would be an exceptional case. This kind of broad power given to a judge means that he will have to come to a decision and take many factors into consideration. It seems reasonable to assume, that, if there will be many cases and I hope there will not, the fines could not be anything of that order. They must be penalties that people are able to pay.

Mrs. A. Doyle: There were two instances in the recent past and if this legislation had been in place I would be thinking of fines in the order of £50,000 as it is, it will be £50 if anything depending on the outcome of the court case.

Mr. Fitzsimons: I am very glad the legislation gives that power. It is very important. There should be some consideration for people who are not trying to make enormous profits, rather than giving a judge global power to impose these fines.

Mrs. A. Doyle: I think the summary conviction will take care of that.

Mr. Fitzsimons: Can the Minister confirm that there will be no problem about deciding whether it will be a case for summary conviction or for indictment?

Mrs. A. Doyle: The DPP and the Commissioners will decide.

Amendment agreed to.

Government amendment No. 66:

In page 16, lines 28 to 30, to delete subsection (4) and to substitute the following subsection:

“(4) Section 26 (3) of the Principal Act is hereby amended by the substitution of:

`shall be liable—

(a) on summary conviction, to a fine not exceeding £1,000 or, at the discretion of the Court, to imprisonment for a term not exceeding 6 months or to both the fine and the imprisonment, or

[1381] (b) on conviction on indictment, to a fine not exceeding £50,000 or, at the discretion of the Court, to imprisonment for a term not exceeding 12 months or to both the fine and the imprisonment'

for `shall be liable on summary conviction thereof to a fine and not exceeding twenty-five pounds”'.

Amendment agreed to.

Section 16, as amended, agreed to.

Section 17 agreed to.

SECTION 18.

Mr. Fitzsimons: I move amendment No. 67:

In page 17, between lines 7 and 8, to insert:

“The registration as burdens under paragraph (a), (b), (c) or (d) will not delay by more than two weeks certifications required in connection with transactions in land title.”

We are coming to the question of registration and the Land Registry Office and we all know that in the past there have been long delays in the Land Registry. I am sure this will impose further work on the staff in the Land Registry. Many people in the past have been inconvenienced through these delays. I am trying to ensure that registration of these burdens would not result in long delays which will hold up the sale or leasing of property.

Mr. Mullooly: I support Senator Fitzsimons on this amendment. There is a danger that if the Bill is not amended there will be delays in the Land Registry resulting from the procedures which will have to be gone through there. As Senator Fitzsimons said, in the Land Registry at the present there are undue delays which are causing people considerable inconvenience. Indeed, in some [1382] cases people are being caused considerable financial loss. I am aware of a number of cases in the Land Registry, where because of delays there, people who have been approved for loans both from building societies and local authorities have had to remain on bridging finance for very long periods and have had to pay very high interest on that bridging finance. If the dealings in the Land Registry had been more expeditious, these people would have been saved a considerable amount of money. I support Senator Fitzsimons's amendment because, without such a provision written into the Bill, there is the danger that the procedures which are provided for in the Bill may lead to very long delays in the Land Registry.

Mrs. A. Doyle: Entries in the Register of Historic Monuments, preservation orders, guardianship orders and guardianship deeds will be registered in the Land Registry and will, therefore, appear automatically in land certificates or in certified copies of Land Registry folios. They will not, therefore, be a cause of delay in transactions in land title. There may be isolated cases where a preservation order is awaiting registration in the Land Registry when a request for a certified copy of the relevant folio is made and some minor delay may ensue. This will be a matter for the Land Registry to deal with it as quickly as they can. While I sympathise with what the amendment is trying to achieve, it is not something that can be legislated for.

Mr. Fitzsimons: Could something be done in the case of an expected delay? Would it be possible to have some certification provided by the Land Registry that would short circuit the problem and provide an interim means of complying with the legal obligations? This would be a difficult question for the Minister to answer and is probably outside the ambit of the Minister's brief but, if something could be done, or if the Minister could make some suggestions eventually in that direction, I would be happy.

[1383] Mrs. A. Doyle: I think it is really a matter for the Land Registry to operate their own functions. I have sympathy with what the Senator is trying to achieve and we can all allude to cases that have caused us some frustration in relation to dealings with that particular body. They have their difficulties but perhaps it is for another day's debate.

Amendment, by leave, withdrawn.

Section 18 agreed to.

SECTION 19.

Government amendment No. 68:

In page 17, subsection (1), lines 10 to 13, to delete “shall be liable, upon summary conviction, to a fine not exceeding £1,000 or, at the discretion of the Court, to imprisonment for a term not exceeding 6 months or to both the fine and the imprisonment” and to substitute:

“shall be liable—

(a) on summary conviction, to a fine not exceeding £1,000 or, at the discretion of the Court, to imprisonment for a term not exceeding 6 months or to both the fine and the imprisonment, or

(b) on conviction on indictment, to a fine not exceeding £50,000 or, at the discretion of the Court, to imprisonment for a term not exceeding 12 months or to both the fine and the imprisonment”.

Amendment agreed to.

Section 19, as amended, agreed to.

Sections 20 and 21 agreed to.

SECTION 22.

Acting Chairman (Mr. McGonagle): Amendment Nos. 69 and 70 have been ruled out of order, because they involve a potential charge upon the Revenue.

[1384] Amendments Nos. 69 and 70 not moved.

Government amendment No. 71:

In page 17, line 40, to delete “and 20” and to substitute “, 20 and 21”.

Amendment agreed to.

Government amendment No. 72:

In page 17, line 40, to delete “section 11” and to substitute “sections 8, 11 and 15”.

Amendment agreed to.

Section 22, as amended, agreed to.

Section 23 agreed to.

Title agreed to.

Bill reported with amendments.

Acting Chairman: Next Stage?

Mr. Ferris: It is proposed to take Report Stage on Wednesday, 14 January 1987.

Report Stage ordered for Wednesday, 14 January 1987.