“one of the most important national assets belonging to the people is their heritage and knowledge of its true origins and the buildings and objects which constitute keys to their ancient history.”[i]
Michael Webb and his son Michael Webb discovered the Derrynaflan Hoard in 1980 while out metal detecting in Co. Tipperary, Ireland. The discovery of these beautiful archaeological objects kicked off years of litigation and culminated in a new understanding of cultural heritage rules and laws in Ireland.
In Webb v Ireland [ii], the Supreme Court was tasked with, among other things, deciding whether ‘Treasure Trove’, as a royal prerogative, had survived in law following the foundation of the Irish State in 1922. It found that it had not, but that the State had certain inherent rights to archaeological finds regardless.
In the 1970s, protesters clashed with developers over the construction of the new Dublin City Council building at Wood Quay, a vast Viking archaeological site. The work ultimately went ahead to the detriment of the archaeological site and highlighting a serious lack of legal protections.
In 1999, folklorist Eddie Lenihan managed to prevent the consequential destruction of a fairy bush in the building of a new motorway.[iii] This was achieved through publicity however (because of course, it is self-evident that one should never disturb the fairies). But what of legislation enacted to protect cultural heritage in Ireland, including mythological sites?
Treasure Trove (or its equivalent) is just one part of the National Monuments Act 1930 (The 1930 Act). This Act was the main piece of legislation dealing with cultural heritage in Ireland and has seen four amendments. One in 1954, 1987, 1994, and again in 2004. This piece of legislation regulates the position of monuments and archaeology across the country. We therefore have a grand total of about 90 pages of legislation to regulate archaeological and cultural heritage in Ireland. The new Historic and Archaeological Heritage and Miscellaneous Provisions Act 2023 (The 2023 Act) runs to nearly 230 pages. It is a huge endeavour, and its stated aims are to consolidate legislation, provide for the protection of historic and archaeological heritage, regulate certain activities (like metal detecting), ratify certain conventions (including the UNIDROIT Convention 1995[iv], and the UNESCO Convention 1970[v]), to give effect to the Environmental Impact Assessment Directive[vi] and the Habitats Directive[vii], and to give further effect to the Valletta Convention. The New Act has been enacted but not yet commenced and gone mostly under the radar. And ‘no rule of law relating to treasure trove shall apply to an archaeological object’[viii], just in case that wasn’t clear enough from Webb.
Michael D. Higgins, in his current role as President of Ireland, signed the 2023 Act into law last October. This is perhaps fitting, as it was he, more than any other politician, as Minister for Culture, who spearheaded the 1994 amendment, which brought in a whole host of stronger protections for monuments in Ireland.
Although the 2023 Act is quite broad in its scope, the original 1930 Act was short and to the point. It purported to provide protection for national monuments and preserve archaeological objects within the State. The main issue, therefore, over the years, became what the definitions of a national monument and archaeological object were. Issues around archaeological objects are now pretty much settled, but it is interesting to note that as far back as 1930, the definition was (and still is) quite broad, and not bogged down with the common law treasure trove baggage of having to be made of gold or silver, or issues of animus recouperandi.[ix] Although archaeological objects were not vested in the State, as treasure trove was, there were reporting obligations and export limitations etc. placed upon them. Now, archaeological objects are indeed owned by the State.
The lead up to the 2023 Act
We remain under the 1930 Act, as amended, for the moment. In relation to monuments, it is now somewhat clear that it is up to the Minister to decide what constitutes a ‘National Monument’ [x]. However, the Act itself does not make this obvious as we shall see below.
Importantly, there was an ‘Advisory Council’ made up of experts who advised the Minister of the day about National Monuments. The Minister could then acquire, compulsorily or otherwise, these monuments, or place preservation orders upon them. Local councils or the Commissioners of Public Works could be appointed guardians of National Monuments. Although laudable, the wide, discretionary nature of the powers is evident in the legislation.
In 1987, an amendment to the 1930 Act was introduced, mainly to deal with the “scourge” of metal detectors. It provided for quite a restrictive licensing scheme which is mostly still in force today and far stricter than anything in the UK. This led to a brief controversy in 2022 when a supermarket chain began selling metal detectors in Ireland, before withdrawing them after the legal issues were pointed out to them.[xi] The 1987 Act also provided for the establishment of the 'Register of Historic Monuments' and a Historic Monuments Council, which was a more elaborate ‘Advisory Council’.
The 1994 Act brought in yet more amendments to strengthen protections (and deal with the fallout from the Webb decision). This was the high-water mark of legislative protection. Commissioners and Local Authorities could now only consent to work being done in the interests of archaeology.
Then there was what can only be described as a Celtic Tiger era[xii] desecration of the legislation allowing for the dismantling of the protections afforded to monuments in Ireland. One amendment specifically says “The Minister in exercising discretion … is not restricted to archaeological considerations but is entitled to consider the public interest in allowing the carrying out of works notwithstanding that such works may involve – (i) injury to or interference with the national monument concerned, or (ii) the destruction in whole or in part of the national monument concerned.”
It was a complete upheaval of the protections hard-won in 1994. The 2004 Act, instead of strengthening these protections, did away with them in a short-sighted, money-grabbing abandonment of Ireland’s cultural heritage. As Mr. Gary Freemantle stated in his submissions regarding the new 2023 Act, ‘the heritage protection legislation of the State reached the point of being the envy of colleagues from most other European jurisdictions, that is until the National Monuments (Amendment) Act 2004 undid all the good work of previous generations and cast us, in legislative terms, back into the Stone Age’ [xiii].
In Moore v Minister for Arts, Heritage and Gaeltacht (2018) Hogan J. in the Court of Appeal, pointed out that the 1930 Act is ‘quite unclear on the fundamental question of who should determine what monuments are to be National Monuments’.[xiv] He ultimately held that it was not for the court to decide, but the government.
So will the 2023 Act, whenever it is commenced, re-introduce these protections and clarify matters?
The 2023 Act is divided into 13 ‘Parts’. It is beyond the scope of this post to go into too much detail. However, it is worth noting just how all-encompassing this legislation has tried to be. The new act consolidates and updates the area of law around monuments in Part 2. Part 4 deals with archaeological objects (formerly treasure trove) and includes an acceptance of the UNIDROIT Convention 1995, and measures aimed at a ratification of the UNESCO Convention 1970. Part 5 relates to underwater wrecks and other underwater cultural heritage and the remaining Parts relate to licences, offences, codes of practice, consequential amendments and so forth.
Part 1, Section 3 sets out lofty principles that must be taken into account by anyone performing any function under the 2023 Act, and they are a welcome addition at the outset of this long, very administrative, piece of legislation. Echoes of Webb can be heard in ‘historic heritage is a non-renewable resource of great cultural and scientific importance’, and ‘the first option to be considered should be the protection in situ of historic heritage and that there ought to be a presumption in favour of this option’.
A broad class of ‘relevant thing’ such as structures, and historic (including mythological) sites may be deemed a ‘prescribed monument’ by the Minister if he or she is of the opinion that it is of archaeological or other interest and ought to be subject to the provisions of the 2023 Act that apply to prescribed monuments.
There is to be a ‘Register of Monuments’ established which will contain relevant things and prescribed monuments and the Minister may take into account the surrounding area. The lucky monuments that the Minister deems worthy of addition, will become ‘Registered Monuments’. If the Minister wants to take something off the register, they must consult with the Heritage Council, and the Minister must publish a reasoned response to the views of the Heritage Council if they decide to take a contrary position. A registered monument may be registered as a burden on a piece of land. The Minister may, by agreement or compulsorily, purchase a registered monument making it a National Monument.
Rules surrounding 'special protection' being afforded to monuments and the granting of licences are set out. One problem seems to be that the person (the Minister) who decides upon the granting of special protections also decides whether a licence can be granted.
All this is to say that, although there remains a huge amount of discretion left to the Minister, the considerations that he or she must take into account are usefully laid out and are based in archaeology, not the public (roadbuilding) interest. Furthermore, the Heritage Council and the Board of the National Museum get a look-in which certainly helps strengthen the checks and balances. With regard to offences, there are a range of penalties set out which reach as high as 5 years in prison, or a fine of up to €10,000,000 (Ten Million Euro), or both.
As previously mentioned, Part 4, Chapter 9, once commenced, will bring the UNIDROIT Convention 1995 into force in Ireland, and Part 4, Chapter 10 assists the State in ratifying the UNESCO Convention 1970. Although not of retro-active effect, the UNIDROIT Convention may prove to have tangible effect where EU Directive 2014/60 does not apply. Interestingly, payment of compensation to good faith possessors of stolen cultural objects is excluded (despite what the 1995 Convention says), and a court has discretion to award compensation to good faith possessors of illegally exported cultural objects. These additions in the 2023 Act are part of a drive in Ireland, it seems, to better regulate stolen and illicit cultural property. Recently a committee was established to provide guidelines to cultural institutions on artefacts that may have been illegally or unethically traded and obtained. It is chaired by Sir Donnell Deeny, chair of the UK’s Spoliation Advisory Panel.
Ultimately, it is an ambitious piece of legislation that refocuses priorities on the protection of Ireland’s cultural heritage, in situ if possible, and consolidates confusing and scattered legislation. The long overdue ratification of the aforementioned treaties is welcome, as is the promised registers and public promotion of these rules relating to cultural heritage. It remains to be seen how it works in practice (current registers are very outdated and not well publicised), but it is essential that future protection for the country’s cultural heritage is ensured so that sad losses like Wood Quay cannot occur again, and of course, so that the fairies are not disturbed.
Ronan Bergin
Solicitor at O’Connor and Bergin Solicitors
[i] Michael TS Webb and Michael O’Connell Webb v Ireland and The Attorney General (Webb v Ireland) [1988] IR 353 [383] (Finlay CJ)
[ii] Ibid
[iv] UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (Rome, 1995)
[v] UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970
[vi] 2011/92/EU as amended by 2014/52/EU
[viii] Section 97. (2) Historic And Archaeological Heritage and Miscellaneous Provisions Act 2023
[ix] An intention to recover an item(s)
[x] Moore v The Minister for Arts, Heritage and the Gaeltacht [2018] IECA 28
[xii] A period of enormous economic growth from the mid-1990s to the late 2000s when Ireland completely lost the run of itself.
[xiii] Oireachtas Joint and Select Committees: https://www.kildarestreet.com/committees/?id=2022-02-03a.870
[xiv] Ibid x, 14
Blogs are written by Art Lawyers Association members and reflect their personal views. They do not represent the views of the Association