Historic and Archaeological Heritage and Miscellaneous Provisions Act 2023
This new Act has consolidated a whole host of previous legislation that related to National Monuments, buried treasure, maritime wrecks, and cultural heritage. It also includes various aspects relating to international treaties such as the UNESCO Convention on Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 1970, and the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects 1995.
Although the Act has been signed into law, there are huge sections that have not yet been commenced. The Act is divided up into 13 Parts. The main parts are:
Part 2 – Monuments
This will give greater automatic protection to archaeological sites, without the need for them to be officially registered. This greater protection would not be needed however, if the National Monuments Acts had not been so defanged since the National Monuments (Amendment) Act 1994.
Dr. Amy Strecker and Sinéad Mercier point out[1] that the strong protections post-Wood Quay that were brought in by Michael D. Higgins when he was Minister for Arts, Culture and the Gaeltacht in 1994, were substantially eroded during the Celtic Tiger years. They state that although there are improvements in the Bill (now Act), the wide Ministerial discretion remains problematic. (Although there were some amendments after the date of the article). Strecker and Mercier also underline the fact that despite the name of the Act, there are vast gaps in terms of the protection of intangible cultural heritage.
The minister may prescribe a class of ‘relevant thing’ (relevant thing is defined and includes battle sites, structures, ritual, and ceremonial sites etc.) by reference to different criteria that will gain this automatic protection. Finds of prescribed monuments must be reported for instance. There are also various notifications and permissions required if any works are planned. This gives the Minister a chance to apply special protections.
It does also provide for the keeping of a register however, and puts a lot of onus on the Minister for Housing, Local Government and Heritage for the various designations, licences, and permissions given regarding sites.
Section 18 states that the Minister ‘may promote public awareness of the Register’. I don’t think that addition is really needed as presumably the Minister may promote whatever they want. A stronger provision would be more helpful.
Part 4 – Archaeological Objects
This part relates to what was once Treasure Trove and vests finds of ‘Archaeological Objects’ in the State. The State may pay up to market value to the finder of the object. Landowners and finders of archaeological objects will not acquire ownership rights, it makes clear. The law of Treasure Trove is categorically stated as no longer existing. This will not change the law hugely in this area as Treasure Trove has not really existed in this jurisdiction since the Webb decision, and Ireland has had a very broad interpretation of what an Archaeological Object can be for many years. This is unlike in the UK where they tie themselves up in knots about what percentage gold or silver the object is made of and who buried it and why. The UK has a much more liberal scheme in place regarding metal detecting however, together with a good public education aspect of their legislation. Here is an essay I wrote a few years ago on the differences between the two jurisdictions, and the history of Treasure Trove, if it is of interest.
At a glance, it seems that local coroners will no longer be the body one reports finds to , which is probably for the best. The coroner shall still consult the National Museum of Ireland in relation to human remains that may be archaeological. Now finds must be reported to the National Museum of Ireland, or An Garda Síochána.
Section 98 allows the Minister, under circumstances, to compulsorily or otherwise, acquire objects for the State. Importantly however, it allows loans to institutions within the State to be protected from such compulsory purchases by agreement with the Minister. This would be necessary to allow for the exhibiting of objects while putting their owner’s minds at ease. Section 99 deals with deaccession of archaeological objects which are owned by the State. The Board of the National Museum of Ireland may dispose of an object (transfer, or destroy it), if they are satisfied that it is no longer of ant archaeological, historic, cultural, or scientific interest. There is no mention of the disposing of objects for any other reasons (such as restitution or repatriation). Maybe this is a missed opportunity. There is however an ongoing effort by committee to come up with guidelines relating to the restitution of cultural heritage that is held in Irish Cultural Institutions.
This part also allows the State to accede to or ratify, the UNIDROIT Convention, and the UNESCO Convention, should the State choose to. I will look at these Conventions in a later post.
Part 5 – Wrecks and Other Elements of Underwater Cultural Heritage
I don’t know anything about this area, so it will be an interesting read. There are a surprising number of wrecks in Ireland’s territorial waters. Here is a wreck viewer showing only 22% of the recorded 18,000 wrecks. Wrecks over 100 years old will automatically be considered a class of relevant things for the purposes of section 12.
The act also precludes certain types of wrecks from attracting salvage payments, which people may otherwise be entitled to. There is also a section allowing the State to ratify the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage.
The rest of the Act deals with licences (for instance for metal detectors, excavation, searches etc.), Inventories, records and research, and the promotion of public knowledge and awareness. I would like to have a look in particular at the promotion of public awareness sections, but I will save that for another post. I can see a lot of ‘may’, ‘allows the minister to..’ and ‘permits’, type of language which obviously doesn’t mean much in practice. Also, there is the section on enforcement in Part 10 which will be interesting to look at. It deals with offences, defences, and other related procedures. We can call this post PART 1, and hopefully I will get around to PART 2.
Most of this Act has not yet commenced, but it is certainly a positive step to have various other acts and pieces of legislation consolidated like this.
I have written in more detail about the act on the art lawyers association blog here: https://www.artlawyersassociation.com/post/the-new-historic-and-archaeological-heritage-and-miscellaneous-provisions-act-2023-in-ireland
[1] ‘Let’s not repeat the mistakes of the past by failing to protect our heritage’ Amy Strecker and Sinéad Mercier https://www.irishexaminer.com/opinion/commentanalysis/arid-41125882.html available 17th December 2023
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