This meeting has been convened to consider the National Monuments (Amendment) Bill 2004. I welcome the Minister for the Environment, Heritage and Local Government, Deputy Cullen, and his officials.
National Monuments (Amendment) Bill 2004: Committee Stage.
Amendments Nos. 2 to 4, inclusive, are related to amendment No. 1. They may all be discussed together.
I move amendment No. 1:
In page 3, between lines 13 and 14, to insert the following:
"(b) in the definition of ‘national monument’, after the words ‘remains of a monument’ by inserting ‘as designated by the Minister and appearing in the National Monuments Register’,”.
The definition of "national monument" will remain as it is. It is accepted, however, that it needs to be expanded upon. This is best covered in the consolidation of the National Monuments Acts which, as colleagues know, is well under way in the Department.
The definition of "works" to include works of regional, local or national importance must remain. This is to cover the likes of public works being undertaken by local authorities, as recommended by the Attorney General, including works initiated or directed by the Minister or a local authority on behalf of the State. The amendment would preclude works carried out by the private sector which would be inappropriate, given that there are many national monuments in private ownership to which preservation orders apply and which are, therefore, also subject to consent for works.
The difficulty arises in respect of national monuments in private ownership which cannot be delisted. Could the associated difficulties be addressed by way of this amendment? Where a national monument or preserved building on private property is a danger to the public, its owner cannot demolish it because it is a preserved structure. He or she cannot repair it because he or she cannot bear the cost of doing so and cannot obtain insurance to cover him or her in case it falls on anybody on his or her land. In some cases, such structures are located on the side of the road and if they fall on somebody, the owner is liable.
I would have no difficulty leaving the list as it stands, as the Minister recommends, if the landowner was indemnified in the event of an accident at a national monument on his or her property. There are genuine cases in which landowners' hands are completely tied. It would be beyond their means to make the monuments safe. One cannot get insurance because they are in dangerous positions. Neither the Office of Public Works, the local authorities nor anybody else will provide the money to restore or make them safe. What can be done in this case?
Perhaps the Minister will address Deputy McCormack's question before I speak on amendment No. 3, which is in my name, and the Minister's amendment, amendment No. 2.
I appreciate the point the Deputy is making. As he probably knows, under health and safety legislation, the local authority can act and I can give consent for any works to be carried out on a monument if so required, particularly on health and safety grounds, as referred to by the Deputy. In many cases, it is clearly the role of the landowner to put a fence around the monument in question, with permission granted therefor to ensure people do not place themselves in a dangerous position.
It is fine that the Minister can give permission but who will provide the resources for the local authorities? In some cases it is not possible to put a fence around a monument, especially if it is located on the edge of a public road. In the case I have in mind the monument is located on the edge of a minor county road which serves approximately ten or 12 houses. I shudder to think what will happen if it collapses on a heavy lorry driving past with a load of blocks for another house to be built up the road, or if it collapses on pedestrians, cyclists or others.
To my knowledge — I stand to be corrected — there are 120,000 monuments listed and there has never been a claim.
Please God, there will never be.
That answers the question. We are not in disagreement. There are responsibilities that fall on individuals as well as the State. The taxpayer cannot take on every liability and responsibility. However, I accept that it is important that local authorities work with those with privately owned monuments and endeavour to assist them in any way they can to ensure the monuments, wherever they may located, are in a safe condition. If consent is needed to do this from the Department, through me, obviously we will provide it and work with them.
This is my last point on this matter but it is very important. I appreciate the Minister is saying he will give consent to the local authority to assist the landowner. However, I have been dealing with the case in question for five or six years, yet the building is in a worse condition every time I see it, in spite of the fact that there are children playing in the vicinity. The local authority's hands are tied because it does not have the resources to make the building safe. The landowner has even offered to allow it to divert the road away from the building through his land but that will not solve the problem because people will still enter the building which will fall on somebody some day. I am delighted to say the claims record is good so far but buildings are deteriorating and nobody is doing anything to make them safe. Landowners cannot get insurance while councils will not give them permission to demolish dangerous buildings because they are preserved monuments. Their hands are tied which leaves them open to serious liability.
I am sure the Deputy will appreciate that I do not wish to refer to specific cases. However, to ensure the record will be correct and the Deputy is aware of all the facts, an engineer's report was commissioned on the monument to which he refers. It was sent by the local authority to the Department which made comments and recommendations. We returned it to the local authority and have not heard another word about it since.
I am glad to hear that. I will follow it up.
That would be fine.
I presume the Minister is talking about the castle at Tullyknye.
I will follow it up with the local authority.
We did intervened, made recommendations and returned the report to the local authority and have not heard another word since.
How long ago was that?
More than a year ago.
I will buck it up again.
I thank the Deputy.
We have a couple of good new councillors in the area and I will get them working on it.
I refer to amendments Nos. 2 and 3 — amendment No. 2 is in my name — which relate to the definition of "works". The Bill seeks to strike a new relationship or balance between the preservation of national monuments and works that may impact upon them. The definition of "national monument" is not being changed. It is defined in section 2 of the principal Act as meaning a monument or the remains of a monument, the preservation of which is a matter of national importance by reason of the historical, architectural, traditional, artistic or archaeological interest attaching thereto. However, a significant change is being made to the definition and scope of "works" which are to be defined in the Bill as "including development works of national, regional or local importance". I understand what development works of national importance might be, and expect they include the construction of a major motorway or the development of an airport, for example. However, what are works of local importance? They might include the building of a hotel or block of apartments. They could include anything.
A sports complex.
Indeed. Presumably, works of regional importance fall between those two categories.
I have two difficulties with the definition of "works" which essentially refers to development works of any kind. I cannot envisage any development work other than perhaps the construction of a private dwelling that could not be regarded as work of, at least, local importance. Therefore, there is a mismatch. On the one hand, the national monument has to be of a standard such that its preservation is a matter of national importance and, on the other, the works that may impact on it need only to be of local importance. There is an imbalance in the Bill. It is one thing to say the impact of works of national importance on a national monument needs to be addressed but the Minister, through this definition, is effectively giving priority to works of local importance, a definition which could include anything, over the preservation of a national monument. I propose that, at least, the reference to works of local and regional importance be deleted from the definition in order that the works that may be considered by the Minister in making an order under the Bill will be confined to works of national importance.
I understand what the Deputy is saying. The Attorney General was very insistent on inserting the definition in question in the Bill. The most obvious types of works are those to which the Deputy has not referred, namely, major water and sewerage schemes which are as important to local communities as any road built. From my experience over the past two years, such schemes are at the top end of the scale by which people regard their economic dependency and ability to develop their local towns and villages. It was put to me elsewhere that it was a pity we talked so much about roads because there would be nobody living at the end of them if there were no water and sewerage schemes which are crucial. This is often forgotten. In some respects they are not seen as important as a big motorway, yet the spend on such schemes on behalf of the taxpayer under the new programme we have just announced amounts to approximately €5 billion. This is as significant as the spend on any other project.
If one draws to their logical conclusion some of the points the Deputy makes, one will note that I am accused of taking away power from local authorities, yet when I recognise that there are substantial issues of local importance which are very much directed by the local authorities, I am also accused of doing the wrong thing. The Minister of the day — it does not matter who — has an overarching responsibility to ensure nothing is being sundered willy-nilly. His or her consent must extend downwards. Equally, there could be a minor project — I do not mean to be dismissive in saying this — which could be important in terms of the overall effect of what is being done in a community. The Attorney General's logic was that we should refrain from completely tying the hands of the local authorities. There must be a recognition that there are different layers to this with the overarching consent at a higher level. That is something on which he was very insistent in a legal sense. Otherwise, we could tie their hands so completely that whoever is here might end up making all the decisions on what local authorities do. That is not what we want.
Many of these schemes are important, complex and difficult. Unlike many big road schemes, water and sewerage schemes can have a substantial impact. They are very complex in different areas. I heard Deputies in the Dáil make the point that where there was flooding, for example, the locals had the solution but they were not allowed to do anything because it would have an effect on the water table and so on. There must be a balance and I believe the Attorney General wanted to ensure this balance between the different strands. I have always taken the view that local government is separate from, but complementary to, national government, that the two must interact together and that we must find a balance, which this does. That is what the Attorney General wanted to ensure.
That is interesting because if that is the Attorney General's advice, the question which arises is for what was the Attorney General asked? We were told this Bill was to deal with the legal problem which arose in the Carrickmines case and that the urgency for this legislation is that there are two ends of a motorway which cannot meet in the middle. As I said on Second Stage, I agree that can only be dealt with now by way of legislation. The motorway must be completed, and I say that with some regret regarding the way in which the whole Carrickmines issue was handled. However, I accept that is the case.
If the Attorney General was asked to advise on legislation to deal with Carrickmines only, he would hardly have given the type of advice the Minister described. If the Attorney General has given advice that the term "works" must be defined in this broad way which would encompass literally anything, it is clear that what he was asked to do was to advise on the preparation of legislation which would allow the Minister to make directions to demolish national monuments in the context of any development work taking place. I heard what the Minister said about the importance of water and sewerage schemes, with which I would agree. If we were confined to water and sewerage schemes, why was it not expressed in terms of important infrastructure? Can the Minister think of any type of development which would not be at least of local importance?
The definition here will allow for requests to go to the Minister for orders to be made and directions to be given, in some cases, for the demolition of national monuments in circumstances where the work involved can be described as "being of local importance". One could describe any type of development work as "being of local importance", including any type of private development. The development of a small shopping complex, an hotel, apartments, housing, a community hall and so on could be work of local importance. If they hit on a national monument, under this legislation, they will be free to go to the Minister and say: "We struck a national monument and we want it demolished."
Just because they make the request does not mean they will get the response they want.
The Minister will have the power. I am dealing with what the Bill will allow to happen. Work of national infrastructure is one circumstance and there is a debate raging about the Hill of Tara and so on, which will continue. However, what the Minister is doing here not only goes beyond Carrickmines, the building of motorways, the Hill of Tara, Woodstown and so on, but he is now turning on its head the balance between the protection of national monuments and development work. This Bill essentially provides that anybody constructing a building who comes upon a national monument can apply to the Minister to demolish it. If someone is making a water or sewerage connection to the mains and he or she comes across something, he or she is entitled to ask if it can be demolished as can someone putting in a gas or water pipe. If any type of development impacts on a national monument, one can apply to have the national monument demolished. That is what this definition means.
We will agree to disagree. The Deputy is presenting this as if people will apply willy-nilly and national monuments will be demolished. The opposite is the case.
Why does the Minister want the provision to be so wide?
I will explain it if the Deputy gives me an opportunity. The Attorney General's view — this is what made it complex in the context of the consequences of the High Court case — was that we could not only deal with the very narrow Carrickmines issue, but that we had to deal with the consequences of it. We had to set out some principles and criteria. If I did not do that, the Deputy would argue the opposite with me because it would have left a huge hole where there would be no mechanism to deal with anything and everyone could do what they liked. What we have done is to try to tighten the situation to ensure no local authority can willy-nilly destroy a monument, which is the point. They may apply to do so but they must go through a rigorous process.
By the time this comes near the Minister, an extraordinarily rigorous process will have been gone through. The expertise available in the Department is substantial. There is an amount of discussion and co-operation on and understanding of what is involved between the experts in my Department and the local authorities. Ultimately, a view would have to be taken but to present this as a charter and state that the intent is that we start to demolish everything is not my view nor, I strongly suspect, would it be that of whatever Minister in this position, from whichever party. I do not think a Minister would get away with it even if he or she wanted to. That is not the approach. There must be a balance.
What is interesting is that the definition of "works" in the 1930 Act is extremely broad. In fact, one could argue that this definition tightens up the 1930 Act by setting out a criteria. The Deputy hit the nub of a point with which I would agree and which I have tried to make. Any consideration of the existing Acts, the National Monuments Acts and that whole area is based on activity levels in Ireland and how they occur, which is extremely different from what we are doing today. We need new and strong legislation, which is what I flagged to the Deputy and others, to deal with what we are doing today which is very different from what the Acts were enacted to address. We must face that and I have no difficulty doing so.
Equally, I must take the legal advice strongly held by the Attorney General, which is what we are doing. It is not a charter to do anything like what the Deputy suggested. I am looking for fairness and balance here but, ultimately, through a detailed and long process, a decision must be made by somebody based on all the facts and criteria.
The definition of "a national monument" includes access to it as well. A local and regional project could offer an alternative access, so there is no damage to a monument. From dealing with people in my Department, I know of their strongly held views on many of these issues. We are involved in approximately 8,000 development applications. That is an extraordinarily rigorous, burdensome and detailed approach but it is the one we take.
At what point in the exercise was the Attorney General's advice given?
At the drafting stage. I should have said that I did not seek this because the Deputy made the point that I sought something. I started out thinking that we would have a short Bill to deal specifically with Carrickmines. I never anticipated anything else, particularly because I knew we were working on a substantial Bill to consolidate the whole area, which is what everybody recognises we need, no matter what side of this argument they are on. Unfortunately, the Attorney General took the view that simply was not good enough and one could not do it, so we need to deal immediately with the consequences of this case. That is why the Bill took much longer than we thought and is complex legislation. It fills a gap until we get to the end of this year and present the issue in its totality.
Deputies raised fair points on Second Stage, such as the definition of monuments, which we will have to attend to in the major legislation.
Will the Minister make the Attorney General's advice available to the committee?
I understand it was verbal advice during the drafting stage.
It always is when we go looking for it, is it not?
I was not involved in that verbal advice and, as the Deputy well knows, I would not be. It was verbal advice between the Parliamentary Counsel and the people from the AG's office. That is the way they work when they try to draft legislation. I do not think letters are written concerning every section of the Bill. I am informed by my officials that this was a strongly held view and that is why we had to do it. That is why it took months longer than all of us thought to get to the point we are at today.
I will conclude on this point, Chairman, because I want the amendment put. The effect of the definition of "works" is to widen it to include works of national, regional or local importance. That is arguably about everything, short of the construction of an individual dwelling house. It is literally opening up a whole array of physical development in the country. When the Bill is enacted, any private developers who come across anything on their sites that they consider to be archaeologically inconvenient, or if the issue of a national monument arises, they will be able to apply to the Minister and seek his permission to demolish it. Essentially, it will give precedence to works of a local nature over the preservation of national monuments.
The irony of what the Deputy is saying is that it is actually the opposite. He may present it in that way, but he is wrong. The legislation is so rigorous, for example, that if a farmer wants to erect a fence he cannot do it just because he feels like it. He must go through a process to do it so that we can make sure he is not interfering or damaging any particular artefact or national monument in any way. That is the point. The Deputy is spinning it the opposite way, whereas we are trying to put an even more enhanced and rigorous process in place. It we did not do so, nobody would have any responsibility. In that case, people could bulldoze anything, build fences and do what they liked, without asking anyone. This is a rigorous process involving local authorities and all the relevant expertise. Either we are beginning to take a view that all the expert advice is irrelevant——
No. I would not take that view at all.
I do not take that view either.
The Minister is the one who does not take the advice of his officials and experts.
I do. The Deputy knows well that I do.
We will see.
Others, including the Deputy, want a Minister in the Department who is a rubber stamp for everything that everybody says. Life would be much easier for me if I sat back and said: "Well, it really doesn't matter. I'll leave them to do exactly what they want to do. I'll be the rubber stamp sitting there and I won't question any development or look at anything. I'll just take the file as it comes in and sign it." That is the what the Deputy wants me to do.
Officials have sought my view, and rightly so, as well as giving me their views. It is like the issue on which I am being nailed concerning Trim Castle. In that case, officials came to me and said it was not a good development and I agreed with them. There were two choices. First, we could just rubber stamp it and let An Bord Pleanála decide or, second, we could go back to the local authority and say "No" if the experts and the Minister of the day decided it was not a good development and was unacceptable. There is the possibility of some development taking place there, however, that we believe does not interfere with the project. That is the decision I took, although it is being presented completely differently. People in the media do not want to hear the truth of the case because it is easier to present me in a different light. Of the 118 cases that came before me, I agreed with the officials in 92 of them. That does not describe a Minister who is sitting in his office passing everything willy-nilly.
I recently had one of the biggest applications before me for a fabulous development at Inch, near Dingle. That development would have meant much to the local community. I took a view on it and my own officials worked extremely hard because I wanted to see it. When the final report came to me I saw the context, including the uniqueness of the sand dunes, and decided that it would be outrageous to disturb it. I did not agree to it, despite all the pressure and the millions that were to be invested.
It is grossly unfair to present me all the time in one particular way. It is wrong because the record does not show that to be the case. There are cases where I have exercised my responsibility as a Minister. I am not crying about it or seeking sympathy but I am looking for fairness, as anyone would. The facts do not stand up in the manner that has been ascribed to me. When I decided not to allow the development at Inch, did anyone stand up and say: "Wait now. Maybe this guy isn't as wild as we all like to paint him?" I am not and my track record of five years in the OPW demonstrates that fact. I will continue to do my job and act responsibly, but not as a rubber stamp. I am not there for that purpose.
The Deputy and others who have questioned me suggest that I should simply accept everything that is shoved in front of me, without expressing my view or having any consultations. That would represent a political failure on my part, however, because it is not what I am there for. I have sat at home in the evenings and asked myself why I bother.
We have said the same thing.
If I did what they wanted me to do, life would be simpler and Deputies Gilmore and Allen would have nothing to shout about. The media would have little to write about and life would be straightforward for me, but that is not the way I see things. I have a responsibility and, rightly or wrongly, I will try to exercise the judgment with which I am charged under the legislation. Given a fair assessment of the judgments I have exercised, people would have to say that I am not off the wall, anti-heritage or anti-environment. That is the record which also applies in the case of the N25. Those are the facts.
We are really lucky to have the Minister.
How long will we have him?
It is becoming wearisome to be presented in a particular light when the facts do not back it up. Today, the facts do not get in the way of a good story anywhere. The facts are irrelevant.
I call Deputy McCormack.
If I could get in——
As the Deputy well knows, I do not mind being in the kitchen, particularly when the heat is on.
When the Minister has finished his sermon on the mount, perhaps I could ask a question. In his last lengthy contribution which contradicted his earlier statement to me, the Minister said a farmer could not fence anything without the permission of the Minister. Some time ago, he told me that a farmer could have fenced in a particular dangerous castle, which is a contradiction. However, I am pleased to have the Minister's assurance that he listens to people because, given the experience on electronic voting, he did not do so; he did not listen to everyone. He certainly did not listen to the Opposition and made little of us at every attempt we made to point out matters.
The Deputy can write that on my tombstone.
The Minister made insulting remarks about my own contribution and those of other Fine Gael Members. Had the Minister listened at that stage, he would not be in the hole he is in now. Nonetheless, I am glad the Minister is turning over a new leaf and that he will listen to people and take their views seriously.
The Minister spoke about a fabulous development which was undertaken before this Bill was published. Will the Minister have greater powers if this amendment becomes part of the Bill than when he said the fabulous development should not be allowed at all?
Is the Deputy referring to the Inch proposal?
The Minister had that power before this Bill was published. What extra powers will be conferred on him after its enactment?
The Deputy is correct in that it gets to the nub of the point. I made the decision to which he referred under the wildlife Acts. I am glad I did so and that I had the power to ensure that development did not take place. The same applies under this legislation for these issues.
There is more than wildlife involved now.
That is what I am saying. The powers to make that decision were provided under a wildlife Act. This Act puts a line under the principal Acts in order to deal with these issues in the same way. Any Minister of the day must exercise a judgment but must also be open to the best advice available even though that advice can often be conflicting. Everyone may have a view, as is his or her entitlement, but ultimately someone somewhere has to make a decision.
I dislike the fact that politicians have given away so much of that decision making to independent groups, with which the Deputy may disagree. However, if one is elected by the public and given responsibility, one should exercise it rather than hiding behind quangos and other groups pretending one does not have the capacity to make a decision. People should make such decisions and I will stand over any decision I make, right or wrong. In time, I hope most of my decisions will prove to have been good ones. With hindsight, some might turn out not to be so good. I am not perfect. Thank God I suffer from that great human condition called imperfection.
I am glad it is not this day last week, Bloomsday, because the Minister's stream of consciousness may have gone on for even longer.
I am in a reflective mood.
I am wondering where all this will lead.
There is a problem with the definition of the term "works" in the Bill.
If the Deputy wishes, I will try to get a fuller and more specific definition for Report Stage. I do not have an issue with it.
In that case, I will withdraw the amendment until Report Stage. I do not want the future of national monuments to be put at risk because a private developer states that his hotel or shopping centre is of great local importance and the national monument has to make way for it.
I do not have an issue with that.
I move amendment No. 2:
In page 3, to delete lines 15 to 17 and substitute the following:
‘the word "works" includes development works of national, regional or local importance;'.".
I move amendment No. 3:
In page 3, lines 16 and 17, to delete ", regional or local".
I will withdraw the amendment until Report Stage.
I move amendment No. 4:
In page 3, line 17, after "importance" to insert "initiated or directed by the Minister or Local Authority on behalf of the State".
I move amendment No. 5:
In page 3, line 30, to delete "relevant".
The deletion of "relevant" is a technical amendment.
Are all the Minister's amendments in order? I am quite surprised that, on this relatively short Bill of nine sections which was published just two weeks ago, the Minister has tabled 37 amendments. It is an astonishingly long list of amendments.
They have all come from the Attorney General.
The Minister gave us a long lecture a few minutes ago about the advice the Attorney General was giving him and what he was doing about it. If a Bill, which was published two weeks ago, requires 37 ministerial amendments on Committee Stage, it must have been a pretty rushed job and we all know how defective rushed legislation can be.
Furthermore, I do not recall the Minister giving notice to the House on Second Stage that he proposed to table amendments on Committee Stage and certainly not in this number. More than half of the 66 amendments for the committee's consideration are from the Minister amending his own Bill. The timetable for the taking of this Bill is at the Government's insistence. We are taking Committee Stage just 12 and a half hours after the Bill concluded Second Stage with 37 amendments from the Minister for which no notice was given on Second Stage.
I submit to the Chairman that all of the Minister's amendments are out of order because he gave no notice on Second Stage that he intended to table them. It is unfair to the committee that, having debated the Bill on Second Stage and been given no opportunity to have a reasonable break between its completion and the commencement of Committee Stage, it should be faced with 37 amendments from the Minister to his own Bill.
It is normal practice that Ministers table amendments after Second Stage. In fairness, many of the amendments which have been tabled are of a technical nature and are intended to tidy up the Bill.
I do not want to wrong-foot Deputies. The amendments are technical in nature and have to be made. The purpose of the timeframe I am trying to deal with — which is generally subscribed to by the Deputy's party — is to get the Carrickmines section of the M50 going over the summer. I wish that it was different but we are in this position and it is important this Bill goes through, not just for Carrickmines but for other reasons too. In that context, this is the necessary timeframe.
The Supreme Court decision on Carrickmines was issued on 25 January. I ask the Minister not to look across at the Opposition and say he is in a hurry. He has had five months since the Supreme Court decision in which to bring forward legislation. This Bill was published only on the day of the election. He guillotined Second Stage last night and is insisting on proceeding with Committee Stage today. That is one thing but he has tabled 37 amendments, which he says are technical. I have had no opportunity to take advice on the amendments and do not know whether they are technical. The Minister has available to him the advice of the Attorney General and his office and many professionals——
Which the Deputy will have some day too.
Very soon, I hope. We have this long list of amendments on which I have not had an opportunity to get advice because I have only been able to address them this morning.
The Deputy will remember he was in a similar situation when he was a successful Minister of State and a similar situation arose. I am trying to remember it because I made points akin to those being made by the Deputy. I accept the points made in good faith.
It was all good legislation.
It brings back memories of the song lyrics, "a long, long time ago".
What is wrong with the word "relevant"? If the word "relevant" is deleted from paragraph (b), it will be very broad. Why does the Minister seek to remove it?
I am informed it was already qualified in subsection (2)(a).
What is the Chair's ruling on the Minister's amendments?
The amendments are in order.
I cannot challenge the Chair's ruling. With respect, there is a long-standing practice that notice be given of intention to move amendments at the end of Second Stage. No such notice was given by the Minister. I accept there are all kinds of technical and drafting clauses that are picked up. Given that Committee Stage is being taken so soon after Second Stage and given the number of amendments, if they are genuinely technical — I have my doubts about that — it is giving the game away. This was a rushed job. We all know what happens with rushed legislation, how it ends up creating problems down the line. Given the number of amendments to the Bill, it is clear its preparation was rushed and its enactment is being rushed because of the way the Government is pushing it through. We will live to regret it.
I thank those who worked on this Bill. They have put an enormous amount of work into it.
I am not reflecting on them. The Minister should not try to put that on me. The Minister is responsible for it.
They have put an enormous effort into what turned out to be very complex legislation. The Deputy might take some comfort from the fact that the entirety of the national monuments legislation will be dealt with later this year. I am satisfied that will be a substantial debate in both Houses and the Deputy will have an opportunity to make any point he wants to make. I look forward to that.
I ask the vice-chairman to chair the meeting for a while. Is that agreed? Agreed.
Deputy Healy-Rae took the Chair.
I move amendment No. 6:
In page 4, lines 4 and 5, to delete“National Monuments Acts 1930 to 2004” and substitute “National Monuments Acts 1930 to 1994”.
This is a typographical amendment.
I move amendment No. 7:
In page 4, lines 31 to 38, to delete all words from and including "Nothing" in line 31 down to and including "made" in line 38 and substitute the following:
"The functions vested in the Minister for Finance and the Minister for the Environment, Heritage and Local Government by virtue of subsection (1) of this section may be vested in the same Minister of the Government pursuant to an order".
This is a technical amendment, albeit a long one. For the benefit of Deputies, this amendment concerns the distribution of functions. On reflection I felt this was a better wording than that used in the Bill. It is only a slight change but is an improvement in the language used. It just describes the functions.
What does the amendment mean?
As the Deputy is aware it arose during the term of the previous Government that any of these functions can be moved if Departments are reconfigurated That was one of the original issues that arose in the Supreme Court about orders made going back to the time of the Rainbow Government which had to be dealt with. This is no reflection on anybody who made the orders. They were made in good faith but there was a technical question mark.
I do not agree this is a technical issue. The allocation of functions as between Ministers and Departments is a matter that always comes before the House by way of amending legislation. If functions of one Department are being transferred to another, usually it is announced when a Government is being formed and there is a debate in the House on it, at least in respect of the formation of Government and the allocation of ministerial portfolios. Sometimes, depending on the nature of the functions, consequential legislation has to be introduced which, effectively, transfers sections of a Department to another. What the Minister is proposing here is that that can now be done by order. That would change very dramatically what has been the previous practice in regard to the allocation of functions.
There is no change at all. These changes are made by orders as a consequence of what the Supreme Court found. This is to bring certainty to the issue. One will probably see a similar provision in a good deal of legislation. The consequence, as I understand it, of the questioning of the orders at the time with the Supreme Court called into question the way this Government and all Governments did it. This is ensure there is no doubt in this area. The Deputy may be glad to have it in there one day.
This is the second or third time the Minister has made this comment in the course of the debate. He is clearly contemplating the possibility of a change of Government. It is very reassuring to hear this. It has a sobering ——
I think the Deputy is taking his remit too far. In fact, it was the Chairman who adverted to that. I did not make that suggestion.
There may be a switch in the team.
It is evident that the storm clouds are gathering.
I hear what the Minister is saying. I will let it go today, but I may return to it on Report Stage. I am at a loss with some of these amendments, as I have not had an opportunity to get advice on them. I will take the opportunity of doing so before Report Stage.
Amendment No. 8 has been ruled out of order.
May I query why amendment No. 8 was ruled out of order, because it seems logical to establish a national monuments register?
It involves a charge on the Exchequer.
What harm if we get it right?
The Government must introduce such a provision.
I appeal to the Minister to reconsider this logical measure and introduce such a register.
I agree with the thrust of the principle of this Opposition amendment. I had no role in the ruling on it. It is a difficult and complex matter and I intend to introduce a provision later in the year.
I accept that.
I move amendment No. 9:
In page 4, lines 45 to 50 and in page 5, lines 1 to 15, to delete subsections (1) and (2) and substitute the following:
"4.--(1) The functions vested in the Commissioners of Public Works in Ireland under the National Monuments Acts 1930 to 1994 which were not transferred to the Minister for Arts, Culture and the Gaeltacht by the Heritage (Transfer of Functions of Commissioners of Public Works) Order 1996 (S.I. No. 61 of 1996) and were not subsequently transferred, are transferred to the Minister, being the Minister as defined by section 2A (inserted by this Act) of the Principal Act.
(2) (a) The administration and business in connection with the performance or exercise of any functions transferred by this section to the Minister for the Environment, Heritage and Local Government are transferred to the Department of the Environment, Heritage and Local Government
(b) The administration and business in connection with the performance or exercise of any functions transferred by this section to the Minister for Finance are transferred to the Department of Finance.”.
I move amendment No. 10:
In page 5, subsection (3), line 16, to delete "section," and substitute "section".
This is a very minor amendment, seeking to remove a comma.
I move amendment No. 11:
In page 5, lines 20 and 21, to delete all words from and including "amended --" in line 20 down to and including "(a)" in line 21 and substitute "amended".
What does this amendment do?
It is a technical amendment that inserts the word "amended" in the correct place.
Given that we are dealing with section 5, will there be a moment to discuss section 5 in the round because I think this is the most damning section of the Bill? I think it seeks to scrap any vestige of heritage protection and give sweeping powers to the Minister. That would be dangerous enough at any time, but especially so with the current Minister, who demonstrated his contempt for heritage when he abolished Dúchas. If the Minister were remotely serious about dealing with the catastrophe at Carrickmines, he would have dealt with the findings of the report of the European Commission. I will not quote extensively from it because I am sure members have looked at it, but it states that " we find the defective non-technical summary is the most significant shortcoming for the EIS in general,". Further on it comments on the archaeology stating that the EIS has many of the right words but not enough information, for example maps to demonstrate how much was known and how much remained uncertain in terms of the scale of the Carrickmines development.
We were dealing with the amendments. This is ridiculous.
We are dealing with section 5, which is the single most damning section of the Bill.
This is not how one deals with it.
I think it warrants commentary in its own right. Had this report been dealt with — and it is page after page --——
This is not a Second Stage debate.
Of course, this is not Second Stage, but unfortunately I am not in a position to move amendments because I am not a member of the committee. Nevertheless this entire section 5 warrants comment on the massive destruction it will bring to bear on the existing legislation.
We will allow the Deputy to comment on the sections as we deal with them, however, now we are dealing with the amendments to section 5.
We will come back to section 5 at the end. That is all right. We will live with that.
Amendment No. 12 is in the name of Deputy Gilmore, and amendment No. 26 is related. Amendments Nos. 12 and 26 will be taken together. Is that agreed? Agreed.
I move amendment No. 12:
In page 5, line 22, after "a" to insert the following:
"monument recorded under section 14 of the National Monuments (Amendment) Act 1994 or a".
One of the problems with the Bill is the prohibition against the disruption of a national monument applies only to monuments in State care or the subject of a preservation order. It is the Labour Party view that that prohibition should apply to all recorded monuments. The recent case in County Kerry where part of a fort was demolished highlights the need for this. The effect of the amendment would be to bring all recorded national monuments, irrespective of whether they were in State care or the subject of a preservation order, under the scope of the protection afforded by the national monuments legislation.
The proposal in effect is that consent should be required for works to all 120,000 sites and monuments recorded in the record of monuments and places and not just those national monuments in State or local authority ownership or guardianship or those covered by preservation orders. Dealing with consents for some 120,000 sites would not be administratively possible. The current consent requirements extend to just over 1,200 known national monuments, that is those in State or local authority ownership or those covered by a preservation order. Furthermore, not all of these 120,000 sites are of such importance to be considered national monuments and affording the same level of protection to all of them would in my view undermine the credibility of any national monuments register that might be established in the consolidated legislation. My Department already successfully deals with the protection of these 120,000 sites through the planning and development process whereby it assesses some 8,000 development impacts annually. This process and the inspection of sites can achieve mitigation. It is better to deploy archaeologists proactively to protect sites than to tie them up in administrative work. The profession would share that view.
Is it the case that the only protection for monuments which are not the subject of a preservation order, or not in State ownership, is a protection under the planning and development legislation?
There are other protections under the Monuments Acts as well. Works to a recorded monument require two months previous notice which will give time to consider a preservation order, if one is warranted but there is also an obligation to agree a solution within that time frame. It must come under the Act. One cannot do as one wishes with a monument. There is a process and people who deal with this process find it better and more active to be out and directly involved than administering a system that could implode. It requires two months previous notice and then one can consider it.
The site to which the Deputy refers demonstrates the difficulties involved at times. Members of my Department spent a long time with the owner of that site and agreements were reached which unfortunately have not been observed. That substantially changes the matter. I will put a preservation order on the site. This requires good will and trust on all sides, and for people to behave properly, understanding that they have individual and collective responsibility in the preservation of many of these monuments. In most cases that works but there is the odd occasion when it does not.
I do not propose to press the issue in the context of this legislation but I will return to it when the consolidated Bill is being considered and I urge the Minister to consider it in preparing that Bill. There is concern about what is happening to the monuments which are outside the preservation order regime. We know, for example, that planning enforcement is more noted for its absence than its presence in many areas and this needs to be addressed.
I do not have an issue with that.
Amendments Nos. 13 to 21, inclusive, will be taken together and amendments Nos. 25, 27, 28, 30, 31 and 33 are related, therefore, amendments Nos. 13 to 21, inclusive, and amendments Nos. 27, 28, 30, 31 and 33 may be discussed together by agreement.
I move amendment No. 13:
In page 5, lines 42 and 43, to delete "and at the discretion of the Minister".
This is the nub of this legislation because the Bill gives the Minister power to order the following actions on or around a national monument: demolition, removal in whole or in part, disfigurement, defacement, alteration or interference; the excavation of, digging, ploughing or otherwise disturbing, the ground within, around, or in its proximity; renovation or restoration — of which none of us could disapprove — sale or export. The Minister will have the power to order these actions at the request of a developer. In the case of a motorway that may be the National Roads Authority but it could also be a private developer in respect of a local development. Before making his decision the Minister is required only to consult with the director of the National Museum who has 14 days within which to respond and thereafter the decision is at the Minister's sole discretion.
I am proposing a series of amendments, first, the deletion of the provision on page 5, lines 42 and 43, that the Minister can exercise this function at his sole discretion. The Minister retains the power to make the decision but this would remove the emphasis of the Bill on the decision being at his discretion, which implies that it is an individual decision.
Amendment No. 14 is prompted by a statement the Minister made on the television programme, "Prime Time", since publication of the Bill, and of which I have the transcript. In the course of an exchange with Dr. Mark Clinton, the archaeologist and site director at Carrickmines Castle, he confirmed that the National Museum would have a power of veto over a proposal to have any of these orders made in respect of a national monument. If that is the case the Bill should provide for that. At a later stage in the same interview, when challenged about the requirement to consult the director of the National Museum, he said "We will have to have agreement between the two Departments. That is the basis of all this ... . And that is the way that it should be." I propose that we include the effect of this statement in the Bill. Amendment No. 15 would ensure that the Bill contains a requirement, not only for the Minister to consult the director of the National Museum but to reach agreement with him or her in respect of work that might be carried out on a national monument.
The purpose of amendment No. 18 is to increase the time period within which the director of the National Museum must respond because 14 days is unreasonable. It is difficult to imagine what consideration the director would be able to give to a request from, or consultation with, the Minister within 14 days. Let us consider again the position of Woodstown, Carrickmines and the Hill of Tara, through which it is proposed to run the N3 and which will inevitably lead to the making of finds. A period of 14 days is unreasonably short in which to expect the National Museum to examine the issue and provide the Minister with a considered response. The period of two months I propose is also a short period. However, such a period is what normally applies in respect of planning applications. The period given over to considering what work will be done to a national monument should at least be as long as that which applies to a planning application to a local authority in respect of even the smallest development.
Amendment No. 25 seeks to replace the word "consultation", in the context of discussions with the director of the National Museum, with that of "agreement". This will ensure that anything which needs to be done will only be proceeded with by way of agreement.
Amendment No. 28 relates to the new section 14A(4)(a) to be inserted into the principal Act, under which the “road authority carrying out the road development shall report the discovery to the Minister”, and seeks to ensure that when such a report is made, the Minister shall immediately notify the director of the National Museum. It was prompted by information I received in respect of Woodstown to the effect that the Minister was aware of the find there some considerable time in advance of it being reported to the National Museum.
Amendment No. 30 would allow the director of the National Museum to exercise a veto against any proposal made under subsection (4)(d). Amendment No. 31 removes the sole discretion of the Minister and amendment No. 33 again provides that a period of two months rather than one of 14 days should be provided for the director of the National Museum to examine and report on finds made during road developments.
These amendments concern the relationship with and role of the director of the National Museum and one of them seeks to remove the discretion of the Minister in granting a consent and to give the director of the National Museum the power of veto. As the Minister entrusted with the protection of the archaeological heritage, I am in a position to state that this amendment misinterprets the role and functions of the museum in respect of archaeology. The director of the National Museum's responsibilities lie primarily with the moveable cultural heritage. The museum does not have the relevant experience and expertise in dealing with monuments. There is provision, however, for full consultation with the director in respect of all consent applications. This will be acted upon in a spirit of co-operation and trust with the director.
I am concerned that if granting a consent were subject to the agreement of their director, this would add extra bureaucracy to the system when we are all trying to achieve better regulation through a single-tier consent procedure. However, where legitimate concerns are raised by the director I will certainly consider them. I can also apply conditions to any consent which would ensure that archaeological concerns are given proper priority.
There is also an amendment to increase the consultation timescale for the director from 14 days to two months. Those seeking consent are entitled to have their applications dealt with expeditiously. The National Museum is well equipped to deal with cases within the two weeks envisaged. If, however, certain cases determine that a longer period is required, there is provision to agree some other period of time. There is a good example of the latter in the news at present.
There is also a proposal that when I am informed by a road authority that a national monument has been newly discovered, I should then inform the director of the National Museum within two weeks. Since I must consult with the director about any directions I may issue in respect of such a newly discovered monument, the proposal is unnecessary. There is no provision in the existing Acts for the Minister to consult the director of the National Museum. This new provision seeks to give recognition to the National Museum. There was previously no obligation to consult with the director. Not everyone is happy that I am including this provision.
The director has considerable powers under the National Monuments Acts. Section 8 of the 1994 Act states:
(1) Where the finding of an archaeological object has been reported to the Director or a designated person under the provisions of the National Monuments Acts, 1930 to 1994, the Director may inspect, or cause to be inspected by a designated person, the land or premises under which or in the vicinity of which the said object has been found.
(2) The Director or a designated person may enter on any lands or premises and there do all such things as may be reasonably necessary for performing his functions under the National Monuments Acts, 1930 to 1994, including carrying out an inspection or excavation where the Director considers that an archaeological object or the site thereof is in immediate danger of destruction or decay.
What I am doing in this Bill, however, is giving the director a new consultative role which did not previously exist.
On "Prime Time" on Thursday last, 17 June, the Minister made two statements in respect of the National Museum. The first was to the effect that it would have a power of veto.
It has a power of veto.
It does not.
In his second statement the Minister indicated that there would be agreement with the director of the National Museum. I have tabled two amendments, one of which seeks to give the museum a power of veto while the other seeks that, alternatively, agreement would be reached with the museum. I offer the Minister the choice of accepting either amendment, both of which are in line with the undertaking he gave the public on national television. Which of the two does he propose to accept and include in the Bill?
Placing the major responsibility on the director of the National Museum of Ireland would be a much more reliable way of proceeding than placing it on the Minister. The current holder of the position of Minister has proven wayward. The director of the National Museum of Ireland is a competent and conscientious person and is deeply interested in our national monuments and could surely be more trusted than a Minister who could be lobbied by road or other developers. The director of the National Museum is well placed to be given a power of veto. If the Minister agrees with that and if he has interpreted another section as effectively granting that power, why will he not, for the purposes of clarity, accept Deputy Gilmore's amendment? I would have tabled such an amendment if I had been in a position to do so but, unfortunately, I am not.
As the Minister mentioned, section 8 stipulates that the director of the National Museum may enter onto and inspect lands etc.
The director can carry out an excavation if he or she so wishes.
Yes, unless the director is overruled by the Minister.
I cannot overrule the director.
The Minister can do so, under the provisions of section 14A(5). The Minister should give the director a power of veto. That would make us much happier with the Bill.
What is the Deputy afraid of? I shall take responsibility; the Deputy's party is only interested in attaining more power in politics and giving it out to all its friends. There will be no point in other party members offering themselves for election by the time the Deputy's party is finished with the electoral process.
My party has shown more interest in the electoral process in terms of electronic voting than the Minister.
We are here to discuss the Bill, not electronic voting.
I am trying to speak, but the Minister persists in interrupting me.
The Deputy is getting plenty of latitude.
Will the Minister accept amendment No. 14 in the name of Deputy Gilmore? If he is interested in giving a veto to the director of the National Museum, that will go a considerable way to alleviate the serious concerns of members with the Bill.
The Government has difficulty in understanding the word "consultation". Consultation is worthless unless one is prepared to listen and act on the views expressed by those with whom one consults. On "Prime Time" last Thursday the Minister was asked by Dr. Mark Clinton whether it was true that if the National Museum objects to a scheme, the Minister will accept that objection. The Minister replied: "We will have to have agreement between the two Departments — that is the basis of all of this — and indeed generally do have in all cases agreement between Departments on this issue. And that is the way it should be...".
That is fine with me. I am happy with that.
Yet in the Bill the Minister is riding roughshod over the museum.
Did the Deputy ask the director of the National Museum for his view?
I did not. I kept my distance.
It is typical of members of the Green Party to speak on behalf of those whose views they have never asked.
With respect is correct. If the Deputy is going to come to this committee and represent the view of the director of the National Museum, the least he might do is to ascertain that view instead of lecturing me.
I considered it best to keep a distance between the director and I as he is my brother-in-law.
The Deputy may not like the answer he would get. I know the director well; he is a fine man and I have had many discussions with him over the years.
I probably know the director even better than the Minister.
The Deputy probably does know him better.
I do not wish to compromise my position on this issue.
Then the Deputy should not come to this committee to lecture me on behalf of someone whose view he has not even ascertained.
I have listened to the views of many eminent archaeologists.
That is a different matter. Does the director want this power?
I have not asked him.
In that case the Deputy should not come in here and lecture me.
It would be inappropriate to ask the director his view but he should certainly have this power. I am concerned about the two-week period stipulated in the Bill. If the director were on holidays, for example, the two weeks would be over before he or she would have time to consider any proposals. Two weeks is a short time in legislative terms. My amendment No. 17 proposes this period be changed so that the director will have five to eight weeks to consider proposals. This is a realistic period and it mirrors the situation that pertains in planning legislation.
The kernel of the matter is whether the Minister is prepared to give the director power in this situation. Or will the Minister have the right to disregard the director's view? There has to be a balance of power. That is the purpose of my amendment No. 16, which provides that the director should have discretion in approving schemes. There must be a balance of powers within the State and there has been a dangerous consolidation of powers in the Minister's Department since he took office two years ago. The Minister talks at length about the need for balance but his actions serve to consolidate power within his Department. My amendments Nos. 16 and 17 and 19 to 21, inclusive, attempt to reinstate some balance.
Which amendments will the Minister accept?
I am not accepting any of the amendments. It is extraordinary that the members who have proposed these amendments have not even asked the director of the National Museum if he wants the power envisaged in their proposals. What I said earlier this week holds up. It is clear from existing legislation — it has been proven by the Carrickmines development — that it is impossible for any Minister to proceed without the agreement of the director. There are 38 archaeologists in my Department who deal with the built heritage. The archaeologist in the National Museum deal with the moveable objects that are found. These are two completely different functions. The expertise lies in one Department, irrespective of who is the Minister, but Deputy Cuffe wants to ignore that expertise and move responsibility to another sphere.
That is not true.
That is what the Deputy wants to do. I know the Deputy's view of politics and politicians and he is entitled to his view. He has a low opinion of his own profession and its practitioners——
Politics is an honourable profession.
The Deputy wants to vest all of the power in a civil servant and leave no role for the politicians. I do not subscribe to that view.
The Minister is incorrect. Politicians should show vision and the Minister is sadly lacking in that quality.
That sentiment does not surprise me. My Department has consulted with the director of the National Museum on this matter; none of the members of this committee has——
Will the Minister bring that consultation documentation to the committee?
This is a new consultative role. What it does is——
May the committee have a copy of the documentation?
A copy of what?
A copy of the documentation of the Minister's consultation with the director.
It may not. It was a verbal conversation; why does the Deputy want a copy of it?
So the Minister and the director had a chat about this matter. That is great.
Since the Minister has had the opportunity to consult with the director of the National Museum, would he agree to suspend the proceedings of this committee so that members can invite the director to attend and give his views on this matter directly?
No. My responsibility——
We have called the Minister's bluff.
There is no bluff in this.
The Minister is on a wing and a prayer.
The Minister should agree to suspend the session until we hear the view of the director of the National Museum.
I shall not sunder Government business. I am giving the Deputy my view.
I am sure the director of the National Museum is well able to speak for himself and does not need the Minister to make representations for him——
That is precisely the point I made when the Deputy was out of the room. The director does not need the Deputy to speak on his behalf. It is Deputy Gilmore and the other members who are the ventriloquists, spouting on for the last 30 minutes about what the director wants. I already questioned whether any of the members had asked the director his view and the answer is "No". The members should not lecture me on behalf of somebody whose view they have not even ascertained.
The Minister said earlier that no Minister could exercise these functions without the agreement of the director of the National Museum. All the amendments seek to do is to make explicit this implicit provision.
If I accept these amendments, the Deputy knows the Bill will end up in the courts where a judgment will be made that somebody must have the ultimate authority to make the decisions. That is the problem with all this legislation. We find ourselves in the courts every day of the week because multiple consents are incorporated into legislation. I quoted last night in the Dáil the Supreme Court's remarks about the consent process being tortuous. They are the words of the Supreme Court. What the Deputy wants to do will worsen the situation. At some stage somebody has to make a decision, otherwise we will end up in the courts and the courts will then decide we must go back and write the legislation properly, which is what happened in this case. That is what we have done, but I went beyond that, although not everybody agrees with this view. Many people take the view that the National Museum, which has a very important role that it is quite capable of fulfilling, should have no role in this regard. There are 38 archaeologists working on behalf of the State and the public in the Department of the Environment, Heritage and Local Government. The Deputy does not appear to consider their advice is validated in any way unless the director of the National Museum, who does not have the same role as they do, approves it. Why would the Deputy want to have all the archaeologists in one Department being approved by a civil servant somewhere else when they have all the expertise?
It is not the archaeologists we are worried about; it is the Minister who directs them.
I know Deputy Cuffe's view. The point is that ultimately someone somewhere has to make a decision. I went further than was required of me. I will probably regret going down this road at all. I decided I would recognise the National Museum under this section and give it a strong consultative role which would put the Minister in a position whereby he or she would have no choice but to consult the director of the National Museum. My direct experience of that in the N25 bypass is a very good one. The provision in regard to the 14 day period or anything else does not arise because it is quite obvious that circumstances can arise where more time is needed.
Fourteen days is not enough.
They can turn the NRA around in 48 hours. I am giving them 14 days and an excavation licence, which I consider reasonable.
I do not understand why the Minister is not agreeing to the amendments. The issue of who makes the decision is very clear; it is the Minister.
That would remain the case. Somebody must have the statutory authority.
There must be certainty from the court's point of view.
Yes, I accept that. Somebody has to sign the order and that is the function of the Minister. That is quite clear and that remains in the amended form we are recommending to the Minister. It is what happens before the order is signed that we are seeking to address. A number of situations can arise; one is that which is contained in the legislation, that the Minister will notify the director of the National Museum, give him 14 days to reply——
I am obligated to do that.
That is right.
That was not previously the case.
The Minister must notify the director of the National Museum, who has 14 days to reply, and, irrespective, of what he says, the Minister can still sign the order because it is at his discretion. That is what the Minister proposes should be in the legislation. What we are saying is in line with what the Minister has said publicly; that the director of the National Museum should have a veto, and that there should be agreement between his Department and the museum. The committee has been told no Minister could exercise this function without the agreement of the director of the National Museum and that this is implicit in the Bill. We suggest a number of formulas to make it explicit in the legislation; one possibility is that the Minister would have the power to decide, unless the director of the National Museum exercised a veto.
Then we will be back before the courts again.
No. This would not be an issue for the courts. If something is in legislation, it is clear. A court could not change the law.
The director of the National Museum or his staff could go to the courts to state they do not agree with the decision.
No, they would not go to the courts.
The legislation would then come back to the Oireachtas-——
The Minister is wrong. They could not do so. There are a couple of ways in which this could be done. One option is to use the veto formula. If the director of the National Museum did not exercise the veto before the Minister signed the order, then there would not be any basis on which to go to court. The second way in which it could be done is to state that there must be agreement. If there is no record of that agreement, there would not be much of a case on which to go to court. The third formula, which is the one recommended by Deputy Cuffe, is that authority is jointly exercised.
All of these formulas are in line with what the Minister has said and for that reason I find this debate rather strange. The Minister said on national television that the National Museum had a power of veto. He also said there would have to be agreement between the two Departments, and that that was the basis of all this and that, generally, agreement was reached in all cases between Departments on this issue, which is the way it should be.
I stand over that. That is exactly what I mean here today and that is exactly what I meant the other night and I will tell the Deputy why.
If the Minister stands over it he should put it in the Bill.
Does the Deputy think that if I wanted I could give permission for the N25 to be built without the agreement of the National Museum? Does he think that is realistic?
When this Bill is enacted, the Minister would be able to do that.
I might try to do it——
The Minister would be able to do it; he would have the power to do it.
How would one get on to the site?
The Minister would not have to go on the site.
With the Minister's record to date, I would not put it past him.
The Minister can stay in his bunker in the Custom House and write the order.
At least I do not spout about how people should live and behave towards the environment and, at the same time, have my oil shares stashed away in America. I will take no bloody lectures from Deputy Cuffe.
The Minister can talk about his inheritance and I will talk about mine.
Anything I have, I earned. I earned it the hard way.
This is an unwarranted digression.
Well done to the Minister.
It might be time for the Minister to take a cigarette break.
I will not take lectures of a personal nature from Deputy Cuffe, like I did with somebody else in the House last night.
There is no need for anybody to become personal.
The Minister got a bit uppity last night.
Personal invective does not get us anywhere.
I agree. Deputy Gilmore might tell his colleagues to stop.
The Minister consolidated ministerial power in other such Acts and took power away from bodies such as local authorities. That is what concerns me about the Minister's record in office.
Thank you. I am proud of that one anyway.
That allowed him to inflict incinerators on people against their wishes and other things like that.
I already consult the director of the National Museum on 2,000 licence applications annually. The system works. There are no outstanding issues between the director and the Department. Clarity in legislation is necessary for the courts. I fully subscribe to what I said on RTE; it is implicit in the legislation, which is why the provision is there in the first place. The director of the National Museum has a role in all of this and neither I, nor any other person, would have the power to go to any site in the country without his or her agreement. That is my view and I believe that is also the way everybody else interprets it.
We are dealing with a large batch of amendments that are in three separate segments. One group relates to the veto or agreement with the National Museum, another relates to the period of time the National Museum has to respond, and the third group relates to the proposal I have in a later amendment that when a road authority notifies the Minister that it has come upon something of archaeological interest it will notify the Minister and the Minister will then notify the National Museum.
When was the Minister first notified about the discovery of the Viking site at Woodstown?
About six or seven weeks ago.
My information is that the Minister, or at least the Department, was notified of this in September 2003.
The Deputy asked me when I was told, I am giving him a straight and honest answer.
I do not dispute the Minister's answer. I accept that if the Minister gives an answer at an Oireachtas committee, it is a truthful answer. My information is that the Department was informed last September that a significant site had been discovered at Woodstown but that it did not notify the National Museum until April of this year.
I understand from the people directly involved that in September it was not clear whether there was anything there. It was only when the excavation took place that the full extent of the discovery became clear. The National Museum was involved once it became clear there was a site. I regard that as perfectly normal and correct procedure. Until some excavations were carried out under a licence granted, it was not known what was there.
If a person digging his field finds an interesting pot or something that seems to be an archaeological object of some kind, is there not a legal obligation on that person to immediately notify the National Museum?
The museum must be notified immediately but not under an excavation licence. This was carried out under an excavation licence. However, the museum is very happy with the situation.
What was the museum doing?
The museum was fully involved. I am not aware of any issue to do with the N25 with which the National Museum is unhappy. If the Deputy is suggesting there is an issue, he should say so but I am not aware of any.
I am merely asking a question. I am trying to imagine the case. A road is being built and something of archaeological interest is discovered in September. I am trying to imagine what was being done between September and April before the National Museum was notified.
There was a site there. The museum only becomes involved when artefacts are discovered during excavation and that is exactly what happened. Once excavation began and discoveries were made, the museum had a role. I find it extraordinary to witness the contempt in which the Members opposite hold the archaeologists from the Department of the Environment, Heritage and Local Government. It assumes they need the National Museum to sit on their shoulders to ensure they do their job. It is an appalling affront to the archaeologists who work in my Department that such a view is taken.
I am thinking more of their political masters.
I know Deputy Cuffe's opinion of me and he does not need to repeat it.
I am curious to know why the Minister is resisting the consultation process as proposed in the amendments. Will the Minister say how other European states have addressed the consultation issue so that the committee can be aware it is not entirely out of step with other European states? I cannot understand why the Minister is so adamant in his resistance to the consultation process as proposed in the amendments.
The Deputy has asked a good question. His colleague, Deputy Olivia Mitchell, was quite complimentary in her efforts to ensure this section did not go too far. To my knowledge, the other European states do not have a system of dual consent. They trust the people responsibly charged to do the job. People looking over their shoulders and people trying to second-guess others, doctors differing and arguing over the case, is what happens here. That is the reason for the frequency of resort to the courts.
Is the Minister sure of his information?
Yes, that is my understanding.
My information is to the contrary.
My information is from my Department. In the case of European countries, the official state archaeologist is the key person and that is the end of it. Deputy Olivia Mitchell, the Deputy's colleague, was very specific on that point when she spoke on Second Stage.
We have reached a point here where everybody wants to second-guess everybody else and this is very wrong. The National Museum and its director have an important role to play. The archaeologists in my Department do not tell the museum how to look after the artefacts in its care. They do not have the expertise in that regard. They trust the people in the National Museum. For example, all the finds discovered as a result of the N25 Waterford bypass are being dealt with by staff from the National Museum. My archaeologists do not tell them how to treat the artefacts because the museum staff are the experts and so it should be. There seems to be an attempt in these amendments to reverse the coin and give the National Museum a superior role to the 38 archaeologists employed in my Department. They propose to give the director of the National Museum a superior role and that is wrong.
I am surprised that given the Minister has a constituency interest in the issue he was not notified of the discovery at Woodstown until six or seven weeks ago.
It could have been two months ago. It had become public knowledge when I visited the site.
Was it on the occasion of his visit to the site that the Minister was informed?
It was a few days or a week in advance of the visit. I can find out the date if there is one. I am being perfectly honest with the Deputy. It was only in the last six weeks to two months.
My information is that the exposure of what was called a large archaeological site occurred in April 2003 and archaeological work was carried out at that time. My information is that a report was prepared dated 23 September 2003, by Mr. Russell. That report would obviously have been submitted to the Department. It stated that a large number of archaeological features of an urban nature, representing large-scale domestic activity, were revealed in both excavation and from geophysical surveys carried out in July 2003. The report, dated 23 September 2003, would appear to have been submitted to the Department at the end of 2003 and was not forwarded to the National Museum until April 2004. The Minister has stated that the full extent of the site may not have been known until later but it seems to be significant, to say the least, to notify the National Museum.
At that point there were no artefacts found. I have now been informed that the geophysical assessments of the route show there may be more than 28 further sites on the route. These will require to be excavated. Thousands of reports on potential sites are submitted to the Department every year. I have seen maps of these potential sites but they mean nothing to me because their significance is not known. They were neither submitted to me nor to the National Museum. Once an excavation is begun, the National Museum is immediately consulted and once artefacts are discovered, the museum is heavily involved.
One should not confuse identification of potential archaeological sites and a major report which states that a potential 28 or more sites exist. This is the first I have heard of this. Until such time as excavations are commenced, there is no cause for alarm. However, there is a procedure to follow once excavation begins. This procedure was followed extremely well. I met many archaeologists in Waterford and I heard no complaints. Everybody was very excited and pleased with what had been done and happy with the way it was being laid out. It seemed to me the National Museum officials were pleased. Everybody is involved and we are trying to reach agreement on how to proceed. Different archaeologists have differing views on how to deal with this issue. We all accept that. I will have to decide on this matter at some stage. I have made it clear in public, despite not yet having received a report on the matter, that I am impressed, at a distance, with what is on the site and many other sites which have potential major importance.
The Minister is giving himself the right to bulldoze the sites if he sees fit.
From the way the Deputy behaves, one would think I had a bulldozer in the back yard at home. Obviously he has no respect for the 38 archaeologists in the Department, whom he has treated with disdain since joining the meeting.
That is not the case.
He has shown them no respect.
I have the height of respect for the archaeological profession.
He should show a modicum of it.
I am concerned, however, about the proposed legislation which will allow the driver of a bulldozer who finds another Ardagh Chalice not to inform the director of the National Museum who would then have no discretion over what to do with it.
I have said all I have to say and been more than fair. Deputy Gilmore is being fair and I am trying to answer his questions.
How stands amendment No. 13?
I have not concluded.
I set up a group, consisting of the NRA, the National Museum, archaeologists and the Department of Arts, Sport and Tourism, to collectively make recommendations on how to deal with Woodstown. I have not yet received its report.
Is the Minister indicating that no excavation was undertaken in Woodstown prior to 23 September?
My officials are indicating that the Deputy is correct. I am not involved in day to day matters of that nature. Does the Deputy not accept that the point at which one says "hold on" is when somebody digging on a site finds something.
I do not accept that. We now know that one of the most significant Viking sites ever discovered here has been found in Woodstown.
We know that because of the excavation.
Yes, but it was also known in September, if not in minute detail then certainly in terms of its significance, yet the National Museum was not notified.
My official is indicating that is not the case. Either the Deputy accepts his word or he does not.
The Minister should not hide behind the top coats of his officials.
The Deputy asked a question and I am giving him an answer.
As the Minister, he is politically responsible and accountable to the Oireachtas. Every time he is asked a hard question or wants to avoid answering a question, he places his officials and archaeologists in front of him to take the bullets.
I never do that. I am not an archaeologist and the Deputy is asking me a question about archaeology. He asked whether the site was known in September. As I did not know the answer, I asked the official beside me who has expertise and is directly involved in the matter. I am not hiding behind anybody. If the Deputy wants an answer to a question, I will answer it if I have direct knowledge. I am trying to impart straightforward information to him. We did not become aware of the real significance of the site until excavations began and at that point all the expertise came on board.
I will ask a different question. The Minister has informed us there are now 28 sites on the——
There are 28 potentially valuable sites. That is not to say that they will all be valuable.
Why did the environmental impact study conducted on the selection of the route not give us this information? I presume some form of geophysical survey was done as part of the EIS. What kind of environmental impact studies are being done that it does not show this up in advance? The State is spending significant sums on consultants to conduct environmental impact studies.
In many cases of environmental impact studies being carried out — Woodstown is a very good example in this regard — it would not be possible to identify any sites until excavation began on the site.
They would have available to them the same geophysical techniques now available to——
No, I understand that must wait until excavations begin. The EIS did not identify Woodstown and it was not until those involved began work on the site that it was identified. One cannot work on the site until one owns the land. One cannot decide to excavate and just walk on to the land. Procedures must be followed.
The EIS did not pick it up on the M25, but it is picked up——
Trenches are dug.
We know what lies ahead as regards the M3.
No, we know there are a number of potentially important archaeological sites on the route. My understanding is that nothing more will be known until some excavation is carried out. Testing excavation licences must be obtained to carry out testing. What is emerging from this conversation is that a myriad of safeguards and procedures is involved in dealing with these matters.
Is the amendment being pressed?
I wish to conclude my contribution on the amendment.
Having given the Deputy every opportunity to discuss and debate the matter, I ask him to conclude.
With respect, our archaeological heritage is thousands of years old. If it takes a little while to consider legislation the Minister wants to enact which would bulldoze and destroy our heritage, so be it.
The legislation will create circumstances in which the Minister, when he decides he wishes to destroy a national monument, will send a postcard to the director of the National Museum giving him 14 days to reply. Contrary to what he has stated publicly on a number of occasions and before the select committee, he will not give the National Museum an effective role in deciding whether a national monument is to be destroyed or removed. He will give himself sole discretion in this matter against a background of his Department having become aware of a significant find in Woodstown in September 2003 about which it did not notify the National Museum until spring this year and of roads plans, the M25 for example, as has been acknowledged——
The Deputy has made a direct attack on my officials.
I am not attacking the Minister's officials.
He is attacking their expertise and the procedures they follow, as well as the people working on the site in question.
How did I attack them?
The implication is that the officials, the archaeologists in question, tried to hide the find from the director of the National Museum.
I did not use the word "hide".
I am surprised at the Deputy.
I repeat that the Department became aware of a significant——
The Deputy said they would send postcards to the director of the National Museum.
No, I stated the Minister would send postcards because the authority and responsibility for these matters is being given to him to exercise at his discretion. That is the matter to which I object. If I had greater confidence that the Minister would pay more heed to his officials and archaeologists and the public servants employed in the National Museum and elsewhere who deliver a public archaeological and heritage service, my objection would not be so strong. He is the Minister who with his Government took the political decision to break up Dúchas.
When members of the joint committee criticise his political stewardship, he should not try to imply that we are reflecting on the good, decent, honourable public servants who work in his Department, the National Museum, other agencies and, previously, in Dúchas. This is about political accountability. The legislation proposes to give the Minister the right to destroy national monuments at his or her discretion. The amendments seek to restore to professional public servants control on the pro-development instincts displayed by the Minister. We are trying to put in place checks and balances to prevent the Minister and his successors exercising the discretion that he is providing them in the legislation to destroy the State's heritage. The Minister should not infer——
Why were these powers not removed when Deputy Howlin was Minister for the Environment?
The Minister is trying to drive a coach and four through the protection of our heritage that my colleague, Deputy Michael D. Higgins, inserted in law when he was the responsible Minister. It is disgraceful.
- Allen, Bernard.
- Cuffe, Ciaran.
- Gilmore, Eamon.
- McCormack, Padraic.
- Cregan, John.
- Cullen, Martin.
- Grealish, Noel.
- Haughey, Seán.
- Healy-Rae, Jackie.
- Kelleher, Billy.
- Moloney, John.
- O’Malley, Fiona.
Amendment No. 14 has already been discussed with amendment No. 13. Amendments Nos. 14 to 21, inclusive, 25 and 27 may be discussed together by agreement.
I move amendment No. 14:
In page 5, line 44, after "may" to insert the following;
", unless the Director of the National Museum of Ireland exercises a veto against such proposal,".
- Allen, Bernard.
- Cuffe, Ciaran.
- Gilmore. Eamon.
- McCormack, Padraic.
- Cregan, John.
- Cullen, Martin.
- Grealish, Noel.
- Haughey, Seán.
- Healy-Rae, Jackie.
- Kelleher, Billy.
- Moloney, John.
- O’Malley, Fiona.
As it is approaching 1 p.m. I propose we adjourn and reconvene at 2.15 p.m.
As it was previously agreed we would suspend at 1 p.m., is it agreed to suspend until 2.15 p.m.? Agreed.
I move amendment No. 15:
In page 6, line 5, after "Ireland" to insert "and reach agreement with him or her".
I move amendment No. 16:
In page 6, line 7, after "subsection" to insert "The Director shall have discretion in allowing such works to proceed".
I will press this amendment, which I discussed in the context of other amendments. I reiterate that a balance of power is necessary to safeguard our heritage. The National Museum has had a long and honourable role in assessing, quantifying, protecting and commenting on our built heritage. I am extremely concerned by the Minister's accumulation of power as provided for in the Bill.
I move amendment No. 17:
In page 6, lines 10 and 11, to delete "more than 14 days" and substitute "less than 5 weeks, and not more than 8 weeks".
The purpose of this amendment is to allow more time for the director of the National Museum to consider granting a consent. Two weeks is a very short period and in the event that someone is on leave or holiday, it could be very difficult for the National Museum to produce a view on a matter on which it is asked to comment. We should follow the model of our planning legislation which provides that the period for adjudicating on a planning application is at least five weeks and less than eight weeks generally.
We could argue the toss on this matter and I would be happy to consider Deputy Gilmore's later amendment. My proposal is reasonable and specifies a minimum and maximum period. Eight weeks is a fair period. With regard to the debacle over Carrickmines and the M50, if the Minister had acted when I wrote to him two years ago requesting that he change the route, the road could well be open.
I move amendment No. 18:
In page 6, line 10 and 11, to delete "14 days" and substitute "2 months".
I move amendment No. 19:
In page 6, line 22, to delete "may" and substitute "and the Director may jointly".
I move amendment No. 20:
In page 6, line 24, to delete "exercising" and substitute "and the Director in jointly exercising their".
I move amendment No. 21:
In page 6, line 27, to delete "is" and substitute "are".
I move amendment No. 22:
In page 6, between lines 37 and 38, to insert the following:
"(3) In this section, ‘public interest' means the principle of sustainable development and in this context archaeological heritage is a non-renewable resource.".
This amendment seeks to define what is meant by the term "the public interest" in the legislation. Paragraph (d) on page 6 of the Bill states:
The Minister in exercising discretion under paragraph (a) of this subsection 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.
What is the public interest? The term is not defined in the Bill or the principal Act and is consequently a subjective judgment on which views will differ. Politics is all about differences over what is understood by the public interest. My understanding of it may be different from that of the Minister for instance. I propose, therefore, that the term be defined to give it real meaning, and that two principles should be underscored in the definition. These are the principles of sustainable development, which I understand the Government accepts, at least in theory, and that our archaeological heritage is a non-renewable resource, a phrase used by the Minister during the Second Stage debate. These two principles need to be incorporated in any definition of the public interest, which is the intention of the amendment.
The term "public interest" does not require elaboration and the section outlines factors that the Minister may have regard to in exercising discretion in a case. These include the preservation, protection or maintenance of the archaeological heritage associated with a national monument. They are listed in section 5(3)(a), (b) and (c) to cover the preservation, protection or maintenance of the archaeological, architectural, historical or other cultural heritage or amenities of or associated with the national monument, the nature and extent of any interference with a national monument and any environmental, cultural, social, recreational or economic benefit that may accrue to the State or an area in which a national monument is situated.
What is meant by the term "public interest"?
I have outlined the definition. It is the "preservation, protection or maintenance of the archaeological, architectural, historical or other cultural heritage or amenities of or associated with the national monument". They are matters in the public interest.
Those are matters, which the Minister stated he is not restricted to considering under section 5(d). It states “In exercising discretion the Minister is not restricted to——
I referred to section 5(3).
That only specifies detail relating to archaeological considerations. The problem is, under section 5(3)(d), the Minister will not be restricted to archaeological considerations, which he or she is entitled to consider in the public interest.
It is odd that a term used in the legislation is not defined. I am offering a definition, which the Minister is not willing to accept. I am trying to establish what is his understanding of the public interest.
I have given a definition of what it means.
The Minister has not done so. He is reciting the elaboration on the archaeological considerations. I do not know what the Minister means by the "public interest". What does it mean?
What I stated covers a wide range of issues, which would be considered to be in the public interest. They have been set out in the Bill. The public interest was not cited in previous Acts. I have added it to ensure the public interest is protected.
What is it?
I have defined it and that is it.
The Minister had not defined it. My understanding of the public interest could be different to his. A consideration is being inserted in the legislation, which will influence the Minister of the day in making a decision. It is not defined.
It is quite clear.
It is not.
It is. The Deputy disagrees, that is fine.
It is not in the public interest to build a motorway through the Hill of Tara.
I have taken no such decision. That is a different matter.
It is not. If the motorway proceeds, the legislation will come into play because archaeological sites will be discovered similar to Woodstown and the Minister will have to make a decision on them. Under the legislation, he will not be restricted to archaeological considerations and he will be entitled to consider the public interest. Is it in the public interest to build that motorway?
I have not received proposals regarding it and I will not speculate on it. If I say something, it will become fact, even though I have not received a proposal in this regard nor in regard to the Woodstown site on the N25. People are constantly appearing on radio programmes to say that a decision has been made but it has not. I do not suggest that Deputy Gilmore said a decision had been taken. I have not received proposals and I will not speculate on what I may do. I am not in a position to because I do not have the facts or the advice of my officials or the National Museum. All those factors will be taken into consideration in formulating a view and the proposal will be forwarded to me ultimately. However, the Deputy presumes I will ultimately receive a conflicting proposal. My experience is such proposals are not conflicting, as there is an agreed procedure in many cases.
More than 2,000 licences are issued annually in consultation with the National Museum. There is no difficulty about that. Most of these proposals are dealt with by good, honest, honourable, professional people who know what they are doing. I do not make a judgment in many cases and I prefer it that way. I prefer that professional people who are expert in these matters should deal with them and a consensus be achieved. That has always been my approach. That is what I am striving towards. The Deputy referred to the 14 day provision but the legislation also states "or in any particular period as may in any particular case be agreed between the Minister and the Director of the National Museum", which is precisely what has happened in regard to the N25.
So it means nothing.
The director of National Museum said this is a complicated site and the full extent of it is not known. I accept that and time is needed to work out an agreed solution with the different people involved in the process. I do not wish to sunder that approach.
I am asking questions but I am getting speeches rather than answers in reply. The "public interest" is not defined in the Bill. The Minister will determine what the public interest is under the legislation. The committee is entitled to have an idea of what is his understanding of the public interest.
There is no obligation on the Minister under existing legislation to take the public interest into account.
The Deputy and I know what matters must be examined in the public interest. Many different factors are involved and they have been outlined in the legislation. I will not go beyond that because they are in the public interest.
The phrase, therefore, is not needed if everything is set out in the Bill.
I do not have a problem if the Deputy wishes to delete the phrase. Less protection is afforded if the phrase is deleted. I am trying to give additional protection. If that is the Deputy's view, he can take it out. I do not have a view on it.
It is not my Bill.
"Public interest" is a commonly used phrase in many areas of business——
Section 5(3) contains a number of subparagraphs which elaborate on what is the "public interest". Will he consider including the principle of sustainability, for example? Will he refer to the Valetta convention, the European Union environmental impact assessment directive or the Government policy document, Framework and Principles for the Protection of the Archaeological Heritage, issued by the Department of Arts, Heritage, Gaeltacht and the Islands in 1999?
Whether the Minister is willing to enshrine the principles of sustainable development in the legislation is an important issue. They are not enshrined in the Roads Act 1993 and it might be a good opportunity to enshrine sustainability in a Bill that deals with archaeological heritage.
Is the Minister at least prepared to look at this on Report Stage?
I can certainly look at it. I do not have an issue with that, as this is well defined in the Bill. I find myself again in the odd situation of trying to improve what people can have views on but that is not acceptable.
I have to look at this because some people's definition of sustainable development is not shared by others, which is the point Deputy Gilmore made. Sustainable development is a very vague term in many respects and Deputy Cuffe has a particular view of what it means, which is quite legitimate, but others have a different view. I have no difficulty with looking at this again. If there is a definition which does not cause confusion and which adds to the Bill I will be happy to act. However, I emphasise that the public interest had no place in this in all the previous Acts and I am trying to give it a place. Those on the outside should be pleased to see the public interest is included here, as it gives an avenue to people to put their views. I am wrong as far as certain Members are concerned, but this is a good thing. It is another way of trying to broaden the avenues people may go down in dealing with this very complicated area.
I know that when all else fails the public interest will be the phrase used in a press announcement, if there is one, publicising an order issued under this legislation. It is one of those cover-all phrases, like the national interest, which can apply to anything. It is an amorphous phrase and covers whatever the Minister wants to do.
Is the amendment being pressed?
No, I will withdraw it and see what the Minister comes in with on Report Stage. Are we going to have a Report Stage — a real Report Stage, not an hour or hour and a half which is guillotined?
There will be a Report Stage.
Amendments Nos. 23 and 34 are related and are to be taken together.
I move amendment No. 23:
In page 7, to delete lines 13 to 17.
The Minister will have to take into account cost implications, if any, that would, in the Minister's opinion, occur from either granting or not granting a consent under section 5(2)(a). It is putting a price on something which is a priceless part of our heritage and it is not necessary. It reminds me of Oscar Wilde’s famous comment about those who know the price of everything and the value of nothing. This provision is not necessary and I seek its removal.
The cost implications arising from either granting or not granting a consent or an issuing direction are legitimate factors that I may have regard to in exercising my discretion. Deputy Mitchell raised the issue of value for money in addressing the correct balance between heritage protection and development. It would be remiss not to take into account the implications for the taxpayer but we must remember that this is only one factor and that there are also clear criteria relating to heritage considerations. I am therefore not disposed to accept the amendments.
I am concerned by the use of cost as an excuse, which could be an open book for destruction if that is what the Minister of the day decides. In terms of the current issue and part of the subject matter of this Bill, the Carrickmines debacle, we have heard the Minister whinge several times about the €6 million which has been spent there and isolating that cost and holding it up on its own as if it were a colossal sum, whereas when one takes the cost of the entire project, the cost of the archaeological investigation as a percentage of that total is reduced significantly. We ought to build in proper estimates at the planning stage for significant archaeological works on these major projects. I am concerned that if the Bill passes, the only archaeological cost will be the cost involved in getting several bulldozers to clear a site. Cost implications would be irrelevant in that case and I am concerned that this is just an excuse. I support the amendment and hope to replicate a version of it.
: Amendments Nos. 24 and 36 are cognate and are to be taken together.
I move amendment No. 24:
In page 8, after line 52, to insert the following:
"(8) Consent under this section shall be given by order, and such order shall not come into operation unless a draft thereof has been approved by both Houses of the Oireachtas.".
This amendment provides that when the Minister gives a consent under this section it should be done by ministerial order and that such an order shall not come into operation unless a draft thereof has been approved by both Houses of the Oireachtas. This provides for some control of the exercise of very wide powers which the Minister seeks to give himself in the Bill. We are talking here particularly about consent for the destruction of national monuments and the Minister should be required to bring a motion before the Oireachtas. That consent should not be operational until that motion is passed by both Houses of the Oireachtas.
I have no intention of destroying a national monument, nor have I ever done so. As I already said, as Minister for the Environment, Heritage and Local Government I am already entrusted with making decisions on our archaeological heritage and it is unduly cumbersome to have to refer such decisions back to the Oireachtas. Moreover, there are clear procedures which I must abide by in arriving at my decisions. This needs to be considered in context. Individual large scale infrastructural projects do not have to be laid before the Oireachtas and in this case the approving Minister is not the person responsible for sanctioning the infrastructural project.
How is it cumbersome to bring something before the Oireachtas? The Minister said it would be too cumbersome to bring before the Oireachtas.
There are so many procedures involved already. I made the point that infrastructure projects do not come before the Oireachtas.
I know the projects do not come before the Oireachtas, but surely a proposal to destroy a national monument should come before it. Under the terms of this legislation the Minister could destroy Clonmacnoise. He would have the power to order the destruction of Clonmacnoise. I appreciate it might be far-fetched in terms of trying to think of circumstances in which the Minister might decide to do that, but the Minister is being given that power in this legislation. At the very least, if a national monument is to be destroyed or if the Minister is thinking about giving an order for its destruction——
I am sure the Deputy would hear about it.
I would hope to hear about it a little more quickly than the Minister appears to have been hearing about matters which should have come to his attention. The Minister knows nothing about the road going through Tara and about Woodstown.
What is the Deputy suggesting?
I am not suggesting anything. I am just repeating what the Minister has been telling the committee.
I said no formal reports have come before me. That does not mean I know nothing about the road.
Approximately ten minutes ago, I asked the Minister whether he thought building a motorway through Tara was in the public interest.
I will not speculate. The Deputy wants to draw me out on that particular road before a report has come before me.
The Minister feigned boredom and told us he knew nothing about it.
I did not feign boredom. I feigned great disappointment if the Deputy wants to know how I feel.
I am sorry about the Minister's feelings but I wish to deal with the——
They are my feelings. The Deputy does not have to bother himself about them.
I am not bothered at all.
We might consider bringing in an emotional therapist or someone like that at a later stage, but we should stick to the Bill before us.
It might help if we sat around and held hands or something like that. If the Minister wants to give the order to destroy a national monument, all I propose is that he should have to bring that proposal before the Houses of the Oireachtas. It is not unreasonable. Why does the Minister not want to do that?
Good luck to the Deputy with this new approach of putting me in a box and of painting a particular type of approach. I will not play that game.
I am not playing a game.
The Deputy has been playing games since I came in here this morning.
This is not a game.
It is not a game to me. It is a serious matter.
Am I supposed to take seriously the Deputy's suggestion that I will bulldoze Clonmacnoise?
The Minister is giving himself the power to do that in the legislation. It is a very serious power. If he wants to destroy a national monument through the power he wants to give himself, he should at least have to come before the Oireachtas with that proposal.
I do not accept the basis of the Deputy's question. If he wants to ask a serious question, I might try to answer it. If he wants to play games for the afternoon——
The Minister does not even want to put such a proposal before the representatives of the people. What he is trying to do is dictatorial.
Why will the Minister not accept the amendment?
For the benefit of the committee and for the record, I have no intention of destroying any monuments. It is so fanciful to supposedly engage in a serious debate on a Bill and to have to put up with the type of issues I must put up with all day. I do not mind engaging with anybody on serious issues and trying to do right by this country, which we are all trying to do, but there is a particular agenda emerging on the other side and so be it.
The only agenda is to protect this country's heritage.
Then the Deputy should support the Bill. There is more in this Bill than exists in any other legislation.
The reason we oppose it is that we do not want to agree that a Minister can decide off his own bat to destroy a national monument. I accept there are circumstances——
There are procedures and safeguards in place.
——and, frankly, Carrickmines was one of them, where a decision must be made about a development, notwithstanding the existence of a national monument.
It has been fully excavated and recorded.
The safeguards and conditions attaching to it should be stronger. For example, consent to complete the motorway at Carrickmines should be put before the Oireachtas by way of a motion. That would not be too complicated. The Minister would come before the House with a motion asking that Dáil Éireann approve the consent he proposes to give. Such motions are brought before the House and there is a debate for perhaps an hour but at least there is the safeguard that the issue is ventilated in public and that the elected representatives of the people make the ultimate decision. The amendment is as much in the Minister's interest as it is in anybody else's, but he will not accept it.
As the Deputy knows, we would end up in a farcical situation. If the archaeologist recommended the we conserve a wall around the Rock of Cashel or elsewhere, we would have to lay the matter before the Houses of the Oireachtas. It might be emergency work in the middle of the summer but nothing could happen as the Dáil would not be sitting. We would have to wait until October and the wall might fall down. This is nonsense.
The Deputy can paint me in whatever picture he wishes but the insulting behaviour towards serious archaeologists that they would recommend to me the bulldozing of monuments all over the country is so far-fetched, one could hardly take it seriously. There is an incredible range of procedures and fail-safe mechanisms in place. The Deputy seems to think that I, as Minister, could walk on to any site in the country, click my fingers, get up on a bulldozer and drive around. I would be breaking the law if I did that. That nonsense might be impressive to some people but it is not serious.
This is serious legislation and we are trying to strike a balance between development and archaeology. There is no question but that there are conflicts, which we all accept. Difficult decisions must be made at times and nobody sets out to put those involved in archaeology or development in those positions. However, given the scale of development-led archaeology, it is likely that there will be elements of archaeology on every site. I trust the archaeologists involved, the people in the museum, the good people who work in local authorities and the codes, protocols and principles that have been agreed between the National Roads Authority and the archaeologists which are followed to the letter. There are codes of practice and procedures in place and steps which must be taken. They do not seem to satisfy. There is no political involvement or interference in any of the above, which is as it should be.
The Minister did not trust them in the case of Trim Castle. He overrode their advice.
I am charged with responsibility. The Deputy wants me, or probably any Minister, to be a rubber-stamp for everything. That is not the way the world operates as far as I am concerned. I listened to my officials and in 92 of 113 cases, I fully accepted what they said. The Deputy should not try to say I do not listen to my officials when it is not true. I very much value the judgment of my officials and it is clear from the decisions I have taken that I carefully take their judgment on board.
In the case under consideration the Deputy takes the view I should have referred matters to An Bord Pleanála. As I said earlier, perhaps life would be easier if I said, "To hell with it. I will not bother my barney. Why should I get involved?" I try to work with officials, to understand the issues surrounding a monument and ask if there are other ways to do something and if there are ways in which we can strike a balance. In this case there was a way in which a balance could be struck.
Was the Minister representing the public interest in the 20% of cases where he did not take the advice?
I listened to the various views expressed but that does not mean I did not take the advice; that is too simplistic a view to take. We had discussions on all of these issues but that does not mean that I did not take all, some or any of their advice. In all cases I took the advice. It is sad for the body politic — not particular individuals or discussions here — that politicians of all parties, including my own, opt to find a way out of everything by referring matters to an independent group but I do not believe in this. While I believe in getting the best possible advice, I also believe in taking responsibility for one's actions.
I am proposing precisely the opposite in this amendment. I am proposing that the issue should be raised in the Dáil.
That is simply not practical. The Dáil sits over 100 days a year. What would we do for the 200 odd days it does not sit?
I have heard many reasons the Dáil should not go into a long recess but the idea that the Rock of Cashel might fall down is a new one.
I was exaggerating.
I know. Let me concede that I was also exaggerating about Clonmacnoise. We are even on that score. Is there any chance the Minister will accept the amendment?
Not in this case. I will not go there. The Deputy knows that the other reason is that we would end up politicising every single decision which would bring the whole process into disrepute because it would divide along political fault lines. This would be disastrous for the protection of archaeological sites which no one, on either side of the argument, would want to happen.
I move amendment No. 25:
In page 9, line 11, to delete "consultation" and substitute "agreement".
I move amendment No. 26:
In page 9, line 23, after "national" to insert "or recorded".
I move amendment No. 27:
In page 9, line 28, before "to" to insert "in writing within two weeks to the Director of the National Museum of Ireland and".
We must introduce more rigour to the reporting mechanism. I am concerned that the reporting mechanism, as detailed in section 14A(4)(a), simply states, “the road authority carrying out the road development shall report the discovery to the Minister”. It does not state when the reporting should take place or whether the report should be made in writing. Neither does it include the director of the National Museum in the reporting procedure. That is not rigorous or does not provide adequate safeguards for such discoveries. We should ensure the discovery is reported in a timely fashion in writing to the National Museum.
We have dealt with this amendment but I am curious about the Deputy's point. Does he believe the archaeologists in my Department should have a veto over everything the archaeologists in the National Museum do? Does he think they should come back to us on how they preserve, mind and protect artefacts? Does he have a higher level of trust in archaeologists in the National Museum than State-designated archaeologists? I am curious to know if there is a difference in his view. He does not seem to be saying the Department of the Environment, Heritage and Local Government should have a veto over how the National Museum carries out its work but is clearly saying he wants a veto over the work carried out in my Department. Obviously, therefore, he has higher respect for archaeologists in the National Museum. Am I right in saying this?
I am not looking for a veto; I am simply hoping the National Museum might be in the loop in some way. This should be done in a rigorous fashion. Reports on such discoveries should be made in writing.
I understand the Deputy's point but I am asking him a question.
That underlines the importance of making such reports.
It should be done in a timely fashion——
That is fair comment which I accept.
——given the Minister's failure to include himself in the loop on much of what went on in his constituency regarding a fantastic archaeological discovery.
The Deputy should not worry. I am not out of the loop.
Officially or unofficially.
There is a difference between the Deputy and me.
I am sure there is.
I trust the experts to do a good job. It is part of how I live my life. I trust them but the Deputy does not. He wants to second guess them all the time. Clearly, he does not trust them. If that is his view, fine. It is implicit in the way he has approached the Bill that he has absolutely no trust in the experts. I could use other words but I will not. He does not trust them; it is as simple as that, whereas I do. I trust the excellent procedures in place which held up remarkably well with regard to the N25 bypass in Waterford. Nobody has gone out on a limb or done anything wrong. All of the parties involved, including the NRA, the National Museum, heritage staff and those working on site, have worked extremely well together.
On a number of occasions today there have been attempts to present the find in Waterford as if there was something underhand happening. I want to nail this because it is simply untrue. I trust the excellent procedures in place. I also trust those charged with responsibility for the project. My officials have not suggested that they should have a role in how the National Museum's archaeologists do their work because they trust them. They are very good at what they do and are well able to do it. Some Deputies take a different view of my Department's 38 archaeologists who are employed by the people, not by me personally. They are experts whose advice is valued by me and the State. Clearly, however, their advice is not at a level that the Deputy could trust. I find this extraordinary.
In fairness, archaeologists are coming under much more commercial pressure than they would have years ago. Their work is being compromised by some of the deadlines to which they are working.
I have told the Deputy that there is no evidence of this.
In years gone by archaeologists monitored all of the top soil, stripping along the route of a proposed roadway. This led to the discovery of hundreds of important sites. Recently, however, the level of archaeological monitoring is heavily restricted on anad hoc basis, or so I am told. There is often now an obligation on construction workers not to report any archaeological objects they find because there is no archaeological manpower to do the work that would have had to be undertaken in the past.
The fact is the opposite is the case. Much time and effort goes into locating archaeological sites during the planning process with a view to examining them to the maximum possible extent, or mitigating the impact as part of the route selection process. In recent years scrutiny of old records, site walkovers and aerial photographs have been supplemented by techniques such as geophysical surveying to gain an impression of what may lie below ground. We all accept that this approach is not conclusive and that the full picture can only be determined accurately when the top soil is removed or other intrusive investigation techniques are employed. In consultation with archaeologists in my Department, the NRA has recently adopted extensive test trenching techniques in a further effort to determine more accurately what might lie below ground.
The authority's activities in this regard are carried out in accordance with a code of practice on archaeology included in the national roads programme in 2000. The Deputy should not sit here and insult those who drafted the code, are working in keeping with the new rigours and pleased to have the resources available to do what was never done before. He should not make such comments which are neither true nor fair. He can make any attack he wants on me as a politician but he should not undermine what good people, many of whom I have met, have been doing in recent years.
The Deputy is correct in saying different views emerge among archaeologists which reminds me of the phrase which includes the words "doctors differ". At times I am faced with different views, as will others. However, one must ultimately make the best decision one can based on the available evidence which should be reasonable and fair. In respect of the Waterford site, one archaeologist has told me informally that one could build over it without causing any disturbance. Others disagree. I have not accepted this view but it is an example.
I accept that. My difficulty in respect of the Waterford site is with the delay in the reporting mechanism.
There is no delay. The procedure is being followed to the letter. Nothing has been done on the site, as is clear if the Deputy cared to talk to the archaeologists concerned. I have spoken to the director.
They are often precluded from talking to others by virtue of the terms of their contracts.
When I was informed about the discovery, I took the time to visit the site, about which I did not know anything and where I met many archaeologists. The great sense of excitement was obvious from the way they described some of the artefacts which had been found.
I did likewise in the case of Carrickmines in my constituency where many archaeologists told me that they were barred by the terms of their contracts from communicating with me. There are other issues involved.
I do not want to be forced to make this point to a committee but people should know and understand that when a potential site is identified, topsoil is removed and evidence uncovered, it is important from the archaeologists point of view that this does not immediately become a big issue in the public domain because everyone with a metal detector will descend on the site. They need time to secure it and do their work. I acknowledged that this is an important aspect of their work which they must be allowed to do. In many cases, the less said the better. It is not me but the specialists and experts employed by the taxpayer who are doing the job. We must trust them to do it correctly.
When Deputy Gilmore referred to Carrickmines, he raised other issues which had nothing to do with the project and what had happened in the interim. Deputy Morgan was wrong because I can state with certainty that much more than €6 or €7 million has been spent along the entire M50.
I was only talking about Carrickmines.
That is what I am talking about. The project involved 130 archaeologists, rightly so. While I am not complaining, by any fair and reasonable assessment, the State, no more than anyone else, does not have unlimited resources. Nonetheless, in respect of archaeological sites, we are doing what no other country is prepared to do. There is no comparison with what is happening in other countries in terms of the resources allocated and the number who can look forward to a long and healthy career in archaeology. This is because the taxpayer is prepared to pay.
Judging from the Bill they will need to learn how to drive a bulldozer.
One aspect of the Bill which bothers me is the language used. All we have done is transpose existing text. I do not like the language used in the Bill. Words such as "destroy" and "destruction" are used, even though none of us has any intention in that regard. While it is not new and I am not adding to it, I would like to examine the use of such language when I come to deal with the main Bill. I could not rewrite the existing Acts in the time-frame available.
We are here because we need to have the M50 completed.
The Minister wants more than that.
As a result of the High Court judgment, other cases were struck down. That was not the fault of anyone here but the issue must be dealt with. In spite of what has been said on the other side, the thrust of the Bill is to stop people destroying monuments. They will now know they cannot do this, that they will have to seek proper directions to do so. It is presented in such a way that one will have to seek ministerial directions. However, having the Minster sitting in an ivory tower does not work, as Deputy Gilmore knows as a former Minister of State in the Department with responsibility for the marine. It does not work like that. The Minister is at the end of a process and depends on very good people to work through it.
Is the Minister suggesting that, in the case of Carrickmines, we will find a better solution as a result of this legislation?
We are back once more to the M50 and Carrickmines. The biggest problem I have with the Bill is that the necessity to complete the M50 at Carrickmines is being used as cover to open up existing statutory protections for our heritage. The Minister has conflicting roles. He has lead responsibility for implementation of the national development plan, in which role he is required to promote the development of necessary infrastructure and so on. In the light of this, he should not also have responsibility for the protection of our heritage, two roles which are in conflict.
That brings us back to the question of the reasons functions in respect of our heritage were removed from the then Department of Arts, Culture, Heritage, the Gaeltacht and the Islands and relocated to the Department of the Environment and Local Government. It was one of the strangest decisions announced by the Taoiseach on the day the Government was formed after the 2002 general election. It is a good example which indicates the reason the two briefs do not sit easily together. We are back to the problem where the Minister who must drive development of the country's infrastructure is also judge and jury when it comes to protection of our heritage. Manifestly the two roles are in conflict.
That is ironic, given that the then Minister for Arts, Culture, Heritage, the Gaeltacht and the Islands agreed to the route at Carrickmines, not me.
The Minister is in very bad form. Therefore, I will go easy on him.
I am not. The Deputy is wrong.
The Minister's inclination to take advice from his officials could be his big mistake. A perfect example is his attitude to the electronic voting debate. Had he listened to Opposition Deputies, he would have emerged from it in a much better light. There are other examples but we will not send him up the wall by referring to them. If he is to have any chance of holding on to his portfolio, he will have to change his approach. Legislation such as this will not help.
I am conscious that we allocated considerable time to discussing this issue before lunch. Does the Minister want to reply?
I move amendment No. 28:
In page 9, line 28, after "Minister" to insert "who shall immediately inform the Director of the National Museum of Ireland".
As this addresses the same point as amendment No. 27, I will withdraw it.
I move amendment No. 29:
In page 9, line 29, after "subsection (7)" to insert the following:
"of this section, and pending any directions by the Minister under paragraph (d) of this subsection”.
This is a technical amendment. To clarify, nobody can do anything destructive or otherwise where the Minister is requested to give directions, even on public health and safety grounds. It is as simple as that. It is a belt and braces provision.
It contradicts the Minister's statement that one might have to wait a whole summer to carry out works at the Rock of Cashel. He is giving himself significant latitude to carry out works that need to be done in a hurry.
They are not works I would be doing.
The Minister said one could be left waiting all summer with a potentially dangerous situation at the Rock of Cashel, for example. This amendment allows the authority to carry out such works as are necessary.
I move amendment No. 30:
In page 9, line 48, after "may" to insert the following:
", unless the Director of the National Museum of Ireland exercises a veto against such proposal".
I move amendment No. 31:
In page 9, line 48, to delete ", at his discretion,".'
I move amendment No. 32:
In page 10, line 11, after "shall" to insert ", except where section 14B(8)(a)(iii) of this Act applies,”.
This is a technical amendment drafted by the parliamentary counsel.
I move amendment No. 33:
In page 10, line 20, to delete "14 days" and substitute "2 months".
I move amendment No. 34:
In page 11, to delete lines 18 to 23.
I move amendment No. 35:
In page 11, between lines 23 and 24, to insert the following:
"(7) In this section, ‘public interest' means the principle of sustainable development and in this context archaeological heritage is a non-renewable resource.".
We agreed to come back to this amendment on Report Stage.
I move amendment No. 36:
In page 11, between lines 30 and 31, to insert the following:
"(8) Consent under this section shall be given by order, and such order shall not come into operation unless a draft thereof has been approved by both Houses of the Oireachtas.".
Amendments Nos. 38 to 45, inclusive, and amendments Nos. 48 to 59, inclusive, are related to amendment No. 37 and they may all be discussed together.
I move amendment No. 37:
In page 11, line 33, after "development" to insert "approved".
These amendments comprise a long list of grammatical corrections.
Amendments Nos. 39 and 40 involve the replacement of a word.
They are not replacing words but commas——
To which amendment is the Deputy referring?
Amendments Nos. 39 and 40. Amendment No. 39 seeks the deletion of "condition" and the substitution of "modification" in page 12, line 1.
"Modification" is the word used in the planning Act. The wrong word was used in this Bill.
I move amendment No. 38:
In page 11, line 42, after "the" to insert "approved".
I move amendment No. 39:
In page 12, line 1, to delete "condition" and substitute "modification".
I move amendment No. 40:
In page 12, line 15, to delete "condition" and substitute "modification".
I move amendment No. 41:
In page 12, line 18, to delete "condition" and substitute "modification".
I move amendment No. 42:
In page 12, line 22, to delete "road development as approved" and substitute "approved road development".
I move amendment No. 43:
In page 12, line 25, to delete "effect" and substitute "effects".
I move amendment No. 44:
In page 12, line 39, to delete "effect" and substitute "effects".
I move amendment No. 45:
In page 12, line 48, to delete "effect" and substitute "effects".
Amendments Nos. 47, 61 and 64 to 66, inclusive, are related to amendment No. 46. They may all be discussed together.
I move amendment No. 46:
In page 13, lines 5 and 6, to delete "Schedule 2 to this Act" and substitute the following:
"Schedule 7 to the Planning and Development Regulations 2001(S.I. No. 600 of 2001), the text of which is for convenience of reference set out inSchedule 1 to the National Monuments (Amendment) Act 2004”.
While these amendments look substantial, they simply seek, in effect, a realignment of the text resulting from the moving of the Schedules to the end of the Bill. They have no effect on the meaning of the Bill. The Schedule was in the wrong place when the Bill was first drafted.
I move amendment No. 47:
In page 13, line 37, to delete "theSchedule” and substitute “Schedule 2”.
I move amendment No. 48:
In page 14, line 13, after "the" to insert "approved".
I move amendment No. 49:
In page 15, line 38, to delete "plan".
I move amendment No. 50:
In page 15, line 42, after "the" where it secondly occurs to insert "approved".
I move amendment No. 51:
In page 15, line 45, to delete "plan".
I move amendment No. 52:
In page 16, line 19, after "the" to insert "approved".
I move amendment No. 53:
In page 16, line 22, to delete "effect" and substitute " effects".
I move amendment No. 54:
In page 16, line 41, before "road" to insert "approved".
I move amendment No. 55:
In page 16, line 48, after "the" to insert "approved".
I move amendment No. 56:
In page 17, line 5, after "the" where it secondly occurs to insert "approved".
I move amendment No. 57:
In page 17, line 33, after "the" to insert "approved".
I move amendment No. 58:
In page 17, line 42, before "road" to insert "approved".
I move amendment No. 59:
In page 18, line 16, after "development" to insert "approved".
I move amendment No. 60:
In page 18, to delete line 53 and substitute "granted.'.".
I move amendment No. 61:
In page 19, lines 1 to 40 and in page 20, lines 1 to 23, to delete paragraph (b).
Section 5 contains significant changes giving the Minister extra powers. It is being opposed by the Labour Party.
I am conscious of the concerns expressed in the Dáil that the M50 must be completed without further delay. In view of the threat of further legal action, it is imperative that the procedures for dealing with the completion works at Carrickmines are as uncomplicated as possible. My directions will cover correct practice in terms of the archaeology of the site. The National Museum is aware of this approach.
What is the Minister's intention for the enactment of the legislation? Is it to be completed before the summer recess?
Yes, in order that work can start on the M50.
Will the Bill come into operation immediately?
Yes, when the President signs it.
The Minister will then——
Dún Laoghaire-Rathdown County Council will have to go back to the High Court and withdraw its undertaking not to do any works on the site. Once that happens we will give directions. That will not come as a surprise to anyone.
Will the Minister first go to the National Museum under the terms of the legislation?
Not on the Carrickmines issue specifically, although discussions are taking place. I made this clear on Second Stage.
What will happen in practice——
All consultations with the National Museum on the Carrickmines site have taken place under the existing licences. They are complete.
Is it the Minister's intention to give consent under this legislation?
Yes, in respect of the Carrickmines site. I will give directions. In order that I am not misquoted, it will include directions to finish the archaeological works properly. As the Deputy is aware, nothing is happening at the site. I will be specifically going for mitigation.
Is everything ready to go?
I am sure it will be referred to me immediately once the legislation is ready.
What is the Minister's information on the completion of the motorway? How long will it take?
To be honest, I do not know. It is within the remit of the National Roads Authority and another Department. The understanding is that if the work can be done during the summer, spring 2005 is the objective.
I am still opposed to the section.
I move amendment No. 62:
In page 21, line 15, after "Minister" to insert the following:
"given after the liaison with the Director of the National Museum of Ireland referred to in section 14 of the Principal Act".
The Minister has informed us he intends to give the order in respect of the M50 without any further consultation with the director of the National Museum. I know there has been a great deal of discussion about the Carrickmines site. This legislation makes the position even more ridiculous. It is intended to address the Carrickmines site issue and provides for a procedure whereby the director of the National Museum will be consulted and given all of 14 days to reply. Under the provisions of section 8, the Minister says he will not do this.
The position on the Carrickmines site is clear and the director of the National Museum is aware of it. To be fair to all sides, there has been incredible consultation and a tremendous amount of work done. I do not think the Deputy is trying to be disingenuous. I have also said the directions will include the archaeology of the site. The Deputy knows full well what my intentions are. I understand that less than 10% of the site at Carrickmines will be affected by the remaining works.
We are back to——
What we are trying to do is keep the procedure as tight as possible to prevent the courts giving out about our poor quality legislation. The consent procedures were described in the Supreme Court as torturous. That is part of the difficulty between the Deputy and me but not in a rancorous way. The more I learn about this issue the more I understand — this is not something the Deputy or I would want — that there is a multiplicity of procedures between the different bodies involved. That is fine at one level but others seek to drive a coach and four between them and keep going to the courts to play one off against the other. This is something we need to avoid. What we want is good consultation, a good understanding and good mechanisms, principles, procedures and codes of practice to which everybody will adhere.
What we want is genuine public consultation.
The Carrickmines site was identified in 1983 by An Foras Forbartha which was abolished by Mr. Haughey's Government. Many concerned about the environment at the time warned of the consequences of its abolition and it has turned out that way. Its work was not addressed in the environmental impact statement.
The Minister is correct in saying the problem is that the processes for major infrastructural works take forever to complete. However, there is no genuine consultation because nobody is listened to; it is all about keeping the process right and glossing over and trying to find ways around problems when they appear. We would be better off having a genuine public consultation process where people would be listened to, where expert opinion when offered would be taken seriously and then addressed. What happens is that the process is gone through, everybody makes his or her submission and has his or her say but nobody pays a blind bit of attention to what is said and the project carries on regardless. Then, as soon as a difficulty arises, in this case a national monument, the whistle is blown, people take to the courts and the whole process is held up. The costs associated with building the M50 would have been far lower if the procedures leading to route selection had been different.
The difficulty that people such as the Deputy and I have at the end of the process is borne out by the report of the An Bord Pleanála inspector on the M3 motorway:
Having regard to all the evidence given at the Hearing and the cross-examination on the archaeology impacts in the Tara / Skreen area presented at the Hearing and to the details set out in the EIS, I am satisfied that the route as proposed would not have a significant impact on the archaeological landscape associated with the Hill of Tara. . . . I also consider that the route proposed will not impact significantly on the archaeological landscape associated with the Hill of Skreen.
That is what the inspector said and An Bord Pleanála accepted but it remains to be seen just how embarrassing that statement may yet turn out to be for those who authored and accepted it. Something similar was said in respect of the Carrickmines site.
What is happening is that inspectors who hold hearings are in a difficult position. An agenda is being pursued by the Government — motorways must be built — and being run by the National Roads Authority on behalf of the State. The authority was the creation of the Roads Act which effectively wrote public processes and public representatives out of the whole exercise with a view to fast-tracking road development.
If that was the purpose.
It was. The Minister is right; it was not successful, the reason the lesson should and must be learned.
The Minister referred to the Hill of Tara and the Hill of Skreen but the archaeologists who sat in my office said they had made a submission in which they had identified archaeological issues which were far more far-reaching than those addressed in the scheme, as adopted. They told me bluntly that they had not been listened to. All I am saying is that the processes are faulty and need to be looked at.
The difficulty is that issues are being addressed at the eleventh hour which should have been addressed at a much earlier stage. What is happening throughout the public consultation process is that where a difficult issue arises, the instinct of officialdom is to find a way of saying it has heard all of this before and has reached the conclusion that it does not impact significantly on the area mentioned. That is the wrong approach. It would be much better when issues are identified and somebody has a genuine concern about a road development, whether it is archaeology, that the road comes too close to his or her house or splits his or her farm in two, if the issue was faced up to and a practical and reasonable solution found. What is happening is that people have their say but they are ignored and official Ireland finds a phraseology inserted into the environmental impact statement which glosses over it and there the matter rests until the contractors move on site and it flares up again when we are all in trouble.
I take the Deputy's point. What is interesting is that the rest of Europe looks on and sees Ireland as the foremost country in the protection of its archaeology. They think what we are doing is astonishing; the records we are creating, the archaeological survey of Ireland——
It is marvellous. The Minister has a different view on that also.
I have discussed with my European colleagues on many occasions some of the big projects that they fast-track. They do not take a lot on board in the way we do. If one looks at the codes of practice, one will see that the Deputy is correct that early identification is clearly of major importance. All of those involved, including the National Roads Authority, those who work with them and the staff in my Department, have better methodologies and technologies in place to try to detect and, as the Deputy rightly says, head off problems. I do not believe any developer, the NRA, Department or official wants to be embroiled in public controversy over an archaeological site. Why would one set out to do that?
From the little experience I have of archaeology, it is clear from listening to archaeologists that one can have all of this, that it is very important and that it clears the way in many respects but inevitably there are times when one moves on site and something completely unexpected is discovered. Anybody who has spoken about the N25 has said it was completely unexpected. That is not to say that as a young man with a knowledge of the history of my city I was not aware that supposedly the city was originally located somewhere up-river but not as far as where they found it. They were surprised at the extent of the findings. It was fantastic. They realise they would never have found it if the road had not taken that route. The fact that it is being built presented them with an opportunity to find something that would never have been found.
Of all the things the Minister has told us today, the idea that he and officials from the NRA were jumping around the office, whooping with delight that the Viking site had been found in Woodstown beggars——
Does the Deputy not think that, as a Waterford man, I have a sense of enjoyment in this? Is he suggesting that somebody born and reared in Waterford is not absolutely delighted that something of such significance has been found? Either he does not know me at all, or people are painting me into some corner. I am absolutely delighted. It will be great. I know the museum is very excited at the volume of artefacts being found. I know of the work it is doing in preserving the numerous and varied artefacts found. I am delighted, as a Waterford man, that they have been found. I was merely presenting the irony to the committee.
I know the area of the city along the river well, having played there as a child. I might never have lived to see this if the opening of the route had not led to its discovery. It seems that much of the site is not located along the route but is in private ownership. We shall see how it is managed. It is very interesting and I am delighted but it presents me with a problem knowing that the city has come to a standstill for want of a bypass for over 25 years. On the other hand, it is a magnificent find. I have absolute confidence in the archaeologists in the Department, the NRA and those involved in the museum, and made it clear to all concerned that if they arrive at a consensus and find the best methodology, I will support it. They are trying to do a complex job. While other factors have arisen, I have not received a formal position paper from them.
That is the reason I specified a 14 day response time in the Bill on the question of discussion with the director of the National Museum. I have included the words, "or such other period as may, in any particular case, be agreed to between the Minister and the director of the National Museum of Ireland". This covers a potentially more complicated issue such as the N25 where time must be found. I do not live in a cocoon that renders me immune to all that has been said, or that would send me off on my own to order the destruction of monuments. That is not in my nature and the public would not allow it. The outcry would be loud. Many other Acts would also prevent it. Whoever sits in this position tries to grapple with this.
I agree with the Deputy that in many respects the existing Acts do not have the capacity to cope with development-led archaeology and other issues that have arisen in recent years. This is very different from traditional archaeology and we need a substantial Bill to consolidate all of those Acts and deal with many of the issues which the Deputy and others have raised. We must find ways of dealing with this. One certainty in this debate is that there are no simple solutions but good will, trust and a belief in trying to work for it can deliver a significant result. I have very good examples, not only of this area, to show that people who appear at the outset to be in conflict but develop good working relationships can achieve a great deal. One can often depend on this because for all the hard law good mitigation comes from people.
As noted, the difference between planners is remarkable and I see the frustration of colleagues in all parties at instances of this. It often comes down to good people who understand the brief and can work with others. They may not always agree and get what they want but those who understand their role and are willing to be proactive instead of reactive overcome many obstacles. There are good examples of this, as well as appalling ones which began from an adversarial position. That is when it begins to go wrong. A proactive opening and an all-embracing approach yields a different result. We will never remove human nature from the equation. While we must set down good parameters, law, procedures and principles, good people are the key to making it work well. That has been my experience in any activity in which I have been involved and this is a very good example.
I accept the Minister's bona fides on Woodstown. On the general point, however, one of the greatest disappointments in the Bill is that although there were lessons to be learned from the Carrickmines site issue, the Minister is learning the wrong ones. That issue taught us the need to improve the consultative procedure, route selection, issues surrounding the EIS and so on at an early stage; to face up to the requirement to protect our heritage when, for example, a site is discovered and found to be more extensive than originally thought. Two years ago when the Carrickmines site controversy was at its height, there were proposals to develop the motorway at a higher level, to move it over the site, or find a way around it which would have required changes to the motorway scheme etc.
The lessons were such that in the case of Tara-Skreen a motorway order has been made and agreed but already people say it is flawed and the EIS did not take account of everything. The extent of the archaeology is greater than originally thought and the lesson was to review the scheme, as in the case of the Hill of Tara project. If this is not done and people are sent into an area, the problems encountered at Carrickmines or Woodstown will be multiplied. Instead, the approach should be to take stock, review the scheme and try to find a more acceptable route. Unfortunately, this lesson has not been learned. The lesson the Minister has learned is to find a mechanism by which, when the problem is discovered, the national monument can be knocked down.
The Deputy is being unfair to everybody involved. The irony is that for the first time this Bill provides what he says should have been there in the first place. It gives me power to order the altering of the motorway route.
It does not.
The Minister must go back to An Bord Pleanála.
For the first time this power has been included. We are taking a proactive step from the point of view of archaeology and heritage, based on the points the Deputy has enunciated and with which I wholeheartedly agree. The Deputy may read the Bill.
I have read it.
The Minister of the day — this is not personal — can direct the alteration of the route on archaeological grounds.
No. The Minister can send it back to An Bord Pleanála.
That power was never provided for. An Bord Pleanála is the decision-making authority on all such routes. All power is vested in it, not at local authority level.
That is one of the provisions in the Bill that I welcome and to which I referred on Second Stage.
It is a great step forward.
It also gives the Minister power but we will not repeat ourselves. We have been over this ground before and will not revisit it.
I move amendment No. 63:
In page 22, before section 9, to insert the following new section:
"9.—Nothing in this Act derogates from the responsibility to convey archaeological objects discovered in the course of works to the National Museum of Ireland or derogates from State ownership of such objects.".
It has been brought to my attention that there is a statutory responsibility on somebody who discovers an archaeological object to report it to the National Museum. Since the Derrynaflan case, it has been established that the State has ownership of archaeological objects. It needs to be made clear that nothing in the legislation will either derogate from the responsibility to convey archaeological objects discovered in the course of works to the National Museum or from the State's ownership of such objects. I refer, for example, to situations where the Minister might give consent for the destruction of national monuments and where there might be identifiable archaeological objects on site which, in the normal course of events and if they were not part of the site, would be conveyed to the National Museum. The need for them to continue to be conveyed to the museum needs to be underscored, in addition to the State ownership of such objects.
While the Deputy's point is important, section 9 of the National Monuments (Amendment) Act 1994 already provides for the director of the National Museum to take, on behalf of the State, possession of archaeological objects with no known owner. There is no proposal in the Bill to interfere with this power.
If the Minister gives consent for a private development, a find is made and he makes an order permitting——
This happens all the time. It is part of the licensing consent mechanism that if a find is made, the developer is obliged to hand over the particular artefacts.
It is covered in the giving of consent.
Must there be such a stipulation?
Yes. Those who make finds are obliged, under law, to report them. This happens all the time on private developments.
Given that the Bill will provide for consent——
We can return to the matter on Report Stage. I accept the point the Deputy is making. If we need to make specific reference, we will do so.
I move amendment No. 64:
In page 23, before the Schedule, to insert the following new Schedule:
Text of Schedule 7 to the Planning and Development Regulations 2001
CRITERIA FOR DETERMINING WHETHER A DEVELOPMENT WOULD OR WOULD NOT BE LIKELY TO HAVE SIGNIFICANT EFFECTS ON THE ENVIRONMENT
Articles 103, 109 and 120
1. Characteristics of proposed development
The characteristics of proposed development, in particular:
— the size of the proposed development,
— the cumulation with other proposed development,
— the use of natural resources,
— the production of waste,
— pollution and nuisances,
— the risk of accidents, having regard to substances or technologies used.
2. Location of proposed development
The environmental sensitivity of geographical areas likely to be affected by proposed development, having regard in particular to:
— the existing land use,
— the relative abundance, quality and regenerative capacity or natural resources in the area,
— the absorption capacity of the natural environment, paying particular attention to the following areas:
(b) coastal zones,
(c) mountain and forest areas,
(d) nature reserves and parks,
(e) areas classified or protected under legislation, including special protection areas designated pursuant to Council Directive 79/409/EEC of 2 April 1979 and Council Directive 92/43/EEC of 21 May 1992,
(f) areas in which the environmental quality standards laid down in legislation of the European Communities have already been exceeded,
(g) densely populated areas,
(h) landscapes of historical, cultural or archaeological significance.
3. Characteristics of potential impacts
The potential significant effects of proposed development in relation to criteria set out under paragraphs 1 and 2 above, and having regard in particular to:
— the extent of the impact (geographical area and size of the affected population),
— the transfrontier nature of the impact,
— the magnitude and complexity of the impact,
— the probability of the impact,
— the duration, frequency and reversibility of the impact.".
Will the new Schedule or anything else in the Bill undermine any agreements made with UNESCO in respect of world heritage sites?
Did the Minister consult UNESCO or was it necessary to do so?
There was no need to consult because it has no effect.
Therefore, no world heritage sites will be placed in danger.
Correct. I recently met representatives of UNESCO on two occasions. While there are two designated sites in the country, there may be other potential sites. UNESCO is a wonderful organisation and I have great admiration for its work. I announced that I wanted Clonmacnoise to be designated as a world heritage site.
Therefore, the Minister is going to——
That undermines the Deputy's suggestion that I was going to jump into my JCB and bulldoze everything.
Will the Minister comment on the Bru na Boinne site?
I wish to inform Deputy Gilmore that in order to be sure I went further and placed preservation orders on private property near Clonmacnoise.
I move amendment No. 65:
In page 23, line 1, after "SCHEDULE" to insert "2".
I move amendment No. 66:
In page 23, to delete line 4.
I thank the Minister and his officials for attending the meeting, members for their participation in the deliberations and those in the Visitors Gallery for their patience and support.