Today's meeting has been convened to consider Committee Stage of the Historic and Archaeological Heritage Bill 2023. I welcome the Minister of State, Deputy Malcolm Noonan, and his officials to our meeting. We now proceed with consideration of the Bill.
Historic and Archaeological Heritage Bill 2023: Committee Stage
SECTION 1
Amendments Nos. 1 to 3, inclusive, 5 and 331 are related and will be discussed together. Amendment No. 2 is a physical alternative to amendment No. 1.
I move amendment No. 1:
In page 17, line 18, to delete “Historic and Archaeological Heritage Act 2023” and substitute
“Historic, Archaeological and Cultural Heritage and National Monuments Act 2023”.
I apologise to the Minister of State for keeping him waiting. He understands, I suppose, the background to this amendment. It was discussed at the earlier passage of the Bill by my colleague, Deputy Aengus Ó Snodaigh. It is really just to give the Bill a correct Title and to include national monuments in the Title. I will press the amendment but I am interested to hear the Minister of State's response.
I believe we would all be in agreement that the Title of a Bill should suitably describe the main content of the Bill as accurately as possible. The current Title of this Bill, as proposed by the Office of the Parliamentary Counsel, OPC, reflects the broad scope of the Bill while focusing on a central element of the provisions contained therein.
The term "historic heritage", as defined in section 2 of the Bill, encompasses a range of different heritage areas, and I am bringing forward amendments in order that "cultural heritage" will be one of the areas brought into scope. I do not believe that the term "cultural heritage" should be listed in the Title as to do so would give the impression that "cultural heritage" is somehow provided for in a way that goes over or beyond other aspects of historic heritage, such as architectural heritage. This is in contrast to "archaeological heritage", as many elements of the Bill have been purposely developed in order that the Bill will become the core foundational legislation for the archaeological sector. This includes provision for archaeological monuments, archaeological objects, archaeological excavations and archaeological inventories.
While the importance of our national monuments cannot be overstated, within the overall scope of the Bill they are a relatively small element and, accordingly, a deliberate decision was made to move away from "monuments" in the Title of the Bill in order to avoid it being narrowly focused.
I hope that explains the rationale behind the current Title. I can confirm that some attention has been given to this issue already, but, unfortunately, for the reasons I have outlined, I am unable to accept this amendment.
I have just one comment. I do not see how broadening the content of the Title of the Bill would narrow its scope in any manner. What it really does is make much more explicit the range of things the Bill seeks to promote and protect. I understand, however, that the Minister of State will not accept the amendment. I will press it.
We are taking amendments Nos. 2, 3, 5 and 331 in this grouping as well, so if the Minister of State wishes to speak to them, I can proceed.
Amendments Nos. 2, 3, 5 and 331 are technical amendments introduced to take account of the proposed Part 13 of the Bill.
Regarding amendment No. 2, as Part 13 intends to amend seven different enactments, parliamentary counsel have suggested the addition of the term "Miscellaneous Provisions" to the Short Title in order to provide a suitable workaround. A corresponding amendment to the Long Title is also proposed under amendment No. 331. Finally, a necessary update to the relevant citations is provided for under amendment No. 3.
Amendment put and declared lost.
I move amendment No. 2:
In page 17, line 18, after “Heritage” to insert “and Miscellaneous Provisions”.
Amendment put and declared carried.
I move amendment No. 3:
In page 17, between lines 18 and 19, to insert the following:
“(2) Chapter 1 of Part 13 and the Foreshore Acts 1933 to 2022 may be cited together as the Foreshore Acts 1933 to 2023.
(3) Chapter 3 of Part 13 and the Planning and Development Acts 2000 to 2022 may be cited together as the Planning and Development Acts 2000 to 2023.
(4) Chapter 4 of Part 13 and the Valuation Acts 2001 to 2020 may be cited together as the Valuation Acts 2001 to 2023.
(5) Chapters 5 and 6 of Part 13 and the Local Government Acts 1925 to 2022 may be cited together as the Local Government Acts 1925 to 2023 and shall be construed together as one.
(6) Chapter 7 of Part 13 and the Maritime Area Planning Acts 2021 and 2022 may be cited together as the Maritime Area Planning Acts 2021 to 2023 and shall be construed together as one.”.
Amendment put and declared carried.
Amendments Nos. 4, 69, 266 to 268, inclusive, and 288 are related and will be discussed together.
I move amendment No. 4:
In page 17, line 19, after “sections” to insert “222*,”.
In addition to those amendments introduced as a result of Part 13, amendment No. 4 provides that the new section 222 comes into effect immediately on enactment of the Bill. This is required as section 222 contains new reporting provisions that are to come into effect immediately on the Bill's enactment.
Amendment No. 69 is pretty self-explanatory. It seeks to commission a report by the Minister within six months of the enactment of the legislation on the merits of logistical requirements for establishing a dedicated ombudsman for the culture and heritage sector. I will press the amendment.
Amendments Nos. 266 to 268, inclusive, are also in your name, Deputy.
In line with the previous amendment, these are also report requests. One relates to the consistency of the national development plan with heritage and policy obligations, including the sustainable development goals and climate action plan objectives.
The other relates to reviewing the consistency of the Act, obviously, with the Valletta Convention given the importance of that international agreement, the European Landscape Convention, the Convention for the Safeguarding of the Intangible Cultural Heritage and the Aarhus Convention, as well as the UN sustainable development goals and the Climate Action and Low Carbon Development Act 2015. The remaining amendments are related to that.
Amendments Nos. 266 to 268, inclusive, have been discussed. Amendment No. 288 is in the name of the Minister.
Could the Minister of the State explain it for us?
The amendment is primarily a result of discussions in the Seanad. I have decided to introduce a catch-all reporting provision, mirroring several such reporting provisions on the Statute Book. This will require a report to issue within five years of the Bill’s enactment. The provision will not need to be commenced; it will come into effect automatically on enactment. The report will provide details of a review into the operation of the enacted Bill over that five-year period and I intend for it to be comprehensive, detailed and forthright.
It is my hope that a number of proposed amendments will be withdrawn today with the introduction of a new reporting requirement. Importantly, this will not be a stand-alone report as the provision will require regular reports to issue every five years. Finally, copies of the report will be laid before the Houses and published on my Department’s website.
I support amendments Nos. 266 and 267. Amendment No. 267 mentions the Valletta Convention, which is very important, but also our obligations under the Aarhus Convention and United Nations sustainable development goals. Amendment No. 266 seeks a report within 12 months on the conservation and protection of national monuments. I think all of us are agreed that what we are covering in this Bill is very important. All of us in this room will agree that sustainable development goals are very important. Climate action and low-carbon development is very important. These are good, detailed reporting amendments that Deputy Ó Broin has put forward with good timelines showing that these issues are urgent.
The Minister of State's amendment, while I absolutely accept that it is better than nothing, proposes to wait five years until there is a review and then there is no specification of these very important issues. We are facing an existential threat as a world in terms of climate change and we are not progressing at the speed we need at all. The Minister of State has an amendment that proposes five years and then does not even mention issues such as climate action and low-carbon development. Why does he think five years makes sense given the emergency we are in? Why will he not accept the excellent and more specific amendments Nos. 266 and 267?
First, the Minister of State's amendment No. 288 does not deal with the real intention of our amendment No. 69, which is with regard to the need for an ombudsman for the culture and heritage sector. There is no mechanism under the Bill for people to submit complaints to an independent office when public bodies fail in their obligations. We know that happens far too often. There is a real need, and we see this in other sectors, for an independent ombudsman or some similar office to deal with complaints, monitor compliance, etc. and, therefore, while a reporting mechanism has maybe some merit, which I will come to shortly, as the Minister of State understands, the purpose of the formula we used in amendment No. 69 is because we cannot propose the creation of such an office given it would place a charge on the State. It is a way of us raising it on this Stage, however.
With respect to the other amendments, Deputy O'Callaghan is absolutely right. Five years is far too long. I do not even believe the Minister of State believes five years is an appropriate duration, but that is the script he has in front of him. However, amendment No. 288 does not actually state what the report will be whereas the amendments my colleague, Deputy Ó Snodaigh, has tabled are very explicit on the reporting requirements. Therefore, on the basis of those concerns, despite the fact that the Minister of State knows I am a very generous person and I always like to compromise with him, amendment No. 288 does not deal with any of the substantive issues in the amendments in front of us. I will, therefore, press these amendments.
I would be interested in the Minister of State's response specifically with respect to the issue of the need for the ombudsman and also what he expects to be in that long-anticipated five-year report, if and when it sees the light of day.
With regard to the issue of the ombudsman and amendment No. 69, the existing Office of the Ombudsman examines complaints from members of the public who believe they are being treated unfairly by a public body or if they are unhappy with a service that is being provided by a public body. I see no reason to duplicate this existing role, especially given a complete lack of evidence suggesting any failure of duties of public bodies within the culture sector. Given the potential costs associated with the establishment and operation of a new ombudsman, I do not consider this to be in the public interest. For those reasons, I cannot accept that amendment.
Specifically, then, with regard to the review and monitoring of new legislation, I acknowledge the value in reviewing and monitoring the operation of new legislation. I intend to propose a new section that will introduce that mandatory reporting requirement, which we said is five years. I am open to flexibility on that - perhaps three years. I cannot accept what is proposed by amendments Nos. 266 and 267, however, as several elements go way beyond the scope of this Bill as well as beyond the remit of our Department. Furthermore, there appears to be duplication of reporting requirements that already exist, for example, with regard to the national development plan and the built and archaeological heritage climate change sectoral adaptation plan, which our Department was one of the first in the world to develop. It is a very innovative plan and a very good active working group is working to implement that as well. It has the sustainable development goals at the core of its work. For those reasons, I am not in a position to accept the additional reporting requirements. As I said, however, I will give consideration to flexibility on the five years and perhaps move it back to three, if the Deputy is amenable.
I have two concerns with that. First, the Office of the Ombudsman is not a place where people go to make complaints about substantive issues; it is a place where people go to make complaints about procedures not being adequately or equitably adhered to with respect to public bodies. It does not at all deal with the substance of the matter. Across a variety of public and private services, there are independent bodies to whom members of the public can make complaints, such as the Planning Regulator, the Residential Tenancies Board, local planning authorities, the Environmental Protection Agency, the Food Safety Authority of Ireland, etc. They are completely separate things, which the Minister of State knows..
Likewise, with respect to there being no evidence of problems, the whole point of actually having an independent body to which people can make complaints is to prevent things from going wrong. Too often, we wait for years and years when there are chronic abuses of public policy and Government regulations. It is only a long time after those abuses that mechanisms are put in place for people to address that. If it is put in place in advance, we might never get to the point where there is a problem.
With respect to the reviewing and reporting of the national development plan, I will wager with the Minister of State that when that review takes places, heritage, like a number of issues, will be so far down the considerations of the officials who will lead it that even the Minister of State at that stage will probably want a separate reporting on the heritage implications. However, I have said enough about the amendments. I will press them.
The Minister of State might clarify something. He said the amendments go beyond the scope of the Bill. We have 25 pages of amendments that have come in from the Minister of State that go well beyond the original scope of Bill and have nothing to do with archaeology and heritage. I am glad to acknowledge his interest in that particular point, but what elements of these amendments does he feel go beyond the scope of the Bill? Is it the sustainable development goals which, surely, should be applicable to all legislation? Is it the Climate Action and Low Carbon Development Act 2015? Again, should we not consider all legislation through the lens of trying to tackle climate change and ensuring that we meet the UN sustainable development goals?
We know that through the climate change sectoral adaptation plan and the very good working group we have in place to oversee all of these elements within it. Again, the Heritage Council has a statutory role as well in terms of making recommendations on heritage matters, which is important. We do not see the need to duplicate this.
With regard to the Ombudsman, there are very few, and I stand to be corrected, complaints specifically relating to the heritage sector.
I could stand corrected in terms of the number of complaints specifically relating to the heritage sector. There is a mechanism for taking on board issues that need to be addressed. As I said, the Heritage Council has a strong role. What we have put in place in the climate change sectoral adaptation plan embraces all of the items listed, including the Aarhus Convention, the UN sustainable development goals and the Climate Action and Low Carbon Development (Amendment) Act, 2021. All of those are encompassed within the work of that group. We are well served by the mechanisms we already have in place.
Amendment agreed to.
I move amendment No. 5:
In page 17, line 19, after “238” to insert “ and Chapters 2 and 5 of Part 13”.
Amendment put and declared carried.
Section 1, as amended, agreed to.
SECTION 2
Amendments Nos. 6, 7, 13, 15, 18, 20 to 22, inclusive, 28, 29, 32, 39 to 42, inclusive, 57, 58, 121 to 123, inclusive, 191 and 229 are related and will be discussed together.
I move amendment No. 6:
In page 19, line 4, after “means” to insert “, other than in Chapter 7 of Part 13,”.
This is a technical amendment relating to the definition of the Act of 2021 for the purposes of the amendments proposed to the Maritime Area Planning Act in chapter 7 of Part 13. The introduction of a definition for “amenity value” in amendment No. 7 is an important addition to help make it clear that where the Minister is considering whether to enter a thing into the register of monuments under section 14(7), or when there is a proposal to apply special protection to a monument under section 20(3), the setting of the monument or thing must be taken into consideration.
Amendments Nos. 13, 18 and 39 are the first of a set of amendments following on from a commitment I made in the Seanad to review the possibility of broadening the scope of the term “relevant interest” to include “cultural interest”. As this integration of “cultural interest” into the Bill has been deemed possible, and since the terms “artistic interest” and “traditional interest” were already in use within the text of the Bill, these have been grouped together under a new definition of “cultural interest” that also includes “literary interest”. A new definition to provide for “traditional interest” is also proposed. Finally, several consequential amendments will also be proposed to those definitions using the terms I have mentioned relating to “cultural heritage”. For example, the definition of an “historic object” already refers to “cultural interest.” The terms “artistic” and “traditional” can be removed as they will now fall under the definition of “cultural interest." Consequential changes will also be made to those sections where these terms are in use, such as section 151. This is done so that the relevant terms all appear correctly and consistently throughout the Bill.
The definitions of “export” and “import” are proposed under amendments Nos. 20 and 28 to mirror those in section 2 of the Customs Act 2015. These amendments are proposed on advice received from the Revenue Commissioners.
Amendments Nos. 32 and 57 relate to amendment No. 70 and the order of paragraphs (a) and (b) in section 14(3). They are being swapped to aid the comprehensibility of the scope of relevant things eligible to be entered in the register of monuments. In the current draft, prescribed monuments are listed before “things of relevant interest.” This has led to multiple cases of misinterpretation whereby it is assumed that a thing must first be a prescribed monument to be eligible for entry into the register. My hope is that by switching these paragraphs, it will be clearer that either a relevant thing or a relevant or prescribed monument may be eligible for entry into the register. If amendment No. 70 is accepted, there are several consequential amendments where references to paragraphs (a) or (b) of section 14(3) must then be updated.
The addition of a definition for “historic” under amendment No. 21 is a technical matter to make it explicitly clear that when the term “historic” is used, it relates generally to matters belonging to the past and not just to something that may have changed history or is considered to be famous in an historical context.
Amendments Nos. 40 to 42, inclusive, have come about following discussions with the monument protection unit of the National Monuments Service. This set of amendments seeks to refine the definition of “works” to incorporate some useful terminology, such as “ground disturbance”, which itself will include digging, ploughing or excavation, and to include the term “defacing” as a direct reference to the painting of graffiti on monuments.
Amendment No. 58 is an amendment to the definition of a “register action” to make it clear that the entry of a statement into the register of monuments under section 15(2), the purpose of which is to help determine the extent of a monument, is determined to be a register action. This will mean that normal consultation and notification provisions to landowners and members of the public will apply in the entry of such a statement.
Amendment No. 121 relates to the definition of “demolition” in section 25. An environmental impact assessment, EIA, must be carried out where proposed works, if carried out, would result in the demolition of a monument. The proposed amendment is to make clear that the exclusion of certain things from the definition of “demolition”, for example, an archaeological investigation, only relates to the requirement for an EIA under section 34 and does not apply to the general licensing or other notice requirements under chapter 6 of Part 2.
Amendments Nos. 122 and 123 provide for the terms “transboundary convention” and "transboundary state”. These terms will be used in relation to EIA-related consultation requirements where works within this jurisdiction may affect the environment of another state. I will go into more detail in on this matter when we come to amendments Nos. 154 to 168, inclusive.
With respect to the cumulative impact of amendments Nos. 13, 18 and 22, there is the removal of artistic and traditional interest for the definition of "architectural heritage". There is then the insertion of cultural interest, including artistic, literary and traditional interest and the removal of artistic, historical and traditional, and their substitution with "historic". I am unclear as to the why that cluster of changes is there. The concern is that it might narrow the scope of some of the definitions, in particular in terms of the architectural heritage section, which is related to amendment No. 13. The focus on literary interest, as opposed to literary and linguistic, also came up in the Seanad, to include language as well as formal literary works. Will the Minister of State give us more clarity on why those three sets of amendments have been introduced? My amendment No. 15 is pretty straightforward and, therefore, I am interested in his response. I will speak to amendments Nos. 191 and 229 after he contributes.
Amendment No. 29 is to include in the list of bodies and definitions the national monuments advisory council. It is absolutely critical, and I made this point on Second Stage, that we have such a council as part of the safeguards and checks and balances on this legislation, especially when, never mind the language in the Bill, we are talking about provisions that will provide for the demolition, removal and elimination of monuments. I will first consider the bigger picture. The National Monuments (Amendment) Act 2004 in its current format has failed our historical and archaeological heritage. How many archaeological excavation licences have been issued over the past 20 years since the introduction of the Act? How many of these licensed excavations led to the discovery of archaeological remains? How many of these new discoveries have been preserved in situ?
...how many of these new monuments of significance have been added to Ireland's heritage orientated visitor tourist portfolio? Surely it could not be the case we are still simply promoting archaeological heritage from previous discoveries but not including ones from the last 20 years. Given the significant loss of monuments over the years, as documented by the Heritage Council, how many prosecutions ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++nder the Act over the last 20 years? I am asking that quesitons in terms of what difference this Bill will make, as it currently stands, without a national monuments advisory council in terms of preserving in situ and protecting newly discovered monuments of significance. If this Bill is doing its job well it should be preserving and protecting, in situ, archaeological finds of significance. We should not be in a situation that we have been in for the last 20 years wherewith the huge number of licences granted there have been so few archaeological remains preserved in situ, so little protection and so little added to the portfolio of what was promoted in this country.
How many of these new monuments of significance have been added to Ireland's heritage orientated visitor tourist portfolio? Surely it could not be the case we are still simply promoting archaeological heritage from previous discoveries but not including ones from the past 20 years. Given the significant loss of monuments over the years, as documented by the Heritage Council, how many prosecutions were taken under the Act over the past 20 years? I am asking those questions in the context of what difference this Bill will make, as it currently stands, without a national monuments advisory council in preserving in situ archaeological finds and protecting newly discovered monuments of significance. If the Bill does its job well, it should preserving and protect in situ archaeological finds of significance. We should not be in the position we have been in for the past 20 years where a huge number of licences were granted but few archaeological remains were preserved in situ and there was so little protection and so little added to the portfolio of what is promoted in this country.
There is a very strong case for a national monuments advisory council. Despite the use of the Heritage Council as a point of consultation, effectively in the Bill as it stands, all power will rest with the Minister. How could it be appropriate to have that amount of power resting with the Minister of the day? At the moment the country is discussing issues, which I will not go into the detail of, where there has been a concentration of power within an organisation and there is all sorts of fallout from that. It makes no sense whatsoever in terms of archaeological heritage to give so much overreaching power to the Minister and not to have something like a national monuments advisory council to balance that. There needs to be checks and balances on the Minister's powers that this Bill seeks to provide.
The national monuments advisory council should be re-established. Independent expert advice is needed. Decision-making should not rest entirely in the hands of one individual. How many professional archaeological staff and historians the Heritage Council has at the moment to assist with this? If the Minister of State does not accept my amendment, why does he not want to avail of the external expertise that re-establishing a national monuments advisory council would provide?
It is generally accepted that the most recognised leading authorities in the various elements of archaeology are found outside the public service. That is no disrespect to anyone in the public service but there is a huge amount of expertise available. There are specialists for every different area and that is very important in terms of understanding archaeological finds and knowing what is and what is not a significant find. Why would we not want to have a national monuments advisory council to help to do that work? It is worth noting that the Historic Monuments Council in the North is operating very well and very efficiently to this day. Its origins date to the ancient monuments advisory council established in 1926 and it continues to this day as the Historic Monuments Council. I do not believe there is anything in terms of the archaeology in the North that is of greater value and that it deserves an advisory council in terms of these processes but somehow in the Twenty-six Counties our archaeology does not deserve that.
I might first respond to Deputy Ó Broin on cultural heritage. There was extensive debate in the Seanad about this because we had other elements and definitions of linguistic and artistic heritage. It was really from those discussions in the Seanad to give a broader definition and recognition to cultural heritage and to recognise the fact that many of our monuments, objects, and artifacts all have a cultural aspect to them that we tried to give effect to that within the Bill. I hope that explains that. This is being done on foot of the very extensive debate we had in the Seanad on this issue and to reflect that in the Bill.
I will deal with the matter of the proposed national monuments advisory council when we come to the relevant amendments. With regard to amendment No. 29, for the purpose of this definition however, what is proposed here is unworkable as one of the key aims of the Bill is the complete repeal of the National Monuments Acts, 1930 to 2014. Accordingly, references to the National Monuments Acts as provided for in this amendment would not be adequate. The national monuments advisory council was abolished by a previous amendment to the National Monuments Acts and the approach considered in this amendment is unworkable in a legal context.
I would just like to give assurance to Deputy O'Callghan. Under the Bill, the Heritage Council's role will be strengthened and bolstered in respect of its advice and staffing. We will introduce professional archaeological positions to recognise that enhanced role. Over the past three years the increase in resources to the National Monuments Service is putting us into a better state in terms of protection. The Bill is trying to consolidate 100 years of very disparate legislation and give added protections to our monuments. In that sense, we are in a better space as regards the level of protections the Bill affords, but also in terms of the professional supports on the ground. There has been extensive consultation on the Bill and all licences will be referred to the National Museum of Ireland. What we have is an interconnectedness of a lot of strengthened protections through this Bill and, in that sense, the Heritage Council's role will be central to that.
I thank the Minister of State for his response. He said there will be more staffing resources for the Heritage Council so it can carry out its function properly. Will he clarify what staffing resource it has currently in terms of archaeological staff and historians? What does he think that will be increased to? It is welcome to hear the number will be increased but will it be increased by one person? What are we talking about here?
I do not have staffing numbers to hand. There is a chief archaeological officer within the Heritage Council. We are endeavouring to introduce additional positions to ensure that, commensurate with the workload that will be there in terms of advice, that their role will be recognised through that to ensure they have adequate resources. To be fair, over the past three budgetary cycles, we have met the requirements of the council in respect of all of its budgetary asks. That will be recognised again. I do not want to comment on budgetary discussions for 2024 but we have met the requirements of the council and met its increasing and expanding role in all areas of heritage over the past number of years.
My concern is the bigger picture on this. Since 1840, according to a Heritage Council survey in 2001, 34% of archaeological monuments have been destroyed, and that has continued since 2001. That is a complete failure of the legislation we have had to date and the resources that have been put in behind it. Once a monument is destroyed, it is destroyed forever; that is it. It is gone. It has this huge historical and cultural value but it also potentially has value in tourism and economic development. When we look at the recent history of this country and the big pushback that rightly happened, Mr. Duncan Stewart was recently awarded freedom of the city by Dublin City Council. When we look back to his environmental activism when he started out, it was around trying to preserve buildings and heritage from being destroyed. While the people in Ireland since the 1960s have put huge value into preserving a lot of our heritage, we do not see that being carried through in what has happened in practice. Wood Quay was a very high-profile example but we also saw it in Carrickmines Castle and lots of other places. We are failing on the bigger picture.
I asked the Minister of State how many excavation licences had been issued over the last 20 years. I do not know the answer, I am not the Minister and am not in the Department but I would guess that something in the region of approximately 20,000 licences have been issued in the past 20 years. They generally are only issued when there are significant archaeological findings or a very strong chance of discovering them. The Minister can give me the correct number. Out of the 20,000 or so that have issued, how many archaeological findings have been preserved in situ?
I will bring Deputy Ó Broin in.
What sort of number are we looking at, out of 20,000? It is my contention that we are currently failing on this. We need to re-establish the national monuments advisory council. We need to avail of that expertise in order that we can get much better outcomes in terms of preserving our heritage and archaeology.
I will let the Minister of State respond, then I will bring Deputy Ó Broin in.
I was going to say that because I think it is quite important.
We will come back to your two amendments.
Okay. Let us not confuse the two.
I do not have the figures to hand. We have seen a marked change in our general relationship with our built and archaeological heritage. Certainly, a lot of it is underpinned in Government policy through Heritage Ireland 2030. It is underpinned through the work of the National Monuments Service. That has been reflected and I have seen it over the last couple of years, particularly as we developed the community monuments fund, bringing a very modest fund from €600,000 in 2020 to €8 million this year, supporting a huge range of projects across the country. There is a need for the provision of professional archaeological services in-house in local authorities. Across Government, we have been trying to bolster the in-house resources within local government. That is important too. The new amendments proposed here today will enable the Heritage Council to consult with public bodies and persons. As I said, I believe that enhanced role of the Heritage Council in respect of this Bill is what the Deputy is seeking to achieve, but it will be within the Heritage Council because it has the role and remit to do that. We are looking back on historical issues in terms of the preservation of monuments in situ . Through this Bill, we have an opportunity to strengthen those protections and have that role for the Heritage Council, which I think is going to be really important.
With respect to amendments Nos. 13, 18 and 22, I suspect the Senators who the Minister of State discussed these matters with will probably be less than satisfied with his propositions, but given that they have to go back to the Seanad I will let the Minister of State fight that out with them at a later Stage. I am keen to hear, very briefly, the Minister of State's response to my amendment No. 15. It is a very technical amendment but I would like to hear the Minister of State's thoughts on it, nonetheless.
Amendment No. 191 seeks to delete "ground" and substitute it with "ground, or...any other burial ground that is discovered;". From discussing this with my colleague, Deputy Ó Snodaigh, his logic for tabling this amendment is to expand the chapter on burial grounds to cover discovered burial grounds that were never vested either in the guardians of the Poor Law Union, the burial board of a sanitary district or indeed by the Commission of Church Temporalities in Ireland report. I refer, for example, to burials that have been discovered in relation to mother and baby homes in Tuam. That is just one possibility. In our view, graves from the period of An Górta Mór could and should be treated with the same degree of protection and care, under the legislation, as official burial grounds.
With respect to amendment No. 229, it seeks to delete the phrase "destroying the object" from the definition of "dispose" on page 103 of the Bill. The idea of the amendment is that there should not be any provision for destroying objects. Obviously, there needs to be provision for disposing of objects but it would seem that the choice of words in the text in the Bill would permit, even tacitly, the destruction of objects, rather than their appropriate removal and disposal. That is why we want to remove those three offending words.
In relation to amendment No. 15, I see no good reason to delete the definition of "Church Temporalities Commission", which has been drafted by Parliamentary Counsel. Reference to that commission and its report must be made in the Bill, given that Chapter 13 of Part 2 addresses the legal standing of certain historic burial grounds, which were once in the ownership of that commission. The definition in Part 2 allows for a somewhat less lengthy title to be used in the Bill when referring to the commission than the legal title it had under the relevant 19th century legislation, thereby aiding readers of the Bill. Therefore, I cannot accept the amendment.
In relation to amendment No. 191, Chapter 12 of Part 2 of the Bill contains transitional provisions that have been introduced specifically for burial grounds, the existence of which has always been known, these having been burial grounds title to which was held by the then Established Church prior to its disestablishment in 1869, and after which title devolved through a complex chain or was otherwise left unclear. The purpose of these provisions is to simplify the chain of title with a view to facilitating effective management and protection under the new legislation for the long term. The proposed amendment relates to the defined term a “relevant burial ground” that is used in section 66. Section 66 contains technical provisions to supplement sections 64 and 65, and provides that where the fee simple in a relevant burial ground is vested in the Minister or local authority and that burial ground is a registered monument, the burial ground shall be a registered monument in the ownership of the Minister or local authority for the purposes of the Bill. Newly discovered burial grounds are to be dealt with by the usual provisions relating to monuments and there is no need to attempt to provide for them within this Chapter. For these reasons, I ask the Deputies to withdraw this amendment.
On amendment No. 229, although it may appear peculiar at first, there is no doubt that the option to dispose of an archaeological object by destroying it is required. Situations could arise where an archaeological object, perhaps only recently discovered, is adjudged to be a danger to the health and safety of members of the public, such as, for example, undetonated munitions or toxic material located in marine environments. I would urge committee members to consider these types of provisions in light of operational necessity and not with a view to enable the willful destruction of archaeological objects without good reason. If the Deputies consider the provision in that context, having regard to real-world practicalities, they might be disposed to withdraw it. In any event, I am unable to accept this amendment.
I thank the Minister of State for the clarification and response on the latter two amendments. With respect to the substance of amendment No. 191, which is to ensure the same protection and care for discovered burial grounds - such as the two categories I mentioned - as official burial grounds, can the Minister of State convince me that the provisions elsewhere in the Bill that allow such ground to be treated as national monuments is sufficient to give them exactly the same level of protection as the categories of burial grounds dealt with under this section? Can he perhaps give me reasons why I should accept his argument with respect to that?
With respect to disposal and destruction, clearly, we are not arguing that if there are objects that are a threat to public health they should not be disposed of appropriately. My worry is how the Minister of State can satisfy me that this provision covers the type of case that he outlined but may not be abused or misused to destroy an archaeological object that is not a threat to public health, but could be destroyed for other reasons, including reasons that run contrary to the spirit, if not the letter, of the Bill.
To give clarity in relation to amendment No. 191, the same legal protection would apply. They would both be registered monuments. I assure the Deputy that the same protection will apply. I accept the Deputy's point in relation to amendment No. 229 and the potential in that regard. A licence is required for that, however, so the safeguard is in place in terms of the destruction of an archaeological object.
So, in all cases where an object is either disposed of or destroyed, a licence will have to be secured, setting out the reasons and the manner in which it will be disposed of or destroyed or both?
Yes. A licence from the National Museum will be required. I hope that gives some assurance.
What will be the criteria against which the museum will grant such a licence?
It will be based on what I outlined, where there is a risk or danger from the material, such as in the examples I gave of undetonated munitions or toxic materials.
Will that be set out in subsequent regulations or a statutory instrument to provide absolute clarity?
There will be criteria for that licence to be granted in the licensing process.
In what form? Will it be by way of regulations or something else?
I think it will be under section 151, as far as I understand.
Those criteria are in the legislation under section 151. Is that correct?
Yes. The museum can request the necessary information.
This is a lengthy section and I do not want to delay the progress of the amendments, but does it stipulate the types of criteria, such as a threat to public health? Will the Minister of State or the officials comment on that with reference to the relevant subsection?
I do not think there is a specific reference to the examples I gave but, again, through the licensing system of the National Museum, they are taken on a case-by-case basis. There is an item relating to the public interest, including “the cultural, scientific, social or economic value of licensable activity in respect of which the licence is sought”.
Removal is one thing, but the permitted destruction of an archaeological object is another. Should there not be some guidance, if not necessarily in primary legislation? In fact, regulations may be more appropriate because they can be adapted to deal with specific circumstances that may arise and may not have been considered previously.
That could be considered in a guidance document. I think it is a useful suggestion and it could be considered in that regard.
Amendment put and declared carried.
I move amendment No. 7:
In page 19, between lines 4 and 5, to insert the following:
“ “amenity value”, in relation to a monument or thing, includes the setting of the monument or thing;”.
Amendment agreed to.
Amendments Nos. 8 to 12, inclusive, 61, 248, 249 and 282 are related and will be discussed together.
I move amendment No. 8:
In page 19, to delete lines 13 and 14 and substitute the following:
“ “archaeological heritage” shall include structures, constructions, groups of buildings, developed sites, moveable objects, monuments of other kinds, as well as their context, whether situated on land or under water;”.
I will speak to amendments Nos. 8 to 10, inclusive, first and get the Minister of State's response before dealing with the other amendments. Amendment No. 8 is straightforward in that it will substitute the definition of "archaeological heritage" proposed by the Government with the definition in Article 1 of the Valletta Convention. Given we have signed up to that convention, that seems more appropriate. I understand the Minister of State is of the view there might be benefits to having a slightly different definition, so I am interested in hearing his response to that.
Amendment No. 9 seeks to insert a new definition for "archaeological interest" as "objects, sites, structures and other items associated with historic and cultural heritage". The Minister of State will recall this relates to recommendation 5 of the joint committee's pre-legislative scrutiny report. It will ensure the definition includes heritage, as well as mere archaeology.
Amendment No. 10 seeks to delete "or person" and to substitute ", period, person, subject or theme". The purpose is to broaden the definition such that it will include not just persons but also certain forms of craft or periods of design and related matters.
Amendment No. 11 will ensure "archaeological reserves" will have the same meaning as in Articles 2 and 4 of the European Convention on the Protection of the Archaeological Heritage, that is, the Valletta Convention. The term "archaeological reserves" should be incorporated in the Bill as interpreted in accordance with the principles and requirements as laid out in the articles of the Valletta Convention. On 13 February 1997, as Deputy Ó Broin noted, Dáil Éireann ratified the European Convention on the Protection of the Archaeological Heritage, that is, the Valletta Convention. Twenty-six years later, it still has not been implemented in full. While the Minister of State has made some minor concessions in response to arguments put forward in the Seanad, the most crucial aspect of the convention remains unhonoured, namely, the aspect relating to archaeological reserves or landscapes. It is highlighted in Articles 2 and 4 of the convention. Article 2 states: “Each Party undertakes to institute, by means appropriate to the State in question, a legal system for the protection of the archaeological heritage, making provision for: (i) the maintenance of an inventory of its archaeological heritage and the designation of protected monuments and areas; [and] (ii) the creation of archaeological reserves”. Article 4 states, “Each Party undertakes to implement measures for the physical protection of the archaeological heritage, making provision, as circumstances demand: (i) for the acquisition or protection by other appropriate means by the authorities of areas intended to constitute archaeological reserves; [and] (ii) for the conservation and maintenance of the archaeological heritage, preferably in situ".
It is alarming that no statistics or information is available, among all the licences issued over the past 20 years, regarding how many archaeological finds have been preserved in situ. If this were an area on which we were strong, the Minister of State would be able to say we had issued, say, 20,000 licences over 20 years and kept 1,000 archaeological finds in situ or preserved, or he would be able to tell us what the case was. He would be able to tell us whether some of the finds are now open for tourists and visitors and are part of our tourism offering, with economic benefits coming from that and so on. Instead, we cannot be told of any that have remained in situ. I certainly cannot think of any off the top of my head.
A reserve can be defined only as a delineated area with clearly identifiable boundaries. A good analogy for this example, with which most people will be more familiar, relates to architectural conservation areas. They have delineated boundaries and are clearly shown on a map. Without mapping the reserves, how are people to know the extent of the protected area or reserve? Where in the Bill is the issue of archaeological reserves addressed and defined? It is important to do that.
I apologise; I forgot to speak to amendment No. 12.
This proposed amendment is pretty straightforward. It seeks to expand the existing definition of "archaeological heritage" to include the words "and surrounding contexts". We have a concern that the current definition could be interpreted as limiting archaeological heritage to settings and attendant grounds, the property or grounds connected to a specified building, rather than the wider context. The most obvious example of this might be Moore Street, where not just individual buildings are involved but also the laneways and the more general streetscape and urban landscape that form a crucial part of that context, especially in respect of preserving the lived history of that important site in the city. I hope this is an amendment that the Minister of State will accept now or rework on Report Stage.
Does Deputy Ó Broin wish to speak to amendment No. 61 as well? The Minister of State could then address his own amendments while responding to the Deputy's, if this is agreeable.
The purpose of this amendment, which seeks to insert "historical, linguistic or cultural, including intangible culture", is to allow the Minister of State to prescribe things of historical, linguistic or cultural interest as relevant things to be prescribed as monuments, should it be so chosen. There is a concern regarding the meaning of "other interest", as is currently in the text. I know this was a matter that came up in some of the Minister of State's engagements with Senators during the passage of the Bill through the Seanad. Again, if this amendment is not the appropriate way to deal with this aspect, has the Minister of State given consideration to the exchange he had with the Senators in question?
I will respond to all of the amendments in sequence. On amendment No. 8, while I acknowledge the importance of integrating the Valletta Convention into the Bill, in this instance the use of the term "archaeological heritage" as defined there gives rise to several problems. First, it is important to note that the term "archaeological heritage", as currently defined in the Bill, covers an extensive set of structures, sites, objects, deposits, constructions, features and wrecks. It is more comprehensive than what is provided under the Valletta Convention, to the extent that if I accepted the Deputy’s proposal, I would reduce and limit the scope of what the Bill intends to provide for and this would certainly be a retrograde step.
Furthermore, a serious drafting problem would arise, in the context of the Bill, with direct transposition of the definition as set out in the Valletta Convention. This is because that definition does not in any way specify that the sites and structures covered by the definition must be of archaeological interest. While such a requirement can likely be implied into a term from its general context in the interpretation of an international convention under international law, a more precise level of drafting is required in an Act of the Oireachtas creating legal requirements which will fall to the courts to interpret, and direct transposition of the definition used in the convention would simply not be workable. Given that the current definition covers the items that are set out in the definition in the Valletta Convention, and in fact goes beyond what is covered by that convention, and considering the problems that would arise from its use within the Bill, I am not in a position to accept this proposed amendment.
I consider that the amendment proposing to insert a definition of "archaeological interest" is both unnecessary and, given the manner in which the proposed definition has been drafted, unworkable. It is unnecessary because the definition of "archaeology" included in the Bill already makes clear that "archaeological interest" shall be construed in accordance with that definition. It is already entirely clear, therefore, that any person seeking to determine under the enacted legislation whether something is of archaeological interest must refer to the definition of "archaeology". That is the appropriate way to determine whether something is of archaeological interest. The proposed amendment is, in any event, unworkable as drafted. It does not, in fact, provide guidance as to how to determine "interest", but states that "archaeological interest" means certain objects. This is the completely wrong approach to drafting and is ungrammatical. Physical things have an interest or are of a particular interest; they cannot be the particular interest in and of themselves. Moreover, and in any event, the amendment would undermine the structure of the definitions contained in the Bill under which "historic heritage" is used as an overarching term. For all of these reasons, I cannot accept the amendment.
The definition of "architectural heritage", as used in the Bill, mirrors that in use for well over 20 years under the Architectural Heritage (National Inventory) and Historic Monuments (Miscellaneous Provisions) Act 1999. While I would accept that the context is somewhat different in the Bill, which provides for legal protection and not just inventories of heritage, I believe the existing definition is a comprehensive one, closely adhering to that contained in the Council of Europe's Convention for the Protection of the Architectural Heritage of Europe, known as the Granada Convention, insofar as possible within a domestic legislative context.
Regarding amendment No. 10, while the Deputy's suggestion appears workable, given that moveable cultural heritage falls into the portfolio of the Minister for Tourism, Culture, Arts, Gaeltacht, Sports and Media, I request the Deputy to withdraw this amendment for the time being. Following consultation with the National Museum and the Department of Tourism, Culture, Arts, Gaeltacht, Sports and Media, we will consider this matter with a view to furthering the discussion on Report Stage.
Regarding amendment No. 12, following discussion with the Parliamentary Counsel, it is difficult to identify what, if anything, a reference to "context" would add to the term "setting". It is generally considered poor drafting practice to insert multiple words where one word covers the matter. This can often lead to uncertainty in the implementation of legislation. If the Deputy can provide clarity as to what he might consider the proposed amendment would add to "setting" - he mentioned the Moore Street national monument - I will review the matter in advance of Report Stage. As the matter stands, I must oppose the amendment.
Turning to amendment No. 61, given the Government amendments previously discussed that introduce "cultural interest" into the scope of the Bill, I again ask the Deputy if he would consider withdrawing this proposed amendment.
Moving on to Deputy Cian O'Callaghan's amendment No. 11, I welcome the interest shown by the Deputy - great interest has been demonstrated in this regard - in the concept of "Archaeological Reserves" as provided for under the Valletta Convention. I will not, however, be able to accept these amendments for a number of reasons, which I will now explain. Amendment No. 11 is not necessary because section 14(4)(a)(ii) of the Bill already provides clear powers to include in an entry in the register of monuments a surrounding area, including by reference to the need to protect:
any other prescribed monument or relevant thing of a relevant interest which, taking into account the type of monument or thing which the first-mentioned monument or thing, as the case may be, is, it would be reasonable to consider might be in the vicinity of the first-mentioned monument or thing.
This surrounding area becomes, in law, part of the registered monument. Section 8(2) of the Bill provides:
A reference in this Part [that is, Part 2 of this Bill] to a relevant thing of a relevant interest includes a reference to a site where the Minister reasonably believes that there may be a relevant thing of a relevant interest.
The Bill therefore already clearly includes provision for the entry into the register of monuments of areas of subsurface archaeological potential, even where such potential has not been definitively established, and once so entered all the powers applicable to registered monuments, including the power of ministerial acquisition or guardianship, will be available in relation to them. This is all in addition to the fact that the Bill, for the first time, will provide automatic protection for classes of prescribed monuments, even before they have been discovered or entered in the register of monuments.
In my view, this achieves all the aims and requirements of the relevant provisions of the Valletta Convention in relation to archaeological reserves. It is not necessary for the exact language of the convention to be used in the Bill. What is essential is that the outcome required by the convention be achieved, and in that regard, and for the reasons I have stated, I am satisfied the Bill meets those requirements.
This brings me to my second principal reason for opposing amendment No. 11, which is that it would undo the important achievement of the Bill in reducing and simplifying the confusing and overlapping terminology in the existing National Monuments Acts, which has caused so much uncertainty and confusion for many people in the heritage sector and for all those who find themselves dealing with the existing law in this area. Not only would the proposed amendment be unnecessary, but it would also move us back to a situation where confusion and uncertainty were arising from superfluous and overlapping terminology. I must therefore oppose this amendment.
Does the Minister of State wish to speak to his three amendments in this grouping as well? These are amendments Nos. 248, 249 and 282.
I do. Regarding these amendments, these are another set of consequential amendments in relation to the addition of "cultural interest" into the term "relevant interest".
I call Deputy Cian O'Callaghan.
I thank the Minister of State for his response. The current situation with legislation relating to monuments is that areas surrounding them can also be protected. That is quite different from an archaeological reserve or landscape. We are talking about the area surrounding a monument. Such an area could be relatively small. That is very different. Ireland ratified the Valletta Convention in its entirety. We did not ratify it in part or say that we would cherry-pick from it. The report from this committee was strong in this regard and recommended that the Bill incorporate the principles and requirements as laid out in the article to the European Convention on the Protection of the Archaeological Heritage and make specific reference to the Valletta Convention. There was no suggestion from the report, which was passed unanimously, that some specific principles and requirements would be omitted. We already have archaeological reserves or landscapes in Ireland. They are a reality. Our two UNESCO sites clearly fall into that category. UNESCO highlighted, for example, the dramatic topography of the island of Sceilg Mhichíl, which I have been lucky enough to visit, and the integration of the various monastic elements within the landscape there that reinforce the uniqueness of the site. Similarly, the UNESCO site at Brú na Boinne qualifies as an archaeological reserve. The monuments in a broad swath of protected surrounding terrain are delineated by a very clear, formal boundary. For example, the monastic remains occupy only a small area of Sceilg Mhichíl and the tombs at Brú na Boinne also occupy a low percentage of the designated area. To put it simply, both world heritage sites that we have are archaeological landscapes. However, such landscapes are not specifically protected under the Bill.
Given that these archaeological reserves or landscapes already exist, why are the full areas they cover not being afforded proper legal protection under the Bill? Furthermore, how can we have major battlefields, some of which are of European importance, left totally unprotected in the Bill? Conservative estimates indicate that the cost of the Battle of Aughrim, fought on 22 July 1691 by the Williamites and the Jacobites, was more than 7,000 lives. The bodies of the fallen were never recovered and thus are scattered around the battlefield. What is the full extent of that battlefield? One thing for certain is that it does not enjoy protection under this Bill. Why would we not give legal protection to the significant archaeological reserves that exist? Where is the definition of "archaeological reserves" in this Bill? Why is this matter not being addressed? That is quite different from the provisions relating to the area surrounding a monument that is already provided for in existing legislation.
I will bring in Deputy Ó Broin.
In the context of his response to amendment No. 8, will the Minister of State indicate whether he is absolutely satisfied that in the broadening of the definition in the Bill from Article 1 of the Valletta Convention, nothing has been lost in the desire to expand and be more inclusive and that there will not be any unintended consequences to which we may have to return at a later stage?
In regard to amendment No. 10, if I heard the Minister of State correctly, I am more than happy to withdraw this if he is saying he is willing to look at the intention of the amendment. With respect to amendment No. 12, this is one of the reasons why it should not just be lawyers and legislative drafters who are responsible for these matters because most students, let alone practising planners or architects, would understand the meaning of the word "context" in the specific discussion we are having. I urge the Minister of State to consider the points I am about to make and undertake to go away and look at this matter. If he gives that undertaking, I will withdraw amendment No. 12.
Moore Street is a good example. A planner, urban planner or architect, will often talk about the context within which buildings are set. That can be the urban grain, it can be the streetscape, it can be things that are not necessarily physically attached to or immediately adjoining an important historic monument but are integral to its place in our history. I cannot think of a better example than the laneways that lead onto the key historic battleground of Moore Street. What Deputy Ó Snodaigh was trying to do in bringing forward this amendment - as we know, he has been involved along with others in the Moore Street battlefield site campaign - was to ensure that on unique sites such as that, the full context within which the monuments as people ordinarily understand them would be located, is not lost, because the urban context, the grain, the streetscape and the lane-scape is a really important part of the site. It may be worthwhile thinking about that in planning and architectural terms, as opposed to purely legal definitional terms. I am not a planner or an architect. In my seven years on this committee, we have probably spent more time talking to planners and architects than we ever thought we would before we got involved in politics. However, settings in attendant ground are different, from an architectural and urban planning point of view, from surrounding contexts. I urge the Minister of State to look again at that and we can return to it on Report Stage or, indeed, when the legislation reaches the end of its journey in the Seanad.
To respond first to Deputy O'Callaghan in regard to the issue of archaeological reserves and archaeological landscapes, the register can include ritual or ceremonial sites, sites where an historical event took place or sites with connections to legends or myths. Some of those surrounding areas could be quite large. They could be quite large sites in their own right. We are of the view that it is more than adequate to protect those sites and the areas surrounding them. That is what we are trying to achieve with this. I hope that is of some assurance. What was the Deputy's other question?
I was asking specifically where in the Bill are the archaeological reserves addressed and defined.
Again, as I said, they would be within the register. It would include ritual or ceremonial sites. That is where that broad area is that can be under protection as well.
The Valletta Convention to which we signed up is very specific with regard to archaeological reserves. It is not a matter of having legislation where-----
It does not reference landscapes specifically. To go back to the point raised by Deputies O'Callaghan and Ó Broin, the Valletta Convention is a broad convention that has to be agreed by many signatory nations. What we are doing here is very specific. It not only gives effect to the Valletta Convention but affords a greater level of protection. Because this was raised in the Seanad as well, we are very much giving effect to the Valletta Convention but also going far beyond what it would require. The Bill is much more precise in the drafting requirement in terms of what we are trying to achieve. I hope that gives some assurance in that regard.
On the points made by Deputy Ó Broin, I have given a commitment to review the matter in advance of Report Stage. I take the Deputy's point regarding the notion of context and setting. He referenced the Moore Street national monument. A design team is in place there that will interpret the wider context in terms of the monument, which is under our care. If the Deputy can refine the amendment, we could, perhaps, give consideration to it on Report Stage, if that would be helpful.
Is Deputy Ó Broin pressing amendment No. 8?
No, I will withdraw it.
Amendment, by leave, withdrawn.
I move amendment No. 9:
In page 19, between lines 14 and 15, to insert the following:
“ “archaeological interest” means objects, sites, structures and other items associated with historic and cultural heritage;”.
Amendment put and declared lost.
I move amendment No. 10:
In page 19, line 30, to delete “or person” and substitute “, period, person, subject or theme”.
Deputy Ó Broin indicated that he is willing to withdraw amendment No. 10 provided the Minister comes back to it on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 11:
In page 19, between lines 35 and 36, to insert the following:
“ “Archaeological Reserves” has the same meaning as it has in Article 2(i) & (ii), and Article 4(i) of the Convention for the Protection of the Archaeological Heritage of Europe adopted at Valletta on 16 January 1992 and ratified by Dáil Éireann in 1997;”.
Amendment put:
The Committee divided: Tá, 2; Níl, 6.
Tá
- O'Callaghan, Cian.
- Ó Broin, Eoin.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
- Noonan, Malcolm.
Amendment declared lost.
I move amendment No. 12:
In page 20, line 5, after “fittings,” to insert “and surrounding contexts,”.
I am happy to withdraw it. I hope the Minister of State will look at it between now and Report Stage. We may bring an amendment back at that point.
Amendment, by leave, withdrawn.
I move amendment No. 13:
In page 20, lines 8 and 9, to delete “artistic, cultural, historic, scientific, social, technical or traditional” and substitute “cultural, historic, scientific, social or technical”.
Amendment put and declared carried.
Amendment Nos. 14, 16, 17, 19, 75 and 247 are related and will be taken together.
A Chathaoirligh, I have just got notification from Deputy Gould he will not be returning. Is that sufficient?
I take that as a message.
I move amendment No. 14:
In page 20, to delete line 14 and substitute the following:
“ “Bord” means Bord Ard-Mhusaem na hÉireann;”.
These five amendments all relate to the use of Irish rather than English. Amendment No. 14 relates to the Irish for the board of the National Museum of Ireland, amendment No. 16 to the Commissioner of Public Works in Ireland and amendment No. 17 the Heritage Council. Amendment No. 75 seeks to ensure monuments are recorded in the register for official purposes in Irish only as it is the official language. Amendment No. 247 requires warning labels on detection devices to be in both English and Irish.
This is older legislation, but there has been an increased and welcome practice under this Government of organisations such as Uisce Éireann, An Coimisiún Pleanála, etc. having their formal title as Gaeilge in the legislation and often in public use. Deputy Ó Snodaigh is, of course, one of our spokespeople on Irish, but even for somebody like me who does not speak Irish, there is a real value in this gesture because it has real, practical everyday value in that usage. I hope the Minister of State is minded to accept these amendments.
While I fully endorse and support every effort to promote the use and status of the Irish language, section 5(2) of the Heritage Act provides as follows: "There shall stand established on the establishment day a body to be known as An Chomhairle Oidhreachta or, in the English language, The Heritage Council to perform the functions conferred on it by this Act." Similarly, section 8(1) of the National Cultural Institutions Act 1997 provides that, "The institution heretofore known as the National Museum of Science and Art shall be known as Ard-Mhúsaem na hÉireann or, in the English language, the National Museum of Ireland". In the absence of amendments of these existing legal provisions, which would raise wider policy and drafting consistency matters, I propose to adhere to these existing legal provisions here and in relation to the names of other State bodies by using the English language version of the title in the English-language version of the Bill. The Irish-language version of the titles will, of course, be used in the Irish-language version of the Bill. Accordingly, I oppose the amendment.
On amendment No. 75, I assure the Deputy it would be my intention and that of my Department to ensure that there is comprehensive recognition of our great heritage of Irish language place names. However, the details of the particulars to be included in entries in the register should, within the bounds and directives set out in section 15, which is the key relevant provision regarding the detail of what the particulars to be entered in the register will consist of rather than section 14, be left flexible and a matter of administrative practice that will evolve over time as necessary. For example, the proposed amendment refers to names of monuments and while some monuments have traditional names attached to them, most do not and they may have been completely unknown prior to discovery through modern research. Also, the level and form of information regarding place names to be included within the register requires flexibility. There will, for example, be entries in the register of monuments located in our coastal waters. Accordingly, I must oppose the amendment, though I assure the Deputy appropriate use of both official languages will be a top priority for me in the establishment of the register.
On amendment No. 247, I will ask my officials to consult the Office of the Parliamentary Counsel, OPC, further on this matter but I am in agreement with what is proposed here in principle. I intend to bring a similar amendment forward on Report Stage that will potentially provide for additional languages to those specified here, pending discussions with the OPC. I ask the Deputy to withdraw this amendment and we can consider the matter again on Report Stage.
There are three separate issues. I do not understand the drafting and legal problems that would be created by using the official Irish name of a State agency in the English-language version of a Bill, given in the legislation underpinning those agencies both the Irish- and English-language titles are provided for. The point here is more important than that. There has been a long-standing practice where important public institutions are referred to by their Irish-language titles in everyday speech, even by those of us who are exclusive English speakers, and this has never caused us any problem. I mentioned Uisce Éireann, An Bord Pleanála and so on. By insisting that the Irish-language name is used even in the English-language version of the Bill, we assist in promoting the everyday usage of the names of the organisations as Gaeilge. It seems a simple, small thing that should not need to be argued over. I, therefore, ask the Minister of State to reconsider and to also consider what legal or technical difficulty it would provide in this manner.
I am not clear about the arguments he has made against amendment No. 75. The argument in this regard is whatever about the name, information or title, Irish would be the default language used for existing historical monuments or indeed ones that emerge in future. Again, it is a relatively straightforward position. The difficulty, of course, is if something ends up being known commonly through its English-language name it is much more difficult to reverse that.
I ask the Minister of State to perhaps make a further commitment in respect of amendment No. 247. I assume he has no objection to the warning labels on detection devices being in Irish with no less prominence than English. It would be good if the warnings were also in other languages for both our resident population and others.
If the Minister of State was to say to us that at a minimum, both English and Irish should be used and given equal prominence, I would be more than happy to withdraw the amendment, if he says he is going to look at this issue on that basis.
To go back to the speaking note, we highlighted two cases regarding An Chomhairle Oidhreachta, or in the English language, the Heritage Council. This is in the Act. The national museum of science and art is part of Ard-Mhúsaem na hÉireann or, in the English language, the National Museum of Ireland. Again, we are happy to come back and explore it further with the OPC. I stated that it would raise drafting consistency matters; we see that with other pieces of legislation like that on An Coimisiún Toghcháin. In a lot of other new commissions being established, the Irish name is being used as a default.
We will go back and consult, and I have given a commitment on that. I agree with the Deputy about the prominence of Irish and English in the text, but we will go back to the OPC. If it is okay, we will give the matter further consideration on Report Stage, if that is helpful.
Is amendment No. 14 being pressed?
No, I will withdraw it but may return to it on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 15:
In page 20, to delete lines 21 and 22.
Amendment, by leave, withdrawn.
I move amendment No. 16:
In page 20, to delete line 25 and substitute “ “Coimisinéirí” means Coimisinéirí na nOibreacha Poiblí, also known as Commissioners of Public Works in Ireland;”.
Amendment, by leave, withdrawn.
I move amendment No. 17:
In page 20, to delete lines 33 and 34 and substitute the following:
“ “Comhairle” means the body established by section 5 of the Act of 1995 and known as An Chomhairle Oidhreachta;”.
Amendment, by leave, withdrawn.
I move amendment No. 18:
In page 20, between lines 34 and 35, to insert the following:
“ “cultural interest” includes artistic, literary or traditional interest;”.
Amendment put and declared carried.
I move amendment No. 19:
In page 20, to delete line 35 and substitute the following:
“ “Roinn” means An Roinn Tithíochta, Rialtais Áitiúil agus Oidhreachta;”.
Amendment, by leave, withdrawn.
I move amendment No. 20:
In page 21, to delete line 29 and substitute the following:
“ “export” means the export or removal from the State of any goods (being things of any kind, whether animate or inanimate) to a place outside the State;”.
Amendment No. 20 has already been discussed with amendment No. 6. Is amendment No. 20 agreed?
Amendment agreed to.
I move amendment No. 21:
In page 22, between lines 22 and 23, to insert the following:
“ “historic” includes historical;”.
Amendment agreed to.
I move amendment No. 22:
In page 22, lines 29 and 30, to delete “artistic, historic, traditional” and substitute “historic”.
Amendment put and declared carried.
Amendments Nos. 23 and 25, inclusive, are related and will be discussed together. Amendments Nos. 24 and 25 are physical alternatives to amendment No. 23.
I move amendment No. 23:
In page 22, to delete lines 33 and 34 and substitute the following:
“ “history” includes, but is not limited to, ancient, archaeological, architectural, art, biographical, culinary, cultural, diplomatic, economic, educational, environmental, intellectual, military, natural, philosophical, political, religious, revolutionary, scientific, social, sport, technical, technological and women’s history;”.
These amendments are, again, pretty straightforward. The concern that we have here is that the definition of history is currently limited to nine categories. We are working under the assumption that the Minister of State will support amendment No. 23, and what it attempts to do, along with amendments Nos. 24 and 25 which are safety amendments, is to expand that definition to include a broader range of histories. It is not unlike the argument that the Minister of State would have made himself on the definition of archaeological heritage, to try to make it as broad as possible. That is the logic of these definitions, with respect to the legislative definition of history.
I will respond to all three amendments. I would like to note that the definition of history, as it stands, is one including certain specified matters. Therefore, under the general rules of statutory interpretation, it is not exclusive of any other matter that could be reasonably considered as coming within the scope of the term "history".
To set out an excessively lengthy list could indeed be detrimental to the scope of the definition, by increasing the chances that such a list could be argued to be all that the Oireachtas had intended to cover. For example, to specifically reference "ancient history" without also referencing medieval and modern history could be counterproductive, and in fact limit the scope of the term "history" as used in the legislation. To refer to "archaeological history" is simply an incorrect usage and may be seen by some as downgrading the status of archaeology under the legislation. While archaeology is, of course, closely related to history, it forms its own discipline and profession.
Accordingly, while I appreciate the intention of the Deputy to ensure that the term "history" has a sufficiently broad scope, I believe that the amendment is both unnecessary and potentially counterproductive and, with regret, I must therefore oppose it. As I have alluded to above, the use of the word "includes" in the current definition of "history" already provides for what is being sought by the addition of the words "but is not limited to". Unfortunately, I am not in a position to accept this amendment either.
Finally, the use of the word "and" as suggested in amendment No. 25 would not be acceptable from a drafting perspective. If accepted, it would mean that all the terms used to define "history" would need to be satisfied in order for the definition to be met. The use of the word "or" allows for any one of the terms listed to meet the definition entirely independently of each other. For this reason, unfortunately I cannot accept this amendment.
On the one hand, the Minister of State is saying that his more limited categorisation, the nine, and the inclusion of "includes, but is not limited to" is sufficient, and does not exclude anything. Our amendment also uses "includes, but is not limited to" but just expands beyond the nine, and the idea that it would somehow cause a difficulty just makes no sense. It is not a logical argument at all.
Likewise, both definitions do not in any way conflate archaeology with history. Archaeological history is a subset of the discipline of archaeology because archaeology is not just historical textbooks and the accounting of archaeological history. It is also physical archaeological work on sites, etc. Perhaps a good way of explaining that is how we talk about women's history. Obviously, that does not mean one is conflating the word "woman" with history, but rather one is talking about that aspect of historiography that relates to women.
I do not understand how the Minister of State can say that we can have nine categories with the caveat of "includes, but is not limited to", but one cannot have 12, 13, 14 or 15 categories with the same caveat. It does not make any sense. Given that I have been much lighter on the Minister of State this time than we would normally when we have him in front of us, I am going to press him for a better reason to reject the amendment than the one he has given me so far.
Again, I think that it is unnecessary, first of all, to be prescriptive in listing these. I do not think there is a need for it. It could exclude other elements. I know Deputy Ó Broin has mentioned the phrase "not limited to", but we do not see the necessity to have a list of that length in the Bill, given that the Bill itself is already broad in scope in its recognition of history.
I note the point Deputy Ó Broin is making with regard to archaeological history. The distinction that exists between archaeology and archaeological history is quite clear, and there is no doubt that the more one puts in the list, the stronger the case could be made in court that it is an exclusive list. That is the challenge. If we were to use a prescriptive list and say "but is not limited to", it could be challenged by stating it is actually an exclusive list because these items are prescriptive in the legislation. We do not see the need for it, and that is basically it.
I have two questions. Notwithstanding that the Minister of State's list and our list has "includes, but is not limited to", our list would be more open to legal challenge than the Minister of State's. That is the Minister of State's first argument. The second argument is that there is some justification for the nine categories that are in this section of the Bill but not a justification for the others. What were the grounds on which the nine categories in the section were included? I am inviting the Minister of State to convince me of the error of my amendment.
If you are going to have a list, and you accept that the list is never going to be exhaustive, why would you argue against this? With the greatest of respect, this Bill is 241 pages long and we are adding a sentence and a half or two sentences. It is not like it is going to break the back of the printing office or the Bills Office.
It is absolutely valid to bring the issue forward. However, we have expanded this provision, listened to the argument in favour of cultural aspects and included that in the Bill and that encompasses a lot of what is in the prescriptive list here. The broad categories we have would include what the Deputy has listed here so we do not see a need to do that.
I have a final point on this. Let us take two of the categories we are adding, namely, social history and women's history. Social history often refers to the history of people, working people, the working classes or marginalised cultures. One of the reason we name social history and women's history, not just in this Bill but in master's programmes, in journals, in people's professional titles, such as professor of women's history, professor of social history, is because the assumption that if they are just anonymously subsumed into general categories they will be dealt with has not proven to be the case. I am not necessarily saying that all of the list deserves equal merit but for some of them there is a real need to be included and a real value to being included. I am not convinced and I will press the amendment.
Within the Bill itself, under the list of moveable objects or associated relevant things, it states, "“history” includes architectural, art, economic, military, political, religious, scientific, social or technical history". The fact that we have taken on board the cultural element gives us broad scope to include the other items the Deputy has listed.
We will have to agree to differ on that.
Has the Minister of State convinced Deputy Ó Broin? How stands the amendment?
I will press it.
Amendment put:
The Committee divided: Tá, 2; Níl, 5.
Tá
- O'Callaghan, Cian.
- Ó Broin, Eoin.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- Noonan, Malcolm.
Amendment declared lost.
I move amendment No. 24:
In page 22, line 33, after “includes” to insert “, but is not limited to,”.
Amendment put and declared lost.
I move amendment No.25:
In page 22, line 34, to delete “or” and substitute “and”.
Amendment put and declared lost.
Amendments No. 26 and 27 are related and may be discussed together. Amendment No. 27 is a physical alternative to amendment No. 26.
I move amendment No. 26:
In page 23, to delete lines 1 to 3 and substitute the following:
“ “immediate surroundings”, in relation to a monument, means such areas immediately surrounding the monument, in addition to the surrounding area (if any) of the monument, where works, if carried out therein, could adversely affect—
(a) the monument, or
(b) any relevant thing of a relevant interest which, taking into account the type of monument which the monument is, it would be reasonable to consider might be in the vicinity of the monument;”.
The definition of the term "immediate surroundings" primarily relates to work carried out, or proposed to be carried out, at, on, in, under or to monuments. These works can be authorised by way of a licence or if a notification procedure has been complied with. This amendment revises the existing definition to help to ensure that an over-extended scope cannot be applied to the definition of "immediate surroundings" and to provide for the protection of other relevant things of relevant interest that may be located around a monument.
The Minister of State's amendment and our amendment are both trying to achieve something similar. I am interested to know how "relevant interests" are to be defined or judged in individual settings? My other question relates to how immediate the surroundings are. I will take a few real-life cases, without prejudice to people's views on either side of the debate, for example, the situating of a road in close proximity to a national monument or the siting of a hotel in a place where it would visually intrude on a national monument. What is the Minister of State's sense of what the definition of "immediate surroundings" would do and how would it be practically applied? Perhaps he has a real-life example.
In relation to the first question on relevant things of relevant interest, it could be the case that other relevant archeological objects are around a monument. It is to protect other relevant things of relevant interest around a monument.
On the immediate surroundings, detailed codes of practice would be required for investigation works. There are means of assessing how immediate the surroundings are through light detection and ranging, LiDAR, surveys and other surveying methods that can determine the immediate surroundings of a site. I hope that answers the Deputy's question.
I suspect the diligence of the legal drafters with respect to "context" was a little more lax when they were looking at the words "immediate surroundings". It seems to be an even vaguer phrase than "context". Part of me thinks the Government's amendment does in a much better way what our subsequent amendment proposed to do. On that basis, I am happy to consider withdrawing our amendment.
Will the Minister of State give the committee a real-life example? He spoke about codes of practice. Have those been developed or does he or do his officials have some sense of what they might be? I would like to get that sense as we know, for example, that the Rock of Cashel is a case and point with regard to the hotel proposal.
The Hill of Tara and the passing of the motorway there was an issue of significant public concern and gave rise to archaeological and environmental protest. There are ongoing issues around Hammerson's proposals in proximity to the Moore Street battlefield site. When we talk about immediate surroundings, are we talking about anything that is in proximity to a monument that pertains to the monument or is anything beyond that contemplated?
This would be on a case-by-case basis, as the Deputy will appreciate. Under section 211, there is a requirement with regard to statutory codes of practice. Every site is different. Surveying methods have advanced considerably over recent decades. That would give it a determination in terms of the extent of the extent of the site around a monument. Some sites can be connected and linked to other sites in the vicinity. Generally, the approach would be to proceed on a case-by-case basis and use the surveying methodology to ascertain what the range of a site would be.
I presume that the codes of practice will be developed by officials in consultation with relevant experts, etc., once the relevant sections come into force.
Yes, exactly.
Amendment agreed to.
Amendment No. 27 not moved.
I move amendment No. 28:
In page 23, between lines 3 and 4, to insert the following:
“ “import” means the import or bringing into the State of goods (being things of any kind, whether animate or inanimate) from a place outside the State;”.
Amendment agreed to.
I move amendment No. 29:
In page 24, between lines 15 and 16, to insert the following:
“ “National Monuments Advisory Council” means the body established by subsections (1) to (3) of section 21 of the National Monuments Act 1930 and amended by subsections (1) and (2) of section 15 of the National Monuments (Amendment) Act 1954;”.
Amendment put and declared lost.
Amendments Nos. 30, 31, 59, 100 and 101 are related and may be discussed together.
I move amendment No. 30:
In page 24, line 17, after “State,” to insert “among the five most read newspapers,”.
This goes back to the more thorny question of advertisements in the context of which publications they should go in, the criteria for those publications and whether there should be a digital version, a hard copy or both. There is a formula of words that seems to be used regularly in legislation which has been overtaken in terms of the balance of digital and hard copy media, as well as those that are more popular with readers or viewers. With these two amendments, we are trying to ensure, for example that where newspapers are being used, they are the most read newspapers, in the first instance, but also whether there should be an option in terms of whether advertisements should be in hard copy or electronic form. There are some of us who, even when we are reading digital, do everything in the PDF copy because we like the old-fashioned formatting and do not pay attention to the digital format. These amendments make relatively sensible propositions and I am interested to hear the Minister of State's response.
Amendment No. 100 seeks to delete the phrase "one or more than one" and replace it with that of "at least two". This is with respect to notice of register or actions. The purpose of it is to allow the Minister to give notice to a landowner in the most effective way possible under section 2(a).
Amendment No. 101 seeks to delete the phrase "in a national newspaper" and replace it with that of "at least in a national newspaper and in local media through a local newspaper and/or a local radio station, where they exist". For those of us who live in Dublin, we often forget that what we consider the national or State-wide media is only that in name. In many other areas, local media, be it the local newspapers or radio stations, are actually the first port of call for the overwhelming majority of people. The Minister of State will know that from his constituency. If we want to get an adequate reach of notice, it is important that we include not just what is traditionally known as the national media, or national newspapers, but local and provincial media as well.
What is suggested in Deputy Ó Broin's amendments is better than the current wording, which is highly restrictive. Most people do not get their news from national print newspapers; they get it from news broadcasts or online. Print editions of most daily newspapers may not be with us in five or ten years, which will make much of this obsolete. That is a detail around what is the best way to get information out through newspapers, advertisements or whatever. That misses the point. Recommendation 4 of our pre-legislative scrutiny report on this matter states: "That the proposed Bill should provide for a process to be undertaken wherein all landowners with a recognised monument on their lands be officially notified of its presence, significance, and attendant legal protection.". If this is simply done by means of an advertisement in a publication or whatever in the hope that people will see it, that is not going to be sufficient, robust or thorough.
When I talk to archaeologists who do site visits they have said that the oral traditions are really dying out in many parts of the country. People knew that they had significant monuments on their land, and that knowledge was passed on from generation to generation. The memory of that is dying off or becoming quite faint. Archaeologists have told me about turning up to visit a significant monument and being greeted with shock by the landowner. The thing they were told was very important by an elderly relative, whom they may not have believed, actually turns out to be very important. People can be quite surprised when they discover that they have monuments on their lands.
We cannot assume that people know exactly what they have on their land. I do not think publishing a notice in a national newspaper or whatever is going be sufficient. That is not to mention the debate regarding what constitutes a national newspaper actually. Many people of different ages simply do not read print editions of publications. That trend is only going to intensify in years to come. People may not be reading various online editions of publication either. What is required is that a written notice to be sent out in respect of all the monuments that are known. Significant work will be required in the context of getting the names of landowners who have monuments on their properties. If we do not do that, the situation will simply be inadequate. For the landowners involved, it will also be inequitable. We are talking about potentially large fines or prison terms under this legislation. I do not think any court is necessarily is going to issue those fines or hand down prison sentences, except in the case of the deliberate destruction of something of major significance.
There are a small number of prosecutions in this area, and there have only been nine since 2007, as far as I am aware. Where we have a process that is not robust and where, effectively, people may not know something is a monument and where that knowledge is held by the State, the onus is on the State to notify the landowners, which is important in terms of any subsequent enforcement and allocation of responsibility, and to make sure we get the best outcomes. The amendments from Deputy Eoin Ó Broin certainly improve the wording, but even with that, I do not see how that is a workable and effective system. Certainly, without them, simply to say “national newspaper” is not enough. What does that actually mean and why would the Minister not opt for a more robust way?
It has to be a matter of writing to the landowners with the knowledge of the monuments that we have, telling them their responsibilities, making that clear and giving them a clear legal responsibility to pass on that information to any subsequent landowner, so if they are selling the piece of land, one of the obligations with the sale of the land is to pass on that information. That would be robust, would work and would be fair and equitable and we would get much better protection of monuments. Often, when monuments are destroyed, it can be because people simply do not know or they had just heard a faint rumour that there is something there of significance, but they do not really think it is. They do not have that knowledge whereas the State has that knowledge and can pass it on. We absolutely need to do that.
I will go through the amendments in sequence. Where required, and when consulting on matters to be entered in the register of monuments or issuing notices where changes to the register have taken place, my Department will seek to ensure such consultations or notifications reach a wide and relevant audience. This will be done by making the necessary information available on my Department’s website and also at a site within the relevant geographical area, such as a library, post office, Garda station or local authority office. A notice will also be published in a national newspaper directing members of the public to the website and the relevant physical site.
What the Deputies propose by way of amendment No. 30 is not considered workable. If accepted, it would mean that each and every time a consultation or notification was to take place - they should bear in mind there are expected to be in excess of 180,000 entries in the register of monuments - proof would need to be supplied that the newspaper chosen for the consultation or notification was among the five most-read newspapers at the time that consultation or notification took place. This is not a reasonable burden to place on the administration of the register and could in fact be detrimental to the register’s establishment and maintenance. I can assure the Deputies that efforts will be taken to ensure that consultations with, and notifications to, members of the public are carried out effectively. Regrettably, I am not in a position to accept this amendment.
It is my hope that when enacted, this Bill will continue to be in effect for many years to come. Unfortunately, and Deputy O’Callaghan alluded to this point, given the volatility in the printed media sector, it is not possible to say that in several years, or perhaps we should even be thinking in terms of decades, national newspapers will always be available in hard copy. The proposed amendment requiring both hard and electronic forms of national newspapers, while well-intentioned, may limit the functionality and effectiveness of the consultation and notification requirements as regards entries and amendments to the register of monuments. For this reason, ultimately, I am not in a position to accept this amendment.
With regard to amendment No. 100, unfortunately, this amendment is not considered workable. Once again, I would like to draw committee members’ attention to the anticipated size of the register of monuments and the already comprehensive administrative procedures provided under the Bill. We need to make sure that what is in the Bill is workable and not only aspirational. There are practicalities that need to be taken into consideration when it comes to the implementation of the Bill and we cannot have a situation where perfection becomes the enemy of good.
The Bill ensures ample consultation requirements prior to entering, amending or deleting particulars in the register of monuments and further notification procedures once a register action is carried out. Notice may be given directly to the owner of the land on which a relevant monument is situated, that is, a specific notice, or by publishing a notice in a national newspaper regarding the availability of further information relating to a register action, that is, a general list notice. The information referred to will be available on the Department’s website and at a relevant site, such as a library, a local authority office or a Garda Station. Where special protection is to be applied to a monument, notice of the corresponding registered action must be by way of specific notice directly to a landowner.
It is considered that this approach strikes a workable balance between ensuring that owners are, to the fullest extent possible, made aware of the legal protection applicable to registered monuments but without running the risk that important sites are left unprotected due to administrative difficulties, such as issues concerning the identity or whereabouts of landowners. This will help to ensure that the register of monuments can be established, while not precluding further work regarding notification to landowners by way of specific notice. For these reasons, I am not in a position to accept this amendment.
In regard to amendment No. 101, expanding the notification of a register action to include local media may be possible but further consideration is needed to explore the practicalities of what is proposed and whether this is going to be workable. I would like my officials to explore this suggestion in further detail and to consult with the Office of the Parliamentary Counsel on this matter. I ask the Deputies to withdraw this amendment to give us time to bring forward a corresponding proposal on Report Stage, if this is considered feasible.
With regard to Deputy O’Callaghan’s amendment No. 59, when examining the policy intent of the proposed subsection (1), all will agree that the ideal to be worked towards is, indeed, that specific notice be given to every relevant landowner. However, apart from the problem that it may sometimes be the case that the whereabouts and identity of an owner can be very difficult to establish, despite extensive investigation, and that land may have multiple persons claiming interests in it, and such persons may sometimes be in dispute with each other, it would be very prejudicial to the protection of monuments to impose an absolute requirement that all entries in the register would have to be either proceeded or followed by specific personal notice to owners. Implementing this could result in major long-term delays to the establishment of the register or even, as occurred with the register of historic monuments under the National Monuments (Amendment) Act 1987, result in it failing to be established in any real sense.
I believe the package contained in the Bill strikes a reasonable and proportionate balance, taking into account the levels of protection resulting from general protection and special protection, and bearing in mind that prescribed monuments will automatically have general protection without entry in the register so that very many entries in the register, at least of the initial entries, will not be significantly changing the already existing protection assigned to the monument under the Bill. Where special protection is being imposed, then specific notice will be required. Where only general protection is being imposed as a result of entry in the register, then notice by way of widely circulated and publicised general notices will be permitted, though with the option of specific notice also, an option which it would be my aim to work towards becoming the commonly used one, subject to the necessary resources and technology being available.
As to the proposed subsection (2), I have considered such an approach but have been advised that it could present significant legal issues. However, I can offer to the Deputy that I will consult once again with Parliamentary Counsel in advance of Report Stage and offer a more conclusive view on the matter at that point.
In regard to the proposed subsection (3), I refer the Deputy to subsection (3) of section 8, which was amended following pre-legislative scrutiny. It provides as follows: “For the avoidance of doubt, it is hereby declared that the destruction, whether in whole or in part and by whatever means, of a monument to which general protection or special protection applies shall not prejudice the continuation of such protection to the remainder (if any) of the monument, including the site, surrounding area and immediate surroundings of the monument”. This achieves what the proposed amendment appears to intend without the need for additional administrative procedures to be gone through, thus saving resources and ensuring there is no delay arising from the need for such procedures to be gone through. Continued legal protection will apply automatically as a matter of law. I believe that what I have done by way of section 8(3) addresses any possible concerns the committee might have.
I must, therefore, oppose this amendment, although I note again my willingness to engage further with Parliamentary Counsel regarding the proposed subsection (2).
I would add that Tailte Éireann will also receive notice of the monuments for its registry, so that is an added layer of notification with regard to the Land Registry.
I thank the Minister of State for his response. It is positive that he is looking at my amendment to section 2 with a view to pursuing it on Report Stage, subject to advice. The amendment would legally oblige landowners to notify and inform any future owners of the property as to the presence and legal status of registered monuments. It is positive that he is looking at it.
The Minister of State mentioned the specific notice that will be given with regard to special protection. What sort of numbers are we looking at? There are some 180,000 monuments. What is the ballpark figure for the number to be given special protection?
The Minister of State also said he wants us to work towards a situation where specific notice would be given in the other areas of general protection, subject to resources. Will he expand on that? What sort of timeline will be involved in getting those resources in place?
Would the Deputy mind repeating the second part of the question?
The Minister of State said he wanted to work towards giving specific notice for general protection and not just special protection. He said that was subject to resources. Will he expand on that? When will we have an idea of the timeline in that regard?
On the first part of the Deputy's question on the additional protection, I do not have a specific figure as to how many of the 180,000 monuments will be covered but this will add a very strong level of protection. I will take on board the points the Deputy has made with regard to the section 9(2) proposed by his amendment. I again give a commitment in that regard. We aim to set up a registration unit in the national monuments service. I cannot give an exact timeline for that but it will be done as soon as is practicable.
The whole point of section 9(2) is based on the landowner having been notified about the monument and then having a legal responsibility to pass that information on. If the landowner is not legally notified of the presence of the monument, he or she may not have the information and be unable to pass it on. Such landowners may or may not have seen notice in the post office, Garda station or newspaper. It affects the obligation to pass on that information if it cannot be established that you definitely saw the notice. To be frank, I cannot say when I last saw a notice in a post office, Garda station or library and I am engaged in matters in my local area. It is a long time since I have seen a notice in any of those places and I do visit the library and so forth. We have to reach a situation as quickly as possible in which these notices are issued specifically. If we do not do that, there will be a great difficulty here with regard to knowledge not being passed on.
There could be issues with landowners proving they were not aware of a notice. The specific notice is the ideal but, as I said when referring to my speaking notes, we need to give credence to the practical considerations. With this Bill, it is our intention to give notification where we can. We note the points raised in these amendments and the challenges with regard to notification. As I have said, we will come back once we have consulted with the Parliamentary Counsel on the matter, if that is okay.
I support Deputy Cian O'Callaghan's proposition. There is already a well-established mechanism for doing exactly what the Deputy is asking for under the derelict sites legislation. Where a local authority moves to compulsorily purchase a derelict site, it checks the land register to see if there is an address associated with it. It checks all its records to see if there is a verifiable means by which to contact the property owner directly. Where it cannot, the legislation permits it to place a notice on the property in question. If the owner of the property has not responded to the notice within the period of time set out in legislation, he or she is deemed to have been notified. On that basis, where there is no counterparty to negotiate the compulsory purchase order with, the State may proceed because, under the derelict sites legislation, it has been provided for that the compulsory purchase order, CPO, can proceed. A mechanism of that kind would be eminently suitable for the circumstances the Deputy and the Minister of State have been discussing. I urge the Minister of State to go back and look at it. I know it is a slow and cumbersome mechanism but I am beginning to think the Minister of State may have a greater problem if the sole way he hopes to notify an owner of land is through any form of media. We can have a conversation about that separately. A situation may arise in court where it is not actually up to the owner of the land to prove he or she has not been notified, but for the State or its actors to prove that the individual has been notified. Therefore, a combination of what Deputy Cian O'Callaghan is calling for and the mechanism under the derelict sites legislation would be very sensible.
Local authorities have a very similar mechanism in respect of local authority social housing tenancies. If the local authority believes that somebody has abandoned a social housing tenancy, there is provision under the Housing Acts for a notice to be attached to the door and, after a period of time, if the designated tenant has not responded to that notice, for that tenant to be deemed to have abandoned the property and for the State to step in and reclaim it. That would be worth looking at.
In respect of the media stuff, the definition of a national newspaper is "a newspaper published and circulating generally in the State". Nobody would seriously suggest that, every time a newspaper is chosen under that definition, there has to be some evidence attached somewhere in the administration to prove that the publication chosen was circulating generally in the State. It is just assumed that will be understood. In fact, there are publications that circulate generally in the State but which have a very low readership. I therefore think some bar should be set. If the Minister of State does not follow Deputy Cian O'Callaghan's advice and if this is his primary method of notifying not just the general public but the landowner, he would really want it to be a publication that has a high circulation. That speaks to the need to strengthen that definition but also to go beyond State-wide newspapers. There are certain parts of the country where not only are there no post offices and not only are the Garda stations very rarely open, but where the people, when going into the local newsagents, do not choose to read The Irish Times, the Irish Independent or the tabloids. They read a set of other publications. There is a real need to reconsider the amendments I am proposing.
Those of us who are Dublin Deputies are often lobbied by, for example, the Dublin Gazette, which, as the Minister of State will know, is a freesheet that circulates around Dublin. Like many freesheets and local newspapers, it employs a lot of people and promotes a lot of local news. During the Covid pandemic, those involved felt particularly aggrieved that they could not get access to any of the notification opportunities. In that case, the opportunities came from the HSE but they made the point that, in general, they do not get these opportunities from anyone because the assumption is that, if you use The Irish Times, the Irish Independent or the Irish Examiner, that will suffice. I would have thought that some measure of local media would have been included as part of a general Government policy, filtering down into each of the different Departments and agencies, to promote media diversity and local jobs while also ensuring the people you want to know about something know about it.
Will the Minister of State give some indication that he will go back and look at these two issues again? I accept there might be some problems with the wording. If he did so, I would be happy to consider withdrawing the amendments. However, I really must ask who decides which newspapers are in general circulation. What are the criteria? Where is the evidence that a given publication is the best publication for a particular notification? Again, I believe it is too broad and, on that basis, unless the Minister of State is willing to look seriously at these issues again, I will press the amendments.
That speaks to amendments Nos. 100 and 101 as well.
Is amendment No. 30 being pressed?
I would like to hear the Minister's response before deciding.
We are certainly willing to give this consideration and take a further look at it. The Deputy mentioned the Derelict Sites Act but it is very difficult to compare like with like here. We are talking about 180,000 monuments-----
There are 166,000 vacant homes, but leaving that aside-----
Yes, but it is a different situation. Our plan would be to establish the register first of all and then to work towards refining the specific notice once the register is established. The first part or chunk of the work is obviously to establish the register and then look at the notification. I am taking on board the points both Deputies have made and they are absolutely valid and important. We will give further consideration to that.
How stands amendment No. 30?
I will withdraw it but reserve the right to reintroduce it on Report Stage, if necessary.
Amendment, by leave, withdrawn.
I move amendment No. 31:
In page 24, line 17, to delete “whether in hard copy or electronic form, or both” and substitute “in both hard and electronic form”.
As with the previous amendment, I will withdraw this but may resubmit it on Report Stage.
Amendment, by leave, withdrawn.
I move amendment No. 32:
In page 26, to delete lines 20 to 24 and substitute the following:
“ “registered monument” means—
(a) a relevant thing of a relevant interest the particulars of which are entered in the Register pursuant to section 14(3)(a)*, or(b) a prescribed monument the particulars of which are entered in the Register pursuant to section 14(3)(b)**;”.
Amendment agreed to.
Amendments Nos 33 and 34 are related and may be discussed together.
I move amendment No. 33:
In page 26, line 27, to delete “artistic, historic or traditional” and substitute “historic or cultural”.
Amendment 33 relates to the addition of “cultural interest” into the bill and corrects the usage of relevant terms by removing “artistic” and “traditional”, as “cultural interest" is already provided for.
An Cathaoirleach: Deputy Ó Broin wants to speak to amendment No. 34, which is a physical alternative to amendment No. 33.
Yes. Section 6 of the committee's pre-legislative scrutiny report made this or a similar recommendation and we think it is a much stronger proposition than what the Government has done. On that basis, unless the Minister of State convinces me otherwise, I will be pressing this amendment.
Given the Government amendments previously discussed, I introduced cultural interests into the scope of the Bill. I would ask Deputies to consider withdrawing their proposed amendments.
Amendment put and declared
carried.
Amendment No. 34 not moved.
Amendments Nos. 35 to 38, inclusive, are related and may be discussed together.
I move amendment No. 35:
In page 26, line 29, after “thing” ” to insert “, except for the purposes of section 173,”.
Amendment No. 37 relates to what I was talking about earlier about the importance of delineating areas of historic and archaeological significance. Without lines on a map I do not see how this clause will be effective. It is important that boundaries are defined and delineated. If they are not defined and delineated, how can they be protected? Article 1 of the European Landscape Convention, known as the Florence Convention, provides a definition of landscape as an area whose character is the result of the action and interaction of natural and/or human factors. A battlefield scarred by entrenchments, the employment of a natural train, troop movements, encampments and engagement can clearly be described as a landscape but where are these landscapes identified and delineated in the Bill? How will they be identified and delineated in terms of maps? Let us take UNESCO sites, for example. The wish list for future UNESCO sites in Ireland includes the passage tomb landscape in County Sligo and the royal complex at Rathcroghan in County Roscommon. Rathcroghan was the seat of the ancient kings and queens of Connacht and the complex of monuments extends over an area of about 800 ha. How can we make the case for this to be a UNESCO site and to be listed if the landscape or reserve is not recognised or afforded legal protection by the Bill?
Deputy Ó Broin wishes to speak on amendments Nos. 35 and 38 in this grouping.
Amendment No. 35 seeks to add "except for the purposes of section 173", after the term "relevant thing". The reason is that our reading of the Bill suggests that the general interpretation of "relevant thing" does not cover those relevant in section 173 because in that section there is a specific and totally different definition, at the top of page 150 of the Bill. While structures or sites are meant by "relevant thing" everywhere else in the Bill, a "relevant thing" in section 173 means equipment, tools, machinery and vehicles used to damage or destroy structures or sites in an offence under the Bill. Again, our reading may be incorrect and if so, I ask the Minister of State to correct us but I wanted to bring this to his attention.
Amendment No. 38 wants to expand the criteria for "relevant thing" to include a place which was associated with or significant to the planning, development or consequences of an historical event or period or the life of an historical person. The best way to explain this is with the example of the high-profile case of the recently demolished O'Rahilly house. One could argue that no high-profile, historic event took place in there, unlike the General Post Office, GPO, or the Moore Street battlefield site, and yet it is of enormous historical significance because so many historical events were planned in that location. Therefore, it has a connection to wider historic events and expanding that definition would allow for the consideration of the inclusion of buildings such as the O'Rahilly house under the definition of "relevant thing".
There is nobody here to speak to amendment No. 36 so I invite the Minister to respond on amendments Nos. 35, 37 and 38.
Again, I thank Deputies for bringing these matters to my attention. On amendment No. 35, I am of the view that the term “relevant thing” is a key definition used in the Bill and the repurposing of the term for the purposes of section 173 - matters that relate to the supply of machinery or vehicles for use in the commission of an offence under the enacted Bill - may lead to some confusion. I ask the Deputies to withdraw this proposed amendment so that I can ask my officials to engage with the Office of the Parliamentary Counsel to propose the introduction of new terminology into section 173 so that “relevant thing” has only one meaning and the term as used in section 173 is replaced with an appropriate substitute. We can come back to this on Report Stage, if that is acceptable.
On amendment No. 37, the purpose of the definition of “relevant thing” is to set out things which may either come within classes of prescribed monuments and so have automatic legal protection, or be entered in the register of monuments. Therefore, to define a relevant thing by reference to it having been delineated is, quite simply, to put the cart before the horse and would undermine the structure and purpose of the definition of “relevant thing”. Leaving drafting difficulties aside, I am satisfied that the provisions of the Bill are more than adequate to ensure that wider areas can, where appropriate, be protected. I would refer here to the provisions of section 14 enabling surrounding areas to be included in entries in the register of monuments and for entries in the register to comprise two or more relevant things. On that basis, I am not in a position to support amendment No. 37.
On amendment No. 38, the definition of a “relevant thing” is a crucial part of the Bill. Certain aspects of this amendment are already captured adequately under the definition of “relevant interest” which, among other things, means that a “relevant thing” is of known or potential historic interest.
However, I can see potential within the definition of "relevant thing" to expand upon sites where an historic event took place, to include, as Deputies suggest, those sites that may be associated with such historic events.
I would like the officials to explore this matter in further detail and to consult the Office of the Parliamentary Counsel so as to consider what options may be available from a drafting perspective. I ask the Deputy to withdraw this amendment and, subject to consultation with the Office of the Parliamentary Counsel, I will aim to bring forward a corresponding proposal on Report Stage.
I thank the Minister of State for his response. Will the surrounding areas be mapped? Will there be a line around the surrounding area?
They will be delineated.
Absolutely.
They will be mapped. That gives protection to the-----
Yes. That delineation will be done by the process of entry to the register.
The surrounding area could include landscapes. Are we speaking about a monument and a few metres around it being the surrounding area?
Historic sites or legendary sites, for instance, could also be included. That could be landscape scale, if that is what Deputy O'Callaghan is referring to.
Using the example of Rathcroghan in County Roscommon, protection could be provided for the full landscape under the Bill.
That could be delineated on a map with lines drawn around it to show the areas that are protected.
Yes, and sometimes there are groups of monuments. Many of these monuments do not occur in isolation. They can be in groups. This delineation will happen during the process of entry onto the register.
Is the fact that this is not specified in the Bill and that it is somewhat ambiguous not a weakness in the legislation?
I would not be concerned about that. As I said, the process by which the register is put together is where the delineation will occur. The importance and significance of the area would be included in the register.
Amendment, by leave, withdrawn.
Amendment No. 36 not moved.
I move amendment No. 37:
In page 27, to delete line 1 and substitute the following:
"(e) a historic and/or archaeological landscape – a delineated area of historic and/or archaeological significance;".
Amendment put and declared lost.
I move amendment No. 38:
In page 27, line 1, after "place" to insert ", or which was associated with or significant to the planning, development or consequences of a historical event or period, or the life of a historic person".
Amendment, by leave, withdrawn.
I move amendment No. 39:
In page 27, between lines 25 and 26, to insert the following:
" "traditional interest" includes of interest by virtue of folklore, folklife, myth or legend;".
Amendment agreed to.
I move amendment No. 40:
In page 27, line 31, to delete "digging, ploughing" and substitute "ground disturbance (including digging, ploughing or excavation)".
Amendment agreed to.
I move amendment No. 41:
In page 27, line 33, to delete "excavation,".
Amendment agreed to.
I move amendment No. 42:
In page 27, line 35, after "damage" to insert "or defacement".
Amendment agreed to.
Amendments Nos. 43 and 215 to 220, inclusive, are related and will be discussed together.
I move amendment No. 43:
In page 27, line 37, to delete "section 93" and substitute "section 91".
Following discussions in the Seanad, I made commitments to bring further clarity to elements of Part 3 of the Bill. This set of amendments will switch the definition of "World Heritage Property" to the beginning of Part 3 and provide additional clarity that consultations under section 92(2) are not specific to one particular aspect of world heritage property but can be in relation to world heritage property generally.
Does that cover amendment No. 216?
It covers amendments Nos. 215 to 217, inclusive.
Amendments Nos. 218 to 220, inclusive-----
As they are a little bit separate, could we tease out the Minister's amendments first?
Do you want to discuss amendments Nos. 43 and 215 to 217, inclusive first?
Yes. Am I correct that this introduces a new type of world heritage property in the State?
As I recall, this emerged from debate in the Seanad. There was concern about the use of the word "property". This is about providing clarity. We are moving the definition to the top section to provide clarity.
Are there implications in terms of section 9D(1) of the Official Languages Act to use the Irish language for new titles? Existing world heritage sites already use Irish titles primarily.
It is just the definition of world heritage property, if that is what Deputy Ó Broin is asking. It was moved from section 93 to section 91 to provide further clarity on world heritage property. This is what the amendment is about.
I thank the Minister of State.
Is that okay?
It may not be. I have a feeling that a colleague might return to it on a later Stage.
Does Deputy Ó Broin wish to speak to amendments Nos. 218 to 220, inclusive?
The purpose of amendment No. 218 is to require the Minister to consult people in the communities most affected by the potential inclusion of a site on the world heritage list. This is to ensure democratic participation and local community activism in heritage protection. We believe this is in line with Article 15 of the Convention for the Safeguarding of the Intangible Cultural Heritage.
The purpose of amendment No. 219 is to require the Minister to act consistently with the intangible cultural heritage convention when performing functions related to world heritage sites. The convention states that each state party shall endeavour to ensure the widest possible participation of community groups and, where appropriate, individuals who create, maintain and transmit such heritage and to involve them actively in its management. It has a similar intent to the previous amendment.
In amendment No. 220, we propose to require the Minister to include 14 specific properties or ensembles of properties on the inventory for consideration as world heritage sites. They are listed but the wording would not limit it only to these sites and others could be added subsequently.
We agreed we would take a break at 4.30 p.m. for 30 minutes.
We have a cliffhanger.
I ask the Minister of State to hold off with his response, although we could also continue now.
No, let us break for half an hour.
Sitting suspended at 4.30 p.m. and resumed at 5 p.m.
The Minister of State was about to speak to amendments Nos. 218 to 220, inclusive, when we suspended.
Before I do, I wish to inform the committee that additional time is required to finalise and approve proposed amendments relating to the Phoenix Park Act 1925. If possible, I intend to bring those amendments on Report Stage.
That is noted.
In what manner do those amendments relate to this Bill? That is a serious question to the Minister of State.
The Phoenix Park is part of our historic heritage.
Are those amendments consequential to this Bill?
In relation to amendment No. 218, section 92 already provides comprehensive provisions for consultation in relation to world heritage property and property that has the potential to become world heritage property. My previous amendment has made it clear that consultation will take place on all matters relating to world heritage property.
With regard to amendment No. 219, while synergies exist between the different UNESCO cultural conventions, the interchanging of provisions between conventions in the manner proposed here brings confusion as to the Bill's scope and purpose. As the Bill provides for tangible cultural heritage, it is not considered appropriate to make any reference to the convention for the safeguarding of intangible cultural heritage. For the purposes of clarity and the information for the House, I will read out the provisions of article 15 of that convention:
Within the framework of its safeguarding activities of the intangible cultural heritage, each State Party shall endeavour to ensure the widest possible participation of communities, groups and, where appropriate, individuals that create, maintain and transmit such heritage, and to involve them actively in its management.
Deputies will note that the provision is directed at activities relating to the safeguarding of intangible cultural heritage. Therefore, to tie this provision into legislation relating to the protection of clearly tangible heritage in the form of monuments, archaeological objects and wrecks is clearly inappropriate and unworkable and would likely result in substantial lack of clarity and confusion as to what the provision meant, and how and in what way the Minister was to comply with it. In any event, provisions of an international convention such as this cannot safely, or with any legal certainty, be given legal effect within Irish domestic law by merely stating that a particular authority is to comply with them. It would fall to the Oireachtas to set out clearly how they were to be complied with and provide the Minister or other statutory bodies with the necessary legal powers so as to comply with them. In that regard, for reasons which should be evident from my response to a number of proposed amendments, I believe the Bill already contains extensive provision for public engagement and consultation with relevant parties. In light of what I have said on the inappropriateness and unworkability of the proposed amendment, I hope the Deputy will withdraw it. In any event, I will be opposing it.
On amendment No. 220, the approach being taken here is entirely inappropriate and runs contrary to the bottom-up approach recommended by World Heritage Convention guidelines, and by my Department's policy on the world heritage property nomination process. This proposal is a retrograde step. It neither provides for appropriate community involvement in developing sustainable proposals for world heritage nominations, nor provides for proper scrutiny by national and international experts as to whether a suitable level of outstanding universal value can be applied to the properties listed in the amendment. Its implementation would create local controversy and likely undermine support for world heritage status at sites that might well merit a nomination. This would result in the exclusion of the involvement of local communities in formulating world heritage nominations, something which is core to the contemporary approaches of world heritage management. I could not in any way support such a retrograde approach which, if adopted, could undo much of the good work carried out by my Department in formulating an inclusive world heritage strategy and building community support. At an international level, it could result in difficulty and embarrassment for the State by forcing the Minister to submit nominations for world heritage status prematurely and potentially cause an application to fail, which it might if the necessary preparation, including local community engagement, has not been done.
I note that two of the sites referred to, Brú na Bóinne and Sceilig Mhichíl, are already, on a long-standing basis, constituted as world heritage properties. Again, for these reasons, I am not in a position to accept these amendments.
To go back to the Minister of State's announcement after the suspension, I have a question about the further set of proposed amendments the Minister of State intends to bring on Report Stage. Are they consequential to this Bill or are they a further set of non-consequential amendments?
They are a further set of non-consequential amendments.
The Minister of State will need another Oireachtas motion to do that.
I will hold my fire on that particular one until we get to those non-consequential amendments, in the interests of expediency.
Taking the amendments in reverse order, I am taken by the Minister of State's argument in relation to the proposition in amendment No. 220. I am seeking the Minister of State's opinion rather than a commitment from him. I presume all or most of the sites are sites that one would hope to progress through the procedures provided for in the Bill, as the Minister of State outlined. Part of the Minister of State's argument is that, rather than deciding from the top down, the purpose would be to let all the sites go through the appropriate process, as provided for in the Bill. I am interested in his thoughts on that.
On the basis of what the Minister of State said, I am happy to withdraw amendment No. 219.
I really do not understand the argument he made against amendment No. 218, which deals with the consultation. I would like the Minister of State to be more clear about why that is the case.
On amendment No. 218, there already is comprehensive provision made for consultation in relation to world heritage property. The process for getting to a point of submitting sites for the tentative list is a very expansive one and requires broad public consultation. We are satisfied that this public consultation, and the public consultation that led us to the sites we did submit for the tentative list, have been very robust and expansive. There is not a need in that sense. The sites listed here are all important. The world heritage property designation is an ongoing process.
In the future, there is always opportunity for sites to be considered. As I said, going back to amendment No. 218, it is critically important to and we do carry out extensive public consultation. I give that assurance to the Deputy.
Amendment agreed to.
Section 2, as amended, agreed to.
NEW SECTIONS
We will take amendments Nos. 44, 48, 64 and 268 together, as they are related.
I move amendment No. 44:
In page 29, between lines 15 and 16, to insert the following:
“Valletta Convention
3. (1) Nothing in this Act shall be understood to violate or undermine the definitions, principles and requirements outlined in the Valletta Convention to which Ireland is a signatory.
(2) The Minister, the Commissioners, the Board, the Council and each local authority, shall be required to ensure the Valletta Convention is adhered to in full when implementing this Act.
(3) The Minister shall establish regulations to ensure full compliance with the Valletta Convention where clarity is needed in the implementation of this Act.”.
As the Minister of State will know, this issue was a significant area of discussion and some controversy in the passage of the Bill through the Seanad. This amendment seeks to give effect to recommendation 9 of the committee's pre-legislative scrutiny report. My understanding from the debates in the Seanad as well as some of the commentary on the legislation from organisations including An Taisce and others is that there is a genuine concern about full compliance with the requirements of the Valletta Convention arising from the Bill. An amendment was tabled by Senators Victor Boyhan, Alice-Mary Higgins, Tom Clonan, Gerard Craughwell and Lynn Ruane in the Bill's passage through the Seanad. We have tried here to slightly amend that on foot of some conversations the Minister of State had with those Senators at the time. It is really to bind this legislation to definitions within the convention where the Bill is less than explicit, particularly with regard to archaeological reserves, which has been discussed already to quite an extent with Deputy Cian O'Callaghan, in cases where they are no visible remains.
My second amendment in this grouping is No. 268. It is a belt and braces approach from our point of view, to further oblige the Minister to carry out functions under this Act consistent with the Valletta Convention, the European Landscape Convention, the Convention for the Safeguarding of the Intangible Cultural Heritage, the Aarhus Convention, the UN sustainable development goals and the Climate Action and Low Carbon Development Act 2015. It is interesting to reflect on previous legislation where this has come up. We had it in some of the maritime area planning legislation, where we had a set of European and international obligations. We are often told we have to comply with those obligations anyway and asked why we would specifically reference them in the Act but it seems to me that given there are other areas where we have strong international and European legal requirements and obligations, which we have consistently fallen foul of, with the benefit of hindsight, it would be helpful to contain specific and explicit requirements for the Minister. They would not only be for the Act to be fully compliant with Valletta in this case but also for the Minister, on enactment and when carrying out the functions under the Act, to be fully compliant with that and other legal requirements.
Will Deputy O'Callaghan speak on amendment No. 64?
Before that, on the announcement the Minister of State made, can I ask about his non-consequential amendments about Phoenix Park? When will we get a written briefing on those? Will he let us know? The written briefing for the last round of non-consequential amendments was very late for us to deal with it.
We will try to get the briefing to the committee as soon as possible.
Just to be helpful. I thank the Minister of State. Before I address amendment No. 64, I think amendments Nos. 44 and 268 from Deputy Ó Broin are good. They are blunt but they are direct and would serve a useful purpose in the Bill. I cannot see how there is anything to be lost from having them, incidentally. I can see why there could be resistance to them if there is not full commitment to adhering to those conventions. That is the whole point whereas this would make it explicitly clear that we are.
Amendment No. 64 relates to prescribed monuments in Chapter 2 of the Bill. Under the subsection on prescribed monuments, the Minister may prescribe a class of relevant things with reference to any of these criteria. This amendment is to add the environment in which the relevant monument is situated to the criteria. We have had quite a discussion on the importance of the surrounding area around monuments, including landscapes and archaeological reserves. There is agreement that it is important. I cannot see any reason, given that agreement, why there would not be a wish to include this in the list of things that the Minister may prescribe as a class of relevant thing. In fact, if we do not include it in the list, surely the areas around it, under the specific definition of the Valletta Convention, would then be excluded?
In response to Deputy O'Callaghan, we will try to get a briefing for members as soon as possible. It will be early next week, if that is okay.
In response to amendment No. 44, I am proposing an amendment to section 3 on the Valletta Convention that I hope Deputies will consider appropriate enough for them to withdraw their corresponding amendments. As I stated in Seanad Éireann, the Valletta Convention is intrinsically enshrined in the Bill. Certainly, nothing in this Bill conflicts in any way with the convention. I refer to the document that my Department has provided to committee members. I am sure committee members got the document that aligns the Valletta objectives with the Bill. It covers, article by article, how each provision of the Valletta Convention is implemented in Irish law. This is achieved through the Bill and by other legislation, such as the Planning and Development Act. Certain matters in the convention do not actually require legislation to be introduced and they can be provided for by administrative means instead.
The alternative amendment I intend to propose will require adherence to the Valletta Convention or any other treaty aimed at promoting or securing the protection of archaeological, architectural or other historic heritage by a person in their performance or functions under the Bill. This will include a specific reference to section 168 which relates to the co-ordination and development of public policy on historic heritage.
As I mentioned in the Seanad previously, section 151(3)(b) of the Bill includes an important provision stating that authorities exercising any licence functions under the Bill must have regard to relevant international conventions. Regarding the third paragraph of the Deputy's proposal, I do not believe anything in the Bill conflicts with the Valletta Convention, so the need to make regulations to address such a conflict is not considered necessary.
I ask members of the committee to consider the extent and scope of the Bill and the different types of interest it provides for, whether archaeological, architectural or historic, and the wide-ranging powers to protect not only sites and structures but also sites where it is reasonable to believe that monuments may be located. Not only will the Bill provide for the Valletta Convention, it will go far beyond what the Valletta Convention provides for. In light of this, I ask Deputies to possibly consider withdrawing this proposed amendment.
In response to Deputy O'Callaghan's amendment No. 64, it is our view that this is not workable. Paragraphs (a) to (g) of section 12(2) are factors the Minister of the day may use in setting out classes of relevant things as prescribed monuments. They do not themselves impose legal protection. I cannot see how the proposed paragraph fits in here. In policy terms, I have already set out my view that the existing provisions relating to the register of monuments are more than adequate to give full effect to the provisions of the Valletta Convention on archaeological reserves. Again, I must oppose this amendment.
I will move amendment No. 48. Section 3 outlines the principles that anyone performing any function under the Bill must acknowledge and consider.
As mentioned previously, this amendment acknowledges the significance of, and will require an adherence to, the Valletta Convention or any other treaty aimed at promoting or securing the protection of the archaeological, architectural or other historic heritage by a person in the performance of their functions under the Bill. It will include a specific reference in section 168 which relates to the co-ordination and development of public policy on historic heritage. I made a commitment when the Bill was on Report Stage in the Seanad to make additional references to the Valletta Convention in key parts of the Bill. I believe I have honoured that commitment through this proposed amendment.
I thank the Minister of State for that commitment. Is he saying that in respect of 12(2)(e), the wording "the environment in which the relevant thing is situated" means that the environment will not be recognised as an archaeological reserve? Is it that the legislation is open to that?
When the register is being compiled, that is when the extent of the site would be given consideration. I think that is what the Deputy is referring to. Is it?
Yes but I am just asking about this section of the Bill with regard to Chapter 2 and prescribed monuments. That definition is not defined in section 12(2)(e) around "the environment in which the relevant thing is situated" whereas I am attempting, effectively, to put a-----
Again, this relates to section 2 in terms of the classification of the monuments and how they can be classified. It is there. As I said, those existing provisions relating to the register are adequate to give full protection to the provisions, as Deputies are seeking to do under the Valletta Convention.
Amendment put:
The Committee divided: Tá, 2; Níl, 5.
Tá
- O'Callaghan, Cian.
- Ó Broin, Eoin.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- Noonan, Malcolm.
Amendment declared lost.
As a courtesy to other members, I will say now that I will call a vote on the next amendment. That will save them leaving and having to come back again.
I am moving to amendment No. 45, which has been ruled out of order as including a charge on the Revenue. A note to that effect went out.
Okay.
Amendment No. 45 not moved.
SECTION 3
Amendments Nos. 46, 47 and 50 are related and will be discussed together.
I move amendment No. 46:
In page 29, between lines 18 and 19, to insert the following:
“(a) that the historic, archaeological and cultural heritage of Ireland, as the product of the labour, craftsmanship and talent of their forebearers, belongs equally to all the people of the Irish nation and that this heritage must be protected for the people and as the inheritance to which future generations are entitled as a right;”.
The purpose of this amendment is to insert "that the historic, archaeological and cultural heritage of Ireland, as the product of the labour, craftsmanship and talent of their forebearers, belongs equally to all the people of the Irish nation and that this heritage must be protected for the people and as the inheritance to which future generations are entitled as a right". Deputy Ó Snodaigh's intention in drafting the text of this amendment was to try to have a rights-centred approach to legislation on heritage, in particular recognising the equal ownership of all the people of the Irish nation to their heritage.
Amendment No. 47 extends this further, particularly in respect of performing the functions under the Bill to recognise and take due account of the right of people to access their heritage as a matter of principle.
Amendment No. 50 seeks to insert, "The Minister, the Commissioners, the Board, the Council and each local authority, as relevant, shall be answerable for the performance of their functions under this Act to the Joint Oireachtas Committee with responsibility for heritage." This is one of the things the Minister and I discuss and disagree on. It is about the need for a more formalised role for the relevant Oireachtas committee in overseeing the work not just of the Government but of the Ministers relevant in this case, commissioners, boards, councils, etc.
In response to amendments Nos. 46 and 47, the primary purpose of section 3 is to provide for a set of broad principles that mirror those found within the Valletta and Granada Conventions. While I acknowledge the ambition, statements such as the ones proposed here are not considered appropriate for a legal document, given the legal consequences that such statements relating to ownership and access may have. Amendment No. 46 is a well-worded statement but it is just that. It is, in itself, a good statement.
In respect of amendment No. 46, many elements of Irish historic heritage are not in the ownership of the State but may have been acquired lawfully and with an intent to preserve and protect such heritage. It is not possible to provide blanket ownership of all Irish historic heritage in the manner proposed. Extensive provisions already exist in the Bill relating to the acquisition and ownership of monuments and archaeological objects. Provisions already exist in the planning and development Acts with regard to the creation of public rights of way over privately owned land, either by agreement or compulsorily. Section 89 of the Bill provides for the enforcement of an easement that provides public access to a national monument, which is a monument in the ownership of the Minister or local authority.
Under section 75, the Office of Public Works, OPW, or relevant local authority, will have powers to provide visitor access and facilities at national monuments where it is considered appropriate to do so. For those reasons, I am not able to accept these amendments.
In respect of proposed amendment No. 50, while I have the greatest regard for the joint committee, as the Deputy knows-----
The Minister almost said that with a straight face.
I really mean it. I welcome and support the committee's ongoing interest in the heritage brief. I must say that, because the committee has shown enormous interest in that work. I know the committee has a very heavy workload but the heritage side of the portfolio has not been forgotten. However, I have no option other than to oppose the amendments conferring statutory decision-making or supervisory functions on the joint committee. There are several reason I must do so.
While I do not wish to respond to proposed amendments by being overly legalistic or delving too deeply into constitutional theory, I would note the relevant provisions of Article 28 of the Constitution. Article 28.4.1° states, "The Government shall be responsible to Dáil Éireann." Article 28.4.2° states, "The Government shall meet and act as a collective authority and shall be collectively responsible for the Departments of State administered by the members of the Government."
I assure the Deputies that I and my Department will be continuing to engage constructively and positively with the joint committee. I am also confident that the committee, like other committees, is now firmly embedded in the structures of our governmental system for the future. However, without engaging in detailed constitutional law arguments and review, I would be very concerned about attempting to place a Minister and his or her Department under a supervisory power statutorily conferred on a body other than Dáil Éireann.
No one who saw the constructive way in which I listened to the debate on this Bill in Seanad Éireann, when I brought forward amendments to address many of the points raised, could doubt that I have anything but the greatest of respect and regard for the House. To involve either House of the Oireachtas directly in Executive decision-making in the form of particular administrative decisions under the Act, as opposed to the review of secondary legislation in the form of ministerial regulations or bylaws, seems to me at the very least to run counter to the principle of the separation of powers - legislative, executive and judicial - so central to the structure of our democratic state and so clearly and comprehensively provided for under our Constitution.
I believe the proposed involvement of the joint committee in the administration of the enacted Bill in the form of particular administrative decisions, as opposed to the review of secondary legislation, would, in practical terms, be unnecessary and unworkable.
I have already ensured that decisions with the potential to be of particular significance under the enacted Bill, such as the removal of special protection from a monument, will require consultation with the Heritage Council. The Minister of the day will also have to consult with the National Museum of Ireland before issuing any licences. It is quite clear that substantial provision has already been incorporated into the Bill to ensure that there is independent review and advice in relation to its implementation. With the greatest respect to the joint committee, which I acknowledge is composed of dedicated Members of the Oireachtas, I find it hard to see how any committee could deal with the ongoing workload which could result from these proposals and would surely divert the joint committee from its key functions of legislative and policy review and oversight. I know this is already a very busy committee. Moreover, without in any way impugning the impartiality of the joint committee, it must be obvious that, as a politically-constituted body, it could be accused of taking a political approach to particular administrative decisions under the enacted Bill and of lacking specialist heritage expertise such as is held by, or is directly available to, the Heritage Council and the board of the National Museum of Ireland. I have no option but to oppose these amendments.
I will not labour the point but I wish to emphasise two points in relation to amendment Nos. 46 and 50. The intention of amendment No. 46 is not to be a fine statement, it is to enshrine a right-based approach in legislation. The Constitutional Convention, as it was probably called then back in 2011, deliberated to a great extent on the issue of enshrining social, economic and cultural rights in our Constitution. Those same principles apply to enshrining social, economic and, in this case, cultural rights and equal access to culture and heritage in legislation. We are lucky that we have a written Constitution but that does not preclude us from doing that. I know the Minister of State is not going to accept the amendment but I assure him that it is not simply about nice words. Once you place a right-based approach to anything in legislation, it changes people's potential access or recourse to the denial of access - in this case, to culture and heritage - if that is the outworkings of the legislation.
On a serious point, in fairness to the Minister of State, I do not doubt his sincerity about the committee because he has come to this committee far more than his line Minister. There are periods when I forget what he looks like because he is so unwilling to come before us. That is an argument we will have with him. The issue is not about the Minister of State. Sometimes I think if he had more control over some of these matters, some of these things would have better outcomes. It is about ensuring that no matter who sits in the Minister of State's chair or, more importantly, who the senior Minister is, that this committee has a role. The intention and wording of the amendment is not in any way to get involved in administrative matters. That is not our function. However, it is without a doubt important, where there is significant legislation like this, not only for our committee to play a role in scrutinising, deliberating and deciding on the legislation, but as that legislation is given effect and operates in the real world, for us to have some level of scrutiny in terms of whether the intentions of the legislation, as the Minister of State outlined, is what transpires in the real world and if not, if any of the matters those of us in this committee raised concerns about needs to be returned to. While there are many statutory organisations under the remit of this Department which make themselves more than available to our committee, it has not always been that way. It might not always be that way and therefore I urge the Minister of State, not to reconsider his position on the amendment, but, given the importance of this legislation and the work he and his officials have put into it, to think hard about what positive role an Oireachtas committee can play in ensuring the legislation, as passed, is actually what transpires in the real world. It is about the scrutiny element. Separate to our legislative agenda, we organise many important sessions, often in a very cross-party and collegiate manner. Some of that should be formalised. I urge the Minister of State to consider that as a general point. I doubt it will go anywhere irrespective of whether the Minister of State agrees with me or not, but I wanted to make the point nonetheless.
I wish to respond to Deputy Ó Broin's important points. Regarding the aspirations set out by Deputy Ó Snodaigh in amendment No. 46, Heritage Ireland gives effect to the shared value of our intangible, built, archaeological and cultural heritage. It was a policy document drafted through widespread public engagement and support from across the country. It gives effect to perhaps what Deputy Ó Snodaigh was trying to achieve. We do not see it as needed in the legislation. Heritage Ireland is the overarching document that gives effect to the value of our shared heritage and how we are, collectively, custodians of it.
Deputy Ó Broin made valid points about the joint committee. I mean it - we deeply appreciate that it is an incredibly busy committee and it has given significant time to the heritage part of the portfolio as well, which has not always been the case. It is very much appreciated from our side, be it national parks, national monuments or the other elements of my portfolio. I wish to give assurance around the oversight role of the Heritage Council and the National Museum of Ireland - in terms of this legislation, it is critically important. It is also important that the joint committee has the opportunity to continue, through reports and appearances before the committee, to hold us to account and ensure we are enacting the Bill and ensuring that the Bill is given meaning and effect. I give the Deputy assurance in that regard.
Amendment put and declared lost.
I move amendment No. 47:
In page 29, between lines 18 and 19, to insert the following:
“(a) that the people have a right to appreciate, view and learn from their heritage, that existing rights of way to access, appreciate or view heritage should be vindicated and that, where possible, rights of way should be established in the case of monuments where they have not yet been established, with a view to further advancing the right of the people to access their heritage;”.
Amendment put and declared lost.
I move amendment No. 48:
In page 29, between lines 26 and 27, to insert the following:
“(d) that (in particular, as regards the general function referred to in section 168) the Valletta Convention should be adhered to as well as any other international treaty, to which the State is a party, the provisions which are aimed at promoting or securing the protection of the archaeological, architectural or other historic heritage;”.
Amendment agreed to.
Amendment No. 49 is in the name of Deputy Bacik, who is not here to move it. I propose, however, to take the amendments grouped with it, namely, amendments Nos. 192, 213 and 214. They are related and may be discussed together. Amendment No. 192 is in the name of Deputy Cian O'Callaghan, as are amendments Nos. 213 and 214.
In amendment No. 192, I am seeking to delete wording on page 90 of the Bill, in section 72(1)(c). It would be useful to hear from the Minister of State what the rationale is for this wording and why he feels it is necessary to have this in the Bill. I am concerned that this wording could tie the hands of a local authority. I do not see why we necessarily want to specify that local authorities should not be able to promote public access to a monument, especially key monuments of significance, except under the conditions laid out in terms of the consent of the owner. An owner may not object to promotion of public access to the monument, but may not necessarily want to give full written consent either. While they may not have an objection to it, it means a local authority cannot do this.
For example, it means that if a local authority were to produce a map, even perhaps a map online showing where key archaeological and historic sites in the local authority area are, including key monuments of significance, that local authority could not do this without the express consent of the owner. What is the rationale for that?
Related to that and to the other amendments in this grouping is that I think many people are surprised when they find out that the term "national monument" refers only to monuments that are in public ownership. There are key, highly significant archaeological monuments that are not in public ownership and that are not national monuments. It does not mean that they are not as significant as national monuments in public ownership. This wording specifically includes key and significant monuments that could be of the same standing as a national monument. I am somewhat at a loss as to why we would want to tie the hands of local authorities on this.
Amendment No. 213 relates to easements on monuments. This wording would mean that the Minister, the commissioners or a local authority could, as appropriate, enforce an easement when it relates to access to a registered monument. That relates to the point that access should not be confined solely to national monuments. There can be very significant monuments that are not national monuments. I will give an example of that, and I use this just as an example. It is an example from my constituency but it is as relevant to other highly significant monuments around the country. In my constituency, in my local community, is Aideen's Grave. It is a megalithic tomb on the grounds of Howth Castle. There has been considerable anxiety in the local community since a local guided walking tour company was told that it can no longer bring people to visit Aideen's Grave. People have been visiting Aideen's Grave for generations. This happened when the new owners of Howth Castle wrote to the walking tour company and told it that its licence would not be renewed after a change of policy on access to the estate, including for those who offer walking and cycling tours. It is not clear what that change of policy is. There is no clarity or transparency on it and there is absolutely no obligation on the new owners to publish their policy on this. It is important to clarify that the public still have access to Aideen's Grave, as does another walking tour company. Nonetheless there is considerable concern about public access in the local community and that the access may be eroded or withdrawn over time. When I raised this in the Dáil with the Tánaiste, he agreed that the public should be able to have access to monuments of particular significance like Aideen's Grave, as long as there are proper measures in place. It is my strong view that we should not be in a situation where access to monuments of this significance could be changed without notice or consultation by private companies and the public could have access withdrawn at any moment. Yet that is the very situation we are in.
My amendment No. 214 is related to that, in that it seeks to give the Minister an explicit role, where he or she sees fit, to ask a local authority to initiate the process of establishing a public right of way to a monument he or she thinks is significant. Local authorities have power to initiate the process around public rights of way currently; however, they do not use it. I think there is a variety of reasons for that. One is that local authorities have a lot of things on their plate and a lot of responsibilities, not least in the housing crisis, with every other function they have. Trying to initiate public rights of way is probably down their list of things they want to take on. This amendment would give the Minister the power to ask a local authority to consider initiating this. While there is nothing to prohibit the Minister from doing that at the moment, I think having a statutory power whereby explicitly that could be done means that in the case of a significant monument - it may not be a national monument - it would give the Minister the ability to do that. I think that would be used sparingly but could be very helpful, including to local authorities and local authority members where they have an interest in pursuing this. Where communities and local authority members want to do this, if they were able to get the Minister on board with them, it would create a bit of momentum on it.
The three amendments are therefore related, though they are three separate things. I would like to hear from the Minister of State on the wording I am seeking to delete in my first amendment in this grouping. What is the rationale for that wording? Why is it needed, and could it not tie the hands of local authorities in ways that are just not helpful?
Again, with regret, I oppose amendment No. 192. It exists to ensure that owners who are successors in title to those who agreed deeds of guardianship under the National Monuments Act 1930 cannot argue that their existing rights under such deeds have been unilaterally rescinded by the State.
I will point out that it would be possible for the Minister of the day to revoke an existing deed of guardianship and proceed to make a guardianship order under the enacted Bill, following consultation with the owner. On foot of that, restrictions on access might be addressed, and I refer the Deputy to section 72(2) in that regard.
I emphasise, however, that in any system the reasonable concerns of private owners would need to be given consideration, and it must be emphasised here that guardianship does not bring a monument into public ownership.
Again, I must oppose this amendment.
I cannot accept amendment No. 213, as it inappropriately extends the scope of the provision well beyond what is intended, as set out in section 89(1). The provision as it stands is intended to provide clear legal support to the Minister and local authorities in cases where they are the owners or guardians of registered monuments, that is, where those monuments are national monuments in the sense used in the Bill, and the Minister or a local authority, as the case may be, seeks to enforce, on behalf of the public, rights of access to monuments which, by their very definition, are in public ownership or management. The proposed amendment would, if accepted, embroil the relevant State authorities in enforcing access to privately owned monuments which are not in public management. The problems arising from that would include that the State authorities would be responsible for having allowed the public access to such a monument without having any powers to ensure that the monument was in a reasonably safe state. It would also potentially embroil the authorities in question in disputes between third parties as to whether such easements in fact existed. While I understand the spirit in which the proposal is made, I must oppose this amendment. As I said, there might be health and safety and other issues on sites that are in private ownership.
As regards amendment No. 214, provisions already exist in the Planning and Development Acts in relation to the creation of public rights of way over privately owned land, either by agreement or compulsorily. If it is okay, we might give this further consideration for Report Stage, if it is of any use.
I thank the Minister of State for his response.
As regards amendment No. 192, I do not see why this wording is needed. Does this wording mean that if a local authority produces a map and shows the monument on it, it could fall foul of this part of the Bill? Showing where a significant monument is could be deemed to be promoting public access. Could the local authority run foul of this part of the Bill? I do not see why the wording is necessary in that sense.
As regards amendment No. 213, my wording here is not that the Minister, the commissioners or a local authority "shall" enforce; it is "may" enforce. It gives them the ability to do so. It states "as appropriate", so that would give them leeway. If there is a health and safety issue, if the monument poses a danger to public safety, clearly it would not be appropriate in those circumstances for a local authority to enforce something like this. It has leeway the way I have written that amendment. It is "may", not "shall" enforce. It gives the local authority the ability to do this if it wants. It is not an onerous obligation. It does not mean that it would apply to all monuments but it means that the local authority would have the ability. I think I have made the point well that there are some very significant monuments that are not national monuments.
Perhaps they should be national monuments. Maybe there should be a category for significant monuments that are not in public ownership but have a status the same as all the other monuments. This might be a debate for another day. Why would we not want to have the ability to have access to these?
I appreciate the Minister of State's comment on amendment No. 214 that he may come back to this matter on Report Stage, and, if so, I will not be pressing it. I certainly reserve the right to put something back in on this for Report Stage. I appreciate he is going to look at this proposal, but what are the chances he will have something in this regard on Report Stage? That is my question. Otherwise, I will want to press this current amendment.
Regarding proposed amendment No. 192, the State cannot override the rights of a private owner. This is quite clear. I accept the valid points the Deputy made, but regarding promoting access to a monument, if it is in private ownership that is not something the State can override, as I said.
Regarding amendment No. 213, I accept that the Deputy has used the word "may" as opposed to "shall" to offer flexibility, but we are still of the view that this could embroil the authorities in issues around disputes between third parties, such as easements, etc. It does extend the scope of the provision in respect of what we intend to do in the Bill. I just cannot, therefore, accept this amendment.
Turning to amendment No. 214, we will certainly try to come back with something by way of a response in this regard on Report Stage.
I accept the bona fides of this as a serious commitment, so I will not be pressing amendment No. 214.
I thank the Deputy.
I reserve the right to resubmit on Report Stage.
I have made a note of that for when we get to the amendment. I call Deputy Ó Broin, who also wishes to comment.
On amendment No. 192, the State not only can override the rights of private property interests but does it all the time. The Constitution makes explicit provision for it on the grounds of natural justice and the common good. We also have a whole raft of legislation which, in very specific circumstances and for very appropriate reasons, ensures the State can intervene and significantly restrict, regulate or require private property owners to act in ways that are in the national interest, for the common good and according to the principles of natural justice. It is just not the case, therefore, that the State cannot do this, as was said. If the State does not want to do this, that is fine. I think this would be a much more upfront argument to make. We in the Opposition and the Government regularly pass legislation that significantly restricts or places significant obligations on private property owners and private landowners, etc. It is not the case that this cannot be done, but that the choice has been made not to do it in this legislation.
Yes. On amendment No. 192, it would be possible to have a significant monument which is in private ownership at the side of a public road. This legislation states that unless the owner of that monument, because it is in private ownership, gives explicit permission it would simply not be legal for a local authority or Minister to promote public access to it. This would be the case even though the access to it could be on public land in full public ownership. Once the monument is on land in private ownership, it would, therefore, if this legislation goes ahead, be illegal for the Minister or local authority to promote such a monument. I refer to putting it on a map for visitors and pointing out the way to get to it. Clearly, of course, the monument may be a closed structure, which it may not be possible to get into, as it is on private land and all the rest, but this approach seems to be an extraordinary tying of the hands in this regard. I do not see why it is necessary and I do not see what the benefit of it is. I do not see why there would be a desire to have a blanket ban on promoting public access to significant monuments, as this legislation now provides for. Going back to the previous discussions, it could be difficult to locate the owner. This is one of the reasons we could not provide for notification earlier. If it is difficult to locate the owner, therefore, how will it be possible to get the written permission? I do not see why this is necessary and I do not think that the case for this being necessary is being made sufficiently.
I call Deputy Ó Broin, and then I will allow the Minister of State to respond.
I ask the Minister of State to go back and reconsider this aspect. I will give a concrete example. I live in the centre of Clondalkin village. We have an eighth-century round tower almost directly opposite the house I live in. I am blessed to have such a beautiful monument in front of the house. It is owned by the OPW and that organisation also owns a small portion of the land. The remainder of the site adjoining it, however, was once privately owned. In the heyday of the Celtic tiger, the private owner of the land, in their wisdom, secured planning permission for a gastropub and residential development. One can have an opinion, or not, on that planning permission, but that is a separate matter.
One of the consequences in this case, though, would have been, in all likelihood, that the only access people would have had to this incredible archaeological heritage site would have been from the street. It is a narrow and busy road and, therefore, not the optimum situation. We are very lucky, because one of the few benefits of the Celtic tiger crash was that certain developments in the private sector that would otherwise have gone ahead did not do so. This land then became available and the State intervened to acquire it. South Dublin County Council then led a wonderful heritage project that now has a fantastic cultural history museum of Clondalkin. There is an incredible public garden filled with a variety of native and non-native species of plants and flowers related to the history and culture of this area. Everybody, including local residents and tourists, etc., now has access to the site to enjoy not only the garden but also this important part of our architectural heritage.
This would have been impossible if the owner of that site had not gone bust. Deputy Cian O'Callaghan's amendment speaks to an additional method of intervention in these real-life cases to ensure adequate public access to something as important as this would be viable. I know the Minister of State is not going to support the amendment, but I think the advice he has been given is not as nuanced as it should be. There might be value in re-examining this for the reasons Deputy Cian O'Callaghan outlined and in the context of the concrete example I have given. What a shame it would have been if not only the good people of Clondalkin but also the significant number of tourists we have coming into the constituency would not have had access to this site if things had transpired differently. I am just asking the Minister of State to consider this point.
We could certainly look into this. Those are very valid points. This provision does not relate to monuments generally but just to those where the owner agreed to a deed of guardianship. The State cannot break that binding agreement with the owner. The deed, however, can be replaced under a section 72 process. We can certainly, then, consider this proposal. I again note that we are only probably talking about a few hundred out of 180,000 monuments. It is not a huge number, but I take on board the aspect of the ability to access them.
The other issue, if such sites are in private ownership, is that the state of care could be questionable as well in respect of safety. I refer to the perspective where there is an obligation on the State to look after monuments in State care in respect of accessibility, interpretation and the safety of those monuments themselves. This may not always be the case in private sites. This is certainly, however, something to which we can give some further consideration.
As I said earlier, amendment No. 49 falls because there is no one present to move it.
Amendment No. 49 not moved.
I move amendment No. 50:
In page 29, between lines 34 and 35, to insert the following:
“(3) The Minister, the Commissioners, the Board, the Council and each local authority, as relevant, shall be answerable for the performance of their functions under this Act to the Joint Oireachtas Committee with responsibility for heritage.”.
Amendment put and declared lost.
Section 3, as amended, agreed to.
SECTION 4
I move amendment No. 51:
In page 30, between lines 9 and 10, to insert the following:
“(5) (a) In the case of historic, archaeological and cultural heritage produced in or which originated in Ireland, but which is beyond the territorial extent set out in subsection (1) as a result of theft, plunder, deception, colonial practices, other unethical methods or where there is doubt surrounding the provenance of heritage understood to be of Irish origin, the Minister shall actively endeavour to secure the repatriation of such heritage to the island of Ireland, including through the petitioning of states and institutions in current possession of the heritage.
(b) The Minister, and any relevant public bodies in the possession of relevant heritage and in receipt of State funds, shall cooperate with requests for the repatriation of heritage produced in or originating in other states which have come to be within the territorial extent set out in subsection (1) as a result of theft, plunder, deception, colonial practices, other unethical methods or where there is doubt surrounding the provenance of heritage understood to be of foreign origin, in any instance where such repatriation is sought by a state of origin in accordance with this subsection, unless such a state fails to agree to cooperate with efforts by the Minister under paragraph (a) on the basis of reciprocity.”.
This amendment, which has been drafted by my colleague Deputy Ó Snodaigh, seeks to insert the following into section 4 of the Bill:
In the case of historic, archaeological, and cultural heritage produced in or which originated in Ireland but which is beyond the territorial extent set out in subsection (1) as a result of theft, plunder, deception, colonial practices, other unethical methods or where there is doubt surrounding the provenance of heritage understood to be of Irish origin, the Minister shall actively endeavour to secure the repatriation of such heritage to the island of Ireland, including through the petitioning of states and institutions in current possession of the heritage.
The amendment goes on to specify in more detail the examples by which that can be done. Obviously when these issues come up on the television it is more about the Elgin Marbles and other very significant pieces of heritage that have found themselves adorning the museums of former colonial empires through colonisation or conquest, much to the discomfort of the host nations. We have some of those. They might not get the same prominence or have the same levels of international recognition but they are still here. I am sure they will have been mentioned during the Seanad debate and will have been listed by Deputy Ó Snodaigh on Second Stage in the Dáil. While the wording of this amendment might not be as technically proficient as it would have been if it had been drafted by the eminent gentlemen on both sides of the Minister of State, the principle is really important. If there is stuff in other countries that should not be there, having been taken from Ireland through inappropriate means or what the Government of the day believes were inappropriate means, the Government and the Minister should have an obligation set out in legislation to endeavour to recover it by whatever means are legally available. Ultimately, this comes down to the decision of the State or the institution in the State that holds such important pieces of our cultural heritage. I think it is an important principle. Regardless of whether the Minister of State can support this amendment, I would have thought that he would be open to exploring this principle and finding a way of inserting it into the legislation.
There is a hugely important issue in this amendment. Provision has already been made in the Bill to enable the ratification of the UNESCO 1970 convention on the means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural property, and the 1995 UNIDROIT convention on stolen or illegally exported cultural objects. These conventions jointly provide the basis for a range of preventative measures with restitution provisions, and for international co-operation. Importantly, the restitution provisions provide that states must assist one another in the recuperation of stolen cultural property and that parties may seek the recovery and assistance of other states in the recovery of stolen or illegally exported cultural property. I appreciate the proposals put forward here. I cannot accept this amendment as it is already provided for elsewhere in the Bill. I feel it is best to rely upon the global framework that has been introduced to deal with such matters.
They are not the same thing, with the greatest of respect. The provisions the Minister of State mentioned create an international legal framework whereby a government may do that if it considers it appropriate. What this amendment would do, in providing that "the Minister shall actively endeavour to secure repatriation of such heritage", is place an obligation. I am open to a suggested better wording for this but there is a big difference between governments having signed up to international agreements and conventions that allow them to do something, and domestic legislation that places an obligation on the Minister in question to actively pursue something. I suspect that even the Minister of State accepts there is a very significant difference between the two. If it is not something the Minister of State can consider, I would prefer him to tell me he cannot consider it and we will press the amendment. Is there any set of circumstances where the Minister of State thinks there could be such an explicit provision, placing an obligation on the Minister to actively pursue such repatriation, in this Bill? I refer to a provision above and beyond what is permitted by the two international instruments he mentioned.
The conventions the Irish State is party to provide the mechanism by which the Minister, the State and the government of the day can work through international co-operation with other states on the prevention of illicit import and export and the transfer and ownership of cultural property. There are good, overarching international agreements in place that support this. We have given effect to them in the legislation. That should offer what the Deputy is seeking. I know what he is saying in terms of "the Minister shall actively endeavour", but that is what is in the Bill, in effect, in the context of these two conventions in particular.
When was the last time a Minister utilised those international instruments to try to secure the repatriation of Irish cultural heritage?
I cannot give a specific response to that but this legislation-----
Has it ever happened?
-----is bringing about the ratification-----
I am sure the Minister of State's officials know.
-----of these two important treaties.
When did we sign up to and ratify these two treaties?
We have not ratified them. We need the legislation specifically to do that.
Okay, so it has not happened to date.
Has there ever been an attempt by the Minister of State or his predecessors to actively seek the repatriation of some of the cultural artifacts in question?
I know the Minister, Deputy Catherine Martin, is already working on that. It would be the Minister with responsibility for culture who would lead on that, not our Department.
Okay, but the Minister of State is not aware of whether anything has happened on that front yet, other than the legal process in front of us here-----
Exactly.
-----to ratify those two instruments. Okay.
Amendment put:
The Committee divided: Tá, 2; Níl, 6.
Tá
- O'Callaghan, Cian.
- Ó Broin, Eoin.
Níl
- Duffy, Francis Noel.
- Durkan, Bernard J.
- Flaherty, Joe.
- Matthews, Steven.
- McAuliffe, Paul.
- Noonan, Malcolm.
Amendment declared lost.
Section 4 agreed to.
Section 5 agreed to.
Amendment No. 52 has been ruled out of order.
Amendment No. 52 not moved.
The next amendment is amendment No. 53, which is followed by many amendments, all of which are in the name of the Minister of State. I propose therefore to adjourn and reconvene on Tuesday, 4 July 2023 on amendment No. 53. I thank the Minister of State and his officials.
Progress reported; Committee to sit again.
The select committee adjourned at 6.26 p.m. until 3 p.m. on Tuesday, 4 July 2023.