I welcome the Minister of State, Deputy Noonan, and his officials back to the committee. We are going to commence where we finished last week on amendment No. 53. Amendments Nos. 53 to 55, inclusive, 202 to 206, inclusive, 230, 240, 241, 263, 285 and 324 to 330, inclusive, are related and may be discussed together by agreement.
Historic and Archaeological Heritage Bill 2023: Committee Stage (Resumed)
SECTION 6
I move amendment No. 53:
In page 30, line 24, after “Expenditure” to insert “, National Development Plan Delivery”.
These are technical amendments to update the name of the Department of Public Expenditure, National Development Plan Delivery and Reform from the Department of Public Expenditure and Reform.
Amendment agreed to.
I move amendment No. 54:
In page 30, line 27, after “Expenditure” to insert “, National Development Plan Delivery”.
Amendment agreed to.
I move amendment No. 55:
In page 30, line 33, after “Expenditure” to insert “, National Development Plan Delivery”.
Amendment agreed to.
Section 6, as amended, agreed to.
Section 7 agreed to.
SECTION 8
Amendment Nos. 56, 87, 145, 178, 185, 232, 244, 246, 255, 256, 272 to 275, inclusive, 286 and 287 are related and may be discussed together, by agreement.
I move amendment No. 56:
In page 31, line 17, to delete “or 87(2)” and substitute “or (3)”.
This straightforward amendment to the definition of "authorised officer" seeks to remedy a drafting error. Section 87(2) is incorrectly referenced and should be replaced with section 87(3).
Amendment No. 87 is a consequential amendment that relates to amendment No. 70 and the switching of the order of section 14(3)(a) and section 14(3)(b), as already discussed. These paragraphs are being swapped so as to aid in the comprehensibility of the scope of relevant things eligible to be entered in the register of monuments.
Following discussion in the Seanad on this matter, I am proposing amendment No. 145 to make it clear that screening determinations for environmental impact assessments, EIAs, will be published on the Department’s website and such other forms as considered appropriate.
On amendment No. 178, section 46 provides that particulars entered in the register of monuments shall be registerable as a burden affecting land that is registered land within the meaning of the Registration of Title Act 1964. As currently drafted, the Property Registration Authority shall comply with an application to register a given monument as a burden affecting registered land. Amendment No. 178 replaces the Property Registration Authority with the recently established Tailte Éireann.
Amendment No. 185 is a technical amendment to provide that where the Minister or local authority has acquired or is proposing to acquire a registered monument, the Minister or local authority, as the case may be, may also acquire such area surrounding the monument necessary to perform the functions under Chapter 6, such as maintaining and presenting the monument. By removing the words "under this section", this provision will apply to monuments acquired under legislation such as the National Monuments Acts.
Amendment No. 232 provides for the insertion of a new subsection 99(7). This is a matter relating to consultation by the board of the National Museum of Ireland where it is intended to dispose of an archaeological object. I will discuss this matter in more detail when we come to amendment No. 233.
Similarly, amendment No. 244 is a technical amendment providing for amendment No. 245 that we are due to discuss in detail later.
Moving to amendment No. 246, section 148 lists activities not already provided for under the Bill that can only be carried out under and in accordance with a licence, such as archaeological excavation and archaeological monitoring. Amendment No. 246 inserts "immediate surroundings" into section 148(1)(e) so unauthorised possession of a detection device in, at, on, over, above, or within the immediate surroundings of a registered monument or a wreck 100 or more years old, will be an offence. This intends to benefit enforcement and strengthen the application of section 148(1)(e).
Amendments Nos. 255 and 256 are technical amendments to provide for subsequent amendments to section 152. Section 152 is another major addition to the legal mechanisms for ensuring works and activities regulated under the Bill are carried out to the appropriate standard. As currently drafted, this section enables the licensing authority to require an applicant for a licensable activity, or a person who will be acting on behalf of the applicant, to have her or his competence assessed through procedures set out in regulations. This is especially relevant to ensuring specialist activities such as archaeological excavation are only carried out by properly skilled practitioners.
This measure is to be strengthened so as to be applicable to persons who will be undertaking, for example, professional supervision of licensed works to a monument, even where such supervision is not, of itself, a licensable activity under the Bill. Clarity is also provided that the Minister, when setting out in regulations who will carry out the assessments of competence, can do so by reference to categories of persons who may carry out such assessments.
The purpose of amendment No. 272 is to make clear that any breach of a licensing requirement introduced by way of bye-laws made under the enacted Bill will be an offence. It is important to have this clarity so as to ensure that national monuments, being registered monuments owned by or in guardianship of the Minister or a local authority, can be effectively managed and the amenity they provide protected from forms of anti-social behaviour.
Under amendments Nos. 273 and 274, provision is also made to strengthen the scope for drawing inferences in prosecutions that a person knew or suspected that a monument was a relevant thing of relevant interest, or that a person knew or suspected that a historic wreck or underwater archaeological object was such a wreck.
Amendment No. 275 relates to section 175(18), and clarifies that the provisions of that subsection apply to prosecutions of alleged offences contrary to sections 27(1) and 30. These are the provisions relating to proposed works at monuments to which general and special protection applies. Section 175(18) is an important provision, which makes clear that it is not necessary to prove knowledge on the part of the accused that a relevant thing of relevant interest was a prescribed or registered monument at the time of the alleged offence and similarly in relation to whether the person alleged to have carried out works contrary to section 27(1) was also the person who proposed the works.
Section 215 permits the sharing of information between specified bodies for the protection and proper management of historic heritage. Amendment No. 286 is a technical amendment to provide for data sharing with Tailte Éireann. Finally, section 218 lists the ways in which a notice may be given to a person, such as delivering it in person or by registered post. Amendment No. 287 is a technical amendment providing that more than one way of notice can be given.
Amendment agreed to.
I move amendment No. 57:
In page 32, to delete lines 1 to 5 and substitute the following:
“(a) in relation to a relevant thing of a relevant interest, means the entry of particulars of the thing in the Register pursuant to section 14(3)(a),
(b) in relation to a prescribed monument (not being a registered monument), means the entry of particulars of the monument in the Register pursuant to section 14(3)(b), and”.
Amendment agreed to.
I move amendment No. 58:
In page 32, line 11, after “(b))” to insert “and the entry in the Register of a statement referred to in section 15(2)”.
Amendment agreed to.
Section 8, as amended, agreed to.
NEW SECTION
I move amendment No. 59:
In page 33, between lines 26 and 27, to insert the following:
“Circumstances in which owner of land is given notice
9. (1) All landowners with a recognised Registered Monument on their lands shall be personally notified of its presence, type, significance, and attendant legal protection.
(2) All relevant landowners would be legally obliged to notify and inform any future owners of said property of the presence and legal status of the Registered Monument.
(3) In the event of a Registered Monument being damaged or destroyed, an enforcement order shall be placed on its footprint guaranteeing the protection of the surviving subsurface elements of the monument, and the legally protected associated artefacts.”
Amendment put and declared lost.
Sections 9 to 11, inclusive, agreed to.
SECTION 12
Amendments Nos. 60, 62, 63, 66 and 67 are related and may be discussed together.
I move amendment No. 60:
In page 34, line 18, to delete “may” and substitute “shall”.
This is quite a simple amendment, which tries to ensure the Minister of the day shall not simply look at something, but will act. At the moment, the section states "may." This amendment will change that to "shall", which is more positive and actionable. A potential Minister may not prescribe certain things.
There was a discussion on this in the Seanad because an amendment had been tabled by Senators Higgins, Boyhan, and Ruane. I know the drafters of legislation do not like putting the duty on a Minister to act on all occasions. However, given our history and heritage, there is a need in these cases for this to be a more positive action. That is why we propose the insertion of "shall."
On amendment No. 60, the concept of prescribed monuments is a fundamental element of the Bill, and provides a major strengthening of the legal protection to archaeological sites, whereby such sites are protected without the need for formal designation or registration.
The use of the word “may” is intentional and is considered necessary from a drafting point of view. The use of the word “shall” could jeopardise the proposed system of prescribed monuments by way of an interpretation that every possible class of relevant thing must be prescribed. This could in turn lead to legal challenges, made on the basis that the Minister had not gone far enough in terms of the classes prescribed. It would not be possible to commence Part 2 of the Bill without introducing regulations for prescribed monuments and I assure the Deputies that work is already under way in that regard.
I also ask the Deputies to note the intention to publish draft prescribed monuments regulations for consideration by stakeholders and members of the public. For these reasons, the proposed amendment is not considered appropriate or necessary and, unfortunately, I am not in a position to accept it.
On amendment No. 62, under section 12, prescribed monuments will be a class of monument set out in regulations, to which general protection will immediately apply. Following discussions in the Seanad, I made a commitment to broaden the scope of what might be eligible to be considered for the purposes of prescribed monument regulations and that classes of prescribed monuments were not limited to archaeological interest only. Amendment No. 62 will achieve that aim by stating that prescribed monuments may be of archaeological interest or any other relevant interest, thus bringing architectural, cultural, and historical interest into scope.
Amendment No. 63 is a technical amendment to ensure that ordnance maps and other appropriate maps can be used for the purposes of listed criteria used to classify relevant things in the prescribed monument regulations.
I will speak to amendments Nos. 66 and 67. Section 13 of the Bill provides for the procedures that must be followed when the discovery of a prescribed monument is reported. Under section 13(6), an inspection of the site where the discovery is reported may need to take place. Following discussions with the Archaeological Survey of Ireland, amendment No. 66 intends to remove a site inspection requirement where a prescribed monument may have been discovered if there is a risk to the health or safety of a person responsible for carrying out such inspection.
Amendment No. 67 is introduced to make it explicitly clear that the general powers provided under section 188 to carry out inspections are also applicable in situations relating to reports of discoveries of monuments.
I thank the Minister of State. Obviously, the intention would never be to have a situation that would undermine the prescription of relevant things. I hope most, if not all, Deputies would back that. The intention is to try to ensure the exact opposite of that. The wording may be clumsy, but the idea is to ensure that where a Minister or a Department is slow to act, or show a lack of interest, some relevant thing is not left without protections and, therefore, falls foul of this because the word "may" is optional. I take the Minister of State's word that was not the intention, and that by leaving it as "may," the protections will be given and the regulations will ensure that.
I will, therefore, withdraw the amendment No. 60.
Amendment, by leave, withdrawn.
Amendment No. 61 not moved.
I move amendment No. 62:
In page 34, lines 24 and 25, to delete “(and whether or not they are also of other interest)” and substitute “or of other relevant interest”.
Amendment agreed to.
I move amendment No. 63:
In page 35, to delete lines 12 and 13 and substitute the following:
“(g) whether the relevant thing is or is not marked or shown on any—
(i) edition of any ordnance map, or
(ii) map prescribed for the purposes of this paragraph.”.
Amendment agreed to.
I move amendment No. 64:
In page 35, between lines 13 and 14, to insert the following:
“(h) The environment in which the relevant monument or monuments, or relevant thing or things is/are situated shall be recognised as an Archaeological Reserve as identified and defined in Articles (2)(i) and (ii), and Article 4(i) of the Valletta Convention 1992.”.
Amendment put and declared lost.
Section 12, as amended, agreed to.
SECTION 13
I move amendment No. 65:
In page 36, line 23, to delete “situated.” and substitute the following:
“situated;
(g) an account of the find’s discovery, and of any interference, disturbance or damage that may have affected the find in the process of its discovery or thereafter, or before its value as a monument was understood.”.
The amendment basically proposes that somebody must report it to An Garda Síochána when he or she makes a find of a prescribed monument. At the moment, they have to include an account of the discovery and any interference or damage. The amendment seeks to ensure that a full account is given and inserts additional criteria so that there is an account of the find's discovery, whether the person interfered with it and whether there was any interference he or she was aware of and the disturbance and damage. It seeks to ensure such an account is given and establishes whether that discovery was affected in the process. Most people would presume that is what would be given, but if somebody unwittingly disturbs something or damages a find, he or she may not be forthcoming in exactly saying what he or she did. He or she may try to apportion blame to somebody else, even though there is no blame. For example, a digger driver could be in the wrong place some time and find something. It is important for archaeologists to know exactly how much digging went on and that there no attempt to re-cover it. There is a range of information that maybe useful to archaeologists when they come across a new find. The quicker they get that information, the better. The amendment tries to ensure, when the preliminary report is being put together, that as much detail as possible is included.
Several paragraphs under section 13(5), namely paragraphs (b) to (e), require a person to specify the date, time and circumstances in which he or she has found or believes to have found a prescribed, as well as a description of the monument and the site where it is situated. The initial part of the amendment being "an account of the find's discovery" would appear to be a duplication of what is already provided for under the Bill. The second part of the amendment is not considered to be a reasonable obligation to place on members of the public, as a person, through no fault of his or her own, may not be in a position to provide the information required, such as how interference during the process of the monument's discovery may have had an effect on the monument. In any event, general powers will exist under section 187, including powers that require a person to provide any information about a monument as may be reasonably sought. For these reasons, I ask the Deputy to withdraw this amendment, as it is provided for elsewhere in the Bill.
I will withdraw the amendment in light of what the Minister of State said and but I may reintroduce it on Report Stage in a different format if I still feel there is a gap in understanding. The key is to ensure that monuments are protected and that at least the circumstances of discovery and so on are as protected as well, to aid archaeologists so that it is not a burden on somebody to explain as quickly as possible what occurred, as much as they know. The intention is not for it to be a huge crime statement; it is just an explanation of how the person found it, etc. In some cases, a prescribed monument may need to be protected in a certain way but if the site has been excavated by a digger without knowing a monument was there, it might be exposed and needs to be protected quickly and re-covered until the proper care of archaeologists can be given.
I appreciate the intention behind the amendment. As I said, it is well provided for in the Bill. If the Deputy wants to bring something back in on Report Stage, we would welcome that.
Amendment, by leave, withdrawn.
I move amendment No. 66:
In page 37, to delete lines 12 and 13 and substitute the following:
"(c) the inspection would pose a risk to the health or safety of the person who would otherwise carry out the inspection on behalf of the Minister,
(d) the inspection is not merited or is otherwise unnecessary, or
(e) the return is trivial or vexatious.”.
Amendment agreed to.
I move amendment No. 67:
In page 37, between lines 13 and 14, to insert the following:
“(11) Nothing in this section shall be construed to prejudice the generality of section 188.”.
Amendment agreed to.
Section 13, as amended, agreed to.
NEW SECTIONS
I move amendment No. 68:
In page 37, between lines 13 and 14, to insert the following:
“An Chomhairle um Séadchomharthaí Náisiunta
14. (1) The Minister shall establish by order an advisory council to be called and known as An Chomhairle um Séadchomharthaí Náisiunta agus Seandálaíocht (in this Act referred to as the “CSN”) which shall have the following functions:
(a) giving advice and assistance to the Commissioners on any matter arising on or relating to the carrying into execution of the provisions of this Act or any other matter affecting national monuments and the protection and preservation thereof;
(b) giving assent to, or withholding assent from, any decision taken by the Minister in relation to their functions under Chapter 3 or Chapter 6 of this Act.
(2) The CSN shall consist of the Keeper of Irish Antiquities in Ard-Mhusaem na hÉireann, the Chief Executive Officer of An Chomhairle Oidhreachta, and an officer
of the Commissioners nominated for the purpose from time to time by the Minister as ex-officio members and of such number of other persons (including representatives of the following bodies, namely, the Royal Irish Academy, the Royal Society of Antiquaries of Ireland and the Royal Institute of the Architects of Ireland) as nominated members as the Minister shall nominate to be members thereof.
(3) Every nominated member of the CSN shall, unless they previously die or resign, retain their membership for three years only from the date of their nomination but shall be eligible for re-nomination.
(4) The CSN shall meet whenever summoned by the Commissioners, when requested to grant assent to the decision of the Minister, and also on such other occasions as the Council may from time to time determine.
(5) The CSN may make representations to the Commissioners with respect to any matter relating to national monuments and shall give to the Commissioners, if requested by them so to do, their advice with regard to any question relating to such monuments.
(6) No decision taken by the Minister in respect of their functions under Chapter 3 or Chapter 6 of this Act shall be considered valid until it receives the assent of the CSN.”.
This is quite a long amendment. It concerns section 13 and the insertion of a new section to set up An Chomhairle um Séadchomharthaí Náisiunta agus Seandálaíocht to reconstitute what was there in the past, namely, the National Monuments Advisory Council, which, in its day, did tremendous work. It is a pity it was excised from our memory. We propose that it be reinstated. In recommendation No. 3 of the committee's pre-legistlative scrutiny, consulting the Heritage Council alone was not deemed sufficient. It deals more with promoting an understanding of our heritage, not direct preservation. The amendment tries to get back and perhaps go beyond where the old National Monuments Advisory Council was. This body would consist of the Keeper of Irish Antiquities at the National Museum of Ireland, the CEO of the Heritage Council and a commissioner of the OPW, the Commissioners of Public Works, who are nominated by the Minister. There are other nominating persons, which would include the Royal Irish Academy, Royal Society of Antiquities of Ireland and Royal Institute of Architects of Ireland. Such a board would have the expertise required to ensure that our national monuments are continuously at the forefront. Sometimes, that can be lost. It would also ensure that any decision by the Minister under chapter 3, relating to the registration of monuments or under chapter 6, relating to works on such monuments, would also require the consent of the reconstituted advisory council, An Chomhairle um Séadchomharthaí Náisiunta agus Seandálaíocht.
Such a body would also be able to give assistance to the OPW in its work on heritage preservation. There does not seem to be any oversight of ministerial decisions on a day-to-day basis by the experts. There is obviously oversight by the Oireachtas. There is no oversight in regard to preserving our heritage day to day, so that could be a role. This is my attempt to put together such a body in the legislation. Hopefully, the Minister of State will be amenable to it.
I do not intend to extend consultation requirements beyond what has been introduced following the pre-legislative scrutiny recommendations and the additional amendments I will be moving later. Under the Heritage Act 1995, the Heritage Council is the independent statutory body established to propose policies and priorities for the protection, preservation and enhancement of monuments and archaeological objects. Section 6(2) of that Act goes as far as to state explicitly that references to the national monuments advisory council are be construed as references to the Heritage Council. That was clearly the will of the Oireachtas at the time. This should continue to be the case. Several amendments have been made to this Bill so that mandatory consultation with the Heritage Council will be required for matters of particular importance. If the Minister of the day intends to deregister a monument, he or she will first have to consult with the Heritage Council and have regard to any views of the Council in deciding whether or not to carry out that deregistration.
In regard to the removal of special protection under section 22(7), provision has already been made for mandatory consultation by the Minister with the Heritage Council. Furthermore, the amendments I will be moving will make it clear that as part of these consultations with the Heritage Council, the council will be able to consult with any public body or persons it considers appropriate. We believe this is really important. It already made a commitment that it will report on the matter of the Heritage Council consultation within at least five years of this Bill's enactment. For those reasons, I am not in a position to accept this amendment.
I thank Deputy Ó Snodaigh for bringing forward this very good amendment. The Minister of State said he will not go further than the pre-legislative scrutiny report on this. That is entirely reasonable. Recommendation 3 of the pre-legislative scrutiny report states that the National Monuments Advisory Council, as constituted in the original legislation, be re-established and that the Bill provide for an obligation to consult with the Heritage Council and the National Monuments Advisory Council where changes in the level of protection are proposed for a monument, where it is proposed to remove a monument from the register, namely, demolish it, and where works may cause damage to a monument with special protection. The recommendation aligns strongly with this amendment from Deputy Ó Snodaigh. The Minister of State said he will not go further than the recommendations contained in the pre-legislative scrutiny report. Therefore, it would follow that he will accept and support this amendment if he is happy with the recommendations in the pre-legislative scrutiny report.
Last week, I asked about the resources of the Heritage Council. The Minister of State was not able to tell me how many historians and archaeologists are employed by the Heritage Council. He has had a week to obtain these facts and statistics. He might provide the committee with that information now.
I thank the Deputy. As I mentioned, the Heritage Act 1995 explicitly states that the references to the National Monuments Advisory Council are to be construed as references to the Heritage Council. The Heritage Council takes up that role. That is exactly what the Heritage Act states.
Recommendation 3 refers to it as constituted in the original legislation. I am just saying that if the Minister of State is going to use our pre-legislative scrutiny report to justify his position, he needs to quote it accurately.
I appreciate that. I reassure Deputies that upon the enactment of this Bill, the Heritage Council will have a strong role in terms of direct consultation and its ability to consult with other public bodies and persons it considers appropriate when making recommendations. In my view, that is strong enough.
Since last week, I have not obtained any extra figures. However, I gave a commitment at that stage that we would be strengthening the resources. It is a budgetary matter of the Heritage Council to be in a position to carry out its functions in respect of its statutory role and its role in terms of consultation in the context of the Bill.
I am sorry. I will not come in again. However, I want to comment on that. It is great that the Minister of State is giving us assurances that the Heritage Council is going to get more resources. However, he is not even able to tell us what resources it has at the moment. How many historians and archaeologists are employed by the Heritage Council? That is a fair question. We are talking about the resources it needs in order to give the advice in lieu of a national monuments advisory council. That is basic information that we should have. If that is going to be expanded, great, but expanded from what base? The Minister of State should be able to tell us that and indicate how much he is going to expand it. With the best will in the world, this legislation is coming into place as the Government is coming towards the end of its term of office. What if the next Government does not honour those commitments in regard to extra staff and resources? We will be stuck with this legislation and no national monuments advisory council. I would be concerned about that.
It is a fair point. This is a matter for the Heritage Council to anticipate what it requires and to build up its resources over time. It will be appreciated that once this Bill is enacted and that role is in place for the Heritage Council, it will make its requests about what it needs in the context of additional resources through the budgetary process. Again, I do not have that to hand. To give assurances again, consistently over the past three years the Government has met the requirements of the Heritage Council in regard to the additional roles it has been given and the additional resources it is provided with, for instance, in respect of biodiversity officers and the other roles that it has to perform. The Government has met the budgetary requirements of the Heritage Council year on year since the start of its term of office. We just await the council's deliberations on its needs in the context of this particular piece of work.
Deputy Ó Snodaigh can come in on the amendment.
I know what the Minister of State said. With the best will in the world, the Heritage Council thus far has not had sufficient resources to carry out its duties. That is not the fault of the Minister of State. It is the fault of successive Governments. There are many more, and not just in terms of our built heritage. There is our environmental heritage as well. That requires a good deal more protection. That comes down to Government priorities but also some of those who presented before the committee when we were dealing with the pre-legislative scrutiny. It is in the report relating to the latter. Dr. Amy Strecker and Ms Sinéad Mercier also noted in their submission to the committee that the proposed Bill, as then drafted - and we obviously have gone well beyond that - contained a disproportionate amount of ministerial discretion. Part of the suggested safeguards was to separate some of his role and have an advisory committee made up of what is not a huge cast. It would not be major burden on the State. If the Minister of State is saying that the Heritage Council has that role, can he guarantee that it will be able to act in the manner proposed in the amendment? Will it have access to all of those with expertise, as mentioned in my amendment, on an ongoing basis? Will it have the role to ensure there is oversight of ministerial decisions? The Minister has to act on the basis of the advice given by such a body. That is key in much of this. They are the experts. We in here are elected for a period. We are presumed by the public to be experts on everything, but the real experts are often those who have the qualifications and built up the expertise over the years.
The real experts, however, are often those who have gone and got the qualifications and the expertise and built that expertise up over years. Part of the role is to ensure that the State apparatus listens to those who have the expertise and, in this case, understand how fragile our heritage and our national monuments are such that the advice given is listened to.
I agree with everything the Deputy said. We do not anticipate that the deregistration of monuments or the lowering of protections would happen very often, so I give that assurance. It may be the case that the Heritage Council is already well resourced or adequately resourced to carry out its function in this regard. As I said, however, if additional resources are required, that is a matter for the budgetary process. The Heritage Council will be aware of its responsibilities when this Bill is enacted. In that regard I cannot anticipate what will happen with a future government, but this Government has met the requirements of the Heritage Council adequately over the past three budgetary cycles.
Do you wish to press amendment No. 68, Deputy Ó Snodaigh?
I will withdraw it.
Amendment, by leave, withdrawn.
I move amendment No. 69:
In page 37, between lines 13 and 14, to insert the following:
“ An tOmbudsman Oidhreachta agus Cultúir
14. The Minister shall, no later than 6 months following the enactment of this Act, have commissioned, published, and laid before both Houses of the Oireachtas, a report on the merits of, and logistical requirements for, establishing An tOmbudsman Oidhreachta agus Cultúir as an independent office to examine complaints from members of the public who believe that public bodies are failing in their duties under this Act and other legislation to protect the shared heritage and cultural rights of the people of this island, to monitor compliance with such obligations by public bodies, and to issue recommendations for improving the protection of heritage and cultural rights.”.
Amendment put and declared lost.
SECTION 14
Amendments Nos. 70 to 74, inclusive, 76 to 86, inclusive, and 88 are related and will be discussed together. I will bring in the Minister of State on amendment No. 70 and then go to Deputy Ó Snodaigh on the amendments in his name.
I move amendment No. 70:
In page 37, to delete lines 26 to 29 and substitute the following:
“(a) such relevant things of a relevant interest known to the Minister as he or she is of the opinion are appropriate to be entered in the Register, and
(b) such prescribed monuments known to the Minister as he or she is of the opinion are appropriate to be entered in the Register.”.
The order of paragraphs (a) and (b) in section 14(3) are being swapped so as to bring further clarity as to the scope of relevant things eligible to be entered in the register of monuments. In the current draft, prescribed monuments are listed under paragraph (a), which is before "relevant things of relevant interest". This has led to a level of misinterpretation whereby it can mistakenly be assumed that a thing must first be a prescribed monument in order to be eligible for entry into the register. My hope is that by switching these paragraphs around, it will become clearer that either a relevant thing of relevant interest or a prescribed monument may be eligible for entry into the register.
Amendment No. 83 is another consequential amendment relating to the addition of "cultural interest" into the term "relevant interest". It updates the list of matters to be taken into consideration when registering monuments by the addition of "cultural interest".
Following a commitment I made during the Bill's passage through the Seanad, amendment No. 85 introduces "community value" into section 14(7). This will ensure that community value is taken into consideration when deciding on the entry of monuments into the register.
Amendment No. 88 is introduced to mirror section 8(2) but in respect of prescribed monuments instead of a relevant thing of relevant interest. It will mean that entries into the register can also include sites where the Minister reasonably believes there are or may be prescribed monuments.
Deputy Ó Snodaigh, do you wish to speak to amendments Nos. 71 to 74, inclusive, and then amendments Nos. 76 to 78, inclusive?
Yes. I think the Minister of State is trying to do exactly what I am trying to do with amendment No. 71, which is to clarify the sequence to make sure that no monument that is deemed prescribed is added to the register of monuments. Currently, it is unclear if the process requires a monument to be identified as prescribed and then redesignated as registered in order to receive the protection. While the intention might be there, this law needs to be as clear as day to ensure that all monuments get the protection that is intended.
Amendment No. 72 and, I think, amendment No. 73 relate to ensuring the protection of battlefields and the locations of battles, in this instance those from the revolutionary period of 1916 to 1923. We are just coming to the end of the decade of centenaries. In fact, I think we were due to have a committee meeting on that tomorrow but, as far as I know, it has been put off until another week. This Bill, which I hope will be enacted before the end of the year, would be a fitting end to the decade of centenaries and would look at the likes of Moore Street, in particular. I have a special interest in that, but it is not the only place. The expert advisory group, way back when the report was made in 2008, as part of a review of this legislation and other legislation, which in fact recommended this Bill, called for battlefields to be defined and protected. Is that out of sync? The amendment would have that intention and that effect, so there is an attempt on my part in amendment No. 73 to put that definition in a format. I do not know whether or not that is acceptable, but it looks at a battlefield or an area which is designated in respect of combat or related activity. I have been involved in many commemorative events with the State.
In Dublin in 1998 we had the 1798 committee marking different sites around this city. At the time Séamus Brennan was the Minister of State in charge of commemorations. There was a lot of designation and a lot of interest, and a lot of small towns around the country found again or re-engaged with their revolutionary history of that period. A lot of interest was awoken in family links. My father wrote a lot about the yeomanry and the militia, the history of different families over the years who were in militias and the families who were on different sides. Then we had the 1798 battles. People will know of Vinegar Hill, Oulart, parts of Arklow and so on. They are recognised now as battlefields but not all of them have the same protection. Part of the selling point of Ireland for people returning is often to visit these sites, whether it is the Battle of Aughrim or whatever else. It is not just to do with the more recent revolutionary period of 1916 to 1923 but goes back in history. Most of those sites have never been archaeologically looked at, and I have asked sometimes. They are not small or compact but they are areas that, I believe, have to have the protections to ensure people do not dig or search on them, whether the 1798 period or before, for pikes or the remnants of battles. That is the idea here.
Amendment No. 74 seeks the engagement of the public to ensure that the public can petition a Minister to include a relevant thing. The Minister does not have to accept it, but it is a mechanism whereby 1,000 signatures from the public would warrant a response from the Minister over a six-week period. Obviously, the Minister would in this instance have to engage with the Heritage Council, a museum or An Taisce. The amendment seeks to ensure that the public have a role, and we have seen in the commemorative period that the public have engaged fully in that role.
Amendment No. 76 is to require the inclusion of a surrounding area necessary for the protection of a monument or thing. The existing wording makes it optional to include the area necessary for protection. Again, this is about changing "may" to "shall". In this instance, the Minister of State should seriously consider it.
Amendment No. 78 is to ensure that the particulars on the register include the integrity of the monument within its surrounding context rather than just the surrounding area. There is cohesion associated with the surrounding context. It sometimes includes the social or cultural context or the social and cultural history. We all know areas around the country where the context has been interfered with. I will not rehash this point here, but the Tara-Skryne valley is one case. There were plans for a hotel at the Rock of Cashel. Moore Street is an example of where the context would be lost if a high-rise apartment block, shopping centre or other such structure were built. Some such developments have fallen by the wayside but that is not to say there will not be others. Occasionally, we see pictures of little churches abroad that are dominated by high-rise buildings on every side, meaning the context is totally lost. There are examples in this city of where the context of a church or other building is totally lost because the surrounding area has not been protected. A classic case in America is the Alamo site. Here the context has been lost. You would have to watch the famous film to see some of the context rather than just the barracks. That is not to say we have to stop progress on building, but those planning for the future should have regard to a building's surrounding area and engage with the Minister if the context must be interfered with in any shape or form.
We will discuss the amendments in order. We will hear from Deputy O'Callaghan on amendment No. 79 and then come back to Deputy Ó Snodaigh to discuss amendments Nos. 81 and 82.
Amendment No. 79 is about battlefields that have historic value in another state. If accepted, it would require the Minister in such cases, of which there is just a select number, to send a description of any proposed works and any available information on the possible effects on the environment of the battlefield to the state or jurisdiction in question. An example is the battlefield at Aughrim. The Battle of Aughrim was fought on 12 July 1691, according to the old-style calendar. Given that the Gregorian calendar was adopted in Britain and Ireland only in 1752, it is correct to use 12 July. This was one of the most international battles fought on Irish soil. The Irish Jacobites and French forces were pitched against the English, Ulster Protestants, Dutch, Danish and French Huguenot Williamites. The battle was the bloodiest fought on Irish soil. Approximately 4,000 Irishmen and Frenchmen died, whereas the Williamites lost approximately 3,000 men. The latter were buried in shallow graves and the former were buried roughly about the battlefield. Therefore, there are at least 7,000 burials at the site. The battle was known in Gaelic Ireland as "Eachdhroim an áir", or Aughrim of the slaughter. The battlefield has already been under threat. The environmental impact assessment for the M6 motorway in 2005 revealed that the roadway could cut across the northernmost wings of both the Jacobite and William outlines. The intervention of environmental groups and the expressed objection by the then Northern Ireland First Minister prompted an adjustment of the trajectory of the road. What protection does the battlefield enjoy today? What is the legislation doing in this regard? On the National Monuments Service website, one will find that, besides the ruins of a castle that featured in the battle, the only other battlefield-related feature is a trackway known as Luttrell's Pass. That is not described as an archaeological monument and, accordingly, is not featured in the revised list of monuments. How can the Minister of State justify not giving battlefields that are highly significant in our own history but also in that of other jurisdictions proper protection by defining them as archaeological landscapes of international importance and significance, as my amendment seeks to achieve? I hope the Minister will accept the amendment.
Before we move on to amendment No. 80, I ask Deputy Ó Snodaigh to consider No. 79a, which is an amendment to Deputy Cian Ó Callaghan's amendment, No. 79.
Amendment No. 79a is to delete "may" and insert "shall".
An excellent amendment.
It is a simple one to make sure action is taken. It is self-explanatory.
Amendment No. 80 makes the same argument I made in respect of amendment No. 78, which is about the surrounding context. Amendment No. 81 seeks, in page 38, line 15, to delete "may" and substitute "shall". It is to require the Minister to take into account topographical features and boundaries where it is currently only an option. If the Minister "may" take action, he or she also may not. The amendment makes sure the Minister shall do so.
Amendment No. 82 is to ensure the insertion of "cultural, including intangible culture, linguistic," after "archaeological,". This is to ensure the Minister will take into account the linguistic interest of a monument or thing when forming an opinion on inclusion on the register. This was argued by my colleague Deputy Ó Broin when discussing amendment No. 34. It is particularly important in a multilingual society and has regard to the likes of Ogham writing, an attachment to the Irish language, or Cant or other oral heritage. The Minister might say Cant is a language but this is a matter of the expression of a language in monuments. Ogham is a classic example but there are monuments with other languages. Again, this is based on an amendment proposed in the Seanad.
Amendment No. 84 is to include a distinct matter to which the Minister may have regard when forming an opinion on a monument or thing. I am referring to its value in terms of archaeology, architecture, art, history, culture, language or tradition. Currently, only the level of interest in the monument or thing may be given due regard, which might suggest interest from academic or scientific perspectives, whereas the intrinsic value of many of our monuments or things is the attachment of the community to them. Local historical interest can often constitute the value, and this results in value as a national monument.
Amendment No. 86 proposes to insert "or community" between "amenity" and "value". At present the wording references amenity value only, which ignores the value a monument may have for a community. It is similar to amendment No. 84. It is often part of a community's identity for tourism or through an association with the community's history. In the past many monuments that are now recognised as national monuments were well protected in many ways by their local communities. It is only in later years that central government or Departments have become more enlightened and have recognised their importance not only in terms of community value but also the identity of the whole island. It is important this be looked at.
With regard to amendment No. 71, section 14 provides for the establishment of the register of monuments, which will replace several designation and registration systems under the existing National Monuments Acts. The register will be an electronic database easily accessible to members of the public and, under section 14(2)(b), the register may also be in such other forms as the Minister thinks appropriate. This amendment could be detrimental to the register of monuments. There may be perfectly valid reasons a prescribed monument may not in fact be suitable for inclusion in the register, and this is why certain criteria are listed for consideration under section 14(7) that the Minister, when forming an opinion on a thing's appropriateness, must have regard to when entering particulars on the register. This amendment would remove important operational flexibility that is considered essential for the enacted Bill, as that flexibility has been introduced purposefully to help guard against unforeseen damage to the integrity of the register. For these reasons, unfortunately, I am not in a position to accept the amendment.
In relation to amendments Nos. 72, 73 and 79, I point out that the definition of "relevant thing" contained in section 2 includes "(e) any site where an historic event took place" and that section also defines "site" as including location and place. "Relevant interest" is also defined in section 2 and includes historic interest. Accordingly, I am satisfied the provisions of section 14(3)(b) are fully capable of ensuring battlefields can be included in the register of monuments, given that section 14(3) provides for the inclusion of relevant things of relevant interest in the register so long as the Minister is of the opinion they are appropriate to be so entered.
If one particular category of relevant thing of relevant interest were to be referenced specifically in section 14(3), this would beg the question why a whole range of different specific categories of relevant things of relevant interest should not be referenced. If a lengthy list were included, however, this might prove counterproductive by being interpreted as limiting the general scope of the provision.
I would also note that, as drafted, the amendment would appear to allow no discretion as to which particular battlefields or parts of battlefields would be included in the register. While we would all, of course, share the aim that the legislation should be applied appropriately to historic battlefields, practicality requires some element of discretion as to which areas are made subject to the extensive legal protection arising from becoming a registered monument, in particular having regard to the uncertainty as to where some historic battles were in fact located and the very wide extent of at least some battlefields.
While the proposed amendments may, in fairness, make some provision for cases where the location of the battlefield in question is uncertain, the location of battlefields, even those of comparatively recent date, can be the subject of significant debate, and the lack of any provision for discretion on the part of the Minister of the day would make the provision not only unworkable but likely a potential cause of controversy in terms of its implementation. The new legislation will remove the gap in the law that prevents battlefields from being monuments. The national monuments service funded a battlefields project which had a lot of detailed data on pre-1800 battlefields, as Deputy O'Callaghan mentioned. This can be drawn on for the new register. I hope this is of some assurance. I am not in a position to accept these amendments.
I do not believe amendment No. 74 is either necessary or workable. There is nothing whatsoever in the Bill to prevent anyone, whether individually or as part of a group, from making representations to the Minister asking that an entry be made in the register. Any such representation will naturally be considered and responded to. Furthermore, the Heritage Council, under the provisions of section 7 of the Heritage Act 1995, may make recommendations to the Minister on any matter relating to the council's functions and may make such recommendations public. The Minister of the day is required to respond to any such recommendation within six months. As the functions of the Heritage Council, as set out in section 6 of the Heritage Act 1995, include proposing priorities for, among other matters, the identification and protection of monuments, I am satisfied there is existing scope for the Heritage Council, acting independently and on its own initiative, to make recommendations to the Minister of the day regarding entries in the register.
I also refer to the provisions of section 23 of the Bill which, while focused as they must be on ensuring landowners are afforded fair procedures in respect of proposed decisions affecting their land, will nevertheless enable the attention of the public as a whole to be drawn to the proposed content of the register through the publication of draft general list notices. The proposed amendment contains no safeguards to ensure the petitions referred to would be based on genuine interest in heritage matters nor that any relevant specialist or expert heritage advice or input would be availed of by petitioners before lodging a petition. Accordingly, there would be a danger that petitions could be made which were of little or no merit on heritage grounds but would nonetheless involve the national monuments service of the Department, the National Museum, the Heritage Council and, indeed, An Taisce in extensive work to formally consider and respond to such petitions, thus potentially wasting valuable resources across multiple bodies.
Section 211 includes provision for the Minister of the day to issue a code of practice setting out how she or he proposes to perform a function conferred on her or him under the Bill. This could, of course, include the functions relating to the register of monuments. Before such codes are issued, there will be a requirement for appropriate consultation, and I believe this provision will provide a structured opportunity for stakeholders and the public generally to input into the setting of priorities for the inclusion of relevant things in the register, priorities which can then be implemented in an objective and impartial manner in relation to particular entries.
In summary, normal administrative practice combined with the express provisions of the Heritage Act 1995 and of the Bill as I have outlined will ensure ample opportunity for public input into the content of the register without creating the top-heavy and costly procedure proposed by the Deputies, a procedure which runs the risk of wasting valuable resources considering proposals which are not based on bona fide heritage grounds. I must therefore oppose this amendment.
On amendments Nos. 76, 77 and 78, the "surrounding area", as provided for in section 14(4)(a), is introduced to secure the protection of a monument or thing, including its amenities, or any other monument or thing in its vicinity. Most importantly, the surrounding area as entered into the register will become a part of the monument itself and subject to the same legal protections that are afforded to the monument. Amendment No. 76 is not workable, as the discretionary power to specify a surrounding area may not always be exercisable. I consider the wording used in amendment 78 "the integrity of the monument within its surrounding context" to fall within what is already provided for in the first subparagraph of section 14(4)(a), that being the protection of the monument’s amenities. I do not consider the proposed amendments workable or necessary and, as a result, I am not in a position to accept them.
As regards amendment No. 80, the purpose of section 14(5) is to set out physical features that can be used to determine the surrounding area established under section 14(4). Such physical features include natural or artificial topographical features and other forms of boundaries. The primary purpose of this is to assist landowners or other persons, for example, members of the farming community, to be able to easily identify the limits of a monument. The proposed amendment does not meet the purpose of section 14(5) and, if accepted, could work against what is trying to be achieved here, that is, the easily recognisable boundaries of a monument.
On amendments Nos. 82, 84 and 86, given there are Government amendments introducing both “cultural interest” and “community value” into the scope of the Bill, I ask the Deputies to consider withdrawing these proposed amendments. I note that the "cultural interest” and “community value” give a very broad interpretation of what the Deputies are trying to achieve here.
Did I cover amendment No. 79a?
No, the Minister of State did not do so yet. He may speak to it now.
Regarding amendment No. 79a, the inclusion of the word "shall" is not workable as the discretionary power to specify topographical features or boundaries as set out under section 14(5) may not always be exercisable as such features or boundaries may not always exist. Again, I cannot accept this amendment.
I thank the Minister of State for his response. I am not clear as to why he does not want to accept my amendment. I have put forward a very strong case as to why, in limited circumstances and in particular significant historic battlefield sites like the site of the Battle of Aughrim, this would be very good practice given it is of great historic and cultural value not just to us but to those in other jurisdictions. Why should we not put in this good practice of sharing information with another jurisdiction? If it is of particular value to them and if it is proposed to do something significant to it, is it not only right that those in other jurisdictions should be able to have a say on this?
These are international battlefield sites which are highly sensitive in terms of different histories and different traditions. As a country, we have come a long way in respecting the different traditions we have on this island. It makes eminent sense to have something like this. It is not an onerous suggestion. I ask the Minister of State to tell me why he thinks it would be a bad idea, particularly given the experience in 2005 where this was not done and required an intervention from the First Minister. Why would we not seek to do this in future? Why does the Minister of State believe this is not good practice or a good suggestion?
I understand somewhat where the Minister of State is coming from. Most businesses and Departments will always wish to have an element of discretion. Some of those elements of discretion have led to the destruction of some national monuments in this State over the years where Ministers did not have the same interests as the Minister of State, Deputy Noonan, has. We only need to look at the civic buildings in this city to see where our national monuments legislation in the past has taken us and failed to protect sites which would have been regarded as invaluable in any other jurisdiction. Although certain other countries have also destroyed some of their heritage, it certainly happened in this city, not just with the Wood Quay site but with others. Frascati House was also destroyed and we now have a shopping centre and an apartment block on a site which was of immense value. It is not just battlefields but also buildings of heritage. That is where discretion got us. We need to ensure if we are giving discretion to a Minister that it is tempered by those who have the expertise and that the Minister has to listen to the bodies that have been listed already.
Regarding amendment No. 74, I do not know what we are afraid of, but we will withdraw it because I understand what the Minister of State is saying about petitions which may be vexatious or mischievous. We can insert an additional line to cover that to ensure those mischievous or time-wasting petitions can be weeded out at an early stage. We should not be excluding or discouraging the public from engaging with any Minister to ensure their views are heard. It is not compulsory that they be taken on board but an answer should be given. Even with the vexatious or mischievous ones, an answer could be given very quickly, even consulting the National Museum or An Taisce. On time wasting, we do not have time to waste. I will withdraw amendment No. 74 on that basis and will resubmit it with tighter wording to ensure that element of it happens. I have covered the other ones in my previous statement.
I thank Deputy Ó Snodaigh. Deputy O'Callaghan made very a very valid case. How do we determine those historic battlefield sites that are relevant to another state? There are more amendments to the Bill relating to the transboundary convention which could deal with some of the queries the Deputy has on the site of the Battle of Aughrim and others. Under the battlefields project, we have detailed data on creating 100 battlefield sites. This database could be drawn on for the register which could also be of use.
It is not good rationale not to do something that is good practice because it might be difficult to decide what to include in it. I am hearing consistently during this discussion that there are difficulties with where lines can be drawn and therefore let us not do it. However, we should be trying to do the best we possibly can in a realistic fashion to value and preserve our archaeology and our monuments. I do not believe the amendments relating to the transboundary convention cover this. We have raised issues on that, and given that the previous wording seemed to have been written pre-Brexit, it is good our amendments have been taken on board in that regard. I do not see how any of the Minister of State's amendments address the issue about battlefields of particular significance. I will certainly be pressing the amendment.
I will come back to Deputy O'Callaghan on Report Stage on the issue he raised.
I can withdraw if the Minister of State will look at it on Report Stage.
Amendment agreed to.
I move amendment No. 71:
In page 37, to delete lines 26 and 27 and substitute the following:
“(a) all prescribed monuments known to the Minister, and”.
Amendment, by leave, withdrawn.
I move amendment No. 72:
In page 37, line 29, to delete “Register.” and substitute the following:
“Register, and
(c) any battle sites or locations which played a key role in the revolutionary period of 1916 to 1923 which resulted in the formation of the State, including the integrity of these sites in their surrounding context.”.
Amendment put and declared lost.
I move amendment No. 73:
73. In page 37, line 29, to delete “Register.” and substitute the following:
“Register, and
(a) any battlefield, to be defined as an area or areas in which the majority or decisive element of fighting, combat or related activities of a battle took place, insofar as such area or areas are identifiable and geographically definable, and including any sites or places directly associated with the conduct, command or direction of a battle, whether or not contiguous with or to any such area or areas, and in the foregoing “battle” included any significant military engagement.”.
Amendment, by leave, withdrawn.
I move amendment No. 74:
In page 37, between lines 29 and 30, to insert the following:
“(4) (a) Members of the public may petition the Minister to include a relevant thing as a monument in the Register where they consider it to have archaeological, architectural, artistic, cultural, including intangible culture, historic, linguistic, traditional interest or where it holds amenity or community value.
(b) Where a public petition receives signatures from at least 1,000 persons entitled to vote at an election for members of a local authority, the Minister shall be obliged to consider the merits of the petition, in consultation with Ard-Mhusaem na hÉireann, An Comhairle Oidhreachta, and An Taisce, and provide a response in writing to the petitioners within six weeks.”.
Amendment, by leave, withdrawn.
I move amendment No. 75:
In page 37, between lines 29 and 30, to insert the following:
“(4) The place name and name of a monument in the Register and for official purposes shall be in the Irish language only.”.
Amendment put and declared lost.
I move amendment No. 76:
In page 37, line 31, to delete “may” and substitute “shall”.
Amendment, by leave, withdrawn.
I move amendment No. 77:
In page 37, line 36, to delete “and”.
Amendment, by leave, withdrawn.
I move amendment No. 78:
In page 38, line 4, to delete “thing.” and substitute the following:
“thing, and
(iii) the integrity of the monument within its surrounding context.”.
Amendment, by leave, withdrawn.
I move amendment No. 79:
In page 38, between lines 7 and 8, to insert the following:
“(a) (i) The site of a historic battlefield shall be a prescribed monument within a defined and designated area.
(ii) Of particular relevance are the select number of battlefields of historic value in another state. The Minister, in such cases, should send a description of any proposed works and any available information on the possible effects on the environment of the battlefield.
(iii) The views of the State in question, especially in relation to Northern Ireland, should be afforded due attention and respect with emphasis on cultural parity of esteem.”.
Amendment, by leave, withdrawn.
I move amendment No. 79a:
In page 38, line 8, to delete “may” and substitute “shall”.
Amendment, by leave, withdrawn.
I move amendment No. 80:
In page 38, line 14, to delete “otherwise).” and substitute the following:
“otherwise),
(c) the cohesion of the context in terms of its social and cultural history and use, and
(d) the aesthetic coherence and integrity of the monument within its context.”.
Amendment, by leave, withdrawn.
I move amendment No. 81:
In page 38, line 15, to delete “may” and substitute “shall”.
Amendment, by leave, withdrawn.
I move amendment No. 82:
In page 38, line 28, after “archaeological,” to insert “cultural, including intangible culture, linguistic,”.
Based on what the Minister of State has said, I will withdraw the amendment.
Amendment, by leave, withdrawn.
I move amendment No. 83:
In page 38, line 28, to delete “artistic, historic or traditional” and substitute “historic or cultural”.
Amendment agreed to.
I move amendment No. 84:
In page 38, between lines 29 and 30, to insert the following:
“(b) the archaeological, architectural, artistic, historic, cultural, linguistic or traditional value of the monument or thing, including its value to intangible cultural heritage;”.
Amendment, by leave, withdrawn.
I move amendment No. 85:
In page 38, line 31, after “of”, where it firstly occurs, to insert “community or”.
Amendment agreed to.
I move amendment No. 86:
In page 38, line 31, after “amenity” to insert “or community”.
Amendment, by leave, withdrawn.
I move amendment No. 87:
In page 38, line 39, to delete “subsection (3)(a)” and substitute “subsection (3)(b)”.
Amendment agreed to.
I move amendment No. 88:
In page 39, line 1, after “are” to insert “, or may be,”.
Amendment agreed to.
Section 14, as amended, agreed to.
Sections 15 and 16 agreed to.
SECTION 17
Amendments Nos. 89, 177 and 264 are related and may be discussed together.
I move amendment No. 89:
In page 40, line 21, after “Register” to insert “following consultation with Ard-Mhusaem na hÉireann, An Chomhairle Oidhreachta, and An Taisce”.
Amendment No. 89 seeks to ensure the Minister at least consults with the experts in the National Museum of Ireland, Heritage Council and An Taisce before amending or deleting particulars from the register. It refers to "consultation with Ard-Mhusaem na hÉireann, An Chomhairle Oidhreachta, and An Taisce".
Amendment No. 177 seeks to ensure no monument is destroyed unless the board of the National Museum of Ireland believes there is not or is no longer sufficient interest to justify continued protection, with the consent of the Minister and approval of the Heritage Council. It is based on the section 99 process for the disposal of archaeological objects, where the decision rests with the board of the National Museum of Ireland. No such oversight exists for the removal of protection from a monument. It is similar to amendment No. 92, which specifically relates to the destruction of a monument rather than removal from the register. It is not a removal; it is a destruction. An Taisce would also have to be consulted in advance of any such destruction. It sets out the oversight mechanism to protect monuments at risk of destruction.
Amendment No. 264 is to allow Ard-Mhusaem na hÉireann to carry out inventories of heritage. The current wording allows only the Minister to carry out such inventories, although that could, perhaps, be subcontracted to the museum. The amendment, however, would allow the museum to carry out such an inventory. In 2008, the expert advisory committee report on legislative provisions recommended that the Bill intended that the board of the National Museum of Ireland should be given the power to create the inventory of archaeological objects. That is the intention of the amendments.
On amendment No. 89, section 17 as it stands permits the amendment or deletion of any particulars entered onto the register of monuments. Such particulars may be wide-ranging and include information such as statements relating to the type of monument or site entered, cartographic information and information on the extent and boundary of a monument, as well as the relevant level of legal protection afforded to a monument. Although it is difficult to ascertain exactly how many monuments will be entered onto the register, it is estimated there will be in excess of 180,000 individual entries. Compared with existing systems, it is anticipated the register will be continually maintained and updated. It would be entirely detrimental to the administration of the register if consultation with a range of bodies would be required each time a particular was to be amended or deleted. Such a level of oversight is not considered in any way reasonable or necessary. It is envisaged that a dedicated team of archaeologists and administrators will be formed to manage and maintain the register and I am confident this system will work as intended. For these reasons, I am not in a position to accept the amendment and hope the Deputy will reflect on the very large number of monuments that will be in scope here and consider withdrawing it.
On amendment No. 177, I must oppose this proposal as completely unworkable. The Bill establishes the Minister as the licensing authority in respect of proposed works to prescribed and registered monuments, subject to a requirement to consult the board of the National Museum of Ireland in respect of any licence applications, as well as consultation with the Heritage Council in respect of certain key decisions concerning monuments. Where demolition of a monument subject to special protection is proposed, an environmental impact assessment will have to be conducted and regard had to its outcome. The proposed amendment appears to envisage a parallel system whereby the board of the National Museum of Ireland would also become a licensing authority for monuments under the Bill. This would impose a major additional burden on the National Museum of Ireland and duplicate, in an unnecessary and wasteful manner, the work of the national monuments service in my Department. It is entirely unrealistic to think the National Museum of Ireland could take on such a role.
Leaving aside the drafting problems in the amendment which have not dealt with the fact that the provision, as drafted, would duplicate the ministerial licensing role, the intention was presumably to remove the Minister of the day from decisions regarding destruction of monuments. Even so, this is not realistic or practical and would require the State to duplicate the expertise and resources of the national monuments service within the National Museum of Ireland. In legal terms, if the provision was sought to be made workable by excluding cases of destruction from the remit of the Minister so as to avoid overlap with the ministerial licensing system, the provision would likely result in considerable confusion. For example, Deputies should note that the introduction of the new prescribed monuments provisions will mean that many new discoveries of fragmentary and rapidly deteriorating archaeological sites, such as hitherto undiscovered archaeological features found by farmers while ploughing or found eroding out of sand dunes, will be legally protected for the first time in legislation. Long-term preservation, however, is often simply impossible - the sea, wind and rain are powerful forces, as we all know - and the only practical step is for the national monuments service of my Department to arrange for a rescue archaeological excavation as rapidly as possible. Should this important function be taken out of the hands of my Department, which would have received the legally required report of discovery of the site, and given to another body, with the inevitable confusion and delay that would ensue? That would result in only one thing, namely, the loss of important scientific and cultural information through the unmitigated decay of the archaeological site in question. Before the Deputy comes back to say that such excavation of monuments was not what he had in mind when he used the word “destruction”, I must point out that all archaeologists will always refer to archaeological excavation as a destructive process as, once excavated, the site is gone.
As noted, the Bill already contains a requirement that all licence applications be referred to the National Museum of Ireland for its view. Moreover, where a monument subject to special protection is proposed to be demolished, the Minister of the day must also conduct an environmental impact assessment, which involves extensive public consultation.
As has been noted to the House, it is also a requirement of the Minister of the day to consider assigning special protection to any monument for the time subject to general protection once a person gives notice of proposed works relating to such a monument.
The new legislation enables a proactive approach to be taken to the assignment of special protection. This is in contrast to the current legislation, under which preservation orders can only be made where national importance is evident regarding the monument and the monument is in danger. The criteria for assigning special protection will be much more flexible. It is my hope that we will move as soon as possible to a situation where a large number of the approximately 180,000 entries, which preliminary examination indicated the new register would contain, will have special protection, thereby triggering an EIA requirement for any proposed demolition. As such, I must oppose the amendment.
Regarding amendment No. 264, and if it is okay, I will ask my officials to consult with the Office of the Parliamentary Counsel, OPC, further on this matter, but I do not see any operational problems associated with the proposal. If the Deputy will consider withdrawing this amendment, my intention will be to table a similar amendment on Report Stage, pending discussions with the OPC.
Regarding amendment No. 89, I can see where a difficulty arises if the National Museum, the Heritage Council and An Taisce has to consult on amendments to 180,000 national monuments. I will consider the matter again, but I believe that those three bodies should be consulted in the event of a deletion. How many of the 180,000 are expected to be deleted from the list? I imagine it would be few. On the other hand, amendments may just add to them or make minor changes. However, I will withdraw this amendment and resubmit it, although I will probably leave out the provision on amending so that the bodies would be consulted before the deletion of particulars from the register.
The Minister of State gave a long response to amendment No. 177. Experts issue guidance to most of the archaeologists working on national monument sites, with most archaeologists having acted under the direction of the National Museum down the years. As such, this amendment is an attempt to address the need to ensure oversight of that situation by the National Museum at a higher level than is currently the case. Having studied archaeology, I understand the destructive processes of any archaeological site. In fact, most archaeologists would prefer that most of our national monuments had never been discovered and had remained in situ. In many ways, they have to deal with the consequences of us humans disturbing soil and managing to discover things that are often well preserved and well protected where they are. The figure of 180,000 is an underestimation of what we have, which shows the scale of what this legislation is intended to protect. During pre-legislative scrutiny, we discussed this matter with the Heritage Council, the National Museum and An Taisce. It is phenomenal.
I will deal with amendment No. 264. Various inventories have been done over the years. Some of them were public and some were not. Some we do not want to be public so as to discourage those whom this Bill is intended to discourage from going out with their metal detectors and so forth and interfering with sites. It shows the wealth of our heritage.
None of my amendments is intended to undermine the intentions of the Bill. They merely try to ensure that we have the best possible protections. Whether responsibility lies with the Department and its National Monuments Service, with the Heritage Council or with the National Museum, I will not be precious about it once it is clear who has responsibility and where the expertise lies. This relates to what Deputy O’Callaghan said about the need to ensure that those bodies had the requisite wherewithal and expertise. None of the three bodies I have mentioned have the necessary resources. For example, the Heritage Council has no archaeologists on its board. The Minister of State answered that question last week. We did not get the figures the Deputy was seeking. If we are speaking about 180,000 national monuments, we will need to scale up the number of archaeologists available to the State if we are to protect them from damage and preserve our history and heritage so that, where they are exposed above ground and it is appropriate to do so, current and future generations of people from Ireland and abroad can enjoy them.
I will withdraw amendment No. 89. I will withdraw the second amendment and consider what the Minister of State said – it was a long response – to see whether my amendment is out of sync. I will withdraw my final amendment based on the Minister of State’s comment that he will re-examine the matter and see whether an amendment could be made on Report Stage.
The Deputy may reintroduce amendment No. 89 on Report Stage.
Amendment, by leave, withdrawn.
Amendments Nos. 90 to 97, inclusive, and 102 to 107, inclusive, are related and will be discussed together.
I move amendment No. 90:
In page 40, to delete lines 32 to 35 and substitute the following:
“(5) Where the Minister is minded to take a Register action which, if taken, will cause a registered monument to cease to be a registered monument, he or she shall do so—
(a) in the interests of archaeology,
(b) in the interests of health and safety,
(c) having laid the proposal before each House of the Oireachtas for 21 days of consideration, with the options to the Houses of approving or annulling the proposed Ministerial Register action,
(d) having consulted with the National Monuments Advisory Council and the Heritage Council to seek their views (if any) on the action, and
(e) be guided by those views (if any) on taking the action or not.”.
This is about trying to put in more robust criteria for the Minister if the Minister is inclined to take a register action. There is very nice language in this Bill, but what we are talking about is removing monuments’ protection from the register so that those monuments can effectively be removed or destroyed. It is a significant measure. I will not go back over the history of this country, but even in recent decades and as Deputy Ó Snodaigh mentioned, we have seen the considerable destruction of heritage. One of the many reasons the Green Party emerged in Irish politics was out of a concern for the destruction of some of our heritage. In the 1980s, the Green Party was seen as one of the political forces, along with Sinn Féin and others, that were interested in protecting our heritage, including our built heritage. Housing activists were involved in previous decades as well.
Through this amendment, I am seeking to restore some of the language that was in the 1994 amendment of the National Monuments Act. The National Monuments (Amendment) Act 1994 was universally applauded and was meant to assure citizens that Wood Quay, which was the reason for that Act’s wording, would never happen again. After all of those campaigns that people were involved in, the Oireachtas rebalanced power under the 1994 Act to make the process for receiving consent to destroy a national monument more difficult to obtain and less subject to potential conflicts of interest.
Under the new configuration, to interfere with a national monument and to obtain a section 14 consent, it was required to get the consent of the commissioners, the local authority or the Minister, and consent would only be given if it was in the interests of archaeology to do so, or the Minister could give approval, but only in the interests of public health or safety. If ministerial consent was issued for another reason, the consent had to be laid before the Houses of the Oireachtas, which had 21 days to annul the order.
The 1994 amendment of the Irish cultural heritage legislation reached an advanced and carefully balanced form. The re-employment of the 1994 wording would restore that balance in the wake of the very negative 2004 amendment that was brought in. This is all in the context that we do not have a cultural or heritage ombudsman and, indeed, that the courts have made it clear they cannot intervene on behalf of our national heritage. The 2004 amendment to the National Monuments Act, in the words of the Supreme Court, removed a bundle of protections from the Act. This was made crystal clear in the decision by the Court of Appeal in regard to the 1916 Moore Street site, where it was ruled that despite the site having been declared a national monument, its full extent or historical landscape could only be defined by the relevant Minister. The court concluded that, as the law stands, it was purely a matter of political assessment.
The only concession made to outside consultation in the new Bill is that the Minister should refer the fate of a contentious monument to the Heritage Council and, therefore, the Bill as currently presented proposes to maintain the unfettered primacy of the Minister of the day with responsibility for heritage. One individual’s decision shall, accordingly, continue to determine the fate of an archaeological or historic monument regardless of its importance to the heritage of Ireland and there will not be sufficient checks or balances in place. The Bill in its current form maintains the negative concentration of power and the status quo that has applied for the past 20 years. It is very important that the 1994 wording, which came about as a result of what happened at Wood Quay and all of the destruction in the 1960s and 1970s, is put back into the legislation so we have those safeguards. It is widely recognised that the 2004 amendment was very regressive and now would be the time to correct that.
I asked the Minister of State last week to tell us how many archaeological licences were issued by the Department in the last 20 years since the 2004 amendment to the National Monuments Act, and of those, how many new archaeological remains of monuments were recovered and how many of those new archaeological remains or monuments were preserved in situ, which is important. Of those that were preserved in situ over the past 20 years, how many, if any, have contributed, for example, to the portfolio of Ireland's Ancient East?
It is worth noting Articles 1 to 5 of the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, which was adopted at Paris on 17 November 1970. Article 5 of the convention concerns organising the supervision of archaeological excavations, ensuring the preservation in situ of certain cultural property and protecting certain areas for future archaeological research. With regard to the earlier discussion about excavations being a destructive process, of course, the best way to limit that, when there is something significant being excavated, is to preserve it in situ.
What I am trying to do in this amendment is to get back to the 1994 wording and get the protections and balance of that back. Hopefully, the Minister of State will be able to tell us how many have been preserved in situ since the 2004 changes and how many of those are included in Ireland's Ancient East, for example, or other significant displays of our archaeological heritage.
I invite Deputy Ó Snodaigh to deal with his amendments and I will then go to the Minister of State.
Before I speak on the amendments, I said in my last contribution that no member of the Heritage Council had archaeological expertise. I have just been informed that, in fact, two have such expertise but none are academics in history or anything like that, and we still do not know how many archaeologists are employed by the Heritage Council. That is just to clarify what I said earlier.
Amendment No. 92 is concerned with trying to ensure that with regard to the removal of any monument from the register, there is a degree of oversight to ensure that a Minister cannot in any way remove a monument without having sought the approval or support of the bodies that we have tasked with protecting our heritage, such as the Heritage Council or Ard-Mhúsaem na hÉireann. That is the effect of amendments Nos. 92 and 93.
Amendment No. 94 is an attempt to ensure there are mechanisms through which the public can engage and to ensure the Minister would seek a public participatory element, so the public can play a role, through the local authority, to try to have their views known in the event of a removal from the register. It may sound cumbersome but it is that type of participatory politics that we all aspire to. While it sometimes elongates a process, we are better off as a democracy if the public are engaged because they then feel they have ownership of some of the decisions.
On amendments Nos. 96 and 97, the idea is not only that the public play a role, but also that the Oireachtas plays a role. We have an Oireachtas committee that has responsibility for heritage - in this instance, it is this committee and in other instances, it could be a different make-up, depending on which Department is involved. The idea is to allow a committee to have a final say in regard to the removal of a prescribed monument. As Deputy Cian O'Callaghan said, the removal of a monument from the prescribed list, and from the protections that affords, usually only means one thing. I cannot think of a situation where that was not the case unless there was outright fraud, but because it is historical, the fake might sometimes be more valuable than the real thing. A removal in the past meant only one thing, which is that it was for destruction. It was to run a road through it or, as I said, to build a shopping centre, a local authority building or the like.
That is where a judgment happens. It is where the public, the elected members and the experts all have a role to play to make sure that whatever decision is taken, there is either no alternative or else the historical or archaeological monument is not as valuable as some might believe. My father worked in the National Museum of Ireland for years. People would be aghast at the approach the museum would have to some material which would be of huge value in the public eye. However, if there are 40 or 50 copies of something, it is no longer as valuable. It is important and needs protection, but it is not the be-all and end-all.
I have engaged with officials from the Department when auctions come up and there is a clamour in the newspapers to the effect the State needs to purchase the item, but the State might already have three or four copies of the item, which might be important and valuable. I am trying to figure out why else, other than destruction, we would remove a national monument from the prescribed list. Perhaps the Minister of State can point to examples in that regard. It might be that a national monument is in such a state that it is a danger to the public or might fall down, and there have been cases of that nature. Nevertheless, even for the sake of protecting the Minister, the more people who are involved in a decision such as that, the more protection there will be for the Minister and the better it will be for our society as a whole, not least if the public is allowed to have some say on the matter.
Amendment No. 95 will make it explicitly clear that if the Minister consults the Heritage Council regarding the deregistration of a monument, the council may itself consult other public bodies or other persons as it considers appropriate. I flagged this earlier with Deputies.
Amendments Nos. 102 to 107, inclusive, relate to the giving of notices in respect of entries in, amendments to and deletions from the register of monuments. Such notices can take place by way of a general notice to members of the public and are referred to as general list or revised general list notices. The notices contain information on the register action, such as a list of the registered monuments located in the geographical area to which the notice relates. An accompanying map that specifies where the registered monuments are located will specify what level of protection applies to the monuments listed and contain any other relevant information.
As drafted, the Bill does not provide for an end date by which such notices should be displayed and, accordingly, these amendments set an end date for the availability of general list and revised general list notices. A 90-day period is proposed to align with the period within which representations can be made to the Minister following the publication of a consultation notice and to align with the waiting period following the notification of proposed works at a monument to which general protection applies.
In respect of amendments Nos. 90, 92, 93, 96 and 97, I do not propose to extend the consultation requirements beyond what has been introduced following the pre-legislative scrutiny recommendations and the additional amendments I intend to bring forward later today. These additional amendments are to make clear that when consulting the Heritage Council in respect of the potential deregistration of a monument, the council will be empowered to consult any public body or any other persons as it considers appropriate. If the Minister of the day intends to deregister a monument, he or she will first have to consult the Heritage Council and have regard to any views of the council in deciding whether to carry out that deregistration. As I mentioned, the Heritage Council is the independent statutory body established to propose policies and priorities for the protection, preservation and enhancement of monuments and archaeological objects, and I have the utmost confidence that the Heritage Council can perform this function effectively if called on to do so.
This system will be reviewed within five years of the Bill’s enactment to assess its use and effectiveness and determine whether any changes are required, be they administrative or legislative. Several amendments require consultation with the National Museum where a register action is proposed but, given that the remit of the board of the National Museum concerns moveable cultural heritage and that the section to be amended relates to immovable cultural heritage, the board is not an appropriate mandatory consultee in this instance. This is in contrast to consultation relating to licensing decisions. I am not in a position to accept the proposed amendments relating to additional consultation requirements for these reasons.
Deputy O'Callaghan asked a question at the previous meeting regarding archaeological licences, and I think he is broadly correct in that there are about 20,000 licences. We are going to get more detailed information for the committee, which we hope to be able to provide on Thursday. The majority of those licences will have been issued for test excavations, for instance, to allow development or avoid archaeological deposits. We will get that detailed information for the committee by Thursday.
Regarding amendment No. 94, under the National Monuments Acts, consultation has always been with a statutory advisory council. This is appropriate and should remain the position under the Bill. My understanding of public participation networks, PPNs, is they have been developed to engage with local authorities and certain decision-making processes that relate to matters within local authority remits. To the best of my knowledge, PPNs do not engage with any Department in the manner suggested and I would not see it as appropriate for them to do so for the purposes outlined in this proposed amendment.
I thank the Minister of State for his contribution. In regard to the approximately 20,000 licences, how much has been preserved in situ from those excavations? Has any of it become part of, say, Ireland's Ancient East or anything else that is promoted publicly?
Turning to my amendment No. 90, I acknowledge the Minister of State does not agree with me on the need for a national monuments advisory council, which we have discussed previously and will discuss again. Nevertheless, the proposed subsection (5) outlined in the amendment will provide that any decision to take a register action to remove a monument from the register shall be done in the interests of archaeology or health and safety. Moreover, and significantly, having consulted the Heritage Council or anybody else, the Minister will then be “guided” by those views on taking the action or not.
The worry is that the language in the Bill is too loose in that it provides only that the Minister will “consult", but the Minister of the day will then be able to go off and decide to do whatever he or she wishes. There have, at times, been Ministers who simply do not value heritage and consider it an inconvenience. Due to ministerial decisions going back to the 1960s, significant parts of our heritage were destroyed simply because the Ministers of the day did not value it. In fact, in the late 1950s and the 1960s, there was a period of about ten years where there was a rush towards modernity and towards destroying everything that was old or belonged to a different era. Within ten years, most people in the country formed the view that this was a terrible approach, but we can go through periods for whatever reason. To be fair, we were coming out of the Second World War and a period of poverty. A lot of our building stock in that period was in very poor condition and there were slums, so we can understand how, in a certain context, sufficient value at a societal level might not have been placed on parts of our built heritage. Within ten years, however, most people in the country had moved back to the point of valuing it. There can be a great deal of destruction if a particular Minister or party with a particular viewpoint gets into government, and that can never be undone.
My amendment, therefore, is about having sufficient checks and balances such that these decisions will be taken properly and it will not be a case of the Minister needing just to consult. Rather, he or she will have to be guided by those views.
I would be grateful if the Minister of State were to address those parts of my amendment and tell the committee whether he feels they are covered and how or whether he would be on open to taking on board those parts.
Again, the Deputy has made valid points. We have all seen cases. Wood Quay is often mentioned but there are many more in all our towns. All our counties could cite examples. I accept that. On the checks and balances, the advice of the Heritage Council is a good mechanism. To add to that, the legislation states:
(7) The Minister shall, in forming an opinion for the purposes of subsection (3) about a prescribed monument or relevant thing of a relevant interest...
In this the Minister of the day should have regard to:
(a) the level of archaeological, architectural, artistic, historic or traditional interest of the monument or thing;
On Report Stage, we could explore the possibility of requiring the Minister to give reasons for not accepting the advice of the Heritage Council, if that would give an added-----
That would be helpful as if the legislation simply states "having regard to", a particular Minister might be minded not to have regard to and go off.
I take on board the point.
I prefer my wording but there is something in what the Minister of State said. If the Minister of the day has to give an explanation or reasons and put it in writing, a further onus is put on them for the consultation to be meaningful. Most Ministers will have meaningful engagement, but we are trying to protect against someone who does not place a value on this so that would be helpful.
Does Deputy O'Callaghan wish to withdraw amendment No. 90 so that it can be reintroduced?
No, I am absolutely pressing it. It is one of the most important amendments I have put forward.
Amendment put:
The Committee divided: Tá, 3; Níl, 6.
Tá
- Gould, Thomas.
- O'Callaghan, Cian.
- Ó Broin, Eoin.
Níl
- Duffy, Francis Noel.
- Flaherty, Joe.
- Higgins, Emer.
- Matthews, Steven.
- McAuliffe, Paul.
- Noonan, Malcolm.
Amendment declared lost.
Amendment No. 91 is in the name of Deputy Bacik. As no one is present to move it, the amendment falls.
Amendment No. 91 not moved.
I move amendment No. 92:
In page 40, to delete lines 32 to 35 and substitute the following:
“(5) Where the Minister wishes to take a Register action which, if taken, will cause a registered monument to cease to be a registered monument, he or she shall make a request to the Board.
(6) A registered monument or a prescribed monument, or any part of a monument or its surrounding context or landscape, shall not be removed from the Register except in accordance with subsection (7).
(7) Where the Board is of the opinion that a monument is not, or has ceased to be, of sufficient archaeological, historic, cultural or scientific interest to justify its continued protection, the Board may consent to the removal of the monument from the Register in such manner as may be specified in the consent.
(8) (a) Subsection (7) shall be in addition to, and not in substitution for, any authorisation of any other person that is necessary to make lawful the removal of the monument concerned from the Register.
(b) In paragraph (a), “authorisation of any other person” includes the giving or granting of a licence, consent, approval, permission or direction, whether under an enactment or otherwise.
(9) The Board shall not consent to its removal from the Register other than—
(a) following a request by the Minister,
(b) with the approval of An Chomhairle Oidhreachta and following consultation with An Taisce, and
(c) either—
(i) in conformity with any conditions to which such order is subject, or
(ii) with the leave of the court which made the order.
(10) The Board may organise a sub-committee of the Board to fulfil its functions as they relate to national monuments.”.
Amendment put and declared lost.
I move amendment No. 93:
In page 40, line 35, to delete “action.” and substitute the following:
“action, and
(c) consult with Ard Mhusaem na hÉireann, An Taisce, and An Chomhairle Oidhreachta to seek their views, if any, on the action.”.
Amendment, by leave, withdrawn.
I move amendment No. 94:
In page 40, line 35, to delete “action.” and substitute the following:
“action, and
(c) consult with the public-participation network in the local authority or authorities concerned, to seek their views, if any, on the action.”.
Amendment put and declared lost.
I move amendment No. 95:
In page 40, between lines 35 and 36, to insert the following:
“(6) The Council may, for the purposes of forming any views referred to in subsection (5)(a), consult with such public authorities or other persons as it thinks fit.”.
Amendment agreed to.
I move amendment No. 96:
In page 40, between lines 35 and 36, to insert the following:
“(6) Where the Minister seeks to delete particulars entered in the Register under subsection (1), and where such a deletion would result in a monument ceasing to be protected as a prescribed monument or registered monument, he or she must submit such a proposal for approval to the Joint Oireachtas Committee responsible for heritage.”.
Amendment, by leave, withdrawn.
I move amendment No. 97:
In page 40, between lines 35 and 36, to insert the following:
“(7) Any amendment or deletion made in accordance with this section must be brought to the attention of the Joint Oireachtas Committee responsible for Heritage.”.
Amendment, by leave, withdrawn.
Section 17, as amended, agreed to.
Section 18 agreed to.
NEW SECTIONS
I move amendment No. 98:
In page 41, between lines 3 and 4, to insert the following:
“Guidelines for Affected Owners of Land and Property
19. The Minister shall publish guidelines for owners of land and property where their land or property encompasses a prescribed or registered monument, or any part of a prescribed or registered monument, outlining their duties and obligations to the protection of the monument, any supports or facilities available for such owners of land and property, and setting out guidance on best practice in heritage protection. The Minister shall furnish any prospective owners of land or property affected by prescription or registration of a monument with such guidelines, and provide clarity where sought by members of the public.”.
This is to try to deal with guidelines for affected owners of land and property. It is to ensure there are guidelines to set out their duties and obligations, the supports and facilities available to them and the best practice they should engage in to protect the heritage on their land and property. There has always been a concern among landowners and a sense that they should not mention a monument lest they end up with an unworkable obligation or that they may attract people onto their land. Only last week, I was in a part of Ireland where there seem to be national monuments coming out of every field. I guarantee the landowners have done their damnedest to protect them over the years. They may be on the Wild Atlantic Way but they are not encouraging people to know there are monuments on their land for fear they will end up with people traipsing across their land and so on. We have an obligation to ensure we give guidelines to the landowners, those who hold the property and, therefore, hold in trust our national moments, to ensure they understand their duties and know the supports, facilities and organisations that can aid them in their task of ensuring the national monument on their land is not interfered with or put under threat. They will do their best, as they have over the years, when it comes to farming around some of these monuments. Often, they set aside quite a big portion of land and they forgo what that land could be were a national monument not located there. They protect the monument and allow the land go wild or whatever.
Under section 211, codes of practice can be published to provide practical guidance to members of the public to assist them in complying with any part of the enacted Bill. Such codes can also set out the manner in which the Minister of the day proposes to perform any function under a provision of the enacted Bill.
Draft codes of practice will be made available and representations received in relation to draft codes must be considered. When a code is published, a notification will be published in Iris Oifigiúil and a copy will be made on the Department’s website.
It is envisaged that codes of practice will be made available for the purposes set out in the proposed amendment. Indeed, I would have no hesitation in saying that the question of how landowners comply with the legal requirements for protection of prescribed and registered monuments will be a top priority for the issuance of such a code of practice. However, to assign priorities for such codes within the primary legislation would not be appropriate as it might result in the importance of some codes being perceived as diminished. In addition, to provide for a separate provision relating to guidelines as proposed in this amendment would run the risk of cutting across the system for codes of practice. For these reasons I do not consider it necessary to insert a new provision relating to guidelines for landowners.
I understand that but it is such an important area. We are dependent on landowners to protect these. As was mentioned earlier, as the State cannot protect 180,000 or 200,000 national monuments, we owe those landowners, the holders of the monuments, a debt of gratitude but we also need to ensure there is no doubt in their minds whatever. While the Department or Minister may issue such guidelines, it is crucial it is there, whether it is in the primary legislation or otherwise, and it has to be updated on an ongoing basis so that landowners are left in no doubt as to their duties towards the national monuments that have been already identified and they are in no doubt about their role and the supports they can get. That is important if they are looking for advice, especially since, in the near future, farmers may change their agriculture methods or what they have practised for hundreds of years.
If they change because of climate or because the market changes, it is important they do not feel under pressure to interfere with a monument, as has happened. The vast majority are more appreciative of the natural context in which those monuments exist. Over centuries those national monuments have often been protected by superstition. The superstition is probably purposeful, as a protection for ancient burial grounds and so forth, to ensure people have respect for the past. That is the nature of our history.
I will not press this amendment but it is important. It is almost as important as everything else, given the number of our national monuments that are hidden or buried. That is key to much of this. We must ensure destruction does not happen inadvertently, or in some cases on purpose. There should not be any doubt in anyone's mind what their role is.
I agree with the Deputy on that. Codes of practice will be made available to do what he has set out to achieve with this amendment. As is critical, the responsibilities of landowners will be set out in those codes of practice. That will give effect to what the Deputy is trying to achieve with this amendment. The vast majority of landowners would be proud to have a monument on their farms or land and they take great pride in caring for them. However, it is important they are aware of the law and how they can manage them to prevent any unintended or intentional damage to monuments. The Deputy is correct that there could be changes to agricultural practices in the coming years because of climate change. For those reasons, it is important that these codes of practice are put in place.
Amendment, by leave, withdrawn
I move amendment No. 99:
In page 41, between lines 3 and 4, to insert the following:
“Record of protected monuments
19. (1) It will be a requirement of Planning Authorities to include any entries in the Register of Monuments relevant to their area of jurisdiction within the Record of Protected Structures of their City and/or County Development Plans.
(2) It will be a requirement of Planning Authorities to reference protected monuments,including but not limited to those on the Register, on their City and/or County Development Plan maps.”
Amendment No. 99 relates to a record of protected monuments. It requires registered monuments to be included in the record of protected structures. We have an anomaly that every five years the city and county development plans are put together. There are related maps and so on. Most people focus on the changes to zoning and what land is set aside for residential use and so on. However, the record of protected structures is part of that process. They are protected for a reason. Most would be regarded as national monuments but they do not all have the same protection. It seems that there is a dual list and this amendment attempts to ensure that record is taken into account in the list we discussed earlier, namely, the register of monuments, so that there is no anomaly. Perhaps the Minister of State will explain whether an anomaly would arise in this instance. Otherwise it would be logical to combine the two lists.
As discussed in the Seanad, I believe the recommendation made to local authorities by way of guidelines made under section 167 of the Bill is a more appropriate, effective and practical way to pursue this matter. This is especially true given the advances in mapping technology and similar online resources. The Deputy may wish to note that I am introducing an amendment to section 167 that specifically references a power to issue guidance on local authority development plan objectives for the protection of archeological heritage. This is the primary reason I am not in a position to accept this amendment. However, I reiterate that the planning and development Bill would be a more suitable location for any new primary legislative provisions or policies relating to city and county development plans.
For the first time, specific references will be made to the National Monuments Acts in the context of development plans in the planning and development Bill. If the situation arises that the Historic and Archeological Heritage Bill 2023 is enacted before the proposed planning and development Bill, I would see those references in the National Monuments Acts, replaced with references to registered monuments as provided for under section 14 of this Bill. In any event, there are clear drafting errors and difficulties with the amendment as proposed, in particular, the reference to protected monuments and a record of protected monuments, the establishment and legal status of the latter not being provided for anywhere. Given what I have noted, I hope the proposed amendment will be withdrawn, but in any event, I oppose it.
I have no problem withdrawing it at this stage but it is appropriate to throw lots of other things into this discussion that do not relate to the subject of this Bill. If the amendment was drafted properly, it would have been in order to throw it into the mix.
Amendment, by leave, withdrawn.
SECTION 19
I move amendment No. 100:
In page 41, lines 7 and 8, to delete “one or more than one” and substitute “at least two”.
Amendment put and declared lost
I move amendment No. 101:
In page 41, line 19, to delete “in a national newspaper” and substitute “in at least a national newspaper, and in local media through a local newspaper and/or local radio station where they exist.”
Amendment put and declared lost.
I move amendment No. 102:
In page 43, line 2, to delete “and”.
Amendment agreed to.
I move amendment No. 103:
In page 43, line 4, to delete “appropriate.” and substitute “appropriate, and”.
Amendment agreed to.
I move amendment No. 104:
In page 43, between lines 4 and 5, to insert the following:
“(e) which is made available for the inspection referred to in that subsection for not less than 90 days commencing on the date that the notice is published in a national newspaper as required by that subsection.”.
Amendment agreed to.
I move amendment No. 105:
In page 43, to delete line 17.
Amendment agreed to.
I move amendment No. 106:
In page 43, line 19, to delete “appropriate.” and substitute “appropriate, and”.
Amendment agreed to.
I move amendment No. 107:
In page 43, between lines 19 and 20, to insert the following:
“(e) which is made available for the inspection referred to in that subsection for not less than 90 days commencing on the date that the notice is published in a national newspaper as required by that subsection.”.
Amendment agreed to.
Section 19, as amended, agreed to.
SECTION 20
Amendments Nos. 108 to 115, inclusive, 120,125 to 128 inclusive, 136, 243 and 245 are related and may be discussed to together.
I move amendment No. 108:
In page 43, line 38, after “integrity” to insert “, community”.
Following a commitment I made during the Bill's passage through the Seanad, amendments Nos. 108 and 111 introduce "community value" to sections 14, 7 and 23 of this Bill. This will ensure community value is taken into consideration when deciding on entry of monuments into the register and when considering the application of special protection.
Amendment No. 110 is a drafting matter and a consequential amendment to the integration of cultural interest into the Bill. The amendment ensures consistent use of the "relevant interest" terms used throughout the Bill, in this case in relation to the matters to be considered when deciding whether to apply special protection to a monument.
Amendment No. 120 provides a safeguard under section 24 to ensure that where special protection is deemed to apply to a monument in the ownership of a local authority and a map is to be used to expressly state the extent of the monument in a notice to the public, the consent of the Minister must first be sought in order for the map to be used for that purpose.
In respect of amendment No. 127, a comma is missing after "in" in paragraph (d). I propose to amend this paragraph to include a comma. Section 28 is a very important addition to powers regarding the protection of monuments. To recap on what I previously outlined, "general protection" as provided for under section 27 requires that works to a prescribed or registered monument can only be done under licence issued by the Minister, other than where a notice procedure has been complied with. Section 28 ensures, in contrast to existing systems under the National Monuments Acts, that even if the Minister does not assign special protection on receipt of such a notice, and it should be borne in mind that such protection would immediately impose a licensing requirement, notwithstanding the notice having already been given, the Minister may impose conditions governing and restricting how notified works may be conducted.
In that context, it is obviously essential that there be complete certainty that the Minister can impose the necessary and appropriate conditions. Following further review of section 28 as currently drafted, my Department has identified a number of improvements that should be made and this is the purpose of amendment No. 127. In particular, greater clarity is needed regarding powers to impose conditions that require the carrying out of a number of licensable activities, such as archaeological monitoring or other professionally conducted activities to avoid or mitigate any interference with the monument, and that such activities, and the actual works themselves, can be made subject to the kinds of conditions that may be attached to licences issued under section 151l. I reiterate the far-reaching improvement that section 28, even as it stands, represents in heritage protection. The revised provisions will clarify and strengthen further this important part of the legislation.
Amendments Nos. 128 and 136 are technical amendments required so that subsequent amendments, namely, amendments Nos. 134 and 142, can make it expressly clear that an exemption cannot be granted if the class of works concerned prevents access by members of the public to a monument.
Under section 135, special protection is deemed to apply to wrecks of 100 or more years old. Amendment No. 243 will also apply protection to registered and prescribed monuments situated underwater. This will ensure that section 135 better relates to section 136 in the context of activities that are prohibited at registered and prescribed monuments situated underwater.
Amendment No. 245 will replicate section 26(2) to avoid situations where another licensing authority would be required to obtain a licence under the Bill, for example, where the Environmental Protection Agency, EPA, which is the licensing authority for dumping at sea, would be required to obtain a licence if that dumping were in the vicinity of a historic wreck. Paragraph (b) of the new subsection provided by amendment No. 245 will make it clear that the person proposing to dump material at sea would need both a licence from the EPA and a licence under the Bill, if that dumping were proposed to be in the vicinity of a wreck or an underwater monument.
Deputy Ó Snodaigh has tabled amendment Nos. 109, 112, 113, 125 and 126.
Amendment No. 109 proposes to add "artistic, cultural, including intangible culture, historic, linguistic or traditional" to considerations the Minister would have. It proposes that the Minister, when deciding to apply or cease to apply an appropriate protection on the register, would take those elements into consideration. Archaeological, architectural and historic heritage are already mentioned in the section. The amendment seeks to expand the list of what needs to be taken into account and as outlined in the section "whether the monument is, in terms of such heritage, of special or particular interest". The amendment seeks to add to that.
I withdraw amendment No. 112 because the Minister of State has tabled amendment No. 111, which has the same effect.
Amendment No. 113 seeks to require the Minister to "have due regard to the advice of the Board, An Chomhairle Oidhreachta and An Taisce”, in addition to Ard-Mhúsaem na hÉireann. These decisions on special protection under the proposed wording require no consultation or oversight at the moment. The experts should always be asked their opinion.
Amendment No. 125 states: "In page 51, to delete lines 25 to 39, and in page 52, to delete lines 1 to 3." This is to remove a loophole as a result of which proposed works on a monument can go ahead without a relevant licence. It is to ensure that a developer or landowner cannot circumvent the normal licensing process to carry out works, if they give valid notice of their intention, and that they abide by the conditions as set down. The Minister can waive the need to abide by such conditions. There was debate on this issue in the Seanad with Senator Higgins.
Amendment No. 126 proposes to ensure that only an environmental impact assessment, EIA, compliant appropriate assessment, AA, is considered acceptable grounds for an exemption, when applying for consent to conduct works in line with the habitats regulation. Subsection 27(2)(d) allows an exemption in the case of notices that have been subject to a screening for AA that complies with the habitats directive, or an AA under another enactment, from which it can be concluded that the carrying out of the relevant works would not be incompatible with the AA. The section option does not specify that the AA must comply with the habitats directive and, therefore, that creates the loophole. The amendment aims to plug a small but important loophole.
Amendment No. 115 relates to the consultation on special protection and seeks to insert the wording "and by the public". In section 22, no role is assigned to the public. My amendment would ensure that the public can have their say and can express a view. I do not know why the Bill would allow for representations in writing only from the owner. Why would the public not be allowed to have a say? Why would someone with expertise, for example, who is a member of the public, not be able to comment? It is important in implementing the rights outlined in Article 9(3) of the Aarhus Convention. I look forward to what the Minister of State has to say about it.
On amendments Nos. 109 and 112, given the Government amendments that have introduced “cultural interest” and “community value” into the scope of the Bill, I again ask Deputies to reconsider. I acknowledge Deputy Ó Snodaigh is withdrawing amendment No. 112 but, again, we said we would come back on Report Stage as regards the linguistic and those other aspects that were raised, if that is okay.
On amendment No. 113, I do not propose to extend the consultation requirements beyond what has been introduced following the pre-legislative scrutiny recommendations and the additional amendments I will bring forward later. It is my hope that section 22 will be widely and frequently used to assign special protection, with this being implemented by my Department on an ongoing and proactive basis with the aim of rapidly achieving a high number of monuments subject to special protection, and progressively increasing that number over time. Regarding the removal of special protection under section 22(7), provision has already been included for consultation by the Minister with the Heritage Council. Again, I am not in a position to accept this amendment.
Amendment No. 115 is not considered workable as a section 22 consultation notice will issue directly to the owner of the land on which the monument is situated. However, there is nothing whatsoever under the Bill to prevent anyone, whether individually or as part of a group, from making representations to the Minister in respect of a monument where special protection is to be applied. Any such representations will naturally be considered and responded to. I am not in a position to accept this amendment. The Heritage Council, as part of its role, can consult groups and individuals. The Deputy mentioned people with expert views and the Heritage Council has the discretion to consult the relevant people.
On amendment No. 125, section 27 is a key provision relating to proposals for works to be carried out at or on a monument to which general protection applies. A person who wants to carry out such works will not be permitted to do so unless under and in accordance with a licence, or unless a notification procedure has been completed. It will be a substantial strengthening of the law that is currently in force under the National Monuments Acts. As with all aspects of the Bill, the protection of historic heritage is paramount and protection is integral to section 27 in several ways. If a person wishes to carry out works and a notification for those proposed works is received by the Minister of the day, he or she will have to consider whether special protection should be applied to the monument, which would mean that a licence is required to carry out such works legally. For clarification, where special protection applies, the notification option no longer applies and the only way to carry out the proposed works would be under and in accordance with a licence. This consideration of special protection will apply to every notification received. If the assignment of special protection is not considered necessary, the Minister will be able to impose conditions on the works to be carried out. Such conditions may require specific actions or steps to be taken prior to the commencement of works and the recording and protection of the monument for set time periods when the proposed works can be carried out.
There are a number of scenarios where the notification of works option cannot be availed of and these include where an appropriate assessment is required; where a screening determination for an environmental impact assessment, EIA, or an EIA is required; where special protection applies to a monument or where the proposed works would require a licence under Part 6 of the Bill. The proposed amendment seeks to remove the notification option in its entirety and this would fundamentally alter the operation of the Bill, render the different levels of illegal protection irrelevant and go significantly beyond what has always been a core element of the Bill. I consider that notification procedure to be reasonable and fair. It creates further flexibility and options for members of the public, all the while ensuring that protection of historic heritage remains central. For those reasons, I am not in a position to accept this amendment.
On amendment No. 126, the purpose of an appropriate assessment, AA, is to assess the impact a proposed activity will have on a European site. If the assessment determines that there will be a negative impact, then permission for the activity cannot be granted except in the case of imperative reasons of overriding public importance and after a special procedure has been completed. I acknowledge what this amendment seeks to achieve but it is not required. By default, if the proposed works are compatible with an AA, they cannot be inconsistent with Part 5 of the habitats regulations. Ireland would be in breach of EU law if that were the case. I cannot accept this amendment.
On amendment No. 115, the Minister has said there is nothing to prevent a member of the public writing in. There is nothing to prevent someone with expertise doing that. However, section 22 is about the Minister deciding to apply or remove the application of special protection to a potential register action monument. Section 23(1)(b) states that the Minister, while deciding to remove, "shall consider the representations in writing (if any) made to the Minister by the owner". There is an obligation on the Minister to consider the views of the owner if he or she makes any written submission. There is nothing in the Bill about the Minister considering a written submission from an expert. The Minister is right that there is nothing to prevent the leading expert in the country on this particular monument writing to the Minister to give his or her view. However, there is nothing in the legislation to require the Minister to consider that view. The views of the owner should be considered and it is right for that to be part of the process and part of this Bill. However, if a leading expert chooses to write to the Minister, why is there no legal obligation on the Minister to consider that written submission? Why is there an obligation to consider only the written submission of the owner? There are people with great expertise and not to have an obligation on the Minister to consider their opinions alongside the written representations of the owner seems to me completely wrong. If what the expert is saying or what a member of the public is saying in a submission is not of particular interest, then so be it, but such views should at least be considered alongside the views of the owner.
Those are valid questions. There are quite a number of safeguards here. The archaeological staff in the National Monument Service have extensive experience, including extensive experience in excavation. That resource is there.
Separately, the Heritage Council has the ability to consult outside agencies and experts. It makes recommendations, which is an added safeguard.
I stated earlier that the Minister will have to state reasons for a decision. The combination of those elements gives an added safeguard to ensure that correct and robust decision-making is adhered to.
In respect of decisions that are made, does written consideration not need to be given in any event? Is that not standard practice?
I think it is.
I do not think the Minister of State is offering anything additional there.
It is important that the rationale behind a decision is given. Added to that are the recommendations of the Heritage Council, with the support of outside expertise.
The issue is that the Heritage Council can look for that. What could happen, especially considering we do not know how many archaeologists or historians are employed by the Heritage Council so we do not know the level of expertise, is that even with the best will in the world, the Heritage Council could consult someone who may not be the leading expert in a particular field. That could happen. If the leading expert in that field writes to the Minister, why would we be opposed to the Minister having to consider his or her views? There could be knowledge in the community about the monument and its significance. There may be knowledge out there that is on a par with the owner's knowledge. Sometimes the person most knowledgeable about a monument may well be the owner, depending on his or her level of interest and the information he or she has been handed down. Sometimes that person will not be the most knowledgeable. It is correct that the Minister will be required to consider the views of the owner but why not be required to consider those other voices? I do not see how the Bill complies with Article 9.3 of the Aarhus Convention because there is no role for the public. The Minister of State might tell us how it is compliant with the Aarhus Convention when there is no role for public participation.
Going back to the role of the Heritage Council, we absolutely could accept it. It would seek out the relevant expertise related to a relevant monument. That has always been the case in terms of its work and practice. I do not envisage a situation whereby the Heritage Council will not seek the relevant expertise. There is nothing stopping members of the public from writing to the Minister of the day if they have concerns. That could be taken into consideration. We have a level of strength within the Bill in terms of decision-making. In that sense, it does strengthen the level of protection that is there.
I will not specifically reference the Aarhus Convention. It applies in respect of public participation and access to information on the environment and other elements.
I am not sure if it specifically relates to this. The element in respect of which the Heritage Council has the capacity to engage is in terms of seeking expert advice. That is really what is required here. I hope that gives some assurance to the Deputy.
What we are talking about here, namely, conferring or removing special protection, is a significant part of the Bill. Not to have any role for the public is a deeply flawed approach. It is highly objectionable. Good practice would be to have it so the public could write in and their views would be considered by the Minister. I do not think that is onerous. I do not think the Minister is necessarily going to be inundated with submissions on this. Not granting the public the same status as that granted to an owner under section 22(1)(b) is a mistake. It is flawed. I will certainly be pressing the amendment.
The Minister would in the normal course consider submissions from anyone if people feel minded to write in to the Minister of the day. Again there is the issue of imposing a duty to consider each proposal again, which might not be soundly based. I think that is why the expert opinion and views are required. That would be burdensome. The aim is to have a really proactive programme of assigning special protection administered by the National Monuments Service. Certainly, members of the public can make their concerns known but we have to ask whether their concerns are based on the best archaeological advice in terms of what is required.
The wording would just mean that the Minister would consider the representations in writing, not just of the owner but also of members of the public. In order to arrive at the decision that something is not soundly based, we need to give it consideration. It is entirely appropriate for a Minister, if he or she gets a submission that is not soundly based, to consider it and say it is just wrong, the person does not know the facts, they do not understand, they say the thing is of exceptional archaeological significance but clearly it is not because there are thousands of them all over the country or whatever. That is all part of a process of consideration. I do not think it is onerous to include the public in the legislation in terms of the Minister considering representations in writing. I do not think the Minister of State has made the case that it is onerous, either. This legislation details how things work. It is fine to say they could write in but it is all invisible in the Bill. If they read the Bill, they have no idea what happens to anything they submit. They do not know if it will be considered by the Minister. Does it go into a black hole? The legislation is totally silent on that. Why be totally silent on this? If the Minster of State is saying it may well be considered, why not just put it in the Bill so there is clarity on it? Having the legislation be silent on this process whereby a Minister may consider something in writing but the public do not know because the Bill does not tell them is not a satisfactory way to do legislation, frankly.
This applies to sites where there is special protection and that are on privately owned land. Really, the notice is just to the landowner. From that perspective, what is required here is the expert view and the advice of the Heritage Council to the Minister of the day. That is why it is distinctly different from an open public consultation process in respect of a bigger policy or plan. It is specifically in respect of a notice that is given to a private landowner regarding special protection on their land. I hope the Deputy can see the difference between the two.
Yes, but if the Minister is removing special protection from a monument on privately owned land, there may be relevant views in the community that people should be able to submit.
In the case of the removal of special protection, the Heritage Council can put out a notice to seek public views on that.
It can but it does not have to.
In the case of removing special protection, under this legislation, the public could write in, that might be considered by the Minister but there is nothing to say that the matter will be considered by the Minister. This is a deeply flawed approach.
If it is okay, we might give consideration to that on Report Stage. I accept the point the Deputy is making.
I will withdraw the amendment in that case.
Amendment agreed to.
I move amendment No. 109:
In page 43, line 39, to delete “or historic” and substitute “, artistic, cultural, including intangible culture, historic, linguistic or traditional”.
Amendment, by leave, withdrawn.
I move amendment No. 110:
In page 43, line 39, after “or” to insert “other”.
Amendment agreed to.
I move amendment No. 111:
In page 44, line 1, after “integrity” to insert “, community”.
Amendment agreed to.
I move amendment No. 112:
In page 44, line 1, after “amenity” to insert “or community”.
Amendment, by leave, withdrawn.
I move amendment No. 113:
In page 44, line 2, after “level” to insert “, and shall have due regard to the advice of the Board, An Chomhairle Oidhreachta and An Taisce”.
Amendment, by leave, withdrawn.
Section 20, as amended, agreed to.
Section 21 agreed to.
NEW SECTIONS
Amendment No. 114 not moved.
I move amendment No. 115:
In page 44, line 33, after “owner” to insert “and by the public,”.
Amendment, by leave, withdrawn.
Progress reported; Committee to sit again.
The select committee adjourned at 5.57 p.m. until 9.30 a.m. on Thursday, 6 July 2023.