Before the debate was adjourned, I was making the point that according to the 2001 survey published by the Heritage Council, 34% of the State's archaeological monuments had been destroyed since 1840. The survey found the destruction was continuing at an alarming rate. Once a monument is destroyed, it is gone forever; it can never be brought back. We have seen such destruction in Wood Quay and Carrickmines Castle. We have had warnings from recent history even with what we saw happening in the attempted destruction of Georgian Dublin, all in the name of modernity. We saw the ill-thought-out road widening that occurred in inner city communities. There were even proposals, which, thankfully, never came to fruition, to fill in the canals. There was pushback from architects, students, housing action campaigns, the Irish Georgian Society and people like Senator David Norris in North Great Georges Street and Uinseann MacEoin in Henrietta Street. When it comes to heritage, it is worth remembering that what can seem like a good idea to some people in one decade can be considered a terrible idea the next decade. Attitudes can change quickly but once heritage is destroyed it is destroyed for ever, so we must take aspects of this Bill very seriously.
I want to outline three key points in respect of the Bill. One is about the power of the Minister to destroy monuments, and the lack of checks and balances in this regard. The second is the claim of ignorance as a defence to destroy a monument. It is a get-out-of-jail-free card. There is a very good recommendation in our pre-legislative scrutiny report on how to deal with that. The third point is the importance of recognising archaeological landscapes, including battlefields, and implementing in full the Valetta Convention rather than just making some references to it.
There has been substantial change in the language used in the Bill compared with the 2004 Act in terms of the demolition of monuments, but the change in language fools nobody. I recognise that great lengths have been taken in drafting this Bill to remove all the highly objectionable wording from the previous Act. Instead of references to "demolish or remove it [a monument] wholly or in part or to disfigure, deface, alter, or in any manner injure or interfere with it" from section 14(a) of the 2004 legislation, we now have, "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" in section 17(5).
I object to the term "a register action". What a way to try and hide, through the misuse and abuse of language, the fact that this Bill will facilitate the Minister to demolish a monument without proper checks and balances. The reference is passive and is to a monument ceasing to be a monument. What a way to conceal what will actually be taking place, which is the destruction of a monument? It will not cease to be a monument just by itself, but because the Minister has actively taken a decision to deregister it and to allow its destruction and demolition. The reference is to the monument ceasing to be, but what we are doing is allowing the Minister to destroy a monument, without checks and balances.
The Bill allows the Heritage Council to act as a point of consultation but, notwithstanding that, all power in the Bill rests with the Minister. How can it be appropriate for all this power to lie with the Minister of the day? The legal entitlement to do so should not be at the disposal of one individual, namely, the Minister. There must be checks and balances. The national monuments advisory council should be re-established. We need independent expert advice. Decision-making should not rest in the hands of one individual. Why would the Minister not want to avail of external expertise? It is generally accepted that most of the recognised leading authorities in the country on the various elements of archaeology are to be found outside of the public service. Specialists are key in each and every different area for different periods and types of heritage. The Minister must consult with them if he or she is thinking of deregistering a monument. To fail to have those safeguards in the Bill leaves us in the same sort of scenario as provided for in the 2004 Act.
The issue is addressed in the joint committee's pre-legislative scrutiny report, but the Minister decided not to take on board most of our recommendations. Recommendation 1 in respect of the relevant head states:
That the National Monuments Advisory Council [as constituted in the original legislation] be re-established and that the proposed 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, and where works to a monument with special protection may cause damage.
This is an excellent recommendation. I urge the Government to take it on board. It was agreed unanimously on a cross-party basis by the joint committee. It is worth noting that there is no cultural or heritage ombudsman. Meanwhile, the courts have made it clear that they cannot intervene on behalf of our national heritage. In the words of the Supreme Court, the 2004 amendment to the National Monuments Act "removed a bundle of protections" from the Act. This was made crystal clear in the decision by the Court of Appeal regarding the 1916 Moore Street site. It was ruled that, despite the monument 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 a matter of purely political assessment. The only concession that seems to have been made in the Bill is that the Minister should refer the fate of a contentious monument to the Heritage Council. I have massive respect for that council and the role it plays but it is worth noting it has only one professional archaeologist and no historian on its staff. One archaeologist cannot be expected to fulfil the role of an independent panel of experts by any professional evaluation. Therefore, the Bill, as currently presented, proposes to maintain the unfettered primacy of the Minister of the day. The Bill in its current form maintains the concentration of power and the negative status quo of the past 20 years.
I have referred to the issue of defences as the get out of jail free card in this. How can anyone be successfully convicted of an offence if this part of the Bill is retained? It effectively allows ignorance of legal responsibilities to be a defence against prosecution. There is a very good recommendation in the pre-legislative scrutiny report on how best to address this, recommendation No. 4. That recommendation states that, rather than the Bill taking a belated monument destruction prosecution angle, it should work on monument destruction prevention and take practical steps towards that. An Taisce has said threatening landowners and farmers with unrealistic fines of up to €10 million or a prison term of up to five years is, in its words, “ridiculous” and that no court in the land is likely, apart from deliberate destruction of the likes of Newgrange, to impose such penalties. Given the number of prosecutions – only nine since 2007 – that is not the best route to go down. I urge the Minister of State to consider recommendation No. 4, which is about prevention and taking proactive steps to prevent ignorance as a defence and prevent the destruction of monuments. That is the way to go.
I will address the use of the word “thing” in the legislation. It appears 154 times in singular and plural. Why use the word “thing”, which is undefined in the legislation, so much? How is “thing”, which the Bill relies on so heavily, defined? The Minister of State may tell us in his closing remarks. If I am not present, I will be listening in. There is a concern the overuse of this word, not properly defined, in so many contexts in the Bill will lead to much ambiguity and could lead to endless litigation. If the Minister of State could address that, I would be grateful.
The Valletta Convention is critical to the Bill. On 13 February 1997 in this Chamber, former Deputy Síle de Valera, on behalf of Fianna Fáil, posed a question to the Minister of State, Donal Carey of Fine Gael, as to why nothing been done about this convention. Twenty-six years later, the question remains valid. Some minor concessions have been made on this in the Seanad. From our pre-legislative scrutiny, there are references to the Valletta Convention in the Bill but the key significance of the convention around landscapes has not been addressed. Archaeological reserves or landscapes are highlighted in Articles 2 and 4 of the convention. Those articles are important. Article 2 states:
Each Party undertakes to institute, by means appropriate to the State in question, a legal system for the protection of the archaeological heritage, making provision for:
i the maintenance of an inventory of its archaeological heritage and the designation of protected monuments and areas;
ii the creation of archaeological reserves [...]
This has not been addressed in the Bill. Article 4 states:
Each Party undertakes to implement measures for the physical protection of the archaeological heritage, making provisions, as circumstances demand:
i for the acquisition or protection by other appropriate means by the authorities of areas intended to constitute archaeological reserves; [This is the key point.]
ii for the conservation and maintenance of the archaeological heritage, preferably in situ;
A "reserve" can only be defined as a delineated area with clearly identifiable boundaries. None of this is addressed in the Bill. I understand the Minister is bringing forward amendments on Committee Stage. It is key these questions are addressed by those amendments. Archaeological reserves and archaeological protection areas should be clearly delineated on a map so we know exactly what we are talking about. If it is not clearly delineated, we do not know the extent of the protected areas. It is essential that be addressed. Where in the Bill will the archaeological reserves be addressed and defined? That is critical. When Ireland ratified the Valletta Convention, we did so in its entirety. Articles 2 and 4 need to be addressed in this legislation and cannot be brushed over.
The joint Oireachtas committee recommended in its pre-legislative scrutiny report that the proposed Bill incorporate principles and requirements as laid out in the articles of the European Convention on the Protection of Archaeological Heritage. There was no suggestion that any of the principles and requirements laid out in the convention would be omitted. Archaeological reserves and landscapes are already a reality in Ireland. Our two UNESCO sites clearly fall into this category. UNESCO highlighted that "The dramatic topography of the island [of Sceilg Mhichíl, which I have had the pleasure of visiting] and the integration of the various monastic elements within the landscape reinforce the uniqueness of the property". Similarly, the UNESCO site of Brú na Bóinne qualifies as an archaeological reserve. The combination of monuments and a broad swathe of protected surrounding terrain is delineated by a very clear formal boundary. The monastic remains only occupy a small area of the island of Sceilg Mhichíl and the tombs at Brú na Bóinne likewise occupy a low percentage of the designated area. Simply put, both World Heritage Sites in the Republic of Ireland are archaeological landscapes, but archaeological landscapes are not specifically protected in the Bill. That needs to be done clearly and explicitly in the Bill. Given that these archaeological reserves or landscapes are already in existence in Ireland, why are their full extents not being afforded proper, clear, unambiguous legal protection in this Bill?
Furthermore, how can we have major battlefields, some of European importance and significance, left totally unprotected in the Bill? For example, the Battle of Aughrim, fought on 22 July 1691 between the Williamites and Jacobites, cost, at a conservative estimate, over 7,000 lives. The bodies of the fallen were never recovered and are thus scattered around the battlefield. What is the full extent of the battlefield? One thing for certain is that it does not enjoy the protection of this Bill in its current form.
Whilst the Bill defines “landscape” as having “the same meaning as it has in Article 1 of the European Landscape Convention done at Florence on 20 October 2000”, it does not explain how these landscapes manifest themselves on the ground. If the boundaries are not defined and delineated then how can they be protected? The European Landscape Convention, also known as the Florence convention, Article 1, provides a definition of a “landscape” as “an area whose character is the result of the action and interaction of natural and/or human factors”. A battlefield, scarred by entrenchments, employment of natural terrain, troop movements, encampments and engagements can clearly be described as a “landscape”. Where are these landscapes identified and delineated in the Bill?
To compound this irony, the Government’s wish list for future UNESCO sites in the Republic of Ireland includes the passage tomb landscape of County Sligo and the royal complex at Rathcroghan in County Roscommon. Rathcroghan or Cruachain was the seat of the ancient kings and queens of Connacht. The complex of monuments extends over an area of about 800 ha. How can UNESCO be persuaded to list the complex of 800 ha if the Rathcroghan landscape is neither recognised nor afforded legal protection in the Bill?
While the Bill contains the vague aspiration “to give further effect to the Valletta Convention”, this is completely insufficient. We cannot accept tokenistic and vague language in this matter. The Bill is called “Historic and Archaeological Heritage Bill”. It should live up to its full title. I will bring amendments to address these issues and look forward to seeing the Minister of State’s amendments as well. I hope the Minister of State is taking these issues seriously. It is important that historical monuments and archaeological areas which are on the register as afforded protection under the 1987 Act are part of the amendments.
