Malcolm Noonan (Carlow-Kilkenny, Green Party) | Oireachtas source

I will respond to all of the amendments in sequence. On amendment No. 8, while I acknowledge the importance of integrating the Valletta Convention into the Bill, in this instance the use of the term "archaeological heritage" as defined there gives rise to several problems. First, it is important to note that the term "archaeological heritage", as currently defined in the Bill, covers an extensive set of structures, sites, objects, deposits, constructions, features and wrecks. It is more comprehensive than what is provided under the Valletta Convention, to the extent that if I accepted the Deputy’s proposal, I would reduce and limit the scope of what the Bill intends to provide for and this would certainly be a retrograde step.

Furthermore, a serious drafting problem would arise, in the context of the Bill, with direct transposition of the definition as set out in the Valletta Convention. This is because that definition does not in any way specify that the sites and structures covered by the definition must be of archaeological interest. While such a requirement can likely be implied into a term from its general context in the interpretation of an international convention under international law, a more precise level of drafting is required in an Act of the Oireachtas creating legal requirements which will fall to the courts to interpret, and direct transposition of the definition used in the convention would simply not be workable. Given that the current definition covers the items that are set out in the definition in the Valletta Convention, and in fact goes beyond what is covered by that convention, and considering the problems that would arise from its use within the Bill, I am not in a position to accept this proposed amendment.

I consider that the amendment proposing to insert a definition of "archaeological interest" is both unnecessary and, given the manner in which the proposed definition has been drafted, unworkable. It is unnecessary because the definition of "archaeology" included in the Bill already makes clear that "archaeological interest" shall be construed in accordance with that definition. It is already entirely clear, therefore, that any person seeking to determine under the enacted legislation whether something is of archaeological interest must refer to the definition of "archaeology". That is the appropriate way to determine whether something is of archaeological interest. The proposed amendment is, in any event, unworkable as drafted. It does not, in fact, provide guidance as to how to determine "interest", but states that "archaeological interest" means certain objects. This is the completely wrong approach to drafting and is ungrammatical. Physical things have an interest or are of a particular interest; they cannot be the particular interest in and of themselves. Moreover, and in any event, the amendment would undermine the structure of the definitions contained in the Bill under which "historic heritage" is used as an overarching term. For all of these reasons, I cannot accept the amendment.

The definition of "architectural heritage", as used in the Bill, mirrors that in use for well over 20 years under the Architectural Heritage (National Inventory) and Historic Monuments (Miscellaneous Provisions) Act 1999. While I would accept that the context is somewhat different in the Bill, which provides for legal protection and not just inventories of heritage, I believe the existing definition is a comprehensive one, closely adhering to that contained in the Council of Europe's Convention for the Protection of the Architectural Heritage of Europe, known as the Granada Convention, insofar as possible within a domestic legislative context.

Regarding amendment No. 10, while the Deputy's suggestion appears workable, given that moveable cultural heritage falls into the portfolio of the Minister for Tourism, Culture, Arts, Gaeltacht, Sports and Media, I request the Deputy to withdraw this amendment for the time being. Following consultation with the National Museum and the Department of Tourism, Culture, Arts, Gaeltacht, Sports and Media, we will consider this matter with a view to furthering the discussion on Report Stage.

Regarding amendment No. 12, following discussion with the Parliamentary Counsel, it is difficult to identify what, if anything, a reference to "context" would add to the term "setting". It is generally considered poor drafting practice to insert multiple words where one word covers the matter. This can often lead to uncertainty in the implementation of legislation. If the Deputy can provide clarity as to what he might consider the proposed amendment would add to "setting" - he mentioned the Moore Street national monument - I will review the matter in advance of Report Stage. As the matter stands, I must oppose the amendment.

Turning to amendment No. 61, given the Government amendments previously discussed that introduce "cultural interest" into the scope of the Bill, I again ask the Deputy if he would consider withdrawing this proposed amendment.

Moving on to Deputy Cian O'Callaghan's amendment No. 11, I welcome the interest shown by the Deputy - great interest has been demonstrated in this regard - in the concept of "Archaeological Reserves" as provided for under the Valletta Convention. I will not, however, be able to accept these amendments for a number of reasons, which I will now explain. Amendment No. 11 is not necessary because section 14(4)(a)(ii) of the Bill already provides clear powers to include in an entry in the register of monuments a surrounding area, including by reference to the need to protect:

any other prescribed monument or relevant thing of a relevant interest which, taking into account the type of monument or thing which the first-mentioned monument or thing, as the case may be, is, it would be reasonable to consider might be in the vicinity of the first-mentioned monument or thing.

This surrounding area becomes, in law, part of the registered monument. Section 8(2) of the Bill provides:

A reference in this Part [that is, Part 2 of this Bill] to a relevant thing of a relevant interest includes a reference to a site where the Minister reasonably believes that there may be a relevant thing of a relevant interest.

The Bill therefore already clearly includes provision for the entry into the register of monuments of areas of subsurface archaeological potential, even where such potential has not been definitively established, and once so entered all the powers applicable to registered monuments, including the power of ministerial acquisition or guardianship, will be available in relation to them. This is all in addition to the fact that the Bill, for the first time, will provide automatic protection for classes of prescribed monuments, even before they have been discovered or entered in the register of monuments.

In my view, this achieves all the aims and requirements of the relevant provisions of the Valletta Convention in relation to archaeological reserves. It is not necessary for the exact language of the convention to be used in the Bill. What is essential is that the outcome required by the convention be achieved, and in that regard, and for the reasons I have stated, I am satisfied the Bill meets those requirements.

This brings me to my second principal reason for opposing amendment No. 11, which is that it would undo the important achievement of the Bill in reducing and simplifying the confusing and overlapping terminology in the existing National Monuments Acts, which has caused so much uncertainty and confusion for many people in the heritage sector and for all those who find themselves dealing with the existing law in this area. Not only would the proposed amendment be unnecessary, but it would also move us back to a situation where confusion and uncertainty were arising from superfluous and overlapping terminology. I must therefore oppose this amendment.