Oireachtas Joint and Select Committees
Thursday, 27 January 2022
Joint Oireachtas Committee on Housing, Planning and Local Government
General Scheme of the Monuments and Archaeological Heritage Bill: Department of Housing, Local Government and Heritage
Steven Matthews (Wicklow, Green Party)
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I welcome everyone to the committee. Today we begin pre-legislative scrutiny of the general scheme of the monuments and archaeological heritage Bill. We are joined by the Minister of State at the Department of Housing, Local Government and Heritage, Deputy Noonan, who I welcome. He is accompanied by officials from the National Monuments Service: Ms Emer Connolly, director; Mr. Michael MacDonagh, chief archaeologist; Mr. Seán Carpenter, assistant principal; Ms Nessa Foley, assistant principal; and Mr. Seán Kirwan, senior archaeologist. Members have been circulated with the briefing note, the general scheme and overview of the proposed Bill and the Minister of State's opening statement through Microsoft Teams.
I remind members of the constitutional requirement that they must be physically present within the confines of the place where the Parliament has chosen to sit, namely, Leinster House, in order to participate in public meetings. Those attending remotely from within the Leinster House complex are protected by absolute privilege in respect of their contributions to today's meeting. This means they have an absolute defence against any defamation action for anything they say at the meeting. For witnesses attending remotely from outside the Leinster House complex, there are some limitations to parliamentary privilege. As such, they may not benefit from the same level of immunity from legal proceedings as a person who is physically present within the complex. Members and witnesses are expected not to abuse the privilege they enjoy, and it is my duty as Chair to ensure it is not abused. Therefore, if their statements are potentially defamatory in relation to an identifiable person or entity, they will be directed to discontinue their remarks, and it is imperative that they comply with any such direction.
Members and witnesses are reminded of the long-standing parliamentary practice to the effect that they should not comment on, criticise or make charges against a person outside the Houses or an official either by name or in such a way as to make him or her identifiable.
I invite the Minister of State to make his opening statement.
Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I thank the members of the committee for affording us the opportunity to brief them on the proposed monuments and archaeological heritage Bill. The Chair has outlined our officials. I welcome Emer Connolly, the recently appointed director of the National Monuments Service; Michael MacDonagh; Seán Kirwan; Nessa Foley; and Seán Carpenter, who recently joined our team as well. I am delighted to have the opportunity to discuss the Bill’s general scheme, which was approved by the Government on 30 November 2021, and I thank the committee for the speed with which we are now able to commence the pre-legislative scrutiny process.
The proposed monuments and archaeological heritage Bill is important legislation that has been in development for a number of years. It both revises and replaces the existing legislative framework, which is nearly 100 years old, and introduces a range of innovative provisions to help bolster some of the systems and processes currently in place. Overall, it seeks to provide for the effective safeguarding and conservation of our treasured archaeological heritage. It is my hope that if enacted, it can continue to protect our monuments for another 100 years to come.
The National Monuments Act 1930 was inventive and forward-looking in its time, as were the various amending Acts over the decades. However, those multiple amendments, combined with multiple transfers of functions, have left us with fragmented legislation that is far from being easily accessible and comprehensible. Moreover, the legislative scheme as it stands leaves some significant gaps and is unclear and inconsistent in significant areas. These include overlapping systems for protecting monuments, lack of clarity in some key definitions, overlapping licensing requirements, absence of any protection for new discoveries of archaeological monuments and a lack of clarity as to the role of the Office of Public Works in regard to the management of the portfolio of national monuments in the care of the State. The proposed legislation aims to address all of these structural issues, as well as to provide a single accessible item of legislation.
One of the core purposes of the proposed Bill is to protect monuments and the first of several innovative ideas to be found in the general scheme is the concept of a prescribed monument. Regulations to be introduced under the enacted Bill will set out classes of structures and sites that are of archaeological interest and these structures and sites will then become prescribed monuments. The purpose of this approach is to ensure that newly-discovered archaeological sites have immediate protection, thus ending one of the major inconsistencies in existing legislation.
The term "prescribed monument" is one of two terms that when grouped together will define what a "monument" is under the proposed Bill, the other being a "registered monument". A "registered monument" will refer to something entered into a newly established register of monuments. In general, any structure or site that is of archaeological, architectural, artistic, historic or traditional interest may be eligible for entry into the register. When we refer to monuments under the proposed Bill, we refer to prescribed monuments and registered monuments. This is but one example found throughout the general scheme where attempts are made to simplify terminology and definitions, especially because some of the terminology under the existing National Monuments Acts can be confusing and inconsistent in places.
Ireland ratified the 1972 UNESCO World Heritage Convention in 1991. Part 3 of the proposed Bill will define the term “world heritage property” in Irish law for the first time. Importantly, there are a number of other significant international conventions that can be given effect to under the proposed Bill, should Government decide to ratify them. These conventions cover matters of global importance such as the illegal trade of stolen cultural property and the protection of underwater cultural heritage.
The intricate licensing and consent requirements provided for under existing legislation are to be replaced by a single integrated licensing system, thereby ending the situation whereby a single activity might require several different licences or consents. Furthermore, an appeal process for licensing decisions is to be introduced for the first time. This new licensing system is an example of the intention to have legislation that is innovative yet balanced, promoting regulatory reform and procedural fairness while at the same time strengthening heritage protection.
As things stand, criminal proceedings are the only enforcement option available to authorities. The planned enforcement notice system will be a major innovation that will see workable and robust civil enforcement powers that can be introduced to aid enforcement and help ensure compliance with the legislation without the need for criminal proceedings.
Throughout the development of the general scheme, there has been detailed engagement with other Departments and a range of key stakeholders. I acknowledge the broad support the general scheme has received to date. Please be assured that, where required, my officials will be in contact with their counterparts in other Departments and with other organisations as the Bill is developed and drafted.
My officials and I welcome the questions committee members may have. I will ask the officials to respond to a number of them. We look forward to the questions and to ongoing engagement with the committee. The committee has always been very proactive in taking a very comprehensive view of legislation brought forward. We look forward to this engagement in the coming weeks.
Paul McAuliffe (Dublin North West, Fianna Fail)
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I welcome the Minister of State. Sometimes the committee is dominated by the housing issues that are crucial for many people. It is fantastic to have time to dedicate to the heritage part of the portfolio, particularly in the context of new legislation being proposed.
I will use two sites as examples. The Minister of State might explain how the proposed legislation may benefit the protection of these two monuments. I do not expect the Minister of State to have all of the specific details. The national monument on Moore Street is a very important site and it is the national monument that is most referred to. Dublin City Council has given permission for development in the curtilage of the national monument. There is also the battlefield site. Will the Minister of State use these sites to explain some of the benefits of the new legislation? How will such sites be protected? There was a huge campaign by civic society to protect not only the core headquarters but also the surrounding buildings and laneways. Will the Minister of State use these sites as an example to speak about the benefits of the legislation? How will the Bill protect other sites? Does the Minister of State have comments on the specifics of how we will protect Moore Street and the plans to roll out the opening of an interpretive centre there?
Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I thank the Deputy for his question. We are aware there is already a national monument at Nos. 14 to 17 Moore Street. Works are ongoing to put funding in place to develop it and for the conservation and interpretation of that site. There is already protection in existing legislation for sites such as Moore Street. Where the Bill would have a role is that there are added elements in terms of licensing for works around the curtilage of such sites. There is an innovation in the Bill with regard to sites of archaeological interest and sites that could be described as prescribed monuments. If they are identified by members of the public to the national monument service, they will be provided a level of protection once they are on the register of monuments. This is one of the key innovations in the legislation with regard to other sites. I will ask Mr. MacDonagh or Ms Foley to give more detail on this.
Mr. Michael MacDonagh:
I thank the Minister of State. There is a wide scope of what can go in the register. At this stage of the Bill we take a general view of issues. I assure the committee and everyone there is a wide scope of what can be entered in the register which would afford various levels of protection. I do not know whether one of my colleagues wants to speak on this in particular. I invite Mr. Kirwan to speak.
Mr. Seán Kirwan:
What Mr. MacDonagh has said about the wider scope is correct. One of the gaps in the existing legislation is that before a preservation order is made, in addition to showing something is of national importance, the Minister must be satisfied that something is under a specific threat. The new legislation would assign a high level of protection and this would allow a more proactive approach, subject to resources being available to select sites and being appropriate in a particular case. Sites could be entered in the register and assigned the highest level of protection on a proactive basis well in advance of any particular issue emerging in regard to them. This would be significantly stronger than where we are at present. Not only does the Minister have to show or be of the opinion that something is of national importance at present, he or she must also take the view there is a specific threat to it. The new legislation will certainly allow a stronger and more proactive approach and clear up any doubt as to what can be included in the register and the wide scope of it.
Paul McAuliffe (Dublin North West, Fianna Fail)
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Is there an update on the specific proposals for the opening of an interpretive centre at the national monument on Moore Street?
Paul McAuliffe (Dublin North West, Fianna Fail)
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I am probably reaching the end of my time slot. Perhaps we might reserve for private discussion a specific proposal on this particular national monument. It probably does not fall within the scope of this pre-legislative scrutiny session. I appreciate the witnesses providing us with additional information. We might return to it in a different format.
Steven Matthews (Wicklow, Green Party)
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I will be happy to do that. There is absolutely no problem. For the meeting today I ask that we concentrate on the pre-legislative scrutiny and the general scheme of the Bill before us. Members can use examples to highlight something in the general scheme.
Aengus Ó Snodaigh (Dublin South Central, Sinn Fein)
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Gabhaim buíochas leis an gCathaoirleach agus leis an Aire Stáit as an gcur i láthair. The Bill has been a long time coming. I remember it being on the list of promised legislation in 2002. At least we have the heads of a Bill. I have gone through them and good work has been done.
There have been additions and clarifications.
In terms of the point that has just been made about the curtilage, it is not just the curtilage but the surrounding area, which suggests more than a curtilage in head 9. That would have probably saved a lot more buildings on Moore Street than is suggested at the moment but I am not going to dwell on Moore Street as we had discussion previously.
As well as the modernisation of legislation and defining the licensing process, which is welcome, there is no definition of a "monument". It is a building, mound or structure for most people. As far as I know, there are national monuments that are artefacts. Perhaps the Minister of State will tell me whether the Book of Kells is a national monument; we know that it is a national treasure. If that is the case then it would be appropriate to have a greater definition than what we have at the moment because it just states: “monument” means – (a) a registered monument, or (b) a prescribed monument'. The definition does not say what the monument itself is but maybe that is an oversight.
It is good that there is now a proposed list of preserved or protected buildings. There is a need for the relationship between the list that the State will have, as in the national monuments list, and those that the council often holds, which are specific buildings and might not be as important as national ones but there needs to be some relationship or connection.
There is nothing in the Bill thus far regarding a crime. I ask that a crime be created to make it illegal to hide a discovery because of the increase in building works around the city. We know that in the past there were occasions when building works happened and to avoid delays, because of archaeological digs and the like, some builders papered over the cracks, laid concrete or removed material. It is a crime to interfere with archaeological artefacts and I am concerned about this.
With regard to territorial waters around Ireland, we have a 12-mile, 50-mile and 200-mile limits. So far only the 12-mile limit has been mentioned in pre-legislative scrutiny.
Finally, throughout the Bill reference is made to the board of the National Museum rather than to the director and I do not know whether the director would be active. The board only meets once a month or once every two months and I do not know whether the board would have the capability to deal with some of the proposals in the PLS, which will require faster action.
Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Certainly there is a definition of "monument" in the Bill and that is clarified. I refer these three questions to Mr. Carpenter.
Mr. Seán Carpenter:
I thank the Deputy for his questions. The general scheme refers to a monument being either a prescribed or a registered monument. The idea here is to simplify some of the terminology that we use. A prescribed monument is basically going to be a relevant thing and it will be a broad definition. Structures and sites that are of archaeological interest will be eligible to be prescribed and, therefore, the Minister will set out regulations and they will define what a prescribed monument is.
By way of background, the idea is to fill a gap in the existing legislation where newly discovered monuments, in many cases, do not have any legal protection afforded to them until they are designated a monument. The idea here is that by prescribing them we will be able to afford that level of legal protection to them before they are even discovered as such.
Second, there is registered monuments. Again, it is a relevant thing so we are talking about structures and sites. The definition is slightly broader so as opposed to just being of archaeological interest, it will be of relevant interest. We are talking archaeological interest, architectural interest, historical interest, etc. Those two terms are defined in head 2. Either those prescribed monuments or the registered monuments will be what we are talking about when we refer to a monument in the actual Bill.
Under head 8, when it comes to the prescribed monuments there will be a requirement to report finds of prescribed monuments. Again, we will set out in regulations exactly how that is meant to happen. The idea will be that within something like a 72-hour period after finding, or believing one has found, a prescribed monument that it will have to be reported to either the Minister or the Garda Síochána.
Finally, regarding underwater cultural heritage, our territorial waters and the contiguous zone, etc., at the moment we have the 12 nautical mile and 24 nautical mile jurisdictions where we can apply some of the laws as if we are dealing with archaeological objects and monuments on land. What we are hoping to do is make provision for the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage. That will extend the scope out to a 200-mile radius where either certain relevant people, be it a captain of an Irish registered ship or an Irish resident, if they are engaged in certain activities or if the discover underwater cultural heritage they will be obliged to report those finds to the Minister. I hope that those provisions will widen the scope of what we can do in the context of protecting underwater cultural heritage.
As regards the question on the board of the National Museum of Ireland and the director, I ask Mr. Kirwan to provide some background.
Mr. Seán Kirwan:
The Deputy is entirely correct to point out that there is a change in what is proposed from the existing legislative scheme where the National Museum, when it is referred to, will be referred to in terms of the director of the museum. By way of explanation, the existing National Monuments Acts are quite old and go back to 1930, and there have been several Acts since. Most of their provisions were enacted before the National Museum had been set up under the National Cultural Institutions Act 1997 as a body outside of the Civil Service with its own board. It was considered appropriate in the drafting the general scheme that we should reflect that in formally assigning powers. I mean that the museum will have those and formally assign those to the board. In the detailed drafting of that I would expect that there would be provision to deal with the point that the Deputy raised about the board being able to authorise the director to carry out certain functions on behalf of the board so that there would not be any lack of continuity. The director would have powers on an ongoing basis, or other authorised officers, to deal with the day-to-day implementation of the legislation.
Steven Matthews (Wicklow, Green Party)
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The Deputy asked how the Book of Kells is classified.
Mr. Seán Kirwan:
It would certainly, I think, meet the definition of archaeological object under the existing legislation. We would anticipate that it would do so under the new legislation. There is, under the existing legislation and will be under the new legislation, two parallel streams of protection. There are monuments of various kinds and there are also moveable objects, which when they meet a definition of archaeological object have quite a high level of protection. Under existing law and under what is proposed here it is a criminal offence to alter an archaeological object without a licence, in practice issued by the National Museum. We would anticipate that would continue under the proposed scheme. Certainly, the definition of archaeological object, and I will not go into the detail, but any object that really has a greater value by reason of the archaeological interest attaching to it, and that is its own intrinsic value, which is the core of the definition, would be an archaeological object and is under existing law. I think that the Book of Kells would certainly likely fall into that and be subject to a licensing requirement.
Steven Matthews (Wicklow, Green Party)
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We will move to the Fine Gael slot.
Mary Seery Kearney (Fine Gael)
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I thank the Chairman and the Minister of State for the briefing information on this. I will return to the ordinary and everyday. We are on a building drive. There is momentum towards providing additional housing and looking at areas. Bodies like the Land Development Agency are taking over areas that have been perhaps lying there for years. Places of interest are now more likely to be discovered. I heard the Minister of State speaking about the discovery of a new or potential national monument. What is the process there? How does Mary Bloggs know that she has triggered into this situation? I would like the Minister of State to walk us through an understanding of that, please.
Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I thank the Senator for her question. I will ask Mr. Carpenter to come in on that point. It is a very good question.
Mr. Seán Carpenter:
I thank the Minister of State and the Senator. There will be a process to be followed after the finding of prescribed monuments. There will be a requirement to make a declaration within a specified timeframe. It is proposed that it will be an offence if this declaration is not made. At the same time, defences will be available to people if it is not perhaps clear that a prescribed monument has been found. On the process, once the information has been supplied, the Minister or An Garda Síochána will issue a request to the findee, perhaps requiring additional information about the circumstances of the find or some more details around the structure of the site. That will be due to be returned within a specified timeframe. That might lead to an actual inspection of the area, structure or site that is believed to a monument. The process that has to be followed will be clearly set out under the proposed Bill.
Mary Seery Kearney (Fine Gael)
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It is the process of the declaration that I am raising. How do you know you have triggered the need for a declaration? That is the point I am curious about. I have had the experience of being involved in a project that was building homeless accommodation on a site in Dublin 2 that was thought to have been sterilised. It was believed that the previous foundations had been put in there, two builders had gone bust and it was just concreted over and turned into a car park. It is in Dublin city centre, and when the builders went in to put in the foundations for a six-storey development, they turned up a mortmain - it had been a previous famine burial ground. As we were in Dublin city centre, we had an archaeologist on site. The whole project was halted for a six-month period as archaeologists worked on it. My question relates to people who will eventually be working on developments at places like the railway works in my home constituency of Dublin South-Central. How will they know they have triggered the need to make a declaration and how will that come about?
Mr. Seán Carpenter:
There will be liaison with planning authorities to assist. It is the find or the suspected find that will trigger the beginning of the timeframe within which the person will be expected to report the find to the Minister or An Garda Síochána. I will ask Mr. Kirwan if there is anything to add to this as to how that trigger might come into force.
Mary Seery Kearney (Fine Gael)
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I would like to know whether there are obligations on particular professional entities on site. I was also involved in the refurbishment of St. Catherine’s Church on Thomas Street from a derelict state to its current condition where it is operated by the Church of Ireland. A skull was found in it. That triggered the calling of An Garda Síochána. It is this kind of thing I am trying to get to here. How does one know that this is something that has to be acted upon and in respect of which a declaration has to be made? If one is at risk of a criminal offence if one proceeds, I imagine that there would be an anxiety regarding how to proceed.
Mr. Seán Kirwan:
That is a very important issue in the implementation of the legislation. A job of work will need to be done in developing guidance and information that could be made available to everybody in all sectors, including farmers, developers and those who are involved in working on land. There will have to be an education process as part of that. It is not just a case of putting something on the Statute Book that people are expected to know how to apply. There will be a great job of work needed over some years to make this fully effective by issuing guidance and developing knowledge and awareness.
Touching on the point made by Mr. Carpenter, the planning process will remain of great importance in trying to pre-empt some of these unexpected occurrences through requests for further information and appropriate archaeological conditions in the granting of permissions. This provision seeks to focus on the unexpected discoveries that the Senator is talking about. The key will be to get information out there to explain the position to people and to increase awareness. That is how this will operate in practice.
Mary Seery Kearney (Fine Gael)
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That is great. I look back to the summer of 2019 because Covid-19 has bled us all of everything since then. With the really good weather, all sorts of potential monuments became apparent, including some of the ÉIRE signs that are sometimes visible as one flies in over Ireland. They date back to the Second World War. They became apparent even though they had not been previously apparent, even to the landowners. We can make an association with the obvious monuments such as Moore Street, but I am referring to other monuments when I ask how farmers will know how to proceed. I take Mr. Kirwan’s point that there is a great deal of work to do. I thank Mr. Kirwan and Mr. Carpenter for their replies.
Steven Matthews (Wicklow, Green Party)
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I thank Senator Seery Kearney. She has raised an interesting point. If the site has a requirement for an environmental impact assessment, EIA, it might trigger some kind of archaeological or cultural assessment. If a site does not have such a requirement, what triggers the EIA? It may not be there. We may have sites which depend on the guy with the JCB identifying that they are of importance. How will they be able to do so? I am sure there are many sites where items have been missed. Having made that comment and having thanked Senator Seery Kearney, I call Deputy O’Donoghue.
Richard O'Donoghue (Limerick County, Independent)
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I thank the Chairman and the witnesses. My background is that I am in construction. I work on the restoration of listed buildings in certain cases. The most recent building I worked on was Kilmallock Credit Union at the former An Post site in Kilmallock. It was a two-year project to return it to a workable status so it could be used within the community. I employ the lad with the JCB whom people are talking about. If he meets something during this work, I would have that responsibility. I love our history and all historical issues and I like to see things preserved.
An issue arises from the time a person meets something like this during the course of his or her work. The hill behind my house is called Knockfierna, which means "the hill of the truth". On the top of this hill, there are many masts providing Internet connections for people around the county. What age does something have to be in order to be considered a monument? Is it 100 years? There are many buildings within County Limerick which are historical to the area but are not listed. Equally, there are many listed buildings that will fall down and become obsolete because of a lack of investment. Who is responsible for this? Who will fund it? Is it the case that when one encounters an issue like this, one contacts the local authority? My experience with the local authority is that its staff in this area, including Tom Cassidy and Sarah McCutcheon, are overloaded with work at the moment. The staffing levels are not there for people to come out and look at historical sites.
What age does something have to be before it is considered a monument?
Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I will ask Mr. Carpenter to come in on that. I do not believe there is a specified date within the existing legislation or in the new proposed legislation structures. Something built after 1700 can still be considered classified as a monument. I will ask Mr. Carpenter to elaborate on that.
Mr. Seán Carpenter:
We return to this concept of a relevant thing of relevant interest. It is set out in head 2 of the Bill that relevant things are those such as artificial structures, shipwrecks, ritual or ceremonial sites, any sites where an historic event took place, or sites with legendary mythological associations. We have quite a broad definition of what a relevant thing may be. For a thing to be considered a prescribed monument there must be a level of archaeological interest associated with it. No date range is specified, either under the existing legislative framework or the proposed legislation. When we talk about registered monuments, it is wider again. We are talking about the relevant things, but with the relevant interest we are referring to archaeological, architectural, artistic, historic or traditional interest. Once those criteria are made, they are eligible to be either a prescribed monument or to be entered into the register of monuments. There will not be any date to specify that.
Richard O'Donoghue (Limerick County, Independent)
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Using Kilmallock as an example, some parts of Kilmallock are 14th century, depending on which section of the town one looks at. The older part of the town is 14th century and up to the 1700s or more. My job as a public representative is to get people back into the towns and villages even if there are historical monuments. Some of these historical monument designations are now being brought into houses under the listing of the local authorities, for example where a ceiling in a house is listed. From the point of view of me getting investors into a town or village, consider the situation where a whole town or village is saying that everything is a monument or historical. Then we will get nobody to come back into our historical streets where people had lived, and where we want people to live now. I am afraid that this will put on another layer, and slow down the redevelopment of historical towns. There has to be a cut-off point with regard to what is a historical monument. The post office in Kilmallock was a historical monument. It has been brought back into use and now the credit union is there. It has retained its old state and it is fantastic to see it being reused. There are other places within the town, however, where people were trying to move into them and could not get insurance in one part of the house, and the cost of doing up the listed part of the house far outweighed putting on a new extension to the back of it, where the historical face could have been kept along with the roof structure. I am afraid that a whole town or village could be listed as a monument and we would have towns going derelict. Is my concern an overreach, or is this something that could happen?
Mr. Seán Carpenter:
Some of the logic or the reasoning behind these definitions being as broad as they are is, as the Minister of State referred to earlier, because we are hoping that this legislation will be in place for a long time, if it is enacted. We want these definitions to be broad so we can take account of different policies, and that we would not have to worry about having to amend the legislation. It is important that whatever is defined under the current legislative framework would be transferred over to the proposed framework so that nothing would drop out. The definitions will provide for relevant things of relevant interest, but this just means that they will be eligible to be a prescribed monument or entered into the register of monuments. It will not be an automatic entry. It will probably come down to the policy at the time as to what is prescribed and what is entered into the register.
Richard O'Donoghue (Limerick County, Independent)
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Who will answer those questions for us then? For example, will the local authority have the go-to person to answer those questions if a planning application calls for building within a historical monument? Is it up to the local authority? Who will be the go-to person for me in Limerick so I can pick up the phone to call the local authority? Who will be responsible? Will I be going to the local authority who will then send me on to another department, which then becomes a recurring cost for everyone? I want to know who the go-to person will be and who will answer the question so that it does not take months and months to find an answer. I want to know who will have the determination and responsibility to answer our questions.
Mr. Seán Carpenter:
That could be one of the advantages to the inventories that are also proposed under the Bill. This would have lists of archaeological and architectural sites available online to members of the public, as opposed to having the register of monuments, which would have different levels of legal protections assigned to them etc. The idea behind the inventory is that it is just a list one can consult. It would be available online. Whether a person wants to look at the list of archaeological structures or sites or architectural structures or sites, he or she would be able to go to that inventory and search to hopefully get the information that is required.
Richard O'Donoghue (Limerick County, Independent)
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Will a person answer that? Will there be a department or somebody who would answer queries? It is grand going online but who would be the definition of that when a person goes online and has a small concern that cannot be answered online?
Steven Matthews (Wicklow, Green Party)
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I will move to the Green Party slot, which I will take. This is welcome legislation for the reasons the Minister of State outlined in his opening statement. It will replace, or tidy up, the 1930s legislation. The committee recently dealt with other 1930s legislation, which was the Foreshore Act 1933, where the Maritime Area Planning Act 2021 was brought in. The new Act is fit for purpose, is modern, and will allow us to address the needs we have.
The overview of the general scheme of this Bill that was prepared by the Minister of State's officials, I presume, refers to several systems currently existing for listing, for measuring or for monitoring. Is there a number of archaeological sites, prescribed sites or registered sites held by many different groups out there, that the national monumentsservice must collate and bring all together? Is that part of the work or does the Minister of State have knowledge of all of the sites within his Department?
Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I will ask Mr. Kirwan to take that.
Mr. Seán Kirwan:
I thank the Minister of State. That is an important question with regard to the implementation of the Act. Obviously, we are not starting from square one because we have the existing mechanisms, as has been mentioned. One mechanism was established under the 1994 legislation, which is a record of monuments and places. This has circa 130,000 entries. There is also the register of historic monuments, which has 5,000 entries. There are also several hundred preservation orders in force. In implementing the legislation we will be drawing on our own resources and all of the data we have from those registers and records. We also maintain the historic environment viewer, which is an online and completely accessible database of all the known archaeological sites and monuments in the State, which we maintain in the National Monuments Service. We will be bringing all of that data together to compile the new register of monuments and, as Mr. Carpenter mentioned, new inventories, which do not confer statutory protection but do give people knowledge of what is there. Out of that, a subset of those inventories would be the new registry of monuments. All of that data is there, but there are new discoveries coming in all of the time. We constantly have to update. There is a huge amount of data already there that we will draw together.
Steven Matthews (Wicklow, Green Party)
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There was mention of wrecks and ship wrecks. The national marine planning framework mapped the shipwrecks around the coast. Is that information drawn from National Monuments Service sources or from somewhere else that requires the service to pull that into the database now?
Mr. Seán Kirwan:
That would have been drawn from our own wreck inventory that we maintain and make available online on our website. That material is there. One of the innovative aspects of the proposed legislation will be trying to integrate the protection of wrecks with the protection of monuments. Since 1987, when we had the first legislation to protect our underwater cultural heritage in Ireland, these two streams of the dry land monuments and the wrecks have run separately.
We are bringing "wreck" into the definition of monuments so it can be included. There will be a statutory inventory but a wreck can also be brought into the register of monuments as well as having automatic protection. We are hoping to streamline and bring it in. To answer the Chairman's question, yes, those data are coming out of work that we have carried out.
Steven Matthews (Wicklow, Green Party)
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Is there mention of classes of sites of archaeological interest? With our protected structures category, it is either protected or it is not. In the UK they have a different grading of protected or listed structures. Is it proposed that we would have classes of archaeological sites that would have different levels of protection or different works that might be carried out on them or close by?
Mr. Seán Kirwan:
That is a key question about the structure of the legislation. To summarise, we will have two levels of protection. The first is called general protection whereby someone who wants to do work has to give three months' notice to the National Monuments Service, in effect legally to the Minister. That will apply to the prescribed monuments that are subject to regulations set out by the Minister. It will be the default for what goes into the register. The Minister will also have the option to elevate sites that are on the register to "special protection", whereby a licence is necessary in all cases to carry out work.
It is the aim that the legislation will set out criteria as to what would be elevated to special protection. Returning to a point noted earlier, one of the key things in the new legislation is that those decisions about what gets special protection can be made proactively rather than as at present, where we have to wait until the monument is threatened before we can consider making a preservation order and making it subject to a consent requirement. We will actually be able to adopt policies and practices at an early stage as to what is going to get the higher level.
Steven Matthews (Wicklow, Green Party)
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Following from Deputy O'Donoghue's question, when county development plans or local area plans are being prepared, they will always show a map identifying the structures in the area that are listed in the register of protected structures. Is it compulsory to include mapping of archaeological sites in county development or local area plans? Will these two designations of general protection and special protection have different indications in those plans? Would Mr. Kirwan see that bringing all these data together and managing the system might allow for better notification in advance that while land may be zoned for residential, it is a site of archaeological interest or special interest? Is that mandatory in a county development plan?
Mr. Seán Kirwan:
As matters stand, it is a point of planning law rather than national monuments law. Under section 10 of the Planning and Development Act 2000, however, there is a mandatory objective for protecting archaeological heritage. It does not go into that level of detail in terms of setting out the kind of mapping or how things are to be listed in development plans. There are ministerial guidelines going back some years and issued by the Minister under the Planning and Development Act. Regarding development plans, those do deal in some detail with addressing archaeology in development plans. In the National Monuments Service, we have been working with our colleagues in the planning section of the Department to further revise those provisions, maybe having a particular set of guidance on archaeology and planning. Some of those issues are very important but they would be more a matter for planning guidance rather than something going into the legislation.
Steven Matthews (Wicklow, Green Party)
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This is something the committee might consider in the context of the review of the planning system that is ongoing at the moment in order to assist and add to what the National Monuments Service is trying to do in this Bill. I thank Mr. Kirwan and will move on now to Deputy Cian O'Callaghan.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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The Bill is very welcome. It replaces all the previous legislation around national monuments. The 2004 legislation, for example, will be gone. Is that the case? It is. On transitional arrangements under head 28, how long is it envisaged that they will be in place? Could it be a number of years?
Mr. Seán Carpenter:
There will be a lot of transitional provisions required under the proposed legislation just because it is revising and replacing such a broad number of provisions. One of the key timelines is how long it will take for the existing records of monuments and places, register of historical monuments and so on to transfer over to the new register of monuments, and how that will take place. A lot of this is operational details that we have to still take into full consideration. At a rough estimate, we could be talking about three years to move from where we are now over to a fully finalised register of monuments. That might not be done in one fell swoop. We might potentially look at doing it by specified geographical areas, depending on what is operationally possible.
As Mr. MacDonagh points out, the Bill if enacted now would not have any effect in that the different provisions will come into effect by way of commencement orders. Even if we do repeal the 1930 Act and amending Acts, they will continue to be in force in respect of the monuments in the existing portfolio or the designated monuments under the existing legislation until a ministerial order is made on a certain date stating that from that date, the old legislation ceases to apply and the proposed Bill comes into effect. As Mr. Kirwan points out, there are tens of thousands of these structures and sites to be processed and reviewed. I would say perhaps three years but it is very hard to put an estimate on it.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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Head 16(3) provides for the proposed demolition of a registered monument. Can Mr. Carpenter explain who is the decision-maker in the case of a demolition? Is it that the person applies for a licence or is it through the planning process? Does it require approval from the Minister or from the National Museum? What is the process?
Mr. Seán Carpenter:
It would be counted as works to the monument. That concept of works is defined under head 2, I think. It means any act and is quite extensive, including demolition, renovation, refurbishment and so on. If a monument is subject to general or special protection, works cannot be carried out unless consent has been given either through a notice procedure or a licence procedure. What we are talking about under head 16 is an automatic environmental impact assessment, EIA, requirement; regardless of what type of demolition or what type of monument we are talking about, if consent is given for whatever reason, then head 16 will specify that an environmental impact assessment will be mandatory.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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The Minister can decide if special protection can be awarded. Can a subsequent Minister then remove that special protection status? Once it is given, is that permanently locked in? Can it be rescinded?
Mr. Seán Carpenter:
Under circumstances, yes. There will be automatic special protection for certain monuments. Registered monuments in the ownership or guardianship of the Minister or local authority in most cases will have special protection automatically assigned to them. As far as I know, the intention would be that there will be an option - I am not sure if "downgrade" is the word - to move and change the particulars in the register from special protection to general protection if there is a requirement to do so. The short answer would be yes.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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What are the checks and balances on that because it is a lot of power to confer on the Minister? Does all that power reside with him or her without checks and balances?
Mr. Seán Kirwan:
I do not believe the general scheme sets the detail of consultation procedures when making those decisions. It is certainly something that could be looked at during drafting. There used to be a body called the National Monuments Advisory Council whose functions are now vested in the Heritage Council. It is the statutory adviser to the Minister under the existing legislation. If there are concerns about issues such as the downgrading, that will be provided for. I would not see it as something that would occur very often but provision would probably be made so that something could be moved from special protection down to general protection.
One option that could be considered in the final drafting would be to insert a requirement that the Minister would consult the Heritage Council, for example, before doing that. That would be analogous to the existing position if the Minister is considering removing an existing preservation order on a national monument. The existing Act provides that the Minister will consult with the advisory council. As I said, that used to be the National Monuments Advisory Council and is now the Heritage Council. In effect, the Minister must consult the Heritage Council before taking that step. There would certainly be scope, if desired, to insert that kind of safeguard into the new legislation.
Cian O'Callaghan (Dublin Bay North, Social Democrats)
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I welcome that head 30 in Part 3 makes reference to the 1972 Convention Concerning the Protection of the World Cultural and Natural Heritage. I do not see any mention of the 1992 Convention for the Protection of the Archaeological Heritage of Europe, which was adopted by Ireland in 1997. Should that also be mentioned?
There seems to be no reference to archaeological landscapes, including battlefields, for example. The archaeological complex at Brú na Bóinne, including the landscape there, is a UNESCO world heritage site. That can be a very important part of our heritage and should be recognised in the Bill. Can it be revised to include that?
Mr. Seán Kirwan:
I might respond to the question on the 1992 Valetta convention, which is a very important international convention on archaeological heritage in Europe. As the Deputy said, we ratified it in 1997 on the basis that the existing National Monuments Acts and the existing planning Acts were sufficient to give effect to the provisions of the convention and that additional legislation was not needed. Regarding Part 3 of the general scheme and the reference to the world heritage convention, over the years it has been identified that while much of our planning law and natural monuments law allows us to give effect to that convention, there is no specific definition in Irish law of a world heritage property.
We would not see a particular gap on the Valetta convention. Everything that we have currently and everything that we would be hoping to see enacted in the monuments and archaeological heritage Bill would go towards meeting Ireland's obligations under the convention. In the drafting it might be possible to make a specific reference to the Valetta convention in the long Title. That would acknowledge formally in the legislation that it is there to allow Ireland to give effect to its obligations under the convention.
Steven Matthews (Wicklow, Green Party)
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The Deputy asked about landscapes. Does that come under sites?
Mr. Seán Carpenter:
I will speak about the landscapes and Part 3. Deputy O'Callaghan pointed out that the UNESCO convention deals with cultural and natural heritage. There has been no need for implementing legislation since the convention was ratified because the existing legislative framework provided for what is required under the convention regarding cultural heritage by and large. We are now looking to define the term "world heritage property". I suppose the Minister would be the competent authority to get things like the tentative lists and get sites prescribed on the world heritage list.
Regarding landscapes and natural heritage, one of the reasons we designate something as monument is to conserve and protect it. I believe section 204 of the Planning and Development Act empowers local authorities to issue landscape conservation orders, which are put in place to protect and conserve landscapes. Therefore, we have existing legislation that gives effect to the convention. Accordingly, Part 3 just deals with the cultural heritage aspects of the convention.
Mary Seery Kearney (Fine Gael)
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I come from a slightly different angle. I am also a member of the Oireachtas Joint Committee on Children, Equality, Disability, Integration and Youth, which recently dealt with mother and baby homes, institutional burials, and birth information and tracing. The latter is not as relevant to this. We had discussions about the Magdalen laundries and industrial schools. The Minister for Children, Equality, Disability, Integration and Youth attended the public hearing on the planning application for the Bessborough site because it is the location of potential burial grounds.
Religious institutions and religious areas have been excluded from protection perhaps because they are deemed modern. This includes buildings such as the former industrial schools. Concern has been raised by Dr. Niamh McCullagh and the Cork survivors group. Does this legislation leave that gap? Does it afford any protection? Will it cover those sorts of situations?
Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I believe the mother and baby homes are largely treated as forensic sites. Mr. MacDonagh might respond to the Senator's question. I know there are very sensitive issues relating to those religious sites. The treatment of the mother and baby homes is quite contentious and involves a wider debate.
Mr. Michael MacDonagh:
As the Minister of State correctly said, given the tragic sensitivities related to the sites, they are being dealt with through exhumation rather than excavation. The exhumation will be dealt with under separate legislation being advanced by the relevant Department, using archaeological techniques by a very professional archaeological sector that has developed across Ireland over many years. We have engaged extensively with the archaeologist employed previously by the mother and baby homes commission. As the Minister of State rightly pointed out, those sites are forensic. While they will use archaeological techniques when permission is given and decisions are made, they will fall under separate legislation as opposed to this proposed Bill or the current legislation.
Mary Seery Kearney (Fine Gael)
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We can move it to a more macro level. I am very sensitive to the need for care and consideration on anything around to this. I am confused about how this might relate to developing the site of a former industrial school or a former Magdalen laundry.
We have one former Magdalen laundry in the north inner city that is in the care of Dublin City Council. There has been no move to either preserve or demolish the site, or do anything with the site. Again, to come back to an earlier question, what decides that something is a monument? Where is the threshold whereby it is decided that something is selected to be preserved or deemed to be of national interest?
Mr. Seán Kirwan:
I wish to emphasise again that there is an absence in the primary legislation, as envisaged in the general scheme. It is the absence of any date and there is no cut-off so quite modern structures or sites could be relevant things of relevant interest if they are a structure, building, burial site and so on. They also, to be eligible for entry into the register of monuments, would have to meet the further criterion of being of relevant interest so they would have to be of archaeological interest, historical interest or architectural interest. These are the criteria and one or more of those would bring a structure, etc. to be a relevant thing of relevant interest. Then if the Minister considers that it is appropriate that that particular relevant thing of relevant interest should go into the register, the Minister can so enter it, following consultation with owners and so on. Then a further decision, if the Minster believes that this now registered monument is of sufficient importance it can be, as we discussed earlier, elevated to have special protection that is above and beyond general protection. That is the way it will proceed. There are various decisions at different stages so it is quite open. I suppose that it is difficult to envisage all of the different circumstances over decades, potentially, that this legislation will, hopefully, be in force; it is difficult to envisage how it would work in particular cases but it sets a framework and it is an enabling provision that allows decisions to be taken as to whether or not to assign legal protection. The basic criteria will be out there in the primary legislation. There is also provision in it for the Minister to set out in codes of practice published under the Bill, when enacted, information as to how he or she, as Minister, intends to implement the legislation. Again, there can be a process of further policy development as to what exactly is going to go into the register in the future.
Mary Seery Kearney (Fine Gael)
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There is not an objective checklist that ensures hitting a threshold or is there? If so, who is the arbiter? Who makes the decision that a site meets the relevant criteria? There appears to be a gap.
Mr. Seán Carpenter:
Under head 9(4) there will be a list of criteria to which the Minister will have to have regard to when deciding if something is entered into the register or not. There are some things specified here. Again, they may be broadened and added to. I refer to "level of interest, physical integrity, amenity value, likelihood of achieving preservation in-situ and extent to which the thing is protected under other legislation", etc. There will be a number of things that will have to be taken into consideration. It will not just be an automatic entry into the register after ticking the box of relevant thing of relevant interest. There will be criteria that must be met before that can actually occur. We have listed some items in head 9 and I imagine the list will be expanded when it comes to the drafting of the Bill. Any recommendations to that effect would be very welcome.
Mary Seery Kearney (Fine Gael)
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I suggest that the committee invite submissions from bodies that have been affected like the Cork survivors because it would be interesting to have any gaps pointed out or where the legislation can be enhanced to ensure that there are no gaps.
Steven Matthews (Wicklow, Green Party)
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I suggest that the Senator include her request as part of the recommendations on the PLS report. Next is the second Sinn Féin slot and Deputy Ó Broin.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I thank everybody, including the Minister of State, for the presentations.
Mr. Carpenter, I want to go back to Deputy Ó Snodaigh's question about definitions. Head 2 does not contain a definition of a monument although it defines historic heritage and historic interest. The definition of "relevant thing" contains a reference to an artificial structure but there is no definition of a monument. The reason that I think this is a problem with the Bill becomes particularly clear or acute when one talks about architectural or built heritage. Most people think of a monument as an obelisk, a cross, a symbol of some kind and not a building that is occupied by people. Built heritage is the buildings, particularly the historically important buildings in cities, town and rural landscape. If one looks at the definitions there is talk of architectural heritage but from what period? Could a building that was built 20, 50 or 90 years ago be considered architectural heritage? Of course it could because heritage simply means, by definition, the things or cultural inheritance from the people before us so our parents, grandparents, etc. but that is not clear from the Bill. I appreciate that Mr. Carpenter does not want to keep having to revise to the legislation but there is a risk by making the definitions too broad that things will fall out and I will give a couple of examples.
The definition for "historic interest" refers, in general, to historic events, associations with people, etc. The definition includes "representative of ... periods". The definition would be much better if it included the words "representative of historic styles". I say that because, particularly with architecture from the 17th century, 18th century, 19th century and 20th century, such styles may not be representative of a period but still really important to be recognised. I make these points because, as the Minister knows, I have a particular interest in 20th century architecture. For example, I believe that Collinstown Airport should be an historic monument under the terms of this legislation but it is not clear that it would fit into any of this. Collinstown Airport is a hugely important 20th century piece of architecture and Busáras is another example. It is not that one would declare as a national monument every bit of 20th century architecture but those that are particularly important. I worry that they jar a little bit with the definitions in the Bill. This matter is important because a very large volume of our 20th century built heritage has been knocked down. For example, Robin Walker's Bord Fáilte building and Fitzwilton House. Some of these buildings people think of as the ugliest buildings that have ever been seen such as River House, which is a former motor tax office located at the back of the Four Courts. Such buildings are an integral part of the built heritage of this country and I worry that the definitions are not broad enough.
Should we not think about making this a Bill not just about national monuments and archaeological heritage but also built heritage? Should we be much more explicit that built heritage and architecture is a central part of this legislation? Should we not be a little bit more explicit in our definitions to ensure that the general perception of heritage, as being an older thing, does not, by default, become the interpretation of the Bill? To be slightly flippant, everybody should know or Dubs should know the "Why go Bald?" neon sign located at the bottom of Georges Street and Dame Street. The sign got heritage funding, and rightly so, because it a really important piece of this city's built heritage, albeit it an object rather than a building. I appeal to the delegation to respond to my concern that the built heritage, particularly the modern built heritage is not explicitly protected in the Bill and could fall foul of that. I will explain my reason for saying that. With respect to 17th century, 18th century and 19th century built heritage, that has often fallen into dereliction, then there is a big fuss and then we restore it just like Customs House, the GPO and other sites. Let us make sure that we do not make the same mistake with 20th century built heritage and instead preserve and maintain the really important examples so that future generations do not have to dol with Busáras or Collinstown what our generation or that of our parents have had to with the Customs House or other such important buildings.
Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I share Deputy Ó Broin's interest in 20th century architecture. I think of buildings in recent discussions such as some of Frank Murphy's work in Cork as well. I will allow others to come in specifically on that.
As I see it there is an overlap as many of these structures come under the local authority records of protected structures. The national inventory of architectural heritage was updated with another 1,400 structures for recommendation to elected members of Dublin City Council, including street furniture and other features such as the "Why go bald" sign. The Deputy is absolutely correct that it was funded. All of these structures are of huge social and cultural interest as well as architectural interest. I am not sure whether putting them under the aegis of the Bill would afford them additional protection. Perhaps they would fall under the ownership of the Minister directly. At least under the record of protected structures there is local control with local elected members and local councils. I am not sure whether anyone else wants to comment on this. The architectural policy of the Department will be published shortly. This policy statement will be most welcome. It will feature a significant amount of the 20th century architecture that Deputy Ó Broin cares about so much.
Mr. Seán Kirwan:
The definitions of "relevant thing" and "relevant interest" underpin what gets into the register. A "relevant thing" can be a structure from any date. It could be something that was built five or ten years ago. There is no date restriction. Being of "relevant interest" includes architectural interest. As Mr. Carpenter explained, there are further criteria that guide the Minister which can be fleshed out as drafting proceeds. There is clearly plenty of scope in the general scheme for quite recent structures on the basis of being of architectural or historic interest. Even if they are not of particular architectural interest but had an historic association there would be no difficulty if the Minister of the day was satisfied the applicable criteria had been met for them to go into the register.
Clearly there is a policy issue regarding which piece of legislation is involved, as the Minister of State touched on. There can be debate as to whether planning law is a better way to deal with some contemporary structures rather than legislation such as this with a central authority. That is more a question of the implementation of the legislation rather than its underlying structure. I emphasise there would be no difficulty if it was considered appropriate by the Minister of the day to put in the register a structure of quite recent date if it was seen as being of architectural interest and the other criteria have been met.
Earlier I mentioned there is provision in the legislation for the idea of a formal system for developing policy on what would go in the register and how various pieces of the legislation would be used. This is an important aspect with regard to how the legislation will be implemented over the years and there can be ongoing development as to what will be the policies and priorities regarding what goes in the register. The starting point is that the Bill is intended to be enabling legislation when it is fully drafted. It is broadly drafted, which will give a lot of discretion in future as to what will go in the register.
Eoin Ó Broin (Dublin Mid West, Sinn Fein)
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I thank the Minister of State and the team for the responses, which are very helpful. My argument is not that we should use the legislation to give a greater level of protection to things that either are or should be on the list of protected structures. It is more to make the point that there are a very small number of very important pieces of 20th century built environment that deserve elevation to the status of a national monument as I understand it in the legislation. My concern from reading the heads is that they are not as explicit as they could be. I urge the team and the Minister of State to consider this issue and the word style of the definitions, particularly "historic interest". Architecture is not just about what happened in the building, although this is crucial and the Minister of State has covered it very clearly in terms of relations with historic events or historic people. There is also the issue of style. It should be more explicit. The reason I mentioned Collinstown and Busáras is because they very clearly have a status way above their protected structure. They are both protected structures and rightly so. I urge the Minister of State and the Department to think about this.
I hear what has been said with regard to the definition of "relevant thing" including artificial structure. I get that. I am not so sure it is as explicit legislatively in terms of built heritage and architectural heritage as would be useful to a Minister when she or he is eventually making a decision. All I am asking is that this is considered. Perhaps something needs to be much more explicit, for example, a definition of "monument". The one thing that is not in the Bill is cross-referencing the definition of a national monument with the definitions of "historic heritage", "historic interest" and "relevant thing". I ask the Minister of State and the Department to consider these points.
Steven Matthews (Wicklow, Green Party)
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It is a good point and it is something we could consider in our pre-legislative scrutiny report.
Mary Fitzpatrick (Fianna Fail)
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I thank the Minister of State and the departmental officials for the work they have done so far on this. We appreciate their time today and that they have brought forward the general scheme. I particularly acknowledge the comments made by Ms Connolly about Moore Street. It would be remiss of me not to thank Ms Foley for the work she did in supporting the Minister's advisory group on Moore Street. See made a great contribution to the work and I thank her for it.
I commend the Minister of State on bringing forward the Bill. It has been spoken about for a long time. Modernising legislation such as this is very welcome. We support his proposals. We want to see the legislation progressed and passed. He has our full support on this. I want to come back to two points that have been touched on by other speakers. These are the issue of monuments and penalties. I have some questions about both. We need to do a bit more work on the register of monuments and the definition of a monument. I am thinking about the discussion with Deputy Ó Broin.
When I think about monuments and the national monument on Moore Street I also think about other very important sites in the north inner city. Mountjoy Square is the finest and most perfect of the five Georgian squares in Dublin. Will this in and of itself as a square be defined as a monument? Will the components of it have to be individually defined as monuments? Senator Seery Kearney mentioned the former Magdalen laundry site on Seán MacDermott Street. I could also mention the courthouse on Green Street, Coláiste Mhuire on Parnell Square and the individual modern and historic built structures in Dublin's north inner city. I support the legislation. We need to recognise that while updating the legislation is important, the real-life activity on protecting, restoring and developing our historic sites and monuments has to be accelerated. The deterioration and dereliction is shameful. I cannot let today's discussion go by without saying this.
I am interested to understand how the penalties will apply. How were the proposed maximum penalties of up to five years imprisonment and a fine of up to €10 million benchmarked? How did the Department come up with these as potential penalties? I would like to understand this. Will the Minister of State give us an example of what would trigger that level of a maximum penalty? We have discussed how there could be aggressive actions to destroy a monument.
I am also interested to know if there will be a penalty for neglect and for destruction through neglect. How would that be applied?
Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I concur with Senator Fitzpatrick in her praise for Ms Foley and the work on Moore St. It has been fantastic to get to that point and it has been tenacious, painstaking work. It is great that the Senator has acknowledged that.
On bringing this legislation forward, I just happen to be in the right place at the right time. Many people have put much work into this over a long period and it is quite exciting.
I will ask others to come in on penalties but on the registry of monuments, the Senator mentioned Mountjoy Square. I met with the Mountjoy Square Residents Association and Dublin Civic Trust a number or weeks ago. Considering the railings surrounding the square, the blown-glass lanterns and other features of the square, it is one of the finest squares in Dublin and is suffering from neglect. We are fortunate to have a residents association that shares a vision of what it could be over time if the right level of care was put in by all agencies. The Senator mentioned other locations and sites in Dublin, which could be replicated across the country. Mountjoy Square has immense potential if the vision is there to support what the residents association is trying to do.
I ask Mr. Carpenter to come in on penalties and the benchmarking for those fines etc.
Mr. Seán Carpenter:
I thank the Senator for the questions. The issue around penalties is important. The end of the scale in terms of the five years and the €10 million fine relates to high-end offences, such as the demolition of a national monument. Under the current legislation, the same penalty applies so we are transferring that penalty over to the proposed framework. Many penalties established under the current national monument Acts have come about by way of different amending Acts over the years. This kind of revision and replacement of the original National Monuments Acts is useful because we can streamline it and have a coherent list of offences and penalties.
On the work being carried out to determine what the penalties are, we can look at the existing legislation and work with the Office of the Parliamentary Counsel and advisory council to ensure any penalties proposed are reasonable and proportionate.
On the question on the definition of "monument", it is defined under head 2. It means either a registered monument or a prescribed monument that has not been registered yet. When we talk about prescribed monuments, we have that concept of a relevant thing, which is broad, but there has to be an archaeological interest for it to be a prescribed monument. Prescribed monuments are those structures, sites etc. with an archaeological interest. The Minister will be empowered to make secondary legislation and prescribe what they are. We can afford a level of protection to them. That is what the core pillar of the Bill is about. It is about protecting and conserving monuments and archaeological heritage.
When we talk about registered monuments, we have the "relevant thing" concept again, the same definition, and then it is slightly broadened in terms of the "relevant interest" that is included. That refers to archaeological, architectural, artistic, historic etc. While in head 2 we do not have definitions for some of those terms, work is under way to specify what they will be. When we have draft legislation, we will be able to have a good discussion around whether they are adequate or not.
I ask Mr. MacDonagh to come in on the discussion around Mountjoy Square etc.
Mr. Michael MacDonagh:
I will come in first on deterioration. It is not proposed to make deterioration an offence. Given the wide range of things and structures proposed to be covered by the Bill, such as ruined castles, it would be onerous and unfair for owners of such antiquities to be put under an offence of deterioration. The focus of the Minister of State and the Department is to provide significant additional funding to private owners for the upkeep of monuments and we hope that will continue. Through the newly established community monuments fund, the historic structures fund etc., we are providing money through local authorities to private owners. In the case of the community monuments fund, there is 100% funding to enable the upkeep of antiquities and monuments of which they are the proud custodians and stewards, to protect them from falling down and for future generations.
On the national heritage estate, we work closely with our Office of Public Works colleagues on conserving our wonderful national monuments and historic properties in the Minister's ownership and care.
In areas such as Mountjoy Square, there is clearly a lot of overlap with built heritage legislation and planning law. As Mr. Kirwan pointed out, there are cases in which we will have to look at which legislation suits better and offers better protection. Those are things we will look at down the line. There are varying levels and pieces of legislation which can help protect those. There is the Town Centres First policy and the forthcoming policy on architecture. All these initiatives are meant to strengthen the focus on the care of such heritage, especially in urban town centres.
Victor Boyhan (Independent)
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I thank the Minister of State and his officials for coming in. It has been a useful exercise and exchange of commentary. We have slightly erred and strayed into the area of built heritage. It is clearly a different strand and is reasonably well protected. We have the record of protected structures. People spoke about Mountjoy Square. We have architectural conservation areas to deal with that. We have city and county development plans that do the job well and are obliged to keep a record of protected structures. It is best placed there and close to the ground in relation to local government. People are active and proactive at that level. It is constantly reviewed and one can add a building to the record of protected structures through three mechanisms, which I will not go into. That is live, active and in the heart of communities and I think it is best left there.
There are a number of issues, including planning law and the issue of the national monuments law. There is a huge overlap. We are familiar with the 31 local planning authorities, all with statutory county development plans. They are clearly mapped. I am familiar with Dún Laoghaire-Rathdown because I live there and was a councillor there for over 20 years. All the monuments are mapped out there. We have the famous Carrickmines Castle that many are aware of. At all times it is incumbent on the planners through pre-planning or any discussions about it that there is some discussion regarding these identified sites. They are not all identified but the ones registered or on the lists are identified. There is a real role for the local authority and we do not want to duplicate process so I recommend, if it is not already there, that there be greater synergy with local authority mapping so we can clearly see it there. The Land Development Agency has done extensive mapping of lands across the country. There may be synergy and building of data and information that we should explore.
Who will keep the inventory? Who will add to it, particularly in relation to monuments? How does one revoke a monument? We have a hotel called the Radisson Blu St. Helens Hotel that the President, when a Minister, designated a national monument.
However, it could be very well argued that it should be a protected structure. We have to look at things. We never set something in stone. That is a functioning hotel.
There may be a case to revisit some of the designations. There is always a case to revisit protected structures, particularly at a time when we are looking to develop our towns and cities. I just wanted to make that point.
What is do the witnesses see in relation to the county development plan process and that relationship?
On guardianship, especially in relation to structures mentioned, guardianship means a monument remains privately owned but the Minister or the local authority becomes responsible for the maintenance. Therefore, the local authority could become responsible for the maintenance. There are big funding issues here and big funding implications for private owners as well. I am not saying that has to be addressed; that is the reality of it. How does the Minister of State envisage the funding, particularly of local authorities? That is an area I want to get into. The power to revoke or remove a monument from the list is an important one we need to understand because we, of course, can change protected structures.
I am a member of the Joint Committee on Agriculture, Food and the Marine. Given the land mass of this country in terms of agriculture, sustainable agriculture, utilisation of lands and agriculture, and issues around access to national monuments and structures, has the Minister of State had any engagement with the Department of Agriculture, Food and the Marine? The Minister of State said he had interdepartmental discussions with a range of key stakeholders. Will he touch on that? Perhaps he might share with us how he looked at the best practice internationally on this.
I will wrap up by talking about the Valletta Convention, which was ratified in 1997. It is a very important convention that covers this area. Somebody may have already suggested it, but I would like to see it considered to be added to the Long Title of the Bill. There has to be clear reference to the Valletta Convention. It is critical.
There are just some thoughts. Other issues are mapping and registration. Who centrally controls the register? There is a role for local authorities in that, or certainly an overlap and a sharing of data. That is very important. I thank the Minister of State and Department officials for their time.
Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I agree with the Senator wholeheartedly. The Bill certainly outlines critical key roles for local authorities across many areas, including inventories etc. I might ask Mr. Kirwan to come in specifically on those.
Certainly, from our list of consultees thus far, the Department of Agriculture, Food and the Marine has been part of that process. Again, if the committee here decides or sees fit to perhaps bring in the Department of Agriculture, Food and the Marine specifically in consideration of the scrutiny of the Bill, it might be useful as well.
Mr. Seán Kirwan:
On the inventories, to emphasise again, there is clear provision in the general scheme that there will be three inventories. There will be an inventory of archaeological sites, architectural heritage and historic wrecks, so we are incorporating the national inventory of architectural heritage in under this scheme. That is what is proposed.
For the archaeological inventory, we have an ongoing programme over many years of compiling data on archaeological sites. That is available through our historic environment viewer. What is happening is that there will be a clear statutory basis for that. That gives a clearer basis for deciding what goes into it, what should be deleted and if something is considered no longer appropriate to be included.
I would emphasise, though, that whether something is in the register is a separate issue from whether something is in the inventory. I have heard it said a decision-making process has to take place for something to go into the register and receive legal protection. To recap, it is intended there would be clear procedures for removing things from the register. On the point that was noted earlier about safeguards that need to be there, those are things that will need to be fleshed out as the drafting of the Bill progresses. That is what I would say on the issue of inventories.
Victor Boyhan (Independent)
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Perhaps Mr. Kirwan will spell out who is the keeper of the inventory. Who keeps the inventory? Is there a consultation or engagement process on the process of adding and revoking? Perhaps Mr. Kirwan might set that out for me. Also, is there a role here for the planning regulator? Enforcement of all of these things is very important, and I note from the memo and detailed documents attached to this discussion today that enforcement is the issue. All of the legislation in the world is no good unless we can enforce it. I accept we do not want to go down the legal route as it is a last resort for many people, but is there a role for the planning regulator in it? He has statutory functions and statutory oversights and can make certain recommendations. Certainly, it is something we should look at. I am not saying we should recommend it; I am saying we should look at it. Certainly, we should engage with the planning regulator's office at some point on this.
As I said, I am a member of the Committee on Agriculture, Food and the Marine and I will certainly bring it to our committee’s attention early next week. I will encourage it to engage because it might be very much the case that the committee might invite them. However, that is a matter for the clerk, the Cathaoirleach and the members of that committee.
Perhaps Mr. Kirwan might touch on those few additional points I have raised.
Mr. Seán Kirwan:
In terms of who is responsible for keeping the inventory, that power would be vested in Minister. It would be a central national function. It is giving statutory effect to what has been going on for a long time in terms of there being a national archaeological survey of Ireland that the national monuments service maintains on behalf of the Minister. It is also continuing on the national inventory of architectural heritage and the historic wreck inventory. All of those are national functions and it is a national data source, so that is maintained and run by the Department. Of course, it feeds very much into what local authorities do because it is a data source that is available to them to draw on, as we have noted in relation to their development plans and so forth. Therefore, it is a national source.
Again, in terms of what goes into the register, the power of entry in the register vests in the Minister. It is something that runs distinct from planning law and that is an important distinction to bear in mind. We have the record of protected structures, which has been touched on, and we have, under current law, a number of mechanisms under the National Monuments Acts for protecting monuments of archaeological and other interest. It will maintain that distinction. It will not take away from the role of local authorities in the record of protected structures. It will be a national system and the Minister will be the person who, in law, determines what goes into the register and what might be taken out of it if deemed appropriate, at a future stage. However, as we noted, there may be an issue there in terms of drafting for having appropriate safeguards.
To touch on the agriculture issue, it is important to note that under matters as they stand, we work very closely with the Department of Agriculture, Food and the Marine and we have a very close relationship with it in terms of cross-compliance under EU regulations in terms of farm payments. The data we have and what we have in our current systems feed into what the Department of Agriculture, Food and the Marine does in terms environmental protection. We would see the new national register and integrating the existing mechanisms into one national register as very much supporting the work we would do currently with the Department of Agriculture.
Victor Boyhan (Independent)
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I asked, but no one has come back to me yet, about what Mr. Kirwan was talking about around the national inventory of heritage. On the consultation, the Minister has the power to add and delete, which is fair enough, but there has to be democratic input and there has to be some sort of meaningful consultation process. That would just be a suggestion I would have.
Mr. Seán Kirwan:
My apologies, as I should have touched on that. It is important to note that this proposed legislation tackles that issue. It is a problem under the existing National Monuments Acts that there is very little, if any, reference to consultation with landowners. In contrast, under this scheme of legislation, we have schemes for any entry into the register. Whether it is general protection or being elevated to special protection, there is a requirement to engage in consultation. The mechanisms for that will be something that will need to be fleshed out in the drafting of the Bill. However, the general scheme says very definitely that entry into the register will be preceded by a scheme of consultation. Therefore, that is an important innovation and it is strengthening the democratic participation and rights of landowners in terms of how they are recognised in this legislation.
Steven Matthews (Wicklow, Green Party)
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I will take the second Green Party slot. I refer to licensing. It often takes a long time to obtain a licence to carry out work. That may deter people from seeking such licences. Is there a currently a need to seek a licence to carry out work on a monument?
Mr. Seán Kirwan:
It depends on the level of protection under existing law. It is a somewhat confusing situation at the moment. All that currently applies in respect of most archaeological sites or other monuments that are protected under the National Monuments Acts is a notification requirement under the record of monuments. For something to be made subject to a consent requirement, the Minister would have to make a preservation order or the site would have to be brought into ownership or guardianship by the Minister or a local authority. As we touched on, there are severe limitations relating to what can be made subject to a preservation order and so on. It has to be in the national interest to do so and there must be a danger. As things stand, the protection for most sites under the National Monuments Acts is quite weak. It is really only two months' notification------
Steven Matthews (Wicklow, Green Party)
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Through the Bill, we are seeking to improve that process and make it more effective across the board. Under the section relating to licensable activities, I see reference to application to the Minister for a licence. How long will it take for a licence to be issued when the Bill is enacted and there is a fully resourced heritage, monuments and archaeological department?
Mr. Seán Kirwan:
We envisage that we will continue to work with our existing service standards. Generally, our service standard is that we aim to return licence applications - these are excavation licences for the most part, as well as applications for works to national monuments under current law - in no more than six weeks. We certainly do not envisage that people will be left waiting for extremely lengthy periods to get licences under the new legislation.
Steven Matthews (Wicklow, Green Party)
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It is important for people to be aware there is a relatively short period to seek a licence to carry out the work and to do it the right way.
As many of those present will be aware, heritage officers in local authorities do a significant volume work and have a massive remit across the board. They are involved in planning, heritage and archaeological and biodiversity interests. Do our guests envisage extra workload being placed on heritage officers as a result of parts of the Bill when enacted?
Mr. Michael MacDonagh:
We do not envisage that happening. That said, we are so grateful to the expertise, capacity and work ethic of our heritage officer colleagues across the country who are now in every local authority. The answer to the Chairman's specific question is "No". There are, of course, other cohorts of heritage professionals in local authorities, including a cohort of local authority archaeologists with whom we work very closely under an established network. The principle of partnership in managing archaeological heritage is always enshrined there. In some cases, we do stand aside for local authorities that have local authority archaeologists. The Bill will assist them in their work rather than adding to their workload. We look forward to continuing to work with all our local authority colleagues under the Bill.
Malcolm Noonan (Carlow-Kilkenny, Green Party)
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This stresses the need to expand. There is a similar need in respect of other disciplines within heritage services in local authorities. To me, it certainly augurs the case to expand the network of archaeologists employed by local authorities. It is critical because many heritage officers come from different disciplines and backgrounds. Some of them come from an archaeological background; others from a background in biodiversity. To complement that work and to have a much more enhanced system of protection, awareness and conservation, it is really important that every local authority should have a professional archaeological services directly employed.
Steven Matthews (Wicklow, Green Party)
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I only realised when the Bill was brought forward that some local authorities have an archaeological officer. I have added that to my wish list of what all local authorities should have, along with a county architect, a biodiversity officer and a cycling officer. I now have a fourth role to add to that team. The Minister of State may be interested to know that we have invited the network of local authority archaeologists in for a further session of pre-legislative scrutiny. I do not know if the network has yet responded, but we will engage with it.
We have been talking about planning and the crossover in the context of protected structures. The weakest link in planning has always been enforcement. The forward planning has always been good, as has the development consent management. It is in enforcement that the planning system often falls down. Do our guests envisage that, with the inventory or licensing system that will be introduced under the Bill which will be a fit-for-purpose way of managing our archaeological heritage, we will also have to beef up enforcement capabilities within the Department to deal with cases where it does not go well?
Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I ask Mr. Carpenter to respond on that question.
Mr. Seán Carpenter:
In terms of enforcement, one of the innovative provisions that has been proposed is to add an extra string to the bow. Under the current legislative framework, the only option we have in pursuing offences and contraventions of the National Monuments Acts is to bring criminal proceedings. Under the Bill as proposed, we will keep the option of criminal proceedings but there is also a concept of enforcement notices or civil enforcement proceedings that will be available. For more minor offences that might not necessarily warrant bringing a case to court, there will be an option to just issue an enforcement notice. Generally, that would set out a list of directions or steps that would require the person to take some kind of remedial actions. If nothing is done, we can go to the court and it can issue an order to enforce. Obviously, there will be the option for the person who is the subject of the enforcement notice to go to the courts if the person thinks it has been issued incorrectly or is seeking for it to be cancelled. There are good changes being proposed that will add another string to the bow when it comes to enforcing the proposed Bill.
Steven Matthews (Wicklow, Green Party)
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It is often the case that infringements on protected structures take place at the weekend, when there is nobody available or no way of chasing it up. Irreparable damage can be done overnight. I am sure the same also applies in respect of monuments. It is important that if notice is served or the Department is notified of a suspicion that unlicensed work affecting a monument or other structure is being carried out, it can react in a timely manner.
I note the Minister can be asked to take a monument into guardianship. Does it then fall to the OPW to manage that? Am I reading that correctly? It is the commissioner, is it? Yes.
I think I am getting confused. Where a natural heritage area or a candidate special area of conservation is proposed, many of the protection provisions kick in at that candidate stage. Will that apply in the case of a site being proposed as a monument or when an assessment is being carried out? Do those protections kick in when a proposal is made or when a site is selected as a candidate? Is that even a provision of the Bill?
Mr. Seán Kirwan:
The Chairman has noted an important innovation in the legislation. Indeed, there is a significant weakness in the current legislation. As we discussed, there is little express provision in the current legislation regarding consultation with owners. It might be implied under constitutional law that there is a duty to consult before taking an administrative decision to put something into one of the existing mechanisms but the difficulty in that regard is that while the consultation is taking place, no protection is applicable. There is a gap there. The general scheme of the Bill - the detail of this will have to be worked out in drafting - envisages interim protection such that once the Minister advises a party that consideration is being given to entering the relevant interest on the register, the default would be to have a general level of protection kick in straight away. Obviously, if the ultimate decision of the Minister is not to enter it on the register, that protection would fall away. If the Minister enters it on the register, it becomes a registered monument.
This is a key aspect of the current proposals. Moving away from the current legislation it will allow us to have those things we discussed earlier, respecting people's ownership and property rights and participation in the decision making process on what goes into the register, but without creating the opportunity that action is taken precipitately by some owners.
Steven Matthews (Wicklow, Green Party)
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Currently, if it is proposed to take the site in, is there public consultation or is it just with the landowner?
Mr. Seán Kirwan:
There is nothing in the current legislation; it is silent on it. The practice would be that where, for example, we were considering making a preservation order we would write to the identifiable owners and seek their views, unless we were dealing with an emergency where immediate action was needed.
Steven Matthews (Wicklow, Green Party)
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Thank you, Mr. Kirwan. We have reached the end of our normal round of questions, so there is a third round. I call Senator Boyhan.
Victor Boyhan (Independent)
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I have two questions.
Steven Matthews (Wicklow, Green Party)
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You have the floor.
Victor Boyhan (Independent)
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With regard to Part 4 and the archaeological objects, we did not discuss that much. There is some ambiguity about who is the owner when somebody finds something on a piece of land. This Bill is proposing some changes. The Law Reform Commission had a report on this. The witnesses might comment on that. Where there is a known owner of an archaeological object, the State will give power for compulsory acquisition.
Second, I agree with you, Chairman, about the interim protection. That is very important. We see that in protected structures, of course. When a protected structure is designated as such or there is a candidate ACA, it has a certain protection. That is very important because it is usually a critical time. Once one alerts people about the intention to protect something, things can happen very quickly. The interim measure being discussed is a good and strong one, which I endorse.
I will wrap up by referring to Part 9 on issuing the guidelines on relevant matters of co-operation to other bodies in heritage protection. The Minister of State said that public authorities and local authorities will be placed under a general obligation to have regard to historical heritage in the exercise of their functions. Perhaps he will refer to that.
Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I will ask Mr. Carpenter to respond on those points.
Mr. Seán Carpenter:
With regard to the archaeological objects, what is being proposed here is to make the current position explicit. Under the existing legislative framework, there are some issues where there is no known owner, what that means and whether a landowner could constitute a known owner. The purpose of head 35 is to make it clear that the finder of the object in question or the owner of the land upon which that object is found will not be owner of the object by default. Again, the State will be the owner of an archaeological object found where there is no known owner and that cannot include the finder or the landowner in most circumstances.
Regarding the guidelines, it will be very specific. The Minister will be able to issue guidelines on historical heritage, which is a wider term than just archaeological heritage. In terms of environmental impact assessments and how they interact with historical heritage and so forth, we will be able to issue a set of guidelines that have a statutory basis. Then there is the general carrying out of the functions of local authorities and how they might interact with historical heritage. We will be able to have guidelines issued to which they can refer.
Steven Matthews (Wicklow, Green Party)
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There are no further hands raised for the third round. Perhaps the Minister of State might wish to offer some closing remarks on this. I note that Part 8 refers to research and promotion of knowledge and awareness. When one has a great interest in or passion for something or experience with it, one is sometimes unaware that other people may not have that. We can raise greater awareness of the importance of our archaeological heritage, across the entire remit of sites, buildings, objects and artefacts. Can he comment on the vision there might be to increase awareness and knowledge among the public so we can foster that protection whereby everybody wants to protect these sites and it does not just fall to us under legislation as it just becomes civic pride and civic duty? How might we address that?
Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I thank the committee members for a very engaging session. There were fantastic questions and certainly a lot of food for thought for us. The point made about the provision of records and the compiling of records in the course of licensed activities is critical. Archiving that material and making it publicly available is something the National Monuments Service has done very well, particularly over the course of the pandemic when a great deal of good aerial footage and other footage, photographic and otherwise, of our national monuments has been made available online. It has added greatly to the public understanding and appreciation of our national monuments and archaeology. It is an ongoing process of engagement that we all must collectively be involved in for the protection, care and conservation of our built and archaeological heritage.
I probably forgot to mention the sectoral climate change and adaptation plan that was carried out, interdisciplinary, in the Department. Again, that entails a broad community-based approach to future-proofing our archaeological heritage and built heritage for future generations.
The Minister of the day and other relevant bodies will be given power to promote research and to provide assistance to other persons or bodies to publish relevant material and promote knowledge and awareness of monuments and archeological heritage. As I said, that is something NMS does incredibly well already, but this legislation gives effective support for that work.
From our perspective, we are delighted we have come so far with the Bill. It is great to be at the pre-legislative scrutiny stage with it. The committee's list of witnesses who are to be invited looks very exciting. I am always impressed by the work of this committee in going above and beyond what is required in pre-legislative scrutiny and to go the extra distance. That adds to the robustness and strength of the legislative process. We appreciate that ongoing engagement of the Chairman and members of the committee. My team will agree with me that the meeting has been extremely useful in all this. I thank Ms Emer Connolly, Mr. Michael MacDonagh, Mr. Seán Kirwin, Ms Nessa Foley and Mr. Seán Carpenter for the amazing work they have done to date. That will continue until we get this legislation over the line.
Steven Matthews (Wicklow, Green Party)
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I concur with the Minister of State's praise for his team, who have laboured for many years. Perhaps our archaeological and built heritage was not as appreciated as it is now, and hopefully more into the future. We will have further meetings on this and we will invite other expert witnesses with an interest and experience in archaeological and heritage matters. We will also be examining the planning aspect. We will proceed with our pre-legislative scrutiny of this measure without delay and we will issue the report to the Minister of State as soon as possible so this important legislation can proceed through the Oireachtas. I thank the Minister of State and his team.