Martin Cullen (Waterford, Fianna Fail)

I move: "That the Bill be now read a Second Time."

The protection of our archaeological heritage has been a primary concern of Government since the foundation of the State. This is clear from the considerable body of protective legislation which has been enacted over the years, in particular the National Monuments Acts 1930 to 1994. Ireland has also ratified the European Convention on the Protection of the Archaeological Heritage, known as the Valetta Convention. In implementing this legislation, the national monuments section of my Department has developed a broad administrative and professional structure to oversee the protection of our archaeological heritage.

The scale of development in recent years, as a result of our economic success, has presented a greater challenge to the protection and preservation of our archaeological heritage. Over that time, we have striven to maintain a good balance between development needs and archaeological protection to achieve sustainable development. The high level of excavation for development purposes has added considerably to our store of knowledge about our past. There are many examples of a good balance being achieved between conservation and development.

The background to this specific amending legislation, while complex, will be familiar to Members of the House. I will now summarise the main issues. On foot of an injunction granted by the Supreme Court in February 2003 restraining Dún Laoghaire-Rathdown County Council from undertaking any works in the vicinity of Carrickmines Castle, work on the section of the south-eastern motorway in the vicinity of the site was suspended last year pending the granting of a consent under section 14 of the National Monuments Act 1930. The work involved had been carried out under section 26 excavation licences, but the effect of the court judgment was that a consent under the much less frequently used section 14 was appropriate in this case.

At the request of Dún Laoghaire-Rathdown County Council, I joined in a consent for works at Carrickmines Castle. In accordance with the legislation then existing, I also made the National Monuments (Approval of Joint Consent) Order 2003 on 3 July 2003. This was then laid before each House of the Oireachtas as required.

I assure the House that the decisions were not made lightly. A total of 23 submissions relating to the case were received and considered. Of these, 17 submissions supported the early completion of the project and there were six objections. I also had regard to the advice of my Department's national monuments section regarding further conditions to be inserted in the joint consent to ensure that the works to be undertaken at Carrickmines would be carried out in accordance with best archaeological practice.

The national monuments legislation has always envisaged that it may be necessary, in certain cases, to interfere with a national monument. These can be for reasons of public health and safety, in the interests of archaeology or for other reasons. In this case, the application from the road authority, Dún Laoghaire-Rathdown County Council, was expressly made on public interest grounds and it was in this context that the order was made.

My decision at the time was based on the overall assessment that the public interest in allowing construction of the south-eastern motorway along its approved route justified consenting to the works impacting on archaeology at the site. In my view it had been satisfactorily demonstrated that a systematic approach was adopted by the county council to the archaeological resolution of the Carrickmines site and that the archaeological work undertaken would preserve the main archaeological elements of the site, either by record or in situ.

On the 23 December 2003, an application for a judicial review of these decisions was made. Following hearings in the High Court and Supreme Court, the High Court held that the Heritage (Transfer of Functions of Commissioners of Public Works) Order 1996, in so far as it purported to transfer the functions of the Commissioners of Public Works under section 14(1)(a) of the National Monuments Acts to the Minister for Arts, Culture and Gaeltacht, was outside the powers conferred on the Government under the Ministers and Secretaries Acts. A 2002 transfer order was similarly found to be invalid. Consequently, the High Court quashed the approval order issued by me. The court stated that a "technical glitch" had led to its decision. As I already stated, one of the purposes of this Bill is to resolve this matter.

It is not surprising that legislation which is more than 70 years old needs amendment to meet modern regulatory requirements. For example, environmental impact assessments, which include assessment of archaeological impacts and appropriate mitigation measures, are requirements for development consent for some considerable time but were not a feature in the 1930s.

The Bill clarifies the roles of the Minister for the Environment, Heritage and Local Government, the Minister for Finance, the Minister for Arts, Sports and Tourism and the Commissioners of Public Works under the National Monuments Acts so that there is no doubt raised arising from previous transfer of functions orders. A new section 14 consent process is set out which resolves the technical difficulty to which I referred earlier while also being in line with current best regulatory practice. The Bill also provides that road schemes where an approval process includes an EIA setting out archaeological mitigation do not need further licences under the Act. However, the Minister can issue directions in respect of the mitigation. A procedure for dealing with newly discovered national monuments on such approved road schemes, which have not been identified in the EIS, is also provided. The Bill also contains a specific provision in respect of the completion of the south-eastern motorway at Carrickmines.

Section 1 is a standard provision which defines the term "principal Act" as meaning the National Monuments Act 1930. Section 2 deletes the definition of Minister from the 1930 Act because it is now dealt with in section 3 and defines the word "works" as including development works of national, regional or local importance.

Section 3 is to clarify the roles of various Ministers following a number of transfer of functions orders. It defines the Minister, for the purposes of the National Monuments Acts, as being the Minister for the Environment, Heritage and Local Government, unless the context requires otherwise. Where a reference in the Acts relates to the function of the day-to-day administration of any property in the guardianship, ownership or management of the Minister for the Environment, Heritage and Local Government, the Minister for Finance is defined as the Minister. This reflects the agreement last year that the Office of Public Works is responsible for the operational aspects of heritage properties. The functions vested in the Minister for Arts, Sport and Tourism under the various transfer of departmental administration and ministerial functions orders and other functions of the Minister for Finance under the Acts are not affected by this section of the Bill.

Section 4, for the avoidance of doubt, confirms the transfers of functions previously vested in the Commissioners of Public Works under the National Monuments Acts 1930 to 1994, and which were not previously transferred to the Minister for Arts, Culture and the Gaeltacht, to the Minister for the Environment, Heritage and Local Government or the Minister for Finance, as appropriate.

Section 5 replaces section 14 of the principal Act. Section 14 of the 1930 Act allowed the Minister to grant a consent for the carrying out of works to a national monument, notwithstanding that such works may involve injury to, interference with, or the destruction, in whole or in part, of the monument. I propose to replace section 14 with a new section 14 and sections 14A, B and C.

Section 14 now sets out a single tier process for consenting to works which interfere with national monuments in the ownership of the Minister, a local authority or where a preservation order is in force. This section sets out the factors which the Minister may take into account in reaching a decision on the matter. These include archaeological, environmental, cultural, social, recreational and economic reasons. Where a consent under this section is granted, a separate excavation licence will not be required. The Minister is obliged to consult the director of the National Museum of Ireland before granting any such consent.

There is also provision for increased penalties in respect of interference with a national monument without the necessary consent. For example, the penalty arising from a conviction on indictment will rise from €62,000 to €10 million. The new section 14A provides that the consent of the Minister is not required for works affecting a national monument where the works are connected with an approved road development. This is because the approval process for such roads includes consideration of an environmental impact statement which will have identified the archaeological impacts involved and the extent of the mitigation required. Neither will a separate excavation licence be required. This approach is in line with Government policy on better regulation which seeks to avoid duplication of approval processes.

However, as Minister for the Environment, Heritage and Local Government, I will be able to issue directions in relation to any works of an archaeological nature to be undertaken on such a road development to ensure that best practice is followed. I will consult the director of the National Museum of Ireland on directions. Much time and effort goes into locating archaeology during the route planning process for road schemes with a view to avoiding such sites to the maximum extent possible or, where this is not possible, to mitigating impacts.

Scrutiny of old records, site walk-overs and aerial photographs have, in recent years, been supplemented by techniques such as geophysical surveying to gain an impression of what may lie below the ground. However, this approach is not entirely conclusive and the full picture can only be determined accurately when the topsoil is removed or other intrusive investigation techniques are employed. Given the nature of archaeology, often unknown and beneath the ground, it is necessary to provide for the mitigation of new monuments of national significance notwithstanding the rigorous environmental assessment and approval process in respect of new road development.

Section 14A, therefore, sets out the detailed procedure for dealing with national monuments that are newly discovered as part of the road development but which had not been anticipated in the environmental impact statement. I am empowered to issue directions relating to the preservation, mitigation or removal works required, having regard not only to archaeological considerations but also to the public interest considerations set out in the section.

Where such directions require a change to the original approved road development, the road authority is obliged to inform An Bord Pleanála. The detailed procedure to be followed by the board is set out in 14B. It can determine if the changes arising from a ministerial direction are a material alteration to the approved scheme and, if so, whether the change has significant adverse impacts on the environment and whether the change should be subject to an EIS. Section 14C covers previous provisions enabling the Minister to give consent for interference with a monument in the interests of public health and safety.

Section 6 amends section 23 of the 1930 Act which relates to the reporting of the discovery of archaeological objects. In essence, archaeological objects found will be dealt with under the Minister's directions which can deal with how these objects will be delivered to the National Museum of Ireland. This reporting arrangement did not apply to discoveries made under licensed excavations. In line with this exemption, section 6 provides that the reporting requirements do not apply to finds made under section 14, 14A, 14B or 14C.

Section 7 updates the provisions for the making of regulations prescribing licence fees. Section 8 provides that Dún Laoghaire-Rathdown County Council will not need to seek any further consent or licence under the National Monuments Acts, in relation to the completion of the south-eastern section of the M50. However, the Bill empowers the Minister to issue directions in respect of archaeological mitigation and sets out the factors which I may consider when deciding on the nature of such directions.

We are all aware that the south-eastern motorway has been subject to a rigorous route selection process and to an environment impact assessment which provides for the mitigation of the archaeology at Carrickmines. The route selection and EIS process had to balance important factors such as impact on existing housing, archaeology, the natural environment, physical constraints etc. The EIS was published and was considered at a public inquiry. Following consideration of the EIS and the report of the inspector, the then Minister for the Environment and Local Government approved the motorway scheme. Following the approval of the motorway scheme, extensive archaeological excavations were carried out which contribute significantly to the national archaeological record, the understanding of the history and changing settlement patterns of south county Dublin and the knowledge of medieval and post-medieval frontier castle life in the area.

Initial archaeological investigations were carried out on the site of Carrickmines Castle between 3 April and 19 May 2000. Full archaeological excavations commenced in August 2000. An archaeological licence was issued under the National Monuments Acts following consultation with the National Museum of Ireland. As the excavations progressed, the full extent of the work necessary for the complete archaeological excavation, resolution and recording of the area gradually became clear. While this had implications for the time and cost of the road project, the National Roads Authority met all its obligations for archaeological mitigation.

Excavation work at Carrickmines was carried out over a period of more than two years. As many as 130 archaeologists worked on the Carrickmines site. Close contact was maintained at all stages during the process of the excavations between the National Roads Authority, the county council and State archaeologists to ensure that best practice was observed in relation to the archaeology uncovered. The excavations were completed in January 2003, by which time areas to be affected by the motorway scheme and which were accessible had been archaeologically resolved either by preservation by record or preservation in situ.

The remaining excavations, such as in the area under the old Glenamuck Road, must await the enactment of this Bill. They will affect less than 10% of the remaining monument which will be preserved for the future. The results of the excavations at Carrickmines, carried out at a total estimated cost in excess of €6 million, have, as I mentioned earlier, significantly enhanced the national archaeological record. What is happening now is that archaeology in Ireland is largely development led and the State is spending a fortune on it. It is right that we should do so. The sums involved are enormous and the State is giving employment to a large number of archaeologists. I have no difficulty with all of that.

It is question of balancing all these issues. One can take the extreme view and ask how long is a piece of string. I have spoken to many of the archaeologists and I have been out to Carrickmines. A magnificent job has been done there. I presume the Deputies opposite have visited the site.

I went out expecting to find a castle. There is no castle. It is a misnomer to say Carrickmines Castle because there is no castle. The site is disappointing because it is technical — beneath the ground. A considerable amount of money has been spent on the work. Over 130 archaeologists have worked on the site and over €6 million has been spent on that section. Most people would agree that is a reasonable, fair and balanced approach to our responsibilities as a nation.

Given the rigorous route selection process and EIA, the very considerable effort and investment into mitigating the archaeology at Carrickmines, and the significant public interest in preventing further delay in the completion of this project, I am satisfied to recommend that this section be enacted to allow the south-eastern motorway to be completed.

Section 9 defines the Short Title, construction, and collective citation of the Act.

I wish to inform the House, because it is important and I appreciate the points being raised by Deputies opposite, that it is my intention later this year to introduce a Bill to update and consolidate the existing national monuments legislation. This will provide an opportunity to consider the whole national monuments code. In the meanwhile my Department continues to make good progress in protecting the archaeological heritage.

The Archaeological Survey of Ireland is proceeding well. Eighteen surveys have been published covering over half the country and I am to publish surveys this year of part of County Sligo and County Longford. Many Deputies have attended some of these launches. These surveys are extremely valuable. In fairness to those doing this work, it is a great effort on their behalf and it provides a tremendous amount of important information at a local level which will paint a picture of the entire country when complete. It is extremely helpful to local authority councillors when making assessments on protecting particular areas and parts of the land area for which they have responsibility and helps them identify what is important.

The quality of these surveys and the other protection work in Ireland is recognised abroad. People are coming to us because they have seen much of this work and are surprised and taken aback at the depth of the archaeological effort being made in Ireland since most of them have nothing comparable. I commend all those involved in this work.

The activities of my Department do not simply relate to research. Over 8,000 development applications are examined annually to assess the impacts on the archaeological heritage, up to 2,000 excavation licences are issued so that this activity is carried out to professional standards. Codes of practice have been agreed with Bord na Móna, the NRA, Coillte, the Irish Concrete Federation and ESB National Grid and I expect to conclude one with the Irish Ports Authority later this year.

Greater public awareness is also important. The survey information is published and data is available to planning authorities to make informed decisions. A summary of all excavation reports in a given year is made available on the web and I will announce further initiatives in the near future.

I hope I have allayed the concerns raised by Deputies this morning. We will be coming back later in the year to update and consolidate the raft of existing legislation, which is a huge body of work. We are where we are not just with Carrickmines. We simply had no mitigation process in place because of what happened in the court decisions and which was defined as a technical glitch. We have now righted that in harmony with the National Museum, whose role is well defined and protected. We will work with the National Museum. The Government has no intention of going in, willy-nilly, and bulldozing anything. Whatever archaeological effects are found, we must ensure best practice is brought to bear in all the mitigation. I am pleased to commend the Bill to the House.

See this speech in context