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

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

Is mór an onóir domsa Bille na hOidhreachta Stairiúla agus Seandálaíochta, 2023 a cur faoi bhráid na Dála. I am pleased and honoured to bring the Historical and Archaeological Heritage Bill 2023 before the House today. This important Bill provides a new framework to modernise and bolster the law that provides for the protection of our archaeological and related heritage. I look forward to the deliberations of the House over the coming days. l am certain everybody present here today is aware that Irish heritage is an important cornerstone of our society. It tells us the story of the development of our people, inspires public understanding, and teaches us an appreciation of the past. To reiterate what I expressed during the Bill's passage through Seanad Éireann, at an international level Irish heritage provides our people with a special uniqueness that many states admire. At a national level our heritage unites us. It nurtures a sense of Irish kinship and is often a source of great pride. At a local level, which many consider to be the most important level of all, heritage has the power to create and sustain entire communities. These are some of the reasons the law that protects our historic heritage is of such great importance.

The need for legislative reform in this area has long been acknowledged and the origin of the Bill can be traced back to an expert advisory group, which in 2009 recommended to the then Minister for the Environment, Heritage and Local Government that the National Monuments Acts be replaced with revised legislation. While this can be considered the origin of the Bill, the need for complete revision of the legislation has long been recognised and previous work on legislative proposals was undertaken during the early 2000s. Comprehensive work, research and consultation has taken place over the years since the expert advisory group's recommendation, and following a very useful pre-legislative scrutiny process, Government approval of the Bill was received at the start of this year.

The Bill's passage through Seanad Éireann saw some very valuable engagement, and the culmination of the debates in that House is more than ten proposed amendments that I hope to bring forward on Committee Stage, pending discussion and drafting work with the Office of the Parliamentary Counsel. At its most fundamental level, the purpose of the Bill is to help protect and conserve our historic and archaeological heritage. In one way or another, the different principles underpinning the Bill all lead back to this critical purpose. Various elements of the Bill will also help realise some of the actions set out in Heritage Ireland 2030, our national heritage plan.

Part 1 states that our historic heritage is a non-renewable resource of great cultural and scientific importance. The protection of historic heritage in its original location or in situshould always be the first choice considered, and the Bill ensures there is a presumption in favour of this.

Monuments and archaeological sites are among the most significant examples of our historic heritage and Part 2 will revise and modernise the existing law, that being the National Monuments Acts, which have provided the legal basis for the protection of monuments for nearly 100 years. Part 2 provides for the protection of newly discovered monuments of classes to be set out in regulations, a key innovation when compared with the existing law. As currently drafted, the Bill provides for regulations that will set out classes of different structures and sites that are of archaeological interest, and these will become known as prescribed monuments. This approach will ensure newly discovered archaeological sites are afforded immediate legal protection in a manner similar to that already provided for archaeological objects or historic wrecks, which are automatically protected without a need for formal designation or registration. Following the debate in the Seanad, it is my intention to bring forward an amendment on Committee Stage in this House to ensure the regulations need not be restricted solely to sites of archaeological interest while continuing to ensure the provision is workable and reasonable by requiring that only categories appropriate to be prescribed monuments are included.

For the first time, a statutory reporting scheme for finds of monuments is to be introduced. In general, where a person finds, or believes he or she has found, a prescribed monument, he or she will have to make a report to the Minister or a member of An Garda Síochána. A 72-hour time limit is provided for making these reports. However alternative time periods may be set out in regulations where appropriate.

A new register of monuments will be established to replace several designation and registration systems in existence under the existing law. In accordance with criteria to be set out in the Bill, the Minister will be empowered to enter sites into the register of monuments if they are of heritage interest or if they belong to a class of prescribed monument. Sites so entered will then become known as registered monuments. The Bill will provide for the integration of historic wrecks into the systems for the protection of monuments, so ending the division between the two systems under existing law. There will be no loss of legal protection relative to the existing system.

Comprehensive administrative procedures are set out in Part 2, and these must be followed when making, amending or deleting entries in the register. A statutory consultation process must take place by way of general notice in national newspapers or by direct contact with landowners, as appropriate. A written notice of the changes made to the register and the reasons for those changes must issue in a similar manner.

A default level of protection will be applied to prescribed and registered monuments, and this is a crucial point. It will mean that works to or at a monument cannot be carried out lawfully other than under and in accordance with a licence or unless a valid notice of the works is submitted and a three-month notice period has elapsed. Where a notice for proposed works is received, the Minister will have powers to apply a higher level of legal protection to a registered monument, causing the notice procedure to be no longer available. In such cases, works can only be carried out lawfully under a licence. In addition, even where the Minister does not decide to apply the higher level of protection, he or she may impose certain conditions regarding the carrying out of the notified works.

Registered monuments in the ownership of the Minister or a local authority will be automatically subject to the higher level of legal protection, and where such monuments have been acquired under the enacted Bill, they will be known as national monuments. There will be a duty to maintain and facilitate access to national monuments and the Office of Public Works, OPW, will discharge the day-to-day aspects of this duty on behalf of the Minister.

The Bill also provides for by-law making powers that can be applied to national monuments, as defined. A new fixed-payment notice system can be used to enforce by-laws, with corresponding powers to issue on-the-spot fines. This will provide the OPW and local authorities with effective powers that can be readily enforced at national monuments. I stress that this by-law making power will apply only to national monuments, as defined, that is to say, registered monuments owned by the Minister or a local authority under the enacted Bill. It will not be available for other monuments, such as those on privately owned lands.

All these measures combine to make Part 2 a central pillar of the Bill, which link back to its overall purpose, namely, the protection and conservation of our historic heritage. The House might also note that the provisions in the Bill relating to monuments are to complement and do not in any way replace the law relating to protected structures of architectural interest found under the Planning and Development Act or the wider role of heritage protection in the planning system.

The European Convention on the Protection of the Archaeological Heritage, or Valletta convention, is often considered the foundation text for archaeological heritage management in Europe. While the primary purposes of the convention have been built into the Bill, following on from discussions in the Seanad, the desire for additional references to the convention was evident and, as mentioned, I intend to bring forward the necessary amendments on Committee Stage to provide for this.

Part 3 relates to the 1972 UNESCO convention concerning the protection of the world cultural and natural heritage. This convention provides for the globally recognised system of world heritage properties, of which Ireland currently has two: Brú na Bóinne and Sceilg Mhichíl. For the first time, the term "world heritage property" will be introduced into Irish law, thus strengthening the legal standing of the use of the term in development plans adopted by planning authorities. The current policy of ensuring nominations of world heritage properties takes place based upon a partnership approach with local communities is also given statutory effect under Part 3.

Part 4 relates to archaeological objects and, with limited exceptions, references to "the Minister" under Part 4 will mean the Minister for Tourism, Culture, Arts, Sport, Gaeltacht and Media and matters relating to the operation of Part 4 will fall under the remit of her Department. Part 4 provides for State ownership of archaeological objects with no known owner and removes some ambiguity found in the existing law by making it clear that owners of land on which archaeological objects are found are not counted as "known owners". Where the owner of an archaeological object is known, the State will be given the power to acquire the object on payment of appropriate compensation. As is currently the case under existing law, objects falling within the definition of an "archaeological object" will be legally protected through a licensing requirement for their alteration, and all finds of archaeological objects must be reported to the National Museum of Ireland.

Part 4 also provides the important provisions to allow for the ratification of two significant international treaties, the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects.

The measures relating to the 1970 UNESCO convention include making it an offence to import stolen cultural property into the State from another state that is party to the convention and a requirement to certify cultural property exported from the State. This certification system will be synchronised with the existing system for such material arising under EU law. The measures relating to the 1995 UNIDROIT convention help to ensure claims brought before the Irish courts for the return of cultural objects will be decided by the courts in accordance with the relevant rules for determining such claims as set out under the convention.

The ratification of the two conventions will enable Ireland to play its part in the international effort to combat the illicit trade in and looting of antiquities and cultural objects. Both UNESCO and the UN as a whole have been urging states to co-operate in addressing these important issues, and the enactment of the Bill will mark an important milestone in Ireland's efforts to contribute in this area.

It is vital we ensure our underwater cultural heritage continues to be protected. A key aspect of the new schemes for the protection of monuments is the incorporation of historic wrecks into inventories of historic heritage, classes of prescribed monuments and the register of monuments. In Part 5, specific provision is made for issues relating to the protection of historic wrecks and archaeological objects located under water that are not covered in the general provisions relating to monuments and archaeological objects, an example being the control of diving in relevant locations. With regard to the so-called contiguous zone, which is an area that extends 12 additional nautical miles beyond our territorial seas, provision is included to apply Irish jurisdiction generally to underwater cultural heritage located in this area. This will only be insofar as permitted under the 1982 UN Convention on the Law of the Sea, which will not allow for state ownership of archaeological objects found within the contiguous zone.

Part 5 will enable the State to ratify another significant international treaty, the 2001 UNESCO Convention on the Protection of the Underwater Cultural Heritage, should the Government decide to do so. This important convention has become the international legal framework of reference for the protection of underwater cultural heritage. It contains obligations on the prevention of commercial exploitation, looting and trafficking, as well as promoting international co-operation and assistance.

Part 6 relates to other activities that will be subject to a licensing requirement, particularly archaeological excavation and the use of metal detectors to search for archaeological objects. Activities that could be considered ambiguous under existing law, such as the monitoring by archaeologists of development works and the use of geophysical equipment for archaeological purposes, will now be stated clearly to be within the legislative framework. As many professional practitioners currently seek relevant consents or licences under the existing legislation, the proposed provisions do not represent a major expansion of the schemes that are currently in place.

Additional provisions under Part 6 will help ensure a person cannot sell or supply a detection device unless a prescribed warning is clearly legible on the packaging or container, and a person will not be permitted to advertise the sale or use of a detection device to search for archaeological objects unless the advertisement is accompanied by the prescribed warning. In general under the existing National Monuments Acts, each provision that creates a regulatory requirement has its own associated consent or licensing system, and these often differ from each other with regard to application procedures, criteria for consideration or powers to impose conditions.

Part 7 will introduce an integrated licensing system whereby a single licence can authorise a range of activities to be regulated under the Bill. Apart from being a major step in terms of regulatory reform and modernisation, this will facilitate the reintegration of the special regulatory regime for archaeological work associated with major road projects, introduced by the National Monuments (Amendment) Act 2004, by making it possible for all archaeological work on such a project to be dealt with under a single licence. The ending of this system of ministerial directions will result in a common system of regulation of archaeological work across all sectors, public and private, and further reduce existing regulatory complexity.

For the first time, a statutory appeals process will be established, with appeals officers appointed to review licensing decisions. This will help to ensure administrative fairness and transparency in the regulatory process. The formation and maintenance of inventories of heritage sites underpin the effective management of those sites, providing the data used to decide which sites are protected and for advising other bodies on the possible impacts of development on our heritage.

Part 8 provides for three statutory inventories – archaeological sites, architectural heritage and historic wrecks – and provides discretionary powers to create inventories of other categories of sites, including world heritage property or property that may have the potential to become world heritage property. Under Part 8, the ongoing important work of the Archaeological Survey of Ireland will thus be given, for the first time, a clear statutory basis. Provision is also made so that information gathered in each of the inventories will be made available to members of the public. Measures will be introduced so that records compiled in the course of licensed activities, for example, archives of archaeological excavations, are legally protected in the event of the dissolution of companies holding such records or the death of a licence holder. There is a gap in existing law in that regard which has, in particular, caused difficulties where archaeological consultancy firms have fallen into difficulties.

Under Part 8, the Minister and other relevant bodies will have powers to promote and publish research relating to historic heritage, as well as to promote knowledge and awareness of monuments and archaeological heritage. Provision is also made so the Minister or the National Museum can provide assistance to persons or bodies involved in the protection of any element of historic heritage. Powers exist under the Planning and Development Act 2000 to issue guidelines on architectural heritage in the planning process. However, these powers do not provide for guidance on archaeological heritage or the elements of historic heritage unrelated to architectural heritage.

Under Part 9, provision is made for the Minister, in consultation with relevant authorities, to issue guidelines for local authorities on how to deal with historic heritage in the exercise of their functions. Local authorities will be obliged to have regard to such guidance. The Minister will also be permitted to issue guidelines on all aspects of historic heritage in the preparation or carrying out of an environmental impact assessment. The intention is that Part 9 will provide a clear statutory basis for the more general work of my Department. The Minister, in conjunction with the Heritage Council, will be provided with a statutory function relating to the co-ordination and development of public policy on historic heritage. This will be in addition to functions relating to the promotion of best practice in relevant disciplines and professions and the promotion of protection of historic heritage by public authorities. Public authorities and local authorities will be placed under a general obligation to have regard to historic heritage in the exercise of their functions.

Turning to Part 10, the modernisation and revision of the existing law create an opportunity to apply a standardised approach across the range of offences and penalties applicable on conviction for the various offences created under the Bill. Care has been taken to ensure the penalties specified are reasonable, proportionate and in line with other legislation. Severe penalties will continue to be available for the most serious offences.

Where appropriate and to ensure fairness, defences to certain offences have been introduced. For example, on the offence of failing to report a find of a prescribed monument, a person charged will be able to argue a defence that a reasonable person would not have recognised it. I stress that this defence will not be available where the prescribed monument in question has been entered in the register of monuments.

A major innovation in Part 10 will be the creation of a system of civil enforcement that can be used as an alternative to or to supplement criminal proceedings under the Bill. Under this system, breaches of the Bill may be rectified by way of so-called enforcement notices that will be enforceable by and appealable to the courts. No equivalent system exists under the current law, so for the first time there will be an enforceable alternative to criminal proceedings for matters such as damage to monuments or non-compliance with licence conditions. This will greatly strengthen in real terms the scope for ensuring compliance with the legislation.

Other matters covered in Part 10 include the creation of offences relating to the obstruction of those charged with implementing the enacted Bill, offences by bodies corporate, vicarious liability for offences by employees, arrest, search and seizure powers, and the recovery of costs of prosecutions and applications for injunctions. Taken together and by comparison with the existing law, the provisions of Part 10 seek to transform radically the scope for the successful implementation and enforcement of the enacted Bill.

Parts 11 and 12 contain a range of miscellaneous technical provisions and consequential amendments to other existing Acts. Matters such as data sharing and powers of the Minister to specify forms of documents and how notices are given are covered here. Our heritage is a fundamental piece of our society and our identity. We are fortunate to have a rich and valued historic heritage in this country, and this legislation will help to ensure its protection for generations to come.

I would like to mention two matters of interest to the House. First, following approval by the Government last week, I am signalling my intent to introduce local government related legislative amendments for inclusion in the Bill on Committee Stage. Second, I am aware that many Deputies have a keen interest in the development of the 1916 national commemorative centre at Nos. 14–17 Moore Street, and I have stated previously that work was proceeding to advance the nomination of a professional design team for the crucial first conservation phase of work. Nos. 14 to 17 Moore Street form a national monument. I reiterate the commitment that the Government has made to create a 1916 commemorative centre in these historic houses.

Given the complexities of the various procurement and legal issues surrounding the appointments of the companies involved, this process has taken longer than anticipated. I am now happy to confirm that matters have progressed well in recent weeks and I have good news to report to the House today. There has been a significant amount of contact between the OPW and the various parties in recent weeks to address relevant contractual matters and I understand these are close to being concluded satisfactorily. Once this happens, the formal appointment of the relevant professional parties can be made. This will include conservation architects, mechanical and electrical services engineers, structural and civil engineers, quantity surveyors, archaeological consultants and fire safety engineers.

I look forward to hearing the Deputies’ contributions during our debate and I once again welcome the good support shown for the Bill during pre-legislative scrutiny and during its passage through Seanad Éireann. I commend this Bill to the House.

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