Pat Gallagher (Donegal South West, Fianna Fail)

I thank Senator Henry for raising this matter. The order to which the Senator refers is the National Monuments (Approval of Joint Consent) Order 2003 made by the Minister for the Environment, Heritage and Local Government on 3 July 2003. This was laid before each House of the Oireachtas, as required by section 14 of the National Monuments Act 1930, as amended. Either House of the Oireachtas is entitled, subject to the necessary voting support, to pass an order annulling the July 2003 order within 21 sitting days. Should this happen, the original order will be annulled. If this does not happen, the order will stand. I have just looked at the calendar and as far as the Dáil is concerned, the 21 sitting days, presuming it does not sit on Fridays, will expire on 19 November, although I stand to be corrected on that. In the Seanad, 21 sitting days will expire on 3 December. It is unreasonable to call upon the Minister to annul his own order, nor is it clear that he could legally do so in the present case. The prerogative of annulment rests more widely with the Houses of the Oireachtas.

Leaving these legal considerations aside, the Senator and the House should be aware that the Minister's order was made following a process of bona fide consideration and consultation and that it was based, as envisaged by the legislation, on considerations extending beyond archaeological ones alone. In other words, the Minister made, as he was entitled to do in light of all the facts, a determination on broadly based public interest grounds but which also ensured that the greatest possible preservation would be afforded to the archaeology at Carrickmines consistent with the need to continue the south eastern motorway.

National monuments legislation envisages that it may be necessary in certain cases to interfere with a national monument. Where interference is required for reasons of public health and safety, the Minister may consent to the works involved without making an order and without reference to the Oireachtas. Where interference can be justified in the interests of archaeology, no reference to the Oireachtas is needed.

The National Monuments Acts clearly envisage a third type of situation in which it may be necessary to allow interference with a national monument for reasons which do not relate either to archaeology or to public health and safety. The application from the road authority, in this case Dún Laoghaire-Rathdown County Council, to the Minister was expressly made in this last context, as was the Minister's determination of the matter in his order last July. In this type of case, reference to the Houses of the Oireachtas is required. This has been done in the present instance.

The Minister has already publicly explained the factors which underlie his decision. It was based on the overall assessment by him that the public interest, in allowing construction of the south eastern motorway along its approved route, justified consenting to, or approving of, the works impacting on archaeology at the site. The Minister considered that it had been satisfactorily demonstrated that a systematic approach had been adopted by the county council to the archaeological resolution of the Carrickmines site. This had involved a major commitment of resources. These activities, coupled with further archaeological work to be completed, will preserve the main archaeological elements of the site, either by record or in situ.