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

With your indulgence, Chair, I will follow up on some issues raised at our last session, on 22 March, by way of assistance, before responding to the proposed amendments.I thank Senators for the useful engagement and worthwhile discussions on some of the important matters the Bill intends to provide for. While the text of the proposed amendments will always provide a good basis for our debate in the Chamber, it is sometimes the discussions themselves on the proposed amendments that can provide the most value. On reflection following last week's discussion, I propose a set of measures that I hope Senators welcome.

I will reaffirm the position that the Valletta Convention is intrinsically enshrined in the Bill and that nothing in the Bill conflicts with the convention. In this regard, I refer Senators to a document the Department has provided. I have a copy and I believe it has been sent out to all Senators. It sets out article by article how each provision of the Valletta Convention is implemented. This is done through the Bill or by other legislation such as the Planning and Development Act that gives effect to the convention. Some matters in the convention do not require legislation to be introduced as they are provided for by administrative means instead.

I will not take time going through the document in detail as it is quite detailed but a number of aspects are worth highlighting in particular. Looking at the definition of "archaeological heritage" contained in the Bill, it is at least as comprehensive as the definition used in the convention, if not more so. The definition in the Bill covers any relevant thing of archaeological interest, "relevant thing" being a term that is itself very widely defined and covers archaeological objects also. This is not to say that I see the convention as in any way problematic but it was drafted more than 30 years ago and in a manner aimed at securing support across a range of states with differing legal systems and policy approaches. It remains an important benchmark but there is no reason we cannot be even more ambitious and comprehensive in protecting our archaeological heritage. We cannot unilaterally amend the Valletta Convention as it is an international treaty but there is nothing to stop us going beyond it. The example regarding the definition of "archaeological heritage" demonstrates that we are doing so.

In terms of key actions that state parties must take under the Valletta Convention, such as protecting discoveries, preparing inventories, designating sites and areas, regulating archaeological work and integrating archaeological heritage protection into the planning process, as has been set out in the document circulated, these are all provided for legislatively under the Bill or by way of other enacted legislation such as the Planning and Development Act. I acknowledge, however, the desire for the presence of the Valletta Convention to be increased in the Bill. I propose that following the conclusion of this debate, I will engage with the Office of the Parliamentary Counsel in advance of Committee Stage in Dáil Éireann to determine whether the following amendments are considered suitable for inserting into the Bill.

Section 3 is a key provision that establishes a clear set of principles and policies that are to be recognised by any person performing any function under the enacted Bill. I propose including a new paragraph in section 3 confirming that the principles and requirements of the Valletta Convention and any other relevant international treaty are to be adhered to in the performance of the functions under the Bill. This will give clear direction as to the importance of the Valletta Convention and should provide for what Senator Boyhan sought to achieve in subsections (1), (2) and (4) of his proposed amendment.

Unfortunately, I cannot agree to the regulation-making powers under subsection (3) of the Senator's proposal as there would be clear constitutional issues regarding the supremacy of primary legislation over secondary legislation. It is well established that the Oireachtas cannot endow a Minister or anyone else with the power to amend an Act or primary legislation by way of regulations. Not only would such a regulation be open to legal challenge as to its validity but the provision allowing for such regulation would itself be open to challenge as to its validity. In any case, I do not believe there is anything in the Bill that conflicts with the Valletta Convention and so the need to make regulations to address such a conflict is not necessary.

In addition to this amendment to section 3, and in order to safeguard the Valletta Convention's place in relation to any future development of public policy on historic heritage, I also propose to include reference to the convention and any other relevant international treaty in section 168. As this section specifically relates to the co-ordination and development of public policy relating to historic heritage, the amendment will help to ensure that going forward public policy on historic heritage must be developed in accordance with the Valletta Convention.

As I have noted previously, section 151 of the Bill already includes a provision that bodies exercising any licensing function under the Bill must have regard to the provisions of relevant international conventions. I will consult the Office of the Parliamentary Counsel to see whether an express reference to the Valletta Convention can be included in section 151 without undermining the standing of other relevant international conventions. I sincerely hope these proposed amendments, if considered acceptable by the Office of the Parliamentary Counsel, will go some way to meeting the objectives of Senator Boyhan's proposed amendment on the Valletta Convention. Once again, I thank all Senators for their engagement on this important matter last week.

Furthermore, I have also reflected on Senator Higgins's point relating to the high value that communities or groups of people may hold in relation to historic heritage in their local area that may not necessarily be considered of interest more generally among members of the public. Initially I considered that the use of the term "amenity value", as provided for under section 14(7)(c), achieves this when consideration is to be given to proposed entries into the register of monuments. I propose to amend this paragraph so that it will read "amenity and community value". I hope this will make it explicitly clear that historic heritage of great importance to a local community or similar group of people cannot be excluded when consideration is being given to its entry into the register of monuments, especially if it is not necessarily held to be of national or regional interest.

I now want to follow up briefly on Senator Higgins's point relating to audiotapes or similar items relating to linguistic cultural heritage. Such items likely fall under the definition of an "archaeological object". I should emphasise that Part 2 of the Bill relates to immovable cultural heritage, such as sites and structures of archaeological or historic interest, while Part 4 has been specifically introduced to provide for movable cultural heritage.

I will return now to matters of prescribed monuments and registered monuments. The concept behind prescribed monuments is purposely introduced to fill a gap that exists under the existing legislation whereby monuments of archaeological interest are afforded no legal protection whatsoever until they are designated as monuments. This results in an unacceptable risk to a major part of our archaeological heritage. Classes of monuments of archaeological interest are to be prescribed so that works cannot be undertaken to, at or in the immediate vicinity of them unless such proposed works are notified to the Minister or unless a licence has been obtained to carry out such works. The importance of the proposed prescribed monument system cannot be understated and the level of protection that will be introduced for such monuments will be a major achievement if the Bill is enacted.

Separate from the matter of prescribed monuments is the register of monuments. This will allow a much broader set of sites or structures to be afforded a similar, if not greater, level of legal protection to that afforded to prescribed monuments. Most important, the fact that a structure is a prescribed monument does not inhibit the possibility of that structure also becoming a registered monument, and a registered monument that is not a prescribed monument does not suffer any reduction in legal protection. To make this point clear, a registered monument does not have to be a prescribed monument. For this reason, there is no need to broaden the scope of the prescribed monument to include historic interest or any other interest as sites or structures that are of no archaeological interest whatsoever may still be eligible to be designated as a registered monument, thus obtaining the same default level of legal protection. I hope this brings some clarification to last week's discussions. I thank the Senators for their excellent contributions, some of which have contributed to the proposed changes we will bring forward.

I will now speak on amendments Nos. 7 and 8. The complete deletion of a registered monument from the register is possible and such a process is already provided for under subsection (5) of section 17. Following pre-legislative scrutiny, amendments have been made to section 17 so that mandatory consultation with the Heritage Council must be carried out in advance of a registered monument being deleted from the register. I have every confidence in the Heritage Council and its ability to carry out this role effectively and efficiently. I am uncertain as to the appropriateness of drawing an Oireachtas joint committee directly into the implementation of the enacted Bill, and for these reasons I am not in a position to accept the proposed amendments.