Eugene Murphy (Fianna Fail)
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Before we commence, I remind Members that a Senator may speak only once on Report Stage, except the proposer of an amendment who may reply to the discussion on the amendment. On Report Stage each non-Government amendment must be seconded. The Minister of State has informed me that he may be called for votes in the Dáil. In that case we will need to suspend. Amendment No. 1 is in the name of Senators Boyhan, Clonan, Craughwell and Ruane.

Victor Boyhan (Independent)
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I move amendment No. 1:

In page 29, between lines 15 and 16, to insert the following:

“Valletta Convention

3.(1) Nothing in this Act shall violate the definitions, principles and requirements outlined in the Valletta Convention to which Ireland is a signatory.

(2) The Minister and the Department shall be required to ensure that all definitions, principles and requirements laid out in this Act comply with the Valletta Convention upon and during its implementation.

(3) The Minister shall be empowered to establish regulations to ensure that Ireland can adhere to the Valletta Convention in the event of an unforeseen circumstance in which something in this Act contradicts the Valletta Convention.

(4) The Minister shall be required to ensure the Valletta Convention is adhered to when implementing this Act.

Alice-Mary Higgins (Independent)
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I second the amendment.

Victor Boyhan (Independent)
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I welcome the Minister of State and his officials back to the House. I do not think much has changed since we last spoke. I am pursuing this amendment. However, I first welcome the people in the Public Gallery. There are some experts here from this area. I am sure they are also known to the Minister of State. I have again studied the responses in relation to Valletta. There are a number of facets to amendment No. 1. It has four subsections. I will once more read them into the record. The first states "Nothing in this Act shall violate the definitions, principles and requirements outlined in the Valletta Convention to which Ireland is a signatory." One would think it was pretty basic given that we are a signatory to this Convention. I have studied in great detail some of the engagement with various Ministers in relation to it. The Government's commitment to support the Valletta Convention was as clear as day. The second aspect to this amendment is that "The Minister and the Department shall be required to ensure that all definitions, principles and requirements laid out in this Act comply with the Valletta Convention upon and during its implementation." Third, "The Minister shall be empowered to establish regulations to ensure that Ireland can adhere to the Valletta Convention in the event of an unforeseen circumstance in which something in this Act contradicts the Valletta Convention." Finally, "The Minister shall be required to ensure the Valletta Convention is adhered to when implementing this Act." We know the Valletta Convention was adopted on 16 January 1992 in Valletta, Malta. It came into force on 25 May 1995, as a result of the Council of Europe Treaty Series No. 143. The Valletta treaty, formally the European Convention for the Protection of Archaeological Heritage (Revised) is also known as the Malta convention and is a multilateral treaty of the Council of Europe. This treaty of 1992 aims to protect European archaeological heritage as a source of European collective memory and an instrument for historical and scientific study. All remains and objects and other traces of humankind from past times are considered to be elements of the archaeological heritage.

The Minister of State is aware there was pre-legislative scrutiny of this Bill. I am a member of the Joint Committee on Housing, Local Government and Heritage, as is the Senator beside me. There will be others coming up later. We had an extensive discussion relating to this meaningful engagement. We completed a report. I want to thank the Oireachtas Library and Research Service, which compiled a digest of the Bill. We set out 14 recommendations in the report, and the Oireachtas Library and Research Service carried out analysis of those. One thing the witnesses who came before the committee clearly stated was that the Valletta Convention should be in the preamble and in the naming of the Bill, which we have done. These were important witnesses with expertise in this area. I think Valletta is mentioned three or four times in the entire Bill. It is a very significant piece. When I studied the Minister of State's response after we last discussed this, I could not quite understand the rationale of the advice given by the Minister of State's officials. I am not privy to all of the advice but there was a resistance to accepting this amendment as it concerns the Valletta Convention. That is why this amendment is before us again in a slightly different format.

I listened to the Minister of State, and I know of his personal commitment to archaeology, to the environment, to the Aarhus Convention, to the rights of our citizens to have a meaningful say and engage on environmental matters, planning matters and archaeology. When one listens to organisations and prescribed bodies that the Minister of State and his party are familiar with, I cannot understand why there was such resistance to this very simple but cogent and clearly thought-out amendment. The Minister of State knows the position from the Library and Research Service documentation on it. I do not know what the Minister of State is going to say today. I do not know if he is going to change his mind. I have had no engagement with him since I last spoke here on this legislation. However, I can say that Ireland is a signatory to the Valletta Convention, and yet there is very little mention of the Valletta Convention in the Bill. Archaeological experts, some of whom are here today or are listening in, have spoken to me and have criticised the Bill for how weak it is on the Valletta Convention. The broad scope of Valletta sets out, in terms of archaeology and protective legislation, its overarching role in the context of Europe. We are signatories to it. While the Bill contains a comprehensive list of definitions, the wording on most of the definitions does not match the Valletta Convention. In a 244-page document, the word "Valletta" only appears four times, as I said earlier. In the previous debate, the Minister of State said that it would not be possible to embrace all of the definitions. My amendment seeks to address this issue for the Minister of State. It requires that the implementation of these definitions complies with the Valletta Convention. NGOs and other groups propose that the Valletta Convention should be incorporated and implemented into the proposed legislation. That was clearly stated at all of our meetings in the Joint Committee on Housing, Local Government and Heritage. The Minister of State is aware of that. He will have read our report and the strong recommendations the committee, as one, proposed. This is cross-party. One thing is clear from the reading of the pre-legislative scrutiny report and the deliberations of the joint committee when we teased this out was the importance of the Valletta Convention. There was a heavy endorsement from the witnesses telling us of the significance of Valletta and that it was important for it to be covered both in the preamble and within the legislation itself.

I do not want to go on in great detail, except to say that it is important we respond to Members of both Houses of the Oireachtas who engaged. It is important that we respond favourably to the NGOs and that we respond to people who are members of the Minister of State's party - elected members of his party who have expressed solidarity with the import of the Valletta Convention to this legislation. I said earlier that the Deputy is an exceptional Minister of State. I do not say that to flatter him just because he is in the Seanad today. However, we have had other Ministers in the past. We know their record. This is about a legacy. It is about a legacy for the Minister of State within the Department. However, it is also about the legacy we are going to leave for generations of people coming behind us, and for our children. We need to safeguard and secure our archaeology through this legislation. This is primary legislation before the Houses of the Oireachtas. While it was initiated in this House, it will go to the Dáil for further scrutiny, teasing out and amendment. It is important that we embrace the Valletta Convention, to which Ireland and many EU member states have signed up. I can attest to Deputy Noonan as an exceptional Minister of State. However, we do not know who is following in his footsteps. That is an important consideration when we are putting this legislation in place. I will conclude by asking him the following questions. Will he reject the amendment to adhere to an agreement that we have already signed? Is he going to reject that? That is what I am asking. I would like to think that he will embrace this. Otherwise the message being sent from here is that he is rejecting this agreement. He is not supporting it in national legislation. There are ramifications for that down the road. Will he reject an amendment to empower himself, a Minister of State who I believe is committed? He has this opportunity. It is not for officials to say, "I told you so", or hand him notes and say that is not the way to do things. This is a simple requirement and I ask him for that. Furthermore, will he reject the amendment that has incorporated all of the relevant feedback from our last debates? I could go on at length, but I will not. I know he fully understands it, and his officials understand it. I know in the past they have advised him not to. I believe it is important that we embrace this legislation, so much so that if there is not a favourable response I will call for a vote because it is important that we have a record.We cannot have people bellyaching about the environment, heritage and archaeology. As with so many things in this Oireachtas whereby people make all these sound bites and commitments, when it comes to standing up and being counted, they cannot be found. I hope the Minister of State has reflected on the debate we had on the previous occasion and that he will be able to embrace this very simple legislation. There is nothing new from me. It is what Ireland is a signatory to and will strengthen this significant Bill.

I commend the Minister of State and his team for substantive and badly needed reform in this area. The amendment would further cement the latter. That is our function in the Seanad. It is to improve legislation. I believe this amendment will do so.

Alice-Mary Higgins (Independent)
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I was very happy to co-sign the amendment and I am very happy to second it. The amendment is very important. I have tabled a number of amendments that relate to specific aspects of the Valletta Convention and how it should be applied to the different parts and functions including those of the Minister of State under the Bill. I am placing it alongside some of the other conventions such as that on intangible heritage, which we will have an opportunity to discuss. As a foundation stone, this initial amendment from Senator Boyhan, me and others is a chance to assert and make clear and unambiguous Ireland’s vision for its archaeological and historic heritage fits with and brings forward the Valletta Convention. This is not simply a convention we have signed. It was signed in 1992 and ratified in 1997. It is a very clear document that we have signed up to. It is not something loose or an amorphous commitment that was made at a meeting one time. It is something to which Ireland is a signatory and has ratified.

The amendment does not duplicate the process of signing and ratification but it is to ensure that there are mechanisms and powers in place for the Minister to ensure that he or she can give effect to what it means. There is the question of definitions. I understand that it was said it would be too burdensome to start transposing and putting multiple definitions into the text of the Bill. However, it is important that there are not definitions in the Bill that are interpreted in a way that ends up being contrary to the vision of the Valletta Convention or only goes half way to getting there. The amendment would make it very clear that the definitions, principles and requirements in the Valletta Convention will have precedence and that they are understood to be the frame within which this legislation will operate.

Second, it is to ensure that the Minister and the Department have the definitions and they are clear on the definitions, principles and requirements at the moment of implementation and also during the course of implementation. As Senator Boyhan said, Ministers change. Even departmental officials sometimes change. It is important that there is an ongoing, constant check to ensure there is compliance and consistency in terms of the vision. And the Valletta Convention is really important. I was going to quote but it is the same about the source of collective memory. These conventions were hard fought and teased out. If they are a discussion of our collective memory they are also a product of our collective learning in relation to how we engage and properly support historic and archaeological heritage across Europe. I really cannot see why Ireland would not seek to benefit from that collective wisdom fully.

Third, it provides that the Minister would be empowered to establish regulations to ensure that in an unforeseen circumstance in which something in the Bill has the effect of contradicting the Valletta Convention that the Minister could take action on that through regulation. This is to protect against unforeseen consequences. The Bill contains some significant provisions on dedesignation of historic sites. There are provisions in respect of certain activities taking place within the boundaries of historic sites. It is really important that if such provisions in the Bill allow for a potential negative impact on our historic and archaeological sites and there is an unforeseen consequence, then there is space in the Bill to take remedial action on that in line with the Valletta Convention without our having to go through the long process of further primary legislation to address such an issue.

There is something which matches some of the amendments in my name that we will discuss later. They relate to the Minister’s specific functions under the Bill and how his or her functions need to be consistent with the Valletta Convention, the convention on intangible heritage, the Aarhus Convention, the European Landscape Convention and others. I join Senator Boyhan in acknowledging the significant interest that has come from experts in this field. These are experts who have worked at European level and know the European context as well their counterparts in Ireland. In the Public Gallery, among others, we have Dr. Amy Strecker and Ms Sinead Mercier from UCD, who engaged with the Joint Committee on Housing, Local Government and Heritage during pre-legislative scrutiny of the Bill. The direction was very clear and the committee was very clear in its pre-legislative scrutiny on the importance of the Valletta Convention. I will return to some of the other excellent recommendations that the committee made later.

I urge the Minister of State to accept the amendment. It is constructive and would set a really good tone and place confidence in the intentions of the vision in the Bill were he able to accept the amendment.

Tom Clonan (Independent)
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I echo what Senators Boyhan and Higgins have said in support of the amendment and ask the Minister of State to consider them. The Valletta Convention and the Malta Convention contain some comprehensive definitions of what constitutes archaeological, cultural and architectural heritage. While there is a task in the context of transposing and transcribing that into the Bill, it is worth doing because we have no shortage of paper and print. We are a nation that is not short of words. It is not an insurmountable task. What we are short of is valuing our heritage. I will give an example.

Dún Mhic Aodh or Magee Barracks in Kildare town was the first purpose-built barracks in the State. It was built by John Sisk and Company in the 1930s. The entire barracks is a classic example of art deco architecture. It had terrazzo floors and the most extraordinary staircases and stair rails. Much of the materials used to build the barracks and the complex were Irish. The structure was neither listed nor preserved and was demolished by cranes and diggers last year. What a loss to the social history and military history of the State. It was done without any sort of reference to its value. I do not even know if Kildare County Council or the relevant authorities took any photographic record of it. We do not value our heritage in the way that other European states do. Some of the risks that are listed in the Valletta Convention include man-made natural disasters but also the activities of developers and urban planners who are not minded to pay attention to the extraordinary heritage that we have. I ask the Minister of State to incorporate the amendments into the Bill. I commend Senator Boyhan on tabling this amendment and thank Senator Higgins for seconding it.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I thank Senators for their contributions. I welcome the guests to the Public Gallery and thank for their interaction in respect of this important Bill.

Before I give the official response, a few points were raised by Senators Boyhan, Clonan and Higgins with regard to the protection of heritage. I will not go into the specifics of the McKee Barracks case. It is an issue. It is built heritage. These are buildings that should be on the record of protected structures at local authority level, which provides a different set of protections. I agree that we have lost much of our built heritage in the past 50 or 60 years. There is no doubt about that. This Government is committed to trying to address that through the supports and funding mechanisms we are putting in to protect built and archeological heritage. This Bill seeks to address issues Senator Boyhan raised around compliance and consistency and we are confident that the Bill goes some distance to putting in a suite of protections and a layer of protection around archeological heritage that has not been there heretofore. That also applies to the points raised by Senator Higgins. We are confident that the Bill gives effect and adheres to the objectives in the Valetta Convention. We are quite clear about that and note the points about the Aarhus Convention and the European Landscape Convention.

As previously discussed, the direct references to the Valetta Convention as set out in this proposed amendment are not considered necessary. I reiterate that the Bill has been drafted to give effect to the relevant articles of the Valetta Convention. Nothing in the Bill runs contrary to anything in that convention. One of the primary purposes of the Valletta Convention is to ensure states parties have a legal system in place for the protection of archaeological heritage and this Bill provides for that legal system. Allow me to go into some detail here and give some specific examples of how the Bill achieves this.

For the first time, the Bill introduces the mandatory reporting of finds of monuments. The Bill provides for the creation of inventories, covering archaeological heritage, architectural heritage and wrecks of historical interest. The Bill will provide for the authorisation of archaeological excavations and the licensing regime helps to ensure a range of activities are carried out in an appropriate manner. The Bill also provides for the appropriate storage of archaeological objects. It will ensure that licensable activities are only carried out by suitably qualified persons. Under the Bill, the use of detection devices for searching for archaeological objects will be a licensable activity. These are some examples of how the Valletta Convention is hardwired into the Bill. The Bill not only avoids any conflict with the convention, it is the essential vehicle the State will use to comply with its relevant obligations under the Valletta Convention.

It is important to note that several other international treaties have direct relevance to the Bill. Examples include the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, usually known as the Aarhus Convention, which was mentioned by Senators Boyhan and Higgins, the Convention for the Protection of the Architectural Heritage of Europe, also known as the Grenada Convention, the Convention on Environmental Impact Assessment in a Transboundary Context and the Convention Concerning the Protection of the World Cultural and Natural Heritage, better known as the UNESCO World Heritage Convention. As multiple relevant conventions exist, it is not considered appropriate to include specific provisions for one international treaty from the list of international treaties that have relevance to the Bill. Part 7 of the Bill acknowledges this in the context of licensing, by requiring licensing authorities to have regard to the provisions of all international treaties that are aimed at promoting or securing the protection of archaeological, architectural or historic heritage.

Finally, and perhaps most importantly, what the Senator proposes would unfortunately create uncertainty and legal doubt. If accepted, this amendment would mean an Act of the Oireachtas would be subject to being interpreted by the Irish courts, not in line with the Irish Constitution and Irish law, but by reference to an international treaty the text of which is loosely and sometimes unclearly drafted. Many international conventions, such as the Valletta Convention, establish broad policy aims rather than specific legal requirements. I will look at it again on foot of today. The issues around conservation and the enhancement of archeological heritage, the goals of urban and regional planning policies, co-operation around town and regional planners and public access to archeological sites, as set out in the Valetta Convention, are all contemplated in this Bill.

Leaving aside the legal and constitutional difficulties which might result from subjecting Irish law to an international treaty in the manner proposed, the likely result will be ongoing litigation in which the courts are called on to interpret the Valletta Convention with a precision it was simply not drafted to provide. The convention contains little by way of specific detail to enable the Minister’s compliance to be measured with any precision, thus giving rise to a great risk of litigation in which the courts are called on to determine the Minister’s compliance with little to guide them in that regard. It is for these reasons that I am not in a position to accept this amendment but if there are any matters in the Bill that are not considered compatible with the Valetta Convention, I would certainly welcome this information as now is the time to address such matters. Again, I ask the Senator, if there are issues that are not compatible with the Valetta Convention, that he would draw my attention to them while the Bill is in progress.

Victor Boyhan (Independent)
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I thank the Minister of State. I know what he has set out. It is interesting that he raised some concerns about the Valetta Convention. He has been the Minister of State with responsibility for heritage for the past two and a half years. I do not what he has done about it. If he had concerns about this international treaty, it warrants further teasing out through a Commencement matter or some other mechanism. A Minister of State with responsibility for heritage is telling the House that he has concerns and talks about the loosely drafted nature of the legislation. I refer to his reference to the courts being called on to vindicate the rights of citizens. He knows that his party and members of it have been involved in litigation concerning environmental issues. I commend them on that. Is the Minister now suggesting that for some obscure reason we have problem with the citizens of this country going to vindicate their rights under international treaties on the environment? If this came from anyone else, it would be somewhat different. However, I know of the Minister of State's commitment, of his involvement in the ring-road in Kilkenny, of his involvement in heritage protection and of his active involvement in planning applications relating to protected structures. I simply want a little consistency with what he espouses and acts upon. He is the prime man. He is the Minister of State with responsibility for heritage with respect to legislation. This is primary legislation. This is the Minister of State's golden opportunity, as it is our golden opportunity in this House to try to influence this legacy and this legislation.

I cannot understand what is happening. I am going to tease it all out again. The amendment states, " Nothing in this Act shall violate the definitions, principles and requirements outlined in the Valletta Convention". How could the Minister of State have a problem with that? I want matters to be clear for the people who are listening to these proceedings. When I go downstairs an hour from now and send out a video clip of the debate, I want matters to be clear in the context of our engagement on the public record. I am asking the Minister of State to explain what is happening. The amendment also states: "The Minister and the Department [that includes the Minister of State] shall be required to ensure that all definitions, principles and requirements laid out in this Act" are complied with.

The Minister of State has said he is happy to stand over the Valetta Convention. He raised concerns - it was very nice of him - about protracted litigation and perhaps the costs. I do not have a problem with protracted litigation. It is the constitutional right of our citizens. He should not hold back in any way. Our citizens are entitled to that. Again, I do not see the consistency. What is the Minister of State saying? Is he against that? He is not prepared to support the fact that the Minister will "ensure that all definitions, principles and requirements laid out in this Act comply with the Valetta Convention". He is here to vindicate that and make a case for it. He is a member of the Government that made the decision to sign up to it. The amendment also states "The Minister shall be empowered to establish regulations". The Minister of State spoke at length a few weeks ago about the fact that he would be bringing a raft of regulations when I asked about the city and county development plans and listing the archeological lists. The Minister of State said that would all be done through regulations. I have even left scope in this amendment where it states "The Minister shall be empowered to establish regulations ... in the event of an unforeseen circumstance". I referred to the regulations. In that context, the amendment states "The Minister shall be empowered to establish regulations".The Minister of State could have stood up here today and said, "Point taken, Senator Boyhan. I will bring all that in by way of regulation." He could not even give that assurance. The blanket response he had to read into the record was not in support of this. Part (4) of my amendment, "The Minister shall be required to ensure the Valletta Convention is adhered to when implementing this Act." is so basic. I do not understand why there is such resistance to it. I believe it is the right thing to do, that is why I am doing it.

I have engaged extensively with people who are involved, including those close to the Minister of State's party. NGOs that are present today and those that are listening in cannot understand why we cannot include the Valletta Convention. Members of the Oireachtas Joint Committee on Housing, Local Government and Heritage put forward this report. It was a really good, collaborative piece within which we strongly recommended the inclusion of the Valletta Convention. We agreed and released the report. We teased out the pre-legislative scrutiny recommendations, as we always do, to be fair to the members of the committee. We did that and we agreed the report. It was based on the evidence from external interested NGOs and people involved in archaeology. They made that ask of us; we did not think it up ourselves. For that reason, I gave a commitment to and contacted the people who appeared before the committee. Not everyone got back to me but those who did said, "Absolutely, it is a clear cut and paste. This is the Valletta Convention. Ireland is a signatory to this convention and it makes sense to embed it in the Bill". My amendment proposes to insert four simple sentences in page 29, between lines 15 and 16.

I rest my case. It will be for other people, perhaps those in the Dáil, to look at this again. I am disappointed for the Minister of State that this is the best he could come up with in terms of his officials. I am now deeply concerned that he, with such credentials in archaeological heritage, cannot give basic guarantees around and basic support of the Valletta Convention. That is exceptionally disappointing. One must speculate as to the reasons he has decided to do so. However, he is the Minister of State. I am always respectful of the Minister and I respect the Minister of State. I wanted to make my case. I have made my case and I rest my case. It is important that we are accountable to the public and, therefore, I will exercise my option to call for a vote on this amendment, because this issue is not going to go away.

Eugene Murphy (Fianna Fail)
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The Senator has made his case very strongly. I call the Minister of State to respond.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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The Senator always speaks with great passion about these issues, and he is to be commended. What I have done by way of a response is to give assurance to the House, the Senator and those who are following this that the objectives in the Valletta Convention are being adhered to in the Bill. The protections to which the Senator has referred, in terms of archaeological heritage, will be given effect by this Bill.

I am clearly pointing out that there would be challenges if we were to take on board the specifics the Senator is asking for around an international treaty, the text of which is loosely and sometimes unclearly drafted and could be open to interpretation. I have been involved in cases in the past in relation to protection of heritage. I respect and value the right of NGOs and communities to be involved. It is an important part of our system that people can do that. I am confident the Bill gives effect to it.

If there are specific items in the Bill that are not compatible with the Valletta Convention, I ask the Senator to let us know of them. That would be useful from our perspective. We are confident that the Bill gives effect to what the Valletta Convention sets out to achieve as an international agreement. Underpinning it in this legislation is the correct way to do it and the best way to do it.

Alice-Mary Higgins (Independent)
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I move amendment No. 2:

In page 34, line 18, to delete “may” and substitute “shall”.

Victor Boyhan (Independent)
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I second the amendment.

Alice-Mary Higgins (Independent)
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I thank the Minister of State for indicating that, if there are areas of concern relating to the Valletta Convention, he is willing to consider them. Some of the later amendments relate to areas where the Bill falls short of the convention in specific ways. I hope we will have a chance to follow through on the promise of engagement.

In one way, this amendment is simple. It changes the section that gives the Minister the power to prescribe monuments to read "there shall be prescribed ... a class of relevant things" instead of "there may be prescribed ... a class of relevant things".It states that there "shall" be prescribed, rather than there "may" be prescribed a class of relevant things. On a simple level, it is an amendment to ensure that the powers will be used. We know that certain powers tend to get used and others lie in abeyance. For example, there is the issue of rights of way, which are constantly abolished and very rarely instated at a local authority level. Similarly, this is to ensure that it becomes an act of duty and part of the work programme of any Minister that they shall actively engage in the work of identifying, recognising, designating and prescribing classes of relevant things as prescribed monuments.

It becomes a bit more significant as an amendment and it is not simply the usual thing of where I often try to move "mays" into "shalls" to make things actually happen, and that relates to section 12(1)(a). Section 12(1)(b), however, is a little concerning and my next set of amendments, amendments Nos. 3 to 6, inclusive, will address that. Section 12(1)(b) uses stronger language for the Minister not using the power. In section 12(1)(a), there may be prescribed certain monuments while section (12)(1)(b) puts a brake on the Minister using that power, stating that he or she "... shall not exercise his or her power ... unless he or she is of the opinion [then it goes into various things] that the relevant things fall within classes...". Again, those initial tests, which are the potential brake on the Minister exercising all of the different powers under this whole chapter, effectively, and those initial brakes are too narrow. The window through which the Minister must pass before starting it has the very strong language "shall not" rather than "may not" attached and also the criteria are too narrow at that point in section 12(1)(b).

It is a two-part one. I would like there to be strong language around designation and I am concerned about weak language around designation set alongside very strong language blocking the Minister from using the powers. That is the rationale behind amendment No. 2. As I said, I will come to some of the concerns I have regarding section 12(1)(b) in the next set of amendments we are going to discuss, amendments Nos. 3 to 6, inclusive. They work together as a concern.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Before I come back in specifically on amendment No. 2, if it would be of use to Senators, we could circulate a document in tabular form outlining the measures in the Bill and how it adheres to the objectives in the Valletta Convention. It may be useful in light of the genuine concerns of Senators. We can prepare that and send it to Senators. I think that would be of help.

Specifically regarding amendment No. 2, the use of the word “may” is intentional and is considered necessary from a drafting point of view. Using the word “shall” could jeopardise the proposed system of prescribed monuments by way of an interpretation that all possible classes of relevant things must be prescribed. This could lead to legal challenges to the regulations made on the basis that the Minister had not gone far enough in terms of the classes prescribed. The concept of prescribed monuments is a fundamental element of the Bill and provides a major strengthening of the legal protection afforded to archaeological sites, whereby such sites are protected without the need for formal designation or registration. It would not be possible to commence Part 2 of the Bill without introducing regulations for prescribed monuments. For these reasons, the proposed amendment is both unnecessary and inappropriate and I am not in a position to accept it.

Alice-Mary Higgins (Independent)
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I imagine that tabular information would be welcome. There are concerns, which we will come to later, around the potential impacts of certain activities under the Bill and the impact in terms of what is designated or not. There is an almost protective element which I am concerned about regarding compliance with the Valletta Convention. I am also concerned, which we will come to later in the next set of amendments, about where the Bill may be consistent with but falls short of the Valletta Convention. That is in the area, for example, of recognising cultural heritage, which we will come to. That is a specific area highlighted by the Valletta Convention.

I understand the concern regarding "may" and "shall" but it is the second aspect, that it is placed along "shall not" exercise the power which is of concern. While that is not an amendment I have, I instead sort of strengthened the "shall" alongside that, and I urge the Minister of State as he goes to the Dáil to consider whether having the kind of language of "shall not", which is effectively prohibitive language, placed right underneath the language of "may", which is looser and gives space, creates more of an impetus for not prescribing than for prescribing. If the Minister of State does not accept my amendment on "may", I urge him to consider that "may not" might be more appropriate than "shall not" regarding the second section.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I note the comments and some of the matters the Senator raised regarding cultural heritage, which we will address in the next amendments. While I am on my feet, I welcome members of the Galway Green Party to the Public Gallery.

Gerry Horkan (Fianna Fail)
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The Minister of State has slightly stolen my thunder as I was just about to welcome them to the Public Gallery. Our colleague, Senator Pauline O'Reilly, who is usually on this side of the glass screen, is with a group of people from Galway. Now that the Minister of State has outed them as Galway Greens I will say so as well. They are all very welcome and I hope they have a nice day and enjoy their evening.

Gerry Horkan (Fianna Fail)
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Amendments Nos. 3 to 6, inclusive, are related and may be discussed together by agreement. Is that agreed? Agreed.

Alice-Mary Higgins (Independent)
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I move amendment No. 3:

In page 34, line 24, after “archaeological” to insert “, cultural or linguistic”.

Eileen Flynn (Independent)
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I second the amendment.

Gerry Horkan (Fianna Fail)
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Senator Higgins is speaking about amendments Nos. 3 to 6.

Alice-Mary Higgins (Independent)
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Amendments Nos. 3 to 6, inclusive, reflect the pre-legislative scrutiny recommendation by the joint committee around inserting cultural value into the Bill, and specifically inserting it in amendment No. 3 into the same section. As I said, this is the narrow portal currently phrased as:

.. shall not exercise [the powers around the designation] ... unless he or she is of the opinion that the relevant things ... fall within the class of relevant things concerned

[...]

are of archaeological interest [and then it states] and whether or not they are also of other interest.

The archaeological filter is the one everything is required to move through, but the historic piece is not mentioned there. There is almost one aspect which could preclude. There might be something of incredibly important historic interest, which I will come to in my amendments, and significant cultural interest, but is almost looked at in a silo in terms of passing the archaeological bar first. The reason that could be an issue is that you are looking at different categories. When we talk about our heritage, it looks very different in every part of the country. The people from County Galway are gone now, but it looks very different if you are in a capital city, surrounded by large, giant granite monuments and if you are in a part of the country where there is something of deep significant cultural interest, which may be one cottage like five other cottages, but that cottage may have cultural or historic significance to a community. I am worried about the archaeological filter screening off before those factors are considered in terms of historic, artistic and other categories, which are mentioned later in the Bill.

Regarding this amendment specifically, as I said, this is around the insertion of cultural value and recognition of cultural value within the Bill. I mentioned the guests who were in the Gallery. In their submission for pre-legislative scrutiny, Dr. Strecker and Ms Mercier noted the absence of cultural landscapes in the general scheme and remarked that both the Valletta Convention and the European Landscape Convention, to which Ireland is also a party, underscore the need for legal provision on cultural landscapes, which includes not just tangible monuments and the relevant things. Even the "thing" definition might be quite narrow in terms of that.It is also about the spaces between those things, the surrounding areas and the cultural landscape. It is about looking not just at the thing but the journey to the thing and the circle around it. There are objects, buildings and spaces the significance of which comes from how they are brought alive by cultural practice. It is about considering not just the four-wall version of archaeology we have but also the archaeological landscape. When I said something is missing from the Bill in reference to the Valletta Convention, I was referring to culture and cultural heritage. That aspect is not covered sufficiently by the language relating to the archaeological, historic or even artistic aspects that is included in the Bill. There is reference to the traditional aspect but that does not quite capture the issue to which I am referring.

Culture is intrinsic to our historic archaeological heritage, in both the physical and the intangible sense, which is where my amendment No. 6 is important. There are places where people go at a particular time of year for a particular reason and which are the locus for cultural manifestation. Something like that can have a really important significance. It is about which aspects of culture, history and archaeology are acknowledged. If we really narrow it down into the archaeological, we end up with the grand houses of Ireland and there is nothing of the time-of-year culture or what might be called patterned culture. My colleague Senator Flynn, whom I thank for seconding the amendments, will recall that when we looked at Traveller heritage and culture, much of it was in that space around skills, ways and the engagements people have with the landscape and spaces that are not necessarily marked by way of large things. That is the intangible culture. This may sound abstract but it is not abstract at all because there is a convention on it that sets out very clearly the importance of intangible culture. Ireland has supported that convention. I will speak presently about the significance, alongside the Valletta Convention, of the Aarhus Convention and the Convention for the Safeguarding of the Intangible Cultural Heritage.

There is a layer or set of concerns I wish to address by way of these amendments. Amendment No. 3 seeks to introduce the cultural aspect. It also introduces the linguistic aspect, which reflects that we live in a multilingual society. In regard to the Irish language, there is both tangible and intangible cultural heritage. The language is sometimes manifested physically in such things as Ogham. There is also heritage in the form of the sound recordings held by the Royal Irish Academy of different local Irish dialects. They need protection.

Amendment No. 4 is similar to amendment No. 3. It seeks to make clear that items of intangible cultural heritage would also be included as areas in respect of which the Minister may use his or her power to prescribe protection. The Convention for the Safeguarding of the Intangible Cultural Heritage defines intangible cultural heritage as follows:

[T]he practices, representations, expressions, knowledge, skills - as well as the instruments, objects, artefacts and cultural spaces associated therewith - communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity.

This fits very well alongside the collective memory idea set out in the Valletta Convention and the notion of the continuity of identity based on cultural diversity and cultural practice.

Amendment No. 5 is a similar provision to amendment No. 3. It proposes the insertion of the relevant text into section 14(7) of the Bill. This subsection relates to the process by which the Minister forms an opinion in regard to a potential prescribed monument or relevant thing of a relevant interest. It sets out the matters to which the Minister may have regard in forming that opinion. They are quite wide-ranging, but the problem, as I outlined, is back in section 12, whereby everything is being squeezed through a narrow archaeological focus. Section 12 applies a narrow archaeological lens. It is a bit late in the Bill to be including some of these other factors, with the reference to "archaeological, architectural, artistic, historic or traditional interest". Even with those additions, the cultural aspect is missing again. Cultural is different from historic and traditional. I am trying to ensure the cultural consideration forms part of the matters the Minister is empowered to consider when making a designation. It is crucial to address this in section 12 and the Minister should also be empowered to consider it under the provisions of section 14.

Amendment No. 6 proposes to insert a new paragraph into subsection 14(7). It is about ensuring that when the Minister is forming an opinion for the purposes of subsection (3), he or she will have regard to "the archaeological, architectural, artistic, historic, cultural, linguistic or traditional value of the monument or thing". It sounds like a small point but interest and value are slightly different things. In reference to archaeology and anthropology, "interest" is suggestive of the outward gaze. There is the idea of the scientist coming to have a look at and being interested in what certain people do and the things they use. It has an academic distance. Value is also really important. There are lots of people who may never have degrees or PhDs in archaeology and will not produce scientific theses. They do not need to have expertise or know about dating in order for something to have incredible value to them and to their family or community over generations.

This is a small change but one I urge the Minister of State to make to reflect the historic and cultural value of certain relevant things. If we go further into the intangible, it is not just about the things but also the places and practices associated with them. The value of those is very significant and goes beyond the tangible. I am reminded of something similar when we were discussing bogs. If we are only considering interest and not value, the argument can be made that if we have an example up in Cavan and another two in Mayo, we do not really need the slightly inferior example in Roscommon. We have a number of examples we can study. However, for people living in Roscommon, this is the place or thing that matters to their community. It has a value that is somewhat different from simply saying it is of interest. We are all familiar with the phrasing that something is of minor interest. I knew somebody once who was trying to do up a grand house of minor interest. Value is a different thing and that is why I would like it to be reflected in the Bill. Going back to the Valletta Convention, it is about making the Bill closer to that vision, including the collective memory aspect. There is reference to scientific and historic interest in the convention but the collective memory aspect comes first and it is a separate aspect, impetus and mandate to the historic, scientific and analytic functions.

I hope the Minister of State will be able to accept some of these amendments or reflect on them as the Bill goes forward.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I thank Senator Higgins for proposing these amendments.I take on board the spirit behind them and I appreciate the intangible aspect. In our interpretation of heritage it is important to give effect to that and to ensure we take account of collective memory - the Senator mentioned Traveller heritage - and human creativity. Acknowledging all that is something we do across our work in heritage. Heritage Ireland 2030 and the Heritage Council's recently launched strategic plan give support and validity to celebrating the intangible cultural heritage the Senator talked about. It is separate and distinct and that is to be acknowledged.

As discussed on Committee Stage, the use of the term "cultural interest" may have unforeseen consequences that interfere with the successful implementation of the Bill, such as problems relating to the obligation that members of the public report finds of prescribed monuments. I stress the system of prescribed monuments is intended to apply to monuments of archaeological interest and it would not be workable or necessary to have it extend further beyond that. However, it should also be stressed that the register of monuments will be available to secure the protection of a wide range of other types of monuments. I have proposed to undertake a further review of the possible incorporation of the term "cultural interest" into the definition of "relevant interest". As this would broaden the scope of the Bill, perhaps significantly, it is important detailed consideration be given to this matter before any final decision is made. I give a commitment to that. I repeat my commitment that I will propose the necessary amendments on Committee Stage in the Dáil if it is determined "cultural interest" can be integrated into the Bill.

There are additional proposed amendments due to be discussed today that further relate to the addition of "intangible heritage" into the Bill, and I will speak to them in detail when we reach them. I am uncertain what is meant by the addition of references to linguistic interest or linguistic value. If the Senator could provide an example of how these might be connected to the monuments provisions under Part 2 of the Bill, it would be really useful. Regarding the addition of the concept of "value" into section 14(7), in the absence of any clarity as to how the inclusion of "value" differs from the existing term "interest" referred to in section 14(7)(a), the amendment would introduce uncertainty and potentially open the door to legal challenges to entries in the register.

Unfortunately, I am not in a position to accept any of these amendments.

Alice-Mary Higgins (Independent)
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I urge the Minister of State to push back on this use of the term "uncertainty". With everything we do in legislation, we do not know how exactly it will be used. Thus, when the Minister of State speaks of uncertainty with respect to the cultural heritage piece, for example, I hear it as him saying we do not know how it will be used. However, that is not a bad thing. If we were doing certainty, we would not have a provision that allows for designations of anything. We would just say here are our five historic things and we will stick with those. It is simply allowing for it to be used in a proper way. These are matters of discretion and of choice. There is a whole process set out in the Bill for how we are going to be thinking about these things and weighing them up.

What I am hearing from the Minister of State on the cultural aspect is the Department does not have things in mind for that, and that is a failure of imagination on its part. I worry our cultural heritage has been and is being neglected in a case where the focus is often on cultural entertainment. Our cultural heritage has made a significant difference in really practical ways, such as with respect to climate change. Some of the later amendments deal with that. There are other aspects of our cultural heritage such as hand skills. These skills or ways of engaging with buildings have proven to be incredibly important. It is not just thatched houses that are our heritage but the art of thatching. The linguistic aspect is part of our cultural heritage. It is a subsection. I have given examples around the Doegen recordings held by the Royal Irish Academy. They are sound recordings of local Irish dialects that should be protected and need to be acknowledged as heritage, but even if we want to go into the idea of spaces, we can look to physical pieces with things like Ogham. We can look to where language is recorded and how there is less recording of certain languages. We can also go to things like Cant, a Traveller language that has got little recognition in our State and which has a role in certain places. We can look to physical spaces that respond differently to voice, sound and accent. It is a whole rich area. Neither I nor the Minister of State need to be the experts on it; it is about giving space to that. I can see there is a reluctance in some of these areas around the intangible, but the cultural piece is crucial. Without the cultural piece this falls short of the Valletta Convention.

The Minister of State mentioned the archaeological aspect, but the Bill is not solely about archaeological heritage. The preamble refers to repealing "the National Monuments Acts 1930 to 2014 and ... [replacing] those Acts with provisions for the protection of historic heritage, provisions for the protection of archaeological heritage". This is the Bill that is providing for the protection of historic heritage. There are two separate impetuses, so that the historic heritage mandate is there and is not a subsection of archaeology. That is not how it is set out in the purpose of the Bill, nor the mandate of the Bill, yet in section 12(2) the historic aspect vanishes. Is the Minister of State going to insert a whole other chapter on the historic aspect? Where is it and why is it in the preamble if it is not going to be reflected equally with the archaeological aspect? The Bill currently does not reflect its own preamble. Even if the Minister of State does not want to accept my amendments, putting "historic" alongside "archaeological" in section 12(1)(b) would seem to be basic to ensure the Bill has the stretch and ambition it purports to have. I do not accept this is envisioned as being solely archaeological and I do not think the Minister of State or anyone from the past 40 years envisions this area as solely archaeological. Once we start doing that, we go straight back into whether something fits on the files, how grand is it, how pointy an arch it is, and so on. We are then having a different discussion that is no longer a discussion about heritage or our collective memory.

I do not accept there is an issue with mentioning culture. It is a well-established concept that is really important. The exception culturelleis one of the fundamental principles in European law. I reject the suggestion mentioning culture makes things a little too ambiguous and uncertain. The Minister of State should do likewise and the Bill should reflect that. I urge him to ensure the Bill is consistent with both historic and archaeological heritage. As a basic point, I urge him to put culture back in. While some of the intangible aspects I am speaking of are important, I acknowledge they may be difficult to sell within the Department. However, we need to move towards including them. When we look at equality of heritage, things like the intangible become important. Many people carry their life stories on their bodies, in their bodies and in their collective ways of being in the world, whereas other people can build fabulous monuments to themselves. The heritage of those who have lived in particular ways is also really important and should not be lost. That is why intangible heritage is worth fighting for and pushing for.It sounds like the Minister of State is not accepting the amendments for now. I will press them. I really urge the Minister of State to go back and push to make this Bill better as it goes to the Dáil and to take on board the points I am making.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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Many issues have been raised, particularly around oral heritage and oral traditions. There are many elements that are afforded support and protection in other ways, be it through local authorities, archivists and other mechanisms not specific to this Bill. What we are trying to protect in this Bill is a result of cultural heritage. It is a result of cultures creating these objects and these relevant things. That is not to discount the significance of what the Senator is setting out to achieve with these amendments. I take on board all the issues the Senator raised about intangible cultural heritage. As I said in my first response, this is quite specific. I said we would further review the possible incorporation of the term "cultural interest" into the definition of "relevant interest". The Senator will appreciate that it is quite a significant piece of work to do so. If possible, we might look at that on Committee Stage in the Dáil, if the term cultural "interest" can be integrated.

Alice-Mary Higgins (Independent)
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It is important that "historic" is placed alongside "archaeological" because otherwise------

Gerry Horkan (Fianna Fail)
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Sorry, Senator, you can only come back in once on Report Stage.

Malcolm Noonan (Carlow-Kilkenny, Green Party)
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I appreciate what the Senator is saying.

Alice-Mary Higgins (Independent)
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I move amendment No. 4:

In page 34, line 24, after “archaeological” to insert “, cultural, including intangible culture”.

Victor Boyhan (Independent)
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I second the amendment.

Alice-Mary Higgins (Independent)
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I move amendment No. 5:

In page 38, line 28, after “historic” to insert “, cultural or linguistic”

Victor Boyhan (Independent)
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I second the amendment.

Alice-Mary Higgins (Independent)
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I move amendment No. 6:

In page 38, between lines 29 and 30, to insert the following: “(b) the archaeological, architectural, artistic, historic, cultural, linguistic or traditional value of the monument or thing;”.

Victor Boyhan (Independent)
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I second the amendment.

Gerry Horkan (Fianna Fail)
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The Minister of State has to go and do his duty in the Lower House. We will suspend until the voting in the Dáil has concluded.