Tommy Broughan (Dublin North East, Labour)

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

When one enters the wonderful new museum and genealogy centre at Glasnevin Cemetery, one is greeted with a quote of Leopard Bloom from James Joyce's Ulysses:

How many! All these here once walked round Dublin. Faithful departed. As you are now so once were we.

Incredibly more than 1.1 million Dubliners and non-Dubliners have been buried in the historic Glasnevin Cemetery since it opened in 1832 under the direction of the great Daniel O'Connell. The 124 acres of Glasnevin Cemetery embody the social and political history of our capital city over the past 180 years. The graveyard has also been the site of a number of iconic funerals that, in effect, helped to change the course of Irish history. However, it is not just Glasnevin Cemetery and other great city graveyards such as Dublin's Mount Jerome or St. Finbarr's in Cork city that are of major importance. Thousands of parish and local authority graveyards in villages and towns up and down the country are the repository of vital local history and stand as unique memorials to our past.

Clearly, how the dead are buried and commemorated has always been an integral part of our culture and heritage from Newgrange stretching right up to the present day with a growing number of Irish people opting to have their loved ones cremated. On average, nearly 29,000 people die in the Republic each year and the disposal of human remains, whether through burial or cremation, must be carried out to the highest standards and with the strictest regulations in place to oversee the process. For this reason I greatly welcome the selection of this Private Members' Bill, the Burial and Cremation Regulation Bill 2011, for debate in the House today, as it attempts to address some important gaps in the regulation of cemeteries and crematoria. Comprehensive primary legislation would be the most effective way of addressing the lack of statutory safeguards in this complex and very sensitive area.

This Bill originated in a number of grossly inappropriate planning applications for private crematoria and cemeteries that were submitted in my own and other constituencies. I was inspired to prepare the Bill by the work of my Labour Party colleague and eminent Fingal county councillor, Peter Coyle. Last year, for example, Councillor Coyle and myself welcomed Fingal County Council's refusal of permission for a new private burial ground and crematorium beside St. Doolagh's Nursing Home in Balgriffin, Dublin 13. This proposal, in particular, also brought to light the astonishing lack of a legislative and regulatory framework for the development and operation of crematoria across the country.

The Minister for the Environment, Community and Local Government, Deputy Hogan, acknowledged this in a reply to a parliamentary question to myself last July when he said that there "are no specific regulations governing crematoria in Ireland" apart from the general planning process. Section 47 of the Local Government (Sanitary Services) Acts 1878 to 2001 allows the Minister to "make regulations in relation to the disposal of human remains other than by burial". It has been suggested by existing crematoria operators, including the Glasnevin Trust, that an interim measure could be for the Minister to introduce regulations for cremation under this Act. At this stage I would like to pay a warm tribute to Mr. George McCullough and Mr. Mervyn Colville of the Glasnevin Trust, who briefed me, and all of their staff given their outstanding work in overseeing five major cemeteries - Dardistown, Glasnevin, Goldenbridge, Newlands Cross and Palmerstown - as well as two crematoria at Glasnevin and Newlands Cross. The Glasnevin Trust is governed by the Dublin Cemeteries Committee, a voluntary not-for-profit organisation that was first established in 1828 and re-established under the Dublin Cemeteries Committee Acts of 1846 and 1970.

Existing crematoria operators such as the Glasnevin Trust follow UK legislation and best practice. However, this is done on a voluntary basis and there is no onus on any potential new crematorium operator to follow this example. I wish to stress at this stage that the existing crematoria in Ireland are highly reputable operations and families who have opted for cremation have reported the very high standards that they have experienced throughout the whole process. However, given the growing importance of cremation in Ireland and the number of planning applications for new privately-run crematoria, it is important that we update the legislation and ensure that all future crematoria are operated and maintained to the highest standards.

In 2006, just more than 8% of people who died in Ireland were cremated. It is now estimated that between 10% to 12% of people who die in Ireland are cremated. That is a low figure compared to many other states. For example, in the same year in Denmark the cremation rate was 74%, while in the UK the rate was 72%. In New Zealand the rate was 66%, while it was 40% in Germany, 34% in the USA and 21% in Spain. Incredibly, the Japanese cremation rate is more than 99%. Given trends across the world, it is likely that cremation rates will increase in Ireland. Dublin has a higher rate of cremation at 15% than the national average, which is clearly mainly because the option of cremation is available here. Three out of four Irish crematoriums are located in Dublin with the fourth in Cork. I understand that the first non-city based crematorium is set to open in Cavan by the end of this year.

The first general UK cremation legislation, including cremation certification, was introduced in 1902 and it is notable that Ireland was specifically excluded under section 16 of that Act. In the aftermath of the uncovering of the horrific crimes of Dr. Harold Shipman in the UK, there were a number of important reviews there of the cremation certification process including the Shipman Inquiry, the Fundamental Review and the Scottish Review. The so-called Fundamental Review of 2003 found that "the death certification and coroner services were not 'fit for purpose' in modern society". A number of critical recommendations for the reform and modernisation of the UK death certification process were made in these reviews, some of which were implemented under the subsequent Cremation (England and Wales) Regulations 2008.

I understand that the cremation certification process in Ireland is strict. For example, before a cremation can take place the medical referee must sign the relevant forms and be fully satisfied that the attending doctor viewed the body before and after the death, and completed the medical certificate and the form stating that there is no reason the body should not be cremated. This attending doctor is also required to assess whether the coroner should be notified of the death. In addition, if the cause of death is initially unclear, it would be difficult to get an immediate cremation without a coroner's cremation certificate. In extreme cases, a Garda superintendent has the power to stop a cremation.

A strict cremation certification process is clearly critically important given that with a burial the body can be exhumed if any suspicion of foul play arises. Irish crematoria operators have also informed me that they believe that a case such as the Shipman case would be very quickly flagged in this jurisdiction. However, a number of stakeholders have also suggested that the Irish cremation certification process could be looked at either through a comprehensive cremation Bill or an expanded version of the long-awaited new coroners Bill. Such a review would encompass many complicated and sensitive issues and is beyond the scope of this Private Members' Bill, which concentrates on the regulation of the establishment, operation and maintenance of crematoria. Part 5 of the Bill, however, stipulates that no cremation may take place in Ireland apart from in a licensed and approved crematorium and after the application for cremation has been approved by all relevant authorities. I urge the Minister to urgently address this matter in primary legislation.

At present it is possible for anybody to simply open a crematorium once they have applied for general planning permission for their premises. Contrast this with the process in place for running an off-licence or applying for a taxi licence where in the case of an off-licence the applicant needs planning permission for their premises as well as a three-part full off-licence to be able to run their establishment. If a licence is needed to sell alcohol or to operate a taxi business, why is it not necessary for the operation of such a sensitive business as a crematorium?

In addition, it is not clear whether local authorities and An Bord Pleanála have the expertise to invigilate crematoria proposals given the lack of regulations that are in place for their operation and maintenance standards. What guidelines are local authorities and An Bord Pleanála operating to when they assess an application for a new crematorium? One of the observations at the time of a recently refused application for a private crematorium was that the proposed cemetery site was so small that it would be in effect a funeral home with a crematorium attached. Such a system is widespread across the United States. Given the incredibly sensitive nature of this process, it is critical that clear standards are laid down now to regulate the establishment, operation and maintenance of all crematoria in Ireland to best international practice.

That is why the core part of the Bill before us provides for the establishment of a self-financing burial and cremation regulatory authority in Parts 2 to 6. One of the authority's key functions, as laid out in section 3, would be to approve the building and operation of all crematoria and to licence the practice of cremation in the State. This would be based on a plan presented by the relevant Minister on a ten-yearly basis setting out the core principles of the death disposal process in the State, including the planning, building and maintenance of crematoria. My colleague, Councillor Peter Coyle, has also called for Fingal County Council to prepare a detailed report and policy document on the care and management of cemeteries in Fingal. This could be replicated at national level for both crematoria and cemeteries in the ten-yearly strategy plan. Some counties, particularly Sligo, have drawn up such a plan for their cemeteries.

Section 4 clearly sets out that any persons or company wishing to open or close a crematorium must give notice to the authority and must ensure that strict maintenance standards are adhered to. Section 4(4) also allows that every crematorium operator must make its crematorium open for inspection at any reasonable time by any person appointed for that purpose by the burial and cremation regulatory authority. Section 4(3) stipulates that any crematorium operator must ensure that the columbarium wall, or memorial wall, at the crematorium or in a cemetery is well maintained and kept in a clean and orderly condition. I have received numerous complaints about the maintenance of memorial walls in a number of cemeteries.

The absence of clear legislative provisions is also highlighted by the national council on the Forum on End of Life in the context of the environmental sustainability of the cremation process given the problem of mercury emissions.

The national council of the Forum on End of Life is an initiative of the Irish Hospice Foundation that began in 2009 to engage with the public on end-of-life issues in terms of dying, bereavement and the disposal of human remains. The forum is chaired by Mrs. Justice Catherine McGuinness and involves stakeholders, including the CEO of the Irish Hospice Association, the Irish Association of Funeral Directors, the Dublin City Coroner, senior medical experts involved in palliative care, the former CEO of the National Council for the Aged, the National Council for the Elderly and the National Council on Ageing and Older People.

Burial grounds are subject to legislative provisions, including under the Local Government (Sanitary Services) Acts 1878 to 2001 and the Local Government Act 1994. However, there is still a significant gap in legislation dealing with privately built and managed burial grounds, including new "green" cemeteries. The long-term financing model for private graveyards and crematoriums is a profound issue that has not been addressed in any meaningful way. In 30 or 40 years time will it yet again fall to the public authorities which run existing great historic cemeteries or local authorities to provide sustainable long-term financing and care for privately established cemeteries and crematoriums? As my colleague, Councillor Peter Coyle, stated in his formal objection to the St. Doolagh proposal:

While cemeteries can generate a lot of profit, the revenue tends to be front-loaded. As the cemetery fills up, the source of income disappears. The question of maintenance then becomes a major issue for the speculator.

Will it then become the case that privately run graveyards will be able to charge exorbitant prices for access to burial plots? The cost of burial plots has already been raised a number of times by my colleagues, Deputies Robert Dowds and Eamon Maloney. If a private cemetery operator goes bust, will the local authority or the State be left with ongoing horrendous operating and maintenance costs for burial grounds? Just as it is the case with crematoriums, it is not clear that local authority planning departments or An Bord Pleanála are in a position to invigilate a cemetery proposal which necessarily involves the long-term sustainable management and financing of memorials and graves.

In the course of preparation of the Bill I received an excellent brief from two members of the national council of the Forum on End of Life, the former CEO of the Irish Association of Funeral Directors, Mr. Gus Nicholls, and Mr. Mervyn Taylor and also from Ms. Sarah Murphy of the Irish Hospice Foundation. The national council of Forum on End of Life produced an excellent document in April 2011 entitled, The Funeral Industry in Ireland: The case for reform and regulation. The report states, for example, that "there are major problems in Ireland with regard to sub-standard funeral care. There are currently no barriers to entry and no licensing in an industry responsible for the burial or cremation of up to 30,000 people a year". It also notes that out of around 600 funeral service providers across the country, just about 250 are members of the Irish Association of Funeral Directors which lays down strict guidelines for its members. Less than 100 of the 600 providers are full-time operators. Sadly, the report also highlights the "significant particular lack of regulations and standards in the area of embalming, often carried out by untrained personnel in inadequate hospital premises". It sets out the legal framework in place in other states to regulate their funeral industries. In the Canadian state of Ontario, for example, there is a Funeral Directors and Establishments Act which established a board of funeral services to oversee the licensing and regulation of the sector. In the United States there is the Federal Trade Commission's funeral rule to ensure transparency in the provision of goods and services from a funeral service provider. In Australia the Public Health (Disposal of Bodies) Act 2002 lays out strict guidelines for the sector. In Britain there is consumer protection in the case of funeral services and contracts under sections 59 and 60 of the Financial Services and Markets Act 2000.

The national council of the Forum on End of Life has proposed a valuable reform programme for the funeral industry, including an official certification and licensing process for all funeral service providers; a self-financing regulatory framework for all funeral service providers; mandatory training for all funeral service providers and embalmers; official oversight and inspection of funeral homes and embalming facilities; and enhanced transparency with written estimates for and itemisation of funeral costs and bills. Clearly, the administration of these requirements could form a key function of the burial and cremation regulatory authority.

Given the horrific current economic circumstances, I understand some colleagues may be wary about the establishment of a burial and cremation regulatory authority under Part 2 of the Bill. Clearly, there were many unnecessary and costly quangos established during the Fianna Fail-Progressive Democrats-Green Party era as various Ministers attempted to outsource their key responsibilities to unaccountable bodies. In this case, however, the industry is highlighting the lack of regulation and licensing in the sector and the need for urgent Government action. The burial and cremation regulation authority would be a self-financing body as outlined in section 2(2) of the Bill through the levying of a small charge on operators in the sector. The national council of the Forum on End of Life has proposed that a new self-financing Irish model could see funeral service providers paying a levy of €25 per funeral which it estimates would generate an annual income of €722,450 based on 28,898 deaths per year. In this context, the forum has warned about the possibility that part or all of this charge would be passed on to the public, an issue which it believes must be addressed in legislation before any new levy would be introduced.

It is estimated that, on average, a funeral in Ireland costs approximately €4,500, rising, on average, to €5,000 in the greater Dublin area. It must again be noted in this context that the cost of graves has been raised on numerous occasions by colleagues in the House.

In the Bill I have proposed the establishment of a stand-alone regulatory body, the burial and cremation regulatory authorityl. However, in its report the Forum on End of Life highlights a number of other methods through which a regulatory agency for the funeral sector could be established. Its proposals include the establishment of an office within the HSE for the regulation of funeral services, the expansion of the role of the Health Information and Quality Authority to include funeral services or the establishment of an office within the Office of the Director of Corporate Enforcement. The Minister could take any of these routes or he could simply accept the Bill.

I thank the Leas-Cheann Comhairle for giving me the opportunity on behalf of the many people who work in this sector and all of our constituents to raise this subject which I ask the Minister to place on the clár for future Government action.

See this speech in context