Dáil debates

Friday, 20 April 2012

Burial and Cremation Regulation 2011: Second Stage

 

2:00 pm

Photo of Paul KehoePaul Kehoe (Wexford, Fine Gael)

I apologise for the non-attendance of the Minister for the Environment, Community and Local Government, Deputy Hogan, who has other appointments today.

I thank Deputy Broughan for publishing this Bill, availing of the Friday facility for Private Members' Bills and for providing the opportunity to discuss this matter. While the Bill does provide a useful opportunity to discuss the issues involved, it does not provide a useful basis on which legislation in this area could proceed. He will be aware that related matters have been raised by other Members of this House, in particular regarding the costs of burial plots and the wider funeral industry. While the Bill does not cover these areas, I recognise the interest of other Members of the House in this area. The main legislative provisions currently dealing with the provision, management, regulation and control of burial grounds by local authorities are contained, in the first instance, in Part III of the Public Health (Ireland) Act 1878. However, these provisions were amended by Part VI of the Local Government (Sanitary Services) Act 1948 and, more recently, by the Local Government Act 1994.

The setting up and operation of crematoria is not specifically regulated in current legislation; however, the establishment and operation of a crematorium is subject to the provisions of other legislation such as the Planning and Development Acts, the Environmental Protection Agency Act 1992 and the Air Pollution Act 1987. The requirements may include the need for planning permission, an EPA licence or an air pollution licence. The provisions of Deputy Broughan's Bill have been closely examined. While it presents an earnest attempt to deal with the issues he has discussed, the Government is opposing it for a number of reasons, primarily because its provisions do not effectively deal with all the areas that would need to be dealt with under such legislation. The Government also has serious concerns on the proposal to establish a new agency as envisaged in the Bill, especially given Government policy regarding agencies and quangos and the resource and cost implications of such proposals, which are critical within the context of the current financial situation in the country.

There are a number of critical matters that the Bill does not provide for and which could be regarded as fundamental. I will make brief reference to some of the shortfalls. While the Bill concentrates on the establishment and functions of the authority, there is little of real substance in the Bill dealing with the regulations envisaged for either crematoria or cemeteries. Even the detail involved in the establishment and operation of the authority is not fully addressed in the Bill. For example, there is no definition of what quorum would be required for matters requiring a vote; neither is there a provision for the drawing up or publication of annual accounts nor for the possible winding up of the authority. There is no reference in the Bill to allowing a Minister to give direction to the authority on policy matters, something that would be vital to the correct running of such an authority. Furthermore, there are no provisions for expenses, remuneration, pension payments and the like for members or staff, and no rules for the absence of a member or chairperson.

While the Bill does refer in general terms to a requirement for operators to give notice of the opening or closing of a crematorium or cemetery and the requirement to keep the crematorium or cemetery in good condition, there is no reference to more specific requirements. For example, no specific requirements are set out that would have to be met by an operator in order for his establishment to be approved by the authority. There is no reference in the Bill to guidelines or further regulations that would or should be produced to ensure consistent and effective operation of such establishments. In short, there is no provision in the Bill for regulation-making power to set standards or provide guidance, which I understand is the very purpose of the Bill.

Other difficulties in the Bill include the absence of provision for the official appointment of authorised persons; no powers of entry without a warrant; no power to direct an operator to carry out a particular function; no set time periods provided to comply with a course of action directed by the authority and, rather tellingly, no express power provided to the authority to take punitive steps against an operator who fails to comply with any standards or rules in place. Indeed, there is no reference at all to sanctions in the Bill. No recognition is given in the Bill to existing provisions contained in the Acts and regulations currently on the Statute Book and which govern burial grounds. While some of this legislation is quite old, it has served us well and will continue to do so. If and when changes to these regulations are required, these changes will be duly considered and made.

Calls for a review of this legislation in recent times have been more to do with the costs involved in funerals in general, and the cost of burial plots in particular. The current legislation does not address costs, nor should it. Equally, the Bill does not refer in any way to costs. The cost of funerals in general, and burial plots in particular, are not matters that should be dealt with through legislation. These are matters for the providers of such services and any problems in these areas should be addressed directly to the providers involved.

The proposal in section 3 of the Bill that the Minister establish strategic plans on a ten-year basis for the planning, building, operation and maintenance of all cemeteries and crematoria is not acceptable to the Government. The emphasis in recent years across Government has been one of subsidiary - allowing decisions to be made locally, at the lowest possible level. This is already the case in this area. The Local Government Act 1994 specifically removed the Minister from the previously held role of involvement in dealing with restrictions on places where bodies may be buried and restriction on exhumations. Instead, it gives this responsibility to local authorities. This allows decision making in these matters to be made at a local level where local knowledge is readily available. Neither the Minister nor the Department should be dictating from afar what should be done in a county or city council area with regard to crematoria and cemeteries when these decisions can be, should be and currently are being made at a local level.

The establishment of a burial and cremation regulatory authority, as proposed, is not acceptable to the Government. As already stated, there is a requirement to examine carefully the financial implications of the establishment of any proposed new agency. The Bill states that the authority would consist of not more than seven members. It also refers to the chief executive and staff of the authority. No doubt the agency would have to secure office space, office equipment and a new logo. It would have to pay for stationery, telephones, light and heating, and all other necessary administrative supports. This is not acceptable at a time when the Government is looking to reduce the number of State agencies and the number of State employees.

The Bill states that the authority would be self-financing. This is not really the case, as it is proposed that the authority would charge a cemetery levy on all cemetery and crematoria operators. Given that the majority of cemeteries are operated by local authorities, this levy would result in the majority of the authority's finances being sourced from the local authorities. We all know the current difficulties with regard to the financial situation in the country, and in particular the situation with regard to financing of local authorities. It would be wrong, especially in the current economic environment, to levy the local authorities with a charge of this kind, given that these authorities are the very organisations that are operating the majority of the cemeteries. It must be assumed that the local authorities, and, indeed, the private operators of cemeteries and crematoria, would simply pass such a charge on to the public through higher costs for funerals, thus increasing the cost of an already expensive service.

The Bill contains no principles or policies regarding the amount of the levy and there is no cap in place to set a maximum level. Neither is there any detail as to its application to existing public or private operators. Furthermore, section 6 of the Bill proposes that the authority would have national responsibility for the long-term maintenance of all cemeteries. This proposal could have serious and costly implications for the authority. It means that the operators of all cemeteries, both public and private, would have an opt-out from maintenance of their establishments, leaving the proposed new authority responsible for such maintenance and, ultimately, for the costs which would result from this. It would be irresponsible of us to allow for such a serious and significant option to be available to operators of cemeteries - it could result in a serious financial burden for the proposed authority in future years.

Finally, I would point out that the Bill makes no reference to offences, fines or penalties that would arise if operators of cemeteries or crematoria operated without approval of the authority. Nor does it deal with the situation with regard to currently operating establishments, how these should be approved, timescales for this process, etc. There is also no indication of how the proposed authority might enforce closure of either a previously approved or a non-approved operation and what consequences there would be for the operator and establishment.

I thank Deputy Broughan for the opportunity to discuss this Bill. We have an obligation to carefully analyse any proposal that comes before the House. Having analysed this Bill, it is clear that the contents are not comprehensive enough to adequately address the issues involved in this area. Crucially, we must question whether there is a real need to enact such legislation at all, especially given the current need to use limited resources to address the most pressing needs of our communities and the need to ensure that available resources are used in the most productive way possible. I trust that this House will appreciate that for the reasons given, the Government cannot support this Bill proceeding through the House on this occasion. I give the House an assurance, however, that the issues will be monitored on an ongoing basis and will be addressed if and when required in a considered, proportionate and effective way.

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