Martin Conway (Fine Gael)
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I welcome the Minister of State, Deputy Ann Phelan. In 1649, when Oliver J. Cromwell was defending the Rump Parliament, with which he was associated in London, he and his generals and troops came to Ireland, to County Clare. One of his generals was famously quoted as saying on the Burren that there was not enough "water to drown a man, nor a tree to hang him, nor soil enough to bury him." He was saying, in effect, "Let us get out of here." The reason I have tabled this Commencement matter is that there is barely enough soil to bury a man. The fact is Clare is a limestone county, with concentrations spreading from Ballyvaughan to Doolin and the Cliffs of Moher to parts of the east and west of the county. There is a solid limestone base which can become Moher flag and other strong rock. As such, it is very difficult for grave diggers to dig.

I am sure the Minister of State will agree that the 1888 Act which governs the digging of graves and which was amended in 1929 merits re-examination. The eight feet depth requirement is causing much distress for undertakers in County Clare and particularly families when seeking a new plot on which to inter a loved one. At a depth of about five feet grave diggers hit concrete and literally specialised machinery is needed to reach a deptj of eight feet. I understand Clare County Council is considering the by-laws, as the issue is causing much distress. All of the undertakers in the county have made strong representations on the need to have it addressed, but the county council can only do so much. As the Minister of State is aware, by-laws are governed by national legislation; therefore, the scope to act is limited. If the Minister of State was to give a commitment that the Government would look at amending legislation to loosen the eight foot rule, that would be helpful. Obviously, where a depth of eight feet can be reached, that is the desirable outcome, but where it cannot, there is a need for significant flexibility to facilitate burials in graveyards in which families wish to have loved ones buried. Given her background, the Minister of State will understand the importance of burial grounds to communities.

Ann Phelan (Carlow-Kilkenny, Labour)
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I thank the Senator for raising this very sensitive issue. Coming from a rural background, I am aware that there are traditions at burial grounds that can sometimes fall foul of rules and regulations. It is terrible if a family have to endure this at a time of distress. It would be prudent to look at the matter to see where difficulties are being caused. I thank the Senator for raising the matter as it allows me an opportunity to outline the regulations governing burial grounds. As he has pointed out, the primary legislation dealing with the management and regulation of burial grounds by local authorities is the Public Health (Ireland) Act 1878, as amended by the Local Government (Sanitary Services) Act 1948 and, more recently, the Local Government Act 1994. Legislative provision is also made in the Rules for the Regulation of Burial Grounds 1888, as amended.

While the primary legislation provides the broad legal framework for burial grounds, more specific matters relating to the management of burial grounds, including the depth of burial plots, are provided for in the burial ground regulations which require each grave, when opened for the first interment, be sunk generally to a depth of at least eight feet. This depth is considered necessary to protect public health, while also allowing for more than one interment in a particular burial plot. In certain circumstances, however, for example, where the nature of the ground does not permit a grave to be sunk to the minimum depth, it may be sunk to a lesser depth. This is a matter for the consideration of the local authority in consultation with the Health Service Executive which must certify that the depth is sufficient for the protection of public health. More than one interment in such plots is prohibited.

Concern has been raised recently in some areas about the depth of burial plots, notwithstanding the fact that the relevant regulations have been in effect for more than 100 years. In particular, concerns have been raised on health and safety grounds, with suggestions the regulations are inconsistent with more recent health and safety legislation. In the first instance, all workplaces are subject to safety, health and welfare at work legislation. They include local authority graveyards. Second, it is possible to comply with both the burial ground regulations and the relevant health and safety legislation. In this regard, the Health and Safety Authority, in conjunction with local authorities, has developed a safe system of work plan for employers and employees working in graveyards.

While the application of the system is a matter for each local authority, it can be applied through local authorities' own health and safety procedures and policies. For example, Cork County Council has issued a policy on occupational safety, health and welfare in respect of works in local authority owned graveyards. It covers, among other things, the excavation of graves. It provides that graves must be machine excavated in all save exceptional circumstances, but it also sets out procedures to deal with situations where, for example, in older rural graveyards excavation by machine is not possible. Accordingly, it is not considered necessary to amend the existing burial ground regulations. In the first instance, local authorities have sufficient scope to apply the regulations practically to deal with atypical circumstances as they arise and, second, it is possible to implement the regulations in a manner consistent with health and safety legislation.

Martin Conway (Fine Gael)
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I wish to ask a short supplementary question. Is there a procedure in place whereby the HSE can certify that it is not possible to adhere to the eight feet depth requirement in a particular graveyard or does it have to be done on an individual basis? Clare County Council is about to implement by-laws. Is it fair to say the council has broad discretionary scope in dealing with the eight feet depth requirement?

Ann Phelan (Carlow-Kilkenny, Labour)
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I will have to check if the council has broad discretionary scope and will come back to the Senator on the issue. As a practical step, we might wait and see what happens when the by-laws are introduced to see if the problem will still persist. I give a commitment that I will then relook at the issue, if that is satisfactory to the Senator.

Martin Conway (Fine Gael)
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I thank the Minister of State.