David Pierce
Irish Monumetal Firms Association,
10 Boroimhe Maples,
Swords,
Co. Dublin
28/10/2015
Opening statement,
Oireachtas inquiry on Cemetery Management Bill
Dear members of the Oireachtas,
We, the Irish Monumental Firms Association, are of the view that the enactment of the
Dublin Cemeteries Act 1970 (“The Act”) has led to the deterioration of the trade of
independent monumental sculptors in the Dublin area, having regard to the activity of the
Dublin Cemeteries Committee (“DCC”) continuing to trade in competition with independent
sculptors.
You will recall that the Act is a private act which is the culmination of a bargain between the
promotors of the Act and the State. Prior to enactment of a private act, we submit that is it
incumbent on the State to consider, and if necessary, consult with those persons that may be
affected by the Act. We have read the minutes of the meetings of the Oireachtas which
predicated the enactment of the Act, and can confirm that there was no such consideration or
consultation with third parties involved in the business of independent sculptors.
Arising from the above, it would appear to us that the future commercial interests of the DCC
in the trade of sculptors and sellers of monuments was not initially envisaged by the
Oireachtas, or if it was envisaged by the Oireachtas, they failed in their duty to consider the
impact of the Act on persons which may be affected. It is noteworthy that the DCC did not
trade commercially in the sale of monuments for a number of years post the enactment of the
Act. In 1975, Dublin Corporation demanded rates from the committee arguing that making
and selling headstones was not a charitable activity.
The definition of a private act is “as opposed to matters of public policy”. The provision of
headstones was always a matter of public policy, i.e. made and sold by tradesmen, therefore a
private act is not a proper legislative instrument for this activitiy. The purpose of a private
act is to afford relief to a party from other laws, and to grant a unique benefit to such party
which is not available in general law, i.e. it is for a specific purpose. It appears to us that the
purpose of the Act was to promote and assist the enhancement of Glasnevin Cemetery, but
we submit that the Act goes way beyond affording the DCC the power of assisting the
enhancement of Glasnevin Cemetery, insofar as it affords the DCC the right to acquire
further cemeteries to advance a commercial object.
Historically, all private acts have been confined to one project and one location, for example
a bridge or harbour or a tramway. All other private acts with regard to cemeteries have
confined their promotors to one location. This is a simple and logical rule adhered to for
hundreds of years, otherwise how could parties whose private interests may be affected by
the future activities of such promotors be aware of what lies ahead. The DCC now owns and
controls five cemeteries.
Standing orders of the Oireachtas require promotors of a private Act for the purpose of
cemeteries or crematoria to correspond in writing to all households within 300 yards of their
proposed new venture. The DCC has not once complied with this order.
Noting the granting of charitable status to the DCC by the state, it would appear that the
power to pursue commercial objects, the actual pursuit of commercial objects, all coupled
with the application of funds not specifically directed to the preservation and enhancement of
Glasnevin Cemetery is completely at odds with the charitable status afforded to the DCC.
It is further questionable whether the affording of charitable status constitutes state aid which
potentially contravenes competition legislation (see enclosure from The Competition
Authority).
Of great concern is the lack of redress available to those offended by the Act. There is no
role for a government minister and absolutely no regulation of the DCC’s activities. Over a
number of years we have contacted various Environment and Justice Ministers and Taoisigh
Bertie Ahern and Enda Kenny. They have all stated that as the law stands at present they
have no control over the DCC. The Revenue Commissioners have refused to meet us and are
claiming client confidentiality. The DCC is also outside the ambit of the freedom of
Information Act. Furthermore, the Competition Authority have come to the conclusion that
state aid is outside its remit and is of no help to us. The European Commission has stated that
unless the activities of the DCC affect intra EU trade there is no case to answer.
In 2009 the Supreme Court, in David Pierce T/A Swords Memorials v. The Dublin
Cemeteries Committee, found that the commercial sale of headstones was intra vires.
However Mr. Justice Nicholas Kearns, in a dissenting judgement, stated that the DCC was a
philanthropic body and that the DCC 1970 Act did not confer on it the power to retail
headstones commercially. Furthermore, he said he was fortified in his belief because the Act
clearly envisaged charitable status, and as such, these positions were mutually exclusive. The
fact that eminent Judges can arrive at totally different conclusions indicates how carelessly
this Act was framed. A private act is meant to be a very strictly construed, with no room for
ambiguity or wide interpretations. If the sale of headstones was intended, then affected
parties should have been notified. However if the sale of headstones was not intended, then
the legislation was shoddily constructed.
To conclude, we the Irish Monumental Firms Association in our presentation to this
Oireachtas Committee, will show how the activities and powers of the DCC have led to the
closure of over twenty Dublin Monumental firms, including the iconic firm Farrells of
Glasnevin (incidentally, during this period the number of monumental sculptors in Cork,
Galway and Limerick has trebled). We will also show how our firms’ turnovers have
collapsed.
The DCC is an unelected, unregulated and unaccountable body which consistently abuses its
regulatory powers to gain competitive commercial advantage. It is a body of perpetual
succession consisting of thirteen private individuals with very wide and unfettered powers,
and is out of place in a democratic society. There really should be no place for it in a modern
Ireland. They need to be under the authority and scrutiny of a regulator or at the very least of
a government minister. This problem originated in the Oireachtas, and can only be repaired
by the Oireachtas.
Yours sincerely,
David Pierce
On behalf of the Irish Monumental Firms Association.