JOINT COMMITTEE ON THE HUGUENOT CEMETERY DUBLIN (PETER STREET) BILL, 1965.
MINUTES OF EVIDENCE
Friday, 4th March, 1966.
The Committee sat at 11.20 a.m.
Members Present:—Deputies L. Booth, V. de Valera, D. Larkin; Senators J. J. Nash, J. B. O’Quigley and W. A. W. Sheldon
The Clerk to the Committee, Mr. T. P. O’Reilly, informed the members that the Chairman, Deputy G. Sweetman, was unable to attend owing to illness. He conveyed Deputy Sweetman’s apologies for his absence.
Deputy Larkin proposed and Deputy de Valera seconded that Senator Sheldon take the Chair. The proposal was agreed to unanimously.
Senator Sheldon took the Chair.
Mr. W. R. C. Parke, S.C. (instructed by Messrs. Moore, Keily and Lloyd. Parliamentary Agents), appeared for the Promoters, the Trustees of the French Huguenot Fund.
Mr. Herbert R. McWilliam, B.L. (instructed by Messrs. McMahon and Tweedy, Parliamentary Agents), appeared for the Petitioner, Mr. William Percival le Clerc.
Mr. McWilliam: I should like to apologise to everybody for my delay, which was due to a rather stupid oversight.
Chairman: I should officially say that the Preamble has been proved. If it had not been proved, we would not now be sitting. I should like to indicate what the procedure will be. There are amendments on behalf of the Promoters and on behalf of the Petitioner. The procedure will be that we shall take the Promoters’ amendments first and counsel for the Promoters will make his case for them. If counsel for the Petitioners wishes to make a case against them he will be permitted to do so. Then, counsel for the Petitioner may move his amendments and counsel for the Promoters may reply. The position at this stage is that the Committee will be informed of the views of both sides and, of course, counsel for the Petitioner may make any argument he wishes against the clauses of the Bill. Having heard this, the Committee will go into private session and deal with the Bill in Committee. They will then report to the Houses and it is only after the Bill has been reported to the Houses that the two sides will learn what has happened.
Mr. Parke: The first Promoters’ amendment which is before you is amendment No. 3 to section 3:
“In subsection (6), page 4, lines 31 and 32 to delete ‘in such other consecrated burial ground or cemetery wherein interments may lawfully take place and the Trustees consider suitable’ and substitute ‘in a plot of ground in Mount Jerome Cemetery or in such other consecrated burial ground or cemetery within the City of Dublin wherein interments may lawfully take place as shall be approved by the Trustees in writing and to be purchased by the Company in accordance with paragraph 4 (a) of the Schedule.’”
I do not propose to move the amendment because it is included in the Petitioner’s amendment No. 2 which the Promoters are prepared to accept. Therefore, it would be better if I did not move amendment No. 3 at all. It was introduced on the suggestion of the Commissioners of Charitable Donations and Bequests who drew the Promoter’s attention to the fact that sub-clause (6) of clause (3) as originally drafted did not fully carry out the terms of the proposal. The Petitioner accepted that as being correct and has put down amendment No. 2. We therefore withdraw amendment No. 3.
I come now to amendment No. 4. That was introduced at the request of the Petitioner. The scheme under which these graveyards were vested in the Huguenot Trustees provided for the maintenance of the graveyards out of the income of the trust fund. There was some discussion when the Preamble was before the Committee as to whether the position was mandatory on the Trustees. The Trustees were quite prepared to accept it as being mandatory and they tabled this amendment at the request of the Petitioner:
“Before subsection (7) to insert the following new subsection:—
‘( ) The Trustees shall provide out of the purchase money for the perpetual care of the plot purchased in accordance with subsection (6) hereof.’”
Senator O’Quigley: On the matter, might I ask how it is proposed to determine the amount of money that would be sufficient to take care of the plot which will be provided?
Mr. Parke: In fact, what will be done is the Trustees will pay to Mount Jerome Cemetery a figure of £200 which has been agreed as being the capital sum which will be provided by the Promoters for maintenance. The matter will be reviewed by the High Court when the scheme is resettled, as it will be if this Bill is passed. In fact, we have a quotation from the cemetery authorities for a capital sum of £200, which will be paid.
We come now to amendment No. 6:
“Before subsection (8) to insert the following new subsection:—
‘( ) The exhumations shall be carried out under the supervision of an officer of the Right Honourable the Lord Mayor, Aldermen and Burgesses of Dublin and in accordance with such directions as the Dublin Chief Medical Officer may give with respect to matters affecting or likely to affect the public health.’”
Perhaps we might conveniently take amendment No. 7 with it. Amendment No. 7 reads:
“Before subsection (8) to insert the following new subsection:—
‘( ) Each re-interment shall be carried out under the supervision of an officer of the sanitary authority in whose functional area the place of re-interment is situate and in accordance with such directions as the Chief Medical Officer or County Medical Officer for that area may give with respect to matters affecting or likely to affect the public health.’”
They arise as a result of representations from the Department of Local Government and we have a reply from Dublin Corporation Health Authority saying they are satisfied with these terms. I take it the Department of Local Government will be getting in touch with the Committee on the matter.
Senator O’Quigley: Is there any provision that at some stage some authority will give a certificate saying that all the remains there have been exhumed or how is that to be determined?
Mr. Parke: It is perfectly true there is no provision either in the Bill or the amendments. We submitted a case to the Department and to the local health authority, Dublin Corporation. If it is considered suitable there should be an additional clause stating that this certificate might be issued at a suitable time, that would be very acceptable to the Promoters.
Senator O’Quigley: Perhaps the Chief Medical Officer or some other officer of Dublin Corporation should be authorised to give a certificate. That would be a complete clearance and it would satisfy all concerned that all the remains there had in fact been exhumed.
Mr. Parke: That would be most acceptable to the Promoters.
Chairman: It could almost be read into amendments Nos. 6 and 7. This has to be done under the supervision of officers.
Mr. Parke: If it was considered proper that a more explicit provision be included, the Promoters would be happy to do so.
Senator O’Quigley: It would probably be better from the point of view of title subsequently.
Mr. Parke: I imagine the Company would be interested in that. However, any such suggestions would be most acceptable to the Promoters.
Chairman: The Committee can consider that point. Do you wish to say anything on the amendments, Mr. McWilliam?
Mr. McWilliam: I do not wish to say anything on the amendments suggested by my friend, but I wish to propose my own.
Chairman: Do I take it you are in reasonable agreement with them?
Mr. McWilliam: I am in reasonable agreement, yes. There is just one point. It does not, strictly speaking, arise out of anything Mr. Parke has said. In paragraph 4 (b) of the agreement, there is provision for the erection of a suitable memorial stone or tablet. That was an agreement between the Trustees and Messrs. Jacob. That agreement itself cannot be altered. The only point, is it occurred to me something might be said about the form of the memorial if one is going to be erected. There is nothing in the Bill about a memorial. After all, these were French people.
Chairman: I think it is 4 (c)?
Mr. McWilliam: That is correct, 4 (c). The Petitioner is one of the people who feels he is a person who might possibly be consulted.
Chairman: This has been before counsel for some time and he could have put in an amendment.
Mr. Parke: The interested parties will be consulted in the design of the memorial. We will certainly carry out paragraph 4 (c) of the agreement.
Mr. McWilliam: The only thing is we would hope we would be consulted. I should think there would be no difficulty.
Mr. Parke: I would hope not.
Mr. McWilliam: With regard to the Petitioner’s amendments, amendment No. 1 reads:
“In subsection (1), page 3. line 34 to add after the words ‘and shall be carried into effect’ the words ‘subject to the provisions of section 3 of this Act.’”
It is merely an addition which we think clarifies section 2 (1). I do not think any importance attaches to that. Amendment No. 2 is to delete subsection (6) of section 3 and substitute a new subsection. A great deal of the original subsection (6) remains. However, we felt it was easier to provide a new subsection. This is really to make provision for re-interring in accordance with the rites of the French Reformed Church and having the plot of ground consecrated in accordance with those rites. My client, the Petitioner, has made considerable inquiries. The French Reformed Church is, apparently, a very active body. It has four theological colleges in France and has clergy numbering between 800 and 1,000. There should not be any difficulty in obtaining information of the required nature.
Chairman: I hope you do not propose the whole 800 to come, Mr. McWilliam?
Mr. Parke: Only one.
Mr. McWilliam: Certainly not. We will not even make remarks as to the seniority of the one. The new subsection (6) reads as follows:
“(6) Not less than two months after the date of first publication of the notice required to be published by subsection (2) of this section, the Company shall remove or cause to be removed from the cemetery the remains of all deceased persons interred therein other than remains in respect of which notice has been given under subsection (3) of this section and cause them to be re-interred in accordance with the rites of the French Reformed Church in a plot of ground in Mount Jerome Cemetery consecrated in accordance with the rites of the French Reformed Church or in a plot of ground so consecrated as aforesaid in such other burial ground or cemetery within the City of Dublin wherein interments may lawfully take place as shall be approved by the Trustees in writing and to be purchased by the Company in accordance with paragraph 4 (a) of the proposal.”
That, of course, is 4 (a) of the Schedule. The significance of the alteration is the consecration of the ground and burial in accordance with the rites of the French Reformed Church.
Chairman: For the record, I take it the Promoters are accepting this?
Mr. Parke: Yes. We had more difficulty than my friend might have suggested in locating these authorities. My agent has been in touch with a M. Dubois, the present pastor of the non-conforming Reformed Church in Soho. He has arranged to come over whenever required and conduct this ceremony.
Senator O’Quigley: Will that particular pastor have faculties in this jurisdiction? There is no use putting something into the Bill if he just does not have the faculties.
Mr. Parke: I do not quite follow the Senator’s point.
Mr. O’Quigley: As I understand the position, any ceremonies carried out in the Archdiocese of Dublin must be done in accordance with faculties granted by the Archbishop of Dublin. I am just wondering whether or not this pastor——
Chairman: The Senator is getting into rather deep waters.
Mr. O’Quigley: I do not want to put in an obligation that something be done if this man has not the faculties to perform his ceremony over here. He might come to that conclusion after consultation with his superiors.
Mr. Parke: The Archbishop of Dublin has, of course, no jurisdiction whatsoever in this matter. He has been consulted and this church was never one of the churches owing discipline to his church.
Senator O’Quigley: That may be so, but are the Promoters and Petitioner satisfied that he is himself satisfied he has the faculties to perform the ceremonies.
Mr. Parke: He is perfectly satisfied. There is no French Nonconforming Church and has not been for literally more than a century and there is no person having jurisdiction in this country who would be able to either refuse or grant permission apparently. He is simply a member of the Church to which this community belonged, which has now ceased to exist, and we have inquired, and there is no person who could either refuse or grant permission.
Chairman: I am not quite sure to which Archbishop counsel is referring.
Deputy de Valera: The section merely prescribes that interment shall be in accordance with the rites of the French Church and who performs the rites does not matter apparently.
Mr. Parke: Yes.
Deputy de Valera: The only question then is are these rites sufficiently defined to answer any question arising under the section?
Chairman: Just a minute. I do not think this can arise. All we are concerned with at the moment is that we need to be satisfied; the niceties of any theological difficulties that may arise are another matter.
Deputy de Valera: I agree. There is no question of jurisdiction but there is a question as to whether under this section the rites are sufficiently defined.
Senator O’Quigley: What I want to be satisfied about is that this member of the French Reformed Church is satisfied he can do this in accordance with the rites of his Church because, if he decided he could not come over and do this, we would then be faced with a difficulty that could not be got over. Surely anybody the Petitioner nominated would be satisfactory. Even a German, I submit, could do it.
Mr. Parke: In answer to Senator O’Quigley and Deputy de Valera, this has actually been inquired into by my agent and the Church in question is a functioning church in London. He has a congregation and he is himself quite satisfied that he knows what he is doing and that he is able to do it.
Senator O’Quigley: That is all right.
Deputy Larkin: I wonder should we refer to counsel for the Promoters in regard to this. This is an amendment by the Petitioner. Could we hear the Petitioner on this particular question?
Mr. McWilliam: My Parliamentary Agents also conducted certain inquiries, in addition to the Petitioner, and they corresponded with the Presbyterian College in Belfast and the Reverend Professor Barkley wrote a long letter saying that the Presbyterian Church would be entitled, if requested by the French Church, to conduct this ceremony. That is not really relevant in a way but it shows, I think, that it can be done. Further than that I cannot help the Committee. That seems to be the position.
Deputy de Valera: I am completely satisfied on the point.
Mr. McWilliam: As to responsibility, we have done everything we can to help to find out these things, which are actually the responsibility of the Trustees.
Mr. Parke: That is why we had this inquiry.
Chairman: There is one point I should like to make clear, and I want it on the record: what the Promoters have, in fact, proposed to do in relation to this is satisfactory to the Petitioner?
Mr. McWilliam: It is, yes.
Deputy de Valera: What is satisfactory to the Petitioner—the section or the proposal?
Chairman: The new arrangement made. Is that correct? This particular clergyman is satisfactory to the Petitioner?
Mr. McWilliam: Oh, yes—any clergyman of the French Reformed Church. We are quite satisfied about that.
The next amendment, No. 4, is actually opposed.
Chairman: No. 5.
Mr. McWilliam: Oh, yes; it is No. 5. The amendment is actually opposed by the Promoters. It is supposed to follow the present subsection (6) in the Bill. That was the last subsection to which amendment was suggested. This amendment is:
“Before subsection (7) to insert the following new subsection:—
‘( ) The plot of ground to be purchased as provided by subsection (6) hereof shall be of such extent that, after the re-interment in such plot of ground of the remains of all deceased persons interred in the cemetery, there will be space in such plot of ground for the burial there in the future of the remains of not less than six such persons as would be entitled to burial in the cemetery were it not acquired by the Company.’”
The position with regard to this cemetery in Peter Street is that it was not officially closed, this Bill will deal with the closing, but it was an unclosed cemetery and it is possible— whether it is probable or not I do not know—that there are people who would be entitled to burial in the cemetery as descendants of Huguenots, or otherwise. The suggestion by the Petitioner is that there should be a very limited number of plots provided in case some person subsequently establishes his right to burial with this community. It seems not unreasonable. We are not concerned in the least about the number because it is obvious that the number would be very small. We just chose this figure very arbitrarily. It is quite possible that some person may claim and establish the right to be buried in these plots with the community of his ancestors and we suggest this is not unreasonable and, indeed, a very proper amendment to be made to this Bill.
Chairman: This is the last of the amendments?
Mr. McWilliam: Yes.
Mr. Parke: I regret to say this is an amendment the Promoters must oppose. They oppose it on the ground that, if it were granted, it would inevitably produce a situation for which, in our respectful submission, there is no legal justification whatsoever. My friend has said that it is possible that some persons may have had rights to be buried in the Peter Street cemetery. That, I would respectfully submit is not a proper basis for inserting into an Act of Parliament a provision which can only give rise to controversy and which might impose on the Trustees at some future date an intolerable burden from the point of view of investigation of title. My friend has not advanced one single word in support of his suggestion that anybody has any rights to be buried in the Peter Street cemetery. I respectfully submit that nobody has and probably never had. I must, I am afraid, now go back a little bit to some of the matters discussed here on the Preamble. This was not a churchyard in the sense that term is normally understood in ecclesiastical law, which was the law of the Established Church of Ireland subsisting in the days when the church was closed. This was a non-conforming community who purchased out of their own funds a site where the original church was and adjacent to which church they provided a burial place. Even under the ecclesiastical law of the Church of Ireland, there would be no right of burial there because that right only extended to parishioners, in the strict sense, who had the right to be buried in their own parish church. While I have no doubt it was the custom for persons who were members of that congregation, so long as it existed, to be buried there, there is not one vestige of authority to say that anybody, even in the years before the closing of the church, had a right to be buried there. They could not even in those days have done what is always done nowadays; they could not have bought a plot in perpetuity. You may recollect in regard to the Peter Street Church that the fee simple was not purchased until many years after the church closed down. The Trustees availed of an opportunity of buying the fee simple many years after the church had been pulled down. It was impossible for anybody who worshipped in that church to have done what is done nowadays, buy a plot in fee simple. Therefore there was no perpetual right of burial vested either in any private individual by reason of purchase or in any group of individuals by reason of law or custom.
It is significant to note that the last burial took place in Peter Street in 1879. That is probably explained by the fact that this was a man who in his youth—the exact date when the church was pulled down is not known but it was between 1830 and 1840—was a member of that congregation and who, perhaps, wished to be buried there because it was his church. However, it is impossible for us to say now that any person could have a right to burial there.
The funds in respect of these graveyards were vested in the Trustees under the 1917 Amendment Scheme for the benefit of Protestants of Huguenot descent. You will recollect that for a period of 20 or 30 years these graveyards were vested in nobody because the old Trustees were dead, and the two graveyards, Merrion Row and Peter Street, were lying derelict. When the Scheme was amended, the two funds, the Conforming Fund and the non-Conforming Fund, were amalgamated so as to form a common charitable fund. In that Scheme the two graveyards are specifically vested in the Trustees. Of course the original Trustees are long since gone. They were a different body altogether. The Huguenot Trustees were Trustees of these two graveyards subject to the right to maintain them, but there is absolutely no provision defining any rights of burial in them or stating that anybody could be buried there.
In the Schedule to the 1917 Scheme with reference to this graveyard, the words “disused” is put after it in brackets. It was at that time a disused graveyard, and apart from the question whether its use as a graveyard might have been unlawful, there is certainly no suggestion that anybody had any right to be interred there or that the Trustees would have been empowered in law to permit interment, certainly after 1917.
This amendment presupposes something which has never been proved and cannot be proved, because it presupposes there are persons who have rights. Consider the problem of the Trustees if this section is allowed. Some person may say: “I want to be buried in this graveyard.” How could he prove his title? What title could he have to be buried there? If he failed to prove title, the Trustees would have to refuse him, but suppose they decide, even though he has not established a title, that they will let him in. They might do that four or five times and then there would be the magic number of six. I do not know where these six people are expected to come from, since nobody has inquired about burial there since 1879. Then the seventh person will come along and he will say he has as good a title as those already there. We would involve the Trustees in the most intolerable legal wrangle. I suggest it would not be proper to insert a section in an Act of Parliament which is based upon a supposition which cannot be true, that there is any person having such rights.
Mr. McWilliam: This raises the whole issue which was discussed on the last occasion. I must re-emphasise that these Trustees are the Trustees of the burial ground. They took it as a burial ground with whatever responsibilities that requires. Their duties are to do whatever is done with a burial ground, and if that includes arranging for interments, then no matter how difficult it is for them, that is what they have to do. They now have this sum of money, and it ought to be quite simple for them to arrange for interments. It is wholly improper for the Trustees to say: “We are Trustees of this burial ground. We are not going to make any effort to look for whatever people may be entitled to be buried here.” That is not for the Petitioner in this case to sort out. The Trustees have every duty in regard to this graveyard. It is no duty of the Petitioner to say there are so many possible candidates for burial. The Petitioner has come in here and pointed out that there may be people who claim to have rights; there may be people who actually have rights. That is for the Trustees to determine, even if it causes them a little trouble. The Petitioner is merely trying to put into the Bill a clause which will protect the rights of persons who may be prejudiced by what, in effect, is equivalent to compulsory acquisition. There is no doubt that Messrs. Jacob have behaved in a very proper way in connection with this matter but so far as the graveyard is concerned, it amounts to compulsory acquisition. It is being taken under statute. Even if the Trustees have merely a right to permit burials, I do not know whether Mr. Parke is going to state on some authority that the Trustees had no right to permit any burial in this graveyard. In my opinion, he has to say to this tribunal that the Trustees had no right to permit burials in this graveyard in order to have this clause deleted. If they have a right to permit burials, they must consider any applications that come up and make provision to safeguard the claims of certain people who turn up. It seems to me he made an improper submission in this. There were one or two casual statements made by Mr. Parke. He said his Trustees knew nothing about this until the scheme. He said, in the second breath, that nobody had inquired about burials since 1879. He said that the man buried in 1879 was probably, obviously, or may have been, a person who worshipped in the church. That does not appear to me to make the least difference. If a person has a right to claim on one ground or another to be buried there, then the Trustees should make provision for considering the claim if they feel interment in this graveyard should be allowed. There ought to be provision for that. They cannot get out of this by saying that this is going to give the Trustees a lot of work. That is the burden of the claim, that this is going to give the Trustees a tremendous amount of work and they may have to search, look up and check.
They have got £20,000 here on which they can do quite a lot of searching, if the position arises. I submit this is a very fallacious argument. The last burial in Merrion Row was in 1904. We do not know whether it is suggested that that was a representative of the church that was destroyed or collapsed in 1837 or 1840, whenever it was. It seems to me there may be persons who are still entitled, or may claim to be entitled, to be buried in either of those places, if the Trustees may decide, having given reasonable consideration, that they should be buried there.
The object of a burial ground is to inter people; whether people have permanent rights or have acquired rights in perpetuity in that graveyard seems to me to be immaterial. The trustees of a graveyard are trustees, whether it is set out in the scheme that they are trustees, for the purpose of keeping it in order. They are trustees by reason of rights of interment imposed on them. They must consider applications for interments on their merits and not say they cannot consider any case because to consider the lot would be a lot of trouble.
Senator O’Quigley: Mr. Mac William, what way would people claim the right to burial in this particular graveyard? How would they establish their title? Are there any legal rights?
Mr. McWilliam: I very much doubt if there are any graveyards in which a person has necessarily legal rights to be buried in any particular graveyard. This is a graveyard and I should think there must be descendants of the Huguenots who would be entitled to say: “We wish to be buried with our forefathers.” The Trustees, if they are entitled to permit burials in the graveyard, are then bound, in the exercise of their duties as trustees, to consider it and, if it is a proper application, then to permit the burial. I quite agree with Mr. Parke, because I do not suppose there is any graveyard where there is a practice that anybody can say: “I am entitled to be buried in this particular graveyard”.
Deputy de Valera: If nobody is entitled to be buried or has the right to be buried, can anybody be buried there?
Mr. McWilliam: The position is that these men are trustees of a graveyard. If there were no trustees of the graveyard it is quite possible that certain people might bury people in it. It is very doubtful if anybody could prevent them burying them, apart from the Local Government Public Health Department. This does not arise in this case because this is a cemetery which is authorised by the public health authorities. As it is a graveyard it appears to me that people are entitled to be interred in it. It may be that a great many people do not want to be interred in it. That appears to be the position but the Trustees have a duty to use it as a graveyard and not to say they are going to close it as a graveyard and to close it for any purpose. It is possible they may have been able to do it years ago but it is an open graveyard which has not been closed.
Chairman: Is it your submission that if this transaction does in fact take place some person or persons may insist that the Trustees permit them to be buried in the present graveyard?
Mr. McWilliam: My submission is that certain people could apply to be buried in the graveyard.
Chairman: Yes, but would they have a right? Anybody can apply for anything.
Mr. McWilliam: The position is a little different from that. The Trustees are bound as Trustees to consider the merits of the applications. They are Trustees of a graveyard. They are in charge. They are not a judge sitting up and deciding whether a person has a right to be buried. They are Trustees of a graveyard which has not been closed. They are bound to act in accordance with the principles of a trustee, which is to carry out the trust.
Senator O’Quigley: If the descendants of the Huguenots have a right to be buried in this particular plot, it is a legal right. This plot is a disused graveyard and we have now to decide whether it is expedient that it should be closed. In this case is not the right to burial gone because there is nothing in relation to which that right can be exercised, the graveyard being a disused graveyard?
Mr. McWilliam: That is so, but that is not the way this is being done. This old graveyard, in effect, is being transferred to Mount Jerome. Every portion of the bodies, the tombstones and the remains are all being transferred to a special plot. The whole object of this is the plot will take the place of the graveyard and there will be a plaque erected there. This is in the nature of an exchange.
Deputy Larkin: As I understand it, this proposal is to transfer the remains to Mount Jerome, not to transfer a physical area of the graveyard, but to transfer the remains that are at present in that graveyard.
Deputy de Valera: Without prejudice to Deputy Larkin’s point, I would like to ask the question: Can Mr. McWilliam indicate if there is any one person or any class of person who presently has the right to be interred in Peter Street and could, after this Bill takes effect, have a right, that is, an enforceable claim or a claim that would be enforced against the Trustees’ discretion? Is there any such person or any such class of person presently existing? Can he even indicate such a person or class of person?
Mr. McWilliam: I can indicate a class of person who would be entitled to apply and for whom the Trustees would be entitled to exercise discretion. In fact, I do not think there is any person who can claim to have an absolute right to be buried there. There is a class of person and amongst those are the people who gave evidence here, the descendants of the Huguenots, who would be entitled to apply to the Trustees and in whose favour the Trustees, as trustees, having exercised proper discretion and considered the case, would be entitled to permit burial in Peter Street. That is the position as I see it.
Deputy Booth: Do we not come to the point that what Mr. McWilliam is asking is that the Trustees should be authorised to make provision for such people as may in the future wish to be buried? Is he not prejudging the whole issue by including the word “entitled”, because there has been no evidence so far of any entitlement whatever? I am quite sure there will be people in the future who may wish to be buried in close proximity to other people of a certain descent but it would hardly be possible to include the section in an Act, assuming that there is an entitlement, when, in fact, there is no evidence of any entitlement whatever.
Chairman: At the moment all we want to establish is Mr. McWilliam’s point of view on behalf of the Petitioner and Mr. Parke’s point of view on behalf of the Promoters to make sure we are clear as to what is sought.
Deputy de Valera: Also to give counsel the opportunity to answer points which may arise against them.
Deputy Booth: I should like to know whether I am right in feeling that what Mr. McWilliam is really driving at is that certain people might wish to be buried with other people of a certain descent.
Deputy de Valera: There is just one other point I should like to ask Mr. McWilliam and give him an opportunity of answering. Even supposing there is such a class of person existing at the present moment, as far as I can see, sufficient notice is not being given of all these deliberations and proceedings, such as in an ordinary legal case where a decision, judicial or parliamentary, has to be made. There is not sufficient notice now being given.
Mr. McWilliam: I think there is a slight fallacy in that argument. It is this—I think people really do not consider their interment until they are getting near the end of their days. We are here to see that people who would have claims or rights are not precluded by the Bill passed on a matter of which they were not directly notified. It would occur to me that the following is the sort of person who might wish to claim this privilege—shall we say—supposing the last descendant of one of these three or four families is a bachelor and dies at the age, say, of about 80. Supposing that happens, I can see quite easily that he might say— “Well, I am the last of this line and I would like to be buried with my ancestors”. That is a case which is quite possible and which the trustees would be bound to consider and exercise proper discretion in their consideration. I can see that that is a possible case and I can see that it is a case in which the Trustees might say: “Yes, certainly, because he is the last of his line, he should be buried with his ancestors.”
Deputy de Valera: But might the Trustees not equally refuse?
Mr. McWilliam: We are bound to leave them open to exercise such a discretion.
Chairman: I think we are quite clear.
Mr. Parke: This would not give any discretion. It is “the persons who are entitled.” That is one of the major complaints I had about this amendment. It is only “such persons.” If a man came along and said he wanted a discretion, this would not give any discretion.
Mr. McWilliam: I quite appreciate the point made by Deputy Booth that “entitled” is clearly the wrong word. The principle of the thing— “such persons as would have claims to burial”—would be quite sufficient. I think the general point I made must be clear to everyone. If the matter were decided the phraseology could then be adapted to suit the principle.
Deputy de Valera: We are back to this word “claim”. This is an Act of Parliament which will have to be interpreted, so before this section can be considered, I should like to have the proper word inserted.
Mr. Parke: What Mr. McWilliam has been saying— “wishes to be buried” is what it boils down to. I would resist “entitlement” or “claims”.
Mr. McWilliam: I think “wishes to be buried” would probably meet the case but then, of course, Mr. Parke would probably require something like “at the discretion of the Trustees.”
Mr. Parke: Of course. This is described as a disused graveyard and in the Open Spaces Act of 1887 the description “disused burial ground” was amended by defining it as:
… any burial ground which is no longer used for interments, whether or not such ground shall have been partially or wholly closed for burials under the provisions of any statute or Order in Council.
Chairman: I think we are clear now. Is there anything you would like to say, Mr. McWilliam, in regard to any of the clauses of the Bill?
Mr. McWilliam: No, Mr. Chairman. I have no further observations to make.
Senator O’Quigley: I should like to ask Mr. Parke about subsection (5) of section 3 which provides:
The expense of any removal and re-interment under subsections (3) or (4) of this section… shall be defrayed by the Company, and in case two or more remains are so removed from any one grave that sum shall be apportioned equally according to the number of remains so removed.
And subsection (8) says:
All monuments or tombstones relating to the remains of any deceased person removed under this section shall, at the expense of the Company, be removed and re-erected in the place of re-interment of the remains or in such other place as the High Court may direct on the application of the Company or any heir, executor, administrator or relative of the deceased person, or in case no such application is made, as the Trustees consider suitable.
If a private individual arranges for the exhumation of the remains, I take it the Company will, in that case, undertake to pay for the re-erection of the tombstone or memorial.
Mr. Parke: It would seem that that is so because subsection (8) says:
… any heir, executor, administrator or relative …
It would appear that if the relative of the person so entitled under the Bill wished to have the remains of his particular ancestor interred in some other place, he would have the right under subsection (8) to require not only payment for the removal of the remains but also of the re-erection of the tombstone.
Deputy de Valera: May I ask just one further question which is worrying me? This got confused at the earlier stage. Is the phrase “rites of the French Reformed Church” perfectly defined? Leave out all considerations of “who” or “where”. Are the words “rites of the French Reformed Church” perfectly defined to stand in an Act of Parliament. This is, do both counsel agree on that?
Mr. Parke: We have made considerable inquiries and we are satisfied, as a result of our conversations with M. Dubois that they are sufficiently defined.
Mr. McWilliam: I agree about that. In case the Committee might wish to consider it, I can suggest an amendment: “Such persons of Huguenot descent as shall satisfy the Trustees that it would have been proper for such persons to be interred in the cemetery were it not acquired by the Company.” I agree that the first draft is unsatisfactory.
Deputy Larkin: What does “Would be proper to be interred” mean?
Mr. McWilliam: That it would be in the discretion of the Trustees.
Deputy Larkin: I am a layman. What does it mean from the point of view of an Act of Parliament?
Mr. McWilliam: It leaves it entirely at the discretion of the Trustees.
Mr. Parke: What we were desperately anxious to avoid was “entitlement”. That seemed to raise the most appalling difficulties.
Chairman: I do not like the phrase “not less than six persons”. I would prefer “not more than”.
Mr. McWilliam: I agree.
Mr. Parke: I am obliged to you; I intended making that comment myself.
Chairman: It was a point I intended to make to the Committee. Thank you. gentlemen. The report of the Committee will be laid before both Houses of the Oireachtas.
The Committee went into private Session.