Guardianship (Missing Persons) Bill (First sitting)
(Limited Text - Ministerial Extracts only)
Read Full debateTuesday 21st February 2017
(7 years, 10 months ago)
Public Bill CommitteesGuardianship (Missing Persons) Act 2017 Read Hansard Text
This text is a record of ministerial contributions to a debate held as part of the Guardianship (Missing Persons) Act 2017 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Richard Burgon (Leeds East) (Lab)
It is a great pleasure to serve under your chairmanship, Mr Hanson. With your permission, I will make all my remarks to the Committee in this debate.
I congratulate the hon. Member for Thirsk and Malton on all the work that he has done to introduce the Bill. As he says, it fills a gap that many people are lucky enough not to be aware of. He knows better than most here that such a Bill has been a long time coming and is very welcome indeed.
I can confirm, as expected and as hon. Members will be aware, that we will not oppose the Bill. We support it, and there is strong cross-party support for filling this gap in the law. I understand that the Missing People charity, one of the main promoters of this change in the law, endorses the Bill as drafted. As has been discussed, and as hon. Members know, there is no mechanism in England and Wales to protect the property and affairs of a missing person. As we have heard, the Bill seeks to change that. The absence of such a provision has led to profound hardship for many people.
Hon. Members will recall the Westminster Hall debate in March 2016 in which hon. Members spoke passionately of the experiences of themselves and their constituents, which are relevant to the Bill. As many will remember, the hon. Member for York Outer spoke of his constituent Peter Lawrence, whose daughter Claudia Lawrence has been missing since 2009. It is a well-known case, and I understand that it was announced last month that a review of the case is to be scaled down. I know that Peter Lawrence has campaigned vigorously alongside Missing People for a change in the law for some time. My hon. Friend the Member for Neath also spoke of her personal experience of her uncle vanishing abruptly.
The anguish that those circumstances must cause to families is truly unimaginable to those who have not known the uncertainty and trauma of such a loss. The inability to manage a missing person’s property and finances can only add to that distress, anxiety and anguish. Of course, there may be dependants who require financial support, outstanding bills and obligations or mortgage payments on which families rely—it is very welcome that the hon. Member for Thirsk and Malton has mentioned the support for the Bill from the Council of Mortgage Lenders. As I have mentioned, the importance of trying to maintain some measure of order while a loved one is being traced is perhaps overlooked by the rest of society, who cannot imagine such a situation. Plainly, that needs to be corrected, which is why we welcome the Bill.
There have been faltering attempts at legislation before, so I am glad that we are now seeing real, practical progress. Hon. Members will recall that the Ministry of Justice launched a consultation in 2014, and on 23 March 2015 confirmed that the coalition Government would legislate to create the legal status of guardian of the property and affairs of a missing person. The Ministry recognised the strong support for such an advance in the law. The Justice Minister at the time, Lord Faulks, released a written statement in which he expressed a wish that legislation would follow quickly in the following Parliament.
While the expected legislation did not materialise as swiftly as people would have liked, we are pleased to see practical progress being made today. On 6 June 2016, my hon. Friend the Member for Stockport tabled an early-day motion noting the delay in progress and requesting that the Government urgently set out a timetable. However, it is the private Member’s Bill from the hon. Member for Thirsk and Malton that has brought us to this position, and we seem to be well on the way to introducing a piece of practical, useful and necessary legislation.
The hon. Gentleman has previously estimated that some 2,500 people could benefit from a law of this kind. As we have heard, it will give the courts the power to appoint a guardian to manage the property and affairs, and act on behalf, of a missing person. The Bill also proposes safeguards to ensure that that guardian is accountable and acts in the best interests of the missing person. Moreover, the Bill takes inspiration from an existing precedent in Australia, which has a legal system that shares some similarities with our own.
To reiterate, it is welcome that the House is legislating to fill the gap in the law. There has been long-standing and consistent cross-party support for legislation to address the issues. Moreover, campaigners and other interested parties, including the Council of Mortgage Lenders and the charity Missing People, support the Bill in its current form. There is therefore welcome agreement across the board on the issue. We must not drag our heels. I am glad that we have the opportunity to see the Bill progress today.
The Parliamentary Under-Secretary of State for Justice (Dr Phillip Lee)
It is a pleasure to serve under your chairmanship, Mr Hanson. I congratulate my hon. and long-standing Friend the Member for Thirsk and Malton on introducing a Bill to create the new legal status of guardian of the property and financial affairs of missing people and on presenting the case for clauses 1 to 7 to stand part of the Bill.
The Government have indicated on several occasions in recent months—not least in reply to questions from my hon. Friend and other Members from all parts of the House—that we intend to bring forward legislation on the subject as soon as parliamentary time allows. It will therefore come as no great surprise that the Government welcome the Bill and intend to support it. I also very much welcome the support of Her Majesty’s Opposition.
Nothing can cure the emotional and psychological pain caused by the sudden, unexplained disappearance of a loved one, but changes to the law can help to provide solutions to some of the practical problems faced by those left behind. Clauses 1 to 7 provide the core of a legal framework within which the best interests—in a wide sense—of the missing person can be protected and those left behind can be sustained in a way that it is reasonable to think the missing person would have approved, had he or she been present.
The clauses define when a guardian may be appointed, the terms on which he or she may be appointed and the duration of the appointment, where a person is “missing” as defined in clause 1. My hon. Friend has provided a clear explanation of the purpose of the Bill’s provisions, and I do not intend to repeat his observations. I urge the Committee to agree that clauses 1 to 7 should stand part of the Bill.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Clauses 2 to 7 ordered to stand part of the Bill.
Clause 8
Guardians and effect of guardianship order
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss clauses 9 to 25 and the schedule to the Bill.
Kevin Hollinrake
Quite simply, clauses 8 to 25 cover the guardian’s obligations, the role of the Office of the Public Guardian, the relevant courts that would supervise the proceedings, and the code of practice. On that basis, I commend the clauses to the Committee.
Dr Lee
I thank my hon. Friend for his explanation of clauses 8 to 25. The clauses build on the foundation laid by clauses 1 to 7 and lay out the remainder of the legal framework to which secondary legislation and codes of practice are to be added. The clauses are unified by the theme of the guardianship, but are fairly disparate in their detail.
First, the clauses deal with the obligations of the guardian and the effect of his or her dealings with third parties. In that respect, the guardian is obliged to act in what he or she reasonably believes to be the best interests of the missing person and is to be treated as the agent of the missing person. Third parties dealing with the guardian need to know where they stand, just as they do with any agent.
Clauses 8 and 11 build on the law of agency and the provisions relating to deputies in the Mental Capacity Act 2005. Clause 10 allows guardians and others to seek instructions from the court on how to act. Personal representatives and trustees have similar options. Once appointed, a guardian will be entrusted by the court with authority to act on behalf of the missing person, but circumstances may change. Clauses 12 to 15 create a system within which orders can be changed by court order or revoked, whether by court order or automatically, in the light of changing circumstances.
Guardians will be held to account by third parties under clause 11, where the guardian acts outside their authority. They will also be subject to the supervision of the Public Guardian, by virtue of clause 17. Here, too, the Bill draws on the existing legislation relating to deputies, as it does in clause 22, in relation to the issues of codes of practice, to provide guidance to guardians and others.
I welcome the inclusion of the definition of the best interests of the missing person in clause 18, particularly the provision allowing for further definition of that concept through regulations subject to the affirmative resolution procedure. None of the secondary legislation that may be created under the Bill has yet been drafted, but a memorandum on the powers has been sent to the Delegated Powers and Regulatory Reform Committee in the other place. I certainly envisage that the draft legislation will be subject to consultation with stakeholders and experts.
I do not think that I need to comment on any other aspects of the Bill, save to say that I hope that all the necessary secondary legislation can be made within a year of Royal Assent, so that if the Bill is enacted, it can be brought into force in 2018. I commend clauses 8 to 25 of the Bill to the Committee.
Question put and agreed to.
Clause 8 accordingly ordered to stand part of the Bill.
Clauses 9 to 25 ordered to stand part of the Bill.
Schedule agreed to.
Question proposed, That the Chair do report the Bill to the House.
Kevin Hollinrake
On a point of order, Mr Hanson. I would just like to thank a number of people. I thank our wonderful doorkeepers and Hansard reporters, all colleagues across all parties who have given up their time today and on many other occasions, the Clerks for their essential guidance, the officials from the Ministry of Justice, particularly the excellent Mr Hughes, who has been tremendous, and of course our superb Ministers, who have been so supportive. Of course, I also thank everyone connected to the Missing People organisation, which has campaigned so hard and for so long for the introduction of this legislation.
I am grateful to Members from all parts of the House and to Members of the other place who have pledged their support. I give particular thanks to my hon. Friends the Members for York Outer and for Selby and Ainsty and to the hon. Members for York Central (Rachael Maskell), for Stockport and for City of Chester, who have been so supportive and worked so hard on this issue. I was simply in the right place at the right time and have hopefully carried the baton over the last few yards. I am also very grateful to the Select Committee on Justice and the all-party group on runaway and missing children and adults for their work.
I offer my final and most important thanks to my constituents, Mr and Mrs Lawrence—Peter Lawrence is here today—who have championed the cause of guardianship, even though it can no longer help with their situation. They are, of course, the parents of Claudia Lawrence, a missing person since 18 March 2009, nearly eight years ago, her fate still unknown. As a testimony and tribute to their endeavour, their eternal hope, their endless fight for answers and justice, and their selfless commitment to help others faced with similar tragic circumstances, I very much hope that this legislation, if effected, will always be known as Claudia’s law.
Question put and agreed to.
Bill accordingly to be reported, without amendment.
Friday 24th March 2017
(7 years, 8 months ago)
Commons ChamberGuardianship (Missing Persons) Act 2017 Read Hansard Text Amendment Paper: Notices of Amendments as at 24 March 2017 - (24 Mar 2017)
This text is a record of ministerial contributions to a debate held as part of the Guardianship (Missing Persons) Act 2017 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
Philip Davies
Yes, that is right. If I did mislead the House, I certainly did not intend to. I thought I had made it clear that it was a maximum of four years, but if I did not, I apologise to my right hon. Friend and to the House. He is right: it is a maximum, and it does not need to be exactly that. However, that does not necessarily overcome the point made by my hon. Friend the Member for Christchurch (Mr Chope) that a decision for four years could be made in good faith and is then superseded, possibly causing an issue.
Again, I pray in aid the consultation on these matters. It received a range of views on the appropriate duration of guardianship appointments. Two respondents said they agreed with the proposed maximum term of four years, while there were suggestions from four other respondents, including for a shorter period of just one or two years, with one proposal of eight years. Perhaps my hon. Friend the Member for Thirsk and Malton is saying that we should split the difference and go for four years, and that is the consensus—I do not know. As I said, there are examples in other countries. In Victoria and the Australian Capital Territory, the administrator or manager is appointed initially for up to two years, which can be extended for a further two years. I wonder whether that might have been a more sensible way of going about it. It is the same in Irish law, with an initial two years that can be extended for a further two years. That might be better than a straight four years right from the word go.
My amendments are in no way seeking to cause any problems for the Bill; they are simply to give it some scrutiny that up to this point it has not had, as I am sure my hon. Friend will be the first to concede. Legislation does deserve some scrutiny, particularly when it is as meaty as this. I look forward to his and the Minister’s response to the issues I have raised and their explanations for some of the details in the Bill.
The Parliamentary Under-Secretary of State for Justice (Mr Sam Gyimah)
I am keen for this Bill to progress.
Amendment 1 relates to the definition of when a person is missing for the purposes of the Bill. The amendment would remove clause 1(4), which relates to the absence of the missing person. Without that subsection, it would be unclear whether, for the purposes of the Bill, the person detained in prison or otherwise would be treated as being
“absent from his or her usual place of residence and usual day-to-day activities.”
Amendment 2 addresses a different aspect of the question of whether a person is missing for the purposes of the Bill. First, the Bill already provides in clause 20(1) that the application must be advertised in accordance with the rules of the court. The subsection provides that
“notice of the application and any other information specified by rules of court”
must be sent
“to the persons specified by rules of court”.
Secondly, the procedure for hearing the application will be governed by rules of court. Those rules have not yet been written, but they will specify the information that needs to be provided to the court with the application. That is likely to include a requirement that the application is supported by evidence of the various issues on which the court must be satisfied before it can make a guardianship order in accordance with the Bill.
Mr Gyimah
I congratulate my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) on introducing the Bill to create the new legal status of guardian of the property and financial affairs of a missing person and on bringing it so far so quickly. The Government are committed to creating that new legal status and are pleased to support the Bill.
The proposals in the Bill have taken some time to evolve. It goes without saying that the Bill will not create a panacea for all the troubles and anguish caused by a sudden and unexplained disappearance; however, it will provide a clear, practical procedure for those left behind to use to find solutions to the financial problems they face. Putting one person in charge of another person’s property and affairs is a very significant step, but guardianship is not unique in that respect.
The Bill has been modelled in part on the provisions for the appointment of deputies in the Mental Capacity Act 2005. The guardian is, for example, to be treated as the agent of the missing person. I hope that businesses and other organisations can therefore relatively quickly adapt their systems to accommodate the new status and deal with guardians confidently.
Mr Gyimah
I can assure the House that the Government support the Bill and that we will do everything in our power to introduce those regulations, so that they can come into force as soon as practicable.
Putting one person in charge of another person’s property and affairs is a significant step. As I have said, guardianship is not unique in that respect. The character and qualities of guardians will be critical. Guardians can therefore only be appointed by the court and can be held to account for their actions by individuals affected. They will also be subject to supervision by the Office of the Public Guardian. The detail of the supervisory regime will be worked out in secondary legislation and codes of practice, as is the case for deputies.
The key principle that the guardian must observe is that he or she must act in the best interests of the missing person. “Best interests” is defined in the Bill and may be further defined in regulations, but it does not simply mean preserving and protecting—and, where possible, augmenting—the assets of the missing person. That would certainly do some good—as against the return of the missing person—but would do nothing, until the missing person returned, for those left behind. The guardian is therefore able, subject to the tests in the Bill and the terms of the guardianship order, to use the missing person’s assets for the benefit of people whom, had he or she not disappeared, the missing person would probably have supported.
I acknowledge the unstinting efforts of the charity Missing People, which, along with its pro bono lawyers, Clifford Chance, has assisted the Ministry of Justice in preparing legislation. The Department is grateful to the charities Prisoners Abroad and Hostage UK, which have contributed to the Bill’s development. I thank my hon. Friend the Member for Thirsk and Malton for his hard work in steering the Bill thus far. I am grateful to all the families affected by disappearances who have shared their experiences in public to help to raise awareness of the need for reform and to Peter Lawrence in particular. As my hon. Friend said, in the letter of the law this is called the Guardianship (Missing Persons) Bill, but it will always be known as Claudia’s law.
The Bill has been a long time in getting to this stage. The all-party parliamentary group on runaway and missing children and adults called for legislation in 2011, and the then Government undertook in the cross-Government missing children and adults strategy, published that year, to consider whether legislation was required. I am delighted to commend the Bill to the House.
Question put and agreed to.
Bill accordingly read the Third time and passed.
Thursday 6th April 2017
(7 years, 8 months ago)
Lords ChamberGuardianship (Missing Persons) Act 2017 Read Hansard Text Amendment Paper: Notices of Amendments as at 24 March 2017 - (24 Mar 2017)
This text is a record of ministerial contributions to a debate held as part of the Guardianship (Missing Persons) Act 2017 passage through Parliament.
In 1993, the House of Lords Pepper vs. Hart decision provided that statements made by Government Ministers may be taken as illustrative of legislative intent as to the interpretation of law.
This extract highlights statements made by Government Ministers along with contextual remarks by other members. The full debate can be read here
This information is provided by Parallel Parliament and does not comprise part of the offical record
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I add my congratulations to the noble Baroness, Lady Hamwee, on introducing this Bill. The Bill is similar in content and purpose to the Missing Persons Guardianship Bill, which she introduced in June 2016. I am grateful to her for withdrawing her Bill and taking on the present Bill, which is supported by the Government. It will create a new legal status of guardian of the property and financial affairs of a missing person.
The proposals now in the Bill have taken some time to evolve and have been developed in the light of views expressed from several sources over time. First, the All-Party Parliamentary Group for Runaway and Missing Children and Adults called for legislation in 2011, and the Justice Select Committee recommended guardianship legislation in its Presumption of Death report in 2012. These calls were supported during the passage of the Bill that became the Presumption of Death Act 2013. This parliamentary activity was supplemented by a public consultation on proposals for a scheme of guardianship by the Ministry of Justice in 2014. The response to that consultation, as already indicated by the noble Baroness, was overwhelmingly supportive.
Before commenting on the content of the Bill that has emerged from this extended period of development, I too acknowledge the work of the campaigners within and outside Parliament for the introduction of this guardianship Bill. I will not detain your Lordships with a lengthy list but in addition to the noble Baroness, Lady Hamwee, I would mention the noble Baroness, Lady Kramer, who introduced a Bill in similar terms to that of her noble friend Lady Hamwee, and my noble friend Lord Boswell, who promoted a Presumption of Death Bill in 2009 that started the train of legislation that we carry forward today. I also acknowledge the work of the Justice Committee in the other place and, outside Parliament, the campaigning of the charity Missing People, along with the help that it and we have received from Clifford Chance LLP in acting as pro bono lawyers to that charity.
Missing People and the charities Hostage UK and Prisoners Abroad, which have also supported the preparation of the Bill, bring together and give voice to the experiences of the individuals and families caught up in disappearances, as referred to by the noble Baroness, Lady Hamwee. I am grateful to all those who have contributed to their work and in particular to Claudia Lawrence’s father, Peter Lawrence, who I understand is here. He has campaigned to create a practical legal remedy for the benefit of all people caught up in the property and financial effects of disappearances.
I now turn briefly to the substance of the Bill. The Bill is necessary because, although the law assumes that a missing person is alive until the contrary is proved, the missing person’s property is effectively left ownerless while he or she is missing. No one has legal authority to protect it or to use it on their behalf. This can lead to practical and financial problems for the missing person, his or her family and others.
At present, people simply have to find ways to get by. Unlike situations where it is thought the missing person has died, there is no legal framework to assist the individuals caught up in the difficult consequences of a disappearance. The experiences of those left behind demonstrate that there is a gap in the law and that suitable advice is difficult to find. Families may be hit hardest, but banks and other institutions have to deal with cases of disappearance on an ad hoc basis, increasing uncertainty and risk.
Other approaches to reform would have been possible, but the creation of a new status of guardian of the property and affairs of a missing person is intended to fill the gap in the law in a way that will provide an accessible and readily understandable legal solution, while still protecting the interests of the missing person.
The first and foremost protection is that guardians will be appointed only by the court. The court must be satisfied that the person to be appointed is suitable to act as guardian and will act in the best interests of the missing person. The court will be either the High Court or the Court of Protection, and the Lord Chancellor will make this choice after consulting the Lord Chief Justice. The court will be able to impose conditions and restrictions in the terms of the appointment, including restricting the length of the appointment to less than the maximum four years permitted by the Bill. The court also has power to vary and revoke appointments.
The Bill also provides that interested parties will be able to hold guardians to account by court action and that guardians will be supervised by the Office of the Public Guardian, which will maintain a register of appointments and deal with complaints about the way a guardian is exercising his or her authority.
In this last respect and in a number of other places, the proposals in the Bill broadly follow the model of the provisions governing the appointment of deputies in the Mental Capacity Act 2005. The guardian will, for example, be the agent of the missing person, in much the same way as the deputy is the agent of the patient under the Mental Capacity Act 2005. Third parties, such as banks and other financial institutions, will be protected in their dealings with guardians in much the same way as they are when they deal with people acting under powers of attorney. Most importantly, they will be able to see the extent of the guardian’s authority to act on the face of the guardianship order made by the court and will be able to rely on it.
Some of the detail of the scheme of guardianship will be set out in rules of court, regulations and statutory guidance. To allow these to be drawn up and for potential users to familiarise themselves with them, the Bill is unlikely to come into force earlier than one year after Royal Assent, but the Government will endeavour to keep any delay to an absolute minimum.
The Government are committed to helping those left behind by the traumatic and disruptive event that is the disappearance of a family member. The number of cases in which the remedy will be used may not be huge, but the effect of each of those disappearances on those caught up in them can be severe and traumatic. The creation of the new legal status of guardian of the property and financial affairs of a missing person will not solve every problem created by a disappearance, but it should provide an effective, practical and relatively straightforward remedy to some at least of the practical problems that are created in these circumstances. There is, of course, concern about the risk of abuse of authority that can never be completely eliminated, but the Government believe that the provisions in the Bill strike an appropriate balance between giving the guardian the freedom to act to do good on the one hand and protecting the interests of the missing person on the other.
I commend the Bill to the House.