(12 years ago)
Commons ChamberRead Hansard Text Read Debate Ministerial Extracts
John Glen (Salisbury) (Con)
I beg to move, That the Bill be now read a Second time.
As you will know, Mr Deputy Speaker, I was fortunate enough to come 14th in the ballot for private Members’ Bills. Unsurprisingly, a few hours after hearing that news I returned to my office to find a full inbox, and over the next days the amount of mail that I received increased substantially. One letter gave me some hope. It was from the former Member of Parliament for Chertsey and Walton, Sir Geoffrey Pattie, who wrote that in the 1970s he had managed to get legislation on to the statute book having also come 14th in the ballot. That has given me a little encouragement, and I hope that the House will be minded to look seriously at my Bill and will allow it to proceed as well.
Having been given this opportunity, I thought carefully about the legislation I should present to the House. I concluded—on the basis of my time as a member of the all-party parliamentary group on runaway and missing children and adults, and also on the basis of personal experience—that a means of supporting families by dealing with the uncertainties surrounding presumed death would be an extremely worthwhile cause to champion.
As I have said, I have some personal experience of the effects of such situations, although at one step removed. In 1996 my sister’s godfather disappeared. His name was Norman Harriss, and he was an airline pilot, married, with two sons. The case was reported at the time. He had taken a yacht on to the Solent. The yacht was found with the engine still running and the dinghy missing, and with no sign of him. A search ensued, but, unfortunately, he was never found.
When I was thinking about taking up this cause, I contacted one of Mr Harriss’s sons, Alistair, to ask whether he thought the proposals were a good idea and whether it would have helped his family if such a law had been in place in 1996. Fortunately, he was unequivocal in his response: he said he was more than happy for me to mention his father’s case and stressed the effects of his disappearance on the family when no provision was in place to acknowledge properly his father’s death.
Zac Goldsmith (Richmond Park) (Con)
I just want to put on record my total support for my hon. Friend’s work in this area. It builds on the work done by a brilliant organisation based in my constituency: Missing People. It has on its books hundreds and hundreds of examples similar to the case my hon. Friend has just outlined, of families who are unable to move on as a result of what is effectively a bureaucratic barrier. My hon. Friend’s Bill addresses that barrier, so I wish him all the luck in the world and I hope he succeeds.
John Glen
I am extremely grateful to my hon. Friend for his support. I will talk about the Missing People charity later, but for now let me just commend it on the wonderful work it does.
Alistair said:
“The 7 year wait on the death certificate was a serious strain on everyone involved with my father’s case. Dad made sure that we would have been provided for in the event of his death but due to the circumstances the death certificate was not released for nearly 7 years. Our house was defaulted on and sold, the boat was sold and I very nearly had to change schools in the middle of my GCSEs. Due to some serious hardships from my Mum and step father I managed to complete my GCSEs and A-levels and am now flying as a commercial pilot. I think I was one of the lucky ones!”
As a result of my researches into the issues involved in such cases I have also been fortunate enough to meet Peter Lawrence, the father of Claudia, who has now been missing for more than three and a half years. I, along with many people throughout the nation, have been extremely moved by his story. I have listened carefully to his testimony, and he is very clear that the law needs to be updated. Peter would also like provision to be made for guardianship, and I shall touch on that subject, too.
For all the reasons I have set out, I hope this Bill can be progressed, and the law can be improved for people with missing family members who find themselves in the distressing situation of not being able to deal with their affairs following the disappearance of a loved one.
I am acutely aware of the fact that many people have spent a great deal of time—more than I have spent—in campaigning on this issue, and in bringing energy to advancing a solution to this problem. Some of them are present today, supporting the Bill. I must mention a 2009 private Member’s Bill introduced by the former Member for Daventry, Lord Boswell of Aynho. Unfortunately, his Bill did not make it on to the statute book, but I have based my Bill on its contents.
I also wish to put on the record my gratitude to Baroness Kramer, who has a similar Bill in the other place. Should my Bill be fortunate enough to progress, she will be able to assist in the other place. I have also had a great amount of cross-party support from hon. Members, particularly those associated with the all-party group on runaway and missing children and adults, especially the hon. Member for Stockport (Ann Coffey), who, unfortunately, cannot be here today.
At this point, I should mention the help I have received from the Missing People charity, whose sharing of expertise has been so invaluable on this subject. I am thinking, in particular, of the valuable evidence it gave the Justice Committee prior to the publication of its report in February. Missing People was founded in 1986 by Mary Asprey OBE and Janet Newman OBE following the disappearance of the estate agent Suzy Lamplugh. The charity supports the friends and family of those who have gone missing, young people who have run away from home and missing adults. Missing People offers advice and practical support, as well as maintaining a database of missing people and providing a central point of contact to report sightings. It also provides advice on working with the media and the police, and on the legal and financial difficulties faced by families when somebody goes missing.
I would like to use my speech to pay a particular tribute to the chief executive of Missing People, Martin Houghton-Brown, who has been a tireless champion of presumption of death legislation. He has made his case persuasively in the media over many years and during the Justice Committee’s inquiry. Martin is, unfortunately for Missing People, about to leave that organisation, but I know that I speak for everyone he has worked with in wishing him well in his new role. Martin is generally acknowledged as one of the most effective advocates and campaigners in the charity world.
The Justice Committee’s report on presumption of death strongly recommended primary legislation on this subject. It stated:
“Non-legislative solutions to the problems of resolving the affairs of missing people are necessary but not sufficient. Primary legislation is required…the fact that, in 34 years, only one person who was the subject of an order under the Scottish Presumption of Death Act 1977 has reappeared is a compelling argument that the legislation provides a clear, robust court process to resolve the question”—
Mr Hamilton
I wish the hon. Gentleman well with his proposals. Would it not be relatively simple to use the Scottish and Northern Irish approaches, and then replicate them in England? That would make things much easier. We are not starting anew; we can actually adopt what happens in other areas to see how things can go forward.
James Duddridge (Rochford and Southend East) (Con)
The Scottish example, where there has been only one revocation, is often cited. I have not seen anything about the Northern Ireland example. Is that because there has not been a revocation of any particular measure there?
John Glen
I am grateful for my hon. Friend’s question. I am not certain on that point, so I would need to examine things further. However, my understanding is that such situations are extremely rare and it is quite probable that there has not been a revocation from the Northern Ireland legislation.
Let me return to the point I was making. The Justice Committee said that
“the fact that, in 34 years, only one person who was the subject of an order under the Scottish Presumption of Death Act 1977 has reappeared is a compelling argument that the legislation provides a clear, robust court process to resolve the question of whether a missing person is alive or dead. We therefore recommend that the Ministry of Justice introduce legislation based on the Scottish Act.”
It continued:
“The law relating to the affairs of missing people will only affect a limited number of people. It will, however, allow families placed in extremely difficult emotional circumstances at least to resolve the financial and legal affairs of their missing relatives. We believe the time is long overdue to extend to English and Welsh families the protection that is available to Scottish and Northern Irish families.”
At present in England and Wales we do not have a single certificate procedure that deals with a situation where somebody goes missing and is presumed dead. This, as the hon. Member for Midlothian (Mr Hamilton) said, contrasts sharply with Scotland and Northern Ireland, both of which have legislated in this field. Scotland has the Presumption of Death (Scotland) Act which has been in place since 1977, and Northern Ireland has the Presumption of Death Act (Northern Ireland) 2009. If the Bill progresses and is enacted, it will put England and Wales on a par with Scotland and Northern Ireland in this respect.
It may be helpful for hon. Members to know that there are currently about 360,000 reports of people going missing annually, and 25,000 of those remain open for more than a week. About 2,000 people remain missing for more than a year, and in 2010 the charity Missing People had 346 cases on its UK database which were more than seven-years-old.
At present, when a person goes missing and is thought to have died and there is no corpse, a death certificate cannot be obtained in the usual way. This means that there can be difficulties for surviving spouses or civil partners, and property cannot be distributed in the way that it would if death were confirmed through the production of a body. There are a number of procedures that must be gone through in order to deal with the missing person’s affairs if they are presumed to have died. These include dissolving a marriage, applying for an inquest, sorting out probate, and dealing with benefits and other administrative matters.
All these are separate processes and involve considerable time, stress and legal advice, not to mention costs, to complete. Of course, there is great uncertainty and a lack of direction as the expertise and experience available among the police and legal profession is not generally available with sufficient depth in one single place. Therefore, a single process that provides a document that would act like a death certificate would be a great improvement for families going through this awful, traumatic experience.
Let me turn to the Bill and explain what it contains. It will introduce a new court-based procedure that will enable those left behind to obtain a declaration from the High Court that the missing person is deemed to have died. The High Court will be able to make that decision if it is satisfied that the missing person has died or has not been known to have been alive for a period of at least seven years. When the declaration has been made, a copy will be sent to the Registrar General for England and Wales and the details will be registered in a new register of presumed deaths, which will be linked for research purposes to the register of deaths maintained under the Births and Deaths Registration Act 1953. The certificate will be conclusive as to the presumed death and effective for all purposes and against all persons.
Following this, property can then pass in the usual way, as if the missing person had been certified dead in the normal way. His or her marriage or civil partnership will end, just as a marriage or civil partnership ends on death.
There will be, in effect, a certificate of presumed death that can be used by those left behind to deal with the property affairs of the missing person as if he or she had actually died and a death certificate had been issued. There is provision to allow the declaration to be revoked should emerging facts require it, and of course the register would then be amended. Based on the Scottish experience, it is anticipated that we would expect, on average, 30 to 40 declarations per year.
It may be helpful at this point to reflect on what is really involved. The situation can obviously be incredibly traumatic for many of these families. Families who have worked with the charity Missing People highlight the constant mental anguish and uncertainty as to what has happened to their missing person. On top of this, dealing with various financial affairs—changing mortgages, selling equities or other investments, drawing on pensions, or selling or disposing of property—can be particularly difficult. Many have pointed out that engaging a solicitor to deal with these affairs can be prohibitively expensive. I realise that the Bill will not be able to address the trauma and constant anxiety and concern that is inevitable when somebody goes missing, but it can simplify the complexity of dealing with an individual’s affairs and bypass the need for expensive legal advice and services.
I should now like briefly to go through the Bill and outline, clause by clause, its precise provisions. Clause 1 enables the High Court to make the declaration of presumed death, and it sets out who will be able to apply for this declaration—usually a close relative, spouse, civil partner, parent, child or sibling of the missing person. However, the Court can also hear an application from someone it believes has sufficient interest. There must also be a connection with England and Wales, either via the missing person or the person making the application. The missing person must either have been living in England or Wales at the time of the disappearance or habitually resident for the previous year, or the person making the application must satisfy similar rules.
Clause 2 relates to the two bases that the Court has for making the declaration. They are distinct. The Court must be satisfied that the missing person has either died or has not been known to be alive for at least seven years, although the person does not have to have been missing for seven years for the Court to believe them to have died. This part of the Bill also sets out when the Court deems the person to have died, which can be extremely important in determining property interests.
Clause 3 goes on to explain the effect of the declaration—that it is conclusive proof of a missing person’s death, and as such effective for all purposes against all persons. The declaration also ends a marriage or civil partnership, just as a marriage would end when someone has died. It also extends to matters of property ownership, and it is final once it is no longer subject to an appeal or any previous appeal that has been dismissed or withdrawn.
Clause 4 allows the Court to make any order it considers reasonable in relation to any interest in property acquired as a result of the declaration. For example, it requires that even if a variation or revocation order is made, any interest is not recoverable under certain conditions or under any conditions. Some hon. Members have raised the scenario of when a revocation is necessary, and clauses 5, 6 and 7 deal with this. Variation orders involve important safeguards. They allow the High Court to vary or even revoke a declaration of presumed death. That means that if evidence comes to light that the missing person is not dead, the Court can determine to revoke the order.
If that happens, there might be issues regarding property that has been disposed of as a result of the original declaration. The Bill addresses such circumstances. If a variation order is made it will not necessarily affect the property that has been acquired as a result of the original presumption of death declaration, but it will allow the court to make further orders that it deems reasonable and necessary as to the property acquired. A variation order does not revive a marriage or civil partnership; otherwise, subsequent marriages or civil marriages could be invalidated.
Schedule 1 provides for the establishment of a register of presumed deaths, to be maintained by the Registrar General. As I have said, the register would be linked to the register of deaths maintained under the Births and Deaths Registration Act 1953, so it would be searchable in the same way as the register for death certificates.
Finally, clause 17 gives the Secretary of State the power to amend certain periods of time specified by the Bill—for example, the seven-year period in which a person has not been known to be alive.
The rest of the Bill is fairly self-explanatory, but I want to address a couple of points that hon. Members might raise. Guardianship is one of the most difficult issues that I encountered as I contemplated this Bill. I know that the Justice Committee has recommended that laws should be put in place to address this issue, and many people I have spoken to would like a provision to appear in the Bill. I also acknowledge the views of Peter Lawrence, who explained to me a couple of weeks ago how he found it frustrating that we could not make such a provision at this time. Guardianship would give a suitable person certain powers over the property and affairs of the missing person, but without having to satisfy the standards for a full presumption of death certificate. It would, in effect, be an interim measure that could then be superseded at a later point by a presumption of death certificate, if appropriate.
Such a system exists in Australia, where a court can make an order only if there is a need for decisions to be made about the missing person’s property, if the decisions are made in their best interests, and if all people with a relevant interest are notified. However, after consulting widely and taking advice from a number of respected experts in this field, I decided not to include guardianship in the Bill, despite my firm belief that it needs to be legislated for in the future—in fact, as soon as possible.
I was concerned that including guardianship would have caused problems for the passage of the Bill, because the structures of guardianship are very complex and require far more work than it is possible to undertake during the time frame available for this Bill. Ideally, there would need to be a consultation about the exact form that guardianship orders should take and the criteria that should be applied in making them. That would make this a more contentious Bill, so I took the view that it is more important to work towards getting presumption of death legislation on to the statute book for England and Wales, so that they can be on level ground with Scotland and Northern Ireland. I did not want the debate and concerns about guardianship to prevent that from happening.
If this Bill were enacted, it would be entirely right to push for guardianship. In fact, I believe that the Bill lays the foundations for that to happen very quickly. I consider it a first step in that process, and should the House wish for it to proceed it will be a stepping stone for further legislation.
It makes absolute sense for there to be an interim measure whereby the closest relatives of a missing person can be legally enabled to take control of their assets. Of course, many issues need to be considered and resolved, but if other jurisdictions have managed to overcome those obstacles and develop the appropriate legal framework, it seems incumbent upon this legislature to do so as quickly as possible, learn from their experiences and develop an appropriate guardianship system for England and Wales.
I anticipate that some people will be concerned about the costs of using High Court applications for declarations of presumed death. After consideration, however, I have decided that it is right that the High Court is used because of its expertise in the area. It should be the Court to take the decision in the first instance. As Members will be aware, the presumption of death is a decision of great seriousness and requires the careful weighing of evidence, as it has enormous, life-changing implications for those involved.
There is also merit in the point that the High Court should test the standards that will need to be applied in all cases. As there will be perhaps 30 to 40 cases a year, it would be sensible to have them at one court that has expertise and can establish those standards, rather than at a number of courts that may not be fully conversant with the protocol owing to it not having sufficient cases to develop expertise. However, I recognise the possibility that cases could be devolved to certain county courts under secondary legislation at a later date, if it seemed that the expertise was in place at those courts to deliver the same reliable outcomes as the High Court.
The time is right. In fact, I think it would be fair to say that it is now long overdue to pass legislation in this area. Not only is it right from the perspective of the numerous relatives and friends of those who are missing, but the need is generally accepted by all parties in both Houses. The Government’s response to the Justice Committee’s report was clear, stating:
“Introducing a single procedure to obtain a general purpose certificate of presumed death equivalent to a death certificate in England and Wales will bring the law of England and Wales into line with the law in Scotland and Northern Ireland. The new procedure will replace the existing range of procedures providing specific limited outcomes, which taken together currently provide the equivalent protection to that available in Scotland and Northern Ireland. This simplification should make it easier for those left behind to deal with the affairs of a missing person, who is thought to be dead, notwithstanding the very difficult circumstances in which they have been placed.”
That clearly indicates that there is wide and deep understanding of what should be done.
I hope that the Bill will bring some measure of finality to distressed families who have to live daily with the emotional trauma and distress of not knowing whether they will see their loved one again. Allowing friends and families to obtain a certificate of presumed death, after careful deliberation by a judge on all the evidence, will enable them to move forward and deal with the missing person’s affairs, and perhaps begin to rebuild their lives. I ask Members to support the Bill so that it can proceed quickly to Committee and move forward as soon as is practicably possible.
Jeremy Corbyn (Islington North) (Lab)
I will be brief. I think I am the only Member of the Justice Committee who is here today. Its Chair, the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith), cannot be here, so it was agreed that I would offer the Committee’s full support for, and welcome to, the Bill. We hope that it passes rapidly into law.
I compliment the hon. Member for Salisbury (John Glen) on his careful and caring introduction to a Bill on a difficult and traumatic issue faced by many families. When the Committee made its inquiries on the presumption of death, one could only feel the deepest sympathy for families from which somebody had disappeared 15 or 20 years previously. The sadness about the disappearance is always present, and although the family has to make a presumption of death there can be no closure. Everything remains open and questions are never answered, and the Bill makes a good step towards providing at least a degree of closure and order to the families and relatives of those who have disappeared. We already have appropriate legislation in Scotland and Northern Ireland, and as the Justice Committee learned—indeed, this was referred to this morning—there has been only one case in Scotland of anyone reappearing after seven years, and no cases in Northern Ireland. It is important to recognise that seven years is a reasonable period to pass before a presumption of death can be made.
The Justice Committee took evidence from large numbers of people, and sent its recommendations to the Minister as required. I was grateful that the hon. Member for Huntingdon (Mr Djanogly), then Parliamentary Under-Secretary of State in the Ministry of Justice, stated:
“I am pleased that we are accepting the Committee’s recommendations for the production of better guidance to present procedures and the introduction of a certificate of presumed death. I hope that these measures will go a long way to simplifying and demystifying what has to be done when a missing person is thought to have died.”
We must remember that when somebody has disappeared or is thought to have died, it is unbelievably traumatic for the families concerned. The lack of support and coherent guidance needs to be addressed, and I was pleased the Under-Secretary of State did that.
Paragraph 56 of the Justice Committee’s report states:
“While the numbers of people who have to deal with the repercussions of having a family member go missing are small, the pain and anguish those families go through is considerable. As things stand, their suffering is exacerbated by: a legislative patchwork of bewildering complexity; the inability to administer the financial situation of their missing relatives; a lack of information about the actions they are able to take; and ignorance of the correct procedures to be followed by police, lawyers, banks, insurers and others. We therefore recommend a threefold approach: the introduction of a presumption of death act to clarify the legal position; the introduction of ‘guardianship’ orders, so that financial stewardship of missing persons’ affairs can be established more speedily; and the provision of effective guidance for the families of missing people and those who provide services for them.”
When the Minister responds to the debate—I believe she was a member of the Justice Committee at the start of the inquiry—I hope she will provide some reassurance that when the Bill proceeds into law, public guidance will be offered to the families of those who have disappeared. Those people are often suffering complete trauma and do not necessarily understand what is available for them.
Briefly, I will refer to recommendations 9 and 10 in the report. Recommendation 9 states that:
“The law relating to the affairs of missing people will only affect a limited number of people. It will, however, allow families placed in extremely difficult emotional circumstances at least to resolve the financial and legal affairs of their missing relatives. We believe the time is long overdue to extend to English and Welsh families the protection that is available to Scottish and Northern Irish families.”
The Bill clearly covers that point, which is welcome.
Recommendation 10 states:
“We recommend that the Government take steps to introduce provision for ‘guardianship’ orders modelled on the approach adopted by states in Australia, either via the introduction of the presumption of death legislation we have recommended, or some alternative legislative mechanism. This will protect the financial position of the missing person and his or her dependants.”
I realise why that point has not been included in the Bill and the hon. Member for Salisbury (John Glen) explained it perfectly well. I hope, however, that the Minister will provide some hope that after the passage of the Bill a separate Government Bill—or, if necessary, a statutory instrument—will be introduced to cover guardianship so that the wishes of the Justice Committee, which have clearly been accepted by the Ministry of Justice, can proceed into law. I recognise that this complex area will inevitably involve foster care, adoption and the role of social services, and I understand why the hon. Member for Salisbury did not want to include that provision in his Bill at this stage.
The Justice Committee welcomes the Bill and thanks all those who gave evidence during our inquiry. We were impressed with the thought that people had put in and understand the stress they had gone through. If the Bill can alleviate that stress and bring about some resolution to families who have gone through horror, we will have done good work. I strongly support the Bill and hope that it receives a Second Reading today.
James Duddridge (Rochford and Southend East) (Con)
I rise to support the Bill, and congratulate my hon. Friend the Member for Salisbury (John Glen) on introducing it. I know—not from personal experience, but from speaking to colleagues who have been lucky in winning the private Members’ Bills raffle—that hon. Members are put under a lot of pressure by different organisations. My hon. Friend has wisely chosen to introduce a Bill that is at the heart of his experience and that will make a tangible difference to individuals’ lives. I hope it is deliverable, and I urge the Minister to support it.
Cases involving deaths are among the most harrowing that Members of Parliament deal with—they are the cases I felt least prepared to deal with as a new Member of Parliament in 2005. I have been asked to be involved in five cases when constituents have passed away, and surprisingly I have dealt with three cases of missing persons—all three went missing overseas.
I should like further debate in Committee—I am keen to serve on the Committee, and do not want to detain the House too long today—on deaths overseas and the role of the Foreign Office, and on what information local embassies need to trigger the certificate to allow the presumption of death to be dealt with exactly the same as it would be in the UK.
I asked my hon. Friend about Northern Ireland, and am grateful to the hon. Member for Islington North (Jeremy Corbyn) for clarifying the absence of information on revocations in Northern Ireland. I accept his word that there is no information because there are no revocations, which is most reassuring.
I am also reassured, as other hon. Members will be, by the involvement of Lord Boswell, previously of this place. Like my hon. Friend, he was admirable in the discharging of his duties for those less fortunate.
We need to clear up the patchwork of complexity that my hon. Friend has described—that has been pushed for by organisations such as Missing People. I have read more about Missing People over the past few days, but through my own inadequacies I have not linked up with it when dealing with cases. The more we can do to publicise its good work in helping people in their moment of need, the better. I was amazed when looking at the fact sheets on its website at the numbers involved, which have been mentioned by hon. Members. In addition, the numbers mentioned by the Serious Organised Crime Agency are horrific. When people are at their lowest ebb and hoping that their relative is missing and not dead, it is difficult for them to take responsibility within that patchwork of complexity. The Bill will tidy that up, so that when people are dealing with the emotional strains of having a missing relative who has probably passed away, they will not also have to deal with the complexity of the law.
I urge hon. Members to keep the Bill focused. Like the hon. Member for Islington North, I would have liked it to deal with guardianship, but I recognise the wisdom of my hon. Friend the Member for Salisbury in keeping the Bill clean and clear-cut. Equally, I would have liked a Foreign and Commonwealth Office provision in the Bill—perhaps the Bill will be amended in Committee—but I would not want to include it if it held the Bill up.
I wish my hon. Friend well and congratulate him on his choice of Bill, and look forward to seeing it in Committee and in practice.
Gavin Williamson (South Staffordshire) (Con)
It is a privilege to be called to speak in this debate. I echo the congratulations to my hon. Friend the Member for Salisbury (John Glen) on his success in the ballot and choosing this Bill. I also note the immense work on this issue that has been done by the Justice Committee and the all-party parliamentary group on runaway and missing children and adults. Other hon. Members have also mentioned the immense amount of work done by the charities Missing People and The Children’s Society.
Far too often we forget how many people go missing every year. I was looking at the statistics just yesterday for 2009 and 2010, and there were more than 1,000 reports every day, amounting to 356,000 people being reported missing. Of course, many of those people quickly returned home or were found. In fact, the vast majority are back home with their loved ones within 24 hours, but many others do not return home. Indeed, in that year, some 2,000 people were still missing after a long period. Many of those people have not passed away, thankfully, but they are never heard of again. Many families are left in limbo, not knowing what to do or which way to go. After they have experienced that amount of stress and level of concern, they may be faced with the reality that their loved one will never return, that their life may have been taken. What can the families do? Unfortunately, there is no simple process in England and Wales, as my hon. Friend clearly demonstrated. It is an immensely complex system.
On rare occasions, the procedure has been overridden, such as after the tsunami in 2004, when very swift action was taken to deal with that devastating and horrendous loss of life. But that, I am afraid, is the exception. We have so often heard that there are processes in place for families to follow to deal with this situation, but in fact they are immensely complex. I am not a solicitor—I am very much a layperson—and when I read through what had to be done I was shocked by the complexity. The coroner’s inquest under section 15 of the Coroners Act 1988 provides that a coroner may report to the Secretary of State where he or she has reason to believe that a violent, unnatural or sudden death with unknown cause has occurred in or near his or her district but that the body is irrecoverable or has been destroyed. On receipt of such a report the Secretary of State, if he considers it desirable, may issue a direction to the coroner to hold an inquest. A death certificate will be issued as a result of the inquest.
That procedure was used after the tsunami struck, but it is very difficult to go down that route. In the past, Ministers have said that there are other options, including the decree of presumption of death and dissolution of marriage or the presumption of death order under section 19 of the Matrimonial Causes Act 1973 and section 37 of the Civil Partnership Act 2004. There is also the leave to swear death, when a person goes missing and a member of the missing person’s family wishes to obtain a grant of probate in order to administer the estate of the missing person, and the certificate of presumed death. When people are at their lowest, faced with a dreadful trauma, they must deal with this incredibly legalistic and complex process. It does not help families in great distress. It is absolutely right, therefore, that my hon. Friend the Member for Salisbury has introduced this Bill. He has been very thoughtful in trying to ensure that it goes through.
As the hon. Member for Islington North (Jeremy Corbyn) pointed out, there is legislation in Scotland and Northern Ireland dealing with this subject. It is not about inventing something new but about learning from the very best practice and about seeing what is out there and making it relevant here, in England and Wales. That is what my hon. Friend has done. A lot of the equivalent legislation introduced in Northern Ireland dealt with the issue of those who were missing as part of the troubles. Of course, we do not have that legacy in England and Wales, but the distress of families is as acute here as in Scotland and Northern Ireland.
It is comforting to think that this Bill will help families. My hon. Friend mentioned that it was almost impossible to access life insurance and spoke about people losing their home and everything they had. I think of my family’s distress if I went missing—some colleagues might be quite grateful—and how they would deal with it. How would they pay the mortgage? How would they live? How would my children be fed? They would not want to have to worry about that; they would just want the state on their side and, having paid their premiums, would want their insurance company to support them. This Bill goes a long way towards ensuring that people in that incredibly difficult and awful position are not left alone.
It is a great pleasure to support the Bill, and I wish my hon. Friend the best of luck in Committee. I support it wholeheartedly.
Jenny Chapman (Darlington) (Lab)
I am pleased to welcome the Bill introduced by the hon. Member for Salisbury (John Glen) to change the law on the presumption of death. I congratulate him on bringing it before the House. I also thank the right hon. Member for Berwick-upon-Tweed (Sir Alan Beith) and the rest of the Justice Committee for their work on the issue and the excellent report produced in February. It highlighted how traumatic it is for the relatives of a missing person to deal with their outstanding affairs. The Committee and the hon. Gentleman make a powerful case for legislation to simplify the process.
I also pay tribute to the Missing People for its tireless campaigning on this issue and for helping to bring about the opportunity to debate this Bill. The previous Government committed to working with Missing People to bring forward such legislation before the last general election. The hon. Gentleman detailed many of the concerns that led Labour to consider such legislation necessary, and we continue to view it as necessary.
For the most part, this is a relatively simple piece of legislation, and I see no reason why the Government would consider it necessary to delay its implementation. I hope that the Minister will commit to co-operating with us. We will certainly co-operate with them to ensure that the Bill proceeds as swiftly as possible.
The Parliamentary Under-Secretary of State for Justice (Mrs Helen Grant)
I congratulate my hon. Friend the Member for Salisbury (John Glen) on his good fortune in securing a high place in the private Members’ ballot and his good judgment in choosing to introduce a Bill on the presumption of death. The Bill is clearly based on the Presumption of Death (Scotland) Act 1977 and the Presumption of Death Act (Northern Ireland) 2009—and, therefore, the Presumption of Death Bill introduced in this House in 2009 by the then Member for Daventry, my noble Friend Lord Boswell of Aynho.
The Bill is important because it will greatly improve the position of people and businesses left behind when a person disappears. At present, individuals—often family members—may have to use a number of procedures to deal with different aspects of the property and affairs of the missing person. This can make a difficult situation daunting. Meanwhile, it seems that different businesses adopt different approaches, and even legal professionals can find it difficult to identify the right solutions for their clients. The Bill will make a real difference in such cases.
The importance of the Bill is brought home by the stories of real people. I have listened carefully to the stories of hardship and distress that my hon. Friend the Member for Salisbury and others have described. I share their concern that the current law is not working as well as it should. I want to take this opportunity to add brief details from some case studies provided by the charity Missing People, which has worked so prominently in campaigning for a change in this important area of law.
The first case study relates to Janis from Merseyside. Janis told her story to Lucy Holmes, policy and research officer with Missing People. I shall summarise what she said. Janis’s husband James, in his 40s, went missing three and a half years ago. She spoke to solicitors, who told her that she would have to wait seven years until he could be pronounced dead. Only then would the mortgage and other financial matters be sorted out. The financial implications were an added stress, which Janis could have done without, and I shall mention some of the financial problems she faced. Janis and her husband held shares, but they were in her husband’s name. As a result, she was unable to access them. Janis and her husband had originally taken out a fixed-rate mortgage, but the fixed rate stopped a few months after he went missing. She tried to see whether she could get a mortgage holiday or a change in the product, but was told that she could not, because she needed two signatures—her own and her husband’s. She ended up locked in a standard-rate mortgage. Janis was also unable to sell her house without her husband’s signature.
The second case study relates to Julie, from west Yorkshire, who also told her story to Lucy Holmes at Missing People. Julie’s former husband Peter, in his 30s, has been missing for nearly 10 years. Julie believes that he has died but his body has not been found. He first went missing when they were in the middle of sorting out the finances for their divorce. The judge was sympathetic and explained that Julie would be able to go back and sort everything out, including her husband’s estate, if he was still missing after seven years. It was therefore always at the back of her mind that she would have to wait that long. The types of problems Julie has encountered include not being able to access Peter’s pension, which could be left to their children if she could declare him deceased. Julie also had problems finding a solicitor who could help her. None of the solicitors she tried—and she tried several—knew how to handle the case. Eventually she got a solicitor she knew to do it for free, in his own time. Julie needs to access endowment and insurance policies, but she cannot touch them because she needs her husband’s signature. She needs the money for her children’s university education, and finds the whole situation horrendous. She complains that there are no rules or guidelines.
These stories, taken together, create the strong impression that the disappearance of a husband has locked the wife who has been left behind into a financial conundrum from which there is no obvious escape and on which little information is provided.
The third case study was provided by Rachel Elias, the sister of Richard James Edwards of the Manic Street Preachers, in evidence to the inquiry of the all-party group on runaway and missing children and adults in June 2011. She also provided written evidence to the Justice Committee inquiry into the presumption of death. Her brother disappeared on 1 February 1995, and has not been seen or heard of since that date. At the time of his disappearance, he was a member of the successful British band, the Manic Street Preachers. Once the family were convinced that Richard was dead, an application was made for a leave to swear death order. The process took about three years and cost them about £3,500. Rachel Elias commented on how hard it had been to prepare the paperwork and provide the corroborative evidence, 13 years after the disappearance.
The Justice Committee also took oral evidence from Vicki Derrick. Vicki told the Committee of the disappearance of her husband in 2003. She said that she could not change her mortgage or move house because they were in joint names, and that she could not get a life insurance policy to pay out. She described how she had moved overnight from having a joint income to being a single mother on a greatly reduced income, and how she had to rely on her family to support her. She somehow survived the eight years of uncertainty and difficulty, which came to an end in February this year when the remains of her late husband’s body were found. The finding of the body ended the need for a presumption of death certificate in that case, but that happened only by chance.
These case histories, and the other cases that have been described by hon. Members, tell of individuals from different backgrounds who have been visited by tragedy. I offer them my condolences and sympathy. I know that my expressing sympathy and solidarity will probably make little difference in the struggle that those individuals face in coping with their loss and trying to move their affairs forward when it seems almost certain that the missing person will not return. What can make a difference is simplifying the law to provide a clear path for people to take if they believe that the missing person is dead.
That brings us to the content of the Bill. There will be a single, obvious, all-purpose procedure for obtaining legal confirmation that a person is to be deemed to be dead. This should make the process of moving on more straightforward, not only for those affected by the disappearance but for those who advise them. Businesses such as insurers should also benefit because the making of a declaration will make it easier for them to know where they stand. In short, the Bill will provide a means to clarify the uncertainties caused by the disappearance.
Clarification and simplification must not, however, be introduced at the expense of rigour. The declaration of presumed death will be granted only following consideration of the evidence. No one should lightly be presumed to be dead. If the interests of the missing person, and of the people who would be affected by his or her deemed death, are to be protected, the process of obtaining a declaration of presumed death must be thorough and robust. To achieve this, the Bill creates a new court procedure and an associated process of registration.
The court procedure will enable a person with sufficient interest to obtain a legally binding declaration from the High Court that a person is to be deemed dead for all purposes, including the end of the marriage or civil partnership. The High Court will make the declaration if it is satisfied that the missing person has died or has not been known to be alive for a period of at least seven years. Based on experience in Scotland and Northern Ireland, we expect that on average between 30 and 40 declarations are likely to be issued each year.
A court also has the power to deal with myriad consequential property-related issues that may arise as a result of the declaration. Once the court has made the declaration and the time for any appeal has passed, the High Court will send details of the presumed deaths to the Registrar General for England and Wales, who will enter the relevant particulars in the register of presumed deaths created under the Bill. The Registrar General will also include the entry in that register in the index of the registers of deaths. This will enable those left behind by the missing person and others to find out about the presumed death and, on payment of an appropriate fee, to obtain certified copies of the entry in the register of presumed deaths. These certified copies will, without the need for more evidence, be conclusive evidence of the death of the missing person. They will be usable in the same way and for the same purposes as death certificates in relation to an actual death.
There is, of course, a crucial difference between actual deaths and presumed deaths: the actually dead do not return, but the presumed dead may do so. Experience in Scotland suggests that this happens only rarely. None the less, the Bill, as it must, makes provision for amendment or revocation of a declaration by giving the court power to make a variation order on application. A variation order will alter the facts on which any property-related orders made as a result of the making of the original declaration were based. The Bill therefore gives the Court power to make such further orders as it considers reasonable in relation to any property acquired as a result of the declaration varied or revoked.
This power is subject to limitations—for example, to protect innocent purchasers—and in some cases the court is required as far as possible to have regard to the principles specified in the Bill in deciding what to do. These provisions are, I think, the most complicated in the Bill, but they are necessary and follow in general terms the Scottish and Northern Irish precedents that I have mentioned.
It is clearly vital that the court should have the best information that it can obtain in making declaration or variation orders. The Bill therefore gives the Court power, on application or of its own motion, to order third parties to provide specified information relevant to the question of whether the missing person is dead or alive. Details of the court procedure and the registration process will be set out in the rules of court and the regulations to be made in due course.
The Bill will, from time to time, result in the payment of a capital sum or of a transfer of a piece of property from one person to another, consequent on the presumed death. However, as described, circumstances could arise in which that capital sum or property should actually have gone to someone else. Recipients of these sums or pieces of property might well want to consider whether it would be appropriate to take out insurance against the possibility that these circumstances could arise in their own particular cases. That will be a decision for them.
In two cases, however, the Bill makes specific provision about insurance. First, it provides that the court can order trustees affected by a declaration to take out insurance against claims consequent on the making of orders in connection with the variation order. Secondly, the Bill allows an insurer to require the potential recipient of a capital sum made as a result of a declaration—for example, the sum assured under a life insurance policy—to take out insurance against claims consequent on the possible future making of a variation order.
The new procedure for a declaration of death will replace some, but not all, of the existing procedures by virtue of which a person may be deemed to be dead under the law of England and Wales. The Bill will, for example, repeal the declaration of presumption of death and dissolution of marriage under the Matrimonial Causes Act 1973. The new procedure is intended to replace the present probate procedure for obtaining leave to swear death orders. The retention of other existing procedures will preserve flexibility, and will ensure that not everyone seeking to establish a presumed death is required to go to the High Court if there is a suitable alternative procedure. However, the Bill will require assumptions regarding the time and date of death under other procedures to adopt the same conventions as are specified for declarations made under the Bill. There are similar requirements in the Scottish and Northern Irish Acts,
Members have made numerous points today. I acknowledge the concerns expressed by my hon. Friend the Member for Salisbury and the hon. Member for Islington North (Jeremy Corbyn) about guardianship, and assure them that I will take those concerns into account in reaching a decision on whether—and, if so, how—to develop legislation on the issue. My hon. Friend the Member for Rochford and Southend East (James Duddridge) asked whether there had been a revocation in Northern Ireland. The Northern Ireland legislation came into force only in 2009 and, as far as I am aware, no declarations have been revoked. The hon. Member for Islington North also raised the issue of guidance. I can confirm that the Ministry of Justice acknowledges the role of good guidance, and that substantial work is being done in that respect.
By creating this procedure and process, the Bill will achieve the objective of recommendations made by the Justice Committee in its Twelfth Report of the previous Session. As a former member of the Committee—although I was not a member at the time when the report was produced—I am pleased to learn that its recommendations are being implemented. The Committee’s inquiry into the subject of presumption of death followed an extensive investigation earlier in the Session by the all-party parliamentary group on runaway and missing children and adults. I regret that I was unable to attend the round-table discussion organised by the APPG last week, but I am pleased to acknowledge the good work that both it and the charity Missing People have done to raise the profile of the difficulties faced by individuals and families when a person goes missing and does not return.
In their response to the Committee’s report, published in July 2012, the Government stated their intention to introduce
“legislation to create a certificate of presumed death…when Parliamentary time permits.”
If enacted, my hon. Friend’s Bill will achieve the same result as the Government’s intended Bill. I am pleased to confirm the Government’s support for it, and I wish it a swift and successful passage through the House.
John Glen
With the leave of the House, Mr Deputy Speaker.
We have had a useful discussion of many of the issues raised in the Bill, and I am grateful for the contributions made by Members, particularly the hon. Member for Islington North (Jeremy Corbyn), who referred to the Justice Committee’s report. I pay tribute to the Committee’s work in laying the foundations for the Bill; I also pay tribute to the leadership of my right hon. Friend the Member for Berwick-upon-Tweed (Sir Alan Beith), who unfortunately could not be here today.
The provisions relating to guardianship are clearly the most contentious, but it would have been difficult to proceed with the Bill if we had included them. I hope that, in Committee, we shall have opportunities to consider how we can best establish a basis for progress in the future.
My hon. Friend the Member for Rochford and Southend East (James Duddridge) made a powerful speech in which he raised what is, essentially, the new issue of people who go missing abroad. That will need to be given special consideration in Committee: we shall need to think about what can be done to ensure that the families of such people are helped in the best possible way, hopefully by means of the Bill. My hon. Friend the Member for South Staffordshire (Gavin Williamson) powerfully set out the challenges involved in having to go down seven different routes in order to tidy up the affairs of someone who has gone missing. That underscores why this Bill is necessary.
I am extremely grateful for the support I have received from both Front-Bench teams, and I hope we can move forward swiftly. As many Members have said, it must be almost intolerable to have to deal with both the trauma involved in handling the affairs of someone who has gone missing and the emotional strain of trying to come to terms with the loss when it is difficult to believe that that person is dead. This House can put in place legislation that would allow a presumption of death certificate to be granted, however, and thereby at least enable families to tackle the affairs of someone who has gone missing and therefore move on in at least one regard. I commend the Bill to the House.
Question put and agreed to.
Bill accordingly read a Second time; to stand committed to a Public Bill Committee (Standing Order No. 63).