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.