Baroness Kramer
Main Page: Baroness Kramer (Liberal Democrat - Life peer)
Baroness Kramer
My Lords, I should like to open by thanking the many campaigners who have supported the causes that will see what I hope is a moment of success with this Bill: Mr Peter Lawrence, who is here today, has been a tireless campaigner; the noble Lord, Lord Boswell of Aynho, who drafted the original Private Member’s Bill that he brought before the other place some years ago and which is remarkable for its similarity to the Bill before us today—he did some extraordinary work in drafting that first Bill; John Glen, the Member of Parliament for Salisbury, who sponsored the Bill in the Commons and took it through that place successfully—he has been an important campaigner; the Justice Committee of the House of Commons, whose hearings and 12th Report of Session 2012 have been pivotal in developing the issues and convincing a wide number of political parties and the establishment to recognise that this Bill is needed and should be supported; and the All-Party Parliamentary Group for Runaway and Missing Children and Adults, chaired by Ann Coffey MP, which held hearings that again brought many of the key issues to public notice.
However, if I have to stress one group above all who have pushed forward the causes covered in the Bill, it is the charity Missing People, and again members of the staff of that charity are here today. The charity does extraordinary work with the families of both children and adults who are missing and for missing individuals themselves. The charity recognises that these provisions could make a big difference to people who suffer as family and friends go missing. I want also to thank the Ministry of Justice and the team led by Paul Hughes, all of whom have been very supportive by providing information that has enhanced our understanding of the whole process.
What does the Bill do? It applies to England and Wales similar legislation that already exists in Scotland and Northern Ireland. It creates a new court procedure and an associated process of authoritative registration. The court procedure enables 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 their marriage or civil partnership. If the Bill is passed, the High Court would 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. The court also has the power to deal with the myriad consequential property-related issues that may arise as a result of the declaration. Why do we need the Bill? Around a quarter of a million people are reported missing each year. Thankfully, most come home or make contact, while a small number are sadly found dead. However, obviously this is not true for all. In 2010, the UK Missing Persons Bureau had on its records some 1,400 cases of people who have been missing for more than seven years.
The trauma for families and friends when a person goes missing is horrendous. As time passes without contact or information, some families conclude that the only possible answer is that their missing relative is “presumed dead”. After seven years they can start to take steps to resolve the legal affairs of that person, but without a body they have no death certificate, and without a death certificate a person is legally assumed to be alive. Currently, there are steps that relatives or interested persons can take. The MoJ has kindly listed the six procedures, each of which is a different legal process under which a person may be presumed dead just for the specific purposes of that procedure. You really could not invent a more bureaucratic and stressful system, one that often requires lengthy processes and extensive support from legal counsel. Both the Justice Committee and the APPG on Runaway and Missing Children and Adults, of which I am part, heard traumatic stories from families trying to find legal resolution. The emotional impact of accepting loss is hard enough without the added stress of a legal hunt-the-thimble, multiple applications, multiple different processes and multiple certificates.
The Bill resolves the problem by putting in place one procedure under which a family member or other relevant party can apply for a single presumption of death certificate which can be used for all valid purposes. The same certificate can be used to dissolve a marriage, dispose of property, close a bank account and so on. The court decision is entered into a register by the Registrar General for England and Wales. I should say that some of the existing procedures will remain on the books, as it were, so that people who want to seek presumption of death for perhaps only one narrow purpose will still have the procedures available to them. My honourable friend Lady Hamwee will explore some of those issues.
As I said earlier, similar systems have been in place in Scotland since 1977 and in Northern Ireland since 2009. Based on their experience, the number of declarations a year is expected to be between 30 and 40, so none of this is onerous for the courts. Similar legislation also exists in Australia and Canada and supports the notion that we are looking at something like 30 to 40 declarations a year. Of course, a person declared dead may suddenly reappear, and I believe this has happened once in Scotland. The Bill therefore has powers for the court to make revocations and when it provides the declaration, it can require the trustees to take out various forms of insurance, for example, to protect innocent purchasers of property or insurance companies which have paid out on presumed death.
I think that there can be no argument with what is in this Bill. Those who have read the debate in the Commons will recognise that it has very broad cross-party support and that every Member who spoke wished it speedy progress through this Parliament. But there can be an argument about what is left out of the Bill. Noble Lords will be well aware, again from evidence both to the Justice Committee and the APPG on Runaway and Missing Children and Adults, that the families and associates of missing people are often left in an intolerable limbo well before the seven-year mark is reached. Indeed, even at seven years, many families may not want to give up all hope and declare a loved one “presumed dead”. Because we recognise the plight of these families, the Justice Committee, the APPG and most of us campaigning for this Presumption of Death Bill have also been pressing for guardianship orders to be made available through the courts to protect the financial position of the missing person and his or her dependants at a much earlier stage. For example, relatives may need to access a missing person’s bank account to pay that missing person’s mortgage; or a business partner may need to sign new contracts or sell part of the business under an arrangement that would normally have required both signatures. There are many instances of this kind and they cause absolutely critical problems.
Let me quote from Peter Lawrence, whose daughter Claudia is missing, but who in his own struggles has taken on the cause of so many others in the same circumstances. He is here with us today. He has said:
“Claudia’s bank would not consider even moving any money from one account, a savings account, to her own current account to enable direct debits to be paid”.
Or indeed that, “These families”—the families of missing people—
“are plunged into emotional trauma, and they are trying to manage their practical affairs at a time when they are going through a scenario ... impossible to place yourself in”.
A number of people will have seen the quotes from Jane Dolby who has created the Fishwives Choir on the pattern of the Military Wives Choir following the death of her husband at sea. It was eight months before his body was found. During that period his wife could not get a death certificate and therefore could not access his bank account or claim benefits. She was left without an income and the Fishermen’s Mission gave her and her children emergency financial support to enable them, essentially, to survive. She has dedicated the first of the albums by the Fishwives Choir to the Fishermen’s Mission, but it illustrates the problems that so many people face.
While I regret that such orders are not included in this Bill, I recognise the complex work behind guardianship orders. The Government in their reply to the Justice Committee, which obviously raised and stressed these issues, argued that a detailed examination of the issue of guardianship orders is required and committed that,
“the Department will discuss with the Law Commission whether it would be willing to take on an investigation of this topic and make recommendations in the light of its findings. If the Law Commission is able and willing to take on this work, it will examine the issues carefully, consult widely, make recommendations and prepare such draft legislation … as may be required”.
My last information was that discussions with the Law Commission are still open and not yet concluded, and I hope that this debate will press the urgency of the issue on the Minister. In that context, I refer the Minister to the report of the Irish Law Reform Commission on exactly this subject, which was published this week, on 30 January. It is a very thorough report which has taken five years and quotes extensively from the UK experience as well as from the Justice Committee and the APPG on Runaway and Missing Children. The Irish Law Reform Commission also looked into the provisions already provided in Australia and Canada. It concluded and recommended that “an interim manager”—its name for a guardian—
“should have limited and specified powers to administer the affairs of the missing person for a period of up to 2 years, which can be extended for a further 2 years”.
We have the absolute irony that the Irish Law Reform Commission has produced its report based on a lot of the experience in the UK, and that, frankly, the UK Law Commission could largely lift all the work that it needs directly from its Irish counterpart. I hope that this will move quickly.
We all know that the best must not be the enemy of the good. All of us who have campaigned on these issues—a cross-party band—intend to keep up the pressure. I hope that this House will pass the Presumption of Death Bill in this Session. It is crucially important and is not just a first step but a significant step in and of itself. We all intend to be back in the future to legislate for guardianship orders. I beg to move.
Lord Ahmad of Wimbledon
My Lords, the Presumption of Death Bill introduced by my noble friend Lady Kramer was very well supported in the other place. I pay tribute to her sterling work in this area, and that of my honourable friend John Glen, the Member for Salisbury.
The Bill is small but important and I welcome the general support across the Chamber for what it is intending to do. As many noble Lords have acknowledged, it will bring practical benefits to the people left behind when a loved one disappears and is thought to be dead, and help to resolve the uncertainty this creates for a family.
If enacted, the Bill will achieve the same result as the legislation on presumption of death that the Government promised to introduce, when legislative time permits, in their response to the report of the Justice Committee on the presumption of death in July last year, which my noble friend Lady Kramer referred to. It will therefore come as no surprise to your Lordships that the Government wholeheartedly support this Bill.
At present, the law of England and Wales provides a number of procedures that can be used by those left behind if they wish to establish that a missing person is to be deemed to be dead. The problem is that some of these procedures, as has been illustrated by several noble Lords, can be used only in certain circumstances and at times have very limited outcomes, meaning that several procedures might have to be followed in any single case. This demonstrates the challenge, as my noble friend Lady Kramer highlighted so eloquently.
One example will suffice to illustrate the problem. One of the procedures is the “leave to swear death” procedure under the non-contentious probate rules. This procedure will open the way to administering the property of the missing person as if he or she were dead. However, it will not dissolve the missing person’s marriage or civil partnership. A separate procedure must be followed for that purpose. As has been acknowledged by the noble Lord, Lord Rosser, as well as by other noble Lords, creating a single, general-purpose presumption of death procedure to overcome this problem may not sound terribly significant, but it is significant because of the human cost of the present law. There are many case histories that we can cite in this respect, including those recorded by the All-Party Parliamentary Group for Runaway and Missing Children and Adults and by the Justice Committee in their respective inquiries in another place.
In the interests of brevity, I shall reflect on just one case, that of Jeremy Hoyland, who went missing in a jet ski accident off Bali in October 2008. His body has never been found. Media reports make clear the practical and emotional difficulties faced by his family until a death certificate was finally obtained in only May last year. His wife, Jacqui, is reported as saying that it was the issue of the death certificate that finally enabled her to put her husband’s affairs in order and that the absence of such a certificate had led to difficulties with everyday issues such as paying a mortgage and operating bank accounts in her husband’s name.
Of course, whatever legal procedures are available—and let us park the missing persons issue for a moment—we must not forget the anguish and loneliness felt by anyone who loses a loved one and the barriers that they have to face. They are going through one of the most emotional times in their life. Let us then consider the trauma that is added by that dimension of the missing person, at a time when one needs an easy process to overcome that trauma. Never can that loss be replaced. Never, too, perhaps, can closure be achieved, but the role of the law should at least be to assist in that process.
The Presumption of Death Bill seeks to address this by creating a single procedure that will provide a legally binding statement that a missing person is to be presumed to be dead for all purposes. This will simplify and clarify the law and thereby improve the position of people who have to deal with the property and affairs of a person who has disappeared and is thought to be dead.
In brief, the Bill provides that persons with a sufficient interest can apply to the High Court for a declaration that the missing person is to be deemed to be dead for all purposes. If the court is satisfied on the evidence that the person is dead or has not been known to be alive for a period of at least seven years, it will make the declaration and send it to the Registrar-General for England and Wales, who will enter the required details in a register of presumed deaths. This register will be searchable, and certified copies of an entry in the register will be legal proof of the relevant person’s death for all purposes and against all persons.
The declaration of death will have consequences for the ownership of the missing person’s property and may have consequences for the ownership of other property. The Bill therefore gives the court power to deal with property issues at the same time as the declaration. We expect that, on average, between 30 and 40 declarations are likely to be issued in England and Wales annually.
The deemed death will therefore be for all legal purposes a real death. However, unlike a real death, a deemed death can be undone by the person presumed to be dead returning. The Bill deals with this possibility by making provision, as my noble friend Lady Kramer mentioned, for variation orders that can revoke or amend declarations of death. These revocations or amendments will be notified to the Registrar-General and the appropriate amendments made to the register. Given the rigour of the initial procedure, we expect variation orders to be rare. In Scotland, I understand that there has been only one case of a reappearance of a person presumed to be dead under the Presumption of Death (Scotland) Act 1977.
None the less, the making of a variation order could make it necessary to alter dispositions of property made as a consequence of the original declaration of presumed death. The court is therefore given wide powers to deal with these situations. These powers are not, however, absolute. The provisions of the Bill on this subject are relatively complicated, but I will mention two of the most important limits on the power of the court to undo transactions made as a consequence of the original declaration of presumed death.
First, if more than five years have passed since the making of the original declaration of death, the court can make further orders in relation to property only in exceptional circumstances. Secondly, the court’s order cannot in any event provide grounds to challenge an acquisition of a property made in good faith and for value. Of course, this means that a loss will fall on someone else, but this is inevitable where there is property to be claimed.
The remainder of the Bill is ancillary to these core provisions. I shall mention some of the more important ones. First, rules of court and registration regulations will have to be made to specify the detail of the procedures under the Bill. The detail of the rules is still to be settled, but on the basis of what is required under current procedures and under equivalent rules of court already in force in Northern Ireland it is reasonable to assume that full details of the applicant, the missing person and other persons, including insurance companies, interested in the application, as well as confirmation of the required advertisement of the application, will be required by the court.
Secondly, the court will have power to compel the provision of information where the information is necessary to dispose of the proceedings. Thirdly, although some of the existing procedures will be repealed, others will remain available. Finally, the Bill provides that certain time periods specified in the Bill, including the period of seven years that may form the basis of making a declaration of presumed death, may be altered by order made by the Secretary of State. However, I say in response to the question asked by my noble friend Lady Hamwee that there are no plans to exercise this power at present.
In short, the Bill provides a robust court-based procedure to establish that a person is to be deemed to be dead and an authoritative registration process to record the outcome in a readily accessible fashion. The absence from the law of England and Wales of such a procedure is perhaps all the more surprising given that the law of Scotland has for many years provided one, as my noble friend Lady Kramer pointed out, and that Northern Ireland followed suit in 2009 with very similar legislation. My noble friend’s Bill will therefore bring the law in England and Wales broadly into line with that in Northern Ireland and Scotland.
I thank my noble friend Lady Hamwee for giving me early notice of the questions that she was going to ask, and I hope that I have given her satisfactory answers. I always welcome her input not just on this issue but across a wide range of issues. In response to her question on published guidance, I can confirm that, as recommended by the Justice Committee, the Ministry of Justice and the Missing Persons Bureau have published guidance for police and, more importantly, the families of missing people on existing procedures for a person presumed to be dead. This guidance is available on the Missing Persons Bureau website and across government websites. I recognise that we need to ensure that relevant links appear on different websites. If we are meant to be easing a process here, we need to ensure that all relevant websites across different parts of government and interested bodies are linked up. I shall certainly follow up that issue.
My noble friend asked about general guidance on the operation of Section 15 of the coroners Act, which it was hoped would be published last summer. This forms part of the guidance to which I have already referred. The Bill was introduced in the other place by my honourable friend, the Member for Salisbury. He did this before the Government responded to the Justice Committee but after the noble Baroness introduced her own Presumption of Death and Provisions Relating to Missing Persons Bill. That Bill, which is in part very similar to the Presumption of Death Bill that is now before your Lordships, also includes provisions on the related but separate topic of the guardianship of a missing person. The Government are very grateful to my noble friend, who I know is a long-term supporter of better provision for missing persons and those left behind, for both her dedication and pragmatism and for taking up this Bill, introduced in the other place by my honourable friend, the Member for Salisbury. I appreciate, of course, that this in no way indicates a lessening of her support for legislation on guardianship.
I would like to comment very briefly on that particular issue. As she has already enlightened the House, there have been the Irish announcements this week. We welcome those and will study them carefully. She is right that discussions are ongoing with the Law Commission. I assure her that when I knew I was speaking to this Bill and looked into it, I pressed officials in the Ministry of Justice to assist us in trying to reach the conclusion of those discussions. Although we have not yet reached a conclusion, we are close to it, and I will certainly write to her in detail about what the Government are currently aiming to do, particularly whether they plan to take forward the Law Commission’s proposals on guardianship. As the noble Lord, Lord Rosser, pointed out, as did other noble Lords, this is a key part of this issue on guardianship. The Government know this and we hope, after studying both the outcome that we have seen in Ireland and our discussions with the Law Commission, to come forward with further proposals in this regard.
My noble friend Lady Kramer also mentioned the Fishwives Choir. I have yet to hear the single, but I pay tribute to the many who lose loved ones at sea and often do not find the deceased’s body. Here again, we see an example of communities taking charge—bringing life to an issue. I am sure the whole House joins me in wishing the Fishwives Choir well, both in the release of their single—I do not know whether it will get to number one, but I am sure that noble Lords will be reaching out to download it—and, on a more serious note, in the vital issues they raise.
In conclusion, I once again pay tribute to the people involved in creating this Bill in the first instance. First—I have already said this, but I will do so again—I pay tribute to my noble friend Lady Kramer for her continued dedication in this regard. I also pay tribute to my noble friend Lady Barker, who has eloquently highlighted the excellent and sterling work done by the charity Missing People. I join all noble Lords in commending its work. This charity has campaigned long and hard and knows better than most, perhaps, the problems faced on a daily basis by ordinary people coping with the disappearance of a loved one.
It would be remiss of me, which I am sure noble Lords will acknowledge, not also to pay tribute to another noble friend of mine, my noble friend Lord Boswell. In his previous incarnation as the honourable Member for Daventry, he introduced a Private Member’s Bill in terms that were similar to those of the Bill now before us. I am delighted that we have received support for this Bill from across the House. I pay tribute to my noble friend for bringing this Bill forward. Ultimately, in coming together, I am sure we all share the sentiment that we hope this will make life that much better—just slightly better, I acknowledge—for those caught up in the often tragic circumstances of unexplained disappearances. I therefore wish this Bill a speedy and successful passage through your Lordships’ House.
Baroness Kramer
My Lords, I rise to say how pleased I am with the sentiments that the Minister has just expressed. I also pay tribute to those on the opposition Benches for their support. This debate might have looked slightly unbalanced from the Back Benches, but I assure the House that there are numerous supporters of this Bill from all parties and all across the House who think that somehow 1 January was jinxed. A number of them looked at their diaries and said that no matter how much they wanted to, they could not actually come to speak.
Baroness Kramer
Sorry, 1 February. That is part of the problem right there. So 1 February is jinxed, but we have been assured that that support is strongly felt, and it is very much appreciated. I have to say to the Minister that I thought he made a very good case for guardianship orders as he talked about the plight of those who have just found that family members are missing. However, I will not press that issue; we will continue it outside this context. So I say thank you to everybody who has participated and ask the House to give this Bill a Second Reading.