Presumption of Death Bill

John Glen Excerpts

Friday 2nd November 2012 Commons Chamber

[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 David Hamilton (Midlothian) (Lab)]

rose—

[John Glen]

I would be delighted to give way.

[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.

[John Glen]

I am grateful for that helpful intervention. The hon. Gentleman is absolutely right, and this Bill indeed builds directly on the provisions in Northern Ireland and Scotland, learning many of the lessons from their experience.

[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.

--- Later in debate ---

[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).