Presumption of Death Bill
Debate between Lord Ahmad of Wimbledon and Baroness Kramer
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.