COMMITTEE FOR FINANCE AND PERSONNEL
OFFICIAL REPORT
(Hansard)
Presumption of Death Bill
24 September 2008
Members present for all or part of the proceedings:
Mr Mitchel McLaughlin (Chairperson)
Mr Simon Hamilton (Deputy Chairperson)
Mr Roy Beggs
Dr Stephen Farry
Mr Fra McCann
Ms Jennifer McCann
Mr Declan O’Loan
Mr Ian Paisley Jnr
Ms Dawn Purvis
Mr Peter Weir
Witnesses:
Mr Oswyn Paulin ) Department of Finance and Personnel
Mr Neil Lambe )
The Chairperson (Mr McLaughlin):
We are joined once again by Oswyn Paulin and Neil Lambe. Considerable progress was made last week, but there were time constraints, so we appreciate that you have rejoined the Committee this week. Perhaps, Mr Paulin would provide a brief reprise of the progress that was made last week, and we will continue from there and complete the process. The Committee has been scrutinising the Bill on a clause-by-clause basis and has reached clause 6.
Mr Oswyn Paulin (Department of Finance and Personnel):
I had the impression that we had finished clause 6 last week.
The Chairperson:
I cannot remember; you have caught me out, Oswyn. I am sure that members will correct you if you are wrong, however, as no one is indicating, I will assume that your recollection is more accurate than mine.
Mr Paulin:
I am happy to continue with clause 6 or clause 7, but I think that clause 6 was dealt with last week.
I will say a few brief words about each clause, and then give Members the opportunity to ask questions, to which Mr Lambe and I will attempt to reply. If there are points raised that we cannot answer at this stage, we will come back to the Committee at a later stage.
With your permission, Mr Chairperson, I will begin with clause 7, which deals with insurance matters. It is modelled on, but is not exactly the same as, the insurance provisions in the Presumption of Death (Scotland) Act 1977, which was referred to at the previous Committee meeting and by the Minister during the Second Stage debate. The Minister indicated that the Department has decided to propose amendments to clause 7 and to clause 6(4)(b), so that provision for the treatment of capital sums for insurance purposes will be the same here as provided for in the Scottish Act.
Mr Weir:
What discussions has the Department had with representatives of the insurance profession here? How do they see things with regard to costing, or even with regard to how the Bill will work in practice?
Mr Neil Lambe (Department of Finance and Personnel):
We had a meeting with the Association of British Insurers and discussed whether we were right to treat annuities and other periodical payments as capital sums, or whether we should follow the Scottish model and exclude them from the treatment of capital sums. The association thought that it would be better for its members if we followed the Scottish model, which has not presented them with any problems.
Given that the legislation in Scotland is rarely used, most insurers do not encounter it in practice. The type of insurance that we are talking about — trustee or beneficiary indemnity insurance — is a fairly niche market, but it is a service that is offered by all of the large insurance companies.
Mr Weir:
From the practical perspective, did you receive any indication from the insurers as to whether they felt that a standard rate should apply across all cases; or should the rate vary according to the circumstances of each case?
Mr Lambe:
We did not have detailed discussions about what rate would be used to fix particular premiums, but I imagine that the premium would have to relate in some way, for example, to the amount of life insurance moneys that are being paid out, or to the value of the missing person’s property at the date on which he or she is presumed to be dead.
As with all insurance products, the premium payable would relate to the value of the property or life insurance capital sum that is in issue. It would be very specific.
Mr Paulin:
Clause 8 provides for the rules of the Supreme Court. Among other things, it makes supplementary provision in relation to applications for declarations of presumed death and variation orders. The rules will prescribe the forms to be used in court and will detail those persons who should receive notice of applications made under the Bill.
Clause 9 deals with the Attorney General for Northern Ireland, who will receive notice of all applications for declarations of presumed death and of applications for a variation order under the Bill. The clause also states that the Attorney General may intervene in any proceedings in relation to presumed death before the High Court to argue any case that he or she thinks should be fully argued.
Clause 10 deals with the circumstances in which a person may intervene in any proceedings for a declaration of presumed death under clause 1 or a variation order under clause 5. Unless the person wishing to intervene is the spouse, civil partner or a close relative of the missing person, he or she will have to obtain leave of the High Court.
Mr Weir:
Are there any circumstances in which somebody who does not fall into those categories can intervene — for example, where somebody alleges, or gives evidence, that the person in question is not actually dead? Is that an example of when an intervention could be made that is outside the criteria?
Mr Paulin:
Yes.
Mr Weir:
Is that the thinking behind the provision; that it could be someone other than the spouse or close relative?
Mr Paulin:
Yes — and an intervention could be made by the person who is presumed dead.
Mr Weir:
One assumes that that would have a fair chance of stopping the proceedings.
Mr Paulin:
They might want to come back and say that they are still alive.
Mr Lambe:
It is likely to be used only when someone wishes to contradict the affidavit evidence of the applicant and seeks to prevent the court exercising its jurisdiction to declare the missing person to be presumed dead.
Mr Paulin:
Or again, as it applies in variation orders, which is what I was thinking of.
Clause 11 deals with costs. Those are the costs between parties and not, as we would normally understand in public administration, the costs to the Exchequer. The clause confers on the High Court a broad power to make such order as to who shall pay the costs of proceedings as it considers just. Costs may be ordered to be paid using the property of the missing person.
Clause 12 allows the Department of Finance and Personnel to increase or decrease the length of time a person must have not been known to be alive before the High Court may make a declaration under clause 1. We had an earlier discussion about that. Under clause 12, the Department may increase or decrease the five-year limitation period in relation to property variation orders made by the court under clause 6(2).
Clause 13 provides that the existing statutory provisions that permit the High Court to dissolve a marriage or a civil partnership on the grounds of the presumed death of a spouse or civil partner shall cease to exist.
The Chairperson:
The Committee had some discussion on that issue.
Mr Paulin:
Clause 14 should be taken with schedule 1 of the Bill, which sets out the provisions in relation to the register of presumed deaths. It was the register and the registration that provided the initial impetus for the legislation, although it is now much wider than that. Clause 14 and schedule 1 provide for the Registrar General for Northern Ireland to establish and maintain a register of presumed deaths. The provisions deal with the making of entries in the new register and the amendment, cancellation, correction and re-registration of entries. The powers available to the Registrar General in relation to entries in the new register are similar to his powers in relation to entries in the register of deaths under the Births and Deaths Registration (Northern Ireland) Order 1976.
Clause 15 deals with Assembly subordinate legislation and procedures applicable to the making of orders and regulations in the draft Bill.
Clause 16 is the interpretation clause, which defines certain words or phrases used in the Bill. As noted in earlier briefing provided to the Committee, we had hoped to replace the definition of "insurer" with something that might be simpler and more readily understood to the non-lawyer and, possibly, to lawyers.
Clause 17 allows the Department of Finance and Personnel to make transitional, saving, supplementary, incidental and consequential provisions and savings in connection with the Bill.
Clause 18 should be taken with schedules 2 and 3, which deal with amendments and repeals of legislation. The clause should be read along with clause 13, which I referred to earlier and which deals with the repeal of existing matrimonial and civil partnership legislation, and the dissolution of a marriage or civil partnership.
Clause 19 is the commencement clause. Some clauses in the Bill — or sections in the Act, as it will be — will commence immediately the Bill receives Royal Assent and the Department will decide when other sections of the Act commence.
Clause 20 relates to the short title.
The Chairperson:
Thank you. Do members have any comments?
Mr Hamilton:
I have comments on general issues that were perhaps not covered. There was some discussion during the Second Stage debate about the disclosure of information by third parties. The Minister suggested that he was going to look at that issue again. Will you tell the Committee what is being looked at?
Mr Paulin:
I believe that Mr O’Loan raised the issue of disclosure at the previous Committee meeting. Just to recap: in the draft Bill, the Department did not incorporate the provision that is in the Scottish Act, but we raised the issue of whether there should be disclosure provision and what form that should take. The consultation process produced a number of responses saying that there should be disclosure provision.
Drafting a disclosure provision has been tricky, and the Department decided to proceed with the Bill and amend it as it goes through the Assembly. We are making progress with a draft disclosure provision, which will be presented to the Committee as soon as it is in a presentable form.
The Chairperson:
Will the Committee have sight of it in good time before it goes to the Assembly?
Mr Paulin:
Absolutely: we hope to have it by later next month.
Mr Lambe:
I hope to have all the necessary agreements across government to the disclosure provision by the middle of October.
Mr Paulin:
Due to the fact that the disclosure provision will relate to the powers of the court, clearly the agreement of the Secretary of State for Northern Ireland is required because this is a reserved matter.
Mr Beggs:
You indicated that disclosure requirements exist with regard to the Scottish provision. Why was that provision not just lifted across if it works properly there? Is there not a working model elsewhere that is acceptable?
Mr Paulin:
We are not entirely clear that it is a working model in the sense that it works. Research has, I believe, indicated that it is not a provision that has had any effect — it has not been useful. The Department is looking at a provision that will be useful and practical, and which will involve the court having the power to order disclosure.
Mr O’Loan:
I expressed concern last week about this issue. I am not reassured by what I am hearing today or by what the Minister said in the Assembly. The most, it seems, that is being indicated is to give the court the right to ask for information if it feels that a person or organisation has such information.
This Bill originated particularly from the issue of the disappeared, to which it would be generally applicable. However, when one considers the disappeared, it is highly desirable that a clear duty and obligation is imposed on any person or organisation that has information relating to a case in progress to bring that information before the court. I am thinking, in particular, of the police, the security forces and the security services. There should be a proactive clause in the Bill.
Ms Purvis:
If the court issued an order for disclosure of information, and someone did not disclose that information, would they be in breach of the court order?
Mr Paulin:
Clearly, they would. First; the court would issue an order, if required and necessary, and it could issue it on the application of any of the parties to the proceedings. That is the normal position with regard to disclosure in court proceedings — that the court has the power to order disclosure. However, that is done generally not by the court of its own volition but by application by various parties. If there is a failure to disclose in accordance with a court order, that is a serious matter and, ultimately, can lead to contempt proceedings against the person who has failed to disclose.
The Chairperson:
How does that relate to the broad argument that was presented by Mr O’Loan?
Mr Paulin:
We must consider the purpose of the legislation: it is not to have a general, wide-ranging inquiry into the circumstances of someone’s disappearance; it is to establish whether that person is dead or still alive. In the vast bulk of cases it will be clear, beyond doubt, that the person is dead. Therefore, the proportionality of placing a duty on people to disclose all relevant information on a person’s death must be examined: is it proportionate to place a duty on people to disclose a lot of information when it is clearly beyond doubt that the person is dead? It is important to consider that issue before imposing upon a wide range of bodies and individuals a duty to disclose information.
Dr Farry:
Does the clause put a general duty on unidentified organisations and the wider population, or is the intention to name specific organisations, particularly Government bodies?
Mr Paulin:
It would be better for the court to have a wide-ranging power. It would be unfortunate if the provision were restricted to Government organisations and a case arose in which a judge felt that he or she would like to order disclosure against an individual or private company but could not do so because the provision was clearly restricted to Government. It should, therefore, be wide.
Dr Farry:
In a sense, therefore, other Government agencies have been consulted about the matter, but there is not a formal requirement to get agreement from different agencies before it can be introduced into our legislation.
Mr Paulin:
The agreement of the Secretary of State is required, because the matter falls into the reserved field and may even be excepted.
Dr Farry:
That leads me to my next question. Leaving aside the issue of the disappeared; if someone is not dead, it is likely that they will not be in Northern Ireland — he or she will have moved elsewhere in these islands, to Europe or further afield. How will the measure work, given that it will apply only in the narrow jurisdiction of Northern Ireland? Will it apply to, for example, HM Revenue and Customs, a UK-wide agency, which I would have thought would be one of the first organisations that you would contact about, for example, whether any tax is being paid, and so on? How does the Bill relate to agencies that operate UK wide? Other European Union countries may hold also relevant information. How does the law relate to those jurisdictions? If there were suspicion, for example, that someone was living in the south of France or Spain, could the Bill’s powers be extended in order to obtain information from either the French or Spanish authorities?
Mr Lambe:
As regards a Government agency such as HMRC; that UK-wide Government body would be bound by the order for disclosure because it would have been made by the High Court. If the order is directed to the agency, it will carry out a trawl of its records based on information that is provided by the court. It would then reveal to the court that its data-recording system shows that the last transaction was made in that person’s name on a particular date. That information will support and complement the affidavit evidence, or will contradict it; in which case the court is faced with conflicting evidence. That procedure would be followed by all Government agencies named in the disclosure order.
It is likely that the High Court would not find it helpful to make a disclosure order in relation to an individual or an organisation that is based outside the United Kingdom, because it would not have any enforcement powers over that order.
Mr Paulin:
There are complex arrangements for co-operation between courts in the European Union. I have forgotten the exact phrase that is used, but the 1968 Brussels Convention, for example, provides courts with the means to seek the assistance of other courts. Co-operation is possible through that provision. However, the reach of the Assembly is limited in those matters, and I am not sure whether the courts have any greater jurisdiction or powers. I will come back to you on that.
Dr Farry:
I appreciate that.
Mr O’Loan:
I am not reassured by anything that I have heard. The police service or the security forces may have knowledge of an individual for whom an application for a presumption of death is going through the court, be aware that that action is taking place, but be under no obligation to inform the court of the information that they have. They can sit on their hands and do nothing. That is not a proper situation.
I do not foresee any difficulty with proportionality if the obligation is put in such a way that requires organisations, for instance, to provide relevant information that is pertinent to the matter that is before the courts, which is whether or not a person is dead.
The Chairperson:
Is the issue whether the question should be examined under the aegis of this Bill, because there are all sorts of procedures and investigations in relation to the death of an individual? Is the court trying to establish whether any evidence has been found over a prescribed period of seven years, for instance, that an individual is alive? It is not a question of whether the person is dead; the question is whether any organisation or individual holds evidence that the person was alive in the past seven years. Is that not the pertinent question?
Mr Paulin:
That is the pertinent question. Another aspect of the Bill relates to the parties to the case — the families who are trying to establish whether a person is dead. If they think that they need disclosure from the police, for instance, they will have the power to go to the court, and the court will have the power to order disclosure where necessary.
Mr O’Loan:
There are two tests by which the court judges on the matter: first, it judges whether there is any evidence concerning whether the person has died; and, secondly, whether the person has been seen in the past seven years. An individual or a public body may well have evidence of whether the person has been seen, and they ought to be under a duty to bring that information before the court.
The Chairperson:
I am not taking issue with the Bill; I am merely trying to find a way through this. Last week, the officials set out in some detail the parameters of this discussion. You mentioned a specific group of people who have disappeared, and as a result of their disappearance it is difficult to point to practical conclusive evidence that they are dead. They have disappeared. They could have disappeared because they wanted to, and they may have wished to change their personality and identity, for instance. Do we pursue both lines? Do we argue that the court should have the ability to pursue both questions? Do we seek evidence from agencies, for instance, that the individual has died or is known to be alive over a prescribed period? That would be regarded as the test as to whether a certificate of presumed death could be issued.
Mr Paulin:
There are circumstances where it will not be difficult to establish that someone is dead, even though no body has been recovered. If, for example, a person has been abducted from their home and has not been seen since, there is a reasonable presumption that that person is dead.
Is it proportionate to say that if a court receives that information and is minded to make an order, but to quell any doubts everyone who has information must produce it to that court? That could mean that the court would have to consider a vast amount of documentation. What would that achieve if it is universally accepted that the person is no longer alive?
I suggest that the way forward is for the Department to produce a draft clause for the Committee to consider.
The Chairperson:
Mr O’Loan, what do you think about the Department producing a draft clause, which the Committee can then examine?
Mr O’Loan:
I have made my points.
The Chairperson:
I know, but we do need to make a decision.
Mr O’Loan:
My argument to the Committee is that we should support a proactive clause that places a duty —
Mr Hamilton:
Perhaps the Committee should proceed on the basis of what has been suggested by Mr Paulin?
The Chairperson:
Yes. The Committee will take Mr Paulin’s advice. Mr Paulin, can you come back with a draft clause? Following that no doubt, we will rehearse the discussion again. Are there any other questions arising from the Bill?
Mr O’Loan:
There is the other issue that I raised regarding human rights compliance. The explanatory and financial memorandum for the Bill contains a statement that:
"The provisions of the Bill are considered compatible with the Human Rights Act 1998."
By whose authority is that statement being made? Who is deemed to say that that is so? Has there been any consultation with the Human Rights Commission, in particular on the requirement to disclose any information?
Mr Paulin:
The consultation paper was sent to the Human Rights Commission, but I do not believe that it made any comment.
Mr Lambe:
The Commission did not respond.
Mr Paulin:
As far as the Bill’s compatibility with the Human Rights Act is concerned, the Departmental Solicitor’s Office is satisfied that it complies with the European Convention on Human Rights.
Mr O’Loan:
I am sorry, I could not hear you. Who is satisfied?
Mr Paulin:
The Departmental Solicitor’s Office. I — as Departmental Solicitor — am satisfied that the Bill is compliant with the Human Rights Act.
Mr Lambe:
Paragraph 69 of the consultation paper included a human rights assessment of the draft Bill. It explains which articles of the convention the Department believed were potentially engaged by what was being proposed. The conclusion reached was that the Bill would be human rights compliant.
The Department sought views and there was a specific consultation question on that specific issue. That question asked whether respondents agreed with the Department’s opinion that the provisions of the draft Bill comply with the convention. The respondents who addressed that particular question agreed with the Department’s assessment.
Dr Farry:
Under British law and legal tradition it is — in theory — possible for someone to live their lives totally disengaged from the state. That situation differs slightly different from the European tradition of law. Therefore, presumably someone could decide that they want to disappear from the life that they have led, lead a different life and break off all forms of contact.
Could that person then subsequently make an argument that they have been declared dead by the court and that their rights to personal integrity — or whatever the term is under the convention — have been breached? You may suggest that that is not an absolute right and that there are various limitations that must be balanced.
In essence, my question probably leaves off from what Mr O’Loan was arguing. How does the Bill ensure compliance with the convention in extreme circumstances such as those I have outlined? How is that process reconciled?
Mr Lambe:
In an ordinary missing person case, a person is reported missing to the police and the family do not know what happened to them. The police then carry out their investigations according to the established missing person protocols.
They may locate the missing person, who is alive and well and has simply decided that they have had enough of their family and that they want to break contact. A balance must be found to take account of that person’s right to go missing and for his or her whereabouts not to be relayed back to the family. The police have an obligation to investigate all reports of missing persons, but, if they find that the missing person is alive and well — and they are satisfied that no crime or other illegality has been committed — they will ask the missing person if they want their family to be informed of where they are.
If the person does not wish the family to know that, their right, under article 8 of the convention, trumps the right of the family to be told details of where the person is located. In the case of a child, the parents would be told, but the right to privacy of a missing adult trumps the right of the family to have that information.
Dr Farry:
The family’s right to have that information is not clearly defined in a way that is equivalent to the missing person’s right of privacy. If there is no information about whether a person is alive or not, and that person is declared dead after seven years but returns after 10 years, does the state have any liability for breach of their right of personal integrity for having declared that person dead? What measures can be taken to safeguard against that, given the need to balance other rights in the convention?
Mr Paulin:
I am not sure what right a person would have in such a situation. A development of the right to privacy and respect for private life, which is covered by article 8 of the European Convention on Human Rights, might be that one has the right to be regarded to be alive when one is alive. It is possible to discuss extraordinary scenarios in which people do the most peculiar things. Those scenarios can be accommodated as much as possible, but limits are eventually reached. A person who had deliberately disappeared, not contacted anyone and been declared dead, having done nothing to make known the fact that they were alive, would find that a court would be happy to declare them alive but would be less likely to grant them any particular remedy —
Dr Farry:
I suppose the court’s response would be that no damage had been caused to the person by the declaration of death. As long as the court vacated that declaration as quickly as possible, the person could not claim any damage on the part of the state arising from the declaration.
Mr Paulin:
It might be considered defamatory to say that a person is dead when they are alive, but the position would be understandable.
Dr Farry:
Such a person might have no reputation to defame.
Mr Lambe:
We took into account the fact that the state has an interest in knowing whether its citizens are alive or dead. In addition to respect for private life, an argument might arise from the convention in relation to the property rights of the missing person. If the missing person were presumed to be dead, their property would transfer as if they were dead. Clause 6 of the Bill relates to property variation orders, and it allows some scope for property to be returned to the missing person. It properly balances the interests of the family left behind, the interests of the state, and the interests of the missing person who may subsequently turn out not to be dead.
Mr O’Loan:
Useful background information has been given on compliance with human rights legislation, and I will give consideration to that.
The Chairperson:
The Committee’s deadline for receipt of submissions is 15 October, so we may hear from agencies.
I presume that you are satisfied that the Independent Commission for the Location of Victims’ Remains received and considered the correspondence and entered a nil return.
There was an issue around the proposal from Wave about the disappeared, regarding whether the Commission would assist the families and the court in making a declaration. Has the Department considered that proposal from Wave?
Mr Paulin:
We gave it some thought and wondered whether the disclosure provisions may assist with that. Beyond that, was there an issue with another aspect of it?
The Chairperson:
There may have been an issue in relation to assisting the families to engage with the process if that involved legal costs.
Mr Paulin:
My understanding is that the Commission is either in the reserved or excepted fields, so that would be outside the powers of the Assembly. If the powers and duties of the Commission were to be amended, that would be the responsibility of the Northern Ireland Office.
Mr Lambe:
The Independent Commission for the Location of Victims’ Remains was established by treaty, therefore there are specific issues about obliging it to fulfil a function, and we are unable to impose any statutory obligation on it. That is not to say that in taking an application to the High Court, the Commission would not, if it felt that it wanted to, assist the families in the production of their affidavit evidence. Similarly, the families may include in their affidavit evidence reference to findings or determinations already publicly made by the Commission in relation to a specific, named member of the disappeared.
The Chairperson:
Your interpretation is probably correct but, nonetheless, the issue has been brought to our attention. Therefore, does that imply that there should have been at least a follow-through meeting, even if all that involves is mapping out where the respective jurisdictions begin and end and deal with questions such as whether you have met the Commission or talked to Wave about their proposal, and whether people have a consensual understanding of where responsibility lies?
Mr Paulin:
We have had a discussion with Wave, we have not met the Commission.
Mr Lambe:
I have been in contact with the Commission’s family liaison officer and have kept him fully informed of the project as it has progressed, because he provided the initial point of contact to the families of the disappeared, and helped to arrange our meeting with them.
I have not raised with him formally the question of whether he or the Commissioners would consider themselves to have any formal role in assisting the families in that way. The difficulty is that the Independent Commission for the Location of Victims’ Remains has a very specific statutory remit and that does not extend to providing financial assistance — that is a matter that we could discuss with our colleagues in the Northern Ireland Office.
The Chairperson:
Depending on the time available for consultation, the Committee may or may not have a further evidence session on that matter. Again, I thank you both for your expert assistance.