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Committee for Finance and Personnel Report (2007-2011 Mandate)

Report on the Presumption of Advancement Legislative Consent Motion

COMMITTEE FOR FINANCE AND PERSONNEL

Ms Jennifer McCann MLA 
Chairperson

To all MLAs

Legislative Consent Motion – Presumption of Advancement

1. The Minister of Finance and Personnel has tabled the following Legislative Consent Motion for debate in the Assembly on Monday 22 February 2010:

That this Assembly endorses the principle of the extension to Northern Ireland of the provisions of the Equality Bill dealing with the abolition of the presumption of advancement.

2. The Committee agreed to prepare a short Report to be sent to all MLAs in advance of the debate. This is attached and includes a summary of the Committee’s consideration of the proposed amendment on the abolition of what remains of the presumption of advancement doctrine, Ministerial correspondence and briefing papers, a research paper and minutes of evidence.

Yours sincerely

Jennifer McCann MLA 
Chairperson 
Committee for Finance and Personnel

 

Report on the Presumption of Advancement Legislative Consent Motion

Contents
  • Background
  • Committee Consideration
Appendices
  • Amendment to Equality Bill
  • Correspondence from Minister of Finance and Personnel
  • Research Paper
  • Minutes of Evidence

Committee for Finance and Personnel Report on the Presumption of Advancement Legislative Consent Motion

Background

1. The Equality Bill1 was introduced at Westminster on 24 April 2009, and was referred to the House of Lords in December 2009 following its passage through the House of Commons. As equality and anti-discrimination are transferred matters, the provisions of the Bill, as introduced, do not extend to Northern Ireland. However, an amendment (Appendix 1) was tabled on 12 January 2010 to abolish the doctrine of presumption of advancement, and it is proposed that the provisions of this amendment should be extended to Northern Ireland.

2. Presumption of advancement is one of the means by which courts allocate ownership of property where, when one party transfers property to another and the relationship between the two parties is so close, there is a presumption that the transfer was intended as an absolute gift. In such circumstances, the transferor loses any beneficial interest in the gift. In Northern Ireland the presumption still applies in terms of transfers from a father to a child; it does not, however, apply for transfers from a mother to a child, where the mother would retain beneficial interest. An Assembly Research paper is provided at Appendix 2, giving further detail on the presumption of advancement and setting out the current legal application in Northern Ireland.

Committee Consideration

3. The Minister of Finance and Personnel wrote on 17 December 2009 to notify the Committee that he was content, in principle, to seek the agreement of the Executive to table a legislative consent motion to extend the provisions of the proposed amendment to Northern Ireland, and to request the view of the Committee on this issue. The Minister’s letter and accompanying Memorandum are attached at Appendix 3.

4. On 13 January 2010, the Committee took evidence from Departmental officials on the proposed legislative consent motion on presumption of advancement – see Appendix 4. The officials explained that it is intended that the GB Equality Bill is used to remove several anomalies from law, one of which is the presumption of advancement, which would allow the UK government to ratify protocol 7 (crime and family)2 of the European Convention on Human Rights. The officials also confirmed that the principle as it related to spouses and engaged couples had been abolished in 2005, and that there did not appear to be a specific reason why it was not abolished completely at that time.

5. Having considered the evidence, the Committee agreed that it supported the Department of Finance and Personnel in seeking the Assembly’s endorsement of the principle of the extension to Northern Ireland of the proposed amendment to the GB Equality Bill, to abolish what remains of the doctrine of presumption of advancement.

1http://services.parliament.uk/bills/2009-10/equality.html

2Article 5 of Protocol 7 provides for equality between spouses, including in relations with their children 
(http://conventions.coe.int/treaty/en/Treaties/Html/117.htm) .

 

 

APPENDIX 1

LORD LESTER OF HERNE HILL

129ZB Insert the following new Clause—

"Abolition of presumption of advancement

(1)  The presumption of advancement (by which, for example, a husband is presumed to be making a gift to his wife if he transfers property to her, or purchases property in her name) is abolished.

(2)  The abolition by subsection (1) of the presumption of advancement does not have effect in relation to—

(a)  anything done before the commencement of this section, or

(b)  anything done pursuant to any obligation incurred before the commencement of this section."

 

Appendix 2

Appendix 3

Appendix 4

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