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Official Report (Hansard)

Session: 2008/2009

Date: 10 December 2008

COMMITTEE FOR FINANCE AND PERSONNEL

OFFICIAL REPORT

(Hansard)

Presumption of Death Bill

10 December 2008

Members present for all or part of the proceedings:

Mr Mitchel McLaughlin (Chairperson) 
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 Neil Lambe ) Department of Finance and Personnel 
Mr Oswyn Paulin )

The Chairperson (Mr McLaughlin):

The next item on the agenda is the Committee’s clause-by-clause scrutiny of the Presumption of Death Bill. We will again hear evidence from Oswyn Paulin, the departmental solicitor and head of the Government Legal Service, and Neil Lambe, principal legal officer in the civil law reform division of the Departmental Solicitor’s Office. I note that they arrived early. I refer members to the Department’s response to the issues that were raised at last week’s meeting and the secretariat briefing paper.

The public gallery is quite full. Hansard is recording this session, and I remind everyone that all mobiles telephones must be switched off completely to avoid any interference with the sound.

The best approach might be if, on a clause-by-clause basis, I ask the Committee Clerk to talk to the secretariat paper. I ask members to consider each clause in conjunction with the related explanatory paragraphs in the secretariat paper. As we consider each clause we will ask whether any further clarification is required from Oswyn or Neil, and then I will put the question on a clause-by-clause basis. The Committee Clerk will now say a few words about the secretariat paper.

The Committee Clerk:

The paper summarises briefly, clause by clause, the key issues that arose from the evidence sessions. There are a number of potential amendments against some of the clauses. The DFP officials are here, and members may wish to get any clarity that they require at this point. This is the last formal occasion to consider the Bill. The Committee report must be drafted after this session, and that draft will then be considered on 7 January 2009. It must be agreed by 14 January and laid before the Assembly by 16 January at the latest.

The paper briefly summarises the key issues arising in relation to each clause. It is not definitive; the table of issues that members received last week was a much more detailed document and covered all the issues, but this is just a summary.

The Chairperson:

I know that the Department has taken account of the discussion last week. Oswyn and Neil, have you any comments initially, or will we simply deal with each issue as we come to it?

Mr Oswyn Paulin (Department of Finance and Personnel):

We have no introductory comments.

The Chairperson:

We will proceed to discussing the Bill on a clause-by-clause basis, and members will have an opportunity to request any further clarification or to make a comment.

Clause 1 (Declarations of presumed death)

The Chairperson:

Members should take a moment to read through that clause, along with the relevant explanatory section of the secretariat paper, and I will then ask whether there are any issues arising.

Ms Purvis:

I would like clarification that the additional third jurisdictional rule will be included in the clause, as we discussed last week.

Mr Neil Lambe (Department of Finance and Personnel):

Yes; subject to the necessary consent of the Executive, we propose to table a third jurisdictional rule, which would become clause 1(2)(c).

The Chairperson:

If there are no other indications, I will put the question.

Mr O’Loan:

Are we agreeing the Committee’s report now? What is the process here?

The Chairperson:

We are discussing the Bill clause by clause; we are now dealing with clause 1. If you are not content that you have read the explanatory section on clause 1 you should take the time to do so. It is important that people understand.

Mr O’Loan:

What are we doing differently, or extra, on 7 January?

The Committee Clerk:

The report will simply reflect all of the issues that arose during the evidence sessions, the response of the Department to each issue, and the outcome of the clause-by-clause consideration. The report will be commentary on all of that, and will detail any proposed amendments.

Mr O’Loan:

This meeting, here and now, is our key decision time as to the opinion that the Committee will offer on the Bill. Is that correct?

The Chairperson:

Yes.

Mr O’Loan:

Is it usual to do that in the presence of the departmental officials?

The Chairperson:

I am assured that it is. The question did not occur to me prior to the meeting, but I am sure that it is usual. This is for clarification.

Mr O’Loan:

Is the Committee in open session?

The Chairperson:

Yes. The meeting is being recorded by Hansard.

Mr O’Loan:

Is it usual to agree a report in open session?

The Committee Clerk:

The evidence and proceedings on primary legislation should be covered in open session.

According to precedent, Committees’ consideration of reports, such as inquiry reports, take place in closed session. The overriding rule is that Committees’ consideration of Bills take place in open session.

The Chairperson:

Several amendments have been accepted. We are reading down to point 13 on the briefing paper. Do members have any objections or points to raise?

Question , That the Committee is content with the clause, subject to the Committee being satisfied with the wording of the Department’s proposed amendment, put and agreed to.

Clause 1, subject to the Committee being satisfied with the wording of the Department’s proposed amendment, agreed to.

Clauses 2 to 5 agreed to.

Clause 6 (Effect on property rights of variation order)

The Chairperson:

I will give members time to read the short paragraph on the proposed amendment in the briefing paper.

Question , That the Committee is content with the clause, subject to the Committee being satisfied with the wording of the Department’s proposed amendment, put and agreed to.

Clause 6, subject to the Committee being satisfied with the wording of the Department’s proposed amendment, agreed to.

Clause 7 (Insurance against claims)

The Chairperson:

I will give members a moment to read the short paragraph on the proposed amendments in the briefing paper.

Question , That the Committee is content with the clause, subject to the Committee being satisfied with the wording of the Department’s proposed amendment, put and agreed to.

Clause 7, subject to the Committee being satisfied with the wording of the Department’s proposed amendment, agreed to.

Clauses 8 to 10 agreed to.

New Clause (Disclosure of information)

The Chairperson:

A new clause on the disclosure of information must be inserted. I will give members a moment to read the briefing paper. I will also invite the officials to explain the clause, if that will help.

Dr Farry:

The High Court will have the ability to order someone to disclose information. In the event that the person does not disclose that information, what is the recourse open to the court with regard to imposing a penalty? If a criminal penalty is to be imposed, do we need permission from the Secretary of State to create such a penalty?

Given that we are only a devolved Assembly, can this legislation bind bodies and institutions that are not part of the Northern Ireland devolved settlement?

Mr Paisley Jnr:

On the back of the previous question, would that be a civil penalty or a criminal penalty?

Mr Paulin:

My understanding is that it would follow the rules that apply in third-party disclosure in general, so it would be a contempt of court and it would proceed through the court, presumably at the instance of the Attorney General.

Dr Farry:

There is no new offence being created then. It is simply a wider interpretation of the existing issue of criminal contempt of court.

Mr Paulin:

There are two types of contempt of court — civil and criminal.

Dr Farry:

Will this be civil or criminal contempt?

Mr Paulin:

I assume that it would be civil contempt.

Mr Lambe:

It is likely to be civil contempt of court. We were content to rely on the general law on contempt, rather than to create a new criminal offence.

Dr Farry:

Does the scope of any requirement to disclose that information simply apply to institutions that are under the control of the Northern Ireland devolved settlement, or can it apply to non-devolved bodies?

Mr Paulin:

The intention is that it will apply to both sectors.

Dr Farry:

Do we have the capacity to deliver this piece of devolved legislation?

Mr Paulin:

There are two aspects to that. First, the High Court and its powers are not devolved, so the Secretary of State’s consent is required in respect of that. Secondly, as the new clause was not in the original Bill that was laid before the Assembly, we will have to go back to the Secretary of State and get consent in relation to it. The consent would cover the devolved and non-devolved sectors with regard to holding the documents, in addition to the powers of the court. In both aspects, the Secretary of State’s consent would be sought.

The Chairperson:

Before I invite any further questions, it might be helpful if Neil wishes to elaborate further on the matter, especially given that this is a new clause, which arose from the discussions that we had last week. If you give us a broad outline, it might anticipate or inform some of members’ questions.

Mr Lambe:

We also made clear that subsection 6 of the new clause as it is currently drafted binds the Crown. That statement coupled with the Secretary of State’s consent that we hope to obtain will mean that UK-wide Departments of State, for example, would be bound by any order of the High Court to disclose information to it.

Mr O’Loan:

As I have said before, I am very concerned about the new clause. I am supportive that the High Court would have the right to order information to be given to it, but I have argued before and I will continue to argue for a much stronger clause that imposes a general duty on anyone who has knowledge about the possible death of someone to bring that to the court if they know that the court is looking at that matter.

I refer to the answer which the departmental officials gave last week, and which they have now given us in writing: The second paragraph, on this point, reads:

“The Department considers that discretionary power as preferable” —

I am sure that the word “as” is intended to be “is” —

“to the imposition of a general duty of disclosure on any person with information about the circumstances surrounding the disappearance of the missing person. A duty of disclosure could result in the provision of large quantities of information to the Court, which could in no way assist it making a decision on an application. That would place an unnecessary burden on those who provided information to the court as well as an unnecessary burden on the Court in its consideration of that information.”

I find those statements very surprising. I am seeking a requirement of disclosure pertinent to the decision that the court is making, which is whether the person can be presumed to be dead, and not information about anything else. Therefore, it would only put a duty on persons who had particular information relating to that issue only to provide that to the court. It would not require handing over vast amounts of documentation.

The suggestion that there could be a considerable amount of information to be handed over is, in itself, a concession from the officials that such pertinent information could exist. I am not persuaded of the point of putting an undue burden on persons to hand over such information, or an undue burden on the court to consider it. It is clear that the burden would only be to hand over information to the court that is very directly pertinent.

The equivalent Scottish legislation carries a requirement to disclose, and the Committee has been told that that provision has not been used in Scotland. However, we have a very different situation here, as this piece of legislation relates, in particular, to the situation of the disappeared. Those deaths have been much examined, and there may well be information in the hands of the public authorities regarding those deaths. That is quite different to ordinary cases of people being missing in the Scottish situation. We know that the relatives of the disappeared want that clause to be present and that, during the original consultations on the Bill, the judiciary wanted it to be present. Therefore, I find it strange that the officials are arguing against that weight of opinion.

I make explicit my concerns when I see some elements of the official system are unwilling to disclose information, or are placing barriers in the way of the disclosure of such information. That makes me very worried. My instinct is to allow that information to come forward.

The Committee should support the inclusion of an extra clause to cover such a situation. Indeed, there may be a stronger clause that could be used in place of the existing one, but I am not a lawyer, and I cannot argue that. There must be a clause in the Bill that imposes a duty on those who have information about a missing person and whether that person should be presumed dead. There should be a duty on that person to bring that information in front of the court.

The Chairperson:

I refer members, in particular, to paragraphs 12 to 14 of the DFP submission.

Dr Farry:

Peter, as a lawyer, are you on strike today?

Mr Weir:

As MLAs, we should be well used to supposedly not working, but still getting paid.

Dr Farry:

Really? [Laughter.]

Mr Weir:

That is the public perception.

I do have a certain level of sympathy for what Declan has said, but I also have some concerns. There could be one of two scenarios if such a provision were included in the legislation. First, if there is a duty to disclose information on a missing person that is entirely general in nature, there is a danger that a deluge of such information could be received by the court. Although, I appreciate that is not entirely what has been said, if such a duty were enforced that could lead to a flood of information much of which would be completely irrelevant.

Conversely, if there were an attempt made to define the type of information to that of a pertinent nature, that could also create problems, as people would need to define what was “very pertinent” as I believe Declan said. That could potentially lead to relevant information being held back because a person or organisation did not want to disclose it, or could lead them to make the excuse that they do not believe it to be particularly pertinent. Alternatively, that person or organisation could err on the side of caution and send all the information that they have.

I have greater sympathy for the general position that the court has complete power to seek any information that it feels is relevant. Although I appreciate that our position is different from Scotland, the Scottish experience does not suggest that a general duty of power is something that is particularly useful in that respect.

Furthermore, there is the specific issue of the disappeared. Will the officials tell the Committee whether any consideration will be given to some degree of special consideration for the disappeared, as they are a relatively tightly defined group? Such a provision would take on board Mr O’Loan’s position, while retaining the general position of the power residing with the High Court.

Mr Paulin:

It is worth returning to the purpose of the legislation, which is to enable people in certain circumstances to legally register a death. The purpose is not to investigate how that person came to disappear or die.

The difficulty in relation to the disappeared is that there seems to be absolutely no doubt that all those people in that category are dead. Therefore, little evidence is required to obtain an order from the court from which the legal consequences would flow. The efforts being made by relatives of the disappeared would not be helped by a disclosure order, which would merely add to the cost of their application.

One of the major expenses in litigation is disclosure. Large amounts of documents are frequently disclosed and not used. That involves a cost for the person who has the documents and for all the other parties who examine them because, if they are disclosed, everybody will look at them and take time in doing so. That is why the Department has sought a focused approach that gives the court the power to order disclosure, where it considers that necessary.

Mr Weir:

Whatever effect disclosure would have on institutions, bodies or individuals in the UK, would it bind anyone in the Irish Republic? A lot of issues related to the disappeared were agreed between the British and Irish Governments. The location of the bodies means that the more relevant jurisdiction in respect of most of the disappeared is probably the Irish Republic.

Mr Paulin:

The Department previously advised that it would work almost by consent from outside the jurisdiction. However, the Independent Commission on the Location of Victims’ Remains is protected from legal proceedings and from disclosure; therefore, any documentation that it has will not be captured by this provision.

Mr Weir:

I have some sympathy for Mr O’Loan’s position, without agreeing with his conclusion. Would it better serve the purpose of this legislation if the duty to disclose information were associated with the powers and duties of the commission? Information would have to be gathered, and a broader level of disclosure is required in relation to the disappeared. That would require action by the British and Irish Governments, rather than this Bill.

Mr Paulin:

The concern of the families is that there should be some proper investigation of how their relatives came to die. However, that would not be for the court in presumption of death proceedings. The court will only look at whether there is sufficient evidence that the person is dead.

In certain circumstances, where there is doubt, that might lead to an investigation into when a person was last seen alive. In regard to the disappeared, that is not the issue. I do not know if any other form of investigation continues into such deaths, or whether cases are closed when the bodies are recovered. I assume that inquests are held after bodies are found. That would be the proper forum in which to investigate the circumstances of those deaths, rather than an application for presumption of death.

Mr Paisley Jnr:

Am I right to assume that this proposed insert is quite powerful, in that it gives the court the power to issue an instruction requiring any person to present and disclose information that he or she might have — even if that person is not party to the proceedings? Ultimately, that person could go to jail if he or she shows contempt for that order. That is quite a power, if it is used to its extreme.

Mr Paulin:

Yes. One can also look at it as an intrusion on the people who hold documentation, and there can be consequences if the court’s order is not complied with.

Mr Paisley Jnr:

That power was not in the Bill originally. Members must realise that the Bill has that power of sanction as it progresses through the Assembly; it gives a different colour to what was available previously.

Mr Paulin:

I agree.

The Chairperson:

Mr O’Loan, are you satisfied that your comments be reflected in the Hansard report of the discussion? Or do you want to have the opportunity to register dissent?

Mr O’Loan:

I will be registering my dissent at the draft statement of the Committee’s view; I will be making a counter-proposal.

Mr Paisley Jnr:

Can we agree to include the draft clause, with Mr O’Loan’s agreement, and also look at his counter-proposal, which is very different?

Mr O’Loan:

Counter-proposals usually are.

Mr Paisley Jnr:

There is a chance that the person does not know that they have possession of certain material; they may be ignorant of the fact. The draft clause states that if the court discovers that an individual has relevant information, the court has the reins to bring a person or papers to them. However, your counter-proposal works the other way round; it puts the onus on the individual to present information to the court because they know that it is relevant. What happens if they do not know that it is relevant?

Mr O’Loan:

My concern about the proposal as it is — and notice that we do not have the draft clause in front of us —

Mr Paisley Jnr:

We do.

Mr O’Loan:

It has not been signed off by all the interested parties, and discussions are still ongoing with Revenue and Customs and NIO, so it is not finalised. We know the broad thrust of it, so I am not quarrelling on that point. I am unhappy with it because it requires the court to have information or an instinct that a person or public body has further information before it can make any order. My counter-proposal would be to put a duty on an individual to present information if he or she knows that a court process is ongoing. Not being aware of that process would be an acceptable defence.

Mr Paisley Jnr:

That is not a defence.

Mr Weir:

Ignorance of the law is no defence.

Mr O’Loan:

It is not ignorance of the law. You are lawyers; even I, as a non-lawyer, can see that you are not right. If the individual was unaware that the court was looking at a particular case, and did not reveal information for that reason, they would have a good defence. The clause should require anyone who has information about the circumstances of a person’s disappearance and on whether they should be presumed dead — and who is aware that the court is examining the issue — to bring that information to the court.

Mr Weir:

If there is a duty to disclose and an individual withholds evidence — and is found to have done so at a later stage — he or she will be told that they should have made the disclosure. This would be a get-out clause; the person could say that they were not aware of what was happening, even if they were. It strikes me that you are almost insulating people on that basis.

Would it be fair to say that what you have in mind would be a potential addition to what is there? You do not want to rein back the role of the High Court. Is it possible to take this in two stages? I would have thought that there could have been general acceptance of the power of the High Court; the issue is whether a general duty to disclose should be added.

The Chairperson:

Mr O’Loan has suggested that he wants to put forward a proposition. That will have to be technically and legally proofed, as the offer that we have already in front of us has. I do not know whether you are in a position to do that today, but we can consider the options. An amendment could be offered at Consideration Stage, if more time is needed. I am not sure whether you can present something to the Committee today for consideration. Although we are discussing the Bill on a clause-by-clause basis, this is a new clause on which further work is ongoing, so we could just remit this to our next discussion, and deal with it at that point.

Mr Paisley Jnr:

There is a huge principle at stake. This piece of draft legislation is to determine the question that comes before a court of whether person X is dead. That is the purpose and thrust of the legislation, and the clause that is being proposed adds to it quite considerably in that any judge can call any person — any person — and consider whether they have information relevant to the determination of that question. That is a very powerful insertion. I cannot understand why anyone on this Committee would not want to see that power in the Bill. Even though they may want to see a different power in addition to that, I cannot understand why we cannot agree, today, to what is actually there in principle.

The Chairperson:

I will take a reading from the Committee on that. I am trying to establish, in the first instance, whether Declan is in a position to put his counter-proposal before us. There is a subsequent opportunity to offer an amendment. I intend to come back to the Committee to decide whether we want to proceed on what is in front of us. That is a matter for us to decide, not for me. I am not calling it at this stage; I will be guided by the Committee. Declan needs to tell us whether he has something additional that he wants to put before us.

Mr O’Loan:

If we had a wording to say that the Committee is content with the inclusion of a new clause on the disclosure of information which confers on the court the power to require the disclosure of information, and that, in addition, with particular reference to the disappeared, we would seek an additional clause to impose a duty on any person who had information relating to the court’s decision on the presumption of death of that person to bring that to the court.

Mr Weir:

Clearly, we have to take a formal position on the new clause that has been drafted. I appreciate that Declan is being put on the spot to draft on the hoof, but as regards approving a new potential clause, do we not need to have the exact form of words, as opposed to a general proposition? There is the opportunity for us in January to make known our general position as part of the report. Presumably there would be the opportunity for Declan to have a bit of time to formulate an exact form of words for the legislation. That is what we are looking for. I am loath for the Committee to effectively give a blank cheque to a particular form of legislation, on any subject, without its specific wording having been decided on.

Currently, we are in a position to look at, and potentially adopt, the new clause that is in front of us. However, that does not rule out the possibility of Declan coming back to the Committee with a counter-proposal. I think that some members would want to see the wording of that proposal, and test whether legally it is the right way to go forward. We need an exact form of words for a new clause, rather than a general proposition. In January, Declan will have an opportunity to bring that forward.

Mr Ian Paisley Jnr:

Mr O’Loan is suggesting a completely new clause, not an addition to the draft new clause before us. The draft new clause confers a specific power on the court. Mr O’Loan is proposing a different clause, and, therefore, I think, that has to be a stand-alone clause. We should consider the new clause as it stands, and, if another new clause comes forward, we can consider that too.

Mr O’Loan:

I worded it as an additional clause, and I am content with that. I said that I thought it provided for a stronger requirement and, therefore, might replace the original new clause. As I said, I am not a lawyer.

The Chairperson:

I have deliberately flagged up the fact that there is an opportunity to reflect on this, and to prepare the additional clause for consideration. Are you content that the Committee can proceed with what is in front of us?

Mr O’Loan:

The wording of the question requires some alteration. To say that the Committee is content with the approach being proposed by the Department suggests that it is entirely content, and that that new clause is the sole proposition.

Mr Weir:

As I understand it, the Committee is restricted; we have to follow a formula. Agreeing to the question does not mean that Committee members’ minds are closed. There is the opportunity for Declan to bring forward his own additional proposal.

Mr O’Loan:

I will take guidance from the Chairman and the Committee Clerk. However, it seems to me that to agree to the question as worded would close down the discussion.

Mr Weir:

I do not mean it that way. My understanding is, as when we look at other questions, the question is whether the Committee is content. Technically, that is how we have to proceed. It does not preclude an additional clause being brought forward at a later stage. Agreeing that we are content with one thing does not mean that we are content with everything.

The Chairperson:

Agreeing that we are content with the clause that we are considering does not close down the possibility of a further clause being added. The question would be whether the Committee is content with the approach being proposed by DFP for a new clause to be added concerning disclosure of information. That deals with the subject matter in front of us, without precluding Mr O’Loan from coming back to us with an additional clause.

Mr O’Loan:

I am content with that.

The Chairperson:

That will be reflected in the Hansard report. Are you content that we proceed on that basis?

Mr O’Loan:

Yes.

The Chairperson:

I recognise that everybody, including some of the consultees, will be on holiday over the recess period; however, I ask that, if it is possible, the officials inform the Committee of any updates in order to keep members as up to date as possible in their deliberations.

Question, That the Committee is content with the new clause, put and agreed to.

New clause agreed to.

Clauses 11 to 15 agreed to.

Clause 16 (Interpretation)

Question, That the Committee is content with the clause, subject to the Committee being satisfied with the wording of the Department’s proposed amendments, put and agreed to.

Clause 16, subject to the Committee being content with the wording of the Department’s proposed amendments, agreed to.  

Clauses 17 and 18 agreed to.

Clause 19 (Commencement)

Question, That the Committee is content with the clause, subject to the Committee being satisfied with the wording of the Department’s proposed amendment, put and agreed to.

Clause 19, subject to the Committee being content with the wording of the Department’s proposed amendment, agreed to.  

Clause 20 agreed to.

Schedule 1 (Register of Presumed Deaths)

Mr Lambe:

We are working with the Office of the Legislative Counsel to establish the precise wording that will be used to require the Registrar General to annotate an entry when he becomes aware that an entry in an ordinary register of deaths has been recorded outside Northern Ireland.

The Chairperson:

Dawn Purvis raised that issue. Are you content with that response, Dawn?

Ms Purvis:

Yes, subject to the Department’s proposed amendment.

Question, That the Committee is content with the schedule, subject to the Committee being satisfied with the wording of the Department’s proposed amendment, put and agreed to.

Schedule 1, subject to the Committee being content with the wording of the Department’s proposed amendment, agreed to.  

Schedules 2 and 3 agreed to.

The Chairperson:

The next step in the process is for a draft report to be prepared for the Committee’s consideration on 7 January 2009. In addition to reflecting the outcome of today’s clause-by-clause consideration, that draft report will include a commentary on the various issues that arose. The Committee is required to report to the Assembly by 16 January 2009 at the latest, in accordance with the extended timetable for the Committee Stage of the Bill. Mr Paulin and Mr Lambe, can you confirm that the Department’s amendments which the Committee has signed off on will be tabled by the Minister at the Consideration Stage of the Bill?

Mr Lambe:

Yes. They will have to be taken through the formal Executive clearing process.

The Chairperson:

That is the most effective and efficient system, because you have the legal wherewithal.

Mr Lambe:

It is intended that, after the Committee has submitted the report and we have considered it, we will move quickly to the tabling of amendments for Consideration Stage.

The Chairperson:

Thank you very much. It was a little complicated, but we got there in the end. The draft report will be available for members’ consideration on 7 January 2009.

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