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Official Report (Hansard)

Session: 2008/2009

Date: 12 November 2008

COMMITTEE FOR FINANCE AND PERSONNEL

OFFICIAL REPORT

(Hansard)

Presumption of Death Bill

12 November 2008

Members present for all or part of the proceedings:

Mr Mitchel McLaughlin (Chairperson) 
Mr Simon Hamilton (Deputy Chairperson) 
Dr Stephen Farry 
Mr Fra McCann 
Ms Jennifer McCann 
Mr David McNarry 
Mr Declan O’Loan 
Mr Ian Paisley Jnr 
Ms Dawn Purvis 
Mr Peter Weir

Witnesses:

Mrs Patsy McAteer ) WAVE Trauma Centre 
Mr Kieran Megraw ) 
Mrs Anne Morgan ) 
Ms Sandra Peake )

The Chairperson (Mr McLaughlin):

The WAVE Trauma Centre has provided the Committee with a written submission on the Presumption of Death Bill. Members have also been provided with copies of the DFP response to that submission, which was forwarded to the Committee after last week’s meeting. Some issues may arise from that response.

I welcome Ms Sandra Peake, chief executive officer of the WAVE Trauma Centre, who is accompanied by Mrs Anne Morgan, Mrs Patsy McAteer and Mr Kieran Megraw. I invite you to make your initial comments.

Ms Sandra Peake (WAVE Trauma Centre):

Good morning. We are pleased to be here today, and we are grateful for the opportunity to speak to the Committee about the Presumption of Death Bill.

Although all the families of the disappeared have known for some time that the proposed legislation was being prepared, not all of them wanted to engage in the process. That was not because they felt that the process was unimportant; it was because they felt that such legislation could close the door on substantial forensic work before it was completed. Although, at this stage, those families have decided not to engage in the consultation, they may wish to examine the proposed legislation further down the road.

Anne Morgan will say more about the opinions of the families. Nevertheless, they want the process to be as easy and as straightforward as possible, given all that they have been through already.

Mrs Anne Morgan (WAVE Trauma Centre):

Thank you for having us. Taking into consideration the views of the families of the disappeared, I believe that the proposed legislation should be straightforward, and should encompass the emotional considerations that have been expressed. When the time comes for us to obtain death certificates, they should be made available to us in a clear and accessible manner.

We put it to the legal experts who were preparing the Presumption of Death Bill that the families of the disappeared are different. We were bereaved as a result of the Troubles in the North of Ireland, but we are a specific group, and we feel that we should be treated as such. Our loved ones disappeared — as far as we are concerned, they are not missing. People might find a quandary in that.

The legislation should, by whatever means, make the process as easy as possible for us. My family has suffered for 23 years without success. The search for my brother, Seamus, began in France in the summer of this year, but his body was not found.

Our family has a different outlook on the issue. The legislation applies to those who have lived in Northern Ireland, but, because Seamus lived in France, we face an extra problem. Our concerns were raised when the Presumption of Death Bill was first drafted, because it stated that the deceased had to be domiciled in Northern Ireland for a year before their death, and Seamus was not. My family has lived through 23 years of uncertainty, and I feel that if things are made difficult, I will not come forward to request a death certificate.

Our solicitors have told us that we would have to obtain affidavits to prove that although Seamus was not living here, he was planning to return. It is unbelievable that we should have to contemplate affidavits in order to obtain a death certificate. I know that there is a need for the Bill to be placed on the legislative books because there is currently no legislation to deal with the issue, but I feel that the process should be made much easier for the families of the disappeared. There should be provision for those families to receive a death certificate without all of those complications.

I really do not see why the families of the disappeared should have to prove that their loved ones are disappeared — it is awful to even hear the word “disappeared”, because it reminds us that no body has been found. Those deaths were due to the Troubles, and I believe that society has a responsibility to look after us.

Mr Kieran Megraw (WAVE Trauma Centre):

All the families of the disappeared, apart from Anne’s, have been told that the bodies are in the Republic of Ireland, so they would have been taken from the North — we are not sure whether they were killed in the North or the South. Does that mean that they will have to be registered in the South as well as the North? We do not want to be involved in the process in then South if the bodies are found there, only to have to go through the entire process again up here.

My family went to the courts, and the NIO informed us about the procedure that had to be followed. However, in the end, that procedure could not be completed, and the NIO had to telephone our solicitor to find out about the process. We got as far as the magistrate’s court, but a death certificate could not be issued. We would like the process of certification to involve no complications whatsoever.

The Bill mentions the need for an application to be uncontested — we do not want to apply for death certificates as a group only to have someone contesting some of the information. The Independent Commission for the Location of Victims’ Remains is a Government body, and it has all the relevant details and information, so the process should be straightforward.

Legal aid has also been mentioned, but it should be noted that, as all of the parents of the disappeared are now deceased, it will be the siblings who make the application for the certificate. The Bill makes reference to where the deceased was resident when they were killed. All of the disappeared, apart from Seamus Wright, were living in the North, so hopefully that would be straightforward. On the issue of the disclosure of information, if other Government bodies or sections of the security forces are aware of information, we believe that it should be made available.

Mrs Patsy McAteer (WAVE Trauma Centre):

I want to reiterate what Anne has said. A lot of time has passed for the families of the disappeared. We were all young when this situation began, and even I am getting older.

I would like to think that I will see the day when Seamus’s remains are returned to us. My father was not alive when Seamus disappeared, but my mother was. She watched and waited at the window for him to return. However, she died without getting to see him again. I would like to think that this process will be made as easy as possible for us, because we are not fit for any more hassle — we have had enough.

Mr O’Loan:

Thank you for addressing the Committee today; I am sure that it was not easy for you. You are conferring a considerable benefit on the Committee, and on society as a whole, in dealing with this very difficult issue. I am very conscious of the huge ordeal that you have gone through over many years, and I am aware that the re-enactment of that ordeal in public is not an easy thing. From your submission, I am also aware that there are families who, for very good reasons, do not want to engage in this process. You made that clear, and we must be very conscious of their sensitivities.

I take on board Patsy’s point that the process ought to be made as easy as possible for the families involved. I also take on board Anne’s point about the fact that Seamus lived in France at the time of his disappearance. The circumstances surrounding each case are individual, but the particular circumstances surrounding Seamus’s case are unique. The people who create the legislation must consider ease of process where such complications exist.

Your submission states:

“that in the event that one of the disappeared is located and their death has been registered on the Register for Presumption of Deaths, consideration needs to be given to how their death may be re-registered .”

As I understand it, a process is in place that allows that to be done if someone is discovered to be alive after a presumption of death certificate has been awarded. I know these are sensitive areas in which we are treading, but are there some among the families of the disappeared who have hopes that their loved ones will be found alive?

Mrs Morgan:

No.

Mr O’Loan:

I am not clear about the meaning of that part of the submission.

Mrs Morgan:

If we get the body back, we want consideration to be given to the re-registering of the death.

Ms Peake:

It is about the process for registering deaths, and whether, as explained, bodies found in the South would still remain on the register of presumed deaths or whether they would be re-registered as having been found in those circumstances.

Mrs Morgan:

Say, for example, the body that was found yesterday is that of Danny McIlhone, which I hope it is. If he had been placed on the register for deaths, his death must be re-registered, and the family provided with a death certificate. That is a process that that family would have to examine.

Mr O’Loan:

I understand. Officials have told the Committee that there is a process for that. We will give further thought to that matter. You spoke about the important issue of disclosure of information, and said that there ought to be a duty on anyone or any organisation that has information about the disappeared to bring it before the courts.

I take it, therefore, that you are not content with indications that the Department will present a draft clause to the Committee that would allow the court to demand information from someone if it so chooses.

We are discussing a broader duty of disclosure that will mean that there is an immediate duty on anyone who has information — and who is aware that the case is going through the court — to come forward. Do you agree that that is what is required?

Ms Peake:

That is correct. Anyone who has information relating to an issue that is before the court should be called on to provide evidence. That would make things easier for us.

Mr O’Loan:

You said that any information held by the Independent Commission for the Location of Victims’ Remains should be made available. As I understand it, people who provide information to that body are offered a degree of protection. We will have to consider whether that information can be passed to the court.

Ms Peake:

If the Independent Commission for the Location of Victims’ Remains has information to suggest that a person is dead, it should provide it. That is preferable to families having to find the proof and evidence that a person is dead. Families were concerned about information coming under a duty of disclosure, but the absence of any mandate for it to be provided to the independent commission. The families want the independent commission to work as fully as possible.

Mr O’Loan:

It seems that the commission could hand over information that was not privileged or hand over relevant information, without declaring the source, in certain cases. Do you agree with that?

Ms Peake:

I agree with that — providing that nothing is done to compromise the independent commission and its ultimate aim.

Mr O’Loan:

I agree with that.

Mr Weir:

I add my thanks to you for attending, and for your evidence. I appreciate that the majority of cases that are dealt with by the independent commission happened a long time ago, but not all, including, for example, the Lisa Dorrian case. Is the list of cases being dealt with set in stone, or can it be added to? Of course, it is hoped that there will not be any need to add cases.

The legislation deals with two different areas: first, the specific cases, which, in your case, are the disappeared; and secondly, the more general cases in which people go missing. Would the cases that are dealt with by the independent commission be ring-fenced if the legislation were amended to mention them specifically? Would such an amendment to the legislation mean that those cases could not be switched between the two areas covered by the legislation? If amendments or provisions were made for your cases, could they be defined sufficiently by way of the connection with the independent commission? Could it be catered for under that route?

Ms Peake:

The independent commission examines all cases up to 1998; that does not include the cases of Lisa Dorrian or Gareth O’Connor, who was subsequently found. They would not be included in the cases covered by the independent commission.

Mr Weir:

I am considering what routes can be taken, as part of the provisions. You referred to the domicile rule and queried whether a clause could be inserted that would allow for a rule to waived in cases where there was a supporting letter from the independent commissioner, for instance.

It is most likely that the bodies — with one exception — are in the Republic of Ireland. Has your group had discussions with the Irish Government with regard to what registration procedures would be followed if any of the bodies were discovered in the Republic?

Ms Peake:

We have talked to families whose loved ones have been discovered in the Republic of Ireland and who have experienced the process. We know what mechanisms are available.

Mr Weir:

I appreciate that the matter is outside WAVE’s remit. However, the Committee could, perhaps, ask the Department of Finance and Personnel whether it has consulted with the Republic of Ireland. The legislation is partly designed to minimise procedural difficulties and trauma for families, albeit to a small degree, given the deep hurt involved.

Mr Hamilton:

Thank you for giving evidence to the Committee. As Declan said, I am sure that it is difficult, especially given this week’s unfolding events in Wicklow, which bring the situation to the forefront of our minds.

The Bill’s intention is to provide some closure for families. It is apparent from your evidence that obtaining closure is a severe problem. The loss of anyone in the Troubles is difficult, but it is particularly difficult for those who have been unable to bury their loved ones. I understand your pain.

Your responses to Declan and Peter touched on the jurisdictional problems. Seamus’s case seems to pose a problem that the legislation might be unable to remedy easily. Your submission, and some of your comments, mentioned costs. In response, the Department said that legal aid could be available in cases that are taken to the High Court. Does that, in any way, ease concerns about cost or are you still concerned about the potential cost of a difficult and lengthy process that could involve registering and re-registering?

Mr Megraw:

That probably does not ease concerns. As Anne said, we want, if possible, all the families to attend in the same day or two days. Some people might receive legal aid, and others might not. I am unsure how it will operate. However, we have already been through the process. It would be better if the Government handled the situation.

Mrs Morgan:

There are only nine families, and, therefore, the Assembly could cover the costs in order to allow the process to proceed as easily as possible. As Kieran said, the majority of us would not receive legal aid anyway because we are siblings of our loved ones. The families should not have to pay.

Mr Hamilton:

I take on board your point — the process of registering a death that you should not have had to register in the first place could, potentially, be a costly exercise.

Mrs Morgan:

It is an emotive issue for the families of the disappeared. It is even emotive for me to attend this Committee meeting. It is too much to expect the families to initiate the process and go to solicitors’ offices, and so on. I appreciate that it is important to include the disappeared in the legislation. However, the legislation must make the process easier for the families.

The situation would be completely different if the legislation simply referred to the disappeared as “the missing”. If that were the case, we would not be here. We are a defined group, and because we are accepted as that defined group, we should not have to prove our legitimacy to the courts. The cost is an issue that the families will shun, because that is just another hurdle that they must overcome. Having to prove something, and then pay for it, can be very daunting in the legal world. Perhaps the Assembly could take care of the cost that would allow the families of the disappeared to receive the death certificates.

Mr Hamilton:

I do not know how that issue could be resolved, but it is certainly a point that we will consider during our discussions with the Department. The very technical nature of this Bill does not match up to the raw, human side of things.

You raised concerns about the possible re-registration in the event of a body eventually being found. The Department pointed out that a cancellation of a registration in the presumed death register can only be done by going through the legal process again. However, the Department also provided a further explanation that suggests that all of the families of the disappeared would fit within the scope of the jurisdictional rules that are set out in the Bill. The Registrar General could make a note in the register of presumed deaths to the effect that the previous entry had been suspended. Does that help that situation in any way, or does it still present difficulties?

Mr Megraw:

Who would have to make that application to the Registrar General? The legal process must be gone through again. If that could be done without having to go back through the legal process, then it might be helpful.

Ms Purvis:

Thank you very much for attending and for giving evidence today. The Department claimed that a reason for introducing the Bill was to help the families, but — having listened to your evidence, and having studied the Bill’s clauses — it seems that it will not help you in any practical sense. I tried to use the issues that you raised to evaluate whether there is some way that we can help to meet your specific needs.

Part of the Bill explains that people need to be domiciled in Northern Ireland or habitually resident in the preceding year. If the term “preceding year” were removed, and it was left as “habitually resident” in Northern Ireland, would that go some way towards helping your case?

Mrs Morgan:

It would.

Ms Purvis:

That is good. You already talked about the issue of legal aid. If a clause were included that suggested that the costs would be waived for the families involved — whom we would have to name — that could be a way of dealing with the costs that are involved.

Simon talked about the registration of deaths. The Department stated that the Registrar General will be able to make a note on the register of presumed deaths to explain that the entry has been superseded by the register of deaths. However, that only relates to a body found in Northern Ireland. Obviously, if the body is found in the Republic of Ireland, the death has to be registered in the Republic of Ireland.

Clause 5 of the Bill states that the entry in the register of presumed deaths can be cancelled only by the authority of the High Court. For ease of access, would it help the families if the Registrar General were to make the application to the High Court to have an entry cancelled, rather than the families having to go through that process again, if the body were to be found and registered in the Republic? That would mean that the families would not have to go through that process. The death will have been registered in the Republic of Ireland and, therefore, it will not need to be registered in the North. Would that help?

Mrs McAteer:

I think that that would help. One has to be on income support to receive legal aid.

Ms Purvis:

Some families may be working and not receiving income support, and they would not qualify for legal aid. As the Bill stands at the moment, is there anything else that would address your specific needs?

Ms Peake:

The cost issue is important, as that is part of recognition and acknowledgement, and there is also the forensic process, which may run in parallel. Any help would be useful. One suggestion might be whether, within the Assembly, a special-measures mechanism could be established in respect of the memorial fund to assist families. As Mr Megraw said, very few parents are left, and the siblings will have to make the application. Any help for the families would be welcome.

The Chairperson:

I am sure that it was difficult, but this has been a very interesting and helpful session. The Department is interested in this discussion and has been observing today’s proceedings. As the meeting has been recorded by Hansard, does the Committee agree to forward the Hansard report to the Department in order to help convey the points that have been raised?

Members indicated assent.

On behalf of the Committee, I express our appreciation to the witnesses for attending today’s meeting. I know that it has been difficult.

Dr Farry:

Chairman, may I ask a question?

The Chairperson:

I almost closed you out, Stephen.

Dr Farry:

Coming before the Committee must have been an ordeal, and another hurdle to overcome in order to get the legislation right.

Clause 1 states that a person with a connection to the victim must make the application and, if that the person is deemed not to have a sufficient relationship, the High Court may refuse to take the matter forward. In the case of all of the disappeared, is someone still around who would be sufficiently close to make an application? Is there a case in any of the eight or nine victims’ families where there is not such a person to take the matter forward?

Ms Peake:

There are close family members, either brothers or sisters.

Dr Farry:

What we are doing is different from other jurisdictions, bearing in mind that there is such a specific category in relation to the disappeared. It must also be borne in mind that the Commission has been set up through a treaty between the British and Irish Governments.

Do you agree that there is case for a provision in the legislation or, perhaps, in its explanatory notes, that defines the Independent Commission for the Location of Victims’ Remains as a party that can take forward an application, rather than the families?

Mr Megraw:

That is possible.

Mrs Morgan:

That might help the situation.

Dr Farry:

It is one exemption that could be made.

In respect of cases that occurred after 1998, particularly that of Lisa Dorrian — a case with which Peter and I are familiar, as representatives for North Down — and given the commission’s current cut-off date of April 1998, which is considered to be a watershed because of the events that have happened since then, has there been any movement towards trying to extend the commission’s remit? Are WAVE and the families happy for that to be brought about in order to take into account cases that have occurred since 1998? Are those families comfortable for their loved ones’ cases to come under the remit of the disappeared?

Ms Peake:

Certainly, from a family’s perspective, that would be important. However, the commission was established by special legislation that was passed by both Governments. We have been informed that that is, therefore, not possible. It is a legislative matter. The commission has been clear with us about its remit, the span of its work, and the time within which it must carry out its work in locations.

Dr Farry:

That problem must, therefore, be sorted out by the two jurisdictions. The families would have no objection to that?

Mrs Morgan:

The families have no objection. We met Lisa Dorrian’s family and offered them our support because their situation is similar to ours, although theirs is more recent and appears to have involved the LVF. Although their situation is totally different, Lisa has still disappeared. As far as we are concerned, she has disappeared, regardless of the commission’s remit. As Sandra said, Lisa is not included in its remit because she had not disappeared by 1998.

Dr Farry:

In your presentation, you stated that, given that it is unlikely that there will be a dispute about what has happened, you seek assurance that matters will be dealt with in chambers as opposed to having to go through the full rigours of an opening hearing in court. Can you expand on that?

Mrs Morgan:

We mentioned that matters may be dealt with in chambers. Apart from Kieran, the families are not sure what that means. Kieran has been in court before to try to obtain his brother’s death certificate, which he was unable to do. If matters were dealt with in chambers, which are private, that would help the situation. The critical issue for us is the process that must occur before matters reach chambers. When we spoke to Neil Lamb —

Dr Farry:

He is behind you.

The Chairperson:

He is paying close attention.

Mrs Morgan:

He is my shadow. Neil explained the judicial process whereby we would have to obtain affidavits of various forms in order to justify our cases. After we spoke to Neil, I was still of the opinion that progress could be made to make the process easier. I understand that, under the legal remit, it must be done that way. However, the families need sensitivity to be shown with regard to their ability to acquire affidavits. A process must be put in place that cushions and supports us so that we are not caused any more trauma than that with which we live at present. That is what we seek.

The Chairperson:

The Executive are trying to establish a process that is free from inconsistency and ambiguity. That brings with it the price of having to engage with the system and step through the legal and judicial process. However, the aim is to provide a sense of closure and a definitive outcome, which requires engagement with the process — you and Kieran must know well how difficult that can be. People want the outcome to be accessible, cost free and transparent. Those are guiding principles, but there are some unavoidable processes that must be gone through to give you the answers that you need.

Mrs Morgan:

The Bill makes reference to people’s insurance policies. However, when our Seamus disappeared, we received no insurance payout or property. The families of the disappeared are coming from a purely humane angle, not a financial one.

The Chairperson:

That is a given.

Mrs Morgan:

There could be a financial aspect for the families of missing persons, which is fine. For example, a mother who has a missing husband.

We belong to the disappeared group, and the Northern Ireland Assembly has accepted that our relatives are disappeared, rather than missing. The preamble to the Presumption of Death Bill acknowledges our group, but there should be further clarification that we exist as a defined group.

The Chairperson:

The Committee has agreed to send the Hansard report of the meeting to the Department, and we will discuss this subject on 26 November 2008 when we consider the evidence that has been gathered. Thank you for coming to the meeting.

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