1.These Explanatory Notes relate to the Presumption of Death Act (Northern Ireland) 2009 which received Royal Assent on 2 July 2009. They have been prepared by the Department of Finance and Personnel (“the Department”) in order to assist the reader in understanding the Act. They do not form part of the Act and have not been endorsed by the Assembly.
2.The Notes need to be read in conjunction with the Act. They do not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section or Schedule does not seem to require any explanation or comment, none is given.
3.“The disappeared” is the name given to those people abducted and killed by terrorist groups during the course of the Troubles up to April 1998 whose bodies have never been found. While the Independent Commission for the Location of Victims’ Remains continues its work to find the graves of the disappeared, the remains of 8 of them have yet to be discovered.
4.In recent years some of the families of the disappeared have raised with Ministers their disappointment that the deaths of the disappeared cannot be registered in the absence of their physical remains. In response to calls for some change to the law to be made the Department began, in early 2007, an examination of the current legislative framework for death registration with a view to determining how best to provide a mechanism whereby the deaths of the disappeared in Northern Ireland could be registered and certificates of death provided for their families.
5.In examining this issue it became clear that any new piece of legislation should aim to address not only the needs of the families of the disappeared for a death certificate, but also aim to provide a procedure whereby the cases of other missing persons who are presumed to have died could be addressed.
6.At the same time as the Department was considering the introduction of new legislation addressing the issue of missing persons, the Council of Europe began an examination of “Missing persons, presumption of death and commorientes following, in particular, terrorist attacks and natural disasters”. The Working Party examining this issue has been mandated to develop a draft recommendation for approval by the Committee of Ministers. The Working Party published its draft recommendation in February 2009. In addition, the Law Reform Commission of Ireland announced in December 2007 that it would soon be commencing a new project on the “Civil Law Aspects of the Law of Missing Persons”. In January 2009 a Private Member’s Bill, modelled on the new Northern Ireland legislation, was introduced in the House of Commons by Tim Boswell MP to address the issue of missing people in England & Wales. That Bill, however, will make no further progress this Parliamentary Session 2008 – 2009.
7.In taking forward this work the Department has modelled this Act on the Presumption of Death (Scotland) Act 1977, which provides a comprehensive procedure for declaring that a missing person from Scotland may be declared to have died.
8.The Department conducted a public consultation on a draft Bill between 23 January and 15 April 2008. Over 500 copies of the Consultation Document were issued to a wide range of bodies in Northern Ireland.
9.During the consultation period officials met with some of the family members of the disappeared to discuss the proposals.
10.Four options were considered:
Do nothing – doing nothing would have failed to meet the political imperative of legislating to enable the deaths of the disappeared to be registered and certificates issued to their families.
Amend the Births and Deaths Registration (Northern Ireland) Order 1976 to allow registration of a missing person’s death after an investigation had concluded that the person is believed to be dead and provided the person had been missing for 7 years. This limited proposal was rejected as it would sit uneasily with the existing system of death registration in Northern Ireland in the 1976 Order which requires the presence of a dead body and the involvement of a medical practitioner or coroner.
Amend the Coroners Act (Northern Ireland) 1959 to allow a coroner to investigate the cases of missing persons where it is believed that the person was dead. This option was dismissed as, in the absence of a body, it was difficult to see how the coroner would be able to come to any determination as to how, when and where the missing person came by his or her death.
Introduce a new comprehensive piece of legislation, modelled on the Presumption of Death (Scotland) Act 1977, which would confer on the High Court in Northern Ireland the power to issue a declaration that a person who is missing may be presumed to have died (a) if there is evidence that the person is likely to have died, or (b) where the missing person has not been known to be alive for a period of at least 7 years. The Act implements this fourth option.
11.The Act consists of 21 sections and 3 Schedules.
Section 1 (Declarations of presumed death) sets out the alternate grounds on which the High Court can make a declaration that a missing person may be presumed dead. The missing person must be thought to have died or have not been known to be alive for a period of at least 7 years. Under section 1 any person may make an application to the High Court, although the Court must refuse (under subsection (3)) to hear the application if it considers that the applicant (other than an applicant who is the spouse, civil partner or close relative of the missing person) does not have a sufficient interest in the determination of the application.
Subsection (2) sets out the jurisdictional rules which must be met in order for the High Court to be able to hear the application: either the missing person must have been domiciled or habitually resident in Northern Ireland or, where the applicant is the spouse or civil partner of the missing person, the applicant is domiciled or habitually resident in Northern Ireland. A third jurisdictional rule provides that the High Court may hear applications from the families of the disappeared where they are close relatives of a missing person who is a victim of violence within the meaning of section 1(4) of the Northern Ireland (Location of Victims’ Remains) Act 1999 (c.7).
Section 2 (Making of declaration of presumed death) makes further provision in relation to declarations of presumed death. It provides that when the High Court makes a declaration of presumed death it must also find either that (a) the missing person has died at a specified time and date or at the end of a specified period in cases where the evidence leads the Court to conclude that the missing person has died, or (b) where the missing person has not been known to be alive for a period of at least 7 years that the missing person died at the end of the day occurring 7 years after the date on which the missing person was last known to be alive.
Section 3 (Effect of declaration of presumed death) provides for the general effect of a declaration of presumed death under section 1. In essence, the declaration of presumed death shall be conclusive for all purposes and against all persons – it will have the same effect in law as if the missing person had died and his death recorded by the Registrar General for Northern Ireland in the usual manner.
Section 4 (Powers of the High Court) deals with the ancillary powers of the High Court which may only be exercised if it makes a declaration of presumed death. There are 3 powers: to determine the domicile of the missing person; to determine questions relating to the interest of any person in the missing person’s property and to make such order as it considers reasonable as to any rights to or in property acquired as a result of the making of a declaration of presumed death.
Subsection (2) provides that an order under section 4(1)(b) may direct that the value of any rights to or in property acquired as a result of the making of a declaration of presumed death are irrecoverable.
Section 5 (Variation orders) provides the High Court with the power, on application to it, both to vary and to revoke a declaration of presumed death made under section 1. Whilst any person may apply for a variation order, subsection (2) provides that the Court must refuse to hear the application if it considers that the applicant does not have a sufficient interest in the determination of the application.
Section 6 (Effect on property rights of variation order) sets out the general rule that a variation order under section 5 is to have no effect on property rights acquired as a result of the making of a declaration under section 1. While subsection (2) allows the High Court to make a further order in relation to any rights to or in any property acquired as a result of the making of a declaration of presumed death, subsection (5) makes clear that, except in exceptional circumstances, no order under subsection (2) can be made unless the application for a variation order was made within 5 years of the making of the declaration of presumed death. Subsection (3) further limits the scope of any order which may be made under subsection (2) by providing that no such order shall cause income, generated during the period from the making of the declaration to the making of the variation order, to be returned to the missing person or otherwise redistributed to a person entitled to it in consequence of the variation order.
Subsection (4) sets out the considerations which the High Court must take into account in deciding whether to make an order under subsection (2). Subsection (6) provides protection to a bona fide purchaser for value of any property acquired from a person who was entitled to it on foot of a declaration under section 1. Subsection (7) deals with a trustee’s liability for breach of trust.
Section 7 (Insurance against claims) sets out two rules relating to insurance. First, subsection (1) provides that where, following a declaration of presumed death, a person becomes trustee of the property of the missing person, the trustee shall take out insurance to cover the cost of returning the property to the missing person if he or she turns out to be alive or to transferring property to another person, in consequence of a variation order under section 6(2). Second, subsection (3) provides that where the missing person’s life was insured, an insurer may require the person who receives the insurance money to take out insurance to cover the cost of returning the insurance money should the missing person turn out to be alive.
Section 8 (Supplementary provisions as to declarations, etc.) provides that Rules of the Supreme Court shall make supplementary provision, inter alia, in relation to applications for declarations of presumed death and variation orders. The Rules will prescribe the forms to be used and detail those persons who should receive notice of applications made under the Act.
Section 9 (Provisions relating to the Attorney General) provides that the Attorney General for Northern Ireland shall receive notice of all applications for a declaration of presumed death or a variation order under the Act. Subsection (3) provides that the Attorney General may intervene in any proceedings to argue before the High Court any question which he or she thinks should be fully argued.
Section 10 (Right to intervene) sets out the circumstances in which any person may intervene in any proceedings for a declaration of presumed death under section 1 or a variation order under section 5. Subsection (2) provides that a person seeking to intervene (other than the spouse, civil partner or close relative of the missing person) shall have to obtain the leave of the High Court.
Subsection (3) provides that a person intervening may (a) argue before the High Court any question which the Court considers it necessary to have fully argued; (b) seek the making by the Court of an order or determination under section 4 (if intervening on an application under section 1); and (c) seek the making by the Court of a determination under section 5(4) or an order under section 6(2) (if intervening on an application under section 5).
Section 11 (Disclosure of information) confers on the High Court power to order a person who is not a party to the proceedings to disclose information to it. Subsection (1) provides that this power shall be used only where the High Court considers disclosure of information necessary for the purpose of disposing of an application under sections 1 or 5. The High Court must also consider that the information to be disclosed is relevant to the determination of the question of whether the missing person is alive or dead. The power to order disclosure may be exercised either on application to the Court or on the Court’s own motion.
Subsection (2) sets out the grounds on which a person may refuse to disclose information to the High Court. Subsection (3) requires the High Court to serve notice of its intention to make an order on any person likely to be affected by an order. Subsection (4) provides that the High Court may vary or discharge a disclosure order on application by a person affected by the order.
Section 12 (Costs) confers on the High Court a broad power to make such order as to who shall pay for the costs of proceedings as it considers just. Costs may be ordered to be paid using the property of the missing person.
Section 13 (Power to amend certain time periods) allows the Department of Finance and Personnel to amend certain provisions in the Act. First, the Department may 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 section 1. Second, the Department may increase or decrease the 5 year limitation period in relation to property variation orders made by the Court under section 6(2).
Section 14 (Repeal of certain statutory provisions relating to presumption of death) provides that the existing statutory provisions permitting the High Court to dissolve a marriage or civil partnership on the ground of the presumed death of a spouse or civil partner (contained in the Matrimonial Causes (Northern Ireland) Order 1978 and the Civil Partnership Act 2004 respectively) shall cease to exist.
Section 15 and Schedule 1 (Register of Presumed Deaths) provide for the Registrar General for Northern Ireland to establish and maintain a Register of Presumed Deaths. The powers of the Registrar General in relation to the new Register are set out in Schedule 1.
Section 16 (Orders and regulations) deals with the subordinate legislation procedure applicable to the making of orders and regulations under the Act.
Section 17 (Interpretation) defines certain words or phrases used in the Act.
Section 18 (Supplementary provision) allows the Department to make transitional, saving, supplementary, incidental and consequential provision in connection with the Act.
Section 19 and Schedules 2 and 3 (Amendments and repeals) deal with a small number of consequential amendments and repeals of legislation. They should be read alongside section 14.
Section 20 (Commencement) provides that the substantive provisions shall come into force at a date to be determined by the Department.
Section 21 (Short title) provides that the new legislation shall be known as the Presumption of Death Act (Northern Ireland) 2009.
12.The following Table sets out the dates of the Hansard reports for each stage of the Act’s passage through the Assembly.
| STAGE | DATE |
|---|---|
| Briefing to Committee for Finance and Personnel on outcome of consultation on draft Bill | 21 May 2008 |
| Introduction of Bill to Assembly | 1 July 2008 |
| Second Stage Debate | 15 September 2008 |
| Committee Stage – consideration of Clauses | 17 September 2008 |
| Committee Stage – consideration of Clauses (continued) | 24 September 2008 |
| Committee Stage – evidence from WAVE Trauma Centre/Families of the Disappeared | 12 November 2008 |
| Committee Stage – consideration of issues arising from evidence | 3 December 2008 |
| Committee Stage – Clause by Clause consideration of Bill | 10 December 2008 |
| Committee Report on the Bill – Report No 2/08/09R | 14 January 2009 |
| Consideration Stage | 9 March 2009 |
| Further Consideration Stage | 30 March 2009 |
| Final Stage | 27 April 2009 |
| Royal Assent | 2 July 2009 |