§ 3.55 p.m.
§ Lord RITCHIE-CALDERMy Lords, I beg to move that this Bill be now read a second dine. This Bill reforms the Scottish law relating to the presumed death of missing persons. The Bill originated in a report by the Scottish Law Commission (Scottish Law Commission No. 34) which was laid before the House in 1974. That is three years ago and I think that it is proper that it should now be considered as a matter of urgency. I would recommend your Lordships to read the report for your own edification and it should be compulsory reading for all writers of "whodunits". It seems to me to take into account every contingency from Robinson Crusoe to Tennyson's Enoch Arden, from the lone oarsman rowing out into the sunset to the clothes left on a beach, or the criminal who contrives to be presumed dead but comes back and finds that he is still responsible for his crimes. The scope of the report and, indeed, of the Bill, seems to have covered every possibility of abuse and, above all, it takes into account the essential compassion which this subject involves.
The essential of this Bill is the same as a Bill drafted by the very thorough Commission in an annexe to its report. The existing position rests partly on the common law of Scotland and partly on Statute which the Bill amends and, in part, re-enacts. As things stand at present, a missing person may be declared dead under the common law when it is clear that he is unlikely still to be alive. We can all think of the self-evident cases of railway disasters, mining disasters, disasters at sea and so on. That kind of case is fairly self-evident, but the general rule is that a person is presumed to continue in life until he has reached the allotted or natural age span.
One of the remarkable things that I have discovered in considering this matter is the extraordinary durability of the Scots. The Scottish authorities on this subject define the life span either as 80 or as 100 years. That is considerably more than the psalmist allows them. Within 1081 that there has meantime been a great deal of common sense exercised.
A missing person may also be presumed dead under Act of Parliament—the Presumption of Life Limitation (Scotland) Act 1891. I am glad that we are correcting what seems to me to be an anomaly in that we are not presuming life but are now presuming death which is not quite so acceptable. The present Act allows a person to be presumed dead under the Act of Parliament simply because he has not been heard of for seven years or more. I ask myself what is this seven which has a mystical significance in so many other ways? Nevertheless, it is for seven years. One of the great drawbacks of the finding of death of a missing person under the 1891 Act is its limited effect. It entitles the successors of the missing person to claim his property, but it does no more than that. For example, it does not apply to a claim for the proceeds of any policy of assurance on the life of the missing person and if the missing person is married it does not make his wife a widow. If she wishes to have the marriage dissolved she must do it by separate action under another Statute. Nor does the finding of death bind the social security authorities as regards her claim for a widow's pension.
Such defects in the law may at best lead to expense and inconvenience and at worst to considerable misery and, indeed, to real hardship. Moreover, the layman must find it very puzzling to see a person being treated as dead for some purposes and alive for others. Clause 1 of the Bill provides that an action to have a missing person declared to be dead should be dealt with in the Scottish courts where the missing person was domiciled in Scotland, or had lived there for at least a year before his disappearance, or in a case where the action is raised by the husband or wife of the missing person, where the spouse is domiciled in Scotland or has lived there for at least a year. Jurisdiction, which has hitherto largely been confined in practice to the Court of Session in deciding the common law and Statute position, would under this Bill be conferred concurrently on the sheriff court. Clause 2 provides that the court may grant decree in an action of declarator (a declaration of presumption of death) where it is satisfied that a missing person is dead, or has not been known to be alive for a period of at least seven years.
1082 Clause 3 of the Bill provides that a declaration of death, whether founded upon a person's disappearance in circumstances pointing to his death, or simply upon his absence without trace for seven years or more, should be effective for all purposes, including the dissolution of marriage. This proposed reform of the law would go far to eliminate the anomalies and defects of the present law, and would represent a very important step forward in the modernisation and simplification of the law.
Other provisions of the Bill allow for reconsideration; that is to say, for recall or variation of a decree of declarator of death of a missing person—for example, where it later appears that the missing person is in fact still alive, or that he died at a different date from that shown in the decree. But there could be problems if the return of a person declared to be dead were to revive with marriage. The marriage would have to be dissolved by the decree of declarator of his death and his wife might, in the interval, have married, and so Clause 3(3) provides that the dissolved marriage should not be revived by recall or variation of the decree.
There are also difficult problems as regards the property of the missing person declared to be dead who subsequently returns. The difficulty lies in protecting, so far as possible, both the interests of the missing person and the interests of the persons who had succeeded, in good faith, to the property. The solution ultimately reached is to provide in Clause 5(1) that a recall or variation of a decree of declarator of death should have no direct effect upon property rights acquired as a result of the decrease. The court is, however, given power to make any further order which it considers "fair and reasonable" in the altered circumstances for the redistribution of property rights. But a further order cannot be made when the period between the date of the decree and the date of the application for its recall or variation is longer than five years. Incidentally, there is a wonderful "Catch 22" in the Bill, which is that if an insurance company pays out the money, it ensures that the people to whom it is paying out the money take out an insurance policy to make sure that the money paid out would be available in a case of different circumstances. I like that.
1083 The Bill also provides for procedural and other consequential matters, and makes some miscellaneous alterations in the law. For example, it is provided in Clause 13 that it should be a defence to a charge of bigamy for the accused person to show that at no time during the period of seven years immediately before the bigamous marriage had he, or she, reason to think that the original wife, or husband, was alive. It seems to me, looking first at the Report of the Law Commission and at the nature of the Bill, that it takes care of many anomalies and contingencies which have been involved so far.
That, my Lords, is the essence of the Bill. It is technical in its details, but I have no reason to think that you will find it in any way controversial, and to me it is simply straightforward common sense. In filling a gap in the present law and providing a single comprehensive Statute constituting the one source of law, I believe that the Bill will be a valuable social measure. My Lords, I beg to move.
§ Moved, That the Bill be now read 2a.—(Lord Ritchie-Calder.)
§ 3.5 p.m.
Lord CAMPBELL of CROYMy Lords, this Bill has already passed through another place as a Private Members' Bill and I, for one, applaud warmly the action of the noble Lord, Lord Ritchie-Calder, in taking it up and being prepared to pilot it through your Lordships' House. I shall not cause him any navigational problems. The Bill is based on the recommendations of the Scottish Law Commission, as the noble Lord has reminded us, and personally I am very glad that time has been found for the law in Scotland on this subject to be reformed.
There may be points, which might be technical ones that lawyers may perhaps raise during later stages of the Bill, but certainly I can confirm that the Bill is not controversial. However, it did not have a Second Reading debate in another place. That arose because it is a non-controversial Bill. It passed through the Commons; it was not sponsored by a Member who had been successful in the ballot and was in the first eight or so places, and therefore there was no time 1084 for a Second Reading debate. The Bill received the affirmative nod and no objection after debating on an appropriate day had already been exhausted.
I, for one, welcome the fact that it got a Second Reading, but it has not had any general debate. It went to the Standing Committee in another place for Scottish Private Member's Bills; and so it is in the interesting situation of having had a Committee stage in another place and having had particular points discussed, but not having been subject to general debate so far. Your Lordships' Chamber can provide a forum for a few general remarks to be made following the introduction which the noble Lord gave and which it was impossible for anyone to give in another place.
I presume that the intention is—and the noble Lord, Lord Ritchie-Calder, appeared to confirm this—to avoid awkward, difficult and anomalous situations which can arise when a person disappears without trace. The noble and learned Lord the Solicitor-General for Scotland, may be able to tell us later of examples of what has happened under existing laws. The noble Lord, Lord Ritchie-Calder, pointed out that under some legislation a person can be regarded as being dead while, at the same time, under other legislation, he is regarded as still alive. That is the kind of anomaly that certainly needs to be corrected in Scotland.
There is no doubt that serious problems can arise if a person disappears and there is no proof that he, or she, is dead. I understand that most of those who go missing nowadays are traced within a few weeks or months; for example, young people who are deliberately running away from home and who wish to get away from their families and make a start elsewhere. There are also cases of elderly persons who may collapse on a walk in the countryside and be missing for a period until they are found, either alive or dead. There are statistically always a rather larger number of persons missing at any given time, both South of the Border and North of the Border, than I think many of us would imagine. But that is a changing list of names for the reason that I have just given. People are reported as missing, but in most cases they reappear or are found in a comparatively short space of 1085 time. This is only to be expected in the age of computers and with all the technical equipment which is available to the police and other authorities.
But the fact remains that there still are some unsolved mysteries, and I must of course refer to a Member of this House, the noble Earl, Lord Lucan. So far as I know, his disappearance remains completely unaccounted for. This kind of thing can still happen.
In Scotland, where this Bill is to apply, there has recently been the mystifying disappearance of a Mrs. Macrae and her child from near Inverness. All that was found was her car by the roadside only a few miles from Inverness, and there is no clue whatever, so far as the public have been informed, to provide information as to whether she and the child are dead or alive. I am reminded of this because there are still placards in the area in the North of Scotland where I live showing her photograph and saying:
Missing—If you have seen this woman, please report immediately to the police".Now, months afterwards, there is still no information to indicate whether she and her child are alive or dead. It is necessary to have placards of that kind—I quite understand that—even though it may cause distress to relatives, particularly in the early days, because of cases of loss of memory. It is possible for a person to go missing and be quite unable to remember who or where he is, and he can usually be found fairly quickly by such methods.Then, personal matters, some of which the noble Lord, Lord Ritchie-Calder, has mentioned, come up; for example, marriage, and for how long after someone has completely disappeared the spouse is to be regarded as married to that person. There is in Clause 13 a provision to deal with a situation where someone has unintentionally committed bigamy if a person who has disappeared comes to life again. There are questions of insurance and social security, and there are matters of contracts and disposal of property. In all these matters the period of seven years has been selected. The noble Lord informed us that there has not been a period of this kind in Scotland previously, but the period of seven years has now been selected and I understand that this is the same period as that which is applied South of the Border. I am sure that in matters of this kind it is right that, so far as 1086 possible, we should have uniformity throughout the United Kingdom, because cases can be vexatiously complicated where they affect both sides of the Border. It may not be marriage or family matters that cause difficulty; it could be insurance, property and other matters of that kind.
Finally, lawyers with experience of cases or possessing views on what they think to be the best reform and the best improvements that can possibly be made in this field may well have points to raise at later stages of this Bill. For my part, I am happy that the Scottish Law Commission's work and its proposals are now to be applied in order to promote fairness, clarity and common sense in dealing with what in certain situations can be a difficult matter and also, for relations, a distressing one.
§ 3.14 p.m.
§ The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey)My Lords, I should like to join the noble Lord in thanking my noble friend Lord Ritchie-Calder for bringing this Bill before your Lordships' House. As my noble friend said, the Scottish Law Commission produced its report in 1974. The Scottish Law Commission, if I may respectfully say so—and in this I endorse what my noble friend said—was then, and still is, a body of quite outstanding quality, with lawyers of the highest calibre; and in its lucidity and its comprehensiveness this particular report is typical of its work. This report contains a most valuable review of the law which was in force then, and which still is in force, and came to the conclusion that there was need for a general presumption of death to be effective for all legal purposes; and that, as has been explained, is the main purpose of the Bill now before the House. I believe that it will greatly simplify the law and will be of considerable assistance to all who are administering the estate of a missing person, and indeed to all persons who are affected personally or patrimonially by the prolonged disappearance of a person with whom they are connected in some way.
The noble Lord, Lord Campbell of Croy, asked me for some examples of how the present law is unsatisfactory. I really cannot do better than go to the report of the Scottish Law Commission, 1087 from which I might just briefly cull three instances which will perhaps illustrate the point. First of all, under the 1891 Act one could not petition unless one was entitled to succeed to estate. Accordingly, if the person who was missing had no estate then the petition was not competent. Indeed, in one case in recent years the petition was dismissed simply because the petitioner's husband, who had disappeared in 1937, had no estate. Secondly, where, for example, the petition is brought by a spouse, it will be effective under the 1891 Act for purposes in connection with property but not effective for the purpose of terminating the marriage; and, accordingly, there will have to be two separate applications to the court.
Then, of course, the 1891 Act does not apply, and no other legislation applies, to claims against insurers under a policy of assurance upon the life of a person who has disappeared. Accordingly, a person who wishes to claim the proceeds of such a policy has to present a petition under the common law, and the standards of the common law in this regard are very high indeed. Indeed, it is in the common law that a person is presumed to continue in life unless there is strong and positive proof that he has died. These are some of the difficulties which I think the noble Lord, Lord Campbell of Croy, was seeking as illustrations.
The present Bill will remove all of these; and, on behalf of the Government, I must say that it is heartening that we in this House are being given the opportunity to implement yet another important recommendation of the Scottish Law Commission. I congratulate my noble friend on bringing this Bill forward, on his courage in venturing into the field of lawyers' law, and on the ease and skill with which he has seemed to move in it.
§ Lord RITCHIE-CALDERMy Lords, I can do no more than thank the noble Lord, Lord Campbell of Croy, and my noble friend Lord McCluskey for the good will they have shown towards this Bill. I repeat what I said: I think it is a masterpiece of common sense, and I may say to my noble friend that it does not need a lawyer to recognise the virtues of this Bill.
§ On Question. Bill read 2a, and committed to a Committee of the Whole House.