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Guardianship (Missing Persons) Bill

Volume 623: debated on Friday 24 March 2017

Consideration of Bill, not amended in the Public Bill Committee

Clause 1

Missing persons

With this it will be convenient to discuss the following:

Amendment 2, in clause 2, page 2, line 17, at end insert—

‘(2A) Before hearing an application for a guardianship order the court may require the applicant to take such further steps by way of advertisement or otherwise as the court thinks proper for the purpose of tracing the missing person.”.

Amendment 3, in clause 3, page 2, line 27, leave out “90 days”’ and insert “6 months”.

Amendment 4, in clause 7, page 5, line 18, leave out “4 years” and insert “2 years”.

Let me set out from the start that these are probing amendments and I do not intend to push any of them to a Division. By anyone’s admission, this is quite a meaty Bill, running to 25 clauses, but we have had no scrutiny of it in the Chamber. It received its Second Reading on the nod, without any debate whatsoever, and here we are, with time pressing on, and we have had no opportunity before now to debate any of its provisions. I therefore tabled some probing amendments to tease out from my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) why some of the Bill’s provisions—the timescales, for example—are as they are.

Amendment 1 would remove subsection (4), which states:

“A person who is detained, whether in a prison or another place, is to be treated for the purposes of this Act as absent from his or her usual place of residence and usual day-to-day activities.”

I want to tease out from my hon. Friend the reasoning behind the subsection, because there was no scrutiny of it on Second Reading.

In passing, I should say that we are discussing the Guardianship (Missing Persons) Bill, and a Missing Persons Guardianship Bill is going through the House of Lords. I am not sure whether that Bill’s provisions are different from this Bill’s, but perhaps Members in the other place are trying to achieve the same thing.

In 2014, the Government held a consultation entitled “Guardianship of the property and affairs of missing persons” in which, as far as I could see, the issue addressed by subsection (4) was not mentioned once. Furthermore, I checked the reasoning behind the inclusion of the subsection with the House of Commons Library, but the staff there confirmed that they had not been able to find out anything about its background. They could not explain why it was in the Bill, beyond its inclusion as an example.

After speaking to Library staff at further length, they said:

“The Bill defines a missing person as someone who is absent from their usual place of residence or their usual day-to-day activities. The reason for being absent may be because the person is detained. However, in addition, as in other cases, the first or second condition set out in subsections (2) or (3) must also be met. In most cases, the first condition is likely to be relevant—that is, that the person’s whereabouts are not known, or not known with sufficient precision to enable contact to be made.”

That was the Library’s explanation of why the subsection might be in the Bill but, given that the staff there were not entirely clear about it, I thought it important to table an amendment so that we could hear my hon. Friend explain it at first hand. That is why I see it as a probing amendment.

Amendment 2 would insert into clause 2:

“Before hearing an application for a guardianship order the court may require the applicant to take such further steps by way of advertisement or otherwise as the court thinks proper for the purpose of tracing the missing person.”

That would ensure that all reasonable steps had been taken to try to locate the missing person.

On reflection, does my hon. Friend agree that the court probably has that power anyway? Someone seeking to obtain an order must surely have to show the court that they have taken all reasonable steps to discover where the missing person is..

I very much hope that my hon. Friend the Member for Thirsk and Malton will be able to confirm that, which is why I described the amendment as a probing one. I want it to be clear, on the record, that that is the case, because it was not entirely clear from looking through the Bill. I hope that my right hon. Friend the Member for East Yorkshire (Sir Greg Knight) is right—I am sure he is—but, as I said, it is a probing amendment so that we can get it confirmed on the record.

My hon. Friend is making a valid point, but as far as I understand it good systems are already in place to determine whether a person is missing and all that side of it. There is, however, no system for looking after their estate or anything that they own if they are declared missing. The Bill is about helping the people left at home to deal with the property or the estate, or, indeed, to deal with the hardship that they might be facing because they cannot access funds or money, or get into the house and all those sorts of things. It therefore seems eminently straightforward and sensible.

My hon. Friend is right. She is referring to the principle of the Bill, which I absolutely support. I do not intend to do anything to stop the Bill proceeding—that is not the point. The point I am making is that we are looking at the detail, and I want to ensure that we get it right. All hon. Members support the principle of the Bill. I do not want to scupper or affect the principle—she and I are as one on that. The purpose of the amendments is to ensure that we are happy that the details are right, because it is quite a chunky piece of legislation that deserves such scrutiny.

Amendment 2 is based on a requirement in the Leasehold Reform, Housing and Urban Development Act 1993—I do not know whether I need to refer hon. Members to my registered interest as a landlord, but I have now done so—section 26 of which addresses applications when the relevant landlord cannot be found.

Similar legislation elsewhere in the world contains similar requirements before a guardian can be appointed, including in three Australian states—New South Wales, Victoria and the Australian Capital Territory—which set out a process under which an individual can seek to be appointed to manage the affairs of a person who is missing. There is a similar provision in Canadian law. That is the purpose behind the amendment. I want to ensure that we are happy that we have the detail right.

As hon. Members can see, amendment 3 would increase the amount of time from 90 days to six months for which an individual must be missing before a guardian can be appointed. This was specifically designed as a probing amendment, because it was the only way I could think of to tease out from my hon. Friend the Member for Thirsk and Malton why he set 90 days as the limit. The only way I could think of doing that was to propose an alternative. My alternative is six months, and I wonder whether 90 days is too short a time.

I am grateful for my hon. Friend’s scrutiny of this important legislation. He mentioned other territories around the world that use such legislation—New South Wales, Victoria and British Colombia—all of which use that 90-day period. It is therefore a sensible starting point.

I have read the consultation, to which there were 40 responses, of which eight commented on the proposal that applications should be made only after 90 days. Some of the responses said that 90 days was too long—I accept that—but practical points on timing were made, including by the Finance and Leasing Association, which had concerns about the 90 days. The consultation response therefore states:

“We accept that the 90 day period may create problems in some cases, but are also conscious that over-hasty applications may result in unnecessary expenses being incurred.”

The period is 90 days and not 60 or 100, so I am seeking the rationale for 90 days. My hon. Friend was helpful in his intervention and has made it clear why he has gone for 90 days, and I am grateful to him for that.

As hon. Members can see, amendment 4 would reduce the maximum period of guardianship from four years to two years. Clause 7 sets out the period of guardianship and requests that the period for which the guardian is appointed be stated in the court order. The maximum possible is four years, and I propose to halve it. Again, I am trying to tease out from my hon. Friend why he believes four years is right, and why the period should not be longer or shorter. I can see the attractions of making it longer to avoid people having to go back time and again, given the cost of doing that. I was not sure whether the primary purpose was to avoid that or there was another rationale as to why four years was the appropriate time.

My concern arises from the same issue, and it is what happens when a missing person is found. That does not automatically negate the guardianship, as I would have hoped that it would, and is an argument for saying that the guardianship should be for a shorter period. Otherwise, as soon as somebody is found, the guardian will have to apply to the court to end the guardianship before they can again be treated as a normal person.

My hon. Friend makes a good point. That is why I proposed a shorter period rather than a longer one.

I think that my hon. Friend has inadvertently misled the House. As I read the Bill, the term of four years is a maximum, and the court has power to make an order for any length of time up to four years.

Yes, that is right. If I did mislead the House, I certainly did not intend to. I thought I had made it clear that it was a maximum of four years, but if I did not, I apologise to my right hon. Friend and to the House. He is right: it is a maximum, and it does not need to be exactly that. However, that does not necessarily overcome the point made by my hon. Friend the Member for Christchurch (Mr Chope) that a decision for four years could be made in good faith and is then superseded, possibly causing an issue.

Again, I pray in aid the consultation on these matters. It received a range of views on the appropriate duration of guardianship appointments. Two respondents said they agreed with the proposed maximum term of four years, while there were suggestions from four other respondents, including for a shorter period of just one or two years, with one proposal of eight years. Perhaps my hon. Friend the Member for Thirsk and Malton is saying that we should split the difference and go for four years, and that is the consensus—I do not know. As I said, there are examples in other countries. In Victoria and the Australian Capital Territory, the administrator or manager is appointed initially for up to two years, which can be extended for a further two years. I wonder whether that might have been a more sensible way of going about it. It is the same in Irish law, with an initial two years that can be extended for a further two years. That might be better than a straight four years right from the word go.

My amendments are in no way seeking to cause any problems for the Bill; they are simply to give it some scrutiny that up to this point it has not had, as I am sure my hon. Friend will be the first to concede. Legislation does deserve some scrutiny, particularly when it is as meaty as this. I look forward to his and the Minister’s response to the issues I have raised and their explanations for some of the details in the Bill.

I am keen for this Bill to progress.

Amendment 1 relates to the definition of when a person is missing for the purposes of the Bill. The amendment would remove clause 1(4), which relates to the absence of the missing person. Without that subsection, it would be unclear whether, for the purposes of the Bill, the person detained in prison or otherwise would be treated as being

“absent from his or her usual place of residence and usual day-to-day activities.”

Amendment 2 addresses a different aspect of the question of whether a person is missing for the purposes of the Bill. First, the Bill already provides in clause 20(1) that the application must be advertised in accordance with the rules of the court. The subsection provides that

“notice of the application and any other information specified by rules of court”

must be sent

“to the persons specified by rules of court”.

Secondly, the procedure for hearing the application will be governed by rules of court. Those rules have not yet been written, but they will specify the information that needs to be provided to the court with the application. That is likely to include a requirement that the application is supported by evidence of the various issues on which the court must be satisfied before it can make a guardianship order in accordance with the Bill.

Amendment 3 relates to the question of how long a person must be missing before an application can be made for the appointment of a guardian. I appreciate the concern of my hon. Friend the Member for Shipley (Philip Davies) that guardianship orders should not be granted lightly or with undue haste. However, extending the period to six months would be excessive. The question of the length of the period of absence was raised in the Ministry of Justice in 2014 in its consultation on guardianship. The suggestion of 90 days was well supported there. The main alternative suggestion from consultees was that of a shorter period, as my hon. Friend rightly mentioned.

Amendment 4 relates to the length of time for which a guardian can be appointed. It would change the maximum period for the appointment of a guardian from four years to two years. Again, I appreciate my hon. Friend’s concern that guardians should not lightly be given an extended period of authority over the property and financial affairs of a missing person. Giving one person authority to deal with the property and affairs is also a very serious step. There is absolutely no reason why the maximum period of appointment—it is the maximum—must be four years. International practice varies: some jurisdictions leave the length of time to the court, but others apply a maximum. The four-year period was well supported in the consultation.

In summary, the four-year period is a maximum, and even when it is applied, it can be cut down if circumstances so require. A two-year maximum could be unduly restrictive and result in unnecessary expense for those affected. In the light of that explanation, I hope that my hon. Friend will withdraw his amendment.

I am very grateful to the Minister for his explanation. We have not yet heard from my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake), the promoter of this Bill, on whether he endorsed the Minister’s points.

I am grateful to my hon. Friend for giving way. The Minister laid out his responses in a very comprehensive fashion. I have nothing significant to add. My hon. Friend the Member for Shipley (Philip Davies) talked about the other Bill in the House of Lords. That Bill would not be required if this Bill passes through this House today. He mentioned removing clause 1(4). This deals with a situation in which somebody is detained as a hostage or something similar. Terry Waite springs to mind, as he was could not be contacted for five years.

I am very grateful to my hon. Friend for that addition to the Minister’s explanation. I absolutely accept the points that have been made. It is important that we had them put on the record, and that we teased out from the Government why they set the rules as they have. I am sure that that will be useful for people to know. Therefore, I am happy to withdraw my amendment.

Amendment, by leave, withdrawn.

Third Reading

I beg to move, That the Bill be now read the Third time.

I thank all hon. Members for their contributions, particularly my hon. Friend the Member for Shipley (Philip Davies) for his detailed scrutiny of this very important Bill, and all the members of the Bill Committee. I very much hope that the Bill will pass swiftly through this House and the House of Lords.

Many times in this House, we get involved in different issues for many different reasons. My reason for being involved in this issue is to do with Mr and Mrs Lawrence, who have a deep connection with my constituency and who are sitting in the Public Gallery today. Their daughter, Claudia, went missing eight years ago this very week in tragic circumstances. There is still no explanation for her disappearance. In addition to the trauma, anxiety and stress of the situation, the Lawrences discovered in those early weeks that they were unable to deal with Claudia’s financial affairs because of contract and data protection law.

I congratulate my hon. Friend on safely navigating this important Bill thus far. He cites the example of his constituent. Has he made an assessment of how many of our other constituents across the country may benefit from his excellent piece of legislation?

Believe it or not, 370 people go missing every single day in this country. Not all of them will require these provisions, but many will. It is an important piece of legislation, and many people have campaigned to get it on the statute book. That includes, of course, Mr and Mrs Lawrence and the campaigning organisation Missing People, which is keen to have this legislation to support people in similar circumstances.

When I tell people that it is not possible to manage the affairs of a missing person, most of them think that that is an incredible situation. Why is that? I think that they feel that way because in similar situations—for example, if a loved one passes away, or if someone has dementia or mental incapacity—other legislation can help, but that is not true for a missing person. For months or years, it is not possible to deal with the mortgage company, the landlord, utility companies, insurance companies and so on, because they simply cannot speak to anyone about the missing person’s affairs. That costs money for the missing person’s estate and, more critically, their dependants. Quite often, the missing person will have dependants, who need to be looked after.

I am grateful for the great support from across the House for the Bill, and I am grateful to the Government for their support. I thank our excellent Ministers and the organisation Missing People. I am grateful to my hon. Friends who are in the House today and to my hon. Friends the Members for York Outer (Julian Sturdy) and for Selby and Ainsty (Nigel Adams) who worked so hard on the legislation before I did. It is very much a team effort. I was in the right place at the right time when it came to taking the legislation forward, and it is a great pleasure to do so.

I have one important thing to add. This is a simple piece of legislation, and it will fill the gap in the existing law. As a testament and tribute to Mr and Mr Lawrence and their endeavours—their hard work and commitment to championing the cause of guardianship, their eternal hope, their endless fight for answers and justice and their commitment to helping others in similar circumstances—I hope that this Bill, if enacted, will always be known as Claudia’s law.

I congratulate the hon. Member for Thirsk and Malton (Kevin Hollinrake) on the work that he has done to bring the Bill before the House. I would like to say a great deal about it, but I will not; I will be quick. The Labour party supports the Bill, which, happily, has resounding cross-party support. It deals with a gap in the law that needs to be addressed. I understand that the charity Missing Persons has been influential in the creation of the Bill and supports it in its current form.

As hon. Members know, as things stand in England and Wales, there is no mechanism for protecting the property and affairs of a missing person, and the Bill will change that. The hon. Member for Thirsk and Malton has said that some 2,500 people could benefit from such a law. Courts will be empowered to appoint a guardian to manage the property and affairs of missing persons and to act on their behalf. Unfortunately, the delay in filling this gap in the law has been too lengthy, and there has been consistent and long-standing cross-party support for the proposed legislation.

Happily, the Bill has wider support among campaigners and other interested parties. We should not frustrate such laws when there is political consensus about the positive case for acting. As I said at the outset, the Opposition support this Bill, and I am glad to have the opportunity, albeit brief, to speak in its favour.

I congratulate my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) on introducing the Bill to create the new legal status of guardian of the property and financial affairs of a missing person and on bringing it so far so quickly. The Government are committed to creating that new legal status and are pleased to support the Bill.

The proposals in the Bill have taken some time to evolve. It goes without saying that the Bill will not create a panacea for all the troubles and anguish caused by a sudden and unexplained disappearance; however, it will provide a clear, practical procedure for those left behind to use to find solutions to the financial problems they face. Putting one person in charge of another person’s property and affairs is a very significant step, but guardianship is not unique in that respect.

The Bill has been modelled in part on the provisions for the appointment of deputies in the Mental Capacity Act 2005. The guardian is, for example, to be treated as the agent of the missing person. I hope that businesses and other organisations can therefore relatively quickly adapt their systems to accommodate the new status and deal with guardians confidently.

The Government have said that they will introduce the secondary legislation that the Bill requires within 12 months—in other words, by 2018. Will my hon. Friend please give that assurance to the House today from the Dispatch Box?

I can assure the House that the Government support the Bill and that we will do everything in our power to introduce those regulations, so that they can come into force as soon as practicable.

Putting one person in charge of another person’s property and affairs is a significant step. As I have said, guardianship is not unique in that respect. The character and qualities of guardians will be critical. Guardians can therefore only be appointed by the court and can be held to account for their actions by individuals affected. They will also be subject to supervision by the Office of the Public Guardian. The detail of the supervisory regime will be worked out in secondary legislation and codes of practice, as is the case for deputies.

The key principle that the guardian must observe is that he or she must act in the best interests of the missing person. “Best interests” is defined in the Bill and may be further defined in regulations, but it does not simply mean preserving and protecting—and, where possible, augmenting—the assets of the missing person. That would certainly do some good—as against the return of the missing person—but would do nothing, until the missing person returned, for those left behind. The guardian is therefore able, subject to the tests in the Bill and the terms of the guardianship order, to use the missing person’s assets for the benefit of people whom, had he or she not disappeared, the missing person would probably have supported.

I acknowledge the unstinting efforts of the charity Missing People, which, along with its pro bono lawyers, Clifford Chance, has assisted the Ministry of Justice in preparing legislation. The Department is grateful to the charities Prisoners Abroad and Hostage UK, which have contributed to the Bill’s development. I thank my hon. Friend the Member for Thirsk and Malton for his hard work in steering the Bill thus far. I am grateful to all the families affected by disappearances who have shared their experiences in public to help to raise awareness of the need for reform and to Peter Lawrence in particular. As my hon. Friend said, in the letter of the law this is called the Guardianship (Missing Persons) Bill, but it will always be known as Claudia’s law.

The Bill has been a long time in getting to this stage. The all-party parliamentary group on runaway and missing children and adults called for legislation in 2011, and the then Government undertook in the cross-Government missing children and adults strategy, published that year, to consider whether legislation was required. I am delighted to commend the Bill to the House.

Question put and agreed to.

Bill accordingly read the Third time and passed.