Civil Law (Missing Persons) Bill 2016: Committee Stage

I would like to acknowledge in the Public Gallery a former colleague, John Moloney, who was formerly a Deputy and a Minister of State, and his guests, the Cowen family. They are very welcome to the Seanad and I hope they enjoy their stay.

Sections 1 to 11, inclusive, agreed to.
Question proposed: "That the Title be the Title to the Bill."

I acknowledge the importance of this debate. I join the Cathaoirleach in extending our welcome to the former Minister of State, John Moloney, and his guests. I apologise for the disappointment they must feel when they see me on my feet in the Seanad when they can hear me in Mountmellick any day of the week. I acknowledge his contribution both as Minister of State in the Department of Health and during his many years as a public representative for the people of Laois-Offaly. I welcome him back this afternoon.

I have not had the opportunity heretofore to make any comments in respect of this Bill. I would like to put on record my acknowledgement of the work done by Senators Colm Burke, Marie-Louise O'Donnell and Lynn Ruane in highlighting and championing the need for reform in this area and in seeking to advance the proposals which were put forward by the Law Reform Commission in 2013. On behalf of the Government, I accept fully the principle which underlies the Bill. It should be supported for that reason. It was agreed last February that the Bill would not be opposed on Second Stage. However, as indicated during the course of the Second Stage debate, the basis for that agreement was that the Bill would need to be amended. It was also indicated that it was likely to be close to the end of the year before the necessary amendments could be progressed. Preliminary work has been taking place in this regard with a view towards having the necessary amendments finalised in co-operation with the Office of the Attorney General before the end of this year. It is a source of regret to me that we have not been in a position to move more quickly with this Bill due to competing complex legislative demands. For that reason I am not in a position to bring forward an appropriate set of amendments this afternoon. I am confident, however, that it will be possible to have the appropriate amendments ready for Report Stage.

I acknowledge that this will take a bit of time and any amendments will require the consideration of Government, which will have to take place prior to the debate. Every effort will be made to facilitate a meaningful Report Stage debate before the end of the year in which we can have the appropriate amendments and deal with the issues on a line-by-line basis. At this stage, having regard to the fact that we are well into a very busy Dáil and Seanad term, I am more hopeful than certain that this will be achievable within the timeframe sought by the Seanadóirí.

I am happy to engage with Senators on the matter of the Bill. I would stress that amendments may be needed which have not yet been contemplated and which may only become evident during a deeper analysis of the Bill. In the meantime, my officials will be happy to engage with Senators in developing the necessary and appropriate amendments. I am sure Senator Colm Burke, as an experienced legal practitioner, will be in a position to work with us in order to make progress. I also know from Senator Marie-Louise O'Donnell's track record of co-operation and working closely with Government that the same will apply for her.

There are a number of issues of importance, not least the important definition of a missing person. The definition under the current arrangements is much too broad in that it essentially addresses a situation where a person has temporarily gone missing rather than where the person can be presumed dead. This goes to the heart of the legislation and will need to be changed in order to avoid unintended consequences. Senators will be aware of a possible definition which forms part of a recommendation from the Council of Europe. This defines a missing person as "a natural person whose existence has become uncertain, because he or she has disappeared without trace and there are no signs that he or she is alive". I regret that we are having somewhat of an unusual Committee Stage debate but I will commit to further and more detailed engagement with Senators on Report Stage.

It is probably inappropriate to have any speeches on this matter unless any Senator wants to speak on an amendment. I was going to stand and outline the Title to the Bill. I believe it is inappropriate to take contributions at this stage. We will have a full debate on Report Stage with amendments and so on. I was about to stand when I took the unusual step of allowing the Minister to make a few comments. I do not want it to develop into an inappropriate debate on Committee Stage. I will allow Senator Ó Clochartaigh to speak very briefly.

Gabhaim buíochas leis an gCathaoirleach. Glacfaidh mé lena chomhairle. Tréaslaím leis na Seanadóirí Burke, O'Donnell agus Ruane a thug an Bille seo chun cinn. Ar an gcéad dul síos, ba mhaith liom aitheantas a thabhairt do mo chomhgleacaí, an Teachta Pearse Doherty, a thug Bill den leithéid seo chun cinn sa Dáil. As we know, 70,000 to 80,000 people are reported missing every year in Ireland. I cannot think of missing persons without thinking of the case of Barbara Walsh, which was highlighted on "Prime Time" last night and which occurred in my own area of Carna. I know the family very well and it is an awful tragedy that she went missing. They still have no closure. I can only imagine what the heartbreak must be like for other families across Ireland. We have almost 20 such cases every day. Many people do turn up. Is maith ann an Bille seo mar is buille tubaisteach do chlann duine muinteartha a bheith ar iarraidh. Ba cheart dúinn gach rud gur féidir linn a dhéanamh leis an mbrú agus an strus a bhaineann le cúrsaí riaracháin orthu a laghdú.

It is also important that an element of the Bill is to bring this State into line with the North and with Scotland in allowing an application to be made to a register for presumed deaths. A presumed death will only be registered if it meets the strict criteria laid out in the Bill. Is rud atá nualaíoch sa Bhille ná go dtugann sé faoi cheist na ndaoine atá ar iarraidh taobh amuigh den Stáit. Uaireanta is casta fós na cásanna seo mar go mbíonn ar theaghlaigh déileáil le níos mó ná córas riaracháin amháin. Dá dheacair agus atá sé corp duine marbh a thabhairt abhaile, tá sé i bhfad níos deacra déileáil le duine a théann ar iarraidh i gcéin. Mar urlabhraí ar chúrsaí an dhiaspóra do mo pháirtí féin, tá a fhios agam go maith na fadhbanna teagmhála a thagann chun cinn agus daoine muinteartha in Éirinn ag iarraidh teacht ar eolas faoi dhaoine atá ag cur fúthu thar lear.

As a former Minister for Foreign Affairs and Trade, the Minister will appreciate that it is important to take into consideration people who have gone missing abroad, as has been the case with some members of the diaspora. Tugtar soléiriú sna cásanna ina n-airítear go bhfuil duine marbh ach ina dtagann an duine sin ar ais ar a mhartain maidir le cúrsaí maoinithe, pósta agus airgeadais. Tá sé sin an-tábhachtach freisin.

This Bill comes out of a hope that, when the worst has to be presumed, family members of the missing person do not have to suffer further difficulties unnecessarily. Therefore, we support the Bill. This is an important day. I hope that the Bill can be progressed more quickly. It is disappointing that the Minister could not have shown the same flexibility on the Coroners (Amendment) Bill, which we discussed today, and allowed it to progress in order that we might table amendments on Report Stage.

Sin scéal eile.

It shows that, when the Minister and the Department want to show some flexibility, they can. That is important in this case but it is disappointing that flexibility could not have been shown earlier in the day.

I call Senator Colm Burke briefly. We do not want Second Stage speeches. They are not appropriate.

I thank the Minister for attending. This law has been up and running in Scotland since 1977 and there is the Presumption of Death Act 2013 in the rest of the UK. This is an important issue that needs to be addressed. Since I published this Bill, there was a tragic incident off the west coast. In another case a number of years ago in Tipperary, someone went missing and it was more than three years before the body was discovered. Very little could be done about the person's affairs while there was still uncertainty.

Obviously, I accept that there must be amendments. This Bill arose from the report of the Law Reform Commission, which conducted a careful examination, not only of the legislation in Scotland, England and Northern Ireland, where legislation was put in place in 2009, but of the legislation in other jurisdictions like Canada, New Zealand and Australia.

It is important that we progress this matter. There is an uncertainty during what is a difficult time for families. All that we are trying to do is put in place a mechanism for them to try to deal with the affairs of the missing person, in particular where all of the circumstances indicate that he or she has died, be that at sea, in an air traffic incident or in any other situation where there is no possibility of the person still being alive. It is important that we make available mechanisms for people to deal with the affairs of the person who everyone accepts is deceased. We should progress this legislation at an early date.

We can learn from what has been done in Scotland, where there is an average of five applications per year. In some years, there are very few altogether. As such, we are only discussing a small number of people, but it is important that safety mechanisms be there. If we put legislation in place and, for some reason or other, it needs to be reviewed in future, then that must be done.

I will allow Senator Marie-Louise O'Donnell in briefly.

I thank the Minister. I included the idea of this Bill, initiated by Senator Colm Burke and seconded by me, in my report on dying, death, and bereavement primarily because of the concept of spending 30 years bereaved without knowing where someone is.

In the past ten years, 360 people have not been located. While I understand that there is a problem with what we consider to be temporarily missing and being declared dead, we must progress this Bill. The Minister is more hopeful than certain but we should be more certain than hopeful that the amendments will be forthcoming and the Bill will progress through the House. We are ready to do that. Senator Colm Burke is ready to receive all and any amendment. Given his legal background, he will be able to deal with them. We need them. People should not have to wait ten years at an impasse. I could feel this issue through the report in terms of bereavement, not knowing and the business of one's estate not being put in order. I am more certain than hopeful, and co-operative with the Government, on this occasion.

That is good to hear.

Might I respond briefly? This is an unusual debate in so far as-----

We have kind of gone ultra vires in terms of what was agreed.

Yes. I acknowledge the Senators' comments and applaud them for their work in this regard. The situation this Bill seeks to address is not one the majority of people will ever have to encounter. I agree with Senator Ó Clochartaigh, however, in that for those who do encounter it, I can only imagine the consequent pain and grief that arise and, unfortunately, will continue. As a society, we can do little to mitigate the natural sense of loss that occurs when a loved one unexpectedly goes missing. As the Legislature, we have the capacity to intervene to alleviate some of the more practical problems that confront individuals in managing day-to-day affairs.

In this regard, I compliment our colleague, Senator Marie-Louise O'Donnell, on her fine report on dying, death and bereavement. If she does no more in her parliamentary life, she will have left an important mark with that report. She is monitoring closely its implementation across a range of Departments. I welcome that. It is a fine service that she continues to apply herself towards.

Speaking on behalf of the Government, I am conscious of the fact that the current legislative provisions relating to missing persons require modernisation. I am also conscious that, in reforming this area of law, far-reaching changes must be made to the legal framework relating to the ways in which the affairs of a missing person are handled. We must strive towards a delicate balance between the need to address the practical problems facing those left behind and the significant implications of declaring a missing person dead in line with Senator Colm Burke's contribution.

We will work with Senators in framing the amendments. They are necessary, on which point I detect Senator Colm Burke agrees. I thank the House for addressing this important issue. It is my intention to have matters completed by the end of the year, although we are subject to the vagaries of the Business Committee and pressing legislative requirements. I hope to return to this legislation at an early date and before year's end.

Question put and agreed to.
Bill reported without amendment.

When is it proposed to take Report Stage?

Is that agreed? Agreed.

It is only an indicative date.

Report Stage ordered for Tuesday, 24 October 2017.

When is it proposed to sit again?

At 10.30 a.m. tomorrow.

The Seanad adjourned at 6 p.m. until 10.30 a.m. on Thursday, 19 October 2017.