1.This proposal for a draft Remedial Order arises from a declaration of incompatibility made by the Court of Appeal in Smith v Lancashire Teaching Hospitals NHS Foundation Trust. In this case, Ms Smith’s cohabiting partner (“the deceased”) died as a result of the negligence of the Lancashire Teaching Hospitals NHS Foundation Trust and Lancashire Care NHS Foundation Trust. Ms Smith had lived in the same household as her partner for 11 years. They were not married and had not entered into a civil partnership. It was recognised by the court that “their relationship was equal in every respect to a marriage in terms of love, loyalty and commitment.”
2.Ms Smith claimed dependency damages under section 1 of the Fatal Accidents Act 1976 (“the FAA”), having lived as a cohabitee with the deceased for at least two years. However, she was not entitled to bereavement damages under section 1A(2)(a) of the FAA; such damages are restricted to married couples, civil partners or parents in limited circumstances. She therefore sought a declaration that section 1A(2)(a) of the FAA was incompatible with Articles 8 and 14 of the European Convention on Human Rights (ECHR).
3.Bereavement damages consist of a fixed lump sum payment (of £12,980) intended to compensate for grief where death is caused by the wrongful act or omission of another person. Under section 1A(2)(a) of the FAA, bereavement damages are only available to:
a)the wife, husband or civil partner of the deceased;
b)parents, where the deceased is a “legitimate” unmarried/unpartnered minor; or
c)a mother, where the deceased is “not a legitimate” unmarried/unpartnered minor.
4.Ms Smith therefore sought a declaration that section 1A(2)(a) of the FAA was incompatible with Articles 8 and 14 of the Convention as it discriminated against cohabiting couples. Article 8 provides that everyone has the right to private and family life. Article 14 provides that Convention rights must be enjoyed without discrimination.
5.The Court of Appeal held that section 1A(2)(a) of the Act is incompatible with Article 14 in conjunction with Article 8 on the basis that it denies bereavement damages to cohabiting partners (who have been living together for at least two years prior to the death). The Court considered that Parliament treated cohabitees (of two or more years) as being in a stable and long-term relationship comparable to that of spouses and civil partners for the purpose of dependency damages and that there was no justification for treating cohabiting couples differently for the purpose of bereavement damages. The grief caused by the death of a stable and long-term partner is equally and analogously present in relationships involving married couples and civil partners as unmarried and unpartnered cohabitees.
6.We welcome the Government’s action in proposing the Remedial Order to remedy the incompatibility in the Fatal Accidents Act 1976 (“the FAA”) with the Convention prohibition against discrimination and the right to private and family life.
7.The Human Rights Act 1998 (“the HRA”) provides that, where a court has found legislation to be incompatible with a Convention right, Ministers may correct that incompatibility through a remedial order (which may be used to amend primary legislation). There are special provisions in Schedule 2 of the HRA to ensure that this power is not used inappropriately. Under the non-urgent procedure, a proposal for a draft must be laid before Parliament for 60 days, during which time representations may be made to the Government. If the Government decides to proceed with its proposal, it will then lay a draft order. This is accompanied by a statement responding to the representations and explaining what changes, if any, have been made to the draft as a result of the representations. A further 60 days must elapse after which, in order to be made, the draft order must be approved by each House of Parliament.
8.The proposed Remedial Order, together with the required information, was laid before both Houses on 8 May 2019. The Standing Orders of the Joint Committee on Human Rights (JCHR) require us to report to each House our recommendation as to whether a draft order in the same terms as the proposal should be laid before Parliament, and any other matters arising from our consideration of the proposal.
9.We may also report on the technical compliance of any remedial order with the HRA and note whether the special attention of each House should be drawn to the order on any of the grounds specified in the Standing Orders relating to the Joint Committee on Statutory Instruments (JCSI).
10.We issued a call for evidence on the Government’s proposal on 16 May 2019 and are grateful for the two submissions we received. We have been in contact with officials from the Ministry of Justice (“the Department”), who have been helpful throughout.
11.In our consideration of remedial orders, we generally consider the following questions:
12.The relevant grounds on which the JCSI can draw a statutory instrument to the special attention of each House are:
13.The FAA provides for civil claims for damages where a death is caused by the wrongful act or omission of another person.
14.Section 1 of the FAA requires the person who has caused the death (the tortfeasor) to pay dependency damages for the benefit of “dependants” of the deceased. The definition of “dependants” includes, amongst others, a spouse or former spouse, a civil partner or former civil partner, or a cohabitee of two years or more.
15.Section 1A of the FAA requires the tortfeasor to pay bereavement damages to certain categories of claimant. This is a fixed sum of damages to be awarded in the event of a fatal accident caused by a wrongful act, neglect or default. Bereavement damages are only available to the spouse, civil partner or parent of the deceased in some circumstances. They are not available to a cohabitee of two years or more.
16.Section 1A was inserted into the FAA by the Administration of Justice Act 1982. This Act also expanded the definition of “dependants” to include cohabitees for the purpose of dependency damages (section 1, FAA), but did not include cohabitees for the purpose of bereavement damages (section 1A, FAA). Subsequent amendments extended both types of damages to civil partners.
17.When introducing the new claim for bereavement damages during second reading of the Administration of Justice Bill 1982, the Lord Chancellor announced that the changes followed the Law Commission’s recommendation of 1973 to give a fixed sum to a spouse for the loss of the other spouse or to parents for the loss of a child. He further stated that the Government had rejected broader proposals which would have included, for example, the right of a child to claim for loss of a parent, on the basis that children will receive dependency damages. The Government also rejected the Scottish model, which allows for discretionary awards, unlimited in amount, to a broader class of beneficiaries, preferring instead a more “simple solution”.
18.In response to a suggestion that the “common law wife” (i.e. cohabiting partner) should not be overlooked, the Lord Chancellor commented that the “common law wife presents a certain number of difficulties [ … ] It is of course a phrase unknown to statute law as such. There are different degrees of permanence about relationships of this kind which obviously would present the courts with a very considerable difficulty which is not presented by the ordinary matrimonial relationship.”
19.On 7 November 2017, the Court of Appeal made a declaration, under section 4 of the HRA, that section 1A(2)(a) of FAA is incompatible with Article 14, in conjunction with Article 8, of the ECHR (the prohibition on discrimination and the right to private and family life).
20.To remedy the incompatibility, the Government proposes to amend the statutory list of claimants which limits eligibility for an award of bereavement damages under section 1A of the FAA. The Government proposes to make two key changes:
a)To make bereavement damages available to claimants who cohabited with the deceased person for a period of at least two years immediately prior to the death; and
b)Where both a qualifying cohabitant and a spouse is eligible (e.g. separated but not divorced), the award would be divided equally.
21.The provisions would only apply to causes of action which accrue on or after the day on which the Order comes into force. This means that, up until the date the law is amended by the Order to extend eligibility to cohabiting partners, those cohabiting partners who have been discriminated against will not be able to make a claim.
3 Smith v Lancashire Teaching Hospitals NHS Foundation Trust  EWCA Civ 1916
4 Smith v Lancashire Teaching Hospitals NHS Foundation Trust  EWCA Civ 1916 , p811
5 In the High Court, Edis J  EWHC 2208 (QB) decided that bereavement damages did not fall within the ambit of Article 8, finding that the link to Article 8 must be “real rather than tenuous” and that the infringement must be “sufficiently serious” (paras 93–94).
6 Smith v Lancashire Teaching Hospitals NHS Foundation Trust  EWCA Civ 1916, paras 90–91
8 For the definition of sixty days, see Human Rights Act 1998, Schedule 2,
9 Ministry of Justice, , published 8 May 2019
10 () Thompson Solicitors; () Association of Personal Injury Lawyers
11 See House of Commons, ; some of the grounds which the JCSI examines are not relevant to this Order.
13 Law Commission, Report No. 56, , HC 373, 1973
14 HL Deb, 8 March 1982,
15 HL Deb, 8 March 1982,
16 Smith v Lancashire Teaching Hospitals NHS Foundation Trust  EWCA Civ 1916
17 Ministry of Justice, , May 2019, Explanatory memorandum to the proposed Remedial Order, p 8
Published: by authority of the House of Commons