Proposal for a draft Fatal Accidents Act 1976 (Remedial) Order 2019 Contents

2Procedural requirements

Compelling reasons and use of remedial power

22.Since remedial orders are a type of delegated legislation which can be used to amend statutes, there are controls on their use. A Minister may only use the remedial power under the HRA if that Minister considers that there are “compelling reasons” to do so. The Government’s reasons for using a remedial order are set out in the statement of required information which accompanies the Remedial Order.18

23.The Government states that the Court of Appeal’s judgment in the Smith case must be implemented via an amendment to primary legislation due to the existing statutory limits on awards of bereavement damages under the FAA. The Government notes the current pressure on the legislative timetable and the unlikely prospect of finding suitable primary legislation to make the necessary amendment in the near future. Bearing in mind the need to respond to the breach as promptly as possible, whilst allowing for parliamentary scrutiny, the Government therefore considers that there are compelling reasons for making the necessary amendments by way of remedial order.19

24.We are grateful for the information provided by the Department as part of the ‘required information’ and consider that these are compelling reasons to use the remedial power. We strongly agree that it is important that the breach is responded to as promptly as possible. However, we note that the judgment was handed down by the Court of Appeal on 7 November 2017 and that the Remedial Order will only apply to causes of action which accrue on or after the day on which the Order comes into force. The Department states that “the number of individuals who are affected by this incompatibility is likely to be small”, although it has not provided any evidence on this point.20 It is therefore unclear how many individuals have been denied their entitlement to bereavement damages following 7 November 2017. The longer the delay, the more individuals who will be denied their entitlement. Whilst we agree that the use of the Remedial Order will achieve a change in the law more quickly than primary legislation, it is regrettable that it has taken the Department this long to lay a proposal.

25.We also note that this reform is long overdue. In a report published in November 1999, the Law Commission concluded it was “unjustified that the award of bereavement damages, which compensates non-financial losses (such as grief and sorrow) is currently available only to the deceased’s spouse and parents.”21 The Law Commission expressed the view that “the exclusion of cohabitants from the list of those able to recover damages was contrary to the premise that the damages should be available to those closest to the deceased, and most likely to be aggrieved by the death.”22 The Law Commission’s proposals were included in a further consultation on a Draft Civil Law Reform Bill, published in December 2009.23 However, in January 2011, the coalition Government announced it would not proceed with the Bill.24 It is unfortunate it has taken twenty years and a declaration of incompatibility to produce Government action to remedy this discrimination.

Use of non-urgent procedure

26.Remedial orders can be made by urgent or non-urgent procedure. The Government’s reasons for proceeding by way of the non-urgent procedure are that “the bereavement damages award is token in nature, and the number of individuals affected by the incompatibility which this proposed Remedial Order would remove is likely to be small.” The Government concludes that it is appropriate to allow the opportunity for parliamentary scrutiny under the non-urgent procedure.25

27.We have no evidence regarding the likely numbers of individuals affected by this Remedial Order and are concerned that there are an unknown number of people who have suffered grief who have not yet been granted a remedy. Nevertheless, we are content that the non-urgent procedure has been used, but trust there will be as little delay as possible between conclusion of proceedings on the proposal for an order and laying the draft Order itself and implementing its provisions.

28.We are satisfied that that this is a valid use of the remedial order powers.

Required information

29.Pursuant to Schedule 2, paragraph 3(1), of the HRA, the Government must lay before Parliament “required information” alongside a proposed draft order. “Required information” is (a) an explanation of the incompatibility which the order (or proposed order) seeks to remove, including particulars of the relevant declaration, finding or order; and (b) a statement of reasons for proceeding under section 10 and for making the order in those terms.26

30.We consider that the Government has provided the required information in accordance with the provisions of Schedule 2. We are also grateful to the Department’s officials for providing timely and helpful responses to requests for further information.

31.We consider that the procedural requirements of the Human Rights Act (“the HRA”) have been met and the Government’s reasons for proceeding by way of remedial order rather than by a Bill are sufficiently compelling for the purpose of section 10(2) of the HRA. Remedying the incompatibility by way of a non-urgent order strikes a reasonable balance between avoiding any further undue delay on the one hand, and the need for proper parliamentary scrutiny on the other. The Committee does, however, regret that it has taken twenty years following the Law Commission’s report in 1999, and a declaration of incompatibility in November 2017, before laying the proposed draft Order in May 2019.

18 Ministry of Justice, A proposal for a Remedial Order to amend the Fatal Accidents Act 1976, May 2019, Explanatory memorandum to the proposed Remedial Order, p 8

19 Ministry of Justice, A proposal for a Remedial Order to amend the Fatal Accidents Act 1976, May 2019, Explanatory memorandum to the proposed Remedial Order, p 8

23 Civil Law Reform– A Draft Bill, Cm 7773, December 2009

24 HC Deb, 10 January 2011, col8WS

26 Human Rights Act 1998, schedule 2, para 5

Published: by authority of the House of Commons