32.Having assessed whether the Remedial Order complies with the procedural requirements, we must also assess whether the Order will remedy the incompatibility of the legislation with Convention rights.
33.Article 14 of the ECHR provides that Convention rights and freedoms shall be secured without discrimination on any ground. Article 14 does not exist independently, but rather it complements the other substantive provisions of the Convention. The facts in issue must therefore fall within one of the other Convention rights. In this case, the bereavement damages scheme falls within the scope of Article 8 of the ECHR, which provides that everyone has the right to respect for his private and family life. The Court of Appeal concluded: “It is apparent from the very fact that bereavement damages are limited in section 1A(2)(a) to the spouse or civil partner of the deceased that bereavement damages are specifically intended to reflect the grief that ordinarily flows from the intimacy which is usually an inherent part of the relationship between husband and wife and civil partners.” Consequently, the Court held that the bereavement damages scheme is a positive measure by which the State has shown respect for family life, which is a core value of Article 8.
34.As recognised by the Court of Appeal, it is well established that if a State provides a positive measure which falls within the ambit of Article 8, it must provide that measure without discrimination in compliance with Article 14. Therefore, having provided the positive measure of the bereavement damages scheme, the question is whether the State has discriminated unlawfully in the application of that scheme contrary to Article 14.
35.When assessing unlawful discrimination, it must first be established that the complainant is in an analogous position to the other beneficiaries of the positive measure. Whether or not a cohabiting couple are in an analogous position to spouses and civil partners for the purpose of Article 14 depends on the precise context. In the case of bereavement damages, the Court held that “it is the intimacy of a stable and long-term personal relationship, whose fracture due to death caused by another’s tortious conduct will give rise to grief which ought to be recognised by an award of bereavement damages, and which is equally and analogously present in relationships involving married couples and civil partners and unmarried and unpartnered cohabitees”.
36.Furthermore, the Court noted 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 Court further pointed to the increasing proportion of cohabiting couples, noting that for a significant population of the UK there is, in terms of social acceptance, no material difference between marriage and civil partnership and cohabitation.
37.The proposed draft Remedial Order inserts “cohabiting partners” into section 1A of the FAA, as defined in section 1(3)(b) of the FAA. In our view, the draft Remedial Order adequately addresses the judgment of the Court of Appeal, by extending the bereavement damages scheme to cohabiting couples (who have been living together for at least two years prior to the death), thereby removing the unlawful discrimination in section 1A of the FAA identified by the Court of Appeal.
38.There are, however, some other matters arising and two points of drafting to which we draw the attention of the Department.
27 Smith v Lancashire Teaching Hospitals NHS Foundation Trust  EWCA Civ 1916, para 72
28 Smith v Lancashire Teaching Hospitals NHS Foundation Trust  EWCA Civ 1916, para 72
29 Petrovic v Austria (1998) EHRR 14, paras 22–29; Smith, para 42
30 Smith v Lancashire Teaching Hospitals NHS Foundation Trust  EWCA Civ 1916, para 90
31 Smith v Lancashire Teaching Hospitals NHS Foundation Trust  EWCA Civ 1916, para 93
Published: by authority of the House of Commons