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



1.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. (Paragraph 6)

Procedural requirements

2.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. (Paragraph 31)

Remedying the incompatibility

3.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. (Paragraph 37)

Other matters arising

4.We recognise that the definition of “civil partners” in the proposed draft Order simply reflects the existing language in section 1 of the FAA, but we suggest that it would be preferable to review the language used in all provisions of the FAA to describe persons in cohabiting relationships to ensure that the language reflects the equality of their status. We suggest the language used in the Adoption and Children Act 2002, for example, is preferable. Section 144(4) defines a “couple” as a married couple, civil partners or “two people (whether of different sexes or the same sex) living as partners in an enduring family relationship.” (Paragraph 40)

5.Bearing in mind the requirement to justify any differential treatment, the Government may wish to put forward official policy reasons for imposing a timeframe on cohabiting couples, which is not imposed on married or civilly partnered couples, in its response to this Report. This will mean this policy decision can be properly scrutinised. In our view, the application of any qualifying period will, to some extent, draw an arbitrary line, but will provide a necessary filter for identifying relationships of sufficient permanence and commitment. Whilst is it recognised that there must be objective criteria for cohabiting couples equivalent to that of the commitment shown by married couples and civil partners, we are concerned that the inclusion of a time period of two years may not always be the most appropriate qualifying factor. Without clear justification for treating cohabiting couples differently, we suggest that the definition of eligible cohabiting couples should be reconsidered. (Paragraph 43)

6.Whilst we agree that it is preferable to avoid intrusive enquiries into personal relationships, in circumstances where the deceased had settled with a new cohabiting partner of at least two years duration, but remained in the midst of a divorce settlement, there may be some cases where awarding damages to the spouse is unfair given the purpose of the award of damages is to compensate for grief following the loss of an intimate, stable and long-term personal relationship. (Paragraph 46)

7.Whilst we recognise that the categories of eligible persons must be limited to those family members closest to the deceased, and therefore those most likely to suffer grief, the current list of eligible claimants is unprincipled, discriminates against other family members in analogous positions to existing eligible claimants and stigmatises children. Although no declarations of incompatibility have been made in respect of other family members, we consider that section 1A as currently drafted risks further legal challenge. (Paragraph 49)

8.Although the proposed Remedial Order addresses the specific discrimination identified by the Court of Appeal in Smith, we have various concerns with the bereavement damages scheme as a whole. Wider reform of the FAA would fall outside of the scope of the Government’s remedial order powers and would therefore require primary legislation. (Paragraph 52)

9.Firstly, the language used to define cohabiting couples should not be based upon an intimation of married couples and civil partners. We suggest that the FAA could adopt the definition of cohabiting couples as “two people living as partners in an enduring relationship”. Secondly, the qualifying time period of two years for cohabiting couples may not always be a fair indicator of a permanent and loyal relationship and we suggest that this should be reconsidered. Thirdly, the equal division of damages between separated spouses and cohabiting partners could lead to unfairness. Fourthly, we are concerned that section 1A of the FAA remains stigmatising towards children. We recommend that references to children as “not legitimate” should be removed from the statute. (Paragraph 53)

10.Fifthly, section 1A of the FAA is discriminatory against certain close family members. We therefore suggest that the Government should use this opportunity to look more broadly at the bereavement damages scheme and undertake a consultation with a view to reforming the scheme. The consultation should explore:

a)whether entitlement to bereavement damages should be open to the following family members where there is a genuine close relationship: fathers grieving the loss of children born outside of wedlock; parents grieving the loss of adult or married children; children grieving the loss of a parent; and siblings grieving the loss of a brother or sister; and

b)whether the Scottish model of assessing damages on a case-by-case basis is fairer than the fixed lump sum model in England, Wales, and Northern Ireland. (Paragraph 54)

Published: by authority of the House of Commons