Fatal Accidents Act 1976 (Remedial) Order 2020

Baroness Scott of Bybrook Excerpts

Thursday 3rd September 2020 Grand Committee

[Baroness Scott of Bybrook]

That the Grand Committee do consider the Fatal Accidents Act 1976 (Remedial) Order 2020.

Relevant document: 4th Report from the Joint Committee on Human Rights

[Baroness Scott of Bybrook (Con)]

My Lords, I am afraid that the noble and learned Lord, Lord Keen of Elie, is unable to be here so I am taking this order through on his behalf.

This draft order seeks to rectify an incompatibility with the European Convention on Human Rights identified by the Court of Appeal in the 2017 case of Jacqueline Smith v Lancashire Teaching Hospitals NHS Trust and others. This relates to limits on the categories of person eligible to receive an award of bereavement damages under Section 1A of the Fatal Accidents Act 1976, which excludes a person who has cohabited with the deceased person for a period of at least two years immediately prior to the death.

The draft order was laid in Parliament on 12 February 2020 and was approved by the House of Commons on 15 June, so this debate represents the final stage in the parliamentary process, after which it will become law. As noble Lords will be aware, the terms of the Human Rights Act 1998 in relation to remedial orders require the order to be strictly focused on rectifying the incompatibility that has been identified; it cannot extend to addressing wider issues.

The bereavement damages award is set by the Lord Chancellor and is a fixed payment in acknowledgment of the grief caused by a wrongful death. The level of the award is currently £15,120, having recently been increased in line with inflation. The award is currently available to a limited number of people, including the wife, husband or civil partner of the deceased person.

Unlike civil damages generally, which are intended to compensate fully for the loss suffered, the bereavement damages award is, and was only ever intended to be, a token award payable to a limited category of people. When the award was first introduced in the Administration of Justice Act 1982, it was acknowledged by Parliament that it is impossible to quantify or provide adequate financial compensation for the grief felt at the loss of a loved one. Similarly, the limits on the categories of people able to claim are not intended to imply that people outside those groups would not be severely emotionally affected by the death in question.

The draft remedial order provides that a claimant who cohabited with the deceased person for a period of at least two years immediately prior to the death will be eligible to receive the bereavement damages award. In view of the fact that this is a fixed, token award, it is desirable for the system governing it to be as simple and straightforward as possible to avoid unnecessary complexity that would add to the cost of litigation and the potential for disputes.

In that context, we consider that it is reasonable to set a limit that objectively evidences a relationship of permanence and commitment and avoids the need for intrusive inquiries into the quality and durability of the relationship in individual cases. We believe that two years is an appropriate qualifying period. This period is already applied under Section 1 of the 1976 Act in relation to claims by cohabitants for dependency damages, and unnecessary complexity would arise in a claim involving both types of damages if different definitions were used.

In the very rare instances in which both a qualifying cohabitant and a spouse will be eligible—that is, in circumstances where the deceased was still married and not yet divorced or separated but had been in a cohabiting relationship for at least two years—the draft order provides for the award to be divided equally between the two eligible claimants. We consider that this is the fairest approach to adopt, given that it is desirable to avoid the potential for intrusive inquiries into the quality and durability of an eligible relationship or, in this particular situation, into the respective merits of the two claimants.

I am grateful to the Joint Committee on Human Rights for its scrutiny of this draft order. A remedial order is seldom used to correct incompatibilities in primary legislation with the European Convention on Human Rights. It is therefore right that each order be scrutinised carefully both to ensure compliance with the procedure laid down in the Human Rights Act 1998 and to ensure that the incompatibilities found by the courts are addressed.

The Government welcome the committee’s recommendation that Parliament approves the order and I hope that my comments have addressed the main points on which it has expressed concern in relation to the contents of the draft order. It remains our position that some of the issues raised by the committee go beyond the Court of Appeal’s ruling on incompatibility and are therefore beyond the scope of the order. I beg to move.

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[Baroness Scott of Bybrook (Con)]

My Lords, I am grateful for this informed and constructive debate. A number of important points were made, which I would like to respond to. If I miss anything, I am more than happy to answer in writing; I will certainly check Hansard for that tomorrow.

First, the noble Lord, Lord Hain, spoke about the provision for couples that may be together but not sharing a home. We can go into lots of complexity on this. We have tried to make this as simple as possible for a number of reasons, mainly because complexity at the time of grief does not help.

A number of noble Lords, including the noble and learned Lord, Lord Falconer, mentioned that no provision is made for couples who have lived together for less than two years. The period of two years already applies in other cases; certainly, under Section 1(3)(b) of the 1976 Act, the Court of Appeal did not question the validity of the two-year period. Again, if there are different definitions of eligibility at the time, unnecessary complexities can arise in a claim that involves both types of damages. We are trying to keep this as simple as possible because this money is a way of trying to help people through a very difficult period; it is not like other damages that would come through the courts.

Several noble Lords brought up the fact that the law is not the same in England as in Scotland. The civil and legal systems in Scotland and Northern Ireland are separate from those in England and Wales, so it is inevitable that the law has evolved differently in many respects. There is no inherent reason for the same approach to be taken in the different jurisdictions. The level of bereavement awards available in Scotland would lead to greater costs for not only insurance purposes but the NHS; again, it would also bring complexity into the proceedings for those people who are eligible to receive this money.

In England, there is a fixed-level award with clear eligibility criteria that avoids the need for detailed consideration of the evidence relating to degrees of grief and the potential for disputes which, I would argue, people do not need at such a point in their lives. Bereavement damages are, and always were only ever intended to be, a fixed token payment to a limited group of people. When the award was introduced into law, it was generally acknowledged that it is impossible to quantify or provide adequate financial compensation for the grief felt at the loss of a loved one. An award should not be regarded in any sense as a measure of the worth of the life that has been lost.

The noble Lord, Lord Hain, also asked why this measure is not in primary legislation. I must admit that the current pressure on the legislative timetable means that there is little prospect of using primary legislation to make such a change. Moreover, we consider that the nature of the incompatibility contributes to where there are compelling reasons as required under Section 10(2) of the Human Rights Act 1998 for making the necessary legislative changes quickly and promptly, and this was the way to do that. However, it does of course mean that the order is narrow in scope.

We have talked about the Scottish system and primary legislation, which was brought up by the noble Lord, Lord Thomas of Gresford.

The noble and learned Lord, Lord Falconer, wanted to raise three issues. I have talked about the two-year period, but obviously I will take it back to the department and we will talk more about the interesting view that marriages and civil partnerships get the award from day one while there is a two-year period for cohabitees. Another point I will take back is the issue about a father and the loss of a child. I am not a lawyer but I do not think that that is covered within this remedial order.

That brings me to my final point. There has been a lot of talk from noble Lords about the Act itself, including how old it is and the fact that some of it uses inappropriate language, as we heard from the noble Baroness, Lady Jones of Moulsecoomb. I will take that back and make sure that I reflect noble Lords’ views in the department. As we well know, plenty of legislation is going through so I do not know what sort of response I will get, but I will make sure that noble Lords get an answer on that point. If I have not answered anything specifically, I will look in Hansard tomorrow.

In conclusion, I believe that this order accurately and effectively addresses the incompatibilities identified by the Court of Appeal, and I think noble Lords have agreed with that, particularly in relation to eligibility for bereavement damages. Subject to the Committee’s approval, it will be brought into effect as swiftly as possible following this debate. I welcome the support for the order from the Joint Committee on Human Rights and from noble Lords generally. I commend the draft order to the Committee.

Motion agreed.