Damages

Jim Shannon Excerpts

Monday 15th June 2020 Commons Chamber

[The Parliamentary Under-Secretary of State for the Home Department (Chris Philp)]

I beg to move,

That the draft Fatal Accidents Act 1976 (Remedial) Order 2020, which was laid before this House on 12 February, be approved.

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 Smith v. Lancashire Teaching Hospitals. It 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, as amended in 1982, which excludes a person who has cohabited with the deceased person. The draft order was laid in Parliament on 12 February 2020 and the terms of the Human Rights Act 1998 specify that remedial orders require the order to be strictly focused on rectifying the incompatibility and not on any wider issues no matter how much merit those wider issues may have.

[Jim Shannon (Strangford) (DUP)]

Some of my constituents have contacted me in relation to this matter, so may I just ask the Minister to confirm that the remedial Act and the SI will protect those co-habiting families who see themselves excluded from insurance pay-outs because they had not taken the legal steps to marry, yet, for all intents and purposes, they are life partners and clearly deserve this recognition?

[Chris Philp]

The hon. Gentleman is absolutely right in his assessment. The order will make sure that people who are cohabiting enjoy the same rights to the payments as people who are married or in civil partnerships provided that that cohabitation has continued for a period of two years or more.

The level of bereavement damages is set by the Lord Chancellor and is currently £15,120, having recently been increased in line with inflation. It is worth saying that those payments are of course not designed to make up for the loss of a loved one—we cannot do that—but they are a token amount payable to that limited category of people. They are also able to claim civil damages in relation to a loss caused by their status as dependants under section 1 of the 1976 Act, but that is a separate matter.

This remedial order, as the hon. Gentleman said, allows people cohabiting for at least two years to enjoy the same eligibility for bereavement damages as those who are in civil partnerships or married, thereby correcting the incompatibility identified by the Court of Appeal. We think it is reasonable to set some kind of test to test the permanence of the cohabitation arrangement, to ensure that there is a reasonable level of commitment, and we think that two years is the right period. A similar two-year qualifying period is already referenced in section 1 of the 1976 Act in relation to dependency damages claimed by cohabitants so, by picking two years, there is a degree of consistency, and it avoids the need for the courts to engage in any rather intrusive and probably distressing inquiries about the nature of the cohabiting relationship.

Occasionally, it may be the case that a cohabiting partner also has a spouse somewhere else, who has not yet been divorced. The question might arise, what happens in those circumstances? Again, with the purpose in mind of making this as simple and straightforward as possible, the order states that if that is the case, the amount of money, the damages, are simply divided equally between the two. We could make a case to say that the court should determine who is the more deserving person, the more deserving recipient but, again, that would be intrusive. For the court to try to unpick those sorts of relationships strikes us as inappropriate, hence the simple proposal that has been made.

In closing, I thank the Joint Committee on Human Rights for its scrutiny of the draft order, and for its confirmation that it corrects the incompatibility identified by the Court of Appeal in the case I referred to earlier. We welcome the Committee’s recommendation. I touched on one or two of the points that it made in its response, but this remedial order made under section 10 of the Human Rights Act 1998 corrects a deficiency, rights a wrong, and I commend it to the House.