Damages

Peter Kyle Excerpts

Monday 15th June 2020 Commons Chamber

[Peter Kyle (Hove) (Lab)]

Labour supports this remedial order, which amends the Fatal Accidents Act 1976. We believe that it is fair and just to make bereavement damages available to cohabitees, regardless of whether they are married, in a civil partnership or not.

A mark of just how far society has progressed is that, since the Act, two other forms of legal partnership, civil partnership and same-sex marriage, have made their way into statute. However, those living together but not for whatever reason deciding to civil partner or marry have been left behind. It is time for that to be fixed, and it is long overdue that we did so, not least because the nature of this order concerns the death of a partner in situations that nobody could foresee or make provision for.

Tragically, for most people, the first time they even know that they are being treated differently from any other relationship is upon the death of a partner. Most people rightly assume that the state is there for them at times such as those, and it has been if they are married or in a civil partnership, but it is not if they are in any other equal relationship that is not recognised by law as being equal. The injustice is plain to see. Grief does not discriminate between those who are married and those who are not.

Sadly, this is an injustice that various Governments have been aware of, and yet failed to fix. The Law Commission shone a light on it a long time ago, as far back as 1999, and the previous Labour Government published a draft Bill in 2009 which was not pursued by the subsequent coalition Government. As recently as 2017, reports have urged change. It should therefore be a source of regret to Members across the House that it took the efforts of a grieving partner, via the courts, to spur the action that we see today.

Jakki Smith, an NHS worker, and John Bulloch, her prison governor partner, were in a relationship for 16 years before tragedy struck. After a fairly straightforward operation in 2011, doctors failed to register the serious infection to which John lost his life. Had they been spouses or civil partners, Jakki would have received a fixed sum of £12,980. Instead, she received nothing.

The simple but brutal unfairness of this policy is best explained by Jakki Smith herself, in an interview she gave to The Guardian three years ago. She said:

“If you are living together the government classes you as a couple for the purpose of payments like council tax and jobseeker’s allowance, so why not when it comes to this?”

She took this argument to the High Court and lost, despite Justice Edis calling for a change to the law in his ruling. A year later, in 2017, the Court of Appeal found in her favour. The Court considered that, as 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 purposes of the dependency damages, there was no justification for treating co-habiting couples differently for the purpose of bereavement damages.

Parliament owes a debt of gratitude to Jakki Smith, for without her tenacity it is fair to assume that the changes to the law would not be happening today. The fact that she persevered to the extent that she did, fully in the knowledge that a ruling in her favour would not deliver any financial benefit but instead save future generations of grieving partners the same injustice she endured, is a testament to her. It is also a poignant legacy to her partner John.

The Opposition recognise that the method of updating the law presented to the House today has undergone scrutiny by the Joint Committee on Human Rights. It concluded that the remedial order before us today adequately addresses the judgment of the Court of Appeal. It does so by extending the bereavement damages scheme to co-habiting couples who have been living together for at least two years prior to death. This thereby removes the unlawful discrimination in section 1A of the Fatal Accidents Act 1976, identified by the Court of Appeal.

We agree with the Joint Committee’s conclusion and therefore support this remedial action. However, we also support the Committee’s call for a wider review of bereavement damages. The language used to describe co-habiting couples still intimates towards married or civil partnered couples. The Joint Committee suggested an alternative way of describing these relationships—namely, as

“two people living as partners in an enduring relationship”.

Why did the Government decide against that description, which better reflects cohabitees and honours the status they have in a valued partnership, on its own terms?

The Committee highlighted concerns that the death of a partner of more than two years who was still married leads to the splitting of compensation. Even despite the Divorce, Dissolution and Separation Bill, currently going through Parliament, some divorces take a very long time to complete. This could lead to unfairness and compound the grief of a surviving partner. Can the Minister reassure the House that this was given due consideration?

Section 1A of the Fatal Accidents Act still refers to children of cohabitees as “illegitimate”. Government should use every opportunity to remove such stigmatising language from statute as they update legislation. Why was this straightforward recommendation not acted on? Other recommendations were made on the impact that the death of a co-habiting partner has not just on the remaining partner but on the broader family, too.

Bereavement and grief are profound moments that impact on us all, yet we discuss and debate this too little. Taken in isolation, this remedial order is necessary, but sadly it is also a missed opportunity for a more comprehensive assessment of the bereavement damages scheme and broader issues relating to bereavement in the 21st century. I hope we can address this at a different time.