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The Joint Committee on Human Rights would like your views on the draft Remedial Order which will extend bereavement damages to co-habiting couples.
Ms. Smith had lived in the same household as her partner for 11 years. They had not married and had not entered into a civil partnership. After 11 years of co-habitation, Ms. Smith’s partner died as a result of NHS negligence.
If Ms Smith had been married or in a civil partnership with her deceased partner, she would have been entitled to bereavement damages. Bereavement damages consist of a fixed lump sum payment (£12,980) intended to compensate for grief where death is caused by the wrongful act or omission of another person.
Under section 1A(2)(a) of the Fatal Accidents Act 1976 (FAA), bereavement damages are only available to:
Ms Smith therefore sought a declaration from the courts that section 1A(2)(a) of the FAA was incompatible with the European Convention on Human Rights (ECHR) as it discriminated against co-habiting couples.
In 2017, the Court of Appeal ruled that this section of the Act was incompatible with Article 14 (prohibition on discrimination) taken together with Article 8 ECHR (right to family life) as it denied bereavement damages to co-habiting partners who had been living together for at least 2 years before one of the partners died.
In particular, the Court considered that Parliament treated cohabitees of at least 2 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.
Unmarried and unpartnered cohabitees feel the same grief at the loss of a long-term partner as do married couples and civil partners.
The Government’s draft Remedial Order arises from the declaration of incompatibility made by the Court of Appeal in the above case (Smith v Lancashire Teaching Hospitals NHS Foundation Trust).
A Remedial Order is a form of subordinate legislation which amends or repeals primary legislation for purposes and in circumstances specified in the Human Rights Act 1998 (HRA).
On 8 May 2019, the Government laid a proposed draft Remedial Order before Parliament to remedy the discrimination.
On 16 July 2019, the Joint Committee on Human Rights published its report on the Government’s proposals. The Committee recommended that a Remedial Order be laid in draft. However, the Committee raised concerns that the bereavement damages scheme contained other forms of discrimination that ought to be remedied by the Government subject to a consultation.
Having taken into account the views of the Committee and other stakeholders, the Government laid the draft Fatal Accidents Act 1976 (Remedial) Order 2020 on 12 February.
The Government proposes to amend the statutory limit on the award of bereavement damages under section 1A FAA.
The Government proposes to make two key changes:
The entitlement of co-habiting couples to bereavement damages would only apply to cases that arise once the Remedial Order becomes law.
Reporting on the draft proposal
The Joint Committee on Human Rights is required to report to Parliament on any Remedial Order made under the Human Rights Act.
The Committee has 60 days to report to each House its recommendation as to whether the draft Remedial Order should be approved by both Houses.