UK Inquiry Tracker

Draft Fatal Accidents Act 1976 (Remedial) Order 2020: Second Report

Human Rights (Joint Committee) Closed Remedial order scrutiny

Opened: 19 Mar 2020 Closed: 18 May 2020 Parliament page

The Joint Committee on Human Rights would like your views on the draft Remedial Order which will extend bereavement damages to co-habiting couples. Background 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. … Read more The Joint Committee on Human Rights would like your views on the draft Remedial Order which will extend bereavement damages to co-habiting couples. Background 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: the wife, husband, or civil partner of the deceased; or, where the deceased is a ‘legitimate’ unmarried/unpartnered minor, to his/her parents; or where the deceased is ‘not a legitimate’ unmarried/unpartnered minor, to his/her mother. 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. Government proposals 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: to make bereavement damages available to claimants who cohabited with the deceased person for a period of at least two years immediately prior to the death; and where both a qualifying cohabitant and a spouse is eligible (e.g. separated but not divorced), the award would be divided equally. 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. Show less

1 Report

Activity timeline 1 event

18 May
2020

Report published

Fourth Report - Draft Fatal Accidents Act 1976 (Remedial) Order 2020: Second Report

Reports 1 report · click to expand

Title	HC No.	Published	Items	Response
Fourth Report - Draft Fatal Accidents Act 1976 (Remedial) Order …	HC 256	18 May 2020	0	Overdue