Damages

– in the House of Commons at 8:43 pm on 15th June 2020.

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Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for the Home Department 8:43 pm, 15th June 2020

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.

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Human Rights), Shadow DUP Spokesperson (Health)

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?

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for the Home Department

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.

Photo of Peter Kyle Peter Kyle Shadow Minister (Justice) 8:47 pm, 15th June 2020

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.

Photo of Chris Philp Chris Philp The Parliamentary Under-Secretary of State for the Home Department 8:54 pm, 15th June 2020

I should have started my remarks earlier by welcoming Peter Kyle to his place on the Front Bench. This is well deserved and long overdue, and I look forward to having many exchanges like this in the months, and I hope, for both of us, years ahead. I welcome his support for this remedial order, and I add my thanks to Jakki Smith for her tenacity and bravery in bringing forward the court case as she did. I am sure that the whole House is grateful to her for the courage that she showed, and I concur with the hon. Gentleman’s remarks a little earlier.

The hon. Gentleman made one or two points on the remedial order, including on the description of cohabiting partners. The language has been kept as it is for reasons of consistency with section 1. We thought it would be potentially confusing and inconsistent if we adopted different definitions in section 1(a) as compared with section 1. There is a more general point that touches on that issue and on others that he raised in his remarks, relating, for example, to the stigmatising language that he mentioned. The remedial orders are strictly designed to remedy the deficiency. We did not want to stray more widely beyond that, but as he said, I am sure that opportunities will arise to debate these important issues about bereavement and loss. Those are topics on which the whole House will often agree. I commend this order to the House.

Question put and agreed to.

Resolved,

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

Photo of Eleanor Laing Eleanor Laing Deputy Speaker and Chairman of Ways and Means

I could suspend the House, but I really do not think it is necessary if Members promise me that they will swiftly exit without stopping near any other Members. Let us proceed.