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

We welcome the Government’s action in laying the draft Remedial Order to remedy the incompatibility in the Fatal Accidents Act 1976 with the Convention right to a family life and the prohibition against discrimination, and to make the necessary consequential amendments that follow from those changes. (Paragraph 7) Procedural requirements

We are grateful for the information provided by the Department as part of the “required information”. We note that since the draft Remedial Order was laid, the outbreak of the Covid-19 pandemic has resulted in delays to the legislative agenda. We consider that the pressures on the legislative timetable are compelling reasons for using the remedial order powers.

However, we reiterate our regret that reform has taken so long. The Smith judgment was handed down by the Court of Appeal on 7 November 2017 and the Remedial Order will only apply to causes of action which accrue on or after the day on which the Order comes into force. The longer the delay, the more individuals who will not receive bereavement damages due to discrimination. We also note that, in a report published in November 1999, the Law Commission expressed the view that “the exclusion of cohabitants from the list of those able to recover damages was contrary to the premise that the damages should be available to those closest to the deceased, and most likely to be aggrieved by the death.” We reiterate that it is unfortunate it has taken twenty years and a declaration of incompatibility to produce Government action to remedy this discrimination.

We consider that the procedural requirements of the HRA have been met and the Government’s reasons for proceeding by way of remedial order rather than by a Bill are sufficiently compelling for the purpose of section 10(2) of the HRA. Further, remedying the incompatibility by way of a non-urgent order strikes a reasonable balance between avoiding any further undue delay on the one hand, and the need for proper parliamentary scrutiny, on the other. (Paragraph 25) Remedying the incompatibility

The Court of Appeal made a “declaration of incompatibility with Article 14 (ECHR) in conjunction with Article 8 in respect of section 1A of the FAA in that it excludes 2 years + cohabitees”. The draft Remedial Order inserts “cohabiting partners” into section 1A of the FAA, as defined in section 1(3)(b) of the FAA. In our view, the draft Remedial Order adequately addresses the judgment of the Court of Appeal, by extending the bereavement damages scheme to cohabiting couples (who have been living together for at least two years prior to the death), thereby removing the unlawful discrimination identified by the Court of Appeal. However, the Government has adopted a narrow approach to remedying the incompatibility. In our previous report, we raised a number of other matters for the Department’s 18 Draft Fatal Accidents Act 1976 (Remedial) Order 2020: Second Report consideration. We are disappointed to see that the Government has rejected each of our recommendations, particularly where we have identified persisting discrimination against cohabiting couples. We reiterate our key concerns below and ask the Government to reconsider its position.

Whilst we consider the draft Remedial Order adequate to remedy the specific incompatibility identified in the case of Smith, we are disappointed that the Government did not choose to use its remedial order powers to make further consequential, supplemental, or incidental amendments to ensure that the bereavement damages scheme does not perpetuate further discrimination or stigmatisation in relation to cohabitees and their children. We are particularly concerned that section 1A of the FAA will continue to make a distinction between “legitimate” and “illegitimate” children. Not only is this language inappropriate, it perpetuates the discrimination against cohabiting fathers who will not be eligible for bereavement damages following the death of their child, simply because this child was born outside of wedlock or civil partnership. We trust that the Government will remedy the outstanding discrimination at the earliest opportunity. Finally, we recognise that a number of our recommendations fall outside of remedial order powers and would require primary legislation. We reiterate our recommendation that the Government should undertake a consultation on wider reform to this scheme to ensure it is fully compliant with human rights law and reflects the reality of modern family life. (Paragraph 39) Draft Fatal Accidents Act 1976 (Remedial) Order 2020: Second Report 19 Declaration of Interests43 Lord Brabazon of Tara • No relevant interests to declare Lord Dubs • No relevant interests to declare Baroness Ludford • No relevant interests to declare Baroness Massey of Darwen • No relevant interests to declare Lord Singh of Wimbledon • No relevant interests to declare Lord Trimble • No interests declared 43 A full list of Members’ interests can be found in the Register of Lords’ Interests: http://www.parliament.uk/ mpslords-and-offices/standards-and-interests/register-of-lords-interests/ 20 Draft Fatal Accidents Act 1976 (Remedial) Order 2020: Second Report