Damages

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.

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 cohabiting 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?

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 establish 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, picking two years, provides 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, is 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.

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 become civil partners 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.

I should have started my remarks earlier by welcoming the hon. Member for Hove (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, opportunities will arise no doubt 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.

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.