Swift v Secretary of State for Justice

The Claimant in this litigation seeks a declaration from the court, in accordance with s.4 of the Human Rights Act 1998, that s.1(3)(b) of the Fatal Accidents Act 1976 (as amended) (“the FAA”) is incompatible with her rights under the European Convention on Human Rights and Fundamental Freedoms (“the Convention”) specifically with reference to Articles 8 and 14, or alternatively under Article 8 on its own.

The provisions of the FAA do not permit the Claimant to bring a claim under s.1 for “loss of dependency” against Davey Markham Ltd, which admits responsibility for the death at work of Alan Winters, with whom she was then living as her partner, on 15 July 2008. By contrast, their son (also Alan) who was born after Mr Winters’ death was able to claim a remedy as a dependent child. His claim, I was told, settled at approximately £105,000, whereas the Claimant would wish to seek over £400,000 in compensation. Yet the statutory scheme prevents her from doing so for reasons which legislators and law reformers have, for many years, seen as anomalous. She is not permitted to sue even if she could discharge the burden of proving dependency at the date of the relevant death.

There is contained in s.1 of the FAA an exhaustive list of persons entitled to make a claim in respect of loss of financial dependency. It is provided by s.1(3)(b) that a claim may be brought by the survivor of a couple who had been living “as husband and wife” (i.e. in a quasi-marital relationship), but only in those cases where there has been cohabitation for two years or more prior to the date of death. The Claimant had only been living with Mr Winters for approximately six months prior to his death.

Spouses or civil partners are included in the list of persons entitled to make a claim, as contained in s.1 of the FAA, without limitation of time. The stipulation for a two year period of cohabitation is confined to those who have been living “as husband and wife”. Against that background, the Claimant contends that s.1(3)(b) is incompatible with her Convention rights under Article 14 on the basis (a) that she has been treated less favourably than would a person who had cohabited with the deceased partner for two years or more before the death and (b) that the difference in treatment cannot be supported by any objective justification. She suggests that no minimum time period can be justified because any couple living together “as husband and wife” would, by definition, have enjoyed “family life” and a “stable relationship”, so as to require a right of action to be available under the FAA.

It is recognised that Article 14 is a “parasitic” right, in the sense that it can only become applicable in circumstances falling within the ambit of another substantive Convention right: see e.g. Şerife Yiğit v Turkey (Appn No 3976/05. Grand Chamber, 2 November 2010). That is why reliance is placed on the Claimant’s rights under Article 8. The claim under Article 14 depends, therefore, upon her establishing that a family life had been enjoyed, or had arguably been so enjoyed, with Mr Winters, and that the facts fall within the scope of Article 8 for that reason.

Although familiar, it is convenient to set out the terms of the two relevant articles under consideration:

Article 8:

“1.

Everyone has the right to respect for his private and family life, his home and his correspondence.

2.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

Article 14:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Mr Weir QC explained, in the course of his submissions on the Claimant’s behalf, that the free-standing claim based on Article 8 would only be likely to come into play in the event that the court rules that her circumstances are not embraced within the concept of “other status” under Article 14.

Although the Secretary of State had not admitted in his defence the Claimant’s financial dependence upon Mr Winters, he is now prepared to accept that she was in fact dependent upon him during the period of time when they were living together “as husband and wife”. Before turning to the detailed statutory provisions, and the history of reform proposals over recent years, I can summarise the case advanced on behalf of the Secretary of State which is to the effect that the claim should be dismissed for one or more of three reasons:

I turn first to the provisions of the FAA. It concerns circumstances where someone’s death has been caused by the wrongful act, neglect or default of another person. There are conferred by s.1(1) limited rights to claim damages against the tortfeasor upon individuals who are in a qualifying relationship with the deceased. It is to be noted that the scheme represents, therefore, a departure from the usual position in English law whereby only an immediate victim of a tort may seek compensation in respect of it. The Law Commission adverted to this point in its report Claims for Wrongful Death, dating from 1999, and observed that “This exception requires a powerful justification”.

There are two causes of action provided for in the FAA of which the first, governed by ss.1 and 3, is the more directly relevant to the present claim. The material provisions of s.1 are as follows:

“1.

– Right of action for wrongful act causing death.

(1)

If death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.

(2)

Subject to section 1A(2) below, every such action shall be for the benefit of the dependants of the person (‘the deceased’) whose death has been so caused.

(3)

In this Act ‘dependant’ means –

(a)

the wife or husband or former wife or husband of the deceased;

(aa) the civil partner or former civil partner of the deceased;

(b)

any person who –

(i)

was living with the deceased in the same household immediately before the date of the death; and

(ii)

had been living with the deceased in the same household for at least two years before that date; and

(iii)

was living during the whole of that period as the husband or wife or civil partner of the deceased;

(c)

any parent or other ascendant of the deceased;

(d)

any person who was treated by the deceased as his parent;

(e)

any child or other descendant of the deceased;

(f)

any person (not being a child of the deceased) who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage;

(fa) any person (not being a child of the deceased) who, in the case of any civil partnership in which the deceased was at any time a civil partner, was treated by the deceased as a child of the family in relation to that civil partnership;

(g)

any person who is, or is the issue of, a brother, sister, uncle or aunt of the deceased.”

In so far as they are relevant for present purposes, the provisions of s.3 are as follows:

“3.

– Assessment of damages.

(1)

In the action such damages, other than damages for bereavement, may be awarded as are proportioned to the injury resulting from the death to the dependants respectively.

…

(4)

In an action under this Act where there fall to be assessed damages payable to a person who is a dependant by virtue of section 1(3)(b) above in respect of the death of the person with whom the dependant was living as husband or wife or civil partner there shall be taken into account (together with any other matter that appears to the court to be relevant to the action) the fact that the dependant had no enforceable right to financial support by the deceased as a result of their living together.

(5)

If the dependants have incurred funeral expenses in respect of the deceased, damages may be awarded in respect of those expenses.”

Although compensation under these provisions is regularly described as being for “loss of financial dependency”, it is not necessary to prove actual dependency upon the deceased. It will suffice that the relationship fell within one of the categories described in s.1(3) of the FAA. So too, a claim may be made for the loss of any benefit which the claimant reasonably expected to receive from the deceased, even if not actually “dependent” upon the deceased because of the receipt of that benefit. These examples illustrate why the description “loss of financial dependency” can sometimes be misleading.

Mr Weir points to the narrow terms of the definition of “dependant” in support of his contention that the legislature intended, specifically, to protect family members in relation to rights or interests arising out of the relevant relationship during the lifetime of the deceased.

I referred earlier to a second cause of action made available by the FAA. That relates to bereavement and its provisions have some relevance to the submissions developed in support of the present claim. It is provided by s.1A as follows:

“1A. – Bereavement.

(1)

An action under this Act may consist of or include a claim for damages for bereavement.

(2)

A claim for damages for bereavement shall only be for the benefit –

(a)

of the wife or husband or civil partner of the deceased; and

(b)

where the deceased was a minor who was never married or a civil partner –

(i)

of his parents, if he was legitimate; and

(ii)

of his mother, if he was illegitimate.

(3)

Subject to subsection (5) below, the sum to be awarded as damages under this section shall be £11,800.

…

(5)

The Lord Chancellor may by order made by statutory instrument, subject to annulment in pursuance of a resolution of either House of Parliament, amend this section by varying the sum for the time being specified in subsection (3) above.”

These provisions have been touched upon because, although she does not claim to be entitled to bereavement damages, the Claimant does not suggest that s.1A is also contrary to any right under the Convention. The Secretary of State relies upon this as being logically inconsistent. Mr Weir argues that these two regimes are not entirely analogous (because one relates to automatic entitlement and the other does not) but, in any event, the argument is peripheral.

It is helpful to have in mind, for the purposes of submissions made by counsel on both sides, something of the background of the proposals for reform made over the years in relation to the provisions contained in the FAA.

In its original form the FAA was enacted in 1976. At first, no provision was made for loss of dependency on the part of a cohabitant. There was a report published in March 1978 on Civil Liability and Compensation for Personal Injury (the Pearson Report). There was no unanimity at that stage as to an entitlement to claim damages for loss of dependency on the part of a cohabitant: no recommendation was made either way.

Following the publication of that report, a bill was presented to Parliament, which in due course became the Administration of Justice Act 1982. It was this which introduced s.1(3) of the FAA as it now stands. Lord Hailsham, then Lord Chancellor, proposed at its second reading in March 1982 an amendment which, while increasing the range of dependants who would be entitled to claim in respect of fatal injury, did not extend to cohabitants. At the committee stage, however, an amendment was proposed to cover dependants. It was recognised that it was anomalous that an illegitimate child should have a claim under the FAA whereas the mother would not. Nevertheless, for reasons explained by Lord Hailsham in May 1982, it was thought necessary to include “some degree of permanence” about the relevant relationship, and that is why the requirement for it to have lasted for at least two years was included.

By 1999, the Law Commission was proposing that a further class of claimants should be entitled to similar protection and the policy was explained in these terms (in the Executive Summary of its Report):

“To modernise the existing legislation, so as to bring this area of the law into line with the values of modern society. We also seek to render the law fairer and more certain than it is at present.

The present law arbitrarily excludes from an entitlement to claim compensation for financial loss some people who were financially dependent on the deceased. Our proposed reform would remove that anomaly by adding a generally worded class of claimant to the present fixed list.”

The draft wording would have included the following class of claimants:

“Any person not falling within any of paragraphs (a) to (g) above who was being wholly or partly maintained by the deceased immediately before the death or who would, but for the death, have been so maintained at a time beginning after the death.”

On the concession made by the Secretary of State in this case, it becomes clear that this amendment would have directly assisted the Claimant.

There was then a gap of some years before the Department of Constitutional Affairs (as it then was) produced a consultation paper in May 2007, which was entitled The Law on Damages. This contained a recommendation reflecting that of the Law Commission in its 1999 Report. The view was expressed that the inclusion of cohabitants of less than two years duration would remove the injustice that could be caused by the current situation. A “floodgates” argument was addressed, but it was concluded that the proposal would not lead to a host of unmeritorious claims as, in each case, dependency would have to be proved.

In July 2009 the Ministry of Justice published its response to the 2007 consultation paper. The then government supported the proposal to extend the list of potential claimants. A distinction was recognised between claims for loss of dependency, on the one hand, and bereavement damages on the other, since bereavement damages represented an automatic award. In that instance, a cohabitant would have to fulfil a two year qualification period. In due course, in December 2009, a draft Civil Law Reform Bill was placed before Parliament for pre-legislative scrutiny. The proposal was adopted whereby a person would be able to claim if he or she was being maintained by the deceased immediately prior to the death.

As late as November 2010, after the change of government, the House of Commons Justice Committee expressed its approval. Then, on 10 January 2011, the Ministry indicated that a decision had been taken not to proceed with the bill. A ministerial statement of the same date indicated that “in the present financial situation we need to focus our resources on delivering our key priorities”. It thus seems reasonably clear that the reasons were not based upon either legal principle or a change of view with regard to the public policy considerations involved.

Since these proposals for reform have not been enacted, despite widespread support, the present Claimant still finds herself unable to make a claim for loss of dependency. It is not now in dispute that she was a person “being maintained by the deceased immediately before the death”. It is against this background that she now seeks to establish that the present legislative framework is inconsistent with her Convention rights, as I have already described. It is worthy of note, however, that the draft bill would not have had the effect for which the Claimant now argues in these proceedings. It would not have removed the two year requirement contained in s.1(3)(b) of the FAA. That requirement would still have served the purpose of defining a relationship of sufficient stability to warrant an irrebuttable presumption of dependency. Those who had cohabited for less time would have to prove dependency at the period immediately prior to the death. It would seem to follow, therefore, that even if the bill had been enacted, its provisions might well have been subject to a similar challenge of incompatibility – because of the retention of the requirement for a two year period of cohabitation, as contained in s.1(3)(b). As I have pointed out, it would also have been the position under the draft bill that cohabitants would be able to qualify for bereavement damages, for the first time, but only where there had been a two year qualifying period.

It has been emphasised on behalf of the Secretary of State, in the present proceedings, that there has never been any suggestion either from the Law Commission or in the legislature that the proposed reforms were necessary in order to achieve compliance with the European Convention. Indeed, the Secretary of State submits that the current statutory framework is compliant (and, for that matter, so would be the reformed regime, as proposed in the draft bill). It is suggested that either of these statutory frameworks would fall within the wide margin of discretion to which the legislature is entitled in this area of social policy. I turn next to address the two lines of argument on incompatibility.

First, it is submitted by the Claimant that “the issue of financial dependency is plainly intimately connected with family life” and that accordingly the facts now before the court fall within the ambit of Article 8.

Mr Coppel argues, however, that it is necessary to address the claim in the context of the approach taken hitherto, and specifically in Strasbourg, towards the scope of the positive obligations imposed on a member state. The court is not here concerned with a decision by the state which itself interferes with private or family life. By contrast, what is in issue is whether the United Kingdom can be said to be under an obligation to extend the range of persons who can make a claim for loss of dependency against a tortfeasor.

In general terms, a cautious approach is adopted towards any claim that Article 8, in particular, imposes a positive obligation upon a member state. This was re-emphasised recently, for example, in the case of Mosley v UK (2011) 53 EHRR 30, at [107]:

“The Court emphasises the importance of a prudent approach to the State’s positive obligations to protect private life in general and of the need to recognise the diversity of possible methods to secure its respect (Karako v Hungary, No. 39311/05, paragraph 19, 28 April 2009). The choice of measures designed to secure compliance with that obligation in the sphere of the relations of individuals between themselves in principle falls within the Contracting States’ margin of appreciation … ”

Accordingly, in the context of positive obligations, it is necessary to show that there is a “direct and immediate link” between the particular measure under challenge and private or family life: see e.g. Draon v France (2006) 42 EHRR 40 at [106]. Furthermore, it is not only in Strasbourg that this restrictive approach is adopted. It is necessary to take account, for example, of the judgments of the Supreme Court in R (McDonald) v RB Kensington and Chelsea [2011] PTSR 1266, where at [15] Lord Brown observed:

“There is no dispute that in principle it [Article 8] can impose a positive obligation on a state to take measures to provide support and no dispute either that the provision of home-based community care falls within the scope of the article provided the applicant can establish both (i) ‘a direct and immediate link between the measures sought by an applicant and the latter’s private life’ – Botta v Italy (1998) 26 EHRR 241, paras 34 and 35 – and (ii) ‘a special link between the situation complained of and the particular needs of [the applicant’s] private life’: Sentges v The Netherlands (2003) 7 CCLR 400, 405.”

It is thus necessary to pause and focus on the notion of “a direct and immediate link” with private or family life. Such a link may be found in circumstances where domestic law is in conflict with an important aspect of personal identity or where the activities involve a most intimate aspect of private life: see e.g. Mosley v UK, at [109]. It is submitted on behalf of the Secretary of State, with considerable force, that this is far removed from the situation where a dispute arises, as a matter of social policy, as to how far to extend the category of persons who are entitled, exceptionally, to make a claim against a tortfeasor.

Mr Coppel has cited instances where the court in Strasbourg has found the necessary direct and immediate link so as to justify a positive obligation on the relevant member state to take steps to protect Article 8 rights. There is the need to protect people from sexual abuse; the legal recognition of transsexuals; the requirement to recognise a voluntary change of name; the establishing of paternity or maternity; the provisions of facilities for those who are sick or disabled; and the requirement to provide access to official information. In Draon v France, cited above, at [115]-[116], it was concluded that there had been no breach of Article 8 in circumstances where the court was concerned with the breadth of a tortious remedy, as provided for in domestic law, in respect of a disability in a child undetected during pregnancy.

Having regard to this well established approach to positive obligations, I find it difficult to see how the present circumstances could be said to give rise to a “direct and immediate link” with private or family life. I am concerned here with the appropriate extent of the categories of persons entitled to make a claim in damages for the death of a family member. As Mr Coppel rightly points out, the FAA is concerned with the relationship between a claimant and a person who has wrongfully caused the death of a family member (as opposed to the relationship between the claimant and any member of his or her family).

Mr Weir has argued that it is wrong to regard this as a “positive obligations case”, since it concerns a situation where the state has voluntarily provided a regime whereby dependants are, subject to certain conditions, enabled to sue tortfeasors for economic loss. It is said that in such circumstances there is an obligation to ensure that the scheme does not allow any unacceptable discrimination. This argument, if valid, would render unnecessary any requirement to establish a “direct and immediate link”.

It is, nonetheless, inherent in the Claimant’s argument that she is contending for a positive obligation on the part of the UK government to accord her (and other cohabitants for less than two years) a remedy under the FAA. In this respect, therefore, I would uphold Mr Coppel’s submission. It is in any event necessary for the Claimant to demonstrate that the circumstances fall within the ambit of Article 8.

In determining whether or not a case falls within the ambit, it may be helpful to have in mind a passage from the speech of Lord Bingham in M at [5]:

“ … I do not think the enhanced contribution required of Ms M impairs in any material way her family life with her children and former husband, or her family life with her children and her current partner, or her private life. No doubt Ms M has less money to spend than if she were required to contribute less … But this does not impair the love, trust, confidence, mutual dependence and unconstrained social intercourse which are the essence of family life, nor does it invade the sphere of personal and sexual autonomy which are the essence of private life. … ”

Mr Weir submits that Lord Bingham was in a minority and that I should not, in any event, be guided by this passage since it is not compatible with other cases. Reference was made to other speeches in the case: see [19] (Lord Nicholls), [108] (Lady Hale) and [127] (Lord Mance). Those passages recognise that the statutory scheme in question was intended to afford protection to Ms M’s new family life. Yet, it is at least clear that to fall within the ambit of Article 8 the provisions must go beyond merely having an incidental impact on family finances.

I referred earlier to the Claimant’s broad submission that the issue of financial dependency is intimately connected with family life. In this very specific context, however, such a general proposition may not suffice for the Claimant to establish her case. It is true that the FAA affords a claim against tortfeasors by reference to dependency prior to the victim’s death but, as Mr Coppel points out, it is a non sequitur to conclude for that reason that the provisions fall within the ambit of Article 8. First, the family relationship giving rise to the statutory cause of action will inevitably have come to an end before the question arises. Secondly, the Claimant has a continuing family life, involving her son and also her daughter from a previous relationship, but sadly that no longer involves Mr Winters. The fact that a claim under the FAA might have improved the current family’s finances does not of itself bring the case within Article 8, as the authorities clearly show. The non sequitur would perhaps be even clearer in the case of a claimant who had cohabited with the relevant deceased prior to death but had no children (and might, or might not, have acquired a new partner). Her claim would arise (on the Claimant’s argument) from the previous relationship, but it could hardly be said to relate to any current family or private life for the purposes of Article 8.

Mr Weir relied on the Yiğit case, not least because it provides an example of a wife claiming pension and health insurance benefits which should have accrued after her husband’s death. These had been denied to her because her marriage had not been entered on the civil status register. The European Court held that Article 8 was applicable in those circumstances, even though her claimed entitlement only arose after death had terminated the family relationship. The reasoning was explained at [95] and included the following passage:

“Whilst inheritance rights are not normally exercised until the estate owner’s death, that is at a time when family life undergoes a change or even comes to an end, this does not mean that no issue concerning such rights may arise before the death: the distribution of the estate may be settled, and in practice fairly often is settled, by the making of a will or of a gift on account of a future inheritance; it therefore represents a feature of family life that cannot be disregarded. … ”

What appears to be critical to that reasoning process is the fact that the inheritance process represents a continuum part of which occurs before death and during the subsistence of family life. That is apparent from the word “therefore” in the last sentence I have quoted. It was because issues concerning inheritance rights had arisen before death that it was recognised that Article 8 was engaged. This is not the case with the statutory rights accorded by the FAA. The statute only comes into effect following a death and thus inevitably after any relevant family relationship has come to an end.

I turn to consider briefly some of the other cases relied upon by the Claimant in the context of “ambit”.

The case of PB and JS v Austria, App. no. 18984/02, 22 July 2010, was concerned with the scope of state benefits (and, in particular, whether it should extend to same sex partners). The statutory measure concerned had as its purpose, through the extension of insurance cover to a partner, the improvement of the current family situation of the civil servants involved in the occupational benefits scheme. It was “ … intended to improve the principally insured person’s private and family situation”. That was the reason why the extension of cover was held, at [33], to fall within the ambit of Article 8.

Also, in Petrovic v Austria (2001) 33 EHRR 14, the court was concerned with the provision of state benefits (a maternity leave allowance not available to men taking paternity leave). There again, the purpose of the allowance was to promote ongoing family life. It necessarily affected the way in which it was organised, since it would enable one of the parents to stay at home and look after the children.

In M v Secretary of State for Work and Pensions [2006] 2 AC 91, the House of Lords was concerned with a case where the claimant was required to make child maintenance payments. The calculation of the payments was designed to avoid any unduly adverse impact on a new relationship she had entered into and also to achieve a reasonable balance between the new relationship and the needs of the claimant’s children. It was not a case, such as the present, where the court is required to apply the cautious test appropriate to determining a member state’s positive obligations. Even there, however, the impact on the Claimant’s ongoing family life was not such as to lead the House of Lords (with one exception) to the conclusion that Ms M’s complaint fell within the right to respect for family and private life under Article 8.

The Claimant’s contention on the present facts would require this court to go considerably beyond the scope of any of the authorities, as they stand at the moment, whether here or in Strasbourg. Mr Coppel has therefore reminded me of the need to comply with the so-called Ullah principle, whereby a domestic court should attempt to keep pace with, but not go beyond, the Strasbourg court itself: see R (Ullah) v Special Adjudicator [2004] 2 AC 323, at [20], and R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484, at [49] and [63].

On the first issue, I can thus state my conclusions as follows:

Since I have rejected the Claimant’s arguments, it follows that there is no room for her free-standing claim based on Article 8.

I turn next to the arguments on the concept of “other status”, as contained in Article 14. The list which it contains was intended to be illustrative and not exhaustive, as is shown by the use of the words “any ground such as … ”: Clift v UK, App. no. 7205/07, 13 July 2010.

In this instance, the basis of the complaint is that there is discrimination founded upon length of cohabitation. The mere fact of having lived with someone for two weeks, two months or two years does not confer status; nor would it represent a personal characteristic. The Claimant is seeking, through this argument, to convert the reason for her falling outside any of the categories listed in s.1(3)(b) of the FAA into being in itself a status or personal characteristic.

That is a slippery slope, since such a tactic could be adopted by anyone who wished to undermine distinctions drawn by the legislature in any context of conferring or withholding benefits or imposing obligations. It is appropriate to recall the observations of Lord Bingham in Clift, cited above, at [28]:

“I do not think that a personal characteristic can be defined by the differential treatment of which a person complains.”

I would emphasise the word “defined” in that passage. There may well be circumstances where the notion of the differential treatment will overlap closely with a status or personal characteristic. It is obviously true that (say) being married, or over 18 years of age, could be relevant to status; so too, having red hair, or being over or under a certain height, could each be regarded as a personal characteristic. It is important, however, to guard against delineating a status or personal characteristic simply by reference to the differential treatment. As Lord Hope put it in Clift at [45]:

“Each of the specific grounds of discrimination listed in article 14 shares one feature in common. That is that they exist independently of the treatment of which complaint is made. In that sense they are personal to the complainant … ”

Living with someone for six months, or some other specified period of time, or (say) catching a certain train every morning, may be descriptive of behaviour, but could hardly be recognised as “characteristics”. It has been said that status or personal characteristics would generally be more concerned with who a person is, rather than with what he or she does: see e.g. R (RJM) v Work and Pensions Secretary [2009] 1 AC 311, at [5] and [45]. This may not provide a completely water-tight test. For example, holding a military rank may confer status, but it is largely attributable to achievements rather than innate attributes. But it is an illuminating distinction nevertheless. It is not discriminatory to prevent a passenger (or customer) from travelling in a first class compartment without the appropriate ticket. He is not treated as a second class citizen merely because he is only choosing to pay the standard fare.

A not dissimilar argument, based on Article 14, was raised before Newman J in Secretary of State for Defence v Hopkins [2004] ACD 58. He was required to consider a possible class or group defined by reference to disabled former members of the armed forces, having unmarried dependants living with them at the date of the application, but who had not been living with them six months prior to the commencement of service. As to the proposed grounds for discrimination, the learned judge observed at [30]:

“The relevant difference in treatment derives from the need for the unmarried relationship involving cohabitation to have existed six months before the applicant’s service began. I cannot see that this gives rise to any issue of status for unmarried applicants.”

Mr Weir submits that Newman J was “wrong” and that his observations are not binding on me in any event. He also argues that they have been overtaken by later jurisprudence and, in particular, Clift v UK. It was there recognised in Strasbourg that the status or personal characteristics, in order to qualify under Article 14, are not required to be innate or inherent such as gender or race. Indeed, so much is obvious from the wording of Article 14 itself, which includes examples such as language, political opinions and property. The case concerned a distinction drawn between, on the one hand, prisoners serving fixed terms of less than 15 years and “lifers” and, on the other, those serving fixed terms of 15 years or longer. In the case of the latter, they could only be released if there was not only a recommendation from the Parole Board, but also approval from the Home Secretary. The court (unlike the House of Lords) held that being categorised as a long term prisoner, serving more than 15 years, could be taken to confer status and that the applicant was in an analogous position to that of other prisoners treated more favourably. Following that reasoning through, however, any such status would be conferred (like that of “lifer”) upon sentencing and clearly defined. It is difficult, however, to accord status to someone by reference to her not having lived with a disabled serviceman for six months prior to the commencement of his service. On the facts of the Hopkins case, which are in some ways analogous to the instant case, the conclusion of Newman J seems to me entirely understandable. Nor would I accept that the reasoning has been subsequently undermined.

As I have already noted, the Secretary of State relies in the alternative upon any such discrimination being objectively justified. That is to say, even if the statutory provision contained in s.1(3)(b) were to be taken as giving rise to difference of treatment on the basis of “other status”, within the meaning of Article 14, he would seek to support that difference in treatment as being objectively justified. Although strictly unnecessary to do so, in the light of my earlier conclusions, I need to address the arguments for the sake of completeness.

It would be necessary to consider in such circumstances whether the distinction drawn pursued a legitimate aim and/or whether there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. The matter needs to be judged as at the present time rather than by the circumstances prevailing in (say) 1976 or 1982: see e.g. Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, at [62].

Mr Coppel set his submissions in the context of the need to afford Parliament a wide margin of discretion. He gave five reasons.

He began by making reference to the recent decision of the Supreme Court in Humphreys v The Commissioners for Her Majesty’s Revenue and Customs [2012] UKSC 18 at [18]-[19], where Lady Hale (with whom the other members of the court agreed) made reference to applying a test of whether or not a case was one “of discrimination on one of the core or listed grounds”, since this might make a difference. She went on:

“In R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37, [2006] 1 AC 173, both Lord Hoffmann and Lord Walker drew a distinction between discrimination on grounds such as race and sex (sometimes referred to as ‘suspect’) and discrimination on grounds such as place of residence and age, with which that case was concerned. But that was before the Grand Chamber’s decision in Stec [v United Kingdom (2006) 43 EHRR 1017]. It seems clear from Stec, however, that the normally strict test for justification of sex discrimination in the enjoyment of the Convention rights gives way to the ‘manifestly without reasonable foundation’ test in the context of state benefits. The same principles were applied to the sex discrimination involved in denying widow’s pensions to men in Runkee v United Kingdom [2007] 2 FCR 178, para 36. If they apply to the direct sex discrimination involved in Stec and Runkee, they must, as the Court of Appeal observed (para 50), apply a fortiori to the indirect sex discrimination with which we are concerned.”

Mr Coppel emphasised that the difference in treatment in the present case is not based on one of the “suspect” grounds of discrimination but merely upon the length of cohabitation. Accordingly, it is appropriate to apply a lesser, and less “suspicious”, scrutiny to the provisions of s.1(3)(b) of FAA. That is because of the wide margin of discretion to which elected governments are entitled in a democratic society: Carson [2006] 1 AC 173 at [14] and at [55] et seq.

Secondly, it is obvious that the difference in the present case involves a matter of social and economic policy: views may differ significantly as to what is reasonable. It is thus appropriate to give special weight to the role of domestic policy-makers and to the wide margin of appreciation permitted in that context: see e.g. Draon v France, cited above, at [108]; James v United Kingdom, 21 February 1986, Series no. 98, at [46]; Marcic v Thames Water Utilities [2004] 2 AC 42, at [41]-[42], [71], [84] and [87]. Although Mr Weir drew my attention to a passage in Yiğit, at [70], where emphasis was given to the breadth of the margin specifically in those cases where it is the financial resources of a member state that are involved (e.g. in relation to the grant or withholding of state benefits), I am satisfied that the generous margin is not confined to such circumstances. There are naturally other areas of social policy where it is appropriate to accord particular respect to the democratic process within the relevant member state.

In citing his third reason, Mr Coppel returned to the theme already touched upon, of whether there is a positive obligation on member states to provide legal remedies as between individuals, where again the margin of appreciation is to be regarded as broad. I need not rehearse those arguments again, having accepted his submissions in the previous context.

Mr Coppel pointed out, for the purposes of his fourth argument, that it is sometimes legitimate to enquire whether the legislative framework under challenge, here concerned with remedies in respect of fatal accidents, could be said to lag behind the majority of the contracting states (currently 47 in number) or to require amendment in order to comply with an international convention. Where there is no effective “consensus” on such a matter, the margin of appreciation afforded to individual member states will remain wide: see e.g. Evans v United Kingdom, Grand Chamber, no 6339/05. at [77]; X, Y and Z v United Kingdom, 22 April 1997, at [44]; Mosley v United Kingdom, cited above, at [108]-[110]. Some evidence was produced on the Claimant’s behalf in relation to five states (France, Germany, Italy, Belgium and Spain), but it was rather superficial, and in some instances equivocal. It certainly could not be said to establish a consensus among member states.

Fifthly, Mr Coppel again mentioned the Stec formulation, referred to by Baroness Hale in the passage cited above from Humphreys. It would be appropriate for the courts to apply this rationality test in a context where the margin of discretion is intended to be especially broad. It would thus be especially apt in the cases turning upon the provision or withholding of state benefits. Notwithstanding calls for reform over the years, it cannot be said that the basis for the present legislative provisions contained in s.1(3)(b) is irrational. As already noted, the two year period provides a convenient and rational criterion for deciding whether a person should be automatically eligible for benefits or, in this case, a right of action (i.e. without having to prove dependency). It is a method of achieving the objective of ensuring that such automatic rights are accorded only to those who have been in a relevant relationship on a stable or constant basis.

It was made clear in Parliament, for example, by Lord Hailsham as Lord Chancellor on 4 May 1982, that the objective was to ensure that the scope of the FAA was limited to such relationships as involved a sufficient degree of permanence or dependence to justify the survivor’s right to claim damages against the tortfeasor. I do not see that this can be characterised as irrational or, in so far as there is any difference, “manifestly without reasonable foundation”. Nor yet can it be said that the two year period is disproportionate to this aim. Indeed, no suggestion has been made to the contrary.

It is legitimate for the legislature to take steps to confine the liability of tortfeasors, and obviously their insurers also, in respect of loss caused to individuals who are not the primary victims of the wrongdoing in question. There has long been also an inclination, for reasons of public policy, to limit the extent to which tortfeasors generally can be made liable for purely economic loss. Where the balance should be struck between competing interests is clearly an area of social policy, albeit not directly linked to the expenditure of public funds, where there is room for a legitimate divergence of opinion. The margin of discretion must correspondingly be respected.

It is necessary to address the Claimant’s submission that the distinction drawn by reference to a two year period is arbitrary and unfair. While it is recognised that it would be appropriate to require some degree of constancy in the relevant relationship, it is argued that this is sufficiently achieved by the need for the relevant claimant and the deceased to have been living in a quasi-marital relationship (“as the husband or wife … of the deceased”). Such an approach would give rise to obvious difficulties. There is a ready made defining line to be drawn so far as married couples are concerned – the date of marriage. That provides evidence of the requisite degree of permanence or constancy. If cohabitants are to receive comparable rights or benefits, no such easy definition is available for a presumption of dependency. At one end of the spectrum is what Mr Weir calls a “one night stand”, which the legislature is presumably entitled to exclude, but views will differ as to where or how the line is to be drawn.

To draw a line anywhere is in a sense arbitrary, but there is no substitute for the making of a legislative judgment, since it is necessary to take account of the need for the law to be as clear and predictable in its operation as possible. An alternative would be to leave it to some representative of the state, judicial or otherwise, to make an individual decision in each case. That would surely be open even more to the objection of arbitrariness. This is why, no doubt, it has never been suggested by the Law Commission or by those responsible for the draft bill that the two year requirement should be dispensed with.

It is obvious, in cases where Parliament chooses to draw a line, that hard cases will fall on the wrong side of it, but that will not invalidate the rule if, judged in the round, it is beneficial; that is to say, if it achieves a purpose which the legislature deems to be desirable. (See the observations of Lord Bingham in R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] AC 1312, at [33].)

Furthermore, as I have noted above, the Law Commission proposed to introduce a new two year cohabitation requirement in the context of bereavement damages: see the 1999 Report at para. 6.21. It is thus obvious that it was still of the view that a temporal requirement of this kind was a legitimate means of defining relationships with a view to ensuring a degree of constancy or permanence. There has been no recognition that the list still to be found in s.1(3)(b) was impermissibly discriminatory. Against this background, it is difficult to see why a “bright line” temporal provision should be regarded as inherently objectionable any more than was the case 30 years ago. It provides a practical means of achieving a legislative objective which is well within the broad margin of appreciation allowed in the context of decisions on social policy. The Secretary of State’s alternative argument on justification would therefore also succeed.

One can readily understand the Claimant’s frustration and her sense of injustice. There is no doubt that many would agree with her view that the law is currently in an unsatisfactory state and can lead to unfairness. So much is clear from the history of reform proposals which I have attempted to summarise and which came very close to enactment. The provisions in the draft bill did not quite match the approach adopted in the Claimant’s submissions, but they could certainly have provided her with a gateway to bring proceedings in respect of Mr Winters’ fatal accident.

Whether the law should be changed and, if so, when those changes should be enacted, and in what form, are classic questions for the legislature and the executive to resolve. As I noted earlier, the present government decided that the bill was not a priority in the climate in which it took office. It is not for the judiciary to second guess such decisions

The only legitimate role for the court is that by which the Claimant seeks in these proceedings to circumvent the government’s decision; that is to say, by taking the relatively unusual step of declaring a long standing statutory framework to be incompatible with the European Convention. For the reasons I have already given, I am unable to do so. That is not a step to be taken simply because there are perceived inadequacies in domestic law, or a need to bring it into line with modern society. The court would need to be satisfied that the United Kingdom is compelled to make the relevant legislative changes in order to comply with its international commitments. Despite the recommendations for reform over the years, the endorsement of them by the relevant government department from time to time, and ultimately the approval of the draft bill in 2010 by the House of Commons Justice Committee, it has never been put forward as a justification for these changes that they were required by reason of our commitment to the European Convention. Against that background, it would hardly carry conviction if this court now claimed to have spotted an international obligation which everyone else had missed in such well trodden terrain. As I have explained, however, I do not believe that s.1(3)(b) of FAA is incompatible with the Convention and must accordingly refuse the remedy sought. The claim will be dismissed.

I am sorry to disappoint Ms Swift. I have little doubt that the law will at some point be changed so as to help others in a similar plight, but that will depend upon the allocation of legislative time.