This proposal from the Ministry of Justice last week looks to rectify the Fatal Accidents Act 1976 following the Court of Appeal’s 2017 decision in Smith v Lancashire. It seems to have been released in a slightly low-key manner by the MoJ, perhaps because at the heart of it is a need to amend English law to reflect overarching European (Convention) principles – not an easy political ‘sell’ at the moment.
Amending the Act in response to Smith
The MoJ is aiming to do the bare minimum needed to rectify the legal incompatibility identified in Smith, ie by amending the Act to allow cohabitants of two+ years’ duration to claim the statutory bereavement award provided for at s1A of the FAA. The proposal therefore is definitely not a wholesale revision of the qualifying relationships set out in the Act either for s1A bereavement awards and/or s1 dependency claims. [A minor point of note is that the MoJ proposes to split the bereavement award between a spouse and a two+ years’ cohabitant in cases in which spouses have separated but not divorced and the deceased was living with the new partner.]
APIL has been campaigning for wide-ranging reform of the FAA for some time, on the back of long-shelved Law Commission recommendations and cases such as Smith and the 2013 case Swift v Secretary of State for Justice. It may be likely to use this news to refresh its lobbying. The discrepancies in bereavement damages across the UK jurisdictions is one of its main arguments. Statutory awards in NI were very recently increased to £15,100 for causes of action arising on or after 1st May 2019. They remain at £12,980 in England & Wales (for causes of action after 1 April 2013).
Procedural approach to be adopted
The MoJ’s paper includes a bizarre passage of doublespeak about the urgency and timing of the change, one which manages to justify a non-urgent procedure despite the need being “compelling”:
“We consider that the nature of the incompatibility contributes to there being compelling reasons for making the necessary legislative change promptly. Therefore, we consider that a Remedial Order using the non-urgent procedure is the most appropriate legislative vehicle for implementing this judgment on a timely basis while allowing parliamentary scrutiny of the measures proposed.”
The process of amending the FAA looks likely to be relatively slow via this non-urgent remedial procedure under the HRA 1988. It requires two periods of 60 sittings days, plus time for civil service processing/admin and for parliamentary votes, before the change can formally be made. On that basis, it seems unlikely this would come into force until before the end of 2019 (at the earliest).
The alternative route for reforming the 1976 Act would have been to legislate, but the MoJ rejects that and argues that “the current pressure on the legislative timetable means there is little prospect of finding suitable primary legislation to make an amendment in the near future”. It might be reasonable to question that statement, since parliament has little of real substance to do at the moment, pending a new Queen’s Speech and nearing the end of the two year 2017/19 legislative session. The MoJ’s real concern might be around handling a Bill: a minority government might be unable to defeat amendments aimed at extending any legislation along the lines argued for by APIL and the like.
Possible impact of the change, thoughts on early adoption
Changing the FAA to rectify the incompatibility in Smith will affect a fairly small number of claims in the future.
- As to cost, the MoJ’s paper notes that “there is likely to be some impact on the insurance industry in meeting claims for bereavement damages from the additional category of claimant under this amendment. However, we have assessed the likely number of future awards for damages under this amendment to be low and the financial impact too small to justify preparing a full Impact Assessment.”
- As to the temporal trigger, the paper states that the change “would apply to causes of action which accrue on or after the day on which the Order comes into force”, ie it will not be retrospective.
We reported (here) on the Court of Appeal’s decision in Smith in late 2017 and noted that, strictly, it had no effect on other similar claims. However, now that the legislation is being changed, some thought might be given to whether compensators (and insurers) might seek to adopt the change before it comes in. Although there is no legal obligation to do so, it might be thought that the voluntary payment of the statutory award to a 2+ years surviving cohabitant – who will be recovering a much more substantial dependency award in any event under s1 of the Act – could be a reputational point generally and, in specific claims, might assist in driving earlier resolution than might otherwise have been the case. [Investigations into the duration of the cohabitation will have been carried out anyway for the dependency claim, so little further processing is likely to be required.]
The claimant in Smith did not actually pursue her claim for the bereavement award in the appeal, which was designed to secure a declaration from the court that the FAA was incompatible with her Convention rights. That position means that any liability damages for the Convention breach in cases such as Smith which arise after the decision but before the change to the FAA is made is not entirely clear.
On the one hand, the current law does not require the payment of bereavement damages and Smith did not make an award for the breach. Given that the absence of a remedy is incompatible with Convention rights it may be worth examining whether there is an argument, equivalent to Francovich, that the state should be required to meet such claims during the period before the liability is transferred to defendants after the change in the law now set out by the MoJ takes effect. [Francovich establishes a liability on the state to meet claims which arise directly from its failure to implement EU legal rights effectively in domestic law. It may well not apply in the current circumstances which concern Convention rights rather than provisions of an EU Directive or regulation.]
Written by Alistair Kinley, director of policy and government affairs at BLM