Mr
Justice
Eady :
The nature
of
the claim
- 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. Serife Yigit
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) The facts before the court do not fall within the ambit
of
Article 8 and therefore could not give rise to a claim either under Article 8 itself or under Article 14.
ii) The difference in treatment between the Claimant and a person who had cohabited
for
two years or more, prior to the relevant death, is not based on anything contemplated by Article 14, and specifically not on "other status", and therefore could not in any event give rise to such a claim.
iii) In any event, any such difference in treatment would be objectively justifiable, in accordance with Articles 8 and 14. That is because the distinction drawn by s.1(3)(b) falls well within the margin
of
discretion allowed to Parliament in this context.
The statutory provisions under challenge
- 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.
Proposals
for
reform between 1978 and 2010
- 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.
The issue
of
compatibility with the European Convention
- 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.
Is this a "positive obligation" case?
- 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.
Do 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 Yigit 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:
i) I regard this as a "positive obligation" case, such that the Claimant needs to show a "direct and immediate" link between s.1(3)(b)
of
the FAA and her family or private life. I cannot see that she has been able to do so.
ii) Unlike the cases to which I have just referred, it is not in my judgment possible to conclude that it was the purpose
of
s.1(3)(b) to improve, promote or benefit ongoing family or private life; nor am I able to hold that it falls,
for
some other reason, within the ambit
of
Article 8. It has always been concerned simply to provide certain categories
of
persons with a right to claim
for
losses that can be measured in financial terms.
- Since I have rejected the Claimant's arguments, it follows that there is no room
for
her free-standing claim based on Article 8.
The notion
of
"other status" under Article 14
- 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.
The alternative arguments on objective justification
- 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 Yigit, 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.
Conclusion
- 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.