Swift v Secretary of State for Justice

A statutory scheme conferring a right to claim financial loss after a death does not necessarily fall within the ambit of Article 8 merely because the claimant was financially dependent on the deceased. Where the challenge concerns a state’s failure to provide an additional remedy, the claimant must establish a direct and immediate link with private or family life. A relationship’s duration does not, without more, constitute “other status” under Article 14. A bright-line cohabitation period may be justified where it rationally identifies relationships sufficiently stable to warrant an automatic right of action. Parliament has a wide margin of discretion in social and economic policy.

The claimant lived with Alan Winters as his partner for about six months before he died as a result of an admitted workplace wrong. She accepted that she had been financially dependent on him, but section 1(3)(b) of the Fatal Accidents Act 1976 excluded her from claiming loss of dependency because the required period of cohabitation was two years.

She sought a declaration under section 4 of the Human Rights Act 1998, alleging incompatibility with Articles 8 and 14 of the Convention. The issues were whether the claim fell within the ambit of Article 8, whether length of cohabitation was “other status” under Article 14, and whether the distinction was objectively justified.

1. The claim was dismissed. The court refused to declare section 1(3)(b) of the Fatal Accidents Act 1976 incompatible with the Convention.
2. The claim concerned a positive obligation. The claimant therefore had to show a direct and immediate link between the statutory exclusion and her private or family life. The Act operated only after death, when the relevant relationship had ended, and provided a financial remedy against a tortfeasor rather than protection for continuing family life. Financial consequences alone did not bring the case within Article 8.
3. Length of cohabitation was a description of conduct or circumstances, not an independently existing personal characteristic or status. The Article 14 claim therefore failed.
4. Alternatively, the distinction was justified. Its legitimate aim was to confine automatic rights of action to relationships displaying sufficient permanence or constancy. The two-year period was rational, predictable and proportionate, and was not manifestly without reasonable foundation.
5. The history of proposed reform showed that the law could produce hardship, but reform was a matter for Parliament and the executive. The court could not declare the statutory framework incompatible merely because it appeared anomalous or unfair.