Swift v Secretary of State for Justice

Legislation limiting dependency damages to cohabitants who lived together as spouses or civil partners for at least two years is compatible with the Convention. The qualifying period rationally identifies relationships having sufficient permanence and constancy.

Parliament enjoys a wide discretion when making such social and economic policy choices. A bright-line rule remains proportionate although it produces hard cases, provided that it has a reasonable foundation and supplies a workable solution. The Convention requires a proportionate means of pursuing the legitimate aim. It does not require Parliament to adopt the fairest or most proportionate available means.

The claimant had cohabited with her partner for about six months when he was fatally injured through a third party’s admitted negligence. Their child could claim dependency damages, but the claimant could not satisfy the two-year cohabitation requirement in section 1(3)(b) of the Fatal Accidents Act 1976.

Eady J dismissed her claim for a declaration under section 4 of the Human Rights Act 1998. She appealed, contending principally that the qualifying period unjustifiably discriminated contrary to article 14, read with article 8, and alternatively that it unjustifiably interfered with family life under article 8 alone.

The central issue was whether the distinction based on the duration of cohabitation was objectively justified and proportionate.

1. Appeal dismissed. Section 1(3)(b) of the Fatal Accidents Act 1976 was not incompatible with article 14, read with article 8, of the Convention. Even assuming an interference with article 8(1), it was justified under article 8(2). The court therefore found it unnecessary to decide whether the facts fell within article 8’s ambit or whether the claimant possessed “other status” for article 14 purposes.

2. Article 14 permits different treatment where it pursues a legitimate aim and bears a reasonable relationship of proportionality to that aim. The provision’s legitimate aim was to confer dependency claims following fatal wrongdoing while restricting them to relationships having sufficient permanence and dependence. The Secretary of State bore the burden of establishing proportionality.

3. Parliament was entitled to a generous margin of discretion. The distinction concerned neither a suspect ground such as sex or race nor an intimate aspect of personal identity. It instead concerned social and economic policy, the state’s positive obligations to provide remedies between individuals, and a field lacking European consensus. National legislative choices on such questions carry special weight.

4. The question was whether the existing rule pursued the aim proportionately, not whether it was the fairest or most proportionate conceivable rule. Parliament could require evidence of permanence beyond the mere fact that a couple lived together as spouses immediately before the death. The two-year period was a simple means of demonstrating constancy and permanence.

5. Parliament could prefer a bright-line rule to an intrusive, fact-sensitive examination of every relationship. Although the rule could produce outcomes regarded as unjust, it increased certainty, provided past experience by which dependency damages could be assessed under section 3(1), and reduced intimate inquiries into a relationship’s quality. The choice was not manifestly without reasonable foundation.

6. The Master of the Rolls delivered the judgment. Lewison and Treacy LJJ agreed.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court upheld the rejection of the claim that section 1(3)(b) of the Fatal Accidents Act 1976 was incompatible with articles 8 and 14 of the Convention: [2013] EWCA Civ 193.
2. High Court, Queen’s Bench Division: Eady J dismissed the claimant’s application under section 4 of the Human Rights Act 1998. No citation is stated in the judgment.