In Swift v Secretary of State for Justice11 the claimant appealed against the decision of Eady J,12 who had dismissed her contention that section 1(3)(b) of the Fatal Accidents Act 1976 (“the FAA”) (requiring a two year period of cohabitation as a precondition to a dependency claim) was incompatible with her rights under ECHR Article 14 in conjunction with Article 8. The Court of Appeal unanimously dismissed the appeal, holding that s.1(3)(b) is not incompatible with the claimant’s Convention rights, but is a proportionate means of pursuing a legitimate aim, that aim being to confer a right of action of action on dependants of primary victims of fatal wrongdoing to recover damages in respect of their loss of dependency, whilst confining that right to those who had relationships of some degree of permanence and dependence.

In his leading judgment, the Master of the Rolls held that a wide margin of discretion should be afforded to the legislature as length of cohabitation was not a “suspect” ground of discrimination, whilst special weight should be given to social and economic policy choices made in the public interest by a national legislature (as this was). The decision as to which cohabitees should be able to claim damages for loss of dependency raised difficult issues of social and economic policy on which opinions might legitimately differ, and there was no obviously right answer. It might be that many would say that the law needed changing, but the choice made by Parliament was not manifestly without reasonable foundation and was one which it was entitled to make. Parliament was entitled to decide that there had to be some way of proving the requisite degree of permanency and constancy in the relationship beyond the mere act of living together and was entitled to decide that is was therefore necessary to have a mechanism for identifying those cases in which the relationship between cohabitants was sufficiently permanent to justify protection under the Act