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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Swift v Secretary of State for Justice [2013] EWCA Civ 193 (18 March 2013) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/193.html Cite as: [2013] PIQR P14, [2014] QB 373, [2013] EWCA Civ 193, [2013] 3 WLR 1151, [2013] HRLR 21, [2013] 2 FCR 1, [2014] 1 QB 373, [2013] WLR(D) 118

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION
MR JUSTICE EADY
HQ11X02583

		Royal Courts of Justice Strand, London, WC2A 2LL
		18/03/2013

Master of the Rolls:

1. The claimant appeals from the order of Eady J by which he dismissed her claim pursuant to section 4 of the Human Rights Act 1998 that section 1(3)(b) of the Fatal Accidents Act 1976 (as amended) ("the FAA") is incompatible with her rights under article 14 in conjunction with article 8, alternatively article 8 alone, of the European Convention on Human Rights ("the Convention"). So far as material, section 1 of the FAA provides:

"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;

………….

(e) any child or other descendant of the deceased;"

2. Section 1A(1) provides: "An action under this Act may consist of or include a claim for damages for bereavement." Section 3(1) provides: "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."
3. The facts can be shortly stated. The claimant had been cohabiting with Alan Lee Robert Winters for about 6 months when he was fatally injured in an accident at work as a result of the admitted negligence of a third party tortfeasor. Their child was born after his death. The child was able to make a claim for loss of dependency under section 1(3)(e) of the FAA. But since the claimant and Mr Winters had been living together as husband and wife in the same household for less than two years immediately before his death, she was not able to do so.
4. The claimant's primary case is that section 1(3)(b) is incompatible with her rights under article 14 in conjunction with article 8 of the Convention. In summary, she says that section 1(3)(b) unjustifiably discriminates against persons who have been cohabiting as husband and wife for less than two years, by excluding them (but not those who have been cohabiting for two years or more) from the classes of family members entitled to claim damages for loss of dependency under the FAA. Her alternative case is that section 1(3)(b) interferes with her right to respect for family life contrary to article 8(1) of the Convention alone and that this interference is not justified under article 8(2).
5. Article 8 of the Convention provides:

"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."

6. Article 14 provides:

"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."

7. The issues that arise in relation to the claimant's primary case are (i) whether the facts fall within the ambit of article 8 so as to engage article 14 ("the ambit issue"); (ii) whether as a cohabitant of less than two years, the claimant had "other status" within the meaning of article 14 ("the other status issue"); and (iii) whether, if article 14 is engaged and the claimant had "other status", the difference in treatment of claimants based on the duration of their cohabitation by the FAA is objectively justified. The issues that arise in relation to the claimant's alternative case are (i) whether section 1(3)(b) of the FAA amounts to an interference with the claimant's right to respect for family life at all; and (ii) if it does, whether the interference is objectively justified pursuant to article 8(2).
8. In a careful and comprehensive judgment, the judge found against the claimant on all these issues. We heard full argument on each point. The justification defence advanced by the Secretary of State, if well-founded, is fatal to both the primary and alternative cases. For the reasons that I give in this judgment, I am satisfied that the difference in treatment is justified. I do not, therefore, find it necessary to deal with the submissions which were addressed to us on the ambit issue or the other status issue. I propose to say no more about them.

History of section 1(3) of the FAA and proposals for its reform

9. Before I come to the issue of objective justification, I should say something about the views that have been expressed about section 1(3)(b) from time to time and the proposals that have been made for its reform. As enacted in 1976, the FAA contained no provision for the right to claim damages for loss of dependency by cohabitants. At the committee stage of the Administration of Justice Bill, it was recognised that it was anomalous that an illegitimate child qualified as a dependant entitled to claim under the FAA, but the child's surviving dependant parent did not. But it is clear from the debates in Parliament that there were differences of opinion as to how this anomaly should be remedied and, in particular, which cohabitants should be eligible to claim and which should not. By the time of the report stage on 4 May 1982, the two year qualifying period for cohabiting couples had been included in the Bill. Lord Hailsham LC expressed the Government's position in these terms:

"Then there must, I think, be some degree of permanence about the relationship. The weight of the speeches made in Committee especially Lord Edmund-Davies's speech, related to these enduring relationships in which the actual status of marriage had not been achieved, but much else that is part and parcel of a marriage had been, and I have put in a specific period of years. "

10. Thus it was that the present provisions in relation to cohabitants came to be enacted in the Administration of Justice Act 1982. But with the decline in the number of marriages and the corresponding rise in the number of couples who chose to cohabit as husband and wife without undergoing the formality of a marriage, the debate continued as to whether Parliament had struck the balance in the right place.
11. In November 1999, the Law Commission published its paper entitled "Claims for Wrongful Death" (Law Com No 263). This paper reviewed a number of areas of law in relation to claims for damages for wrongful death (including damages for loss of dependency and for bereavement). In the Executive Summary of its paper, the Law Commission said that it was recommending reform and that a key aim of its recommendations was "to modernise the existing legislation, so as to bring this area of the law into line with the values of modern society". It added:

"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".

12. At para 3.16 of the paper, the Commission referred to the position of (amongst others) cohabitants living together who did not satisfy the two year rule and said that these examples provided "powerful support for the view that the present list is too restrictive". At para 3.18, they recommended that the list should be reformed. This they did by proposing in a new section 1(3)(h) a generally worded class of claimant defined as "any other person 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". It also recommended a new section 1(7):

"For the purposes of this Act a person shall be treated as being wholly or partly maintained by another person if the other person, otherwise than for full valuable consideration, was making a substantial contribution in money or money's worth towards his reasonable needs."

It further recommended amendments to section 1A so as to identify those for whose benefit a claim for damages for bereavement could be made. These included in subsection (2)(b) "any person who has lived with the deceased as husband and wife for a period of at least two years immediately before the death".

13. On 4 May 2007, the Department for Constitutional Affairs ("DCA") issued a consultation paper entitled "The Law on Damages" which considered the recommendations of the Law Commission report. At para 7, the paper acknowledged that these recommendations would allow anyone who could prove dependency immediately prior to the death to claim, including cohabitants of less than two years duration. It also referred to "the injustice that can be caused by the current situation". As an example of this injustice, reference was made to the case of Kotke v Saffarini [2005] PIQR P26, where the claimant had been unable to obtain compensation for the death of her partner, since she had not been living with him in the same household for two years before his death, although the relationship between them had lasted some years and they had a child together. The paper noted:

"While many people could potentially fall within the proposed categories, in each case financial dependency would have to be proved, and thus unmeritorious claims would be unlikely to succeed. The Government therefore proposes to accept this part of the recommendation."

14. On 1 July 2009, the Ministry of Justice ("MoJ") published its Summary of Responses to the DCA paper. At p 44, the Summary stated that it remained the Government's view that the residual category proposed by the Law Commission was "the fairest approach to take, and would ensure that all those actually dependent on the deceased could claim while avoiding the possibility of speculative claims based on possible future dependency." It continued:

"Concerns were expressed that introducing the residual category would enable claims to be brought where the dependency (in particular of a cohabitant) has been of a very short duration. However, a two year qualifying period as suggested by some responses would put cohabitants in no better position than under the current law, and would not prevent unjust outcomes in circumstances such as that in Kotke v Saffarini (as set out in the consultation paper). A shorter qualifying period such as six months would be less disadvantageous, but on balance the Government believes that this would not be appropriate. As the consultation paper pointed out, in each case that arises actual financial dependency would have to be proved, and thus unmeritorious claims would be unlikely to succeed. The fact that dependency has to be proved distinguishes the situation from the proposed two year qualifying period for a cohabitant to receive bereavement damages, as the latter is an automatic award to those in the eligible categories."

15. In December 2009, the MoJ produced a draft Bill entitled "Civil Law Reform" which gave effect to the Law Commission recommendations. This was scrutinised by the House of Commons Justice Committee who published a report on 31 March 2010. Para 28 of this report stated:

"We agree with the Government that the new category of claimant does not require a qualifying period to achieve legal clarity as all potential dependents will be required to evidence their claims. We would go further and conclude that the introduction of a qualifying period would exclude those whom this category is intended to benefit, for example a cohabitee who had lived with the deceased for less than two years. This would undermine the intention behind the creation of a new category, which is to introduce some flexibility and allow it to keep pace with changes in society."

16. On 10 January 2011, a Written Ministerial Statement was made by The Parliamentary Under-Secretary of State for Justice which said that the Government had decided not to proceed with the proposed Civil Law Reform Bill because "in the present financial situation we need to focus our resources on delivering our key priorities".

The judgment

17. In summary, the judge held as follows. First, it is legitimate for the legislature to take steps to limit the liability of tortfeasors for loss caused to individuals who are not the primary victims of the wrongdoing in question. Where the balance should be struck between the competing interests is a matter of social policy. Secondly, in assessing whether the measure is a proportionate way of meeting that legitimate aim, the legislature is entitled to a wide margin of discretion since (a) it does not involve discrimination on grounds such as sex and race as opposed to a matter of social and economic policy; (b) it concerns the question whether the state is under a positive obligation to provide legal remedies between individuals; and (c) it deals with an area where there is no effective consensus of treatment by the Member States. Thirdly, the two year period is not disproportionate or arbitrary: it is a bright line which 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 grounds of challenge

18. The following is a summary of the submissions of Mr Weir QC. It was legitimate to insist on "some degree of permanence about the relationship" in order to distinguish between a family relationship on the one hand and a casual relationship on the other. But there is no legitimate aim in setting an arbitrary requirement as to the duration of a cohabitation relationship before a claim for damages for loss of dependency can be made. The aim of limiting the right of action to those who are in a relationship of some degree of permanence is adequately met by the statutory requirement that the claimant has been "living with the deceased in the same household immediately before the date of the death….as the husband or wife of the deceased". By this means, the casual relationship is excluded. The additional requirement that this familial relationship should have lasted for at least two years is unnecessary in order to meet the legitimate aim and is therefore a disproportionate means of doing so. Once Parliament decided to provide for some cohabitants, it was not open to it to treat cohabitants differently for no other reason than the length of their relationship.
19. The bright line solution chosen by Parliament does not solve anything. The burden remains on a claimant under section 1(3) to prove that he started living as husband or wife of the deceased in the same household. This normally involves adducing evidence as to a shared purchase of a property or a shared tenancy, shared bills, shared bank accounts and so on. The so called "bright line" of two years avoids none of this. All that it does is to set an additional requirement, namely that the relationship of cohabitation, once started, had lasted continuously for two years prior to the death.
20. The injustice of excluding cohabitants of less than two years duration was recognised by the Law Commission, the DCA, the MoJ and the House of Commons Justice Committee. The position taken by all of these bodies was that it was unjust, unfair and indefensibly arbitrary to exclude less than two year cohabitants.
21. Mr Weir accepts that Parliament is to be accorded a margin of appreciation in relation to this issue of social policy. But the margin is not as great as in a case involving the payment out of state benefits. He submits that the case falls somewhere between those cases in which the State's decision has to be shown to be manifestly without reasonable foundation (such as state benefits cases) and those in which core grounds of discrimination are involved. But whatever the area of discretionary judgment afforded to Parliament, it is clear that section 1(3) has a disproportionate effect on a class of claimants who deserve to be entitled to bring a claim for loss of dependency, namely those who have been cohabitants for less than two years.

Discussion

22. I would dismiss this appeal substantially for the reasons advanced by Mr Coppel and accepted by the judge. The test for justification under article 14 has been stated by the ECtHR on a number of occasions. It is similar in principle to the test that is adopted in relation to the interference with rights under other articles of the Convention. Thus, for example, in Serife Yigit v Turkey (Application No 39876/05), 2 November 2010, the Grand Chamber of the court said:

"[D]iscrimination means treating differently, without an objective and reasonable justification……A difference in treatment has no objective and reasonable justification if it does not pursue a legitimate aim or there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised."

Legitimate aim

23. There is little, if any, disagreement between the parties about this. The legitimate aim that is sought to be pursued by section 1(3) as a whole is to confer a right of action on dependents of primary victims of fatal wrongdoing to recover damages in respect of their loss of dependency, but to confine the right to recover damages to those who had relationships of some degree of permanence and dependence. The real question is whether the means chosen by the legislature to pursue this aim are proportionate. I bear in mind the important point that the burden lies on the Secretary of State to show that they are proportionate.

Margin of discretion

24. I accept the submission of Mr Coppel that a wide margin of discretion should be accorded to the legislature in this case. The difference in treatment based on the duration of cohabitation is not founded on what has been described in the case law as a "suspect" ground of discrimination. In R (Carson) v Secretary of State for Work and Pensions [2005] UKHL 37, [2006] 1 AC 173, Lord Walker explained at paras 55 to 60 that not all possible grounds of discrimination are equally potent. The United States Supreme Court has developed the doctrine of "suspect" grounds of discrimination which the court will subject to particularly severe scrutiny. "Suspect" grounds of discrimination are those based on personal characteristics (including sex, race and sexual orientation) which an individual cannot change. The same approach has been adopted in the Strasbourg jurisprudence. Thus, for example, in Stec v United Kingdom (2006) 43 EHRR 1017 at para 52 the court drew a distinction between (i) discrimination based exclusively on the ground of sex (requiring very weighty reasons in justification) and (ii) general measures of economic or social strategy (where a wide margin is usually allowed). In relation to the latter, because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the ECtHR will generally respect the legislature's policy choice unless it is "manifestly without reasonable foundation". It is true that these observations were made in relation to the margin of appreciation accorded by the Strasbourg court to Member States. But the same approach was adopted by Lady Hale in a domestic context in Humphreys (FC) v HMRC [2012] UKSC 18 at paras 15 to 19: see also R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63, [2009] 1 AC 311.
25. I accept that, unlike Carson, RJM and Humphreys, the present case is not concerned with state benefits. Such cases are the most obvious examples of decisions by the legislature on questions of what is in the public interest on social or economic grounds. But the decision whether to give a statutory right of action to the dependent of a victim of a wrongful death for damages for loss of dependency also raises important and difficult issues of social and economic policy. It does not raise a technical legal question which has little or no social or economic consequences. That is no doubt why Lord Hailsham took extensive soundings at the Committee stage of the Administration of Justice Bill in 1982. He consulted not only the Bar and the Law Society (as one would expect with proposed legislation of this kind), but also the Trades Union Congress, the Confederation of British Industry and the British Insurance Association. In its turn, the Law Commission also consulted a number of different organisations. The list of those who responded to the consultation by the MoJ in 2007 is even more striking. It includes many insurers and defendant organisations, Trades Unions and organisations promoting the interests of business. At p 102 of its consultation paper "The Law on Damages", the DCA identified the groups with an interest in the proposals as being claimants, defendants, insurers, taxpayers and Public Sector NHS.
26. I have set all of this out in some detail, because it reflects the fact that the MoJ (correctly) understood in particular the wide social and economic implications of enlarging the class of those who could claim damages for loss of dependency.
27. The Grand Chamber decision in Draon v France (2006) 42 EHRR 40 is an important illustration of the principle that special weight should be given to social and economic policy choices made in the public interest by a national legislature even in a case which is not concerned with state benefits. In that case, the applicants were the parents of a child born with serious disabilities. Due to medical errors, the child's disabilities were not discovered during a procedure undertaken on him in a hospital run by the Paris Health Authority. The applicants started proceedings claiming compensation. Before the Administrative Court was able to reach a decision on the claim, the principles applicable to the assessment of compensation were changed by a new law with retrospective effect to the detriment of the applicants. The court found that the Health Authority had been negligent, but dismissed part of the claim in reliance on the new law. The applicants alleged that the retrospective nature of the new legislation amounted to a breach of various articles of the Convention. This was therefore not a state benefits case. Like the present case, it was concerned with legislation governing the right of one individual to seek compensation from another. Despite that difference, the ECtHR said this in relation to the margin of appreciation at para 108:

"At the same time, the Court reiterates the fundamentally subsidiary role of the Convention. The national authorities have direct democratic legitimation and are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions. In matters of general policy, on which opinions within a democratic society can reasonably differ, the role of the domestic policy-maker should be given special weight."

28. I bear in mind that this was said in the context of the margin of appreciation accorded by the ECtHR to the national court of a Member State. But I do not consider that this should affect the view to be taken in relation to the margin of discretion accorded by the court of the Member State to a decision by the legislature on a matter of social or economic policy: see para 24 above.
29. As the judge said, there are further reasons why Parliament should be afforded a generous margin of discretion in this case. These are usefully collected in the ECtHR decision in Mosley v United Kingdom (2011) 53 EHRR 30:

"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. 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. However, this discretion goes hand in hand with European supervision.

108 The Court recalls that a number of factors must be taken into account when determining the breadth of the margin of appreciation to be accorded to the state in a case in which art.8 of the Convention is engaged. First, the Court reiterates that the notion of "respect" in art.8 is not clear-cut, especially as far as the positive obligations inherent in that concept are concerned: bearing in mind the diversity of the practices followed and the situations obtaining in the contracting states, the notion's requirements will vary considerably from case to case. Thus Contracting Parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention. In this regard, the Court recalls that by reason of their direct and continuous contact with the vital forces of their countries, the state authorities are, in principle, in a better position than the international judge to give an opinion on how best to secure the right to respect for private life within the domestic legal order.

109 Secondly, the nature of the activities involved affects the scope of the margin of appreciation. The Court has previously noted that a serious interference with private life can arise where the state of domestic law conflicts with an important aspect of personal identity. Thus, in cases concerning art.8, where a particularly important facet of an individual's existence or identity is at stake, the margin allowed to the state is correspondingly narrowed. The same is true where the activities at stake involve a most intimate aspect of private life.

110 Thirdly, the existence or absence of a consensus across the Member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, is also relevant to the extent of the margin of appreciation: where no consensus exists, the margin of appreciation afforded to states is generally a wide one. Similarly, any standards set out in applicable international instruments and reports are relevant to the interpretation of the guarantees of the Convention and in particular to the identification of any common European standard in the field."

30. All of these factors are in play in the present case. First, the claim raises issues as to the extent of the positive obligations of the United Kingdom to provide legal remedies between individuals. Secondly, the article 8 issues raised here do not affect an important (or indeed any) aspect of the claimant's personal identity or an intimate aspect of family or private life. We are in territory which is far removed from that of the "suspect" discrimination on grounds such as sex or race and the legislature is entitled to a generous margin of discretion. Thirdly, there is no consensus across the Member States as to the importance of the right of action with which we are concerned or as to the nature and duration of the relationship of dependency that it requires.
31. In my view, the combined effect of all these factors is that the court should accord a generous or wide margin of discretion to Parliament in relation to the legislative choices that it made in enacting section 1(3) of the FAA.

Proportionality

32. The question that lies at the heart of the proportionality issue is whether the requirement of cohabitation as husband and wife for at least two years can be justified as a proportionate means of pursuing the legitimate aim to which I have referred at para 23 above. Mr Weir submits that section 1(3)(b) is not proportionate to this legitimate aim in that (i) it does not further the aim at all and (ii) the line that has been drawn by Parliament at two years is arbitrary.
33. As regards Mr Weir's first submission, as we have seen, he says that the legitimate aim is sufficiently met by the requirement that the claimant and the deceased lived in the same household as husband and wife immediately before the date of the death. Nothing is gained by adding the requirement that there has been cohabitation for a period of at least two years. Cohabitation as husband and wife is of itself adequate proof of a relationship of sufficient constancy and permanence to warrant entitlement to claim under section 1 of the FAA.
34. As Mr Coppel submits, this approach is one possible view as to the degree of constancy and permanence that is required to justify conferring on a survivor a right of action against a tortfeasor. But bearing in mind (i) the broad margin of discretion that should be accorded to the legislature and (ii) the number of different interests that had to be taken into account, I consider that Parliament was entitled to take a different view. There is no obviously right answer. It is material that neither the Law Commission (proposing a Bill) nor the Justice Select Committee (considering the draft Bill) proposed the abolition of section 1(3)(b). They seem to have been of the view that a two year requirement was an appropriate measure of constancy or permanence, although they also proposed a new category of claimants for loss of dependency damages, who would not have an automatic right to claim, but would have to prove that they were being maintained to a "substantial" extent immediately before the death. It is also to be noted that they proposed cohabitees of two years standing as a new category of claimants for bereavement damages under section 1A of the FAA. I do, however, accept that there are obvious differences between damages for loss of dependency and damages for bereavement. The important point, however, is that it has never been suggested that merely living together as husband and wife for a single day or week would establish the necessary degree of permanence or dependency required for a right of action.
35. Mr Weir relies strongly on the fact that the Law Commission and the Government considered that the existing law is unfair and unjust for the reasons which I have summarised above. The decision not to amend the FAA was not taken because of a late change of mind as to the merits of the proposed amendments. It was taken simply because the Government had to focus its resources on other matters. But the question is not whether the existing law is unfair and could be made fairer. Nor is it whether the existing law is the fairest means of pursuing the legitimate aim referred to at para 23 above. Rather, the question is whether the existing law pursues that aim in a proportionate manner. The Strasbourg jurisprudence does not insist that a state pursues a legitimate aim in the fairest or most proportionate way. It requires no more than that it does so in a way which is proportionate. There may be a number of ways in which a legitimate aim can be pursued. Provided that the state has chosen one which is proportionate, Strasbourg demands no more.
36. In my view, Parliament was entitled to decide that there had to be some way of proving the requisite degree of permanence and constancy in the relationship beyond the mere fact of living together as husband and wife. It was entitled to take the view that there cannot be a presumption in the case of short-term cohabitants, unlike that of married couples (section 1(3)(a)) or parents and their children (section 1(3)(e)) that the relationship is or is likely to be one of permanence and constancy. It was entitled to decide that it was therefore necessary to have a mechanism for identifying those cases in which the relationship between cohabitants is sufficiently permanent to justify protection under the FAA.
37. I accept that the existing law can lead to some results which many would regard as unjust. This was recognised by the Law Commission and indeed the Government itself. Many would say that the proposals that were made for reform were fairer. But I do not accept Mr Weir's submission that section 1(3) in its existing form does not further the legitimate aim at all. The requirement of cohabitation for two years is a simple way of demonstrating a real relationship of constancy and permanence. It adds something to the mere fact that a couple lived together as husband and wife in the same household, possibly for a very short period, immediately before the date of the death.
38. As regards Mr Weir's second submission, I cannot accept that the two year requirement is arbitrary and is therefore disproportionate on that account. In my view, the policy decision that a relationship between cohabitants will only have the requisite degree of permanence and constancy to justify protection under the FAA if a couple has lived together for at least two years immediately before the death was one which Parliament was entitled to make. I have already referred to the two year period specified in the Bill proposed by The Law Commission and the draft Bill considered by the Justice Select Committee.
39. Parliament was entitled to prefer a bright-line distinction to an approach which depended on fact-sensitive decisions in each case as to whether the relationship was sufficiently constant or permanent to justify a right of claim under section 1 of the FAA. It is now well understood that where Parliament chooses to draw a line, it is inevitable that hard cases will fall on the wrong side of it. But that is not a sufficient reason for invalidating it if in the round it is beneficial and it produces a reasonable and workable solution: see Carson per Lord Hoffmann at para 41 and Lord Walker at para 91; and R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15, [2008] 1 AC 1312 at para 33 per Lord Bingham.
40. In summary, the two year requirement provides greater certainty as to the scope of the FAA; it ensures that the court has some evidence of past experience and the nature of the relationship to inform its assessment of damages under section 3(1) of the FAA; and it reduces the need to conduct an intrusive and intimate inquiry into the nature and quality of the relationship, in order to establish whether it satisfies some objective standard of permanence and constancy.

Conclusion

41. For these reasons, I am satisfied that section 1(3)(b) of the FAA is not incompatible with article 14 of the Convention in conjunction with article 8. It is a proportionate means of pursuing the legitimate aim to which I have referred at para 23 above. The decision as to which cohabitees should be able to claim damages for loss of dependency raises difficult issues of social and economic policy on which opinions may legitimately differ. There is no obviously right answer. It may be that many would say that the law needs changing. But the choice made by Parliament was not manifestly without reasonable foundation and was one which it was entitled to make. It follows that, even if article 14 of the Convention is engaged (as to which I express no opinion), the difference in treatment of cohabitees on the basis of two years cohabitation is justified.
42. The same reasoning inevitably leads to the conclusion that, even if section 1(3)(b) amounts to an interference with the claimant's right to respect for her family life in breach of article 8(1), the interference is justified under article 8(2).

Lord Justice Lewison:

43. I agree.

Lord Justice Treacy:

44. I also agree.