My Lords, I am grateful for this informed and constructive debate. A number of important points were made, which I would like to respond to. If I miss anything, I am more than happy to answer in writing; I will certainly check Hansard for that tomorrow.
First, the noble Lord, Lord Hain, spoke about the provision for couples that may be together but not sharing a home. We can go into lots of complexity on this. We have tried to make this as simple as possible for a number of reasons, mainly because complexity at the time of grief does not help.
A number of noble Lords, including the noble and learned Lord, Lord Falconer, mentioned that no provision is made for couples who have lived together for less than two years. The period of two years already applies in other cases; certainly, under Section 1(3)(b) of the 1976 Act, the Court of Appeal did not question the validity of the two-year period. Again, if there are different definitions of eligibility at the time, unnecessary complexities can arise in a claim that involves both types of damages. We are trying to keep this as simple as possible because this money is a way of trying to help people through a very difficult period; it is not like other damages that would come through the courts.
Several noble Lords brought up the fact that the law is not the same in England as in Scotland. The civil and legal systems in Scotland and Northern Ireland are separate from those in England and Wales, so it is inevitable that the law has evolved differently in many respects. There is no inherent reason for the same approach to be taken in the different jurisdictions. The level of bereavement awards available in Scotland would lead to greater costs for not only insurance purposes but the NHS; again, it would also bring complexity into the proceedings for those people who are eligible to receive this money.
In England, there is a fixed-level award with clear eligibility criteria that avoids the need for detailed consideration of the evidence relating to degrees of grief and the potential for disputes which, I would argue, people do not need at such a point in their lives. Bereavement damages are, and always were only ever intended to be, a fixed token payment to a limited group of people. When the award was introduced into law, it was generally acknowledged that it is impossible to quantify or provide adequate financial compensation for the grief felt at the loss of a loved one. An award should not be regarded in any sense as a measure of the worth of the life that has been lost.
The noble Lord, Lord Hain, also asked why this measure is not in primary legislation. I must admit that the current pressure on the legislative timetable means that there is little prospect of using primary legislation to make such a change. Moreover, we consider that the nature of the incompatibility contributes to where there are compelling reasons as required under Section 10(2) of the Human Rights Act 1998 for making the necessary legislative changes quickly and promptly, and this was the way to do that. However, it does of course mean that the order is narrow in scope.
We have talked about the Scottish system and primary legislation, which was brought up by the noble Lord, Lord Thomas of Gresford.
The noble and learned Lord, Lord Falconer, wanted to raise three issues. I have talked about the two-year period, but obviously I will take it back to the department and we will talk more about the interesting view that marriages and civil partnerships get the award from day one while there is a two-year period for cohabitees.
Another point I will take back is the issue about a father and the loss of a child. I am not a lawyer but I do not think that that is covered within this remedial order.
That brings me to my final point. There has been a lot of talk from noble Lords about the Act itself, including how old it is and the fact that some of it uses inappropriate language, as we heard from the noble Baroness, Lady Jones of Moulsecoomb. I will take that back and make sure that I reflect noble Lords’ views in the department. As we well know, plenty of legislation is going through so I do not know what sort of response I will get, but I will make sure that noble Lords get an answer on that point. If I have not answered anything specifically, I will look in Hansard tomorrow.
In conclusion, I believe that this order accurately and effectively addresses the incompatibilities identified by the Court of Appeal, and I think noble Lords have agreed with that, particularly in relation to eligibility for bereavement damages. Subject to the Committee’s approval, it will be brought into effect as swiftly as possible following this debate. I welcome the support for the order from the Joint Committee on Human Rights and from noble Lords generally. I commend the draft order to the Committee.