DEFINITION OF "RELATIVE" (Hansard, 30 March 1976)

§ Mr. Malcolm Rifkind (Edinburgh, Pentlands)
I beg to move Amendment No. 1, in page 7, line 10, at end insert: 'or any person not falling within paragraph (a) above who was accepted and maintained by the deceased as his spouse'. This is the only amendment but it is important and I hope that the Government will consider it favourably.
The major purpose of the Bill is to extend to a far wider class of relatives the right to recover damages when someone dies as a result of the negligence of another person. In Schedule 1, the various additional categories who will be able to claim damages are outlined in specific form. I have no objection to the schedule, other than that it omits one important category which should be included.
The amendment seeks to give to what can be properly referred to as an unmarried spouse the right to recover damages as a result of the death of the person with whom he or she has lived. In many cases, two persons will have lived together for many years without having formally been married to one another. Although in previous years this would not have been considered a sufficient basis for being entitled to claim damages, attitudes to these matters have changed substantially over the years.
The Government have themselves acknowledged this in other legislation to which I referred in Committee. But in this sphere they have not acknowledged that in many cases a long and very stable relationship can have developed between two parties but that, despite that, on the death of one of them as a result of negligence, the surviving party would not be able to recover one penny from the person responsible, even if that surviving party's whole maintenance and support depended on the person who died as a result of the accident.
1265 Like the Minister and many hon. Members, I should not wish to give such a right to any person who had merely had a casual relationship with the deceased. It is not the purpose of the amendment that casual relationships should give rise to any legal rights regarding the recovery of damages. Indeed, the amendment is deliberately framed to exclude such a possibility. It gives such a right only to an unmarried spouse where she or he—it would normally be a female—satisfies the court that she had not only lived with but had been accepted would be affected by acceptance of the amendment.
There would be a double obligation: not merely that a relationship had existed, but that it was one in which the deceased had accepted the unmarried spouse as such and maintained her in that capacity. That is the high burden and onus on the pursuer in an action for damages which would safeguard the public interest and ensure that casual relationships could not lead to the award of damages which would otherwise occur.
I turn now to a letter dated 25th March which the Minister sent to me. I am grateful to him for writing to me regarding the amendment. In that letter, the Minister indicates the reasons why the Government believe that the amendment is undesirable. He states: The question of the rights of 'unmarried spouses' has implications for other areas of both social and private law and the fact that recognition has already been given to 'unmarried spouses' in other legislation does not, in our view, justify its being dealt with in the present Bill in isolation from the wider issues it raises. I ask the hon. Gentleman, when he replies, to indicate which other areas of both social and private law woud be affiected by acceptance of the amendment.
The important point is that the Government have, as it were, already accepted the principle of what I have put forward in part of the Bill. The schedule gives a right to recover damages to a child who is not the natural child but who has been accepted as a child of the deceased before the accident in question. If the amendment is not accepted, we shall have an absurd situation—namely, that while an unmarried spouse who has had a relationship with the deceased extending over many years will not be able 1266 to claim damages, notwithstanding the Bill, the son or daughter of that unmarried spouse will be able to claim damages although the deceased was not a natural relative.

§ The Lord Advocate (Mr. Ronald King Murray)
Perhaps the hon. Gentleman will consider this point. The illegitimate child of unmarried spouses has no choice and control over his status. Therefore, the Bill rightly equates him with a legitimate child. Surely the contrast is with common law unmarried spouses. If they are free to marry—in many cases they are—they can choose. If they have chosen not to accept the ties and duties of marriage, why should they get a benefit? The illegitimate child has no choice, but the unmarried spouses have.

§ Mr. Rifkind
I take the point made by the Lord Advocate. If we were concerned only with the class of persons who were free but had chosen not to marry, the moral claim put forward in the amendment might not be so strong.

§ The Lord Advocate
That is one class.

§ Mr. Rifkind
That is one class. But, as the right hon. and learned Gentleman would be the first to agree, the class about which we are talking includes a large number of persons who would wish to marry but who are not free to do so for one reason or another. No doubt their numbers will be reduced if and when the Divorce (Scotland) (No. 2) Bill, now being considered, gets on the statute book. Notwithstanding that legislation, there will still remain a group of people who, for a period of time, will not be free to marry, despite having enjoyed a long and stable relationship over many years.
We shall be left with the anomaly that, while the child of an unmarried spouse will be able to claim damages from a person who was in no way related to but was responsible for his maintenance, that child's mother will not be able to claim, although she may have been totally de-pendenent on the deceased for her sustenance over many years. In Committee the Government accepted that this was an anomaly, but they have not responded with any provision to deal with the situation.
In his letter the Minister indicates that it would be undesirable to bring forward an amendment at this stage in view of 1267 the existence of the Royal Commission on Civil Liability and Compensation for Personal Injuries. The Minister said that it would be wrong to prejudge, even in a small way, the conclusions of the Royal Commission. That might be a persuasive argument if this Bill were not now before the House, but all provisions in Bills prejudge in one way or another the conclusions of a Royal Commission. But, given the fact that this Bill is now before the House and seeks to extend to new categories of people the right to claim damages, it is illogical, unfair and unsound to exclude one category only when in Committee the Government accepted a moral claim to damages as a result of the death of the person who has maintained those concerned for many years.
We are not talking about a provision that would cost the Government or the Exchequer any money at all, or a situation that would give any encouragement to people to go in for casual relationships. We are dealing here with relationships that have persisted for many years. Since the Government have accepted the moral legitimacy of the amendment, I ask the Minister to respond constructively. I ask him to accept that there is a strong case for excluding this one category. I certainly hope that the House will give the amendment further consideration.

§ The Under-Secretary of State for Scotland (Mr. Harry Ewing)
I hope that I always respond constructively to all amendments. The hon. Member for Edinburgh, Pentlands (Mr. Rifkind) has highlighted one of the difficulties of all Governments when Royal Commissions are in being. The position is that the Royal Commission is prepared to accept what is in the Bill. The hon. Gentleman seeks to insert a provision. It is an area that is now being considered by the Royal Commission. It is an important and complex matter.
A similar amendment was considered in Committee and was withdrawn by the hon. Member when my right hon. and learned Friend the Lord Advocate undertook to re-examine the matter of principle and, if necessary, to draft an amendment. The Scottish Law Commission touched on the position of unmarried spouses in its report, but concluded that it would be wrong to consider the question simply in a narrow context of claims for damages 1268 for injury causing death. It thought that it was more appropriate if the law took account of the moral claims of unmarried spouses and considered that the question should be considered in the context of family law as a whole. This is what, in effect, the Royal Commission is now considering.
It was said in Committee that it was unfair to regard the long-term exercise as something that should hold up progress in this limited area. All Governments have this dilemma when a Royal Commission is in existence. It is a complex matter raising issues in many other areas of the law. Its implications go far beyond damages for injuries causing death. It clearly needs comprehensive treatment because of the many different categories of spouses who attract varying degrees of sympathy. One could give very interesting examples. I thought that you would be interested, Mr. Deputy Speaker, in the examples of some of those spouses who are maintained by men.

§ Mr. Deputy Speaker
I assure the hon. Gentleman that I am legally married.

§ Mr. Ewing
I never doubted your own status, Mr. Deputy Speaker, but I sometimes think that Speakers and Deputy Speakers lead rather sheltered lives. An exposition of what goes on in the world outside does not do any of us any harm.
The examples include situations where there is no other spouse—whether married or otherwise—in the background of either side, where either or both of the unmarried spouses have a legal spouse but have no other extra-marital relationship. One could detail many other examples which would give cause for concern if the amendment were accepted. Areas of private and public law would be affected if we accepted the amendment. The law of succcession and social services legislation would also be affected.

§ Mr. Rifkind
If the Government believe that the law of succession might be affected, why are they able to grant exactly the same rights as those in the amendment to the child of an unmarried spouse? That interferes with the law of succession, so why not give the same right to the mother of the child?

§ Mr. Ewing
The Lord Advocate dealt adequately with the differences between the child of such a relationship and the 1269 unmarried mother. The child has no choice in the matter. It has no control over its own status, while the unmarried spouse has complete control.
We are not saying that we are not sympathetic about the problem. We realise that there are problems, but we are saying—and I think that the House will accept the wisdom of it—that because of the complexity of the matter and because the Royal Commission is considering it, it would be wiser to leave things as they are.
Against that background, I suggest that the hon. Member withdraws the amendment. If he does not, I shall have to ask the House to reject it.