European Union (Withdrawal) Bill

Lord Faulkner of Worcester Excerpts

Committee: 4th sitting (Hansard - continued): House of Lords
Monday 5th March 2018 Lords Chamber

I will make one final point. I dare say it will be said by the Government on this subject that Francovich will not be appropriate after we have left the Union because we will not be part of it any more and the whole purpose of Francovich is to provide a remedy to those who are disadvantaged by the non-observance of Union law in the European Union. My view is that we should make sure that those people who currently enjoy those rights and remedies—which is all our citizens—should continue to enjoy them in respect of the same laws as they do at present, in other words in respect of retained law. There could be a very reasonable and attractive agenda that would say that we should extend the Francovich principle from a Union law or a retained law to the generality of law in this country—British law, English law, Scots law et cetera. I would be very much up for that and in favour of it, but I see that as slightly complicating the issue and I fear that I shall be told that this Bill is not the right vehicle—that is probably correct—in which to achieve that purpose. But my purpose is to make sure that we continue to have the rights that we enjoy today—and if we accept the amendment we will achieve that.

[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

My Lords, I must advise the Committee that if this amendment were agreed to, I would be unable to call Amendments 44 or 45 for reasons of pre-emption.

[Lord Carlile of Berriew (CB)]

My Lords, for those of us who have real enjoyment in the law, a nice bit of law at three minutes past midnight is rather like a comforting, calm, creamy cup of cocoa, but I recognise that not everybody is of the same view. With that in mind, I propose to elide in the remarks I am going to make comments on Amendment 45, which appears in my name and that of the noble Lord, Lord Lucas, and on Amendments 48 and 50, which appear with the same names. That should save time in a few minutes because I understand that we intend to complete that group as well.

These amendments are designed to retain the so-called Francovich principle. I congratulate the noble Lord who has just spoken on summarising it very well. I will add a little bit of flesh on it because I wish to try to tease out of the Minister a welcome response to those of us who seek to preserve at least part of the Francovich principle, although I would happily pass to him the burden of perfected drafting.

In the Gina Miller litigation, in which the noble and learned Lord and my noble friend Lord Pannick played starring parts, the Government in their submissions place considerable weight on their intention to enact what was then called a “great repeal Bill”. As the Supreme Court understood it, that Bill would—and this is a quotation from the majority judgment at paragraph 34,

“repeal the 1972 Act and, wherever practical … convert existing EU law into domestic law at least for a transitional period”.

Surprisingly, in relation to the Francovich principle, there has been no conversion and no transition. I ask the Minister to explain whether that really is the position that the Government wish to maintain.

The Francovich principle is a principle of existing EU law which requires damages to be available where three conditions are met: first, that the rule infringed was intended to confer rights on individuals—I am sure that we would all applaud that; secondly, that the breach was sufficiently serious to give rise to a legal action, which I am sure we would also applaud; and, thirdly, that there was a direct causal link between the breach of the obligation resting on the defendant and the damage sustained by the injured party, and I am sure that we would all applaud that, too. Perhaps the Minister would explain why he wants to get rid of that principle.

To provide a little more explanation for the fascinated non-lawyers here, who may just about be in a majority—

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[The Deputy Chairman of Committees]

The noble Lord must move the amendment before he can withdraw it.

[Lord Carlile of Berriew]

I beg to move. Can I withdraw it now?

[The Deputy Chairman of Committees]

It is the property of the Committee until the noble Lord obtains its permission to do so.

Amendment 48 withdrawn.