Electronic Communications and Wireless Telegraphy (Amendment etc.) (EU Exit) Regulations 2019

Debate between Lord Foster of Bath and Lord Pannick

Thursday 7th February 2019 Lords Chamber

[Lord Pannick (CB)]

My Lords, I support the noble Lord, Lord Foster, in the concerns that he has raised. It is not just the Minister in the other place who says it is important for Ofcom to benefit from the continuing exchange of best regulatory practice; it is in paragraph 7.35 of the Explanatory Memorandum:

“However, the Government recognises that Ofcom would benefit from the continued exchange of regulatory best practice with other national regulatory authorities and the exchange of information about electronic communications matters more generally”.


The memorandum goes on at paragraph 7.36 to note that,

“the BEREC Regulation presently allows BEREC to invite observers to attend its meetings, and that the new BEREC Regulation is expected to provide that the Board of Regulators, the working groups and the Management Board should be open to the participation of regulatory authorities of third countries”—

which of course would include us in the event of no deal—

“where those countries have entered into agreements with the EU to that effect”.

My question is therefore about whether it is the intention of the Government that, in the event of no deal, Ofcom should urgently seek from other EU states an agreement that will allow Ofcom to have such observer status so that Ofcom can benefit from the continuing exchange of best regulatory practice, and indeed the regulators at BEREC can benefit from Ofcom’s expertise.

[Lord Foster of Bath]

Does the noble Lord agree that if he wishes to achieve that which he seeks—I entirely agree with him—there will have to be a change to Article 128 of the withdrawal agreement? That article specifically says that any invitation to attend will be exceptional and only in specific circumstances—namely, as it says in paragraph 5(a) and (b), that,

“the discussion concerns individual acts”,

or individuals within the UK, or, and this is critical,

“the presence of the United Kingdom is necessary and in the interest of the Union”,

and so on. So it is very clear that even if we sought that invitation to attend, it would be in limited circumstances unless changes are made to Article 128.

[Lord Pannick]

I share the noble Lord’s concern. It is all very puzzling. That agreement is of course a premise that contradicts the premise of these regulations. As the noble Lord says, these regulations are entirely on the premise that there is no agreement. What is puzzling is that if there is an agreement, the circumstances in which Ofcom would be able to participate in BEREC appear to be very restrictive indeed. There is therefore real concern that, in the event of no agreement, it might be said by BEREC that the circumstances in which Ofcom could participate could not be greater than the circumstances if there were an agreement. That is why I ask the Minister to confirm that it is the Government’s intention that Ofcom should be able to participate, which is obviously sensible and desirable for everybody. Has there been any discussion with our European colleagues on whether that can and will be secured in the event of no deal?

European Union (Withdrawal) Bill

Debate between Lord Foster of Bath and Lord Pannick

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

[Lord Foster of Bath (LD)]

My Lords, I have added my name to Amendment 43, and I support Amendments 44 and 45. I begin by disagreeing slightly with the noble Lord, Lord Carlile. I suspect that I am in a minority: those of us who are not lawyers.

However, I am very conscious that during our deliberations so far we have heard many times that the Bill is intended to ensure that,

“as a general rule, the same rules and laws will apply after we leave the EU as they did before”.

About an hour ago we heard a very powerful reiteration of that from the noble Lord, Lord Duncan, who made it very clear that he believes what the Government seek to achieve. Yet that has to be put alongside the continuing concern in the other place and in many parts of your Lordships’ House that somehow or other Schedule 1 provides the Government with a get out of jail free card—an opportunity to have a series of measures which appear at least to curtail some of the legal rights and remedies we have enjoyed as a result of our membership of the European Union. A glaring example of that was well illustrated by the noble Lords, Lord Davies and Lord Carlile, and the noble Baroness, Lady Altmann, and is contained in paragraph 4 of Schedule 1 in relation to Francovich.

As the noble Lord, Lord Carlile, rightly pointed out, Francovich is not just some right whereby anybody who feels slightly aggrieved by their Government not properly implementing some piece of EU legislation can immediately start action. Three clear criteria have to be met and have already been laid out: that there are rights conferred on an individual, that the breach was sufficiently serious, and that there is a clear causal connection between the breach and the damage sustained by the individual.

It seems clear, at least to me as a non-lawyer, that if paragraph 4 of Schedule 1 remains in the Bill, no retrospective claims under Francovich will be permitted, and certainly not if the proceedings have not been started before exit. In those cases, individuals will lose their ability to claim damages against the state for failure to implement EU laws and directives issued pre-exit. This would mean that the victim of a government failure to correctly implement an EU law must have started action before exit day, but that will not always have been possible and would seem contrary to natural justice. Access to justice, including the ability to challenge the actions of the state before a court of law, is central to the rule of law. If paragraph 4 of Schedule 1 remains as it stands, it seems that access to justice for some people will be denied.

I was in your Lordships’ House some 10 days ago when we heard during exchanges on the Statement on air quality that the High Court had ruled that the Government’s air quality plan, designed to tackle nitrogen dioxide in the air, was unlawful. The Court ruling said:

“It is now eight years since compliance with the 2008 Directive should have been achieved. This is the third, unsuccessful, attempt the Government has made at devising”,


an air quality plan,

“which complies with the Directive and the domestic Regulations."

The judge, Mr Justice Garnham, added,

“In the meanwhile, UK citizens have been exposed to significant health risks”.


It may be that some individuals will wish to argue, under the rule of Francovich, that they have suffered damage and deserve compensation because of the Government’s failure to implement the 2008 directive. Without Amendment 43, or some similar measure, such individuals will be prevented from seeking justice unless they submit their claim and have their case under way before exit day.

In the other place, many other examples of potential loss of access to justice under Francovich were raised. Initially the Minister there, Dominic Raab, offered assurances that:

“Individuals will not lose their ability to vindicate their rights in court after exit”.—[Official Report, Commons, 14/11/17; col. 290.]


It may be—I have no way of knowing—that he believes that to be the case because of Section 16 of the Interpretation Act 1978, which provides that,

“where an Act repeals an enactment, the repeal does not, unless the contrary intention appears ... affect any right, privilege, obligation or liability … accrued or incurred under that enactment”.

So the right to claim under the rule of Francovich post-exit would seem to depend on whether the Bill before us provides an effective and clear contrary intention. Can the Minister tell us clearly whether the Government believe that paragraph 4 of Schedule 1 provides a clear contrary intention, within the meaning of Section 16 of the Interpretation Act 1978?

Certainly, there are some other lawyers who appear very uncertain about that point. For example, the very helpful briefing from James Segan of Blackstone Chambers leads me to conclude that seeking justice by arguing that there was no contrary intention or that it had been introduced ineffectively would lead litigants into a legal quagmire, so I was slightly heartened when in the other place a little later in the deliberations the Minister changed his tune when pressed by, among others, Conservative MPs Robert Neill, Dame Cheryl Gillan and Sir Oliver Letwin. He told them that he acknowledged the importance of legitimate expectations and agreed to see whether these concerns could be addressed, at least transitorily, by regulation rather than in the Bill. I hope that the Minister can update us on progress on that thinking. He has already said in relation to other aspects of Schedule 1 that the Government are willing to do that.

I would have thought that by far the better route to securing the continuation of the rights under Francovich would be to accept Amendment 43 or something like it, and ensure that the Bill makes it clear that when the Government say that the same rules and laws will apply after we leave the EU, they really mean it.

[Lord Pannick]

I have two questions for the Minister. First, will he accept that the right to damages under the Francovich principle is more generous to claimants than the common law principle of judicial review under which you very rarely have a right to claim damages as you need to prove misfeasance in public office or something similar? Does he accept that Francovich is more generous? Secondly, does he accept that it therefore follows that paragraph 4 of Schedule 1 to the Bill conflicts with the Government’s purpose in bringing forward this Bill, which is to read across all existing rights that are enjoyed under EU law? If he accepts that, what is the justification for making an exception for Francovich damages?