Motor Insurance: Court Judgments

Debate between Greg Knight and William Cash

Wednesday 22nd September 2021 Westminster Hall

[Sir William Cash (Stone) (Con)]

I am extremely glad to follow my right hon. Friend the Member for Chipping Barnet (Theresa Villiers), for whom I have the highest regard as a lawyer, a member of the Conservative party that delivered Brexit and—if she does not mind my using the expression—a spartan, because she was one of the people who brought about the situation that we are happily in at the moment, whereby we have the ability to repeal legislation and to deal with some of the problems that she mentioned. In particular, I would mention the fact that the primary legislation in question would be authorised by the European Union (Withdrawal Agreement) Act 2020, section 38(2)(b) of which enables us to override any EU law through an expressed and direct provision in our own primary legislation and therefore to deal with the problem as a piece of primary legislation.

I listened very carefully to what my right hon. Friend said about the private Member’s Bill introduced by my hon. Friend the Member for Wellingborough (Mr Bone), which will receive its Second Reading on 22 October 2021. I merely venture to suggest that there are some precedents for private Members’ Bills to be given some additional oomph by the Government. If they put their mind to it and have the commitment to do it, which I certainly believe should be the case in this instance, it can be done. In fact, I did just that in relation to the International Development (Gender Equality) Act 2014, because the Government gave me full support for a Bill that was languishing at around No. 17 in the private Members’ ballot. The Act did some very substantial things, including imposing on our development aid projects the commitment and guarantee that we would make it a legal, judicially reviewable duty to enforce the protection of women and children in relation to international development aid. If the Government can do it for that, I would suggest that, given the scale of the problem, which my right hon. Friend the Member for Chipping Barnet so expertly described, there is very good reason for them to give support to my hon. Friend the Member for Wellingborough and to ensure that we get the results that are needed in the national interest, as identified by my right hon. Friend the Member for Chipping Barnet.

[Sir Greg Knight]

I agree with what my hon. Friend has to say. Does he agree that the quickest way to deal with this issue is for the Bill to go through on 22 October? He used the word “oomph”. It can go through quite simply, if the Government do not object to it. My understanding is that the Government are not going to object to it, but perhaps we could have some confirmation of that later.

[Sir William Cash]

I may say to my right hon. Friend, who is a very good friend of mine, that that is a very welcome piece of news, because this is exactly what happened in the case of the International Development (Gender Equality) Act. What happened was that the Clerks in the House were sitting there with bated breath to hear whether anyone was going to object, because all that has to be done on such an occasion is simply for any Member to object. It does not have to be a Whip; it can be any Member of the House. On that occasion, we got down to about No. 17 or 18 on the list—wherever I was. There was complete silence, and the Bill went through. That is what can happen, and I therefore strongly agree with what my right hon. Friends the Members for East Yorkshire (Sir Greg Knight) and for Chipping Barnet have said. I think this is a potential opportunity.

I was very interested in what my right hon. Friend the Member for Chipping Barnet said regarding the question of what the EU was up to at that stage. I am speaking as the Chair of the European Scrutiny Committee, and we shall keep an eye of these matters. We also propose reports, bring forward suggestions and inform the House accordingly in Hansard and so forth. On 30 June 2021, as my right hon. Friend said, the European Commission announced a decision to waive the requirement for UK drivers to show a motor insurance green card when entering the European Union. The decision needs to be fully implemented through publication in the official journal, and there is a waiting period of 20 days, so in the short term green cards are still needed.

The point I want to make is that on 29 June, the Transport Secretary published a ministerial statement, along the lines that my right hon. Friend mentioned, on the motor insurance directive—removal of Vnuk, in other words. It states the Government’s commitment, which the Minister announced on the Floor of the House:

“To remove the effects of the…ruling in the Vnuk case from GB law.”—[Official Report, 29 June 2021; Vol. 698, c. 8WS.]

Putting two and two together, if the Minister has said that the Government intend to remove the effects of it, and we have also the opportunity through the private Member’s Bill, and we know it is precedented for the Government to take the action I have described, I see the potential for a fair wind for this. That will be a tribute, not only to my right hon. Friend the Member for Chipping Barnet, who has spoken today, but also my hon. Friend the Member for Wellingborough.

I would like to touch on the principles that underpin the issue of EU retained law. I will outline it by saying that the issue of EU retained law in this context arises partly in relation to the Road Traffic Act 1988, which has not yet been amended to comply with the European Court of Justice decision. Legislative change is necessary, as my right hon. Friend has said, to bring clarity on the matter, given that pre-exit European Court of Justice case law is now part of UK domestic law, as retained EU case law.

Given that, what is going to happen next? I will give a description of the extent, nature and depth of what my right hon. Friend for Chipping Barnet has rightly put forward, in one instance, with huge financial consequences, with the EU going into reverse, and the absurdity of our being in a position where the EU deals with it in its legislation and we are stuck with it in ours. I am now going to address the question of where I think the Government’s navigation should go.

In June 2016, just before the referendum, I was responsible for bringing forward a Bill that set out the basis on which the legislation after we won the referendum—as I was confident we would do—could be dealt with. There is a huge body of legislation, some of which I will refer to in general in a few minutes. Given the scale of the problem, the best thing to do was to deem all EU law as part of UK law, so that at least we grabbed hold of it as a whole, then we could deal with it on a piecemeal basis.

My Bill was one and a half pages long. The Bill we ended up confronting under the former Prime Minister, my right hon. Friend the Member for Maidenhead (Mrs May), went far further and more regressively—if that is not a contradiction in terms—than was necessary, by incorporating the whole concept of EU retained law and the principles of EU law. With it came the assertion in section 6 of the European Union (Withdrawal Agreement) Act 2020 that the courts, if they wish to do so, given the circumstances of a case, would be enabled to quash any Acts of Parliament, if inconsistent with the judgments that they came to in interpreting the issues before them.

That is all very well, but those of us who are acquainted with the manner in which EU law was implemented under section 2 of the European Communities Act 1972, know very well that the Factortame case was the example above all others where the whole of the fishing industry was thrown into chaos, with Spanish fishermen invading our waters. The issue in question turned on the Merchant Shipping Act 1988. I remember saying to the Attorney General at the time that I thought it was a very unwise business for them to do introduce that Act, unless they put at the beginning, “notwithstanding the European Communities Act 1972.” Had they done that, then the judgment in Factortame, which struck down the Merchant Shipping Act 1988, could not have taken place because the courts would have been under an obligation to comply with the provisions of the Act, which would have said notwithstanding the Act of Parliament in question, the UK could legislate on its own account.

I referred to section 38(2) of the European Union (Withdrawal Agreement) Act 2020, which specifically contains the words “notwithstanding” and “direct effect”. It is notwithstanding the direct effect of any provisions that are on the statute book as part of EU retained law, and it enables us to override the European Union (Withdrawal Agreement) Act and, some may care to note, the Northern Ireland protocol. So, the law is in place.

As my right hon. Friend the Member for Chipping Barnet indicated, it can be done by primary legislation. I am just adding a bit of flavour as to how it came about and how it can be done. I listened to my right hon. Friend the Member for East Yorkshire and what he said in the context of the Bill proposed by my hon. Friend the Member for Wellingborough.

I turn to the question of the absurd situation identified by my right hon. Friend the Member for Chipping Barnet and what the Prime Minister said about it some time ago, using very strong language. If it was an absurd position before he was Prime Minister, it is doubly so now, and that is why we need to tackle it. The intention behind the grandfathering, as it is called, in EU retained law under the European Union (Withdrawal) Act 2018—

Terrorist Offenders (Restriction of Early Release) Bill

Debate between Greg Knight and William Cash

Committee stage & 3rd reading: House of Commons & Committee: 1st sitting: House of Commons & 3rd reading & Committee: 1st sitting
Wednesday 12th February 2020 Commons Chamber

[Sir William Cash]

I have already canvassed some parts of what I am about to say, but there is more to say, for a very sound reason. Parliament is full of opinions and Ministers are full of opinions. Two Ministers are sitting on the Front Bench at the moment, no doubt debating the issue before the Committee, but their opinions are not the law, and nor are those of leading counsel, whether senior Treasury counsel or those involved in academic discussion. I say that really seriously. I have been practising the law since 1967 and I know a little about how the law is interpreted. We saw the Gina Miller case the other day. How many times were we told that there was absolutely no question but that the Government were right in their interpretation? I served as the shadow Attorney General and saw the whole of the Iraq and Peter Goldsmith exercise. We were told over and over again in the House this, that and the other about interpretation—“This is what will happen. This is the way it will go.” That is no way to make decisions on matters of this kind of critical importance.

There are occasions on which the question of interpretation may merely be about a modification of policy; this is actually about saving human life. I repeat that: saving human life. Where it is possible for the House to ensure that human life cannot be unreasonably and wilfully disposed of by people who are intent on murdering for no reason at all, we need to take seriously the question of whether or not we can exclude the courts —because this is Parliament, not the judiciary—from making wrong decisions when matters come before them.

I heard with interest the Chairman of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), and the various cases he mentioned, and I have just heard the Minister refer to the Uttley case. There is also the Hogben case, which was of course in 1985, before the Human Rights Act 1998. Reference was also made to the del Río Prada case. As a matter of fact, the legislation does not depend on an interpretation of those individual cases by way of precedent, and that is not what we should be worried about; we should be thinking about the purpose and scope of the Bill and its objective, which is to do everything that we can to ensure that human life and public safety come first. I do not want this to become an argument about the interpretation of law, which is why I tabled amendment 3 to clause 1.

[Sir Greg Knight (East Yorkshire) (Con)]

On the subject of opinions, does my hon. Friend intend to test the opinion of the Committee, or merely the opinion of the Minister?

[Sir William Cash]

That is an extremely good question on which I have already given an indication. Being a realist, I know perfectly well that this is not a Bill to which an amendment is going to be passed—certainly not today—but I did say that the House of Lords, which is where the Bill is going, is full of lawyers, some of whom I will disagree with and have disagreed with for as many years as I have been in the House, but there are others who will take a different view.

I am interested to hear the views of the House of Lords on the question of my proposal to amend clause 1. The wording of clause 1 currently refers to an offence “within subsection (2)” and a sentence imposed

“whether before or after this section comes into force”,

at which point I propose to insert the words

“and notwithstanding the Human Rights Act 1998”.

The effect of that would be to put a complete bar on the use of the Human Rights Act, by interpretation of the courts, in any attempt, whether it is regarded as misguided or is a matter of culture—there is currently a load of culture in the courts relating to human rights questions that have built up over the whole of my lifetime in the law.

I am deeply concerned that we could allow legislation to go through that could be interpreted in a way that would result in human life being lost and public safety being infringed. That is my concern. [Interruption.] I see the Minister looking at me either apprehensively or with anticipation; I am not sure which it is and I do not really care. What I am saying is that I want certainty. I know that if the words “notwithstanding the Human Rights Act” are brought into the Bill, the effect will be to exclude completely, for reasons that I am about to give, any attempt by the courts to modify the effect that the Bill otherwise would have.

I have other concerns about the Bill that I have already made clear. I do not think that offenders should be considered for release after half or two thirds of their sentence. I have a lot of sympathy for what my right hon. Friend the Member for New Forest West (Sir Desmond Swayne) proposes in amendment 1; he says it should be nine tenths. I do not know whether he will address that point later.

The bottom line is that we should not allow this situation if we can avoid it—and we can avoid it, because we are the Houses of Parliament, and as a result of Brexit, we have just regained an awful lot of our sovereignty. This is more a matter of the European convention on human rights than of the charter of fundamental rights—or, for that matter, of Brexit—but the amendment is an indication of the House’s determination to use our sovereignty to make law that will guarantee that we do not face people losing their life, or public safety being undermined.

If we do not include in the Bill the words that I propose in my amendment 3, I believe—as I said before with respect to the Lee Rigby case—that it is not a matter of if such a thing happens again; it is a matter of when. I concede that this is emergency legislation; that is why I support it, but it requires a full, thorough review, perhaps by the Justice Committee, to ensure that we deal with the issue properly and fully.

I applaud the Government for bringing in this Bill on an emergency basis, but I criticise the fact that the Bill does not go far enough. The Minister is, if I might say so, not a lawyer; he can only have received his information from others who are. He is taking a bit of a punt in saying that the words

“and notwithstanding the Human Rights Act 1998”

are not needed. He does not know that. I say that with not only respect, but knowledge and certainty. It is very difficult even for lawyers to be sure what the impact would be of allowing the Bill through without excluding the Human Rights Act 1998 from it.