Motor Insurance: Court Judgments

Hannah Bardell Excerpts

Wednesday 22nd September 2021 Westminster Hall

[Hannah Bardell (in the Chair)]

Before we begin, I encourage Members to wear masks when they are not speaking. This is in line with current Government and House of Commons Commission guidance. Please give each other and members of staff space when seated and when entering and leaving the room. As a result of votes earlier, the debate will go on until 5.45 pm, notwithstanding any votes that we may have during this debate.

[Theresa Villiers (Chipping Barnet) (Con)]

I beg to move,

That this House has considered the effect of recent court judgments on the cost of motor insurance.

It is a pleasure to serve under your chairmanship today, Ms Bardell. I would also like to warmly welcome the Under-Secretary of State for Transport, my hon. Friend the Member for Copeland (Trudy Harrison), to her role. I am sure that she is going to be a great success.

Today, I want to make the case for the removal of the EU rules contained in the European Court of Justice judgment in the case of Damijan Vnuk v. Zava rovalnica Triglav d.d. I would like to thank my constituent Robert Rams and the Motor Insurers’ Bureau for alerting me to this problem and providing some very helpful briefing information.

Mr Vnuk was the victim of an accident involving a reversing tractor inside a barn in a farmyard in Slovenia. He took his compensation claim to the European Court of Justice. In the United Kingdom, an incident of this nature would be covered by our compulsory employer’s liability insurance regime, but not all EU member states have such a scheme to protect employees in the workplace. In its 2014 judgment, the ECJ therefore shoehorned Mr Vnuk’s compensation claim into the EU’s motor insurance law. In doing so, it extended the scope of compulsory motor insurance to accidents on private land involving a very broad range of vehicles—essentially, anything with wheels and a motor that does not run on rails, no matter where it is used or for what purpose. This is manifestly different from the compulsory motor insurance requirement in the Road Traffic Act 1988, which applies to vehicles that are permitted to be used on our streets and roads.

The UK’s approach to compulsory motor insurance has been consistent since the 1930s. It is proportionate and it works. However, Vnuk had direct effect in EU law, and that means that it forms part of the retained EU law imported on to our domestic statute book via the European Union (Withdrawal) Act 2018. As a result of cases in the UK courts, such as Lewis v. Tindale, the UK’s compensation fund for people injured by uninsured drivers is now obliged to pay out in the circumstances covered by the Vnuk judgment.

The UK compensation fund is run by the Motor Insurers’ Bureau, and every driver who takes to our roads funds the scheme through their motor insurance premiums. The combined effect of the Vnuk and Lewis cases and the 2018 Act is that the scheme is now having to bear very significant costs for which it was never designed, and motorists are left picking up the bill. Let us be clear about what we are talking about here: accidents on private land, in private gardens, in farmer’s fields, on golf courses, inside supermarkets, in banks or in offices—the list is long. These are places where what has happened, or even the fact that anything occurred at all, will often be difficult to establish with any clarity, and that gives rise to worrying opportunities for fraud. The extension of compulsory insurance to motor sport is a further side effect of the case.

--- Later in debate ---

[Theresa Villiers]

It would indeed be most unfortunate, and I am grateful to all the hon. Members who are here to make such points on the need to resolve this issue because of the potential pressure on household budgets.

In a column in The Daily Telegraph, the Prime Minister —in the years before he became Prime Minister, of course—described Vnuk as the “perfect example” of the over-regulation that had

“sapped the competitiveness of the EU and burdened it with low growth and high unemployment.”

He continued:

“There is no need, no call, no demand, no appetite, no reason, no justification, not even the shred of the beginnings of a case—in the United Kingdom—for this kind of pointless and expensive burden on millions of people.”

Against that background. it would have been reasonable to expect the Government to remove the effects of Vnuk from UK law once the transition period ended. There is nothing to prevent them. Under the terms of the European Union (Withdrawal Agreement) Act 2020, a simple piece of primary legislation is needed to make the change. In a February press release, the Transport Secretary said that his Department intended to do just that, adding that he was delighted to announce that we no longer needed to implement Vnuk.

Sadly, since then, not a great deal appears to have happened. Nothing on this was mentioned in the Queen’s Speech in May. In late June, the Transport Secretary did issue a written ministerial statement, which is welcome. In it, he said that delivering the commitment announced in February was a priority and that the Government would follow the passage of the private Member’s Bill tabled by my hon. Friend the Member for Wellingborough “with interest”.

As we have heard, my hon. Friend’s Motor Vehicles (Compulsory Insurance) Bill would deliver the legislative change we need. I very much welcome the Bill and urge Hon Members to support it when it returns to the House on 22 October. I gather that the Department for Transport has advised on the drafting of the Bill, so hopefully, as the Prime Minister might say, it is oven ready.

I hope this debate will give the Bill some momentum and reassure hon. Members who follow Friday business with care that the issues it seeks to address have received proper scrutiny in this House. However, as everyone here today will understand, a presentation Bill of this nature almost never gets the parliamentary time it needs to reach the statute book. It takes an extraordinary amount of good fortune and a very fair wind for such a Bill to make any progress at all. In the Sessions from 2010 to 2019, 470 presentation Bills were tabled and only six became the law of the land. I am afraid a Government Bill is needed, along with adequate parliamentary time set aside for it to be debated and passed, perhaps as part of a wider regulatory reform Bill going through Parliament. As yet, there is no sign of that happening.

Meanwhile, even as this rather sorry state of affairs in Westminster persists, the irony is that Brussels has been working on a package of changes to EU law that would remove the most extreme effects of the Vnuk case. The rapporteur of the European Parliament described the case as an example of “absurd over-regulation”. The changes have been approved by the Council of Ministers and apparently passed by the European Parliament, so their entry into effect would appear to be fairly imminent. When that happens, we could face the bizarre situation where the UK is forced, by its own law, to continue to apply that absurd over-regulation because its effect was frozen into our legal system as retained EU law at the end of the transition period. In the meantime, the EU has taken action to mitigate the problem, relieving its own motorists of the unfair cost burdens the case imposes.

I do not think that that is what taking back control should look like. Now we have left the European Union and regained the power to make our own laws in this country, we need to use our new freedoms wisely to build a regulatory system that is more proportionate, more agile, more adaptable and better suited to our domestic circumstances here in the UK.

Earlier this year, I was asked by the Prime Minister to be part of his taskforce on innovation, growth and regulatory reform. The report we published contains a series of ideas for how the Government can create a modern regulatory framework that is based on core principles of domestic common law and that facilitates both innovation and competition. There are huge economic benefits to be realised if we do that, particularly in the high-growth, high-tech sectors of the future. Last week, it was encouraging to hear the Paymaster General outline the Government’s plans to do that in response to the TIGRR report, and the Minister responsible for EU relations, Lord Frost, is to be commended for the proposed regulatory reforms in the paper he circulated on the same day. However, one of the key barriers he faces is the fact that the European Union (Withdrawal) Act 2018 means that retained EU law can, in the main, only be amended or repealed using primary legislation. The Vnuk controversy shows that we urgently need a faster track way to remove or update EU laws that no longer work for us, most of which arrived on the statute book via secondary legislation in the first place.

My message today to the Minister and to the Government is that we need to get on with tackling the Vnuk problem. I urge them to take action now to put things right and remove the case from UK law. That will mean bringing forward their own Bill in Government time so that we can make repealing Vnuk a demonstrable benefit of leaving the European Union and regaining the historic right to make our own laws in our own Parliament once again.

[Hannah Bardell (in the Chair)]

I will seek to call Opposition spokespeople by 5.23 pm and the SNP and Labour spokespeople will have five minutes each.

--- Later in debate ---

[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—

[Hannah Bardell (in the Chair)]

Order. The right hon. Gentleman is making a very flavourful, detailed and interesting speech, but I gently remind him that we are trying to stick as best we can to the specific topic of the effect of the court judgment on the cost of motor insurance. He is giving us a very interesting tour of his knowledge of EU retained law, but I gently remind him of the topic.

[Sir William Cash]

I am very glad that you mention that, Ms Bardell. I am not giving a tour of my knowledge; I am giving a tour of the answer to the question that is before the Chamber at the moment. It is the only way it can be dealt with. The remedy is there, as my right hon. Friend the Member for Chipping Barnet has said.

I will pursue this point for a short few minutes, because it is really important to get this on record. The objective of the grandfathering of EU retained law was to maximise continuity and stability following our withdrawal, without an express commitment to keep this anomalous category of law on the statute books indefinitely. There are ambiguities in all this and they have to be resolved as well. As I have indicated, the most dangerous situation would be if the concept of EU supremacy continued to apply, notwithstanding what I have said.

We have one directive here. I can assure you, Ms Bardell, that the House of Commons Library briefing paper No. 08136, published in November 2017, identified up to 20,000 EU laws that fall into this category. Forgive me if I make the point again, but it is important that people understand the scale of the problem and the fact that it can easily be remedied. About 900 directives are in force, almost all of which apply to the UK, which are not generally retained, and there are 12,484 regulations, around 7,000 of which were incorporated in the UK as

“the amended legislation is considered as one with the legislation amending it”.

There are 7,000 EU decisions, which are converted through the European Union (Withdrawal Agreement) Act and apply to the UK. That also includes European court judgments and case law before exit date, converted to UK law as retained EU case law.

I am now Chairman of the European Scrutiny Committee, having been on the Committee for 38 years, with my hon. Friend the Member for South Thanet (Craig Mackinlay). I can assure the Chamber that there is a very easy way to achieve this, but it is a complicated political manoeuvre, which is now under consideration by the Government. These laws were passed under qualified majority vote, as was the ports directive, for example, which I believe is now on the execution block for the same reason. It was done by qualified majority voting behind closed doors, and much of the legislation that emerged out of the Single European Act is stuff that we would never have implemented ourselves.

In a nutshell, this is a serious matter. It raises questions of sovereignty and the role of the courts, and it raises practical questions of the scale that my right hon. Friend the Member for Chipping Barnet has referred to. One incident she mentioned would cost the British taxpayer £1 billion. That is the scale of the necessity to get this right. I conclude by congratulating my hon. Friend the Minister. She and I have got to know one another very well over the past few years and I am delighted that she has got the job.

[Hannah Bardell (in the Chair)]

I thank the hon. Gentleman. We will now move to the Front-Bench speeches. I call the SNP spokesperson, Alan Brown.