European Union (Withdrawal) Bill

Lord Lucas Excerpts

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

[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?

[Lord Lucas (Con)]

My Lords, it seems to me that if the Government break the law, they should be judged on the basis of the law at the time that they break it and that this is not a Bill in which the Government should seek to advantage themselves by averting that principle.

[Lord Leigh of Hurley (Con)]

My Lords, I spoke on this subject at Second Reading in respect of the disputes that arose under the old regime which seem to me to deserve fair treatment. I am aware of instances, in particular relating to small businesses, where it could lead to a very unfair result and deprive genuine claimants of going to the EU courts. The noble Lord, Lord Foster of Bath, mentioned the note by James Segan, and it raises a question which perhaps my noble and learned friend can answer about whether as it currently stands with paragraph 27 of Schedule 8, which was mentioned, and Section 16 of the Interpretation Act 1978, there could be action under the Human Rights Act. It would be politically unacceptable, apart from anything else, to see claimants pursuing their claims if there were that interpretation.