European Union (Withdrawal) Bill

Mary Creagh Excerpts

Committee: 3rd sitting: House of Commons
Tuesday 21st November 2017 Commons Chamber

[Mr Leslie]

My hon. Friend makes the point well. We can all imagine circumstances in which the Government could be in part responsible for failures to comply with various legal obligations—as she says, it might well include failure to comply with air quality directives—and those who suffer harm as a consequence of those Government failures may no longer have the right of redress. Those rights exist not only in environmental legislation but in, for instance, equal opportunities legislation. I can foresee circumstances in which a same-sex couple seek retroactively to claim their right to pension arrangements that might not have existed in the past so that they can accrue their pension rights, but they would not have redress to do so under the proposed arrangements.

The other big one is competition law, which relies very much on the right to challenge the Government, particularly on procurement arrangements. Companies that say they did not get a contract for such and such a reason may well feel that it was partly because they were unfairly treated by Government. Under the Francovich arrangements we have protections so that contracts can be let fairly, be it for house building, transport infrastructure or anything else we can name. A number of protections need safeguarding there.

Perhaps the biggest one that has not been addressed by Ministers and where Francovich may still be required is the protection of the rights of EU nationals after Brexit. A number of EU nationals will continue to reside in the UK after Brexit, but what will happen if their residency rights or definitions change, if their children are affected by changes of arrangements with the Government, or if rights to claim various tax reliefs or other things change in an unfair way for them, as EU nationals? There should be some level of redress against malfeasance by Government in that respect, so at the very least we need to hear from Ministers a better justification for the deletion of this Francovich protection.

[Mary Creagh (Wakefield) (Lab)]

My hon. Friend is making some excellent points. His amendment on Francovich echoes my own, although mine is slightly different on time limitation. Does he agree it is unthinkable that a Government who throughout this Bill have said, “All rights and protections would be guaranteed,” are now seeking to remove the ability to sue the state for imperfect administration, mostly of directives, at a time when they are about to incorporate hundreds if not thousands of pieces of EU law into our UK law? They are saying, “If anything goes wrong with any of that, you’ve got no right to sue us in the future.”

[Mr Leslie]

My hon. Friend is correct about that and she has tabled a very good amendment on this issue. Ministers need to do better and explain why they would seek to wrench out of the protections for our citizens this potential right-to-redress arrangement, particularly as it may well affect malfeasances and the need for redress that takes place before exit day. This is not just saying that this rule will not apply to situations that occur after exit day; its drafting would prevent that right to redress, even if the claim itself relates to an occasion prior to exit day. All hon. Members, regardless of political party, should therefore think of their constituents, the cases we pick up and the surgery discussions we have with people who ask what they can do. The Government are a large and powerful organisation—many Conservative Members often make that point about the size and power of the state—and individuals need rights in order to protect themselves in some of those circumstances. This is something that really should transcend the normal party political issues.

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[Mr Leslie]

I have been in Parliament since 1997, on and off, and I find that amendments can often be rebutted for a number of reasons but when people say there is a technical deficiency that tends to be the last refuge of the Minister. There may well be arguments that say that we need to cut and paste the charter of fundamental rights or the Francovich provisions, but to do so having regard to changes in the language to take account of new circumstances. Everybody can recognise the need for consequential or supplemental amendments to the legislation sometimes, but let us not kid ourselves: we are talking about some far bigger principles here. I hope the hon. Gentleman would not diminish the importance of the charter of fundamental rights and those myriad legal rights and protections we have that are so essential for the specific and general reasons I have given in this debate.

[Mary Creagh]

rose—

[Mr Leslie]

I will give way one more time but I want to make sure that other Members have a right to speak today as well.

[Mary Creagh]

I am in violent agreement with the right hon. Member for Broxtowe (Anna Soubry) on the issue of Francovich, and I will be speaking to those points in more detail when I come to talk to my amendment. Does my hon. Friend share my concerns that certain rights in the charter such as environmental rights, consumer rights and the rights of the elderly in particular, which are not highly developed in UK case law or in any other sort of legislation, are gently being thrown out with the bathwater in this removal of the charter of fundamental rights?

[Mr Leslie]

That is an exceptionally important point. Our legal system is one of the finest in the world. It is a dynamic legal system and is not simply reliant on statute; it can relate to cases as they evolve. The charter of fundamental rights, which could equally be a charter within the UK law, according to this Bill, if it were transposed, could help to maintain that dynamism and the protection of rights to fill the gaps when those unforeseen circumstances arise. We do not know what issues our constituents will bring to us from one week to the next, but we may well have a constituent who has found that their rights have been deprived unfairly and who needs redress to protect them from the Government or others. In our surgeries and discussions, what will we say to our constituents in such circumstances? What will we say when they say, “But you had the opportunity to transpose and retain the protections under the charter of fundamental rights”? Will we say “Oh, well, it was a very busy day. I didn’t really notice what was going on in the Chamber. There were lots of complex things going on to do with Brexit”?

This really matters. I am delighted and proud that many Members from all parties in this House are voicing their concerns and are not prepared to see these rights just swept away on a ministerial say-so.

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[Mr Grieve]

That could be a solution, but even if we do not have time to move to that and to have the necessary debate—as we highlighted in the question about the statutory instrument powers that the Government are taking to change law—some comfort and reassurance might be provided with the fact that there are some categories of EU-derived law that could do with at least the assurance that they would require primary legislation to change them. That might go some way to providing reassurance to some of the perfectly worthy organisations that have been writing to us that there is no malevolent intent towards this important area in which rights have developed.

[Mary Creagh]

The general principles of European law do not cover the principles of environmental law. That was made clear to us in terms from the Dispatch Box last week. The charter does guarantee those environmental rights. Does the right hon. and learned Gentleman agree that environmental principles are one area in which this Bill is deficient and in which our rights will be lost?

[Mr Grieve]

I agree that environmental law is an area that could do with the scrutiny that I have just outlined.

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[Charlie Elphicke]

I agree with my hon. Friend. I think that it does make sense to look at this category of rights, whether in this Bill or more widely; it is something the House should consider.

Where is the balance to be struck on article 8, which relates to the protection of personal data? My view, for what it is worth, is that I should own my own data and decide what happens to it. It is my own data about me, so I should not have the Government or big businesses saying, “No, it belongs to us.” That is a debate that we should have as a country. This Bill is probably not the right mechanism for that debate, but we need to consider where the balance should lie.

Article 41 sets out the right to good administration. The Minister will say, “Well, of course we administer correctly; we are honourable men”—so are they all. But it is important that, as a matter of principle, every person

“has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies”

and that the right includes

“the right of every person to be heard, before any individual measure which would affect him or her adversely is taken”.

It seems to me that these rights are self-evident and true, and that we ought to ensure that they are written into our codes, from the point of view of executive action, if they are not already. They include

“the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality”

and

“the obligation of the administration to give reasons for its decisions.”

Those things, it seems to me, are self-evident and basic about what we are and should be about. These are rights that are not written into our system fully and properly, but I think that there is a strong case that they should be. I have of late had reason to ponder such matters in more depth, and the House should consider them to ensure that we execute such things properly in our system, our way of life and the values that we hold dear. The House should take back control to ensure that the rules of law and of executive action apply to each and every person in this nation and that we strike the right balance as we take on the great responsibility of restoring sovereignty to our sovereign Parliament.

[Mary Creagh]

It is a pleasure to follow the hon. Member for Dover (Charlie Elphicke). I voted against this Bill on Second Reading due to the powers that it puts into Ministers’ hands and the fact that it sidelines Parliament in many of these moments of incorporation. We have heard Government Members waxing lyrical about putting things back into the hands of this sovereign Parliament, but the Bill puts into the hands of Ministers the power to pass or strike out almost any law, and that point has been missed in this debate.

I am not a legal expert. I am not a barrister. I do not have a law degree. What I have is a semester spent studying Government law and policy at the London School of Economics as part of my master’s in European studies, and I have a massive book by Craig and de Búrca, which is still on the shelf in my office. As I was reading through the Bill, I noticed “Francovich” and that rang a little bell in the reptilian core of my brain. I thought to myself, “Ooh, that is one of those really important cases that I learned about 20 years ago,” and it turns out that that master’s has been the best money that I ever spent.

Francovich is one of the areas where the Government break their promise to cut and paste the whole body of EU law into UK law. Schedule 1 is their get-out-of-jail-free card and includes the things that they do not like and are not going to incorporate. There are a lot of words about why things will be difficult, why judges will be confused and why everyone will be getting themselves into a twist, but it is a rights grab and it must not be allowed to stand. We must not allow schedule 1, which is essentially a list of the ways in which the Government are curtailing legal rights and remedies that we have enjoyed as a result of our membership of the EU. Admittedly, however, some of those rights and remedies did not exist when we joined and have evolved over time through European Court of Justice jurisprudence and through the treaties.

For the last 25 years as EU citizens, we have enjoyed the right to state compensation when the Government fail to implement EU law correctly and an individual suffers a serious loss as a result—that goes back to my big green textbook. The rule was established after Andrea Francovich took his Government to court for failing to protect his rights at work. He worked for an electronics company in Italy, but he was paid only sporadically, and he was still owed pay when his employer went bust. The insolvency protection directive gives workers the right to be paid if their employer goes bust and they are owed wages, but Italy had failed to implement the directive, and the European Court of Justice ruled in 1991 that the Italian Government must make good the pay owed to Mr Francovich and, presumably, his colleagues. Since then, if an EU member state has failed to fulfil its obligations that come with membership of the EU, citizens can obtain compensation if they suffer damages as a result. I think the reason why that stuck in my mind was that the EU case law was relatively fresh 25 years ago.

How did the ruling apply in the UK? There is a particularly sad case that any one of us could have had as constituency MPs: the case of Ben Byrne. Since 1984, the second motor insurance directive has required member states to provide compensation arrangements for victims of untraced drivers and that the protection must be equivalent to that which is available for victims of insured drivers whose identities are known. In 1993 the then three-year-old Ben Byrne was hit by a car while crossing the road with his father. The driver sped off and was never found. Ben’s parents were not aware of his right to claim compensation until eight years after the accident.

We get such difficult, knotty cases in our constituency surgeries, with people being unaware of their rights and remedies under the law. Many of us will have held the hand of a constituent in terrible cases to ensure that they get justice.

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[Anna Soubry]

There is genuine concern across this House about this matter, because it cannot be right that people cannot raise a claim on EU law “retrospectively”, as the hon. Lady puts it. My right hon. Friend the Member for Chesham and Amersham (Mrs Gillan) has raised this problem, so I hope the Government will examine it and come up with proposals that will satisfy this concern from right across the House.

[Mary Creagh]

I thank the right hon. Lady for that intervention. Often the simplest sentences raise the biggest alarm bells, because things can be missed if we blink, and substantial rights are engaged in this. The Brexit Secretary said in his speech to UBS last week that the UK would remain

“in all the EU regulators and agencies”

during the transitional period. That leaves us with a further conundrum, because transitional rights are mentioned in the European Commission’s negotiating paper and it says that the ECJ will continue to be able to decide, presumably on Francovich, during any transitional period. The issue of the transitional period is stretching the elastic limits of the Conservative party and of the Cabinet at the moment in terms of which wing of the party is going to succeed, but from the point of view of economic stability and job stability in this country I certainly want to see a transitional period. This Bill raises questions about the loss of those rights if there should be, as we all hope there will be, a transitional period.

The problem is that those rights start to erode as exit day looms, because the incentive to follow the EU directives will be diminished for the Government as they will be let off the hook, given that there will be no retroactive right to sue under Francovich.

Schedule 1 therefore fails the basic test of fairness. For example, if the Government are in breach of an air quality directive, perish the thought, and people are suffering a substantial loss as a result, only those who start legal proceedings before exit day would be entitled to those damages. My amendment 139 would ensure that the right to sue the state and to obtain a remedy under Francovich is still available for those who have suffered that loss or damage before the UK exits the EU. This would allow the victims of a Government failure to uphold their rights that took place before exit to obtain those damages. It would bring fairness to this process, as well as, crucially, legal continuity and legal certainty. Brexit must not be used as an excuse to abolish citizens’ rights and protections under the law. In the referendum my constituents did not vote to reduce their rights, and I hope the Committee will be able to test the matter this evening.

[Sir Oliver Letwin]

I have considerable sympathy with the points just made by the hon. Member for Wakefield (Mary Creagh). Exactly at which point to create which cut-off when dealing with Francovich is a knotty issue, but the idea that people whose rights already exist and who are damaged before exit should be prohibited from pursuing causes that they would have been able pursue now had they had the wit to start them now is pretty offensive to natural justice, and I hope that those on the Treasury Bench will come forward with some adjustment to paragraph 4 of schedule 1.

I mainly wish to dwell on the two other issues that have been raised in this interesting debate, which has been much more of a genuine Committee stage debate than some of the debates, or some parts of them, that we have had in the previous two days’ consideration. The first is on the charter of fundamental rights, where I thought the argument was largely being won by those who argued that it was not productive to have the general principles in that charter brought into UK law, provided that we could satisfy ourselves that case law and statute between them would cover off all the material and substantive rights contained within the charter. I was therefore extremely heartened to hear the Minister of State, Ministry of Justice, my hon. Friend the Member for Esher and Walton (Dominic Raab), say that there was going to be a full analysis, which I hope will be sufficient to persuade us all that all the rights are covered off in some other way. If they are, the points that were made about the dangers of judicial activism, which is positively invited by the charter of fundamental rights, would outweigh any advantage to the charter’s incorporation.

Before I come to the main point I want to make about paragraph 3 of schedule 1, I wish to observe, as a slight qualification to some of the things that have been said in Committee, that an element of judicial activism will not only be made possible but actually be required by the Bill, because it refers repeatedly to retained principles and it is impossible for judges to engage in the application of principles without their engaging in judicial activism that goes beyond simply reading the plain face of statutes and the like.

This is all a very grey area. With that in mind, I come to amendment 10, tabled by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), and paragraph 3 of schedule 1. His amendment refers to paragraphs 1 to 3, but in my view it refers mainly to paragraph 3. There is currently a great oddity in the way the Bill is cast. I very much hope that not too long from now my hon. and learned Friend the Solicitor General will come to the Dispatch Box and resolve this problem, but it is important to set out the nature of the problem.

Clause 5(2) clearly establishes the principle of the supremacy of EU law so far as the past is concerned. It spells it out in awesome terms, by including the

“disapplication or quashing of any enactment or rule of law”—

if that phrase has any meaning—

“passed or made before exit day.”

Clause 6(3)(a), which we discussed on a previous day, makes it entirely clear, at least in relation to the ordinary operation of the lower courts—my right hon. and learned Friend the Member for Beaconsfield and I are still discussing with Ministers on the Treasury Bench the vexed question of the Supreme Court—that not only retained case law but

“any retained general principles of EU law”

are to be applied by the courts.

It is therefore a strange state of affairs that if we look at schedule 1, we discover that no court or tribunal will be able do the very things that the combination of clauses 5(2) and 6(3) require. No court or tribunal will be able to apply the general principles of EU law to quash or be supreme over any existing UK law. We can have a Bill that says one thing or we can have a Bill that says the opposite, but we cannot properly have a Bill that says in one part of it one thing and in another part the opposite of that thing, so some change is required. That much is, I think, simply a matter of analytical fact.

My preference, which I hope the Solicitor General is going to reflect in his remarks, is for a change of the kind that has come up in various exchanges this afternoon. It is considerably more modest than the rather uncharacteristically complete, sweeping amendment tabled by my right hon. and learned Friend the Member for Beaconsfield. I would simply amend paragraph 3(2) of schedule 1 in such a way as to ensure that it refers to general principles of EU law other than retained principles. At that point, it seems to me, rationality would re-enter the scene, because we would then be saying that after exit day a court in the UK could not use later principles developed by the CJEU—or indeed, while we are at it, any charters or other documents produced by the EU—to overrule English statute, which would of course be a natural and proper consequence of our leaving the EU.

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[Antoinette Sandbach]

I do accept that that needs to be looked at. The problem with the sovereignty of Parliament is that we always get to the point where the Parliaments of the future can change and erode these rights. I agree with my right hon. Friend’s earlier suggestion that in due course the Human Rights Act ought to be amended to include the broader category of rights. We are seeing an evolution and a change in our rights, and it is important to reflect that in that Act.

[Mary Creagh]

The hon. Lady is making some excellent points. Several of her Conservative colleagues have argued that some of the rights contained in the charter are otiose—one of them being, perhaps, the right not to be subjected to forced expulsion. That is, thankfully, not something that we have seen in this country, but it was a persistent feature in 20th century Europe. We are now at a stage where the Home Office is sending out letters to EU nationals threatening them with deportation. Although some of those individuals may yet have recourse to their rights under the European charter, they will not be able to exercise them after we leave.

[Antoinette Sandbach]

The hon. Lady does my colleagues a great disservice. The rights that my colleagues described as otiose were, for example, the right to petition the European Parliament or the right to stand in EU Parliament elections. I think she is also being unfair to the Home Office, which has made it very clear that the letters to which she refers were sent out by mistake and did not accurately reflect the position.

Nothing that the hon. Lady has said takes away from the point that the charter of fundamental rights contains a third category of rights that may not have protection. I am encouraged that the Government are going to undertake the exercise that has been mentioned, which they need to do, before Report. It is important that the Committee takes very informed decisions about where the gaps are. For that reason, I very much support amendment 10.