European Union (Withdrawal) Bill

Debate between Suella Braverman and Chris Leslie

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

[Mr Leslie]

I am not quite sure that is the interpretation of the courts, which have referenced the charter of fundamental rights in a number of cases. If the hon. Gentleman listens to the case that my right hon. Friend the Member for East Ham (Stephen Timms) will make in respect of amendment 151, on the free flow of data across borders and on the protections we have, he will hear how the very backbone of our data protection laws, which go alongside the general data protection regulations, is represented in the charter of fundamental rights. It is not me making the case; it is techUK, the trade bodies and the organisations that campaign and fight to protect data and privacy rights. Many organisations and non-governmental organisations will be bombarding the inboxes of Conservative Members as we speak about those protections.

[Suella Fernandes (Fareham) (Con)]

Will the hon. Gentleman give way?

[Mr Leslie]

I want to make a little more progress, if I may, because I need to reference a number of other amendments.

I hope this is not the case, but it seems to me that the Prime Minister, worried that hard-line Eurosceptics and Brexiteers on her Benches are champing and nipping at her heels, had to throw them a bone. There was a need to give them something, and therefore the charter of fundamental rights was the scalp she felt she had to throw in the direction of some, but not all, Conservative Members. I hope that is not the case, because significant protections on data, on children’s rights and on public health—even the protections that the Secretary of State for Exiting the European Union himself has used—are rights and privileges that we should jealously guard. It is our job in this Parliament to stand up and point out when the Executive are potentially trying to erode many of those rights. I hope we can keep the charter or, at the very least, have a report on its effect.

Amendment 62 also addresses changes in rights. This is not a pure copy-and-paste exercise, and the amendment seeks to preserve something known as the Francovich rule in our legal system. Essentially, it is a fundamental principle of any democracy that Governments should not be above the law. In EU law, the principle is made real by the Francovich rule, which was established by case law that provides citizens with tools to recover damages when their Government fall short of legal obligations. In this case, again, the Government are trying to do away with those protections, and I tabled the amendment—other hon. Members have tabled similar amendments—to probe the Government and to find out what will be the effect of removing the Francovich protection.

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[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.

[Suella Fernandes]

As the hon. Gentleman will know, the threshold for claiming damages under Francovich is that the breach needs to be “sufficiently serious”, which is a principle stemming from EU jurisprudence and case law from the European Court of Justice. Is his position that claims will be interpreted under UK law even in the event of a lack of provision of “sufficiently serious” in UK statute, or is it that UK courts would be applying ECJ jurisprudence in that event?

[Mr Leslie]

Would it not be great if we were having a proper debate about retaining Francovich protections, albeit possibly making an amendment? The hon. Lady may well have a case for increasing or decreasing the level of the damage thresholds in place, but that is not what we are debating; we are debating simply the deletion of this Francovich protection—that right to redress—from our laws and protections. I would be happy to discuss with her where that level should be set, as there is a debate to be had about that, but we are talking about the principle, yes or no, and whether this should be retained within this legislation.