European Union (Withdrawal) Bill — House of Lords, 2018-03-05
Topic: Law and Crime
John Davies (Labour, Centre-left): My Lords, it is not easy to generate a great deal of excitement at this time of night about an item of jurisprudence, but I rise to speak about the Francovich principle, which is extremely important both as a general principle—in fact, I do not think that there is any more important principle in our legal system—and as an instrument for driving ever-better standards of governance and of output by the public sector. Let me explain this briefly The Francovich case, as I think noble Lords will know, and certainly all noble and learned Lords will know very well, is a piece of jurisprudence dating originally from 1991 that has been with us for 25 years. It has become very much part of the scene, and I think that without exaggeration I can say that it is part of the political and legal culture that we have created in the European Union over that time. It has been extended by jurisprudence so that it covers states, public authorities and agencies as well as local government, and more recently it has also been extended to cover the private sector. What the principle says is that where an individual, a corporate body or a state body has been in breach of union law and corporate or private individuals have suffered thereby, they have the remedy that the courts concerned are able to impose damages proportionate to the losses incurred by those who have suffered as a result of the bad governance concerned When I say that it is a very important principle and a very important pragmatic instrument, let me explain that. Surely the very important principle here is that the state must be subject to the law. If I go out and break the law, I can be arrested, charged and eventually fined, or even sent to prison in certain cases—and I can certainly be sued for civil damages for negligence, breach of the law et cetera. If, however, state bodies are immune from the law, the relationship between the citizen and the state is very different from the one we like to think exists in a constitutional democracy. That principle is very important and it will cease to be enshrined in law if we do not amend the Bill as it currently stands The valuable, pragmatic instrument to which I referred is simply that the existence of the Francovich judgment, which—as the Library told me—has been cited by over 300 cases since and has played a major part in many decisions. If I had more time I would digress on the bad planning decisions that have been reversed and the beaches and rivers that have been cleaned up as a result of the working of this principle. The principle drives better government the whole time I dare say that the Government, in their contribution to the debate, will say, "It doesn’t matter because when we leave the Union we can fall back on judicial review". Judicial review is a creation, of course, not of European jurisprudence but our own jurisprudence; it is a very valuable principle and a valuable achievement over the past 50 years. In my view, as I have already argued, it is not quite as important or valuable as the Francovich principle, but nevertheless it is a splendid thing. There is a big difference between judicial review and Francovich, because under judicial review, you cannot get any damages. You can spend £3 million or £5 million—I have no doubt that noble and learned Lords will tell me any amount of money you want—by running the case, but you will not get the damages that you would get under the Francovich case. All of us who have been involved in government know that there is nothing more terrifying for any Minister than the prospect of being exposed as responsible for the loss of money in their department. Indeed, the political life expectancy of any Minister who finds himself in that position is frankly a matter of hours rather than days. So the risk of having damages awarded against one is a very real threat to anybody in a position of responsibility—chief executive of the local council, chief executive of an agency, a Minister or whoever—and it makes everybody stop to think extremely carefully. That is what we are talking about in the amendment Going through the Bill, all of us face a great difficulty. We have a choice to make and I do not think that any one of us is completely clear on how we should make it. Hopefully, we will have taken a decision by the time the Bill emerges from Report, but it may take a little while yet. The choice is this: do we believe the Bill or the Government? If we believe the Bill, all these rights and remedies and protections are disappearing. That is what the wording of the Bill before us says—that Francovich has been abolished—quite unambiguously and clearly. In other parts of the Bill, as we have seen today and on other occasions in Committee, it is the same story. We were talking earlier about family rights and labour rights and so forth, and it looks as though some of those are not being protected—even animal rights are not being carried forward on the same terms, with the wording being changed and softened and so on. There are subtle ways in which rights and protections are being withdrawn. That is what you get from reading the Bill. What is more, the Government continually tell us that all the Bill does is make sure that there is no legal uncertainty at the time of Brexit and that we will simply carry forward retained law into British law. In fact, there is an agenda in the Bill that is quite blatant to anybody who reads it. It is not a hidden agenda; it is quite obvious. It is a kind of power grab by the Executive at the expense of the citizen. The European Charter of Fundamental Rights is going, which is clearly a loss to the citizen. Again, the Executive cannot have the charter prayed in aid against them The most concerning aspect is of course the Henry VIII clauses that we have not yet come to, which constitute an extraordinary power grab by the Executive at the expense of Parliament. We have it here again with the Francovich issue. Again, it is a power grab by the Executive, who want to abolish this because it is a trial and a problem for them and the state. They have to perform or else they have to pay up and get humiliated. That is what we see.