Ministers urged to preserve right to sue Government after Brexit
The move relates to a European Court of Justice decision in 1991, known as the Francovich ruling.
Ministers must pass laws to ensure British people still have the right to sue the Government after the UK leaves the European Union as a “chilling” clause in major Brexit legislation waters it down, campaigners have said.
Lawyers told the Times that a clause in the so-called “repeal Bill” would mean laws covering areas such as air pollution may no longer be subject to financial redress through courts.
The passage relates to a European Court of Justice decision in 1991, known as the Francovich ruling, which established that EU member states could be liable to compensate individuals or businesses damaged by a “sufficiently serious” Government breach of Brussels regulation.
The repeal Bill, formally known as the European Union (Withdrawal) Bill, states: “There is no right in domestic law on or after exit day to damages in accordance with the rule in Francovich.”
Explanatory notes attached to the Bill state that the clause will not affect people’s rights to claim damages already enshrined in British legislation book or established in case law. But campaigners warned that the repeal Bill clause is so broad that it represents a watering down of rights.
Labour MP Chris Leslie, on behalf of the Open Britain campaign for close ties with the EU, said: “This is exactly what we were told the repeal Bill would not be used for but it looks like another broken Brexit promise. Ministers have repeatedly pledged not to use Brexit to undermine our rights but those warm words are not being backed up by action.
“The wording in the Bill is so broad that it represents a fundamental watering down of rights to redress against the state and ministers should be made to justify such a change. The Government should do what it said it would and ensure in law that none of our rights are lost after Brexit.”
Martha Spurrier, director of Liberty, said: “This chilling clause, buried deep in the Bill’s small print, would quietly take away one of the British people’s most vital tools for defending their rights. Putting the Government above the law renders our legal protections meaningless.
“It exposes a clear agenda to water down our rights after Brexit – and shows exactly why the Human Rights Act is going to be all the more essential after we leave.”
Lawyers told the Times the legislation could allow the Government to avoid its responsibilities to tackle air pollution.
David Hart, QC, who practises environmental law, told the newspaper: “This seems to be a blatant way of Government seeking to avoid responsibilities. If you take an area like pollution, it means that the Government will escape any liability under the Francovich principle for past and future breaches.”
The Government said the clause was required as the right to sue under the Francovich ruling is linked to EU membership and therefore will be irrelevant after Brexit.
A spokesman said: “The UK has a longstanding tradition of ensuring our rights and liberties are protected. The people of the United Kingdom voted to leave the EU and that is exactly what we are doing. The right to Francovich damages is linked to EU membership – the Government therefore considers that this will no longer be relevant after we leave.”
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