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Government accused of watering down rights in Brexit bill

Britons’ right to sue the government for breaching the law will no longer apply post-Brexit.


The Times and Independent both report Britons will lose the right to sue the government when it breaches the law. The newspapers highlight points contained within the Brexit bill, which shows the government plans to remove this right when the UK leaves the EU. Whilst in the EU, citizens have the right to sue a member state for non-compliance with EU law according to the ‘Francovich principle’. But the proposed bill states “there is no right in domestic law on or after exit day to damages in accordance with the rule in Francovich”.

The Brexit bill, as it currently stands, will repeal all EU law as well as transfer the body of existing EU law into domestic law. Once it is UK law, Parliament (and controversially, the government without Parliamentary approval) will then be able to amend it. However, according to the bill, the right to sue for damages under the Francovich principle falls under “exceptions to savings and incorporations” of EU law so will not be transferred into UK law.

Whilst it relates to the UK’s obligations to enforce EU law, it is understandable that the principle will no longer apply should the UK no longer be subject to EU law. But as The Times reports, Britons may also no longer be able to sue the government for breaches of EU law during the UK’s membership. According to the newspaper, a Francovich case is currently being prepared against the government over its failure to enforce EU air pollution standards over the last seven years”. However, experts say if the Francovich principle no longer applies, the government will no longer be liable. This will no doubt put pressure on the team preparing the case to act quickly before the UK leaves.

Quoted in The Times, Liberty director Martha Spurrier accused the government of watering down our rights after Brexit and said “putting the government above the law renders our legal protections meaningless”.

Responding to the accusation, a government spokesperson said “the right to Francovich damages is linked to EU membership” and added “the government therefore considers that this will no longer be relevant after we leave”. The spokesperson further said “after exit, under UK law it will still be possible for individuals to receive damages or compensation for any losses caused by a breach of the law”. However, there is no equivalent under existing UK law and the government fails to explain what policy would replace the EU law. This makes it difficult to get much comfort from the government’s statement.

The Independent also quotes Spurrier who repeated Liberty’s call for a formal commitment from the government that Britons will not have fewer rights than we have now when the UK leaves the bloc.

We cannot trust a handful of ministers with our hard-won rights and freedoms — the chasm between what they are promising in their soundbites and what they’re putting down in law is growing wider by the day.

We need more than words — we need a formal commitment in the Repeal Bill, in the black and white letter of the law, that the British people will not leave the EU with fewer rights than we have now.

Martha Spurrier, director of Liberty

Spurrier’s comments about the chasm between what is being promised in soundbites and what is being put down in law is sadly also a good summary of what the government has offered so far on Brexit in general: lots of words with little substance.

MPs are due to debate the Brexit bill (formally known as the European Union Withdrawal Bill) at its second reading on 7 and 11 September. You can find more information on the bill including the full text and explanatory notes at parliament.uk.


Image: ©Tony Baggett / Shutterstock.com
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