My Lords, I rise to move the Government’s Amendment 117. The Bill’s approach to certain EU rights of challenge and associated remedies has already been scrutinised closely. We have debated at length the substantive provisions in the Bill covering this area and this House has made clear its views. I do not intend to go over old ground again in this speech. The amendment deals with the approach to transitional cases in one important area, where Francovich damages are being sought. I will say a little about the particular substantive provisions that this relates to.
Francovich damages are a specific form of remedy that exists in EU law. They are available in certain strictly limited circumstances where member states have breached EU law, for example where a member state has failed to properly transpose a directive. The Government remain firmly of the view that, after we leave the EU, Francovich damages will no longer be relevant when we cease to be bound to follow obligations that apply to member states. This is for the simple reason that the majority of Francovich cases in the UK have been brought on the grounds of non-implementation or insufficient implementation of a directive. The UK will no longer be under an obligation to implement directives after exit and the directives will not form part of our domestic law as retained EU law, so the ability to claim Francovich damages would not be possible for a post-exit cause of action. Paragraph 4 of Schedule 1 therefore removes the right to Francovich damages after exit day. The Government consider this outcome to be a natural consequence of the decision to leave the EU, while ensuring Parliament is sovereign.
The impact of these provisions on transitional cases is one area that the House urged us to think again on when we debated the matter in Committee. I concede that the noble Lords, Lord Davies of Stamford and Lord Carlile, made powerful arguments, in particular on the need to look again at cases where an individual’s cause of action accrued before we left the EU. The amendment responds directly to that concern.
We remain of the view that it would not be reasonable for there to be a long tail of cases based on outdated elements of EU law continuing to process through our courts, potentially for many years after we leave the EU. That would not be conducive to the legal certainty this Bill aims for. The Bill will therefore set what the Government believe to be a clear and sensible cut-off point. The amendment we have brought forward will therefore delay the prohibition in the Bill on seeking Francovich damages in domestic law for two years after exit day. This will provide individuals with a fair and sensible opportunity to seek damages for pre-exit breaches of EU law. It also ensures that we continue to have a clear and certain cut-off point after which such challenges would end. I hope that the House supports the proposals that we have put forward, which I think provide important reassurance to individuals and businesses. I therefore beg to move.