Boris Johnson And EU Law

05/01/2017 17:31 | Updated 05 January 2017

During the EU referendum campaign Boris Johnson, having thrown his considerable weight behind "Leave" gave a series of interviews and wrote a series of articles demonstrating a serious lack of understanding about how the EU works and how its laws operate. His opening BBC interview on the Andrew Marr Show asserted that EU law regulates family and property matters in the UK. In fact the EU has no legal competence in either area, because neither has any impact on the Single Market. That set the tone for what was to follow from Mr Johnson, leaving many wondering why - if the EU is so bad - it was necessary to make up stories about its evils. Johnson was defended on the basis that he was an ex-journalist and was concerned with the big picture rather than precise detail, so that his sweeping statements were understandable. Understandable maybe, but they demonstrated a lazy and deliberately uninformed attitude. He was not alone of course, both sides in the campaign were guilty of scare-mongering and breathtaking misrepresentation.

But we are now beyond that. Johnson is Foreign Secretary and his role is to gain the trust of the other Member States and to negotiate a proper settlement for Britain. There was little faith in him in Europe following his statements in the referendum campaign, and it was indeed said by European ministers that he had told lies. His latest piece for The Telegraph on the effects of EU motor insurance law shows that he remains ignorant of legal principle and that he has no hesitation in demonstrating that ignorance in the interests of populism. Johnson in his article alighted upon the decision of the Court of Justice of the European Union in Vnuk, decided in 2014. This was a reference to the Court from Slovenia, in a case where the claimant was injured on a farm when the ladder on which he was standing was hit by a tractor and trailer. Faced with the question whether insurance was compulsory for such a vehicle, the Court laid down the principle that compulsory third party motor insurance should cover any use of a vehicle'consistent with the normal function of that vehicle. No distinction was drawn between public and private land.CJEU decisions are often opaque, but it is certainly arguable that the effect of the decision is that the compulsory insurance requirement could extend to quad bikes, motorised scooters and even children's toys. 

Johnson's criticism of that decision is nevertheless ill-founded. Motor Insurance is governed EU wide by the Sixth Consolidated Motor Insurance Directive 2009. The Directive ensures that there is a very high standard of protection for the injured victim of road traffic accidents. It ensures that insurers cannot simply refuse compensation to injured victims and that those who are hit by an uninsured and untraced driver are adequately compensated. The UK has consistently been in breach of this Directive and its predecessors, and has failed to maintain adequate protection for victims. That point aside, before rushing to print Johnson might have instead read the Directive. He would have found the following in Article 5(2) "Member States may derogate from (compulsory insurance)  in respect of certain types of vehicle...the list of such types or of such vehicles shall be drawn up by the State concerned and communicated to the other Member States and to the Commission". 

So what does this mean? Essentially, the UK can exclude certain vehicles from this requirement of compulsory insurance, so for example, quad bikes, golf buggies and children's toys could simply be removed from the compulsory insurance requirement by the UK. The majority of other Member States utilise the Article 5(2) derogation. For example,  Finland derogates for children's toys and trailers for tractors and motor cycles, and Denmark derogates for electric bicycles. The UK has never applied the compulsory insurance requirement to invalid carriages, but has chosen to go no further. The EU was itself taken by surprise by Vnuk and is currently consulting on its implications. The informed view is that it is unlikely to survive. Moreover, the UK is also consulting on this and it is likely that it will utilise its Article 5(2) derogations in the coming year.

There are three wider questions arising from all of this. First, although the number of people killed or injured by the classes of vehicles to which the Directive has been extended by Vnuk is small, there needs to be a serious debate on whether such accidents should be within any compulsory insurance regime (and surely, given the "law of large numbers" upon which insurance is based, the effect on premiums would be minimal) or whether there should be some other source of compensation. Perhaps Johnson should read about the effect of a quad bike accident on Holly Raper. Articles such as that written by Johnson disguise the issues and distort the discussion. Secondly, if Britain does leave the EU, is it the intention to withdraw from the compulsory motor insurance scheme? The tenor of Johnson's article is that we should. However, a moment's reflection would raise serious doubts.

The EU has established a regime whereby a person injured on the roads within the EU by the fault of an insured, uninsured or untraced driver has a right to claim compensation in the victims home state with a guarantee that there is insurance or state-fund coverage. Leaving the EU does not mean that Britons will not travel or drive in Europe. In whose interests should we abandon that protection? Is this a triumph of dogma over principle? Thirdly, journalists are, and should be, free to write uninformed drivel. The same does not apply to the holder of one of the most important Offices of State, particularly where the targets of what has been written are the very people with whom delicate negotiations are about to be conducted and who probably agree with the need for reform.