Court of Justice of the European Union
(12 years, 4 months ago)
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Lord Howell of Guildford
That this House takes note of draft regulation 2011/0901A (COD) of the European Parliament and of the Council (amending the Protocol on the Statute of the Court of Justice of the European Union and annexe 1 thereto) and draft regulation 2011/0902 (COD) (relating to temporary judges of the European Union Civil Service Tribunal) and, in accordance with Section 10 of the European Union Act 2011, approves Her Majesty’s Government’s intention to support the adoption of draft regulations 2011/0901A (COD) and 2011/0902 (COD) of the European Parliament and of the Council.
The Minister of State, Foreign and Commonwealth Office (Lord Howell of Guildford)
My Lords, the debate this evening covers two draft regulations which make modest and technical reforms to the workings of the Court of Justice of the European Union with the aim of improving its overall efficiency. This is the first time that this House has had a debate of this kind, so I shall briefly rehearse and remind noble Lords why we are having this debate.
The draft regulations are subject to Section 10(1)(d) and (e) of the European Union Act 2011. The Act, through Section 10, which covers a small number of important articles in the EU treaties, provides an extra level of parliamentary control over certain decisions. It requires a positive vote in both Houses of Parliament on a Motion from a Minister before the United Kingdom can support a decision in the Council. Section 10 is therefore fulfilling the function for which it was conceived: increasing democratic oversight of the Government’s relationship with the European Union, and giving Parliament control over issues that matter to Britain.
As noble Lords acknowledged the last time we debated reform of the Court of Justice of the European Union in this House, the Court plays a crucial role in ensuring that EU law is observed. It is right and proper therefore that Parliament should oversee the Government’s approach to any reforms to this important institution, even though the reforms that we are discussing today are relatively minor. Why are we in favour of these reforms? A key function of the Court of Justice of the EU is to interpret and enforce EU law relating to the single market. The European Union single market is a key element in the Government’s priority of boosting economic growth and achieving prosperity for our nation. As long as there is a single market, the Court of Justice of the EU is needed to enforce the EU law which governs it. As noble Lords are aware, the Court of Justice of the European Union comprises three courts: the Court of Justice, the General Court and the Civil Service Tribunal. Most of the reforms in the package that we are debating this evening are to the Court of Justice, which is the upper court, and the Civil Service Tribunal, which is the employment tribunal for EU officials.
Your Lordships’ European Union Committee set out in its excellent report of March last year that the workload of the Court of Justice has grown substantially in recent years. New cases increased by 18% in total between 2007 and 2011. While the Court has managed that workload effectively to date, the European Union Committee has rightly questioned whether this can continue. It stated in its report that,
“the expansion of the CJ’s jurisdiction into the Area of Freedom, Security and Justice introduced by the Lisbon Treaty, coupled with the increase of EU membership to 27 States, will have an impact on the CJ’s ability to manage its workload”.
It therefore makes sense in our view to act now to reform the court so that it is better equipped to manage its increasing workload. Many of the reforms that we are discussing today, which I will set out now, work towards this aim. Coming to the detail, there are three main reforms to the Court of Justice. First, the new position of vice-president will be created and appointed from among existing judges, to assist the president of the Court in managing litigation, overseeing the business of the Court and representing it externally. Secondly, there will be an increase in the number of judges sitting in the grand chamber of the Court of Justice, which generally handles the Court’s most sensitive cases. Thirdly, there will be a reduction in the number of presidents of five-judge chambers who have to sit in the grand chamber at the same time.
The package of reforms that we are discussing also affect the Civil Service Tribunal—the employment tribunal for EU officials, as I have already said. The reforms include the power to appoint up to three temporary judges to the tribunal if permanent judges are absent for more than three months for medical reasons. Finally, there is one key reform to the lower court—the General Court. As will be the case with the Court of Justice, a new vice-president position will be created. I could go into much more detail on these issues and will be very happy to do so, but they are already on the record, having been debated in the other place, and I suspect are fully familiar to your Lordships who are attending the debate this evening.
Let me say a word on other reforms and next steps because this is important. We are looking at part of a process and not the final pattern. The Government have been active in negotiating the detail of these reforms, which were proposed by the Court of Justice of the European Union itself. One potential reform about which we had particular concerns has been removed from consideration, and a further reform continues to be considered separately. Let me elaborate on that. The Government did not support the original proposal to remove the 10-day period of grace that litigants are granted for submitting pleadings to the Court of Justice on top of the standard deadline period. We argued that removing the period of grace would damage our national interest by limiting the time available to us to submit pleadings. By retaining it, we have ensured that both the Government and British businesses have the maximum possible time to submit pleadings to the court.
The other reform proposed by the Court, notable in its absence today, was the addition of 12 further judges to the General Court. This reform was proposed to address the substantial backlog of cases, which are currently more than 1,300. My noble friend Lord Bowness, who has played such an active and creative part in this whole issue, explained the reason for the large workload that led to this backlog during our previous debate on this subject. The delay resulting from this backlog of cases is bad for British businesses, which wait months or years for their own case or cases of relevance to them to be heard and determined. We all know from your Lordships’ European Union Committee report, to which the noble Lord, Lord Anderson, referred last time we discussed the Court, that the Confederation of British Industry has expressed its concerns about the implications of these delays. It is essential that the reforms to the General Court address the backlog effectively. This means studying the cause of the problem and the viability of different solutions.
We welcome the establishment of the new group of European member states aiming to specifically consider the broader issue of effective reform to the General Court—the so-called friends of presidency group, which is due to report in December of this year. The Government will actively participate in that group. The detailed work of your Lordships in preparing their report on this subject will be a valuable contribution to discussions.
The questions of increasing the size of the judiciary of that Court, and of how any new judges should be selected and appointed, will be considered in this context. Any increase in the number of judges should be consistent with the requirement for minimal spending in the current economic climate, and should go hand in hand with other efficiencies.
I would like to underline how seriously the Government take this issue and make it clear that we will be working actively over the coming months to try to find an effective solution. We accept that at present the reforms on the table are modest, and it is right that we continue to encourage member states to find a sustainable solution to the wider problems. However, it is clear that these reforms will support the Government’s objective of improving the efficiency of the Court of Justice of the European Union. They will also potentially pave the way for more substantive reform to the General Court at a later stage, when value-for-money considerations can be taken into account. This is obviously important, because a more effective and efficient Court will be good for British businesses operating in the single market. I therefore commend this Motion to the House.
Lord Anderson of Swansea
My Lords, I thank the Minister for his usual clear explanation of what he has called “modest” and “technical” documents. I note that when his counterpart in the other place, David Lidington, set out the case in similarly moderate terms, he was assailed by visceral Europhobes on the government Benches, which illustrates, perhaps, the Government’s problem in pursuing a sensible European Union policy. Happily, looking around, I think it unlikely that the Minister will be assailed in a similar way today.
My substantive point is this: what is the mischief aimed at by these documents? Surely it is to reduce delays in the Court and generally to make it more efficient. Hardly a controversial aim, and the Government broadly accept these aims. The question is whether they are ready to accept the means to achieve those aims. The report of Sub-Committee E, to which the Minister alluded, published in April last year, was highly commended by the Court itself but had a disappointing response from the Government.
We set out the delays and predicted another crisis of workload, as a result both of the Lisbon additions to the work in the area of freedom, security and justice, and of the number of expansions of the membership of the European Union. The predictions of that sub-committee have indeed come to pass, in that in 2009 there were 17 preliminary requests in respect of Lisbon areas but in 2011 there were 44 such requests. That comes from the last annual report of the court, just published.
If justice delayed is justice denied, then there is a prime delay and hence a great deal of denial. The most recent annual report shows that in 2011 the General Court was certainly more productive but at the same time the backlog increased substantially. Clearly the Court cannot keep up with the volume of new business coming to it. To improve the situation, there are three broad areas to be considered.
The first is translation; it is a booming industry. We know prolix lawyers. The proposal to limit the translation to those deemed essential by the court was rejected, probably correctly, because only the litigants themselves can decide that which is important. The compromise was agreed that the Court of Justice may set the maximum of written proceedings. We must now wait to see if the result of that change justifies the Government’s confidence.
There were institutional changes, such as specialist committees, that were rightly rejected as they are inflexible. However, there were some useful minor reforms—for example, new powers given to the vice-president to reduce the workload on the president, and changes in the composition of the grand chamber to even out the workload between the judges. But the key way of reducing the backlog and increasing efficiency is clearly to increase the number of judges in the General Court—the suggestion is by at least 12. That was done in the Civil Service Tribunal by the appointment of three temporary judges in certain circumstances, as the Minister said. That may indeed be a partial solution for the General Court itself, but one cannot avoid the strong case for an increase in numbers.
In May, the Government supported the delay during the Danish presidency of the creation of a friends of the presidency group. The Minister will be well aware from Syria of the new currency of friends of this and friends of that in international parliaments. But there will be a delay until at least December until this informal procedure publishes its report and one returns to the formal procedure.
Therefore, the conclusion is that of course the Government must scrutinise very carefully any proposition for an increase in judges at this time of austerity, but there are also costs in delay. In 2009, as the Minister said, the CBI complained to the sub-committee that in competition cases—those cases most relevant to the single market—the average delay was then 33.1 months. The Minister will have noted that in 2011, according to the annual report, the average delay was 50.5 months. That is more than four years for litigants and business in the UK in single market cases to have to wait for a determination. Surely the Minister and the Government will accept that that is an intolerable delay.
With this compromise of the friends of the presidency, which will seek to report by December, in effect the Government and their allies are putting off a decision for yet another year. In December there will be the report of the friends of the presidency. That will have to be referred to the Council itself. The Council will have to deliberate on the various recommendations. Thereafter, if an increase is agreed—and almost certainly there will have to be some increase in the numbers—there will have to be a recruitment procedure. Perhaps the Minister can confirm this but there will probably have to be yet another delay of perhaps a year before any proposals arising from the friends of the presidency can be implemented.
We have seen the delays rise from 33 to 50 months. It may be well on another 10 or 12 months’ further delay, at great cost to British industry and great damage to the single market. The Government may be penny-wise but they will be proved to be pound-foolish.
Lord Marks of Henley-on-Thames
My Lords, my noble friend the Minister and the noble Lord, Lord Anderson of Swansea, have rightly recognised that the provenance of these proposals is the backlog of cases before the Court, and the fact that the Court, particularly the General Court, has become snowed under by the increasing workload. As the European Parliament’s rapporteur, Diana Wallis MEP, pointed out in her report on the proposals, for several years the number of new cases in the General Court has seriously outstripped the number of cases resolved.
The backlog is not just substantial; it is getting worse year by year. There are three basic reasons for that. The first is successive enlargement. The second is the increasing volume of litigation as a result of the Lisbon treaty introducing new areas. The third is the very welcome introduction of new procedures for accelerating a procedure in clear cases and for interim measures which, while very welcome, are nevertheless expensive in resources. Against that background, the reforms that we are debating today are welcome—in particular, the decision to appoint a vice-president of the Court of Justice.
Since he came into office in 2003, Professor Vassilios Skouris has been very successful in improving the performance of the Court and in streamlining procedures. However, with the increasing workload of the Court, it is only right that the president should be assisted by a vice-president able to preside in his absence and provide continuity in the Grand Chamber where they will both sit, while freeing up the other presidents of the chambers of five judges not to have to sit in every case.
However, I want to ask the Government the question alluded to by the noble Lord, Lord Anderson of Swansea: why did the Government seek—successfully in the event —to defer the proposed increase from 27 to 39 judges in the General Court? The European Scrutiny Committee, to which reference has been made, had no doubt. It reported as follows:
“We conclude that the great majority of evidence recommends an increase in judges of the General Court as the best and most flexible solution to its current workload problems. This would have cost implications … but they appear to be necessary if the EU is to have a judicial system in which justice is dispensed without unacceptable delay”.
In her report, Diana Wallis weighed up the two possible routes that might offer the structural reforms that the European Court of Justice sought. The first was to establish a series of specialised courts and the second was to increase the number of judges. The European Court of Justice came down firmly for the option of increasing the number of judges. They said that it would be more effective, quicker to implement given the urgency, more flexible, and more likely to lead to consistency in European jurisprudence. I would add that a substantial increase in the number of judges would bring in a wider range of specialisms available to the Court in particular cases. The rapporteur found the evidence presented by the European Court of Justice persuasive.
The Government’s reason for the deferral was to do with funding. One accepts that but one must also bear in mind that the cost of the Court is very small—one-quarter of 1% of the EU’s budget; less than 5% of the European Union’s institutions overall. The estimated cost of each extra judge would be in the region of €1 million, including staff and establishment costs. The central point on funding is that not increasing the number of judges is no real economy. The backlog of cases represents a build-up of future expenditure that will have to be incurred at some stage in the future, as the cases will have to be determined. Meanwhile, we are paying the price of the backlog in delay, inefficiency and frustration for litigants and for business. We are not resourcing the Court to do its work properly, which reduces its reputation at the same time.
Can the Minister indicate how far negotiations have progressed to date? When do the Government expect the friends of the presidency group to produce a result? What delay is inherent in the deferral? What do the Government have in mind for reducing the backlog of cases before the General Court in the mean time?
The Earl of Sandwich
My Lords, I served on Sub-Committee E when we produced our report last year but I was unable to speak in the debate last October, which is why I am here today. However, the wheels of EU government, and our own, turn desperately slowly and little has happened during the interval.
The president of the Court himself proposed reforms over a year ago. Some of these are, at last, before us today. I support the Motion that Parliament approves the draft regulations as far as they go, but, as we have heard, they do not go far enough to solve the basic problem. The EU Committee has had hardly any time to consider this matter. Once again, this House is discussing important business at the 11th hour—after everything has been said and when it is too late to change anything—although this has never in the past prevented noble Lords from saying what they think again.
The evidence suggests that the Court of the European Union is at serious risk of implosion. The Minister for Europe says that it is not a crisis. The crisis is not here today, but it is just around the corner, even in the Court of Justice itself. The number and length of cases before it has made some areas of the Court almost unmanageable. In our report we suggested increasing the number of advocates-general in the Court of Justice, as already provided for in the Lisbon treaty. Let us remember that with the new member states, the ratio went up in 2003 to 27:8 from 15:8. No wonder the workload became unmanageable. The rearrangement in the Grand Chamber may help, but meanwhile the General Court is still stuck with only one judge per member. What a terrible advertisement for the European Union, and such easy prey for the ever-prowling Euro-sceptics mentioned by the noble Lord, Lord Anderson. They include some in the Conservative Party who must distrust the size and power of the European Court; we have to face that.
The Minister will have tried to put pressure on his own colleagues, quite apart from other EU Ministers, and this regulation will at least bring him some temporary relief. But as the noble Lord, Lord Bowness, and others have said repeatedly, the Court of Justice is vital for the proper functioning of the European Union itself and it therefore must receive the full support of member states if it is to succeed.
The biggest problems, as the Minister freely admitted, lie in the General Court, which is already overloaded. The pending cases are piling up. The average turnaround in a recent year was 33 months, and one competition case, which has been quoted frequently, took more than four years to complete. As the Minister said, and the noble Lord, Lord Marks, repeated, we suggested some time ago that there should be 12 more judges and tighter rules of procedure rather than the creation of specialist courts. Her Majesty’s Government did not, and perhaps still do not, accept the need for more judges, although the Minister says that the Government take the issue very seriously. What are we to think?
In the debate last October, the noble and learned Lord, Lord Wallace of Tankerness, appeared to agree with the direction of our report and the need for some procedural reforms such as economies in the length of pleadings—but not, of course, with anything that might incur extra cost. The committee suggested that this need not involve taxpayers directly since, as an EU institution, the Court had a reasonable claim on the EU budget. My noble friend Lord Williamson will explain the truth of this. The Minister mentioned value for money, but he was silent on the source of funding. I hope that he will advise us on this later. I am not proposing another government assault on elements of the CAP; rather I seek a recognition in principle that the EU budget is what the Court should look to. As the noble Lord, Lord Marks, said, the costs are bound to increase over time.
The European Union Civil Service Tribunal is a similar story, although we did not have the same concerns. Since our report, the Government have accepted that delays can and do arise from the shortage of CST judges, especially when one falls ill or cannot attend. Again, the president had proposed an ad hoc solution whereby three former judges would come in on a temporary basis, but absurdly, until today Her Majesty’s Government rejected this obvious proposal. Why was that? It was because of budgetary concerns. Perhaps the Minister will explain how it can take so long to reach a change of heart under these new regulations.
The question of judges in the General Court is excluded from the present draft regulations, but the Minister for Europe has assured the committee in a letter that the friends of the presidency group is going to look at it between now and December. The noble Lord, Lord Anderson, also mentioned this. Could this be another opportunity for delay? I am all for ginger groups stitching up solutions, but this method betrays a degree of exasperation with the formal structure, and further delays will follow.
On the Court’s proposed new rules of procedure, the Government have been reluctant to let the Court itself rather than the parties make the decisions, but in the end they recognised the need for some economies in the excessive length of written pleadings, thus reducing the burden of translation. Let us remember that there are 23 official languages in the European Union. I am myself in favour of English alongside French, but the committee did not support that as it is a highly sensitive issue.
The evidence for urgent reform before the Committee a year or two ago was overwhelming, and it remains so today. We have heard some of the statistics today. I am sure that the Minister is much more aware than any of us of the urgency of these reforms and of the apparent helplessness, not to say impotence, of all our Governments on this issue. I look forward to his comments.
Lord Bowness
My Lords, I declare my registered interests as the holder of a solicitor’s and notary’s practising certificate. The justice and institutions sub-committee, which I chair, of the European Union Select Committee welcomes the Government’s proposal regarding the draft regulation before the House this evening, but in line with our report on the workload of the Court, as mentioned by other noble Lords, we wish that the proposed regulation addressed the need for more judges to be appointed to the General Court. We are pleased that discussions in which the United Kingdom is participating are taking place but we do not want the momentum for reform to be lost by dealing with the matter piecemeal. I am pleased to learn that the friends of the presidency group is due to report by December.
At the time of our report we were concerned about the increased workload due to the many reasons referred to by the noble Lord, Lord Anderson of Swansea: the extension of the jurisdiction of the Court, the impact of EU expansion and the Court’s own analysis of its workload. The noble Lord, Lord Marks of Henley-on-Thames, has already pointed out that the amount of money involved is quite small—a quarter of 1 per cent of €126,527 million.
The General Court, which is our concern, deals with almost all the cases brought against the institutions and agencies of the EU. They are complex cases and it is here that the problem lies in managing the current and likely future workload. Our committee’s report proposed a number of solutions and I explained these at length in the debate on 17 October last and will not take the time of the House by repeating them. In summary, we accepted there was a case for better case management but that by itself would not solve the problem. The language regime and translation was not the main cause of delay. We rejected as a long term solution the creation of additional specialist chambers and the answer was—in our opinion—the appointment of additional judges to the General Court which can be done without treaty change.
The committee also holds under scrutiny proposals for reform of the Court of Justice, some of which form the proposals before us this evening, all of which we support: the creation of the vice presidents of the Court and the General Court, the amendment of the rules relating to the composition of the Grand Chamber, the abolition of the rule requiring the reading of the rapporteur’s report at the oral hearing and the appointment of temporary judges to assist the civil service tribunal.
Still outstanding, however, are the issues of increasing the number of General Court judges and the revision of the rules of procedure. I support this resolution, but why does the appointment of temporary judges to the Civil Service Tribunal engage Section 10D of the European Union Act 2011 when that section refers to the establishment of specialised courts and this deals with the appointment of temporary judges to it? If the recommendation is for more judges, will we need the same parliamentary procedure before Her Majesty’s Government may agree the proposal?
My closing comments are mine rather than necessarily reflecting the opinion of my colleagues on the justice and institutions sub-committee. I read with considerable care the debate in the other place on this resolution in which a number of assertions were made by Members with strongly held opinions which I respect but which I believe need to be rebutted somewhere on the record of this Parliament. My honourable friend Mr Jacob Rees-Mogg suggested on 12 July, at col. 503 of the Official Report, that it might be in people’s interests for the Court to be “bunged up”. I do not want the Court of Justice of the European Union to reach the same state as the European Court of Human Rights where there are some 125,000 outstanding cases.
The European Union is based on the rule of law and respect for human rights and the Court is a vital institution for the proper functioning of the Union. Without it we will have nothing to buttress the operation of the single market from which everyone wants to benefit but which critics of the EU want without the burden of the rules which underpin it.
It was also suggested by another honourable Member that private parties’ disputes could be resolved in London using contracts which specified the determination by English law and that would stop European judges replacing the work of—again, I quote, for reasons which lawyers will understand—“British” judges. That rather misses the point that the European Court deals with European law and its interpretation, which must be uniformly applicable across the member states if we are to enjoy the benefits of the single market, the importance of which, I am pleased to say, has been underlined by my noble friend the Minister.
It was further suggested by my honourable friend Mr Rees-Mogg that the court is,
“not a proper, honest, decent court, like our courts are”.—[Official Report, Commons, 12/7/12; col. 510.].
He used as justification for that assertion that the Court had ruled to increase its own pay. It would be good to hear the Minister confirm that the pay of European officials, including judges, is determined by the staff regulations agreed by the Council, comprised of the member states, and that the Court did not rule to increase its own pay. Rather, it determined that the proper procedures had not been followed by the Council in making a regulation to adjust salaries of all EU officials—not just judges. The judgment makes it clear that the Council should have sought to proceed under a different article in the staff regulations. The case was therefore similar to a UK judicial review of government decisions taken improperly.
Lastly, my honourable friend Mr Cash said that the court is,
“manned by people who, I have no doubt, could be regarded as generally proficient in law, as they are professors and celebrated advocates; the problem is that the members are not drawn from judges alone ... In the UK, it is unimaginable that members of a senior court at such a level would not be drawn from the senior judiciary”.—[Official Report, Commons, 12/7/12; col. 508.]
Can my noble friend confirm that the most recent appointment to United Kingdom Supreme Court, Lord Sumption, had, until his appointment, not held full-time judicial office and that there are precedents of appointments from Scotland to the Lords of Appeal in Ordinary to serve in your Lordships’ House?
The European Union Act means that we will have many more debates on relatively minor, although not unimportant, pieces of EU legislation. In some ways, that is welcome, as Parliament becomes more engaged with EU matters. However, it means that the Government will have to be ready to rebut arguments put forward by those who will oppose anything and everything, as it presents an opportunity to advance their opposition to the European Union.
My right honourable friend the Prime Minister was reported as telling the Daily Telegraph on 19 July that he would never campaign in favour of leaving the EU. With the greatest respect, if that question is ever put, the arguments for the European Union will need to have been clearly articulated and assertions similar to those exposed in the debate in the other place firmly and loudly rebutted if only to ensure that those of us who would join the Prime Minister in campaigning against leaving succeed in such a vote.
I trust that we will support the resolution so that Her Majesty’s Government may support the proposal at the meeting of the Council—which is, I believe, tomorrow.
Lord Hannay of Chiswick
I shall speak briefly in support of the Government’s resolution on the reform of the European Court of Justice. I will not go into the detail of the reforms, which have already been very competently described by the Minister, or into the detail of the grounds, which were well prepared by the excellent report produced during our last Session by the noble Lord, Lord Bowness, and his Sub-Committee E of the EU Select Committee, which the Home Affairs sub-committee, which I chair, works in very close concert with. I join the noble Lord in deploring the fact that the Government have not agreed to the increase in the number of members of the General Court recommended in the report.
I shall address one or two more general issues about the European Court of Justice. It remains a cause for dismay, and sometimes despair, that so little is known in this country about the European Court of Justice, its rationale and its work. Even generally well-informed commentators find it difficult to distinguish between the European Union’s Court of Justice, which we are discussing this evening, and the Council of Europe’s human rights court. Yet these two bodies have jurisdiction over completely different areas of international law, which apply to a completely different membership— points that one would have thought were fairly easy to grasp.
Many commentators do not even try to understand the distinction. In their eyes, the two courts are simply part of some supposed European conspiracy designed to deprive law-abiding British citizens of their rights and sovereignty. All that is asserted despite the fact that the jurisdictions of both courts and the laws they exist to apply have all been established by the votes of this Parliament, just as our domestic laws have been. That these ill-informed criticisms have such a wide currency is no tribute to either the commentators who use them or the audiences to which they are addressed.
Just in case anyone is minded to regard what I have just said as a trifle paranoid, may I suggest that reading Hansard on the debate in another place on the reforms we are discussing tonight would cure them of that illusion? Not only were some of the interventions larded with phrases that would never be considered parliamentary if directed towards any court in this land, but in addition it was seriously suggested that our national interests would be best served if the European Court of Justice were indeed “bunged up”. Those are not my words; this rather juvenile, puerile humour in which European issues are often discussed in the other place is not one I would choose myself. That is surely a prime example of worst is best—a reasoning that it is bizarre to hear coming from supporters of the Government. With supporters like that, one wonders why they need an Opposition.
In contrast to that argument, I would suggest that the rationale for the European Court of Justice is a simple one that has been made by other noble Lords in this debate. From the outset, the European Communities, now the European Union, were granted certain carefully circumscribed legislative powers, and jurisdiction over disputes about the application of the treaties and laws adopted under them was to be exercised not simply by originally six and now 27 national legal systems but by a European court on which all member states were represented. In this way, from the very beginning the rule of law was a leitmotiv of this new international project, and common sense surely indicates that it has to be if concepts such as the single market—to which, rightly in my view, this country attaches primordial importance: a fact that the Minister underlined, which was welcome—are to provide the level playing field that we all seek.
That was the European Community we joined in 1973, so please do not let us hear again the argument that somehow we joined something different. The European Community that we joined had a Court of Justice with the powers necessary to apply European law. We may sometimes dislike or even deplore the Court’s judgments. Many of us do the same from time to time with regard to the judgments of our own domestic courts, but to contest or to seek to reverse or qualify the European Court of Justice’s jurisdiction is to contest our membership of the European Union itself. All that was set out far more eloquently than I can do, during our debates on the ratification of the Lisbon treaty, by the late Lord Slynn of Hadley.
Do we have an interest in helping the European Court of Justice to work more efficiently and effectively, which is the purpose of the reforms that we are debating this evening? The answer to that must surely be yes. As a country that has for many centuries been committed to the rule of law, it is desirable that legal rulings should be provided without undue delay, and that the increased workload of the Court that inevitably flows from the geographical expansion of the European Union and the extension of its responsibilities into new policy areas should not result in such delay.
I have one final point to make. In 2014, Britain will have to decide whether to accept the jurisdiction of the European Court of Justice over legislation in the fields of justice and home affairs, adopted before the Lisbon treaty came into force. That is to say: it was legislation that by definition was adopted by unanimity. The Government have, very correctly in my view, decided to consult widely about the decision then to either opt out or opt in to that jurisdiction, which all other member states are already committed to accepting by the end of 2014. They have agreed to put the matter to votes in both Houses. I have no intention of entering into the substance of that decision now. My plea is simply that those consultative processes and those votes should be based on full evidence of the pros and cons of the two possible courses of action, transparently presented and carefully considered.
My committee and that of the noble Lord, Lord Bowness, will be seeking to provide the House with that evidence in good time. Meanwhile, I suggest that it would be better not to jump to conclusions, as so many Members of the other place have already done. It is better not to decide in haste and then repent at leisure.
Lord Williamson of Horton
My Lords, as is normal, I declare an interest in that I spent a large part of my career dealing with European affairs in the UK Civil Service and part of it in the European Commission, and that I have pensions from my work.
The House is of course already aware of the problem identified in the two draft EU regulations to which this Motion relates—namely, the backlog of cases and consequent delays in the European Court of Justice, in particular in the General Court, and in the European Civil Service Tribunal. The average turnaround in competition cases was recently 33 months but rising, as stated by the noble Lord, Lord Anderson. That is a serious matter when settling these extremely important questions for business, both that of this country and of others within the European Union. The House debated the issue on 17 October last, when the noble Lord, Lord Bowness, presented a report of the EU Committee. It is fair to say that in that debate, and again of course tonight, all noble Lords who spoke considered that some action was necessary, including the possible increase in the number of General Court judges from 27 to 39. I shall come back to this point because that proposal is not dead but is not in draft Regulation 2011/0901, as now amended, which is before us this evening.
In October last year the right honourable Member and Minister for Europe, Mr Lidington, stated in a letter that the Government were not convinced that the Court is facing an imminent crisis. In the debate on 17 October, the noble and learned Lord, Lord Wallace of Tankerness, slightly elaborated on that point when he said that the EU Committee and contributors to that debate recognised that the Court of Justice had done a remarkable job in managing the case load and that it was “in that context” that the Government did not accept that there is an imminent crisis with regard to the Court of Justice.
I shall come back specifically to the Motion before us, but I will make two preliminary points. First, the document tells us that the two draft regulations are to be put to the Council for agreement on 24 July—that is to say, tomorrow. We are running it a bit fine, if I may say so, because the Motion is needed to comply with Section 10(1)(e) of the European Union Act 2011, under which a Minister may not vote in favour of or otherwise support the decision unless parliamentary approval has been given. In some respects, I believe that the European Union Bill went too far, but I am attentive to the meticulous respect of the 2011 Act, which is now in force. Secondly, it was difficult last week to get hold of the two draft regulations with which this Motion deals: 2011/0901 and 2011/0902. By chance, however, I came upon the briefing pack from the Library and I can tell the Minister that my comments rely on that pack.
In substance, what we are now being asked to approve in the current version of Regulation 2011/0901 is the establishment of a vice-president of the Court of Justice, the removal of the requirement to read the report of the judge rapporteur at the hearing, and the modification of the composition of the Grand Chamber to have at least three presidents of chambers of five judges as well as the president of the Court, the vice-president and other judges. In Regulation 2011/0902, we are asked to approve the possibility of attaching temporary judges to the European Civil Service Tribunal, and that does not appear to be controversial. I think that we can agree to the procedural changes as the Government recommend.
In October 2011, there were 1,323 cases pending before the General Court. That is too many. In an Answer to the noble Lord, Lord Kilclooney, on 10 January, the noble Lord, Lord Howell of Guildford, stated that 20 live cases were referred from a UK court or tribunal where judgment had not been issued by the European Court of Justice, and some of these were quite old. He did not say that they were old, but I can assure him that they were. There are a number of reasons for the increase in the judicial load. One is the regrettable increase in legislation. Another, to which I draw particular attention—and it has not been mentioned so far tonight—is that, as stated in the Commission’s opinion of 30 September last:
“the highest rate of increase has in fact been in appeals against decisions concerning sanctions against people or entities based on mechanisms established under the Common Foreign and Security Policy”.
It is always a cause for serious reflection if the number of appeals increases, since they represent a non-acceptance of earlier judicial or similar decisions.
What we are not being asked to approve tonight, which a lot of Members regret, is the increase in the number of judges in the General Court from 27 to 39, at a cost estimated by the European Court of Justice itself of about €13 million a year. I am very keen that, because we recognise some action is needed to reduce the overload in the General Court, we should not consider implicitly favouring this specific proposal. I believe that we may need an increase in the number of judges, but I cannot find anywhere in this excellent pack a specific justification for the considerable increase from 27 to 39. I am aware that the European Court of Justice asked for it, but we need to be sure about the reason for that particular number.
The rapporteur of the Committee on Legal Affairs of the European Parliament concedes rightly in her report that,
“there is no empirical method of demonstrating that the figure of 12 additional Judges is the correct one”.
I certainly think that that matter needs careful consideration, despite the enthusiastic support of many Members of this House for action on the number of judges.
Lord Liddle
My Lords, we had an excellent debate on this subject last October on the equally excellent report of the committee chaired by the noble Lord, Lord Bowness, on the European Court of Justice. I think that many noble Lords tonight share a certain disappointment that we are only being asked to give our approval to a rather modest proposal by comparison with the reforms that were set out then. On the modest proposal, we think it right that it needs to be approved by Parliament. This is one aspect of the European Union Act 2011 of which the Opposition approve—greater parliamentary control, but not multiple referenda.
Secondly, this is a welcome step forward, so we support it. As the very talented Europe Minister in the other place, Mr David Lidington, pointed out,
“justice delayed is justice denied”.—[Official Report, Commons, 12/7/12; col. 504.]
We fully agree with that principle. However, it is clearly not a full solution to the problem, or anything like it. The Government accept the case that more needs to be done. The Minister in the other place pointed to the 18% increase in workload of the Court in the past four years. Then there is the fact that with enlargement, which by increasing the number of judges originally eased the problem, more cases arose from its being a much bigger Community. With the communitisation of justice and home affairs, the workload has increased even further.
The argument that reform is needed is unanswerable. It cannot be in the UK’s national interest that the body that is the arbiter of the single market should be gummed up, as was said in the other place. I would like to hear from the Minister tonight that despite this modest reform Britain will continue; we will not regard it as enough but continue to be a persistent advocate of further improvement and measures to tackle the workload problem in the Court. I was encouraged by what the noble Lord, Lord Howell, said about the Government working to find an effective solution. This will almost certainly involve the appointment of extra judges to the General Court. The noble Lord, Lord Williamson, may be right that whether the number is 12 needs to be looked at more closely. Around the House we would like to hear from the Government tonight that they agree with the proposition that more judges need to be appointed to the General Court.
I recognise that there is a very legitimate point about cost, efficiency and value for money. I am very sorry that I had to pop out when the noble Lord, Lord Marks, spoke, but I heard him make the point that the cost of the ECJ was about 0.15% of the EU budget. It is a very small amount of money and it seems that the gain would be very considerable from our national perspective. So I do not think that cost should be a barrier to what we regard as a change. Of course, we have to seek efficiencies and I am sure that we should be doing that. Although the language regime may not result in delays, it certainly adds to the costs of the Court, so we should be advocates of change there.
On this side of the House we share the concerns expressed by many Members, initially by my noble friend Lord Anderson of Swansea, that what is preventing the Government from taking this issue forward is the pressure from Members in another place who basically do not like Europe and do not want to see it working properly. I was as appalled as many Members were when reading the Commons Hansard, although the criticism comes much better from someone like the noble Lord, Lord Bowness, than it does from me. I was appalled by what the Member for North East Somerset, Jacob Rees-Mogg, said. He is regarded as one of the brightest and best of the new intake in terms of his intellectual and speaking abilities, but I refer noble Lords to the language that he used about the Court, saying that it is,
“not a proper, honest, decent court”.—[Official Report, Commons, 12/7/12; col. 510.]
He said that it was a “rotten court”. This displays an extreme and ignorant point of view, and the Government in their own interests must make it clear that they will not allow a common-sense solution to these problems to be blocked by that kind of attitude in another place.
We look forward to the friends of the presidency report by the end of the year and we would like the Minister’s assurance that the Government will vigorously rebut the ill informed criticisms that stand in the way of a proper solution to this problem.
Lord Howell of Guildford
My Lords, I join others in thanking all noble Lords who have participated in this debate on the Court of Justice of the European Union. As I mentioned at the beginning, I believe that this is the first time the House has had a debate of this kind, following the coming into force of the European Union Act 2011. This is Section 10 doing its job, in effect, allowing parliamentary scrutiny of, focus on and pressures towards important decisions in the EU. It is quite clear from the discussions this evening that this process works. It comes with a very clear message that will emerge in a moment, but certainly it is an opportunity to put a message that would not have been there before.
As we know, the regulations before us this evening make a number of fairly minor changes—there is no disguising that they are minor—primarily to the Court of Justice and to the Civil Service Tribunal. The changes are aimed at improving efficiency and overcoming the backlogs in those two courts.
I do not think that I have ever had an easier task than I have had this evening because every one of your Lordships who has spoken has made the same central point, which I totally recognise and of which I see the validity. The point is that the move towards the appointment of more judges and reform to overcome the backlog in the General Court should be going forward faster. All noble Lords who have spoken displayed a clear view that would like to see the situation move faster; that it is, in the words of the noble Lord, Lord Anderson, unacceptable to have delay; and, in the graphic words of the noble Earl, Lord Sandwich, that the wheels of the legal system of the European Union and the wheels of international discussion or supranational discussion, move very slowly indeed. The United Kingdom will certainly continue to press forward. We are members of the friends of the presidency group; we are aiming for the December report, as I made clear in my opening remarks; and, as the noble Lord, Lord Williamson, rightly emphasised with his enormous experience of these things, there will be the need for very careful consideration.
I mentioned in my opening remarks the selection of the judges. The noble Lord, Lord Williamson, asked whether 12 was the right number—12, of course, is the number that emerges from the Court’s own views.
Lord Anderson of Swansea
The Minister mentioned the December report. He surely recognises that that is an informal procedure, which has to be restored to the formal tracks. Does the Minister agree that it may take a year from now before any new judges are in place?
Lord Howell of Guildford
I cannot really agree with that because I do not know exactly how the pressures will build up. It is possible, of course, that it will take a year—that is a gloomy assessment—but the report may be very well focused. The momentum behind it may increase. Indeed, the results of this evening’s debate may assist in the kind of momentum that the noble Lord wants to see.
The noble Lord, Lord Bowness, who obviously speaks with enormous authority on these matters, asked particularly why Section 10 applied to the draft regulation relating to temporary judges of the EU Civil Service Tribunal. The answer is that the legal basis of that draft regulation is Article 257 of the Treaty on the Functioning of the European Union, and that is listed in Section 10(1)(d) of the European Union Act 2011, which we took through this House a year ago. That is the technical answer to the very detailed question that the noble Lord rightly put, because it is the detail that this Chamber can focus on remarkably effectively. It gives me great pleasure that your Lordships’ House is able to look in such detail at these matters.
Your Lordships mentioned a whole range of other issues, all coming back to the question of delay. Obviously costs are involved. In this age, we cannot just put them aside. Although costs should not be the decisive matter, we should take them very carefully into consideration.
The noble Lord, Lord Hannay, pointed out that, in addition to the fact that the Lisbon treaty obviously added greatly to the functions and responsibilities of the ECJ, ahead lie other key decisions about opting in and opting out in 2014. They are decisions that we will have to debate and they will be taken very carefully. I think that almost every other noble Lord who spoke, including the noble Lords, Lord Marks of Henley-on-Thames and Lord Liddle, and I have mentioned all the other noble Lords, all referred to speeding up matters.
Lord Hannay of Chiswick
I just want to ensure that the noble Lord appreciates, as I am sure he does, that the extension of the workload of the European Court of Justice, by getting jurisdiction over the justice and home affairs area, does not depend on our decision. Whichever decision we make, 26 countries will be subject to that jurisdiction in December 2014, and that is going to increase the workload massively, whatever decision we come to.
Lord Howell of Guildford
I am sure that the noble Lord is right to emphasise that. The workload will increase. We have heard various reasons for that but some of them must arise from the changes made in the Lisbon treaty. Some arise from the increased litigation; some, as the noble Lord, Lord Williamson, reminded us, arise from international pressures; and some from the increased membership. All those things add up to the fact that this is a Court which, if it is to work efficiently, must clearly gear itself to a much greater load than it has had in the past. I do not think that anyone could dispute that.
As I said, the draft regulations are minor, and the Government support them. We think that they make a step in the right direction and that they will support increased efficiency in this very important European institution. They should also help to prevent a further backlog of cases building up before the European Court of Justice and the European Civil Service Tribunal. There has been a considerable problem for the General Court, as pointed out by the committee and as highlighted graphically by my noble friend Lord Bowness this evening.
If I may meet the challenge put by the noble Lord, Lord Liddle, it is absolutely clear to us that an effective and efficient Court of Justice of the EU is in our national interest. British businesses rely on the timely administration of justice within the context of the single market, and a single market that is able to operate effectively is as crucial now as it ever was as we seek to restore the growth and confidence required to build Britain’s prosperity.
Therefore, the Government will continue to work on wider efficiency reforms to the Court of Justice of the European Union, as indeed they will continue to do in relation to the General Court. Those things will have to be taken carefully but we will press on with them.
I thank noble Lords for their contributions to the discussion. I hope that I have covered every detailed point as well as the general points which I have been asked to comment on. If I have not, I shall of course write to your Lordships. I am grateful for the very clear message that has gone out from this House this evening, and I commend this Motion to the House.