EU: Advocates-General of the Court of Justice

Baroness Corston Excerpts

Monday 10th June 2013 Lords Chamber

[Lord Bowness]

My Lords, I am extremely pleased to see this Motion before the House tonight, and I thank my noble friend the Minister for his very full explanation. Indeed, he has pre-empted and answered a number of the questions that I would have sought to put to him.

The Justice, Institutions and Consumer Protection Sub-Committee of the European Union Committee has taken a close interest in this matter since its report on the work of the European Court of Justice. Among its recommendations was one that additional advocates-general should be appointed. They play an important part in complex cases, delivering a non-binding opinion on the legal issues involved and a recommendation as to how it should be decided. The figures that we had for our report suggested that a report from an advocate-general was produced in about half the cases brought to trial. It was a recommendation in the report that the number of advocates-general be increased. Before any noble Lords go away with the idea that perhaps that request was made prematurely or without thought, it is worth pointing out that there are still only eight advocates-general for 27 judges, and there were only eight for 15 judges.

In the committee’s follow-up report, published just before I relinquished membership and chairmanship of the Justice, Institutions and Consumer Protection Sub-Committee, we repeated the recommendation and urged the early appointment of the new advocates-general. I am delighted that the Government have now been satisfied that the appointment of the advocates-general should go ahead. I welcome that, and the assurances from my noble friend that the first appointment of the Polish advocate-general should be made during the course of the Irish presidency.

With regard to Declaration 38 on Article 252 of the Treaty on the Functioning of the European Union, I ask my noble friend whether he can clarify the position. It states unambiguously in a declaration annexe to the treaty of Lisbon that the advocates-general will be increased by three if that request is received from the Court. It says that,

“the Council will, acting unanimously, agree”,

such a request. Out of interest, I would like to know what happens if the Council does not agree unanimously. What prevails—the absence of unanimity or the declaration annexe to the treaty? Closer to home and more domestically, what would happen if your Lordships’ House or the other place did not agree? What would then take precedence: the treaty declaration or the provisions of the European Union Act? Dare I ask if we would have to seek the opinion of the Court of Justice of the European Union?

The Government have agreed in principle for some time, subject to the additional costs being found from the Court’s own resources, and they are now satisfied that this is the case. There are similar concerns about another recommendation of the committee: the appointment of additional judges of the General Court. The noble Baroness, Lady Corston, will pursue this in the debate this evening and I am delighted that the sub-committee is fortunate in having her as its new chairman. I had the privilege of serving under her when she chaired the Joint Committee on Human Rights when she was a member of the other place. I know that she will be an excellent chairman and advocate of the committee’s views. I am sure she will be pursuing the cause of additional judges with considerable diligence.

As I said, I am very pleased the Government have been able to overcome their financial reservations about expenditure in respect of the advocates-general. I understand that they are keen to restrict expenditure and I also understand that it is very easy to say that new expenditure should be found from within existing resources. However, with great respect to my noble friend, it is important, when that argument is advanced, to ensure that it is possible for these important things to be met from existing resources. Preserving the quality and effectiveness of the European Court system is important and we need to remember that expenditure on the courts represented only 0.26% of the whole budget of the European Union in 2011.

The Minister warned the committee that the issue of judges was unlikely to be pressed by the nearly ended Irish presidency and the forthcoming Lithuanian presidency. I hope that the Minister will see what the Government can do to bring the question back to the table. The administration and dispensing of justice, like the democratic process, has elements that make pure efficiency hard to achieve. Tonight’s procedure under the European Union Act 2011 does not exactly streamline the decision-making process in EU matters. It was an Act strongly advocated by some who are equally strong advocates for efficiency in the decision-making process, so to obtain the best of both cannot always be done in ways that are the most efficient. This is the price we pay for justice and democracy, and a failure to appreciate this leads, I fear, to a situation where you know the cost of everything and the value of not very much.

[Baroness Corston]

My Lords, it is a pleasure to follow the noble Lord, Lord Bowness, in this important debate. I should like to place on record the committee’s appreciation of the fact that he served the committee with distinction and, in the post of chairman, conducted himself with absolute consideration for members and with great diligence.

This debate follows on from that on 23 July last year, under Section 10 of the European Union Act 2011. It requires a positive vote in both Houses before the Government can support any decisions in council. In July last year, the House debated a motion to approve amendments to the statute of the Court of Justice of the European Union and the appointment of temporary judges to the Civil Service Tribunal. The Court of Justice, the General Court and the Civil Service Tribunal, which together comprise the Court of Justice of the European Union, play a fundamental role in the effective functioning of the single market and the European Union. The Court of Justice and the General Court rule in matters of freedom of movement, of persons, goods and services, equal treatment and social rights, fundamental rights, European citizenship and trademark and competition cases. It therefore follows that their decisions have a direct impact on the functioning and operation of the single market and on the lives of the citizens of the European Union. So an efficient and effective court system capable of delivering justice in a timely manner in matters of EU law is essential for the rule of law within the EU.

The function of advocates-general is to support the work of 27 judges. They produce written opinions for the Court, setting out their understanding of the applicable law in each case and recommending how, in their view, cases ought to be decided. Their origins lie in the French legal system. Although their opinions are not legally binding, they tend to offer more comprehensive discussions of the EU law governing each case than the judgments themselves. As the noble Lord, Lord Bowness, said, in 2010 the EU Committee conducted an inquiry under his chairmanship into the workload of the Court, prompted by concerns about the Court’s ability to fulfil its functions effectively and in a timely manner. It noted that the ratio of judges to advocates-general was 15:8 in 2003, but 27:8 by 2011, following enlargement of the European Union. The committee therefore recommended that the number of advocates-general should be increased as soon as possible in order for the Court to increase the speed with which cases could be dealt with while improving the quality of decision-making.

In January this year, the committee was pleased to learn that the Court had requested an increase in the number of advocates-general. It is proposed that the first additional advocate-general would be appointed as soon as possible this year, with the other two taking up their posts in October 2015. It was very gratifying to hear the Minister informing the House that the Government were entirely happy with those proposals. The appointment is a welcome step and it can be achieved without the significant difficulties posed by treaty reform. It is to be hoped that people in another place take the same view.

I would like to take this opportunity to talk about the equally important issue of tackling the backlog of cases in the General Court by increasing the number of judges. In 2011, the committee commented on the backlog of cases and delays in the General Court, and recommended that the number of judges appointed to that court be increased by one-third. Indeed, some organisations, such as the Confederation of British Industry, had expressed concerns about delay and the effect on business within the European Union. Shortly after the report was published, the Court asked the Council to increase the number of judges by 12 which, in the view of the president of the Court of Justice, was the only solution to afford the necessary flexibility to tackle the increase in the number of cases pending before the General Court and the time needed to deal with them. During the debate on 23 July last year, the then Minister, the noble Lord, Lord Howell, said:

“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”.—[Official Report, 23/7/12; col. 564.]

The Commission agreed and commented on the Court’s request by stating that,

“an urgent solution is needed for the considerable number of cases currently pending at the General Court. Only by immediately increasing the number of judges … will it be possible to stem the flow of new cases and effectively tackle the backlog”.

In July 2012, the Council established a Friends of the Presidency group, which included representatives from all member states to facilitate examination of the case for increasing the number of judges in the General Court. The group met regularly but failed to reach agreement. In December 2012, the Cypriot presidency put forward a proposal for consideration at the General Affairs Council, whereby nine additional judges would be appointed to the General Court under a rotation system. Although it appears that there is agreement on the need to increase the number of judges, there is evident disagreement over the rotation system, and the proposals were rejected.