Court of Justice of the European Union

Lord Bowness Excerpts

Monday 23rd July 2012 Lords Chamber

[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.