Court of Justice of the European Union

Jacob Rees-Mogg Excerpts

Thursday 12th July 2012 Commons Chamber

[Mr Lidington]

We can debate, as my hon. Friend the Member for Hertsmere (Mr Clappison) does so robustly, whether the European Court of Justice should enjoy such widespread jurisdiction. However, what we are talking about is how we should address the problems in the system as it currently exists under treaty—the backlogs and delays, both at first instance and appeal. A system of courts in which justice is denied simply because the system is unable to cope with its work load is not in anybody’s interests.

[Jacob Rees-Mogg (North East Somerset) (Con)]

Will the Minister give way on that very point?

[Mr Lidington]

Of course I will give way to my hon. Friend, although I will be anxious to make progress thereafter.

[Jacob Rees-Mogg]

My right hon. Friend is exceptionally generous, as usual. However, I am not entirely sure that his last point is right. It could be in people’s interests for the Court to be bunged up. If one takes the view that the European Court of Justice is increasingly extending its powers into areas where it ought not interfere, anything that stops it doing that is all to the good.

[Mr Lidington]

A court of law and legal system should serve the interests of parties to that legal system. I go back to the old English adage that justice delayed is justice denied; my hon. Friend will be familiar with that and no doubt champion it as a matter of principle. I would argue that that principle should apply on a European level as well as on a United Kingdom or English level.

The reforms that we are discussing involve, first, the creation of a vice-president to assist the president of the Court in their role of managing litigation and overseeing the business of the Court. The vice-president will be appointed from among existing judges; an additional judge will not be required.

Secondly, there is to be an increase in the number of judges sitting in the Grand Chamber of the European Court of Justice, which generally handles the most sensitive cases. That is to allow broader participation by ECJ judges in general in Grand Chamber cases. It should increase the wider expertise of the Court and ensure greater consistency in how cases are handled. Thirdly, the reforms propose a reduction in the number of presidents of five-judge chambers who have to sit in the Grand Chamber at the same time. That will allow the chamber presidents more time to administer their separate chambers, each of which handles a substantial case load that should, as a consequence of this reform, be enabled to progress more quickly.

The reforms also include the power to appoint up to three temporary judges to the civil service tribunal, which is the employment tribunal for European Union officials. The problem with the tribunal at the moment is that it has only seven judges, which means that if even one judge is absent for a lengthy period, perhaps because of illness, cases can be delayed. Appointing temporary judges will prevent those delays from occurring. The temporary judges will be appointed from a panel of former judges of the European Court and will be paid only for the days that they actually work; they will not be on a long-term retainer or salary.

Finally, there is a key reform to the lower court, the General Court, which has a substantial backlog of cases. As is proposed for the ECJ—the upper tier—a vice-president will be created for the General Court, again from among the existing judges, to assist the president in managing litigation.

The Government have been active in negotiating the details of these reforms, and I am glad to say that because of our efforts two potential reforms about which we had concerns that we explained to the European Scrutiny Committee have now been removed. One of those was the proposal to remove the 10-day so-called period of grace granted to litigants to submit pleadings to the ECJ over and above the standard deadline period. We and other member states argued that removing the period of grace would harm our ability to submit pleadings and damage our national interest. We have protected the period of grace and ensured that not only the Government but, importantly, British businesses that may be party to ECJ cases have the maximum possible time to submit pleadings to the Court.

The other potential reform was the addition of 12 judges at the General Court. The Council has concluded that that reform requires further consideration and should be reserved for a later date. The rationale for the proposal was, again, the substantial backlog of cases—currently more than 1,300—at the General Court. It was also, in our view, very important that the reform was got right. We wanted to ensure that the arrangements for appointing any new judges are fit for purpose and that any increase in the number of judges should be consistent with the requirement for minimal spending in the current economic climate. We argued that any increase in the number of judges should go hand in hand with a programme of efficiency savings in the ECJ’s budget. The removal of the reform from the package at this stage is in line with our interests, but we may return to it at a future date.

--- Later in debate ---

[Jacob Rees-Mogg]

I begin by thanking the Minister, because it is down to his initiative that we can have this debate under the European Union Act 2011, which was a major improvement in our procedures to enable anything altering the structures of the Court to come before Parliament and to be the subject of a proper debate and motion. That is all to the good and increases the power of the House in relationship to the EU.

It is worth reminding ourselves that the European Court of Justice is not a proper, honest, decent court, like our courts are. I remind the House that these are the judges who ruled to their own benefit against that legal maxim that a judge should never be a judge in this own cause. They ruled to increase their own pay, and we should always remember what an improper and rotten court it is. We are dealing here with a small package of measures that will make it a more efficient, if no less improper, court by enabling it to attend to some of its business faster.

There is a wonderful paragraph from the helpful Library document. It is a quote from the Max Planck Institute, which my hon. Friend the Member for Stone (Mr Cash) cited, about what the European Court is up to:

“Whether it is buying a car, going on holiday or taking out an instalment loan, few aspects of our everyday lives are conceivable today without reference to European Union law. Countless directives and regulations, which set out the rights of consumers and entrepreneurs, apply not only in international legal undertakings, but also in domestic legal transactions. Which party has the law on its side is increasingly dependent on the European Court of Justice in Luxembourg, which ensures the implementation of European law within the EU.”

That is a rotten state of affairs.

There were great debates in the 18th century in this House on the motion:

“That the power of the Crown has increased, is increasing, and ought to be diminished.”

In every debate on the EU, we should remind ourselves that the power of the EU has increased, is increasing, and ought to be diminished. That is why I challenged my right hon. Friend the Minister for Europe over whether it was a good thing to make the European Court more efficient. In response, he challenged me with a proposition that I would normally accept, because he quoted an ancient British maxim—one probably invented in Somerset, where all good things come from—and it is true that justice delayed is justice denied. But the key word is “justice”, and the European Court of Justice might have that word in its title, but it is not its essence. Its essence is as a political entity. It is seeking to increase the power of a federal European state and turn the EU into a functioning country. That is why the House should be cautious about doing anything that makes it more powerful, because it is fundamentally hostile to us.

[Kelvin Hopkins (Luton North) (Lab)]

I have much sympathy with the latter part of the hon. Gentleman’s speech in particular. Would it not be a good idea to test the water somewhat by seeking to repatriate some powers—some power, even—to Britain, to see what the reaction of the European Union would be? There is much talk of repatriation, but let us take back just one simple power: I would start with the common fisheries policy, as he might know.

[Jacob Rees-Mogg]

I am extremely grateful to the hon. Gentleman, who is so wise in these matters. We ought to be looking at the inefficiencies in the European Court of Justice and saying, “Could these matters be decided in our own courts?” Is there a way in which, instead of saying, “Give them more power; give them more money; and give them more judges,” we can say, “Let these laws be determined in our country.”?

It is interesting, as my hon. Friend the Member for Stone said, that one of the reasons for the increase in the European Court of Justice’s work load is that our courts are sending it judgments for preliminary approval and guidance on what European law says. Would it not be better to repatriate that? Indeed, when we are in the process of negotiating on the European Court and how to make it more efficient, this is surely the opportunity to do so.

[Mr Cash]

On the preliminary reference procedure, Mr Rösler says:

“The judges in Luxembourg constitute a supranational court beyond national jurisdiction, dealing with an incredibly diverse range of issues that no national judge is faced with”.

He goes on to say that

“in contrast to national judges, the EU judges are not specialized in specific fields.”

Is it any surprise that they make such a mess of things?

[Jacob Rees-Mogg]

It is a rather terrifying thought that we have a court that its own friends say does not have judges with the expertise to rule on issues, but that instead of saying, “Well, let’s decide it in our own courts, where we have judges of proper expertise and standing,” we should be just appointing more second-rate judges to Europe, to get them to sort it out. That cannot possibly be the right approach to take.

We in the United Kingdom have a very high view of judges. We have been fortunate in this nation to have judges who have been rigorous figures of the law. They have not been political participants. However, the European Court is not of that category or standing. It is part of the operation of the European Union; and, along with the Commission and the European Parliament, it is in a constant battle and struggle to take powers from the nation states. Anything that we do to reform the European Court should mean bringing powers back to our own courts, where they will be judged on their merits and not on a scheme to push forward the programme of ever-closer union.

It is worth remembering, if anyone questions whether that is true, what happened in the United States in the 19th century, when the Supreme Court was avowedly federal in its approach and the 10th amendment was increasingly ignored to empower the central authorities. The European Court of Justice is doing exactly the same thing. Therefore, I go back to the intervention that I made on the Minister: the more the system is gummed up, the better. The fewer opportunities there will be to interfere in the nation state, the more opportunity we will have to repatriate powers to our own systems and our own judges. Therefore, although the matter before us is minor and essentially trivial, let it go through, but let us watch like hawks any further changes that the European Court may seek to make, to ensure that this drift of power to the continent ceases.

--- Later in debate ---

[Jacob Rees-Mogg]

I would question the judges’ probity on one thing in particular: their ruling that their own pay should be increased, which was fundamentally improper.

[Mr Lidington]

My hon. Friend has made his point clearly for the record.

My hon. Friend the Member for Stone asked about the risk of further efforts to enhance the powers and the jurisdiction of the European Court of Justice. He referred in particular to the possibility of the introduction of a right to petition the Court and take cases there. I can assure him that, notwithstanding what learned professors might say, no such proposal is on the table at the moment. No such proposal forms part of the regulations before us. The subject has not crossed my desk and it is not a matter of live discussion among Governments at present.

My hon. Friend also asked about the timing of the debate and expressed concern at what he believed to be an absence of time for the European Scrutiny Committee to consider this matter. I would challenge him on that. Looking back at the record, I see that we provided explanatory memorandums to that Committee at various times during the course of the negotiations: first, on 28 April 2011, then on 24 June 2011, 30 September 2011 and 20 April this year. I wrote to him last week to advise him of the latest developments and to request that the Committee clear these measures from scrutiny.

As for the most recent developments, we are working against the decision by the Cypriot presidency to table these measures for discussion and decision at a Council meeting in the very near future. My concern in writing to my hon. Friend as I did was to ensure that his Committee was aware of the need for urgency if the Committee and Parliament were to have the opportunity to express their views and, in the case of Parliament, to take a decision about the UK’s approach to these regulations ahead of that Council meeting.

The final point on which I was questioned—