Court of Justice of the European Union

Lord Anderson of Swansea Excerpts

Monday 23rd July 2012 Lords Chamber

[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.

--- Later in debate ---

[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.