Court of Justice of the European Union

William Cash Excerpts

Thursday 12th July 2012 Commons Chamber

[The Minister for Europe (Mr David Lidington)]

I beg to move,

That this House takes note of the 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 Annex 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 debate covers two draft regulations that reform the Court of Justice of the European Union with the aim of improving its efficiency. The European Scrutiny Committee has described the two regulations as

“a modest but useful package of reforms”,

and the Government endorse that verdict.

This is also the first time that the House has had the opportunity to debate such draft regulations under the new provisions of section 10(1)(d) and 10(1)(e) of the European Union Act 2011. Section 10 covers a small number of articles in the European Union treaties, and its provisions require each House of Parliament to approve a motion on the draft measure concerned before the Government are able, on behalf of the United Kingdom, to vote in support of the measure in Brussels.

As hon. Members on both sides will know, the role of the European Court of Justice is to ensure that European Union law is observed. It is a key role, and it is only right and proper that Parliament should oversee the Government’s approach to any reforms to that important European institution.

[Mr William Cash (Stone) (Con)]

Does my right hon. Friend agree that implicit in what he says is the rule of European Union law, but is he also aware that the European Scrutiny Committee, in its report on the recent fiscal compact, made it clear that it did not regard European Union law as having been fulfilled, and that the Government themselves still retain their own position of reserving their views on the legality of the compact? What are the Government doing about that?

[Mr Lidington]

I know, not least from my own 90-minute evidence session in front of my hon. Friend’s Committee, how strongly he and other members of the Committee feel about that subject. However, it would be moving beyond the terms of this afternoon’s debate if I responded in detail about the Government’s approach to fiscal union and their decision to reserve their position on the use of the institutions for the implementation of the fiscal compact. Ministers have corresponded about that with the Committee and I am sure that there will be other opportunities for us to go into that matter.

--- Later in debate ---

[Mr William Cash (Stone) (Con)]

The report of the European Scrutiny Committee has been referred to by the Minister.

I will start by setting out the importance of the proposed reforms and putting them in context. As a practitioner of law over an extended period, I know that the volume of law has been increasing exponentially, particularly since we became a member of the European Union—or the European Community as it was then—in 1972. I do not think that anybody can put an accurate figure on the number of pages or statutes that have been effected in this House under section 2 of the European Communities Act 1972; suffice it to say that it is monumental.

The European Court of Justice is being reformed because of its vast work load. That is the problem. We discussed the extension of EU competences a little earlier with the Foreign Secretary. Those competences impact on the daily lives of people not only in the United Kingdom, but across the European Union, and the excessive legislation strangles small and medium-sized businesses. That is all part and parcel of a much deeper problem than the surface question whether the Court needs a few more judges. The Court may need more judges, but that is because of the increase in its work load.

I will refer very briefly, Mr Deputy Speaker, to the ancient history of codification. No less a person than Justinian had to decide whether the state could cope with the vast increase in law that had taken place. Eventually, he decided to reduce the volume of law from a monumental 3 million lines of legislation to 150,000 lines. His example demonstrates that it can be done.

The problem is work load and the volume of law. It is perfectly clear from the various papers that have been supplied to us that the length of proceedings, which now averages 17 months, also presents serious problems. The Max Planck Institute for Comparative and International Private Law, based in Hamburg, has stated that the European Courts are under pressure because of their work load and that the greatest problem facing EU judges is the dramatic rise in the number of cases. The number of preliminary ruling cases increased from one in 1961 to 385 in 2010; and the number of cases at all three EU Courts had risen to 1,406 by 2010. Mr Rösler, who conducted the study, stated:

“That’s the highest level in the history of the EU Court of Justice.”

He went on to say that

“the EU Court of Justice has the biggest workload of any international court”.

The more law there is, the greater the work load. Mr Rösler believes that the EU’s geographical expansion is just one reason why EU judges face an excessive work load.

There is also the question whether we are having reform or a facelift. Mr Rösler states that reform is the only way out of the predicament, and his call is backed by the EU judges. In a very unusual public statement, the president of the Court, Vassilios Skouris, highlighted the Court’s excessive work load. He called for 12 new judges to be appointed to the European General Court. That has become a matter of dispute, as the Minister said. The question is what is being done. Mr Rösler mentioned the effect of having 12 more judges—I understand that that has stalled because the actual number has not yet been decided—saying:

“The expansion of the Court is urgently needed, but does not resolve the multi-faceted issues.”

In a statement I think some Members may regard as highly controversial, Mr Rösler says that a system of judicial federalism needs to be developed between member states and the European Courts. That is the direction in which all this is going. Above all, he says, the aim should be structural reform that establishes a new European judicial architecture. He says that would require the Court of Justice to specialise in relevant areas.

Mr Rösler goes even further, saying that the EU judiciary must open itself up to its citizens so that they can call upon the Court of Justice directly. It has already been accepted that the Court’s work load is absolutely enormous and arises from the vast increase in the amount of legislation affecting the daily lives of all the people in the EU, including people in the UK. Now, distinguished professors and others who are highly influential are suggesting that the whole process should be opened up to individual litigants. The idea is simply extraordinary.

Mr Rösler regards new, codified European legislation on conflict of laws and procedural law, which he says will significantly facilitate the enforcement of law before foreign courts and the EU Court of Justice, as a worthwhile long-term objective. There is almost no limit to the ambitions of those engaged in European jurisprudence. The problem is that the more law there is, the greater the distraction from the real problems facing Europe as a whole, which I do not need to go into today because they are well understood by the House.

We ought also to think about how to streamline the Court’s procedures and maximise its productivity through strategic changes to its personnel. That goes to the heart of the impact of European law. The European Court of Justice lies at the heart of part of the problem that the Foreign Secretary addressed in his statement earlier, and it ought to be put on his agenda.

The background to the debate is also influenced by the qualifications of the individual members of the Court. 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. That needs to be seriously considered. In the UK, it is unimaginable that members of a senior court at such a level would not be drawn from the senior judiciary. That in itself may be one reason why the European Court’s work load has increased so greatly in recent years.

The Court of Justice is currently composed of 27 judges and eight advocates-general, who are appointed by common accord of the member states after consultation with a panel that is responsible for giving an opinion on prospective candidates’ suitability to perform the duties involved. I personally believe that the system needs to be tightened up, so that only those with judicial experience are members of the court, rather than it being merely a question of their suitability.

I would be grateful if the Minister addressed the fact that the great majority of evidence received as the measure was being conceived recommended an increase in the number of judges of the General Court as the best solution to the work load problems. Why did that aspect of the negotiations stall, and what is the Government’s policy on increasing the capacity of the General Court?

I say that without reference to my other remarks, because the increase in the work load is the consequence of the vast increase in the functions and competences that have streamed like a tsunami to the European Union. I opposed the Lisbon treaty in opposition. I proposed amendment after amendment, greatly supported by the current Foreign Secretary, and opposed every provision in the treaty, but the House ended up implementing it because it accepted that ratification had taken place. I did not agree with that, and despite the fact that we were given a cast-iron guarantee of a referendum, we did not have one.

I have some questions for the Minister. What is the expected cost of the amendments to the statute and the appointment of temporary judges to the civil service tribunal, and does he regard that as good value for money? How much will it cost to establish the office of the vice-president of the Court of Justice, and how will the office benefit a litigant? How much will it cost to establish the office of the vice-president of the General Court, which was previously known as the Court of First Instance, and how will that benefit a litigant? How will altering the composition of the Grand Chamber benefit a litigant? Do any of the reforms introduced by the amendments save money? If so, how much?

Some influential voices, such as former Advocate-General Jacobs, who will be well known to those who take an interest in these matters, and current Advocate-General Sharpston—both UK appointees—believe there is little scope for reducing the time taken to litigate cases before the Court of Justice through further procedural reform. The Minister might well ask himself why and consider it carefully. The reasons, it is said, include the Court’s translation obligations, the reliance on written procedure and the privileged status of member states to intervene. Does the Minister regard the views of former UK Advocate-General Jacobs and current Advocate-General Sharpston as correct?

I accept the apology the Minister makes in his letter to me of 11 July, which hon. Members have in front of them. There was uncertainty about what was contained in the provisions. I am grateful that he has made it clear that, on taking legal advice, the matter had to be rectified. The letter states that the

“appointment of temporary judges to the Civil Service Tribunal…at the CJEU also fell within Section 10 of the Act”.

The Government believe that the reform will be beneficial, as the Minister has said, and the European Scrutiny Committee takes the view, given the general comments I have made, that this is a modest but useful package of reforms. Well, it is a modest but useful package of reforms which takes account of the overarching volume of legislation that has generated the work load. Some hon. Members desire not merely to repatriate powers, but to reduce the volume of legislation as Justinian was able to do. That was at the end of the Roman empire—the fall, not just the decline. In that context, it might be observed that the last act of the Romans before the Visigoths and the others moved in on Rome was to try desperately to reduce the volume of legislation. Such action is now well overdue.

In our conclusions, having thanked the Minister for inviting us to comment, we express our regret at the lack of time given to us to do so. Indeed, our report was only published today, so for practical purposes we have all been put under a great deal of time constraint. Having said that, the real question seems to be: by how much can we reduce the amount of law that is leading to the excessive work load and to more judges, which in turn means increased costs? What practical impact will this have on litigants? I trust that he will not encourage the idea of personal litigation of the type recommended by the gentleman I quoted earlier. I ask the right hon. Gentleman to answer some of those questions as best he can, difficult though that might be.

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[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 ---

[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—

[Mr Cash]

Will the Minister give way?

[Mr Lidington]

All right, I will, but then I will move on.

[Mr Cash]

My hon. Friend should not show his impatience; that is not a wise thing to show to the Chairman of the European Scrutiny Committee. I think that his demeanour should be a little more relaxed.

Let me say simply that I have put a number of questions to the Minister and I can see that he is not going to answer them, so I should be grateful if he wrote to me when he has had a chance to look at the transcript of the debate. As it happens—I do not say this with any stricture—he was talking to the Whip on duty when I asked him the questions that had been formulated carefully by our advisers. I should be grateful if he replied to me in writing, as he is clearly not going to respond at the moment.

[Mr Lidington]

I can assure my hon. Friend that, when it comes to dealing with him, my patience is infinite. I will certainly check the record and I will write to him if there are any points on which we have not given him an adequate answer. I ask him to look at what I have said about the nugatory costs of the measures, because questions on that matter formed a considerable part of the series of questions that he put to me during his speech.

The hon. Member for Wolverhampton North East asked about the Government’s attitude towards the proposal to appoint additional judges to the General Court. My answer is that we do not rule this out. We can see why this is being advocated as a means of reducing the significant backlog of cases at the General Court, but before we agree to an increase in the number of judges, with the additional costs that that would undoubtedly entail, we certainly want to be absolutely clear that every possible efficiency measure had been taken to reduce the General Court’s spending and to improve its productivity. We view this question—and the possible costs arising out of an increased number of judges—as one that needs to be addressed in the broader framework of the financial pressures on the EU and its member states and in the context of the negotiations over annual EU budgets and the multi-annual financial framework.

Another point in reply to the hon. Lady is that, in addition to our concern about costs, we would want to be satisfied with the judges concerned if additional judges were indeed appointed. The United Kingdom—England and Wales in particular, where a common law system applies—will be concerned as a country to make sure that judges with a knowledge of common law systems are properly represented when cases are considered by the European Court of Justice.

I have tried to respond to the points raised in the debate, and I hope that the House will now agree to the motion.

Question put and agreed to.

Resolved,

That this House takes note of the 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 Annex 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.