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EU: Advocates-General of the Court of Justice

Volume 745: debated on Monday 10 June 2013

Motion to Take Note

Moved By

That this House takes note of European Union Document No. 7013/13, the draft Council Decision increasing the number of Advocates-General of the Court of Justice of the European Union, and, in accordance with Section 10 of the European Union Act 2011, approves Her Majesty’s Government’s intention to support the adoption of that draft Council Decision.

My Lords, I am grateful to the European Scrutiny Committee for its thoughtful consideration of the draft Council decision increasing the number of advocates-general at the Court of Justice of the European Union from eight to 11. As the House will be aware, this proposal is subject to the EU Act 2011 and, before Ministers can take a position in Council, parliamentary approval must be secured for the UK’s position. That is the purpose of our debate today.

The Lords European Union Committee has reported on this subject twice, in 2011 and again in April this year. An increase in the number of advocates-general at the Court of Justice of the European Union will be of benefit to British businesses, which will gain from the increased capacity of the Court. The proposal is to increase the number of advocates-general to nine from 1 July 2013 and to 11 from 7 October 2015. The first additional advocate-general will be a permanent Polish advocate-general. Under Declaration 38 on Article 252 of the Treaty on the Functioning of the European Union, member states agreed in 2007 that, if there was an increase in the number of advocates-general, Poland would have a permanent advocate-general and no longer take part in the rotation of advocates-general. This will bring Poland in to line with the other “Big Six” member states, including the UK, which all have permanent advocates-general. The other two additional advocates-general will increase the existing rotation system from three to five. Under the current arrangements, we expect that the first two additional advocates-general appointed in October 2015 will be Czech and Danish.

The Government believe that this reform will help to maximise the efficiency of the Court and promote the effective passage of justice, as it will allow the Court to increase the speed at which it handles cases and improve the quality of its decision-making. However, more efficient operation of the Court will require more than the appointment of these three additional advocates-general to the Court of Justice. Peers will already be familiar with the reforms that the Court has introduced in the last two years, which include: increasing the number of judges in the Grand Chamber from 13 to 15; abolishing unnecessary procedural elements, such as the requirement to read the report for the hearing in full, and thus the need to produce the report; providing for the appointment of temporary judges to the Civil Service Tribunal; and establishing a new office of vice-president in the Court of Justice and the General Court. Today’s debate focuses on the latest of these wider reforms, but it will not be the last.

The Government share the eagerness of the European Union Committee for the question of additional judges at the General Court to be resolved. Negotiations on that reform have been ongoing since March 2011 and currently are at an impasse. In common with many other member states, the UK had concerns about the proposals that have been made so far. However, the Government are keen to work with other member states to agree a way forward. With that in mind, we look forward to receiving new proposals to consider. In addition to negotiations on extra judges at the General Court, the Government will continue to work closely with the Court, the Commission and other member states to identify and take forward both long-term and short-term solutions to the General Court’s backlog. We will continue to explore the full range of options for structural reform to identify a solution that meets the needs of all concerned.

To return to the specific issue today, the Government broadly support this proposal. In particular, it meets three key goals of our policy towards Court reform. Those goals are to promote the effective passage of justice, for there to be a clear need for any reform, in this case the additional advocates-general, and for costs to be contained. The role of advocates-general is to produce non-legally binding opinions for the Court of Justice to assist it in reaching its judgment. They do this in more than 50% of cases, particularly in cases that raise a new point of law. As there is no appeals process in the Court of Justice, their additional reasoned submissions help the Court to provide effective justice. As the number of cases before the Court of Justice continues to rise, by 4.5% in 2012, the Government are satisfied that there is a need for additional advocates-general to manage the workload of the Court of Justice.

I turn now to the particular issues that the EU Committee has raised with the Minister for Europe: the timetable for appointments and Council decisions, and funding. To take the timetable for appointments and Council decisions first, the Court would like to have the first additional advocate-general, the Polish one, in post from 1 July 2013 and the other two from 7 October 2015, when there will be a partial replacement of the members of the Court. Given that this request was made by the Court only on 16 January 2013, the 1 July date was always an ambitious timetable for the first advocate-general. In addition to our requirement for an affirmative debate in both Houses before Ministers can take a position in Council, Poland also estimates that the appointment process will take four months. However, the Government are still hopeful that, if parliamentary approval is secured today in the House of Lords and tomorrow in the House of Commons, the Council will be able to approve the decision under the Irish presidency, which ends at the end of June. If the 1 July deadline is missed, member states can appoint the first advocate-general at any point from then onwards and do not need to wait until October 2015. We know that the Court and other member states are keen to have the Polish advocate-general in post as soon as possible, so we anticipate that happening quickly.

On the issue of funding, while broadly supporting this proposal, the Government are clear that any additional advocates-general should not result in an increase to the Court’s budget. We are satisfied that the relatively small additional cost that the Court will incur of around €4 million a year can be met from within its existing budget—it was more than €354 million for 2013—which the Court has underspent in previous years. In the current economic climate, there is an imperative on all the European Union’s institutions to find ways to reduce their administrative costs. The UK is not alone in expecting the Court to absorb the costs of the additional advocates-general. During discussions on the annual budgetary framework next year, when the decision on funding will be taken, alongside like-minded member states we will press very firmly for this to be met from within the Court’s existing budget.

I hope that Peers will appreciate how keen the Government are to promote the effective passage of justice at the Court and that they will agree with the Government’s view that these additional advocates-general will contribute to this aim and should be delivered without further budget increase. I hope that today’s debate will provide Peers with the opportunity to consider this proposal fully and that, having done so, they will agree with the Government that the addition of three advocates-general to the Court of Justice of the European Union is in the UK’s interests. Before Ministers can vote in Council on this issue, the Government need to secure parliamentary approval. As such, this is a key element of improving trust in the decision-making process between citizens, Parliament and Government, and so increasing the democratic accountability of the European Union.

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.

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.

In February this year, the committee carried out a follow-up to the inquiry on the workload of the Court of Justice, to which the noble Lord, Lord Bowness, referred. At the time, the Law Society told us that “there is no question” that increasing the number of judges “is required urgently”, and most witnesses who wrote or appeared before us agreed. In its report, the committee concluded:

“Without the necessary resources the Court will not be able to deliver justice in a timely manner”,

and urged member states to deal with the current impasse.

In 2011, the Government gave what can be described as only a lukewarm reception to our recommendation to increase the number of judges, but I am pleased that the Government now accept the case for extra judicial capacity and would like this to happen expeditiously. In the debate last year to which I referred, the noble Lord, Lord Howell, said:

“Any increase to the number of judges should be consistent with the requirement for minimal spending in the current economic climate”.—[Official Report, 23/7/12; col. 564.]

However, as I understand it, the budget has not been exceeded. At present, there is no need for anyone to assume that that position will change.

I should like the Minister to explain what the Government are doing to secure agreement by all member states to increasing the number of judges in the General Court. He referred to discussions in a general manner but it would be helpful if at this stage he were to be a little more specific.

My Lords, I associate myself fully with my noble friend’s observations about the chairmanship of the noble Lord, Lord Bowness. I have had the privilege of serving under him for more than three years, and if anyone wanted to find a way to be a model chairman, they should follow him. We have been a disparate group over these past three or four years. Europe encourages lots of disparate views but he somehow managed, throughout the whole of his chairmanship, to achieve a consensus through persuasive patience. I, too, acknowledge his importance and he has been a marvellous chairman.

I welcome, too, the acceptance by the Minister of our recommendation to increase the number of advocates-general. Whatever one’s views about the court’s broader role—it has been controversial and previously I have made observations about its role and said that it might have been on a mission to drive ever closer union and so on—we know simply that we need a fully functioning Court of Justice if we are to remain in the single market and if it is to be effective. It is not just in the interests of some European ideal, it is strongly in British interests that the Court of Justice works effectively, and produces quality and timely justice.

Given the new role that the court will be playing in the field of justice and home affairs, there is a potential time bomb. It is not just the fact of the number of cases but the relationship between the work that the court will play in the new area of the administration of justice, which has to take priority because judgments have to made quickly, and, more broadly, the court’s other cases and judgments that could be displaced. Interesting figures are quoted in the report. Table 1 reveals that the number of preliminary rulings that have come before the Court of Justice concerning freedom, security and justice, was 17 in 2009, 38 in 2010, and 44 in 2011. That represents a considerable increase, both in terms of numbers and proportion. If that were to continue, the relationship between the work of the Court of Justice in its role as regards freedom, security and justice and its more general role could have an important and serious effect.

When this matter was raised with the Minister, David Lidington, he accepted in his oral evidence that there was a considerable proportionate increase but argued that only 10% of preliminary references in 2001 came from justice and home affairs. However, that 10% figure is increasing. The Minister admitted in his evidence that we really do not know the potential. The figures are beginning to show, and I believe that they will show, that as the Court of Justice increasingly becomes involved in freedom and security issues there will be more urgent cases and, therefore, delays to cases in the broader work of the court could occur.

We wanted to raise this matter and are glad that after initial hesitation the Government have accepted our recommendations on advocates-general. As the noble Lord said, they were actually written into the Lisbon treaty, but the Minister should also be aware that sooner or later we will have to address again the issue of the number of judges. I understand the impasse and the complications among all the member states on who should be appointed, who should appoint and which country should be given the appointments. Mr Lidington at least accepted that advocates-general do not raise those sorts of issues.

I was particularly interested in the statement made by the noble Lord, Lord Wallace, which was very different from that of his predecessor. The noble Lord, Lord Howell, was very chary of the whole idea of new judges, but I think that the noble Lord, Lord Wallace, has said that the Government have in principle accepted that concept. If that is the case, we as members of the committee are very pleased.

My Lords, this is the third debate in which I have spoken on the European Court of Justice from the Opposition Front Bench. We support the strengthening of the system; it is essential to the effectiveness and quality of justice in the European Union. We seem to be getting there at least step by step. The proposal for additional advocates-general has our support. The idea that Poland should have a permanent position seems to be in accord with the acceptance that that country is one of the major member states of the Union. It grants Poland the equality of status that it has long sought.

It is significant that the Government have moved to support this proposal. It shows that at least they accept the pragmatism of the view of the noble Lord, Lord Rowlands, whereby if you are going to have an effective single market you have to have an effective form of justice. I have to say, however, that there are many people not present tonight but who occupy the government Benches and talk about renegotiating a relationship between Britain and the European Union, which, in essence, boils down to free trade and political co-operation. If that is the vision of the modern Conservative Party about Britain’s relationship with the EU, it is not one in which you would have this system of law which upholds the single market. We need clarification from the Government as to what they envisage the role of the system of law in the European Union to be. I very much hope that what they are doing now, on a case-by-case basis, demonstrates that they accept pooled sovereignty in areas where we have chosen to accept it, and that part of this involves a form of supranational decision-making and supranational law.

My second point is that I support those noble Lords who have raised the question of why progress is limited, so far, to the issue of additional judges for the general court. That is clearly an important part of the reform package. I listened very carefully to what the Minister said about the Government broadly supporting this proposal. Do they support it or do they not? Do they regard the requirement to keep within the existing budget of the court as a binding constraint in all circumstances, or do they not? Is it a binding constraint or is it not? If they say it is a binding constraint, what efficiency proposals are the Government putting forward to the court in order that the cost of the additional judges could be met from within the budget?

I suspect that we are seeing a divided Whitehall here, with some departments recognising the need for additional judges, while others are trying to argue that the cost has to be kept within the existing budget. It is all very well making these declarations but how will it be done?

I agree very much with what the noble Lord, Lord Bowness, said about not differentiating between cost and value. It should be obvious to everyone that the value of more efficient decision-making on issues of central concern to our economy, such as the single market, would greatly exceed the cost. Where do the Government stand on this point?

I also endorse what the noble Baroness, Lady Corston, said about the value not just of greater efficiency of justice in terms of the single market, but also in terms of the basic rights of European citizens. We welcome the limited steps that have been taken. Of course, one should search for efficiency and cost saving all the time, but can the Government give us an assurance that they will not block a proposal to increase the number of judges purely on cost grounds alone?

My Lords, this debate has moved more widely than the decision to appoint another three advocates-general. I take it that we are all agreed that we have no objections to the appointment of three additional advocates-general, so I therefore trust that we may agree the Motion—which is the trigger for this debate—at the end of the debate.

On that point, the noble Lord, Lord Bowness, asked about the exact meaning of Article 252 of the TFEU. Many of these things require juristes-linguistes to play around with the words a great deal. I am told that the Council, acting unanimously, can decide, in effect, to increase the number of advocates-general. Declaration 38 is a declaration of intent but the Council has nevertheless to act unanimously to approve a decision. If the British Government, having failed to achieve the agreement of both Houses of Parliament, were to block it, it would not go forward and that would have a damaging effect on UK relations with Poland. The Poles are very much looking forward to joining the other big five, so to speak, in appointing their own advocate-general.

Most of the debate has ranged more widely on the issue of the effectiveness of the Court and the need for additional judges. I say to the noble Lord, Lord Rowlands, that I think that there is less suspicion of the European Court of Justice, and now the CJEU, than there was 15 or 20 years ago. It has lost some of the expansionist ideology of the early years. I have read a number of cases, particularly those related to university fees, that I felt were a very constructive interpretation of the treaties.

We are very much at a place where we need an effective court for a range of decisions that enable the single market and a number of other areas to operate closely. For example, I am conscious that sanctions cases are arising before the European Court of Justice. There is an increasing number of different activities, and trade mark issues are becoming a major issue for the Court. As noble Lords will know, we now have a separate patent court, and the British Government actively supported its creation. With the European Court of Justice and the General Court we have the ability to cope with what seems to be a steadily increasing workload as new areas come on.

Earlier this afternoon, when answering the Statement, I touched on aspects of the digital revolution and what that means for the European Union and EU regulation. One could think of a number of other areas in which new issues will come up that will be there for litigation. We accept the problem of the CJEU workload, and Her Majesty’s Government are therefore attempting actively to push forward the question of additional judges. Noble Lords will understand that if we say, “Let’s have additional judges but not one per state”, we then get into major issues between large and small states, between merit versus nomination and forms of rotation, and that is where we are stuck at present. We are keen to gain consensus on how to go forward. We have our own preferences but we will not insist on pushing them too strongly on to others, provided that we can have what seems to us a justifiable arrangement.

We are strongly in favour of additional members—not another 27 but another nine or 12—and we very much hope that that will be agreed. It is the selection method of the judges that is the sticking point in negotiations to date and we hope to advance that as far as we can. The noble Lord, Lord Liddle, tweaked me a little on the modern Conservative Party and the minimalist view. I think that he reads the Telegraph or the Mail too frequently to maintain one’s normal composure, but I hope that he also read the Telegraph’s report this morning on the Prime Minister’s speech today robustly defending the way in which Britain’s national interests are contained in the European Union. I look forward to hearing a similarly robust speech from the leader of the Labour Party on why Britain’s national interests are served within the European Union. Perhaps the noble Lord, Lord Liddle, can reassure me outside the Chamber that that will come at some point within the next three, six or nine months.

The noble Lord also asked whether the budget constraint is so tight as to choke off everything else. Her Majesty’s Government and a number of other like-minded states are keen to keep budgetary spending down. Every time I go to Brussels and walk through some of those wonderful new buildings, including the European Parliament, it seems to me that the idea that one should hold spending down has not yet occurred to a number of people within the Brussels institutions. It is something on which Her Majesty’s Government wish to insist at every point throughout the decisions taken. Of course we recognise that as the Court grows—if it were to take on a number of additional judges as well as advocates-general—costs will fall where they fall.

I hope that I have covered all the points made. Her Majesty’s Government are committed to an effective Court and system of justice. We look forward to the appointment of additional advocates-general and to resolving the current negotiations over additional judges for the General Court.

As a former chair of a sub-committee of the European Union Committee, I have to say how much the European Union Committee contributes to intelligent debate not only within Britain but across the European Union on a range of issues. These two reports have helped in that regard. I know, again from just having visited Brussels, that House of Lords European Union reports are widely read in the European Parliament as well as in the Commission and elsewhere. I wish the noble Baroness, Lady Corston, much joy, pleasure, very hard work and a great deal of reading as chair of this sub-committee.

Motion agreed.

8.21 pm

Sitting suspended.