One of the constant accusations made against the EU – it was made in a comment to my blog last week – is that there is a democratic deficit. I accept the claim; it is undeniable. But it is also an accusation from within a UK glasshouse, since many of our own great governing institutions themselves suffer from a democratic deficit: the House of Lords and the monarchy, to name just two, never mind the first-past-the post electoral system which often entrenches minority-voted parties into governments with great majorities.

The EU has tried to overcome the deficit through the much-derided Lisbon Treaty, by – among other things – giving a greater role to national parliaments. For example, national parliaments now take part in the revision procedures of the treaties. They can oppose an initiative of the European Council in certain circumstances to shift from unanimity to qualified majority voting. Most importantly, they are supposed to keep a subsidiarity check on the EU institutions, to ensure that only what needs to happen at EU level does so. Some say that it has not made things any better.

The House of Lords, that bastion of the democratic deficit, is an unsung hero of the scrutiny by national parliaments of EU initiatives and legislation. It has an EU select committee, but, more importantly for our purposes, a sub-committee E which looks at justice and institutions. It is currently conducting an investigation into the ‘Workload of the Court of Justice of the European Union’. As with all its investigations, there is a wealth of information and opinions available.

The background to its investigation is that, what with the changes brought about by the Lisbon Treaty and by recent enlargement, the court’s work is swelling both in relation to volume and range of legal issues before it. The Lisbon Treaty extended the court’s jurisdiction regarding justice and home affairs measures, and also the right to bring actions, never mind coping with the democratic deficit by giving the court jurisdiction to hear subsidiarity challenges brought on behalf of national parliaments. But it is in the field of enlargement that the figures are staggering: the two enlargements of 2004 and 2007 resulted in the largest ever increase in the size of the court, with 22 new judges (11 joining each of the Court of Justice and the General Court respectively); the court has also had to accommodate the introduction of 11 new official languages. As someone who manages an EU-wide body with just two working languages, I can imagine the problems that caused.

Whereas the Court of Justice has been coping well, with the average duration of cases dropping steadily, the General Court has been going in the other direction. As a small example, intellectual property cases have increased six-fold from 34 cases in 2000 to 207 in 2009, and the duration of such cases has increased from an average of 9.1 months in 2000 to 20.1 months in 2009. To quote evidence given before the House of Lords: 'The growth in the jurisdiction of the General Court reflects the esteem in which it is held. The number of appeals to the Court of Justice against its decisions is relatively low (26% in 2009), and relatively few of those that are brought are successful (15 out of 104 in 2009). However, the expansion of its jurisdiction meant that it was soon afflicted by workload problems of its own.'

The CCBE gave its own oral evidence recently to the sub-committee, together with a written submission. We recognise the problems, and that there might be various solutions to them. We consider the delays before the General Court to be unacceptable. We do not believe that there will be any significant improvement without a structural change in the organisation of the General Court, although we made several procedural suggestions nevertheless. The Law Society has also submitted written evidence, in which it commented, among other things, on the contentious topic of language. Here is an example when discussing the fact that French is the working language of the court: 'The Society considers, however, that the maintenance of a monolingual regime for the work of the court, and the resultant need for translations, does present one of the factors that militate against the swift delivery of justice (and … against the delivery of justice itself).'

But my aim is not to dwell on solutions, or even on the European courts in general, but rather to return to my main point which is that national parliaments have a role to play in reducing the democratic deficit, and that the House of Lords is playing its role well.

Jonathan Goldsmith is the secretary general of the Council of Bars and Law Societies of Europe (CCBE), which represents over 700,000 European lawyers through its member bars and law societies

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