Examination of Witness (Question 239)
Sir David Edward QC
13 DECEMBER 2006
Q239Chairman: Sir David, welcome to the Sub-Committee.
I suspect this is not your first attendance before the Sub-Committee.
We are very grateful indeed to you for coming down from Edinburgh
for the day. You know the form: we are public, we are on air,
and you will get a copy of the transcript with an opportunity
to correct it, but in the meantime, it goes live on the Web. You
really do not need much of an introduction. Your distinguished
career is, I think, known to us all. We have a very helpful contribution
from you in writing. I think you have already seen a list of the
proposed areas of questioning on which we would like your help.
You have also, I think, seen the written contributions and indeed
the transcripts of the oral evidence which has been given at the
three earlier evidence sessions we have already held. I gather
that you have one or two opening remarks which you would wish
to make to supplement your written evidence before we embark on
more specific questioning?
Sir David Edward: Yes. Thank you very much,
my Lord Chairman. I have read all the evidence and the transcripts.
It seemed to me that it might be useful to amplify my evidence
on two points. The first is really identifying what is the concern—the
mischief—which this proposal is intended to cure. There
seem to be three concerns. One is speed, the speed of decision
making, especially in mergers. That is the main focus of the CBI's
submission. I would accept the force of that case as regards mergers,
but I think it is important to say, as has been pointed out, that
there are other priorities as well. Secondly, there is finality.
There is not much discussion about that, but I think it is important
from the point of view of corporations seeking to merge. That
is the reason why there should not be too many layers of appeal
procedure. A third point which I did not really mention in my
written evidence is quality control, because in a sense quality
control is the ultimate purpose of judicial review—control
of the quality of the decision in legal terms (whether it is in
compliance with the procedure and substantive law) but also whether
the fact-finding is adequate and whether the economic or other
assessments have been properly made—not as to the underlying
substance but whether there is sufficient to justify the result.
These various considerations, I think, involve an inherent conflict.
There is an inherent conflict between speed and quality control.
It does seem to me that it is not self-evident in the present
context that quality control should necessarily all be done by
the same body. Dr Bishop, following a long line of commentators,
suggests that the time has come to separate the investigation
and prosecuting role from the decision-making or, in particular
in the context of mergers, the prohibition role. I would point
out in that connection, from our own experience here, that the
trend has been towards the de-politicisation of competition decision
making. That is really the effect of the recent legislation in
the UK, to take decision making away from ministers and indeed
to take it away from Whitehall as such and concentrate it in the
hands of the OFT, the Competition Commission and the Competition
Appeal Tribunal. I think in that context it is worth remembering
that the European Commission is a political animal and those who
are responsible for the competition decisions have their reputations
and their careers to think about. Therefore, perhaps what is being
looked for by some of those who have given evidence is really
a trend towards de-politicisation of the decision making process,
which does not in my view mean judicialisation of the process
either. The question is whether you are looking for a more efficient
and effective judicial panel (which is basically lawyers) or whether
you are looking for a more efficient and effective quality control
of fact-finding and economic assessment (which is not merely a
matter for lawyers but also for economists and others). So it
is not self-evident, to me that the solution lies in the creation
of one new entity, and certainly not necessarily in the creation
of a new court as such. The other thing about which I would like
to say something is procedural autonomy. Of course, I accept that
the basic rules and principles must be laid down. That is the
function of the Treaty or the Statute of the Court, just in the
same way as in Strasbourg the basic rules of the Court of Human
Rights are laid down in the Convention. What I am concerned about
is the making of the detailed rules of procedure. I would also,
obviously, accept that the rules of procedure must be published
and known in advance. But the reason for my urging the importance
of procedural autonomy is not just because it would make for more
effective and efficient case management but, more important, that
procedural autonomy makes more easy effective management of the
court's case load as a whole, including deciding how best to react
to the various priorities and the conflicting priorities. It does
seem to me that this is an area of thought in which the UK can
take a lead because we are moving relatively fast, I think, away
from party-driven procedure towards a degree of case management.
I should say, contrary to some people's impression, that the Continental
tradition is against procedural autonomy and against case management,
except in the investigative role of the judge in criminal procedure.
By and large the Continental tradition is, as they put it, towards
the passivity of the judge. Therefore, when I started in the Court
of First Instance I was aware that there was a certain degree
of surprise that we should be looking for ways of case management.
This is partly cultural and partly historical. Sir Christopher
Bellamy, in answer to Q195, mentioned the rule of the juge
legal, which is a rule which was suddenly sprung upon us in
the middle of the nineties at the insistence of the German government.
The rule is that the composition of the court which is going to
hear a case must be fixed in advance by objective criteria which
are published in advance. Therefore, you cannot select the formation
of judgment to suit the case. I think the time has come to question
rules such as these, and that is another reason why the court
should be moved out from the procedural umbrella of the Member
States. Those are my initial thoughts.
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