Cross-Border Mediation (EU Directive) (EU Exit) Regulations 2019

Motion to Approve

Moved by

That the draft Regulations laid before the House on 21 January be approved.

My Lords, this draft instrument forms part of the ongoing work to ensure that, if the UK leaves the EU without a deal, our legal system will continue to work effectively for our citizens. It is solely related to no-deal preparations. If Parliament approved the withdrawal agreement, which includes an implementation period, and passes the necessary legislation to implement that agreement, the Government would defer the coming into force of this instrument until the end of that implementation period. Once a deal on our future relationship with the EU had been reached, we would then review whether this instrument needed to be amended or revoked.

Is it the Government’s policy, if they are negotiating in a transition period because they have got an agreement, to seek to continue the kind of provisions that are in these regulations when we come to the end of the transition period?

The Government—in the event that we have a withdrawal agreement—will enter into negotiations on our future relationship with the EU, and that will include a desire to ensure that we have addressed the full panoply of judicial co-operation issues that exist at the present time. We cannot say unilaterally that we will secure all of those, but clearly we have an interest in carrying on that negotiation. That is why, at the end of any implementation period, it may be that we can simply revoke these instruments without them ever having to be applied.

The instrument relates to mediation, which is, as noble Lords will be aware, a structured process whereby the parties to a dispute attempt on a voluntary basis to reach an agreement to settle their dispute with the assistance of a mediator, but without a court needing to rule on the dispute. In the civil and commercial fields, such a dispute covers a wide range of contractual and other issues, but also touches on family issues such as access to children.

In 2008, the European Council agreed what it termed a “cross-border mediation directive” which sought to harmonise certain aspects of mediation in relation to EU member states’ cross-border disputes. I should note that the directive does not apply to Denmark, so when I refer to “member states” in this context, I am not including Denmark, which has an opt-out under Protocol 22 of the Lisbon treaty. The aim of the mediation directive is to promote the use of mediation in such cross-border disputes. An EU cross-border dispute can be one between parties who are domiciled, or habitually resident, in two or more different member states, or it can be a dispute where judicial or arbitration proceedings are started in a member state other than the one where the parties are living or domiciled.

The United Kingdom then enacted domestic legislation which gave effect to certain aspects of the mediation directive. I say “certain aspects” because, in many areas—such as ensuring the quality of mediation, and information about mediation for the public—our existing arrangements already met the requirements or standards set out in the 2008 directive. However, in order to implement the directive, the UK had to introduce some new rules for EU cross-border mediations involving UK parties. These new rules first specified that if a time limit, or limitation period, in domestic law during which a claim could be brought in a court or tribunal expires during the mediation process, the parties can still seek a remedy through the courts or tribunals should the mediation not be successful. Secondly, the new rules defined the rights of a mediator, or someone involved in the administration of mediation, to resist giving evidence in civil or judicial proceedings arising from information disclosed during mediation. Various changes were also made to court rules to supplement these changes and to implement the requirements of the mediation directive relating to the enforceability of agreements resulting from mediation.

One of the most difficult issues that we grappled with during the passage of the European Union (Withdrawal) Bill was child abductions and disputes about child custody. I assume that this affects that issue; can the Minister tell us how? The single most disturbing aspect that came out of that is that it might be harder to deal with cross-border issues of child abduction after Brexit. I am keen to understand whether this maintains the status quo as far as possible. Does this mean that effective remedies will be available to the court to deal rapidly with issues of child abduction?

First, this instrument is not concerned with the role of the court: it is concerned with the role of mediation outside the court. Secondly, it is not usual to discover mediation as a form of resolving a child abduction case. The very nature of an abduction is such that the parties are not amenable to agreeing a voluntary mediation to resolve the matter. We have already made provision for civil orders in relation to child abduction.

With regard to criminal orders, it is impossible to replicate the existing provisions of EU law because, under the relevant provisions of EU law, an EU court would not recognise an order from a UK court in any event, and therefore it would give false hope to a party to grant them an order that was not enforceable. Overall, therefore, my answer to the noble Lord is that mediation does not impact directly on the sort of issue that has been raised. We recognise the importance of trying to ensure, as far as possible, that there are means of enforcing child abduction orders. The only qualification if we leave without a deal is that there would be no right of the originating court to make an order that trumps the order of the court in the country to which the child has been abducted. That is simply because in the absence of reciprocity, it is not possible to make such an order enforceable. Otherwise, my understanding is that we will be able to proceed.

I think I am right in saying that we are party to a treaty about child abduction that extends well beyond the EU. I have had experience of a case involving abduction where one of the parties was resident in Australia and the other one in Norway, which, of course, are outside the EU network. We have rules about the speed at which cases can be dealt with, but the basic treaty arrangements are unaffected.

The noble and learned Lord is quite right. The Brussels convention on these matters reflects the terms of the Hague convention to a large extent. The one qualification is the element to which I referred about the trumping order, which is not available under the Hague convention. However, it works very effectively in respect of non-EU states and there is no reason it should not continue to operate. I believe that a week or so ago, I addressed these matters in this House when moving other regulations relating to exit, so I hope I have not contradicted myself since then.

Finally, although the confidentiality provisions in the EU directive will no longer be law in the context of mediation in England and Wales, it is usual for parties, when agreeing to mediation, to have an agreement on confidentiality as well. Indeed, even in the absence of such agreement, there is a provision from the High Court in the case Farm Assist Ltd in 2009, which says that such a confidentiality obligation would be implied in any event. It would, of course, be subject to the interests of justice, but we are not going to lose entirely the benefit of the confidentiality provisions if we leave without a deal. In these circumstances, therefore, I beg to move.

My Lords, this is another example of something we are losing, although in this instance the amount is relatively small. As the Minister has explained, this concerns mainly time and the confidentiality element as it is currently provided, and there are some alternatives to that.

It is extraordinary in that it repeals provisions that would be continued under the withdrawal Act—which we have already passed—in numerous other statutes, including the Equalities Act 2010, so we are bound to look at it suspiciously for that reason. The Government’s argument against continuing these provisions without guaranteed reciprocity—I accept that the Government cannot guarantee reciprocity—is that applying them unilaterally would result in preferential treatment for parties involved in EU cross-border mediations that they believe would no longer be justified when the UK ceases to be an EU member state.

If, however, the provisions can be used to assist in a mediation and the other EU state involved is willing to observe a reciprocal arrangement, why should we deny that benefit? What is the unfairness of that? There are many instances in which we have better arrangements with some states than with others in judicial matters, and in the case of our European neighbours it would be surprising if we could not have more arrangements facilitated than apply in other cases. We do not say that person X is being treated unfairly because their attempt to resolve a matter by mediation relates to a state that is not helpful, whereas person B is in a mediation involving a state with which we are able to make some reciprocal arrangement.

The Government have taken the view with most—although not all—of these statutory instruments that where we cannot have reciprocity we cannot have anything. That is not necessarily the case. The Minister kindly answered the question I asked him earlier in a way that seemed to imply that the Government, if there is an agreement during the transition period, would seek to negotiate back into existence something along these lines. Of course, during the transition period the provisions would continue to operate.

My Lords, as we have heard, this instrument sits against a backdrop of completely inadequate planning for justice co-operation after Brexit. The danger is that that inadequate planning could put vulnerable people in our society at risk. Across Parliament, including from the Justice Select Committee, there has been concern that the Ministry of Justice has failed to provide sufficient detail or certainty about how co-operation on justice will be managed after we exit the European Union.

As we all know, we currently benefit from well-established, frequently updated and comprehensive reciprocal justice arrangements within the EU. Without an agreement with our European partners on what the future of those reciprocal arrangements looks like, people forced to go to court or mediation to protect their rights can face extremely damaging consequences.

We on this side of the House have consistently said that Brexit must not be used to lower standards or reduce rights. There is a fear of that. I know that the noble Lord, Lord Beith, is a little sanguine about how significant that is in this instrument, but I am a bit less so. It nevertheless breaches that principle about a reduction in standards and rights.

Noble Lords will recall that the instrument was laid for sifting by the Secondary Legislation Scrutiny Committee on 16 November last year. The European Statutory Instruments Committee recommended that it be upgraded to the affirmative procedure because of its large volume of amendments to primary and secondary legislation, but also because it could diminish rights by disengaging from European Union obligations.

I may have misheard the Minister. He referred to an impact assessment. I do not know whether that included a consultation or whether he is instead relying on the Government’s general civil judicial co-operation framework. If it is the latter, the European Union Sub-Committee on Justice found that the framework contained little detail on how the Government’s aims for co-operation would be achieved.

On that last issue, I am somewhat puzzled by the points that the noble Baroness, Lady Chakrabarti, is endeavouring to make in this context. The time limits we are talking about are measured in years—three, four, six or 10 years. If a party is intent on mediation before they raise proceedings, it is unlikely that they will be so disinclined or uninterested in the issue that they will wait years before even attempting to go forward with mediation. Let us be realistic and practical. However, where they have already commenced proceedings, they may then be directed by their lawyers or others to consider mediation as an alternative means of resolving the dispute. In those circumstances, they have already dealt with the time limit by raising the legal proceedings. Pending mediation, all they need to do, if necessary, is stay those proceedings—or sist them, in Scottish terms—putting them on hold while the mediation process is carried on. I do not see that this is a diminution of rights at all.

I come to the points raised by the noble Lord, Lord Beith. On the question of no deal, I understand his point entirely. If no deal occurs—which nobody wants—it will not be a case of switching off the lights and leaving the building. Clearly, we will want to continue discussing with our immediate European neighbours how we can best resolve any differences between us on judicial co-operation. One would hope that that would happen in any event, but I note the noble Lord’s point and cannot disagree. It might be more difficult in a no-deal scenario than during an implementation period, when we are negotiating a future agreement between ourselves and the EU 27.

On another point, it is not an issue only of preferential treatment—that is, the idea that parties from the EU would somehow have preference over those in the UK. There is a danger that we might mislead people if we do not deal with the directive provisions in this way. People may continue to believe that they are protected from having to raise proceedings beyond a limitation period because of the EU directive. We will have to make it clear to people that this will not be the case.

Motion agreed.