Alternative Dispute Resolution for Consumer Disputes (Extension of Time Limits for Legal Proceedings) (Amendment etc.) (EU Exit) Regulations 2020

Lord Kirkhope of Harrogate Excerpts

Wednesday 16th September 2020 Grand Committee

[Lord Kirkhope of Harrogate (Con) [V]]

My Lords, I declare my position as a practising lawyer, and I am pleased to contribute to this scrutiny process today. As a former member of the House of Commons Secondary Legislation Scrutiny Committee, I have always been clear that the use of SIs by government is to be carefully and thoroughly monitored, and the effects of Brexit have resulted in large numbers of instruments coming before us, many of which will be rightly deemed subject to affirmative resolution and worthy of further debate or inquiry. With nearly 300 more instruments on their way, this will place an enormous burden on Parliament, but we must not allow the pressure of numbers to lessen our duties of proper scrutiny. I appreciate that the process does not permit us to reject an instrument, so it is all the more important that any concerns and inquiries about the operation of provisions are raised with our Ministers using the opportunity that occasions such as this afford us.

On the matter before us, most disputes involving consumers and businesses are, thankfully, settled amicably, but there has always been a need to try to find a middle course before resorting to court action, which is inevitably complicated, expensive and necessarily delays the outcome. That is where alternative dispute resolution has been so useful. I am pleased to hear that we are not planning to change the basics of the system through this instrument, although extensions to time limits for bringing court proceedings with eight weeks’ grace is of significance. Of course, the basis of ADR comes, as do so many other civil law initiatives, from European Commission directives, to which the UK contributed in a leading way. As a result, in the case of ADR, we have built up a positive cross-border engagement covering consumer rights in a very international environment. This covers the protection of consumer rights everywhere and anywhere in the EU.

There is a complex and interwoven system in the single market, supported by nearly 90 EU directives, which has been greatly to the benefit of consumers here and across the European Union. My first question to my noble friend is therefore: the Government state that this SI changes nothing regarding the protection of UK consumers, but how will we be able to guarantee the protection of consumers’ rights when they visit the EU 27 after January next year? Secondly, how will UK consumers avail themselves of the services of agencies and the infrastructure in place across Europe, which is currently their right? Thirdly, we currently enjoy full reciprocal rights with our European neighbours, which includes investigation of breaches of consumer law. How will UK consumers obtain redress from these businesses and traders based in the EU through our UK courts, to which they will have to apply solely in future?

Cross-border ADR will presumably be lost to UK consumers. I have to say to my noble friend that in this field, a statutory instrument such as this is only one half of the post-Brexit story. To ensure ongoing consumer protection, we surely need at least mutual recognition rules within the EU 27. Without that, our UK consumers, whatever the Government may say, will be greatly disadvantaged in the future. Finally, in the time-limited extension provisions in this SI, two important groups appear to be excluded: EU-based consumers transacting business or obtaining goods and services in the UK, and UK-based consumers transacting business or obtaining goods and services in the EU. Can my noble friend offer us all the reassurances that we would like to have on these apparent omissions?

I realise that our opportunity to debate this SI is not based on the matters I have concentrated on, being of major concern to the European SI Committee, which was concerned then about the diminution of rights relating to the time limits before court proceedings and the linked legislation being primary in nature. However, I am nevertheless grateful for this opportunity, and I hope that it will be extended to many more items of secondary legislation from the very long list.