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

Lord Adonis Excerpts

Wednesday 20th February 2019 Lords Chamber

[Lord Keen of Elie]

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.

Under the European Union (Withdrawal) Act 2018, the legislation implementing the mediation directive is retained EU law upon the United Kingdom’s exit from the EU. However, should the UK leave the EU without an agreement on civil judicial co-operation, the reciprocity on which the directive relies would be lost. So, even if we were to continue to apply the enhanced EU rules to EU cross-border disputes, we would be unable to ensure that the remaining EU member states applied the rules of the directive to cross-border disputes involving parties based in the United Kingdom, or to judicial proceedings or arbitration taking place in the United Kingdom.

Accordingly, and in line with the Government’s general approach to civil judicial co-operation in the event of no deal, this instrument will repeal, subject to transitional provisions, the legislation that gives effect to the mediation directive’s rules on confidentiality and extension of limitation periods. It amends the relevant retained EU law in England and Wales and Northern Ireland, and in Scotland in so far as it relates to reserved matters. Separate instruments will amend the related court rules in England and Wales and Northern Ireland. Other legislation implementing the directive is within the legislative competence of the Scottish Government, and I understand that they have decided to bring forward their own legislation in this area.

This instrument is necessary to fix the statute book in the event of a no-deal exit. We have assessed its impact and have published an impact assessment. By repealing the domestic legislation which gave effect to the mediation directive, we will ensure clarity in the law applying to mediations between UK parties and parties domiciled or habitually resident in EU member states. We will also avoid a situation where mediations of an EU cross-border dispute conducted in the UK are subject to different—and arguably more favourable—rules on confidentiality or limitation than other UK mediations.

As I indicated earlier, the instrument will change the rules applying only to what are currently EU cross-border mediations, and then only in two respects: time limits and confidentiality. On time limits, claimants involved in such mediations who no longer have the benefit of an extended limitation period would, if they wanted more time to allow for mediation to take place, have to make an application to the court to stay proceedings and would have to pay a fee. We are unable to assess how many cases this would affect. Limitation periods can extend from three years, to six years, to 10 years in some instances, and can either bar a case from being brought or extinguish the claim in its entirety. They are extensive periods in any event, but they may be impacted by these changes

Overall, the instrument will ensure that, post exit, UK-EU mediations are treated consistently under the law with mediations between UK domiciled or habitually resident parties, or UK parties and parties domiciled or habitually resident in non-EU third countries.

I have set out to deal with the issue of EU cross-border mediations because, without a deal in place on 29 March 2019, such mediations involving UK-domiciled parties would no longer be subject to the mediation directive rules in EU member states. The regulations now moved will fix deficiencies and ensure that both the courts and UK citizens have clear and effective rules to follow in such circumstances.

[Lord Adonis (Lab)]

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?

[Lord Keen of Elie]

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.