European Union (Withdrawal Agreement) Bill (HC Bill 7)

European Union (Withdrawal Agreement) BillPage 50

Seal and evidence

11 (1) The application of the IMA’s seal must be authenticated by the signature
of—

(a) the chief executive of the IMA, or

(b) 5some other person authorised for that purpose by the IMA.

(2) A document purporting to be duly executed under the IMA’s seal or signed
on its behalf—

(a) is to be received in evidence, and

(b) is to be taken to be executed or signed in that way, unless the
10contrary is shown.

(3) But this paragraph does not apply in relation to any document which is, or
is to be, signed in accordance with the law of Scotland.

Funding

12 The Secretary of State must pay to the IMA such sums as the Secretary of State
15considers appropriate for the purpose of enabling the IMA to exercise its functions.

Operational independence

13 In exercising functions in respect of the IMA, the Secretary of State must
have regard to the need to protect—

(a) its operational independence, and

(b) 20its ability to make impartial assessments when exercising its
functions.

Accounts and audit

14 (1) The IMA must—

(a) keep proper accounts and proper records in relation to them, and

(b) 25prepare a statement of accounts in respect of each financial year.

(2) Each statement of accounts must comply with any directions given by the
Secretary of State as to—

(a) its content and form;

(b) the methods and principles to be applied in preparing it;

(c) 30the additional information (if any) which is to be provided for the
information of Parliament.

(3) The IMA must send a copy of each statement of accounts to the Secretary of
State and the Comptroller and Auditor General before the end of August
next following the financial year to which the statement relates.

(4) 35The Comptroller and Auditor General must—

(a) examine, certify and report on each statement of accounts, and

(b) lay a copy of each statement and the report on the statement before
Parliament within the period of 4 months beginning with the day on
which the Comptroller and Auditor General receives the statement.

(5) 40In this Schedule, “financial year” means—

European Union (Withdrawal Agreement) BillPage 51

(a) the period beginning with the day on which the membership of the
IMA is first constituted in accordance with paragraph 2(1) and
ending with—

(i) the first 31 March after that day, if that results in the first
5financial year being a period of 6 months or more, or

(ii) otherwise, the second 31 March after that day, and

(b) each successive period of 12 months.

Annual plan

15 (1) The IMA—

(a) 10must prepare, for each financial year, a plan for the exercise during
that year of its functions (“the annual plan”), and

(b) may revise the annual plan.

(2) The IMA must send the proposed annual plan or any revision of it to the
Secretary of State.

(3) 15The first annual plan must—

(a) be completed within the period of three months beginning with the
day on which the membership of the IMA is first constituted in
accordance with paragraph 2(1), and

(b) relate to the remainder of the financial year that begins with that day.

(4) 20Each subsequent annual plan must be sent to the Secretary of State not later
than one month before the beginning of the financial year to which the plan
relates.

Public records

16 In Part 2 of the Table in paragraph 3 of Schedule 1 to the Public Records Act
251958 (definition of public records), at the appropriate place, insert—

(None) “Independent Monitoring Authority for the Citizens’ Rights
Agreements.”

Investigation by the Parliamentary Commissioner

17 In Schedule 2 to the Parliamentary Commissioner Act 1967 (departments etc.
30subject to investigation), at the appropriate place, insert—

(None) “Independent Monitoring Authority for the Citizens’ Rights
Agreements.”

House of Commons disqualification

18 In Part 2 of Schedule 1 to the House of Commons Disqualification Act 1975
35(bodies of which all members are disqualified), at the appropriate place,
insert—

(None) “The Independent Monitoring Authority for the Citizens’
Rights Agreements.”

Northern Ireland Assembly disqualification

19 40In Part 2 of Schedule 1 to the Northern Ireland Assembly Disqualification
Act 1975 (bodies of which all members are disqualified), at the appropriate

European Union (Withdrawal Agreement) BillPage 52

place, insert—

(None) “The Independent Monitoring Authority for the Citizens’
Rights Agreements.”

Freedom of information

20 5In Part 6 of Schedule 1 to the Freedom of Information Act 2000 (public
authorities to which that Act applies), at the appropriate place, insert—

(None) “The Independent Monitoring Authority for the Citizens’
Rights Agreements.”

Public sector equality duty

21 10In Part 1 of Schedule 19 to the Equality Act 2010 (authorities subject to the
public sector equality duty), after the group of entries under the heading
“Broadcasting”, insert—

“Citizens’ rights

The Independent Monitoring Authority for the Citizens’ Rights
15Agreements.”

Part 2 Functions of the IMA etc.

General duties

22 (1) The IMA must monitor the implementation and application in the United
20Kingdom of Part 2 of the withdrawal agreement and Part 2 of the EEA EFTA
separation agreement.

(2) The duty in sub-paragraph (1) includes keeping under review the adequacy
and effectiveness of—

(a) the legislative framework which implements or otherwise deals with
25matters arising out of, or related to, Part 2, and

(b) the exercise by relevant public authorities of functions in relation to
Part 2.

(3) In this Schedule—

  • “Part 2” means Part 2 of the withdrawal agreement or (as the case may
    30be) Part 2 of the EEA EFTA separation agreement, so far as the Part
    in question applies to and in the United Kingdom;

  • “relevant public authority” means the Secretary of State or any other
    person who exercises functions of a public nature, apart from—

    (a)

    a court or tribunal;

    (b)

    35either House of Parliament or a person exercising functions
    in connection with proceedings in Parliament;

    (c)

    the devolved legislatures or a person exercising functions in
    connection with proceedings in any of the devolved
    legislatures.

23 (1) 40The IMA must promote the adequate and effective implementation and
application in the United Kingdom of Part 2 of the withdrawal agreement
and Part 2 of the EEA EFTA separation agreement.

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(2) For related functions see—

(a) paragraph 27 (reports following an inquiry), and

(b) paragraph 30 (instituting or intervening in legal proceedings).

24 In exercising its functions, the IMA must have regard to the importance of
5addressing general or systemic failings in the implementation or application
of Part 2.

Inquiries

25 (1) Subject to sub-paragraph (3), the IMA may carry out an inquiry—

(a) in response to a request from the Secretary of State,

(b) 10in response to a request from the Scottish Ministers relating to a
relevant public authority which is a Scottish public authority with
mixed functions or no reserved functions (within the meaning of the
Scotland Act 1998),

(c) in response to a request from the Welsh Ministers relating to a
15relevant public authority which is a devolved Welsh authority as
defined by section 157A of the Government of Wales Act 2006,

(d) in response to a request from the Executive Office in Northern
Ireland relating to a relevant public authority—

(i) which exercises functions only in or as regards Northern
20Ireland, and

(ii) whose functions are wholly or mainly functions which relate
to transferred matters (within the meaning of the Northern
Ireland Act 1998),

(e) following a complaint by a person under paragraph 29, or

(f) 25on its own initiative.

(2) The purposes of an inquiry are for the IMA—

(a) to decide whether—

(i) the United Kingdom has failed to comply with Part 2, or

(ii) a relevant public authority has acted or is proposing to act in
30a way that prevents a person exercising a relevant right (see
paragraph 39(1)), and

(b) to identify any recommendations that it considers appropriate to be
made to a relevant public authority to promote the adequate and
effective implementation or application of Part 2.

(3) 35The IMA may not carry out an inquiry under sub-paragraph (1)(e) or (f)
unless satisfied that there are reasonable grounds to believe that the inquiry
may conclude—

(a) that the United Kingdom has failed to comply with Part 2, or

(b) that a relevant public authority has acted or is proposing to act in a
40way that prevents a person exercising a relevant right.

(4) The IMA may decide not to carry out an inquiry even if satisfied as
mentioned in sub-paragraph (3).

(5) Among the reasons the IMA may decide not to carry out an inquiry is if it
considers that there are no reasonable grounds to believe that the inquiry
45may identify general or systemic failings in the implementation or
application of Part 2.

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26 (1) The IMA must publish its intention to carry out an inquiry.

(2) Where an inquiry is about matters raised in a complaint by a person under
paragraph 29(1)(a) or (b), the IMA must invite representations from—

(a) the person,

(b) 5any relevant public authority about which the person is
complaining, and

(c) any other person the IMA considers appropriate.

(3) In any other inquiry, the IMA must invite representations from any person
it considers appropriate.

(4) 10The IMA must publish information about how and when a person may
submit representations in relation to an inquiry.

(5) The IMA must consider any representations which are submitted
accordingly.

Reports following an inquiry

27 (1) 15When the IMA has carried out an inquiry under paragraph 25, it must—

(a) prepare a written report of its conclusions, and

(b) include in the report any recommendations it considers appropriate
to be made to a relevant public authority to promote the adequate
and effective implementation or application of Part 2.

(2) 20The IMA must publish a report as soon as reasonably practicable after
preparing it.

(3) Before publishing a report that contains material relating to border security
or terrorism (including material about individual cases), the IMA must give
the Secretary of State an opportunity to require the IMA to remove from the
25report any material which, in the opinion of the Secretary of State, should
not be published on the grounds that its publication—

(a) is undesirable for reasons of national security, or

(b) might jeopardise an individual’s safety.

(4) As soon as reasonably practicable after publishing a report, the IMA must
30send it to—

(a) the Secretary of State, the Scottish Ministers, the Welsh Ministers and
the Executive Office in Northern Ireland,

(b) any relevant public authority which was invited to make
representations in relation to the inquiry,

(c) 35any relevant public authority to which a recommendation is made in
the report, and

(d) any other relevant public authority the IMA considers appropriate.

28 (1) Where a report under paragraph 27 includes recommendations to a relevant
public authority, the authority must—

(a) 40have regard to the recommendations, and

(b) publish a response to the recommendations expeditiously and, in
any event, within the period of 3 months beginning with the day on
which the IMA published its report.

(2) The authority’s response must explain—

European Union (Withdrawal Agreement) BillPage 55

(a) what, if anything, it proposes to do in response to each
recommendation, and

(b) its reasons.

Complaints

29 (1) 5A person who claims to have a relevant right may complain to the IMA
that—

(a) the United Kingdom has failed to comply with Part 2;

(b) a relevant public authority has acted or is proposing to act in a way
that prevents the person exercising the right in question.

(2) 10The IMA must carry out a preliminary review of each complaint in order to
decide whether to carry out an inquiry under paragraph 25 in relation to it.

(3) In deciding whether to carry out an inquiry in response to a complaint, the
IMA must consider whether it would be more appropriate for the person
who made the complaint to deal with its subject matter by other means (for
15example, court proceedings) than for the IMA to carry out an inquiry.

(4) If the IMA decides not to carry out an inquiry, the IMA—

(a) must inform the person who made the complaint, and

(b) may advise the person about other ways of dealing with the subject
matter of the complaint.

20Applying for review or intervening in legal proceedings

30 (1) The IMA may, if it considers it appropriate to do so in order to promote the
adequate and effective implementation or application of Part 2—

(a) make an application for review, or

(b) intervene in any legal proceedings (including proceedings on an
25application for review).

(2) For the purposes of sub-paragraph (1), the IMA is to be treated as having
title and interest in relation to the subject matter of any application which it
may make, or of any legal proceedings in which it may intervene, in
Scotland.

(3) 30Sub-paragraph (1) does not create a cause of action.

(4) In this paragraph, “application for review” means—

(a) in relation to England and Wales or Northern Ireland, an application
for judicial review, and

(b) in relation to Scotland, an application to the supervisory jurisdiction
35of the Court of Session.

Annual reports for specialised committee etc.

31 (1) The IMA must provide annual reports on the implementation and
application of Part 2 of the withdrawal agreement to the specialised
committee on citizens’ rights established by Article 165(1)(a) of that
40agreement.

(2) The IMA must provide annual reports on the implementation and
application of Part 2 of the EEA EFTA separation agreement to the Joint
Committee established by Article 65(1) of that agreement.

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(3) The annual reports must contain information on—

(a) measures taken by relevant public authorities to implement or
comply with Part 2,

(b) the number and nature of complaints made to the IMA under
5paragraph 29(1), and

(c) the exercise by the IMA of its functions in relation to Part 2.

(4) The annual reports may contain any other information which the IMA
considers appropriate.

(5) The first annual reports must relate to the period of 12 months beginning
10with IP completion day.

(6) Subsequent annual reports must relate to each successive period of 12
months.

(7) The IMA must provide annual reports to the committees mentioned in sub-
paragraphs (1) and (2) as soon as reasonably practicable after the end of the
15period to which they relate.

(8) The IMA must, at the same time as providing an annual report to the
committees mentioned in sub-paragraphs (1) and (2), provide it to—

(a) the Secretary of State,

(b) the Scottish Ministers,

(c) 20the Welsh Ministers, and

(d) the Executive Office in Northern Ireland.

(9) The Secretary of State must, as soon as reasonably practicable after receiving
an annual report, lay it before Parliament.

(10) The Secretary of State must publish the annual report as soon as reasonably
25practicable after laying it before Parliament.

(11) As soon as reasonably practicable after receiving an annual report, the
Scottish Ministers, the Welsh Ministers and the Executive Office in Northern
Ireland must lay the report before the appropriate devolved legislature.

Guidance

32 (1) 30The IMA must publish guidance on how it will exercise its functions under
paragraphs 22 to 30.

(2) The guidance must explain how the IMA will give effect to the importance
of addressing general or systemic failings in the implementation and
application of Part 2.

(3) 35In preparing the guidance, the IMA must have regard to—

(a) the way in which the European Commission exercises its functions
of monitoring and enforcement in relation to citizens’ rights under
EU law, and

(b) any guidance or other publications issued by the European
40Commission about how it exercises such functions.

(4) The IMA must first publish guidance within the period of 3 months
beginning with the day on which the membership of the IMA is first
constituted in accordance with paragraph 2(1).

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Gibraltar

33 The IMA is to exercise any function in relation to Gibraltar which—

(a) the Gibraltar legislature confers on it, and

(b) corresponds to a function which the IMA has in relation to the
5United Kingdom by virtue of this Schedule.

Supplementary power

34 (1) Subject to sub-paragraph (2), the IMA may do anything which it thinks
necessary or expedient for the purposes of, or in connection with, the
exercise of its functions.

(2) 10The IMA may not—

(a) borrow money;

(b) accept gifts of money, land or other property.

Cooperation by relevant public authorities

35 A relevant public authority must, so far as reasonably practicable, comply
15with a request by the IMA to cooperate with it in the exercise of the IMA’s
functions (including a request to provide information or documents).

Part 3 Further provisions

Disclosure of HMRC’s information

36 (1) 20Her Majesty’s Revenue and Customs (or anyone acting on their behalf) may
disclose information for the purpose of—

(a) facilitating the exercise by the IMA of any of its functions, or

(b) facilitating the exercise by the Secretary of State or another relevant
public authority of functions relating to the IMA.

(2) 25A person who receives information as a result of sub-paragraph (1) may
not—

(a) use the information for a purpose other than one mentioned in sub-
paragraph (1), or

(b) further disclose the information,

30except with the consent of the Commissioners for Her Majesty’s Revenue
and Customs (which may be general or specific).

(3) If a person discloses information in contravention of sub-paragraph (2)
which relates to a person whose identity—

(a) is specified in the disclosure, or

(b) 35can be deduced from it,

section 19 of the Commissioners for Revenue and Customs Act 2005 (offence
of wrongful disclosure) applies in relation to that disclosure as it applies in
relation to a disclosure of information in contravention of section 20(9) of
that Act.

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(4) This paragraph does not limit the circumstances in which information may
be disclosed under section 18(2) of the Commissioners for Revenue and
Customs Act 2005 or under any other enactment or rule of law.

Data protection and disclosure of information

37 5Nothing in this Schedule authorises the making of a disclosure which—

(a) contravenes the data protection legislation within the meaning of the
Data Protection Act 2018 (see section 3 of that Act), or

(b) is prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9 of the
Investigatory Powers Act 2016.

10Removal of IMA’s functions etc.

38 (1) The Secretary of State may by regulations—

(a) remove functions of the IMA, if it appears to the Secretary of State
that, in accordance with Article 159(3) of the withdrawal agreement
or Article 64(4) of the EEA EFTA separation agreement, it is no
15longer necessary for the IMA to continue to exercise those functions,
or

(b) provide for the IMA to cease to exist, if it appears to the Secretary of
State that, in accordance with Article 159(3) of the withdrawal
agreement and Article 64(4) of the EEA EFTA separation agreement,
20it is no longer necessary for the IMA to continue to exist.

(2) The power to make regulations under sub-paragraph (1) may (among other
things) be exercised by modifying any provision made by or under an
enactment (including this Act).

Interpretation

39 (1) 25In this Schedule—

  • “civil servant” means a person employed in the civil service of the State;

  • “devolved legislature” means—

    (a)

    the Scottish Parliament,

    (b)

    the National Assembly for Wales, or

    (c)

    30the Northern Ireland Assembly;

  • “domestic law” means the law of England and Wales, Scotland or
    Northern Ireland;

  • “Part 2” has the meaning given by paragraph 22(3);

  • “relevant public authority” has the meaning given by paragraph 22(3);

  • 35“relevant right” means—

    (a)

    a right created or arising by or under Part 2, or

    (b)

    a right which—

    (i)

    corresponds to such a right, and

    (ii)

    is created or arises by or under a provision of
    40domestic law so far as that provision has effect in
    connection with Part 2.

(2) In this Schedule, references to a relevant public authority acting include
references to the relevant public authority failing to act.

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Section 23

SCHEDULE 3 Protection for certain rights, safeguards etc. in Belfast agreement

1 The Northern Ireland Act 1998 is amended as follows.

2 In section 6(2) (legislative competence), after paragraph (c), insert—

(ca) 5it is incompatible with Article 2(1) of the Protocol on Ireland/
Northern Ireland in the EU withdrawal agreement (rights of
individuals);”.

3 In section 24(1) (restrictions on powers of Northern Ireland Ministers and
departments), after paragraph (a), insert—

(aa) 10is incompatible with Article 2(1) of the Protocol on Ireland/
Northern Ireland in the EU withdrawal agreement (rights of
individuals);”.

4 In section 69 (functions of the Northern Ireland Human Rights
Commission), after subsection (10), insert—

(10A) 15For functions of the Commission in relation to Article 2(1) of the
Protocol on Ireland/Northern Ireland in the EU withdrawal
agreement (rights of individuals), see sections 78A to 78E.”

5 In section 71 of the Northern Ireland Act 1998 (restrictions on
proceedings)—

(a) 20in subsection (2B), for “human rights proceedings” substitute
“proceedings which rely on section 7(1)(b) of the Human Rights Act
1998”, and

(b) in subsection (2C), omit paragraph (a) (including the “and” at the
end).

6 25In section 74 (principal functions of the Equality Commission for Northern
Ireland), after subsection (6), insert—

(7) For functions of the Commission in relation to Article 2(1) of the
Protocol on Ireland/Northern Ireland in the EU withdrawal
agreement (rights of individuals), see sections 78A to 78E.”

7 30After section 78 insert—

“Protections deriving from EU withdrawal agreement

78A NIHRC functions in relation to EU withdrawal agreement

(1) The Northern Ireland Human Rights Commission must monitor the
implementation of Article 2(1) of the Protocol on Ireland/Northern
35Ireland in the EU withdrawal agreement (rights of individuals).

(2) The Commission must report to the Secretary of State and the
Executive Office in Northern Ireland on the implementation of
Article 2(1)—

(a) as soon as reasonably practicable after receipt of a general or
40specific request for such a report, and

(b) on such other occasions as the Commission thinks
appropriate.