Explanatory Notes

Part 2: Functions of the IMA

General duties

416 Paragraph 22 places a duty on the IMA to monitor the implementation and application of Part 2 of the Withdrawal Agreement and Part 2 of the EEA EFTA Separation Agreement by the UK.

417 Sub-paragraph (2) outlines that the duty includes keeping under review the adequacy and effectiveness of the legislative framework which implements or otherwise deals with matters arising out of or relating to Part 2 and the exercise of functions by public authorities in relation to the same.

418 Sub-paragraph (3) defines ‘Part 2’ as Part 2 of the Withdrawal Agreement or Part 2 of the EEA EFTA Separation Agreement (the citizens’ rights parts of these). The term ‘relevant public authority’ is taken to include the Secretary of State or any other person who exercises functions of a public nature, but for the exceptions in sub-paragraph (3)(a), (b) and (c).

419 Sub-paragraph (3) provides that the following are not to be regarded as public authorities for the purposes of the IMA: (a) a court or tribunal; (b) either House of Parliament or a person who exercises functions in connection to proceedings in Parliament and; (c) the devolved legislatures or a person who exercises functions in connection to proceedings in the devolved legislatures.

420 Paragraph 23 provides that the IMA must promote the adequate and effective implementation of Part 2 of the Withdrawal Agreement and EEA EFTA Separation Agreement. This could be done, for example, by the IMA exercising its functions in order to identify any potential breaches of Part 2 in the UK and bringing these to the attention of relevant parties. Paragraph 27, for example, obliges the IMA to publish any reports it produces subsequent to an inquiry, as soon as is practicable.

421 Paragraph 24 provides that the IMA must have regard to the importance of addressing general or systemic failings in the implementation or application of Part 2.

Inquiries

422 Paragraph 25 gives the IMA the power, but not the obligation, to carry out inquiries: in response to a request from a Secretary of State; in response to a request from a Scottish Minister when the request relates to a public authority that is devolved to Scotland; in response to a request from a Welsh Minister when the request relates to an inquiry that is devolved to Wales; in response to a request from the Executive Office in Northern Ireland when the request relates to a public authority that is devolved to Northern Ireland; following a complaint from a person under paragraph 29; or on its own initiative.

423 Sub-paragraph (2) defines that the purposes of an inquiry are for the IMA to determine whether the UK has failed to comply with Part 2 or a relevant public authority has acted or is proposing to act in a way that prevents or would prevent a person from exercising a relevant right. The IMA will identify any recommendations it considers appropriate to be made to a relevant public authority to promote the adequate and effective implementation of Part 2.

424 Sub-paragraph (3) prohibits the IMA from carrying out an inquiry other than one in response to a request from a Secretary of State (or a Scottish Minister, a Welsh Minister, or the Executive Office in Northern Ireland where the inquiry relates to a public authority that is devolved to their respective nations, as set out in paragraph 25), unless there are reasonable grounds to believe that the inquiry in question may conclude that the UK has failed to comply with Part 2, or that a relevant public authority has acted or is proposing to act in a way that prevents a person exercising a relevant right.

425 Sub-paragraphs (4) and (5) give the IMA a discretion not to carry out an inquiry even if the conditions set-out in sub-paragraph (3) are satisfied. This discretion includes where the IMA considers there are no reasonable grounds to believe that an inquiry may identify general or systemic failures in the application of Part 2.

426 Paragraph 26 places a duty on the IMA to publish its intention to carry out an inquiry by any means which it considers appropriate.

427 Sub-paragraph (2) provides that where an inquiry is about matters raised by a person who has made a complaint regarding a relevant right as defined in paragraph 29(1)(a) or (b), the IMA must invite representations from the complainant, any relevant public authority about which the person is complaining and any other person the IMA considers appropriate (for example a relevant regulatory body).

428 Sub-paragraph (3) sets out that in relation to inquiries not prompted by complaints, the IMA must invite representations from any person it considers appropriate. Sub-paragraph (4) requires the IMA to publish how and when people can make representations relating to an inquiry and (5) sets out that the IMA should consider any representations made to it in accordance with sub-paragraph (4) concerning any inquiry.

Reports following an inquiry

429 Paragraph 27 requires the IMA to prepare a written report, including its conclusions and any recommendations to be made to a relevant public authority to promote the adequate and effective implementation or application of Part 2 following the conclusion of an inquiry. A report following an inquiry must then be published as soon as is reasonably practicable after preparing it.

430 Sub-paragraph (3) places a duty on the IMA to give the Secretary of State an opportunity to require the IMA to remove from a report any material relating to border security or terrorism (including individual cases) that in the Secretary of State’s opinion should not be published on the grounds that its publication would be undesirable for reasons of national security or might jeopardise a person’s safety. For example, it may be necessary to remove information that could compromise or expose an ongoing counter-terrorism investigation.

431 Sub-paragraph (4) sets out when an IMA report should be published and to whom it should be sent. A report should be published as soon as is reasonably practicable and must then be sent to:

a. the Secretary of State, the Scottish Ministers, the Welsh Ministers, and the Executive Office of Northern Ireland;

b. any relevant public authority which was invited to make representations in relation to the inquiry;

c. any relevant public authority of which a recommendation is made in the report; and

d. any other relevant public authority the IMA considers appropriate (for example if they have similar responsibilities).

432 Paragraph 28 provides that where a report includes recommendations to a relevant public authority, the authority must have regard to the recommendations and publish a response expeditiously and in any event within three months beginning with the day on which the IMA published its report. The public authority must explain what it proposes to do in relation to each recommendation, giving reasons, including if it intends to take no action (for example because an issue identified has already been addressed).

Complaints

433 Paragraph 29 allows a person who claims to have relevant right to complain to the IMA where they believe the UK has failed to comply with Part 2 or a relevant public authority has acted or is intending to act in a way that prevents the person from exercising a relevant right.

434 Sub-paragraph (2) requires the IMA to carry out a preliminary review of each complaint to decide whether to carry out an inquiry in relation to it. That decision should be informed by sub-paragraph (3) among other relevant considerations.

435 Sub-paragraph (3) places a duty on the IMA to consider whether it would be more appropriate to resolve a complaint through alternative means before initiating an inquiry. For example, an individual’s complaint may already be the subject of legal action or amenable to administrative review.

436 Sub-paragraph (4) provides that the IMA must inform the relevant person if it decides not to carry out an inquiry. The IMA can advise the relevant person on the alternative ways the matters raised in the complaint can be addressed.

Applying for review or intervening in legal proceedings

437 Paragraph 30 gives the IMA the legal interest and standing to (i) institute judicial review proceedings (and equivalent thereof in Scotland); or (ii) intervene in other legal proceedings, where it considers it appropriate to do so in order to promote the adequate and effective implementation or application of Part 2. Sub-paragraph (3) states that this will not create a new legal cause of action.

438 Sub-paragraph (4) defines ‘application for review’ in England, Wales and Northern Ireland as an application for judicial review and in Scotland as an application to the supervisory jurisdiction of the Court of Session.

Annual reports for specialised committee etc

439 Paragraph 31 places a duty on the IMA to provide annual reports on the implementation and application of Part 2 of the Withdrawal Agreement to the Specialised Committee on Citizens’ Rights (which reports to the Joint Committee established to oversee the Withdrawal Agreement), and annual reports on Part 2 of the EEA EFTA Separation Agreement to the Joint Committee established by that agreement.

440 The Specialised Committee on Citizens’ Rights for the Withdrawal Agreement will, under its delegated functions from the Joint Committee, be responsible for supervising the citizens’ rights part of the Withdrawal Agreement. This committee will be composed of representatives from the UK and EU. It will meet at the request of either the UK or the EU and, in any event, once a year.

441 The Joint Committee for the EEA EFTA Separation Agreement will be responsible for the implementation and application of this agreement. The Joint Committee will be composed of representatives from the UK and the EEA EFTA states. It too will meet at the request of the UK or of one of the EEA states and, in any event, once a year after the end of the implementation period.

442 Sub-paragraph (3) requires the IMA’s annual reports to contain information on measures taken by relevant public authorities to implement or comply with Part 2, the number and nature of complaints made, the exercise of the IMA’s functions in relation to Part 2. Sub-paragraph (4) provides that the annual reports may contain any other information that the IMA considers appropriate.

443 Sub-paragraphs (5) and (6) set out the time frames the annual reports must cover. The first annual report will cover the 12-month period starting with IP completion day; subsequent reports will relate to each successive 12-month period.

444 Sub-paragraph (7) provides that the annual reports should be sent to the Specialised Committee on Citizens’ Rights and the Joint Committee as soon as is reasonably practicable after the period to which they relate. At the same time, sub-paragraph (8) requires the report be sent to the Secretary of State, Scottish Ministers, Welsh Ministers and the Executive Office in Northern Ireland. This is to provide for domestic, as well as international, accountability.

445 Sub-paragraphs (9) and (10) direct the Secretary of State to lay the annual report before Parliament as soon as is practicable and to publish the report as soon as is practicable thereafter.

446 Sub-paragraph (11) directs the Scottish Ministers, Welsh Ministers and the Executive Office in Northern Ireland to lay the report before the appropriate devolved legislature as soon as is reasonably practicable after receiving it.

Guidance

447 Paragraph 32 requires the IMA to publish guidance on how it intends to perform its functions in relation to paragraphs 22 to 30, in particular how it will give effect to the importance of addressing general or systemic failings in the implementation and application of Part 2. In preparing the guidance, the IMA will have regard to the way the European Commission monitors and enforces citizens’ rights under EU law and any guidance the Commission provides on how it exercises its functions.1 This is in line with the requirement in Article 159 of the Withdrawal Agreement that the IMA have equivalent powers to the European Commission.

448 Sub-paragraph (4) provides that the guidance must be first published within three months of the membership of the IMA being constituted (in accordance with paragraph 2(1)).

Gibraltar

449 Paragraph 33 places a duty on the IMA to exercise any function the Gibraltar legislature confers on it, where this corresponds to a function which it has in relation to the UK. This has the effect that the IMA will only have roles and responsibilities in Gibraltar that are established through Gibraltar’s legislation, as opposed to the UK legislating on Gibraltar’s behalf.

Supplementary power

450 Paragraph 34 gives the IMA the power to do anything it considers necessary or expedient in relation to the exercise of its functions with the exception that the IMA will not be allowed to borrow money or accept gifts of money, land or other property.

Co-operation by relevant public authorities

451 Paragraph 35 places a duty on a relevant public authority to comply so far as is reasonably practicable with a request from the IMA to cooperate in the exercise of its functions, including any request to provide information or documents.

1 For example ‘EU law: Better results through better application https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52017XC0119(01)&from=EN

 

Prepared 19th December 2019