Explanatory Notes

Part 3: Further Provisions

Disclosure of HMRC’s information

452 Paragraph 36(1) permits Her Majesty’s Revenue and Customs (HMRC) to disclose information for the purposes of facilitating the IMA in the exercise of its functions or facilitating the exercise by the Secretary of State or another relevant public authority of functions relating to the IMA.

453 Sub-paragraph (2) provides that where information is received by a person for the purposes set out in 36(1), they may not use the information they have received for any other purpose or disclose the information they have received except with the consent of HMRC Commissioners.

454 Sub-paragraph (3) provides that the offence of wrongful disclosure under section 19 of the Commissioners for Revenue and Customs Act 2005 will apply where a person discloses information in contravention of sub-paragraph (2) where a person’s identity is specified in the disclosure or can be deduced from it. Sub-paragraph (4) clarifies that these provisions do not limit the circumstances in which information held by HMRC may be disclosed under other applicable statutes or rules of law.

Data Protection and disclosure of information

455 Paragraph 37 provides that nothing in the Schedule authorises the making of a disclosure which contravenes the Data Protection Act 2018 or the making of a disclosure which is prohibited by the Investigatory Powers Act 2016.

Prohibition on disclosure of information to IMA on national security grounds

456 Paragraph 38(1) provides a power for the Minister of the Crown to prevent a public authority from disclosing information to the IMA if the Minister of Crown determines that the disclosure would be undesirable for national security reasons. The fact as to whether or not such a determination has been made may itself be information falling within paragraph 38(1).

457 Sub-paragraph (2) states that the power under sub-paragraph (1) conferred on a Minister of the Crown is exercisable only by a Minister who is a member of the Cabinet, or the Attorney General or the Advocate General for Scotland.

Transfer of IMA’s functions and abolition

458 Paragraph 39(1) provides a power for the Secretary of State to make regulations to transfer the functions of the IMA to another public authority, and make modifications to that authority that the Secretary of State considers appropriate to ensure they possess appropriate functions, funding and constitutional arrangements. ‘Constitutional arrangements’ has the same meaning as that in section 3(2) of the Public Bodies Act 2011. This will allow the Secretary of State to ensure that the transferee possesses the functions required by Article 159 of the Withdrawal Agreement, as well as having the resources and constitutional design necessary to fulfil this role.

459 Sub-paragraph (2) ensures that the Secretary of State can only use the power under sub-paragraph (1) if they are satisfied that the transfer of the IMA’s functions to another public authority would improve the exercise of those functions, having regard to efficiency, effectiveness and economy.

460 Sub-paragraph (3) requires the Secretary of State to have regard to the need to ensure that any public authority to which the IMA’s functions are transferred under sub-paragraph (1) has operational independence and the ability to make impartial assessments when exercising the transferred functions, as well as appropriate funding to do so.

461 Sub-paragraph (4) prevents the power under sub-paragraph (1) from being used to transfer the IMA’s functions in respect of Gibraltar under paragraph 33. Consequently, the Gibraltar legislature will need to confer the IMA’s functions on the public authority to which they have been transferred under sub-paragraph (1), if these functions are to continue to have effect in Gibraltar.

462 Sub-paragraph (5)(a) provides for the Secretary of State to transfer the IMA’s property, rights and liabilities, including those in respect of contracts of employment, under sub-paragraph (1). sub-paragraph (5)(b) provides for the Secretary of State to abolish the IMA under sub-paragraph (1), once this power has been exercised and the IMA’s functions have been transferred to a different public authority.

463 Sub-paragraph (6) places a duty on the Secretary of State to consult the Scottish Minister, the Welsh Ministers, the Executive Office in Northern Ireland, and the Gibraltar Ministers if the IMA has functions in relation to Gibraltar by virtue of paragraph 33.

464 Sub-paragraph (7) enables regulations made under sub-paragraph (1) to modify any provision made by or under an enactment, including this Act.

465 Sub-paragraph (8) states that ‘constitutional arrangements’ as used in sub-paragraph (1) has the same meaning as that in section 3(2) of the Public Bodies Act 2011.

466 Paragraph 40(1) provides a power for the Secretary of State to make regulations to either modify the functions of the IMA, or abolish the IMA, if it appears, or having regard to the Withdrawal Agreement and the EEA EFTA Separation Agreement and the relevant provisions of such agreements that concern the ending of the IMA’s functions, that it is no longer necessary for the IMA to exercise functions in relation to Part 2 of the Withdrawal Agreement. This is to reflect the respective Joint Committees’ power under the agreements to decide that the IMA’s functions are no longer required.

467 The Secretary of State may also make regulations for the IMA to cease to exist where, having regard to the Withdrawal Agreement and EEA EFTA Separation Agreement, it is no longer needed. As set out in Article 159 of the Withdrawal Agreement and Article 64 of the EEA EFTA Separation Agreement, the joint committees may decide to bring the IMA to an end from eight years after the end of the implementation period.

468 Sub-paragraph (2) enables regulations made under sub-paragraph (1) to modify any provision made by or under an enactment, including this Act.

Interpretation

469 Paragraph 41 defines ‘civil servant’ as a person employed in the civil service of the state, and sets out the definition for ‘domestic law’. The term ‘devolved legislature’ is defined as the Scottish Parliament, the National Assembly of Wales or the Northern Ireland Assembly. The terms ‘Part 2’ and ‘relevant public authority’ are defined under sub-paragraph 22(3).

470 A ‘relevant right’ means a right created or arising under Part 2 of the Withdrawal Agreement or Part 2 of the EEA EFTA Separation Agreement (for example the right to apply for permanent residency if the criteria set out in Part 2 are met). It includes any right arising under Part 2, regardless of the legal means through which that right is given effect - it covers both rights that exist in Part 2 and are made directly effectively through this Bill (by virtue of clauses 5 and 6) and rights that result from the obligations on the UK created by Part 2, but which are given further effect by domestic law (for example, the settled status scheme created under the Immigration Rules). It also includes rights which ‘correspond’ to rights created or arising under Part 2 (but which are not in fact conferred by Part 2) and which are established in domestic legislation which has effect in connection with Part 2. For example, where the settled status scheme is extended to EU or EEA nationals not strictly in the scope of the relevant agreements and those people are accordingly given associated rights such as non-discrimination rights corresponding to those conferred on people directly covered by Part 2, those corresponding rights fall within the definition of ‘relevant right’.

471 Sub-paragraph (2) sets out that any references referring to relevant public authorities acting include references to the relevant public authority failing to act.

 

Prepared 19th December 2019