Northern Ireland Act 1998 (Section 75 — Designation of Public Authority) Order 2020 - Motion to Approve

– in the House of Lords at 4:21 pm on 8th July 2020.

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Lord Keen of Elie:

Moved by Lord Keen of Elie

That the draft Order laid before the House on 8 June be approved.

Relevant document: 19th Report from the Secondary Legislation Scrutiny Committee

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

My Lords, this draft instrument will ensure that the Independent Monitoring Authority for the Citizens’ Rights Agreements—the IMA—established under the European Union (Withdrawal Agreement) Act 2020, is covered by the statutory duties on a public authority as set out in Section 75 of the Northern Ireland Act 1998.

As noble Lords may recall, Article 159 of the EU withdrawal agreement and Article 64 of the EEA EFTA separation agreement required the United Kingdom to establish a new, independent authority to monitor the UK’s application and implementation of the provisions in those agreements relating to the rights of citizens living in the United Kingdom and Gibraltar after the transition period. Consequently, the IMA was established under the European Union (Withdrawal Agreement) Act 2020, on 31 January of this year. The IMA is operationally independent of government and sponsored by the Ministry of Justice. The IMA will be accountable to Parliament through the Ministry of Justice, which reflects its role in supporting the principles of the rule of law and access to justice.

The Government recognise the enormous contribution that EU and EEA EFTA citizens living here make to the United Kingdom. That is why we have made an unequivocal guarantee to those citizens by protecting their rights in UK law through the withdrawal agreement, the EEA EFTA separation agreement and the withdrawal agreement Act 2020. The role of the IMA is to assist in protecting those rights by monitoring the implementation and application of the citizens’ rights parts of those agreements. To do this, the IMA will have the power to conduct inquiries, receive complaints and initiate legal proceedings. It will also have a role in reviewing the effectiveness of the citizens’ rights legislative framework, for instance by reviewing draft legislation.

Full delivery of the IMA is progressing well. An important milestone was the appointment of the interim chief executive, in March. Since then, the choice of the IMA’s premises, in Swansea, has been finalised, and the IMA has begun to recruit staff. The recruitment of the chair and other non-executive members was launched on 3 July.

The IMA’s role, which will be commenced at the end of the transition period, will be UK-wide, therefore the IMA will be carrying out functions in relation to Northern Ireland. The purpose of this instrument is to ensure that the IMA’s functions in relation to Northern Ireland are covered by the relevant statutory equality duties, as set out in Section 75 of the Northern Ireland Act 1998.

Section 75 requires that public authorities carrying out their functions relating to Northern Ireland need to have due regard to two things: first, to the need to promote equality of opportunity between persons with, to summarise briefly, a range of differing personal circumstances or characteristics; and secondly, to the desirability of promoting good relations between persons of different religious belief, political opinion or racial group. The definition of “public authority” in Section 75 includes

“any department, corporation or body listed in Schedule 2 to the Parliamentary Commissioner Act 1967 … and designated for the purposes of this section by order made by the Secretary of State”.

The IMA has already been added to Schedule 2 to the 1967 Act by paragraph 17 of Schedule 2 to the European Union (Withdrawal Agreement) Act 2020.

The statutory instrument before us today designates the IMA for the purposes of Section 75. I hope that stakeholders, particularly in Northern Ireland, will welcome the assurance that these functions must be carried out in accordance with the Section 75 duties. Applying those duties to the IMA will also be consistent with the public sector equality duty, under the Equality Act 2010, having already been applied to the IMA by the withdrawal agreement Act 2020.

To conclude, the SI before us today will ensure that the IMA’s functions in relation to Northern Ireland will be covered by the relevant equalities legislation.

Photo of Lord Hain Lord Hain Labour 4:26 pm, 8th July 2020

My Lords, in thanking the Minister for his clear explanation, I note that one of the functions of the Independent Monitoring Authority that is the subject of this Motion is to

“ensure that persons are not prevented from exercising their rights” under the citizens’ rights agreement post Brexit. I have no difficulty in supporting this Motion in relation to Section 75 designation; protecting citizens’ rights must be a priority for any Government. Regrettably, however, we have been witnessing a savage denial of rights enshrined in legislation initiated in your Lordships’ House and passed in the other place without a Division, which should be providing modest payments to those terribly injured through no fault of their own during the Northern Ireland Troubles. It is now 40 days since the victims’ payments scheme should have been opened for applications but, because of a disgraceful display of political intransigence in the Executive Office in Stormont, some of the most vulnerable men and women in Northern Ireland and beyond have been denied access to it.

When I last spoke about this at the beginning of June, I said that a severely injured victim, maimed for life in a terrorist atrocity decades ago, had been forced to put the devolved Administration on notice of judicial action to force it to honour its moral and legal obligations. Jennifer McNern was only 21 years old when her legs were blown off in a no-warning IRA bombing in 1972. I have met Jennifer and I can tell your Lordships that she is a courageous and determined woman. She had no option but to go to the High Court to seek legal redress from the Executive Office, which has so blatantly defied the law.

How did the UK Government respond to Jennifer’s attempt to have the very same law that was passed in the Government’s name upheld and implemented? They instructed a Queen’s Counsel to argue before a High Court judge that Jennifer’s judicial review against the Executive Office be set aside to allow another, arguably weaker, judicial review to proceed in its place. That was and is disgusting behaviour by the Secretary of State. As a former holder of that office, my natural stance is to support my successors. However, I say to Brandon Lewis and his Northern Ireland Office officials: you should be thoroughly ashamed of yourselves, the lot of you. Jennifer’s case will proceed, although it cannot be heard until August, a full six months since the structures to administer the scheme should have been put in place.

In this Parliament we do not have the power to hold the Stormont Executive Office to account for its shocking—and illegal—refusal to implement the law. However, we can and must demand that the UK Government explain what they will do to address this gratuitous insult to victims and survivors, who have suffered so much already through no fault of their own.

It is simply not good enough for Ministers to intone that this is a devolved matter and say how awfully sorry they are that things have turned out this way. The Secretary of State cannot be allowed to wring his hands and sit on them at the same time. I will continue to hound this Government until this is resolved and people like Jennifer get the acknowledgement, recognition and payments for which they have had to struggle for far too long.

Photo of Lord Bruce of Bennachie Lord Bruce of Bennachie Liberal Democrat Lords Spokesperson (Scotland), Liberal Democrat Spokesperson (Northern Ireland) 4:30 pm, 8th July 2020

My Lords, I fully support the campaign of the noble Lord, Lord Hain, which he has doggedly pursued, and I certainly agree with everything he says. However, I do wish to address the issue of the IMA and this order. The order must be supported because it ensures that the IMA’s operation within Northern Ireland will be not only in accordance with the law and the previous legislation applying to Northern Ireland but focused on ensuring equality for European citizens’ rights. In that context, I will, of course, support it.

However, I would like to ask the Minister a few questions about the IMA and how genuinely independent it is. Looking at the legislation and the schedule, one sees that the chair and board of the IMA are appointed by the Secretary of State and can be removed by the Secretary of State. The grounds for removal identified in the schedule are fairly broad and give quite a lot of discretion to the Secretary of State. It is also stated in the schedule that, although the devolved Administrations need to be consulted about those executive directors who have particular responsibility for each of the devolved Administrations—that includes Gibraltar—the Secretary of State may not accept their recommendation, may appoint without their approval and has to give an explanation only, but no redress.

Elsewhere in the schedule, it says that the functions of the IMA can be transferred to another body by the Secretary of State, its functions can be removed by the Secretary of State and the IMA can be abolished by the Secretary of State. In the internal operation of the IMA itself, the IMA may decline an inquiry; that may be a fair discretion, but it is able—even when the grounds for such an inquiry have been demonstrated—to decline to pursue it. There is concern that, with the significant power of the Secretary of State, pressure may be brought to bear subliminally in ways which would compromise the independence of the IMA. I would be grateful if the Minister could give categorical assurances of that independence and address those questions.

On a more practical basis, I welcome the fact that the chief executive has been appointed, the location in Swansea has been confirmed and the recruitment of the other directors and staff is under way. Can the Minister give us an indication of when the directors will be appointed and, in the specifics for the devolved Administrations, how soon each of those will be in place?

Finally, because it clearly says that the Secretary of State may abolish the IMA, can the Minister give an indication of how long the Government think that this authority will be required? Is the IMA permanent—I note that the chair is appointed for five years—or do the Government envisage that it will have a timeframe, beyond which it will no longer function? It seems to me that all of these questions need to be answered to ensure that there is confidence in the genuine independence and freedom of action of the IMA, and its ability to stand up for citizens’ rights, challenge the Government and not be threatened with premature downgrading or abolition. I would be grateful if the Minister could answer those questions.

Photo of Lord Empey Lord Empey UUP 4:34 pm, 8th July 2020

My Lords, in broad terms I support the introduction of this instrument; in his introduction, my noble and learned friend, set the scene. However, this originated in the authority in the EU withdrawal Bill, which incidentally, in its overview, said that it will

“take back control of our laws by reaffirming the sovereignty of Parliament; end vast annual payments to Brussels; protect the Union by ensuring we leave as one United Kingdom”.

My noble and learned friend will know that, as a result of the Northern Ireland protocol in the withdrawal agreement, we will not be leaving as one United Kingdom, because Northern Ireland will remain very largely in the sphere of influence of the European Union—not the United Kingdom—from an economic point of view.

Section 75 has its genesis in the Good Friday agreement—I was one of the negotiators—so naturally it makes sense to introduce those provisions into this authority. However, I note that recruitment has begun, and some people have already been appointed. The question remains: were they appointed under the rules that would be appropriate to Section 75? I had the opportunity, as a Minister, to be responsible for these for many years—I believe that they are important and hope that they will apply retrospectively.

On the protection of rights, I must say to my noble and learned friend that, as the noble Lord, Lord Hain has said, this Government are failing dramatically in the question of payments to victims of the Troubles. The will of this Parliament is being openly defied by the Northern Ireland Executive in failing to do its duty. We have a parallel: the recent victims of historical institutional abuse had to wait for years and years until justice was done, and that was scraped through only at the last minute in the last Parliament.

The Secretary of State knows perfectly well that hundreds of people are sitting and waiting, having been misled. Nobody told them that this problem had arisen in February of this year, until it slipped out 10 days before the day on which they were to have been paid, when an official appearing before a committee was able to tell politicians that nothing had been done in preparation. That was only 10 days before people were expecting to be able to apply to be paid.

Whatever anybody says about rights—and in this House we are all, I believe, for that—the Government must show that they are upholding rights and that they have a duty to protect the people of this country. That is why Parliament decided to help people who were victims of the Troubles—people who were attacked and had their lives and ability to earn a living dramatically changed and ruined in many cases—with pensions.

I congratulate the noble Lord, Lord Hain, on the work he has done on this over the last number of years. However, this cannot go on. It simply cannot, cannot, cannot be allowed to continue the way it is. The rights of those people, guaranteed under Section 75, are being trampled on, and it is our duty as a Parliament to uphold those rights. I hope and pray that my noble and learned friend will address this in his summing up.

Photo of Lord Patten Lord Patten Conservative 4:39 pm, 8th July 2020

My Lords, I have listened with great respect to what the noble Lord, Lord Empey, has just said, and I agree with him about the importance of a United Kingdom. Like him, I intend to warmly welcome this order. It is vital that we give our neighbours and friends from Europe exactly the same protections in Northern Ireland that are enjoyed, with respect to equality of opportunity, across the United Kingdom, with all the substantial contributions that they make to the economic, social and cultural life of our country. I welcome the designation of the IMA under Section 75 of the relevant Act, as has been so clearly explained by my noble and learned friend Lord Keen, to make it a public authority with the duty to promote equality of opportunity. I think we would all say “Hear, hear”—that is a very good thing to happen.

But, much as I welcome this measure and what the noble Lord, Lord Empey, said about it, I only wish that we could welcome into the Chamber today noble Lords of all parties from Northern Ireland in greater numbers. In saying that, I am not being romantic about this Chamber, and neither is it just because it would be good to see them; it is because I strongly believe that, in legislating, there is no substitute for the real thing—for human presence in your Lordships’ Chamber. The intermingling, in Westminster, of people from Northern Ireland and other parts of the United Kingdom helps to cement and bring together our country. The longer, for understandable reasons, that we are apart, the weaker the links may become—to our peril, inexorably leading to people in Northern Ireland, and maybe in Scotland and Wales, detaching themselves from feeling a true part of our historical central governance of public affairs, and maybe, indeed, to separating slowly into four nations rather than one country.

I have made those journeys myself to Belfast and back. Coming to Westminster from Northern Ireland has always been more demanding for noble Lords who live so far away, with all those long journeys with their inevitable travel delays, compared to some people who can just walk to the Chamber here this afternoon in the Palace of Westminster. I pay genuine tribute to Members from Northern Ireland of all parties, independents and Cross-Benchers, for what they do, because they are needed here as part of our national constitutional glue, knitting together the fabric of the United Kingdom, just by their very presence in this Chamber. The quicker we can change our highly cocooned and protected arrangements here—look at the Chamber this afternoon—which are not enjoyed in shops, pubs, places of work and public transport, on which I have travelled, the better.

We are often accused—very often unfairly and wrongly—with being detached and remote from the real world, but the people will begin more and more to question why we do not face the same realities here in our arrangements that they have to face out there. As the Chancellor of the Exchequer has just said in the other place at the end of his Statement, we do need a return to normality with safety, and we need it in this Chamber as well—as quickly as possible.

Photo of Lord Wood of Anfield Lord Wood of Anfield Labour 4:42 pm, 8th July 2020

My Lords, I too welcome this order to ensure that statutory equality duties on public authorities in Northern Ireland will apply to the new Independent Monitoring Authority. Given the history of Northern Ireland and the provisions of the Northern Ireland Act 1998, the duties of the IMA will be greater and more wide-ranging than its activities elsewhere in the United Kingdom. These extra duties on the IMA highlight the importance of it becoming an embedded, permanent part of the legal landscape. Indeed, the IMA is required by Article 159 of the withdrawal agreement to have

“powers equivalent to those of the European Commission”.

But I continue to have concerns, as do many lawyers and senior figures in Northern Ireland, that the IMA’s permanence—essential, as the noble Lord, Lord Bruce, said earlier, to its effective pursuit of its duties—is not secure under the withdrawal agreement. So, I hope to reinforce the excellent remarks of the noble Lord, Lord Bruce, and that the noble and learned Lord will be able to provide us with greater assurances than he did during the passage of the withdrawal agreement Bill about the IMA’s standing.

Paragraphs 39 and 40 of Schedule 2 to the Act contain provisions that may allow the Secretary of State to make fundamental changes to, and even abolish, the IMA by secondary legislation. Paragraph 39 of Schedule 2 provides:

“The Secretary of State may by regulations … transfer the functions of the IMA to another … relevant public authority”.

The withdrawal agreement requires there to be a single, independent authority with the powers required to monitor citizens’ rights effectively. But powers in this schedule do not seem to preclude the possibility of those functions being dispersed across several public bodies. So can the noble and learned Lord, first, confirm—not as a matter of the Government’s intent, but as a matter of law—that any functions so transferred would be done in their entirety?

Secondly, it is striking—and far from desirable—that the Minister will be able, under the provisions in paragraphs 39 and 40, to make fundamental changes to, and even abolish, the IMA through secondary legislation. Given the responsibilities, significance and sensitivity of the IMA, I am not alone in finding it troubling that the Government refused to respond to amendments earlier this year that would have required any significant changes to the IMA to be made by primary legislation, to ensure robust parliamentary scrutiny. The Northern Irish aspect of the IMA’s work that we are focusing on today only shows the complexity of the risks of not having adequate scrutiny, should any changes be proposed in the future.

So can the noble and learned Lord reassure the House in two further ways: first, that the Minister, in the future, will not be able to abolish the IMA without the approval of the joint committee, as stipulated in Article 159(3) of the withdrawal agreement; and, secondly, that any proposal to reallocate functions of the IMA will be given proper time for debate and scrutiny in this and the other place, over and above what is legally required, not least to examine the impact on Northern Ireland, where the issues with which the IMA will deal are slightly more sensitive and complex?

The noble and learned Lord will maintain, I am sure, as he did in the debate on these provisions in the Bill on 13 January this year, that the obligation to maintain the IMA is

“one to which we as a Government will adhere.”—[Official Report, 13/1/20; col. 553.]

But the question is why that professed commitment was not matched by legislative text, which will bind all current and future Ministers to guarantee the IMA’s permanence and independence, and guarantee that any changes would have the serious parliamentary scrutiny they deserve. I hope we can have an explanation and further assurance today.

Photo of Baroness Ritchie of Downpatrick Baroness Ritchie of Downpatrick Non-affiliated 4:46 pm, 8th July 2020

My Lords, I welcome this draft statutory instrument. I thank the Minister for his clear explanation of the instrument, which upon commencement will designate the Independent Monitoring Authority for the Citizens’ Rights Agreements as a public authority for the purpose of equality duties, as established by Section 75 of the Northern Irelands Act, which derived from the Good Friday agreement, and Sections 49A and 49B of the Disability Discrimination Act 1995. It is only right and proper that citizens from the 27 EU nations are shown proper and due regard in terms of equality of opportunity.

But, like the noble Lord, Lord Empey, I would like to ask whether are we giving respectful approval in this instance. Premises have been established; staff have been appointed. Did the recruitment of those staff comply with the equality provisions that are required under the equality of opportunity as prescribed in Section 75 of the Northern Ireland Act? I have written to the Equality Commission for Northern Ireland, which is responsible for ensuring those equality provisions are adhered to, and it is very much in support of this draft statutory instrument. I would like to ask the Minister whether there will be a copy of the report that will be published—hopefully on an annual basis—by the Independent Monitoring Authority to ensure that it is complying with these equality provisions.

If we respect the rights of all citizens—as the noble Lords, Lord Hain, Lord Empey and Lord Bruce, have already referred to—there are citizens in Northern Ireland who are being denied their proper rights in terms of the victims’ pension fund, which was fully implemented by the last Parliament, in 2019. Only a few weeks ago, the Northern Ireland Executive provided funds to administer the system. Obviously, that would be launched in the Executive Office, but no department has been appointed to implement the scheme. Therefore, these people who have been victims and who have endured considerable pain, suffering and injury over many years are still without their rightful pensions. That is totally unacceptable, outrageous and one of the egregious problems that has emerged from the current Northern Ireland Executive.

I hope that, in the fullness of time that will be resolved, but I would urge the Secretary of State, via the Minister, to ensure that a department is appointed as quickly as possible to disburse the funds. That is urgently required. I also ask the Minister to ensure, talking to the Secretary of State, that this issue is resolved as quickly as possible, to ensure that there is full equality of opportunity for these people, who have suffered such immeasurable pain and total disregard for far too long.

Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green 4:50 pm, 8th July 2020

My Lords, I thank the noble and learned Lord for his detailed exposition of the statutory instrument that we are debating. I join other noble Lords in applauding the application of Section 75 duties in Northern Ireland in the IMA. I also wish to join the noble Lord, Lord Bruce, in commending the noble Lord, Lord Hain, on his long-term pursuit of justice for innocent victims and people who have suffered attacks and long-term and lifelong injuries. I look forward to the Minister’s response, particularly to the recent action of the Government in terms of judicial review. I also support the questions from the noble Lord, Lord Wood, on continuing concerns about the independence of the IMA.

I will focus chiefly on the fact that it is now less than six months before this will have to be in full operation. We will see the first problems, crises and people left trapped and unsure. This is the first time your Lordships’ House has debated this since it was made clear that the transition period would definitely be at the end of this year. Will the Minister give the House any information about the resources that the IMA will have? Will they be sufficient? We can have all the independence and brilliant people at the top of the organisation, but with 3.2 million EU citizens in the UK and perhaps quite a few UK citizens looking to move back before the end of the transition period with non-EU spouses, partners and children, who are then going to be forced to move after the transition period ends, lots of people will risk being trapped in real crisis situations, particularly given the situation with Covid-19.

Will the Minister point us to information about what estimates have been made of the demand that is going to be put on the IMA and of the chief issues that are likely to arise that will cause people to use it? We know that the settled status scheme is proving difficult for lots of people, particularly older EU and EFTA/EEA citizens and some very young citizens, including children who are not in a position to act for themselves because they may be in care. Settled status is proving difficult for them, and Covid-19 cannot have helped that situation.

Hanging over all this is the tragedy and great suffering of Windrush and the concern about the hostile environment. Will the Minister say something about the continuing thorn of the question of deportations and whether EU and other relevant citizens might potentially face deportation after 31 December?

As other noble Lords have said, we are talking about people who are very often our doctors, nurses, neighbours, friends, spouses, partners and children. We have a long and intermixed history and we are trying to untangle some very complicated threads. So we need to make sure that the IMA is adequately resourced and ready to work from day one.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General 4:54 pm, 8th July 2020

My Lords, this is the first time that the Independent Monitoring Authority for the Citizens’ Rights Agreements has peeped over my particular parapet. The Minister may recall that it was in the course of debating a Northern Ireland order with him almost exactly a year ago that I sank back to the Bench and missed the next six months of rather exciting parliamentary activity. I have missed the House perhaps rather longer than the noble Lord, Lord Patten. I did not mark the statutory basis for the authority in January in the plethora of all the other issues. As the noble Baroness, Lady Bennett, said, this may be the first time that the House has looked at this authority.

I fully understand why this order is necessary under the Northern Ireland Act 1998. This statutory instrument highlights the necessity of expressing formally the principles of equality in Northern Ireland in the highly sensitive areas of religion, politics, gender rights, sexuality, disability and so on. What I am not clear about is the ambit of the Independent Monitoring Authority. It is a very substantial new body, set up to protect the rights of no fewer than 3.5 million EU citizens in the United Kingdom, as guaranteed by the agreement negotiated for withdrawal last year. The setting-up cost, according to the impact assessment report, is £145 million, with an annual running cost of £15 million, involving the salaries of the chief executive and others of perhaps over £200,000—approximately the remuneration of a High Court judge.

Naturally, I am glad to hear that it is proposed to open in Swansea—I cannot think of a better place—and that recruitment is going ahead. Recruitment should be going ahead since it will have to be operational by the end of the year. As I understand it, the duties of the IMA are not just to monitor the settled status programme run by the Home Office but to oversee the entire body of social welfare and employment rights across a number of government departments.

If that is its remit, it is absolutely necessary to be seen to be independent of government. It has fallen to the lot of the Department of Justice to oversee its operations. But is it a judicial body? In answer to a complaint from an EU national, does it do any more than make representations or recommendations to public bodies and produce the occasional report or comment on legislation? Does it have any power to enforce the rights of complainants if the authority finds that they have been breached?

I understand that it will be entitled to take proceedings for judicial review on behalf of any European national against any public body that does not accept its recommendations—but that is a discretionary remedy and, if pursued in large numbers, could be a very heavy burden on the courts. After all, the number of EU residents in the UK supported by the authority exceeds the entire population of Wales and is double that of Northern Ireland.

I note with some concern the reservations of the noble Lords, Lord Hain and Lord Empey, about the appetite of this Government to uphold the rights of existing citizens in Northern Ireland, never mind EU citizens. The noble Baroness, Lady Ritchie, referred to the problems arising under the victims’ pension fund and the delays that have occurred.

We hear that the Department of Justice has appointed its chief executive officer, but I share the concerns expressed by my noble friend Lord Bruce on the independence of its chairman and non-executive members and on the power of the Minister to abolish it altogether by secondary legislation, as the noble Lord, Lord Wood, pointed out.

Will the devolved Administrations and Gibraltar be represented, and how will the non-executive members be chosen? Reading the legislation, I thought that it was that body which would appoint the chief executive and the staff, subject only to the approval of the Department of Justice—but it seems to have gone ahead anyway.

Finally, the IMA is set to be operational on expiry of the transitional period. It seems increasingly likely that Great Britain, if not Northern Ireland, will leave the ambit of the European Union without a deal in less than six months’ time. Can the Minister tell us whether the rights of EU citizens, as negotiated, will be upheld in the event of no deal? If not, what will be the position of the Independent Monitoring Authority? Will it differ in Northern Ireland, which will effectively still be within the ambit of EU in fact, if not in form? Can the Minister confirm that subjects of the Crown from Northern Ireland who reside in Europe will lose the benefit of their rights as EU citizens and will have to rely on such rights as were negotiated in the withdrawal agreement? I look forward to the Minister’s response.

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice) 5:00 pm, 8th July 2020

My Lords, Labour supports this instrument, which designates the new Independent Monitoring Authority for the Citizens’ Rights Agreements as a public authority for the purposes of Section 75 of the Northern Ireland Act 1998. Section 75 of the Act is transformative. Its aim is to change the practices of government and public authorities so that equality of opportunity and good relations are central to how government and policymakers operate. It does this by giving public authorities that carry out functions in relation to Northern Ireland the statutory duties of equality of opportunity among the nine equality categories, and good relations between persons of different religious beliefs, political opinions and racial groups. The IMA will be an important public authority in Northern Ireland, so it is right to give it the same statutory duties that other public authorities have in regard to it.

The IMA has a crucial role to play following our departure from the European Union. It will be an important safeguard for the rights of citizens of the EU 27 in the UK after the end of the implementation period. Being the single authority responsible for monitoring the implementation of the citizens’ rights provisions of the withdrawal agreement is no small task. I, too, was going to raise the question just raised by the noble Lord, Lord Thomas, about what would happen if we were to leave the EU with no agreement. Will there need to be further legislation or amendment of these orders, given that the status of Northern Ireland will be different from that of other parts of the United Kingdom? We expect that the Government will keep their commitments around the IMA, and it will be an organisation with genuine teeth when it begins its operations in Swansea later this year. Again, points were raised by the noble Lord, Lord Thomas, about the power to bring legal action against the Government or a public authority that has failed to implement or apply the citizens’ rights agreements. Its power to do that is crucial to the credibility of this body.

Subjecting the IMA to Section 75 duties will make it a better organisation and put it within the remit of the Equality Commission for Northern Ireland to investigate it if it does not follow the duties as set out. Labour looks forward to reading the equality scheme this new organisation will put forward, so my second question for the Minister is: can he give assurances that this secondary legislation confirms the Government’s commitment to the IMA, and that they will not use their powers in the withdrawal agreement Act to transfer its functions to another public authority? This question was also raised by my noble friend Lord Wood.

Thirdly, can the Minister give an update on the formation of the IMA? Has it been affected by coronavirus? I, too, saw the adverts on the internet and can see that recruitment is under way, but it would be useful for me and, I suspect, other Members of the House, to get an update from the Minister.

This legislation gives the IMA the statutory foundation it needs to function as a UK-wide body. Labour welcomes it and hopes it represents another step in the formation of the IMA as the truly independent and effective body it needs to be.

At the beginning of this debate my noble friend Lord Hain raised the disturbing case of the denial of rights to victims injured through no fault of their own in the Troubles in Northern Ireland. He was supported by the noble Lords, Lord Bruce and Lord Empey. My noble friend tells me that he has been pursuing this matter for about nine months and, as he said, he has every intention of hounding the Government until he gets a fair result for the victims. I have known my noble friend for more than 30 years and I have no doubt that he will be good to his word and that the Government will eventually be forced to ensure that victims are fairly treated.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice) 5:05 pm, 8th July 2020

My Lords, I am grateful for the contributions to this debate and I shall address the points made as fully as possible. First, the noble Lord, Lord Hain, touched on the issue of victim payments, a point taken up by the noble Lord, Lord Empey, the noble Baroness, Lady Ritchie, and, most recently, by the noble Lord, Lord Ponsonby. Of course, we wish to see this matter resolved as soon as possible. As it is the subject of litigation, it would not be appropriate for me to make any further detailed comments at this time, but I am conscious of the expressions of concern that have been made—and heard, no doubt—beyond the Chamber. I am confident that the noble Lord, Lord Hain, as the noble Lord, Lord Ponsonby, said, will not rest this matter until it is resolved.

I come to some points raised by the noble Lord, Lord Bruce of Bennachie, and a number of other noble Lords about the IMA itself. Yes, the Secretary of State has certain powers with regard to appointments and removals from appointments, as one would expect in this context, but that does not take away from the independent standing of the IMA, which will of course be respected going forward. The idea of a transfer to another body would be contemplated only if it were considered that the time had come when the IMA as such was not required to continue, yet some functions ought to be continued. Therefore another appropriate body would be identified and steps taken to ensure that that body was fully independent and in a position to discharge the functions of the IMA. However, I do not understand it to be contemplated that functions would be divided up between other bodies. The idea is that there could be—I stress “could”, not “would”—a transfer of functions to another body, but the transfer would involve consideration of the receiving body’s ability to discharge all the appropriate functions of the IMA.

Coming to the question of abolition, it is a product of our withdrawal agreement that, after eight years, the IMA, if it were no longer required, could be the subject of abolition, but only with the mutual agreement of the European Union. In other words, it would be only if the EU and the UK decided that there was no longer a role for the IMA that any steps could be taken to abolish it. As I say, that could occur only after eight years.

With regard to the appointments that were made, noble Lords will appreciate that we have not only the provisions of Section 75 in respect of Northern Ireland, but the provisions of the Equality Act 2010 in respect of the United Kingdom. It is against that background that appointments have been made to date. Indeed, when appointments have been made, of course those making appointments have been conscious of the steps that will be taken with regard to the Section 75 order. In any event, as I say, they are conscious of the provisions of the Equality Act 2010.

As regards the appointment of staff, we are confident that the IMA will be functioning fully by the end of the transition period, when it will come into operation.

I stress that the IMA in a sense reflects the role of the commission at present with regard to these matters; in other words, it is concerned not with individual cases as such but with systemic issues which stem from the behaviour of public bodies or public authorities. It will be in a position to receive complaints. It will not be bound to accept every complaint—that is right—because it is looking at systemic issues. When it receives complaints, it may instigate inquiries and if it finds that certain obligations are not being adhered to by public bodies or by those performing functions on behalf of public bodies, it will have the ability to take legal action in the form of judicial review. Where it has a substantive complaint to make, it will be able to secure substantive remedies such as mandatory remedies and so on, so we feel that it will be well equipped to carry out the necessary function in that context.

The noble Lord, Lord Wood, also asked about function transfer and abolition. I hope I clarified what the position would be in that context. Clearly, if any step was to be taken in that regard, it would be with the mutual agreement of the parties and Parliament would be made aware of that, for obvious reasons.

The noble Baroness, Lady Ritchie, raised the question of reports by the IMA. The IMA will report to Parliament with regard to its functions and therefore the discharge of those functions will be subject to oversight by Parliament.

With regard to the resources of the IMA, reference was made by the noble Lord, Lord Thomas of Gresford, to the figures that have been provided. We consider that the IMA will be well and sufficiently resourced to discharge its functions, but again I emphasise that it is going to be looking at systemic issues rather than individual cases and the enforcement of individual rights.

Not only will the devolved authorities be represented on the IMA but so will Gibraltar. The remedies available in Gibraltar will be determined by the Gibraltarian legislature. This is a UK-wide authority and it also extends to Gibraltar.

I hope that I have addressed the points raised by noble Lords in the debate. I beg to move.

Motion agreed.

Sitting suspended.