Northern Ireland Act 1998 (Section 75 —Designation of Public Authority) Order 2020

Motion to Approve

Moved by

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

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

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.

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.

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.

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.

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?

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 Ireland 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.

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.