European Union (Withdrawal Agreement) Bill

Lord Hutton of Furness Excerpts

Report stage & Report stage (Hansard): House of Lords & Report: 1st sitting: House of Lords & Report: 1st sitting
Monday 20th January 2020 Lords Chamber

Moved by

[Lord Hutton of Furness]

2: Clause 15, page 18, line 21, at end insert “, comprising a majority of non-executive members”

[Lord Hutton of Furness (Lab)]

My Lords, in moving Amendment 2, I shall speak also to Amendments 22 to 28. The withdrawal agreement requires the United Kingdom to establish a new independent body to monitor the implementation of the citizens’ rights provisions contained in the agreement once the implementation period has elapsed. As noble Lords will be aware, there are over 3 million EU and EFTA nationals living in the United Kingdom today. The independent monitoring authority to be set up under this Bill will therefore have an essential role in helping the United Kingdom to meet its international obligations. It goes right to the heart of our standing as a nation governed by the rule of law and on respect for human rights and individual liberties, so this is a very important part of the Bill. My main concern with Schedule 2 as it stands —this is why I have tabled these amendments—is that it appears to place administrative convenience ahead of the proper enforcement of citizens’ rights. This is unacceptable; my amendments are designed to address this imbalance.

Amendments 2 and 22 relate to the composition of the independent monitoring authority. It must surely be a matter of principle that a body such as this, charged with the important responsibilities that we are about to give it, should comprise a majority of non-executive members. That is consistent with every principle of good, corporate governance. These amendments will make that clear. At the moment, it is not clear—in fact, quite the opposite. Under Schedule 2, it is possible for the body to be properly constituted and make decisions even without a majority of non-executive members. If we allow that position to go unchallenged, there is a risk—small perhaps, but not a risk we should be prepared to run—of executive capture. We should not let that happen.

Amendment 23 deals with the balance of the non-executive members. The Bill does not require the non-executive members to reflect properly the nations of the United Kingdom. The words “so far as possible” are inadequate in this context and should be removed. There can be no excuse not to ensure a proper reflection of the nations in the membership of the IMA.

Amendment 24 deals with defective appointments and vacancies. Given the importance of the work of the IMA, it should surely be possible to ensure a full complement of non-executive members. In the case of defective appointments, I do not think that decisions taken by people who have not been properly appointed should be treated in the same way as the decisions of people who have been properly appointed. Otherwise, what on earth is the point of our requiring the Secretary of State to follow a particular appointment process?

I turn now to Amendment 25. Under the schedule as currently drafted, the IMA could delegate to any official of the authority all or any of its decision-making powers other than the production of its annual report. I do not think that that can be right either. Surely the powers to investigate and reach decisions on individual cases or complaints brought to the IMA must be the sole preserve of the members of the IMA itself. My amendment would ensure that that is the case.

Amendment 26 also deals with quite an important issue of principle. In my view, sub-paragraph (4) as it is currently drafted is completely at odds with sub-paragraph (3). If the IMA is satisfied that the UK has failed to comply with its international obligations under the agreement or it is satisfied that a public authority has acted in contravention of the agreement—that is what this part of the schedule is dealing with—then surely it would be astonishing if the IMA could simply ignore this and decide not to take any action at all.

When the composition of the IMA was first revealed and the Department for Exiting the European Union published its document explaining the remit and mandate of the authority, it said:

“The IMA will be established to monitor the UK’s application of the citizens’ rights parts of the Agreements and identify any breaches.”


However, sub-paragraph (4) allows the authority to completely ignore any evidence of a breach of the UK’s international obligations; it allows it not to pursue an inquiry even though it is satisfied that such a breach has occurred. So it might decide to investigate some breaches of our commitments under the agreement but not all, and I do not think that is right. My amendment would therefore delete that provision from the schedule altogether.

Amendment 27, which I have tabled, also deals with a fundamental question of procedure. Sub-paragraph (3) in this part of the schedule seems to me to drive a coach and horses through the whole concept of an effective monitoring body. It is hard to imagine that many of the complaints we can envisage being made to the IMA will not involve at least the potential for an issue to be resolved or referred to the courts. This sub-paragraph gives the IMA a carte-blanche power to simply refuse to make any inquiries even if there is evidence that such a breach has taken place or that it believes that the proper redress is for an individual action in the courts. I do not believe there can be a justification for such a carte-blanche power, and certainly not one that is as widely drafted as this is.

On Amendment 28, many noble Lords have focused on the powers granted under the schedule for the Secretary of State to transfer the functions of the IMA to another body at some point in the future. Here I definitely can see why the Secretary of State might want to do this at some point in the future, but we should insist as a minimum threshold that any new body that might discharge these important statutory powers has the same constitutional safeguards—regarding independence and regional representation, for example—as the IMA. That is how we are setting it up under the schedule so surely any new body should reflect those essential provisions. I therefore do not think this amendment is asking for very much. It would simply require the Secretary of State to satisfy himself that any such body that these functions are transferred to is constituted in the same way as the IMA.

Lastly, on the point about dissolving the IMA, perhaps the Minister, whose response I am looking forward to, could confirm that under Article 159(3) of the withdrawal agreement the joint committee would have to agree the abolition of the IMA anyway, so the UK has already ceded authority—to use that argument—over the continued existence or otherwise of the IMA. I beg to move.

[The Minister of State, Department for Exiting the European Union (Lord Callanan) (Con)]

My Lords, I thank the noble Lord for his amendments. Given his long experience of government, he will understand that we have designed the IMA’s constitution as set out in Schedule 2 in line with the best practice for the establishment of new public bodies. I fear that the amendments he has tabled risk undermining that approach.

As noble Lords will be aware, we have introduced a number of requirements relating to the membership of the IMA’s board in line with the well-established procedures relating to the governance of public bodies. An important principle of this is that the board of public bodies must contain more non-executive than executive members. That is why we have required the Secretary of State to ensure that, as far as possible, the number of non-executive IMA members exceeds the number of executive members. It is also why the Bill sets out that an IMA board meeting is quorate only if there is a majority of non-executive members present. Because these restrictions exist elsewhere in the Bill, Amendment 2 is unnecessary.

--- Later in debate ---

I hope that I have provided the noble Lord, Lord Hutton, with adequate reassurances to address the concerns that have motivated his amendments. As set out in their unamended form, Clause 15 and Schedule 2 establish the IMA in line with well-established principles for the governance and operation of new public bodies, and any amendments to this drafting would be a departure from such principles. Lastly, to address his question about whether the joint committee would need to agree to abolish the IMA the answer is yes, it would. In the light of the reassurances I have been able to give, I therefore hope that the noble Lord will withdraw Amendment 2.

[Lord Hutton of Furness]

My Lords, I am grateful to the Minister for his reassurances. He has, however, confirmed my suspicion that what matters most to Ministers is the administrative convenience of this new body, rather than its effective operation as a monitoring authority. I am certainly prepared not to press my amendments. I do not intend to test the opinion of the House; that was never my purpose in tabling them. However, I suspect that we will return to this issue in the months and years ahead. I fear that we are setting up a body in a way that is not consistent with its purpose. Its purpose is clear under the withdrawal agreement; time will tell whether the Minister is right or I am right. I beg leave to withdraw the amendment.

Amendment 2 withdrawn.