European Union (Withdrawal Agreement) Bill

Debate between Lord Keen of Elie and Lord Wigley

Committee: 1st sitting (Hansard) & Committee stage & Committee: 1st sitting (Hansard): House of Lords
Tuesday 14th January 2020 Lords Chamber

[Lord Keen of Elie]

My Lords, the noble Lord perhaps anticipates what I shall come to in the course of my reply—how prescient he is in that regard.

The body is not under a sentence of death and the rationale for the ability to transfer was hinted at by the noble Lord when he talked about bodies that had long outlived their usefulness. I will elaborate on this point in a moment, but I certainly do not consider that the provisions of paragraph 39 impinge on the effective independence of the IMA. I would add—I will elaborate upon this—that we must have regard not only to the intentions of the Executive but to the joint committee and, therefore, to the interests of the other party to the international agreement that has given birth to the IMA.

Let me continue with the point I was about to raise on some of the further amendments spoken to by the noble Lord, Lord Greaves. First, on Amendments 52 and 53, which seek to remove certain standard provisions for remuneration in respect of public bodies, he alluded to the term “gratuity”. There are circumstances in which public servants are brought into a body but, for one reason or another, their position is terminated early or prematurely and consideration has to be given to the question of gratuities. Where public servants are already employed in a position where they can be remunerated and there is a provision for gratuities to attract suitable employees into bodies such as the IMA, one must generally have regard to equivalence of terms and conditions. Therefore, because that appears in the context of other public bodies, it is repeated in the context of this legislation.

Amendment 54 would remove provisions that provide a proportionate and sensible way of approaching potential conflicts of interest for IMA members. At all times those members will be expected to adhere to the Cabinet Office Code of Conduct for Board Members of Public Bodies, and the approach set out in this paragraph in its unamended form is consistent with the code. For example, an individual member may make a subjective decision that they should disclose a conflict of interest but the board may determine objectively that it is not a pertinent conflict of interest and that they can therefore continue. That is why the matter is expressed in those terms.

The Government also expect the IMA to follow best practice in relation to its own transparency. Therefore, we regard Amendments 55 and 56 as unnecessary. Indeed, amending the Bill in the way proposed by the noble Lord, Lord Greaves, would take decisions around its transparency away from the IMA and thus, essentially, undermine its status as an independent body. We regard the IMA as essentially an independent body but, while enjoying the status of an independent body, it must be able to discharge certain functions as it sees appropriate, albeit while having regard to the relevant codes.

There is also a reference to not charging for the body’s functions in Amendment 61. That is unnecessary because this body will not charge for its functions. They are essentially systemic—as the noble Lord, Lord Greaves, appreciated, it is not a case of individual applications and individual disposals—and there is no room for any form of charging. Again, we feel it is unnecessary to consider that amendment.

On the point raised by the noble Lord, Lord Kerr of Kinlochard, important though the IMA will be in providing additional assurances that citizens’ rights will be protected, we do not expect its functions to be required in perpetuity. Indeed, the withdrawal agreement recognises that reality. Years from now, it might be more appropriate and effective to protect these rights differently. It is for this reason that we have included two powers in Schedule 2: one to transfer the IMA’s functions to another body under paragraph 39 and the other to remove or abolish the IMA’s functions under paragraph 40, but only following a decision by the relevant joint committees to do so.

As noble Lords have appreciated, the first power is about future-proofing to make sure that citizens’ rights obligations are monitored as effectively and efficiently as possible in the future. Indeed, years from now, the type of oversight needed for the UK’s citizens’ rights obligations and the wider UK regulatory landscape may have changed materially from what it is today, and in such new circumstances it may be more appropriate and effective for another public body to perform the IMA’s role. Removing that power, as would be required by Amendment 58, spoken to by the noble Lord, Lord McNicol, would make us less capable of ensuring that we are in a position to provide an efficient and effective monitoring of citizens’ rights and obligations.

In any event, we would be sure to keep the EU and the EEA EFTA states appropriately informed of any decision to transfer the IMA’s functions. Again, that would be by way of the joint committee and would not involve some unilateral executive action by the UK Government. Indeed, if this power were ever used, we have ensured that it would not affect the independence and effectiveness of how citizens’ rights obligations are monitored. The Secretary of State must have regard to the need for the transferee to possess the necessary independence and resources to provide effective oversight of citizens’ rights obligations.

Let me reassure the House that the commitments we have made to the devolved Administrations about their role in the Independent Monitoring Authority will be upheld in the event that its functions are transferred to another public body. We have designed this power so that the Secretary of State can make any modifications that he considers appropriate to the constitutional arrangements of the transferee. This will ensure that an equivalent to the important role of the devolved Administrations in the IMA is replicated for the transferee. I hope that reassures the noble and learned Lord, Lord Thomas of Cwmgiedd—I apologise if I have mispronounced the Welsh—and other noble Lords that, in these circumstances, Amendment 59 is unnecessary.

As I indicated, we have included a second power to abolish the IMA, which can be exercised only following a decision by mutual consent through the relevant joint committees, comprising representatives of the UK on the one hand and the EU and EFTA states on the other. This power can do no more than give effect to a decision at the international level. It cannot be exercised following a unilateral decision by the Secretary of State or the Executive. We would give extremely serious consideration to any decision to agree to abolish the IMA and I am confident that the EU and EFTA states would do likewise.

[Lord Wigley]

Will the Minister also confirm that if we were to find ourselves wanting to propose such a change to our former European colleagues there would have been consultation with the devolved authorities before that stage?

[Lord Keen of Elie]

My Lords, it is of the nature of the IMA’s function that it involves consideration of the views of the devolved Administrations and Gibraltar. It also involves consideration of the interests of those in England. We have to have regard not only to Wales, Northern Ireland and Scotland but, in this context, England and Gibraltar. It would be appropriate to consider all their interests if we were to put forward a proposal for the abolition of the IMA. Indeed, I find it difficult to conceive of a situation in which we could put forward a proposal for the abolition of the IMA at the joint committee without having consulted the devolved Administrations. It strikes me as so improbable that one should not give much weight to it.