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

Lord Wood of Anfield Excerpts

Wednesday 8th July 2020 Lords Chamber

[Lord Wood of Anfield (Lab) [V]]

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.