The Hub teams up with the3million to respond to IMA’s strategy consultation

Credit: IMA

Dear IMA,

Thank you for inviting feedback on your 2021-24 Strategy Document. The EU Rights and Brexit Hub and the3million have partnered for this response.

The IMA’s goal is to monitor and uphold EU and EEA EFTA citizens’ rights. Institutionally it has, within its remit, powers and responsibilities equivalent to those of the European Commission. As such, features of the Commission’s own analysis and strategy need to be carefully considered in the strategy of the IMA.

Methodology of the feedback

From the outset, we wanted to give feedback on the method of consultation around this strategy. Without a clear framework of questions to work towards, it is difficult to clearly formulate what is most helpful to you. The consultation web page only provides a link to this email address. After considering this email, you may consider it appropriate to discuss further the observations and questions we have posed. We would welcome this; ultimately our goals are aligned - ensuring that citizens’ rights are upheld in the UK.

Key questions to consider

We felt that it would be helpful to pose questions to consider with some initial observations in response to them.

Do the strategic objectives achieve the aims of upholding citizens’ rights?

The three objectives largely centre on perceptions of the IMA. Perception of its brand (trusted, known and credible that will act with fairness, transparency and impartiality) and the relationships it has formed (develop strong partnerships to ensure rights are upheld). The third objective is internal perception - staff performance and satisfaction and general auditing.

Whilst these objectives will help establish what people think about the IMA and its working, we suggest that there should be an objective that measures the degree of compliance within the UK with the citizens’ rights provisions in the Withdrawal Agreement.

Do the ‘measures of success / success narrative’ effectively measure the objectives set out?

Each of the objectives must be matched with appropriate measures that reflect whether the objective is achieved. We will not take each in turn (which we suggest would be best reserved for future discussions when the question above is resolved and that there are objectives that fully address the aim of the IMA) but instead raise some general observations and questions.

Many of the measures focus on quantity and receipt of feedback and information. We submit that documenting feedback alone cannot fully measure trust/credibility/fairness/transparency, and moreover, is not a reliable indicator of citizens’ understanding of the rights they hold under the Withdrawal Agreement.

We feel there are further stages to this and any measure should also include analysis on scope and actions taken arising from the feedback received. While it is useful to hear about the activities of the IMA in relation to specific complaints, a more effective measure of the IMA’s complaints process could feature a regular reporting mechanism. This reporting could outline the total number of complaints received, whether they were in the scope of the IMA, what topic they related to and what has been done in response to the complaint (if applicable). This system could be modelled on the EU Commission's reporting of infringement decisions: (https://ec.europa.eu/info/law/infringements_en).

This reporting mechanism would give some insight into the reach of the IMA, while the data on complaints within and outside of the IMA’s scope would also indicate levels of understanding of the IMA’s role, and of the rights contained in the Withdrawal Agreement. Finally, documenting what happens with each submission would provide a useful indicator of the IMA’s success as an enforcer of the Withdrawal Agreement.

Can the measures be more specific?

Some of the measures of success and narratives could benefit from more specific indicators. For example, there are a number of references to ‘feedback’ and ‘surveys’ but it is unclear what form these will take, over what period and how they will be used. The greater the specificity to the approach will help clarify the extent to which the objective is being appropriately measured.

Monitoring: other lessons that can be learned from the Commission

As mentioned above, there are key lessons that can be drawn from the Commission's work. Given the mandate to be equivalent, there are other methods of work analysis that can be borrowed. The process of monitoring compliance is not a purely reactive one, dependent upon individuals having the knowledge, understanding, legal skills and resources to put together a case for a complaint. The Commission instructs networks of experts (e.g. practitioners and academics) who compile reports on specific questions of implementation; for example, the European network of legal experts in gender equality and non-discrimination, or the MoveS network on free movement and social security coordination law. It also produces annual monitoring reports, broken down by theme, to ensure it examines all relevant areas of implementation. The IMA could highlight each of the key components of the citizens’ rights provisions in the Withdrawal Agreement; identify appropriate markers of (non)-compliance; and then, in consultation with experts, ascertain evidence of the markers having been met.

Three key objectives for IMA success

As noted above, we believe that ensuring compliance with the WIthdrawal Agreement should feature among the IMA’s objectives; it is - as a matter of international law - the IMA’s raison d’etre.

We would suggest this could be broken down into three specific objectives:

• Ensuring that EU citizens, and the organisations supporting them, understand their rights under the Withdrawal Agreement, and engage with the IMA where their rights are potentially infringed;

• Monitoring compliance of legislation, public bodies, and private actors with the Withdrawal Agreement;

• Acting to effectively uphold citizens’ rights in the event of potential infringements of the Withdrawal Agreement.

Each of these objectives requires a plan of action, and each should be measured against meaningful, specific indicators.

We hope that these initial reflections will help with expanding on the strategy. As mentioned, we have more specific thoughts within each of the objectives and methods. At this stage though we felt it was better to set out general top line concerns with a view to further discussion.

Thank you again, and we look forward to hearing from you.

The EU Rights and Brexit Hub and the3million