How we establish an Inquiry
The IMA has a statutory function under the EUWAA to conduct inquiries which are delivered by the Compliance and Inquiry Team. The purpose of an IMA Inquiry is to:
- Establish whether the United Kingdom or Gibraltar has failed to comply with The Agreements;
- Establish whether relevant Public Authority has acted or is proposing to act in a way that prevents a person exercising a relevant right; and
- To identify any recommendations for relevant Public Authorities appropriate to promote the adequate and effective implementation of The Agreements.
Inquiries may arise in two ways:
- Through Compliance Investigations, whether arising from
- complaints, or
- received intelligence or own initiative.
- Requested by either a Devolved Government or Secretary of State.
In conducting an Inquiry, the IMA will seek to ensure that any facts stated in the final Inquiry report are fair and accurate.
The IMA will not carry out a complaint led or own initiative Inquiry unless it is satisfied that there are reasonable grounds to believe that the Inquiry may conclude that the UK has failed to comply with The Agreements occur or that a Public Authority has acted in a way that prevents a qualifying persons exercising a relevant rights. However, the IMA is not compelled to carry out an Inquiry even when this is the case.
When considering whether an own initiative Inquiry is appropriate, the IMA will have regard to the importance of addressing general or systemic failings in the implementation or application of The Agreements.
The IMA will comprehensively assess all information available to determine whether there are reasonable grounds to propose the commencement of an Inquiry. This will include identifying the relevant Public Authorities involved in an issue, as well as the relevant right(s) that are at risk of/are potentially being compromised.
The list below sets out the likely, but not exhaustive, circumstances and factors the IMA will consider:
- Whether there is reasonable evidence to believe an Inquiry may conclude that citizens’ rights have not been properly protected
- Whether the evidence suggests that there are reasonable grounds to believe a Public Authority as acted (or is proposing to act) in a way that might prevent citizens exercising a relevant right
- Whether all relevant Public Authorities have been correctly identified
- Whether all existing and pending inquiries have been considered for relevance or replication
- Whether options for an alternative resolution have been considered
- The impact and scale of the issue on citizens lives
- The complexity of the issue
- Whether the timing of the Inquiry is appropriate, considering both internal and external factors
- Whether an Inquiry is proportionate and an efficient use of IMA resources
The IMA may decide not to proceed with an Inquiry at any stage, despite the evidence, and reserves the right to do this as set out in paragraph 25(4) of Schedule 2 of EUWAA.
Our process for conducting an Inquiry
An IMA Inquiry will have four broad phases:
- Planning – including initial Public Authority engagement and notification
- Evidence Collection
- Monitoring (where appropriate)
The Inquiry team will notify the relevant Public Authorities of its intention to conduct an Inquiry and invite comments in response by a set date. It will also, where possible, provide the draft terms of reference (ToR) for consideration.
The IMA will publish its intention to carry out an Inquiry pursuant to paragraph 26 of Schedule 2 of the EUWAA. Where a planned Inquiry relates to a Public Authority in Gibraltar the IMA will also publish its intention in the Gibraltar Gazette.
As part of any Inquiry the IMA will inform the relevant Public Authority(ies), and any other person who the IMA considers appropriate, in writing, inviting them to submit representations to the Inquiry. Where an Inquiry is into an issue on which a complaint or complaints have been received, the IMA will also inform any complainant(s) and invite representations.
Evidence collection phase
An Inquiry will serve to investigate any issues having a potential negative impact on the relevant rights of qualifying persons to determine whether a breach has occurred.
The course of each Inquiry may differ depending on the nature and number of issues under consideration. An Inquiry’s TOR will outline, insofar as is possible, the expected methodology, although this process will remain flexible and reactive depending on the needs of the Inquiry.
Where any changes are required to the TOR, the IMA will keep the Public Authority informed.
Some examples of the methodology that might be considered are set out below:
- Identification of good practice standards
- Survey and/or Call for Evidence
- Request for Information of a Public Authority.
- Meetings with Public Authority staff
- Observation of practice
- On site investigations or inspections
- Focus groups
- Accounts from citizens
The outcomes from an Inquiry
A full analysis will be undertaken of the Inquiry evidence gathered and the IMA will prepare a draft Inquiry report. In preparing the draft report, the IMA will take account of and reflect on any action taken by the Public Authority during the Inquiry to resolve the issue(s) concerned.
The draft Inquiry report will summarise the process and findings of the Inquiry before drawing on provisional conclusions and whether the IMA considers that:
- the relevant Public Authority has acted in a way, or is proposing to act in a way, that prevents a qualified person exercising a relevant right; and/or
- the UK or Gibraltar has failed to comply with The Agreements.
Where relevant, the IMA’s draft Inquiry report will make recommendations that the IMA consider appropriate to better safeguard the relevant rights. The IMA will outline what these recommendations are and the timescales for implementation, which may occur under a monitoring period.
Before publication of an Inquiry report, the IMA will take reasonable steps to ensure the information contained within does not pose any risk to national security or any individual’s safety. If the IMA considers that a report does contain material relating to border security or terrorism, the IMA will give the Secretary of State an opportunity to require the IMA to remove information on the grounds that it poses a risk to either national security or a person’s safety. The final version of an Inquiry report will be approved according to the IMA’s governance arrangements.
The IMA will publish any Inquiry report as soon as is reasonably practicable after preparing it, and once consideration has been given to any border security or terrorism issues (see above).
Inquiry Reports will be shared directly with:
- The Secretary of State, the Scottish Ministers, the Welsh Ministers and the Executive Office in Northern Ireland and where appropriate the Government of Gibraltar.
- Any relevant Public Authority that was invited to make representations in relation to the Inquiry.
- Any relevant Public Authority to which a recommendation is made in the report.
- Any other relevant Public Authority the IMA considers appropriate.
Inquiry reports will be made available on the publications page of our website as soon as is reasonably practicable. The IMA may also decide to publicise and promote the Inquiry report using media outlets and social media channels where appropriate.
Any Public Authority that is subject of a recommendation contained in an Inquiry report must publish a response to the recommendations expeditiously and in any event within 3 months of the report’s publication.
The IMA’s Compliance and Inquiry Team has responsibility for monitoring compliance with the recommendations from an Inquiry and any associated action plan.