Litigation Powers

Operational Guidance

Litigation Powers

The IMA takes its role in monitoring and promoting the adequate and effective implementation and application of The Agreements very seriously. The IMA has a number of powers through which it is able to further this key objective. The IMA will use all means at its disposal when discharging its functions including, if necessary, its litigation powers.

Article 159(1) of the Withdrawal Agreement and Article 64(1) of the EEA EFTA Separation Agreement requires, in the UK, the establishment of an independent authority (“the Authority”) to monitor the implementation and application of Part 2 of The Agreements.

The Agreements provide that the Authority is to have powers equivalent to those of the European Commission to conduct inquiries of its own initiative concerning alleged breaches of Part 2 and to receive complaints for the purposes of conducting such inquiries. The Agreements also provide that the Authority is to have the right, following such complaints, to bring a legal action before a competent court or tribunal in the UK in an appropriate judicial procedure with a view to seeking an adequate remedy.

The EUWAA established the IMA and implemented the requirements of The Agreements with regard to the establishment of the Authority within the UK.
The EUWAA confers a number of functions on the IMA, including the power to take legal action, whether by bringing review proceedings of its own volition or intervening in any legal proceedings (including those of review).

The Independent Monitoring Authority Regulations 2020 (“the Gibraltar Regulations”) confer identical litigation powers on the IMA as to litigating in the Gibraltar courts.
Whilst litigation should always be an option of last resort, the IMA will not hesitate to use its litigation powers when it considers it appropriate to do so. This module sets out the most likely, but not exhaustive, circumstances and factors the IMA will consider when it is contemplating initiating or joining legal proceedings.

The litigation powers

The IMA may, if it considers it appropriate to do so to promote the adequate and effective implementation or application of Part 2 of The Agreements, initiate or intervene in legal proceedings. This is the key test to be met by the IMA in order to determine whether it has the power to litigate in any particular case, i.e. whether it should exercise its discretionary power to take legal action. The precise remit of the IMA’s litigation powers is as follows1: In England, Wales, Northern Ireland and Gibraltar, any legal proceedings initiated by the IMA will be by way of judicial review2. In Scotland, any legal proceedings initiated by the IMA will be by way of an application to the supervisory jurisdiction of the Court of Session3. Whilst the IMA may only initiate judicial review proceedings, it is able to intervene in “any” legal proceedings. This includes not only public law actions brought against PAs but might also mean the IMA considers it appropriate to join private causes of action, in order to promote the adequate and effective implementation and application of Part 2 of The Agreements. Details of the IMA’s past and current litigation are available on the litigation page of the IMA’s website.

The litigation powers

Use of the litigation powers

Where possible and appropriate, and in accordance with established litigation procedure, the IMA will seek to resolve problems collaboratively with relevant organisations ahead of any proceedings. Legal proceedings are generally costly, time-consuming, and resource-intensive for all parties. Therefore, the IMA is committed to seeking to ensure citizens have their rights respected without the need for initiating legal proceedings where possible. This may include exploring with relevant organisations, including Public Authorities, how any issues or mistakes in the implementation and application of Part 2 of The Agreements rights can be resolved without recourse to the courts.

Wherever possible, the resolution of issues through dialogue and open collaboration will ensure that citizens are able to have their rights secured in a timely manner. To assist in this process, the EUWAA makes provision to secure effective co-operation and the sharing of information4.

Resolution through dialogue and cooperation may not always be possible for example where legal proceedings are required for urgent clarification of a particular issue. This could also include litigation to secure the degree of cooperation from relevant Public Authorities needed to enable the IMA to successfully discharge its duties.

Equally, there may be a mutual benefit to affected citizens and relevant Public Authorities receiving clarity on the interpretation and application of the applicable legal framework. In such circumstances, the courts may represent the best, and possibly the only, avenue of resolution.

Whenever the possibility of initiating or joining legal proceedings arises, the IMA will carry out a robust assessment of the legal merit of the case and the probability of achieving the desired impact. The power to intervene will only be relied upon if the IMA is satisfied that its contribution will add value to the proceedings and assist the court in its determination.

The IMA’s resources are finite meaning they will need to be strategically and proportionately deployed on those matters where doing so will have the greatest impact. When contemplating joining or initiating proceedings, the IMA will also consider if it is the most appropriate organisation to take such action.

When will the IMA use its litigation powers?

EUWAA specifies that the IMA may use its litigation powers for the purpose of promoting the adequate and effective implementation or application of Part 2 of The Agreements. Set against this specific context, whilst litigation should always be an option of last resort, the IMA will not hesitate to use its litigation powers when it considers it appropriate to do so.

The IMA’s litigation power is a discretionary one. Ahead of deciding to litigate, the IMA will carefully consider in which circumstances its powers are used. When exercising this discretion, and as with all other IMA functions, a key factor will be the importance of addressing general or systemic failings in the implementation or application of Part 2 of The Agreements5.

In assessing whether to exercise its litigation functions the IMA will ask itself the following questions, amongst other considerations:

- Is there a high number of persons impacted, or potentially impacted?
- Does the issue lead to severe or serious implications for citizens?
- Does the issue arise as a result of a series of, or from persistent, failures?
- How prevalent is the issue?
It is important that the IMA uses its discretionary litigation powers in a strategic and proportionate manner. Further, in exercising its litigation function, the IMA needs to consider the importance of addressing general and systemic failings in the implementation or application of The Agreements6.The above questions will assist with this assessment.

Whilst a greater number of complaints received may of itself be an indication of the scale of the issue, a single complaint may also raise a serious or severe problem that either impacts, or has the potential to impact, a large number of qualifying persons. In such circumstances, a single or small number of complaints may not prevent the IMA using its litigation powers.

It is important to note that despite the scale of the problem being a relevant factor when the IMA is considering exercising its legal powers, the fact that an issue only exists in one country of the UK (or even in a single location within a country), or in Gibraltar, will not necessarily prevent the IMA from exercising its litigation powers.
- What is the desired outcome?
- Could litigation result in the desired outcome being achieved?
- Are there other organisations better placed than the IMA to take legal action?
- Are there other mechanisms which would achieve the desired outcome?
- Have other mechanisms previously been explored?
- Is litigation a proportionate measure taking all factors into account?
When the IMA is considering if litigation is the best option, this will likely also involve exploring whether exercising other IMA functions is a better course of action, such as entering into constructive dialogue with relevant organisations or the carrying out of an Inquiry.

The inquiries page of the operational guidance details how the IMA will exercise its function to carry out inquiries. The effectiveness of the Inquiry process is dependent on the robust monitoring of actions taken in response to an Inquiry report. The IMA’s litigation powers may act as a tool where this post-reporting monitoring function indicates that the Inquiry process has failed to deliver the results considered necessary to secure the adequate and effective implementation of Part 2 of The Agreements.

In appropriate circumstances, and prior to the IMA litigating, an alternative to litigation may also include methods of Alternative Dispute Resolution, such as mediation. These alternative options could provide a more timely and proportionate solution.

There are also likely to be instances where other organisations and/or individuals (such as elected politicians) may be better placed to utilise their powers to resolve the issue at hand. Others being better placed to act in a particular case will be a relevant factor in the IMA’s decision making.
The IMA must monitor the implementation and application in the United Kingdom and Gibraltar of Part 2 of The Agreements, which includes keeping under review the adequacy and effectiveness of the legislative framework which implements or otherwise deals with matters related to relevant rights7

To fulfil this obligation, and as further detailed on the legislation monitoring page the IMA identifies all key legislation which implements or otherwise deals with matters related to relevant rights. It then publishes a report containing its analysis of the legislation. This may also include, where appropriate and directly relevant to the implementation of the legislation, the consideration of any guidance issued by the relevant Public Authority.

In exercising its monitoring function, the IMA’s litigation powers are just one component of a number of mechanisms by which it will seek to rectify any issues identified in the legislative framework applicable to relevant rights. Where possible, the IMA will contact the body responsible for the legislation to raise the issue and endeavour to work together to rectify this where possible.

The nature of the legislation or guidance identified will determine the scope of action available to the IMA. The IMA will be careful to respect the role of the democratic institutions in the UK and Gibraltar, as well as the Courts’ jurisdiction, but may consider using its litigation powers to seek clarity on the legal position should this be required in a
As set out above, the IMA also has its own functions it will consider exercising before resorting to litigation. The IMA will also, except in very limited and/or urgent circumstances, seek to resolve issues with the relevant organisation ahead of litigating through open dialogue and collaboration, and in compliance with any relevant pre-action protocol and wider relevant procedure rules.

All relevant Public Authorities have their own complaints procedures and there may be other regulatory bodies that would be better placed to investigate than the IMA. Prior to using its litigation powers, the IMA will need to assess whether other more appropriate or proportionate options are available.

A decision to litigate (whether the IMA initiates new or joins existing proceedings) does not necessarily mean that the IMA will stop taking steps to ensure an efficient and effective resolution to the dispute.

Post-litigation

Monitoring

Where a court has decided that a relevant Public Authority has acted incompatibly with Part 2 of The Agreements the IMA will monitor compliance by the relevant Public Authority with the court’s decision. In the event of non-compliance, the IMA may take action to secure enforcement of any judgment should this be considered appropriate in the circumstances.

Publicising the use of the IMA’s litigation powers

As part of its role in promoting the adequate and effective implementation or application of Part 2 of The Agreements, a key element of any successful use of the IMA’s legal powers will be raising awareness of the proceedings and their outcome.

Publicity will be important (for both citizens and Public Authorities):

to highlight the impact of the IMA’s litigation and the issues raised in terms of citizens’ rights,
to act as a key method of raising awareness of and promoting the rights under Part 2 of The Agreements, and
to raise awareness of the important role of the IMA.

Through the IMA’s interaction with other Public Authorities, it is hoped that they too will be able to learn from the outcome and to adapt their policies and processes to avoid any future non-compliance.

The IMA has adopted principles which will govern its approach to publicising of its legal action. These principles are annexed to this Volume. The principles adopt a default position of publishing details of any legal action the IMA takes. However, it acknowledges that there may be circumstances which may mean that publication may not be appropriate or possible.

Unsuccessful actions

Litigation is an inherently uncertain process. There is no guarantee that any legal action taken by the IMA will result in the outcome sought or position advocated for by the IMA.

Each time the IMA engages in the litigation process, whether reaching a successful outcome or not, will provide the IMA with evidence to inform its continual understanding of how best to utilise its powers. It will also assist with helping the IMA to further understand and interpret the provisions applicable to Part 2 of The Agreements. Further, whether the position advocated for by the IMA is endorsed by the court or not will nevertheless provide important clarity on the different provisions of The Agreements, and therefore will be key for the IMA’s future work.

Even where a court considers there has been no breach of Part 2 of The Agreements by the relevant Public Authority,or refuses the IMA permission to apply for judicial review, highlighting the issue through the litigation may nevertheless lead to a subsequent change in policy as well as potentially with the legislative framework, with the attendant consequence of potentially benefiting citizens within the IMA’s remit.

Taking action of itself may also be beneficial as it will provide a spotlight on the rights of qualifying persons, even though this alone would not justify the use of litigation powers.

In the case of unsuccessful actions, the IMA will also carefully consider the merits and wider consequences of appealing the judgment handed down by the court before reaching a decision whether to do so.

The IMA will continually review this litigation strategy, applying learning from all proceedings brought and joined by the IMA, as well as through wider litigation by others on issues relating to The Agreements.

IMA’s practice direction

The IMA has secured a new Practice Direction which came into force on 1 October 2023.

In summary, the IMA’s Practice Direction provides that:

In any proceedings in which a citizens’ rights issue arises, when a party serves a statement of case which raises a citizens’ rights issue, that party must send a copy of the statement of case to the IMA at the same time.
A citizens’ rights issue is an issue relating to rights under Part 2 of The Agreements.
The IMA is to be notified in writing, either by email or post.
Should there be non-compliance with this notification requirement, the court will consider orders and steps which may be needed, but no sanctions (such as stay, dismissal, striking out) or costs consequences will attach.

For the purposes of the above the IMA’s email address is litgation@ima-citizensrights.org.uk. Its postal address is 3rd Floor, Civic Offices, Oystermouth Road, Swansea, SA1 3SN.

The IMA would encourage all parties litigating in relation to citizens’ rights to tell the IMA about their claim in compliance with the above Practice Direction. This information will be key at enabling the IMA to intervene in cases at an earlier stage, in order to assist the parties and the courts as to the issues raised, and to build up as wide a picture as possible as to the issues faced in terms of citizens’ rights in order to inform the IMA’s future decision-making.

Annex 1: Litigation – publication principles

These principles govern the approach taken to the publication of details relating to the IMA’s litigation. It relates to both the publication of the IMA’s involvement and the details of the involvement (such as publication of the IMA’s case etc).
The IMA’s litigation function is set out in Schedule 2 to the EUWAA. This provides that the IMA has the power to bring its own action for review and to intervene within any legal proceedings.
As a Public Authority, the IMA is keen to be open, transparent and accountable in all areas of its work. The IMA publishes details of its other functions, such as inquiries and legislation monitoring, and considers that as a general principle it would also be appropriate to publish details of its litigation activities. Further, the IMA holds a duty to promote the adequate and effective implementation and application of citizens’ rights, and publication of details of the IMA’s litigation work would help to raise awareness of these rights.
For these reasons, the IMA will adopt an open and transparent approach to the way in which it conducts its litigation activities. This means that the default position of the IMA will be to publish details of its decision to litigate, whether of its own initiative or by way of intervention. This will include publication of its submissions to the Court and any Court documents. This will not include publication of any submissions or evidence of other parties to proceedings unless they are already in the public domain.
Public communications for litigation will adopt the same tone as that adopted for wider IMA communications. It will therefore be objective and factual.
There may be circumstances in which the IMA decides not to publish details of its litigation activities or only publish some limited details. This will be the exception, with the default position as set out above. Reasons for not publishing will therefore need to be carefully recorded and documented within the papers, notably the Panel papers and minutes.
In terms of guiding principles which would govern any decision of the Litigation Panel not to publish, the below is a non-exhaustive list of factors to be considered by the Panel:

Where a Court has issued directions regarding publication.
Publication could prejudice future work by the IMA.
Publication could prejudice any future appeal by the IMA.
The IMA is considering taking additional action in relation to the subject-matter of the litigation (for example the IMA is conducting an Inquiry into the rights of late applicants when the litigation is on a linked issue relating to late applicants) but has not yet announced this work.
The IMA considers that publishing its decision could affect the outcome of the case, for example if it is in a particularly controversial or emotive subject-area.
The case has been issued on an urgent basis and publication to coincide with any decision is not possible. In such a case, consideration should be given to future publication.
The nature of the case has changed so significantly that it is no longer appropriate or valuable for the IMA to publicise its involvement.
Publishing could have an adverse impact on the promotion of citizens’ rights. For example, publicising could cause a risk of citizens not reporting their complaints to the IMA.
The case contains particularly sensitive or confidential information which the IMA considers should not be raised by the IMA within the public domain, for example publication may be undesirable for reasons of national security or might jeopardise an individuals’ safety.

8 It is important to note that even if a decision has been taken not to publicise having considered the above factors, that decision could be revisited in future when the circumstances have changed and thus the reason for not publishing is no longer present. For example, the IMA may not wish to publicise its involvement when it is deciding whether to appeal, however once the appeal has been lodged the IMA may at that point revisit this decision and decide to publish.

See paragraph 30 of Schedule 2 to the EUWAA 2020; and regulation 13 of the Gibraltar Regulations which confer functions on the IMA in relation to Gibraltar.
Paragraph 30(4)(a) of Schedule 2 to EUWAA and Regulation 13(3) of the Gibraltar Regulations respectively.
Paragraph 30(4)(b) of Schedule 2 to EUWAA.
Paragraph 35 of Schedule 2 to EUWAA. Equivalent provision for Gibraltar is contained within Regulation 17 of the Gibraltar Regulations.
See paragraph 24 of Schedule 2 to EUWAA and regulation 7 of the Gibraltar Regulations.
See paragraph 24 of Schedule 2 to EUWAA. Equivalent provision is contained within Regulation 7 of the Gibraltar Regulations.
Paragraph 22 of Schedule 2 to EUWAA and regulation 5 of the Gibraltar Regulations

Inquiries

Glossary of terms

Operational Guidance

Introduction