As part of both the Pre-inquiry and Inquiry processes, the Independent Monitoring Authority for the Citizens Rights Agreements (IMA) may wish to conduct a consultation and/or a call for evidence. This guidance document sets out the principles for inquiry-based consultations and calls to evidence.
This guidance is published in accordance with paragraph 32 (1) of Schedule 2 of the European Union (Withdrawal Agreement) Act 2020 (‘EUWA 2020’). In preparing this guidance the IMA has had regard to the way in which the European Commission exercises its functions of monitoring and enforcement in relation to citizens’ rights under EU law and any guidance issue by the European Commission about how it exercises these functions in accordance with paragraphs 32(3) of Schedule 2 EUWA 2020.
The common goal of consultation or call for evidence activities is to collect information to assist the IMA in making accurate and informed decisions and authorising appropriate and timely actions to achieve the most effective outcomes.
These activities provide opportunities for engagement between the IMA, and its external stakeholders. They share some common characteristics and many of the key principles outlined below. They both require approval based on the IMAs internal governance arrangements, and in some circumstances, there may be a legal duty to undertake one or both courses of action. However, they differ in certain aspects of their formal requirements, and in their impact on decisions taken at the Pre-Inquiry or Inquiry phases of the IMA’s process.
A Consultation is the process of obtaining comments, views and responses from relevant sources for the purpose of reaching a well-informed and fair decision. The Terms of Reference is a published written document setting out the parameters of the consultation including the scope and subject for consideration, what information is being sought, how this information can be submitted and the deadline for submitting responses. A consultation process is usually designed to seek information from relevant sources. As such, a consultation exercise can influence the application or outcome of the IMA’s proposed actions and can be a means to endorse or affect changes to proposals.
The IMA may undertake a consultation to determine whether, and if so how, the United Kingdom has failed to comply with Part 2 of the Withdrawal Act and EEA/EFTA Separation Agreement or whether a Public Authority is acting or proposes to act in a way that prevents a person exercising a relevant right and where a breach is identified to inform what steps may be required to remedy them.
Whilst a consultation is usually a formal process, it is however possible to conduct iterative and less formal consultation processes using digital tools and collaborative tools/processes. Whatever format the consultation may take the IMA will ensure that it clearly explains the purpose of any such consultation and how any information provided to it will be used and managed as set out in any privacy notices attached. It is common practice to publish responses which illustrate the findings of the consultation and the IMA will seek to do this as part of the pre-inquiry or inquiry report.
A Call for Evidence shares many characteristics with a consultation. It is also is a formal gathering of information. It can generally be distinguished from a consultation as it is likely to be targeted at assessing the impact of a particular action or proposed action by a public authority – for example, this might include the effectiveness of a process undertaken by a public authority, the impact of new (or changes to) existing systems, processes and procedures on those EU, EEA/EFTA citizens affected or likely to be affected. A call for evidence is a formal engagement exercise that the IMA may use to collect factual evidence, views or information to inform its decisions.
A call for evidence will contain questions and request information from anyone with relevant knowledge, expertise or experience to contribute. The call for evidence will have a specified timescale for responses and can also be directly issued to external stakeholders, representative groups and members of the public. Further, it is common practice to publish responses which illustrate the findings of the call for evidence and the IMA intends to do this as part of the pre-inquiry or inquiry report.
The IMA may undertake a consultation or call for evidence to inform decisions when:
- Considering whether to commence a pre-inquiry investigation into an issue brought to its attention as a complaint, information received or through our own intelligence and monitoring activity
- Publishing our intention to proceed to an Inquiry
- Conducting an Inquiry to obtain evidence or information relevant to the issue(s) being considered.
- Determining what type of recommendations may be required in response to any findings that a breach of the Withdrawal Agreement has or has potential to occur.
- Assessing the impact and effect of actions taken in response recommendations made as a result of an Early Case Resolution or Inquiry
The IMA will ensure that we have a specific purpose for conducting a consultation or call for evidence and will not undertake these actions without the clear and reasoned objectives.
The IMA will set out the terms of reference for both consultations and calls for evidence within which will include clear information on issues under consultation, the information being sought and how that will be used and secured as part of the exercise and the wider Pre-Inquiry and Inquiry processes.
The IMA will seek to raise awareness of a planned consultation in advance of its launch. In the spirit of collaboration and transparency the IMA will usually conduct informal discussions with individuals and organisations before announcing a consultation or call for evidence, to gain a better understanding of the issues that will need to be raised during the process. Alternatively, the IMA may (as appropriate) choose to publish a notice of intention on its website or host a meeting/event to explain its proposals.
Principles of Conducting a Consultation or Call for Evidence
The IMA will work to four key principles when launching a consultation or call for evidence:
- Targeted; and
- Using Responses Responsibly
Everything we do is based on our values which reflect:
- our people-centred approach which always considers people first;
- our willingness to listen to people and public bodies;
- our independence from government;
- our transparency in how we work; and
- our ability to make impartial decisions.
The IMA will use plain English and avoid acronyms in any consultation or call for evidence document. It will be clear on the questions being asked limit the number of questions to those that are necessary and, seek to make them easy to understand and answer. The IMA will when appropriate, identify where contributions are particularly welcomed from a specific group(s).
The consultation or call for evidence publication will explain (where appropriate):
- The topic: providing enough information about the issues being consulted on so that consultees can fully engage with the questions being asked.
- The consultation questions.
- What information is sought (i.e. formal or informal, evidential, or opinion)
- The Scope: from whom information is being sought.
- How to respond (i.e. electronically, written, spoken)
- The duration: the deadline by which responses are to be submitted.
- Who the key contact(s) in the IMA are
Call for evidence and consultation documents will be as short and simple as possible. If reference to any complicated processes or concepts cannot be avoided, the IMA may provide a short plain English guide to aid understanding.
Where used, the IMA will ensure that consultations and calls for evidence are completed before taking decisions as part of the Pre-Inquiry and/or Inquiry phases so that any evidence or information received can be fully considered. The IMA will seek to begin a consultation when it has enough information it can put in the public domain to enable an effective and informed dialogue on the issues being consulted on. The IMA will aim to launch them at the most suitable time. Consultations and calls for evidence will run for a proportionate amount of time.
The decision of whether and when to issue a consultation or call for evidence is likely to be of great importance to the course and outcome of the Pre-Inquiry and/ or Inquiry process.
Where a decision is taken by the IMA to launch a consultation or call for evidence, careful planning must be applied in both the Pre-Inquiry and Inquiry phase with due consideration given to:
- Any legal advice received, corporate governance and administrative tasks that need to be undertaken
- The time required to undertake any informal discussions prior to, or alongside a consultation or call for evidence.
Consultations and calls for evidence will run for an amount of time appropriate to the matters in issue and time limits required to reach decisions, taking into account the need to allow sufficient time to allow for good quality responses. Organisations may need to consult people they represent or work with before drafting a response.
Other factors which would influence the decision on duration may include: legal advice received, the nature and potential impact of the issue or proposals being considered, media activity, political involvement/awareness or the impending deadline of a public process (i.e. end of grace period for EU Settlement Scheme), as well as UK holiday periods/festivals/periods of religious significance which might impact certain stakeholder groups’ ability to respond.
Consultations will not generally be launched or concluded during local or national election periods. However, if there are exceptional circumstances which make the launch of a consultation essential (for example, safeguarding public health), the IMA will seek advice from the Secretary of State and, wherever required will consult the Propriety and Ethics team in the Cabinet Office.
The IMA will give early consideration to the full range of people who may be affected or impacted by the issue being considered, and those from whom representation is paramount, when planning a consultation or call for evidence. The IMA will ensure that the consultation is accessible to those it is intended to reach. To achieve this, the Inquiry Team will determine whether based on any external stakeholders/groups identified there are any specific adjustments, notifications or communications required to promote awareness and accessibility to the consultation or call for evidence.
Where possible, consultations and calls for evidence will be published in a standard format consistent with IMA branding. However, when planning for a consultation or call for evidence the Inquiry Team will also consider whether communications should be made available in different formats to meet the needs and preferences of external stakeholders or the wider public. The IMA will undertake an Equality Impact Assessment where appropriate to consider how best to design the process to promote equal participation of those with characteristics protected under the Equality Act 2010.
For example, the IMA may:
- produce versions of the call for evidence or consultation materials in languages other than English
- use graphics or formats (including social media) which are suitable for different age groups
- use audio communications and alternative response formats for those with disabilities
Using Responses Responsibly
Responses to consultations and calls for evidence will be securely stored and managed in line with the IMA’s data security and management guidelines and practices as set out in the relevant privacy notice.
The IMA will aim to publish the responses received to a consultation, or a summary of them, within 12 weeks of the end or provide any explanation where this is not possible on our website.
The summary will include details of number of responses received, explain how they have been analysed and/or informed the decisions and/ or recommendations arising from the consultation.
The IMA can use any evidence gathered or information received from a consultation and/or call for evidence to inform its decisions in the Pre-Inquiry or Inquiry phase. Specifically, as set out in the relevant privacy notice, evidence or information received can be used to inform decision making and may be referenced or cited in any Pre-Inquiry or Inquiry Report, or within a published statement connected to either of those processes. In such circumstances it is not necessary for the IMA provide advance notice of this to the responder. However, care will be taken to ensure that the identity of individual respondents, as opposed to organisations, is not included.
If the IMA is in any doubt as to the validity or relevance of evidence received, it can undertake steps to corroborate or request further information.
Responses received to a call for evidence will usually be published as part of any Pre-Inquiry or Inquiry Report that the IMA may produce at the end of the investigation process.