United Kingdom Internal Market Bill (HL Bill 135)

Part 1Part 5 continued    

that would be applicable to a sale of the goods in that part of the United
Kingdom (being a sale of a kind for which the goods are being
produced).

(5)A production step is “significant” for the purposes of subsection (3) if it is
5significant in terms of the character of the goods being produced and the
purposes for which they are to be sold or used (but see subsections (6) and (7)).

(6)A production step falling within any of the following descriptions is not
significant (whether or not it is regulated)—

(a)activities carried out specifically to ensure goods do not deteriorate
10before being sold (such as maintaining them at or below a particular
temperature);

(b)activities carried out solely for purposes relevant to their presentation
for sale (such as cleaning or pressing fabrics or sorting different
coloured items for packaging together);

(c)15activities involving a communication of any kind with a regulatory or
trade body (such as registering the goods or notifying the goods or
anything connected with them or their production);

(d)activities carried out for the purpose of testing or assessing any
characteristic of the goods (such as batch testing a pharmaceutical
20product).

(7)A production step involving the packaging, labelling or marking of goods is
not significant (whether or not it is regulated) unless the step is fundamental to
the character of the goods and the purposes for which they are to be sold or
used.

(8)25Goods are “imported into” a part of the United Kingdom only if they are
imported into that part from outside the United Kingdom.

For this purpose the Isle of Man is outside the United Kingdom.

(9)Goods are to be regarded as imported—

(a)for goods brought by sea, when the ship carrying them enters the limits
30of the port at which they are discharged;

(b)for goods brought by air, when they are unloaded;

(c)for goods brought by land, when they enter the United Kingdom.

In this subsection “port” and “ship” have the same meaning as in the Customs
and Excise Management Act 1979 (see section 1 of that Act).

(10)35Goods produced in, or imported into, a part of the United Kingdom (“the
original part of the United Kingdom”) which are—

(a)exported to a place outside the United Kingdom, and

(b)re-imported back into any other part of the United Kingdom,

are, despite the re-importation, to continue to be regarded as goods produced
40in, or imported into, the original part of the United Kingdom.

(11)A reference (however expressed) to the production of anything includes—

(a)cultivation, harvesting and similar activities (in relation to plants or
fungi) and

(b)rearing, keeping, handling, killing and similar activities (in relation to
45livestock or other animals).

(12)A reference (however expressed) to law in a part of the United Kingdom is a
reference to—

(a)the law of England and Wales as it applies in (or in relation to) England,

(b)the law of England and Wales as it applies in (or in relation to) Wales,

(c)the law of Scotland, or

(d)the law of Northern Ireland.

(13)5“Contravening” includes failing to comply.

(14)“Statutory requirement” has the meaning given by section 3(11).

Part 2 UK market access: services

16 Services: overview

(1)10This Part governs the regulation of service providers in the United Kingdom.

(2)It makes provision that limits the application and effect of authorisation
requirements and regulatory requirements.

(3)An authorisation requirement is a legislative requirement that a service
provider must have the permission of a regulator before carrying on a business
15of providing particular services.

(4)A regulatory requirement is a legislative requirement that would if not
satisfied (whether at a particular point, or on a continuing basis) prevent a
service provider from carrying on a business of providing particular services.

(5)The following are neither authorisation requirements nor regulatory
20requirements for the purposes of this Part—

(a)relevant requirements as defined for the purposes of the mutual
recognition principle for goods (see section 3);

(b)provision of the sort described in section 22(1) or 26(1) (professional
qualifications and regulation) to the extent it has the effect described
25there;

(c)a requirement that—

(i)is in force, or otherwise has effect, on the day before the day on
which this section comes into force and has not been
substantively changed after that day, or

(ii)30comes into force, or otherwise takes effect, on or after the day on
which this section comes into force if it re-enacts or replicates
(without substantive change) a legislative requirement in force
or having effect immediately before that day;

(d)a requirement that applies to a service provider, but which also applies
35to persons who do not provide services (for example, a requirement
imposing duties on employers);

(e)a requirement to notify, or register with, a regulator;

(f)a requirement to provide evidence of being authorised to provide
services in a part of the United Kingdom other than the part in which
40the requirement applies.

(6)Subsection (5)(c) does not exclude (and, accordingly, references to
authorisation requirements do include) an authorisation requirement that
applies in a part of the United Kingdom if, after the relevant day, a

corresponding authorisation requirement in another part of the United
Kingdom is substantively changed.

(7)For the purposes of subsection (6)—

(a)an authorisation requirement corresponds to another authorisation
5requirement if it relates to the same, or substantially the same, services;

(b)the “relevant day” is the day before the day on which this section comes
into force.

(8)For the purposes of this section, an authorisation requirement is substantively
changed if a legislative requirement that would, if not satisfied, prevent a
10service provider from satisfying the authorisation requirement is substantively
changed.

(9)In this Part—

• “service provider” means a person—

  (a)

  that provides, or intends to provide, services in the course of the
  15person’s business, and

  (b)

  that has a permanent establishment in the United Kingdom
  through which that business is wholly or partly carried on;

• “permanent establishment”—

  (a)

  in relation to a company, is to be read in accordance with
  20Chapter 2 of Part 24 of the Corporation Tax Act 2010, and

  (b)

  in relation to any other person, is to be read in accordance with
  that Chapter but as if references in that Chapter to a company
  were references to that person.

17 Services: exclusions

(1)25Schedule 2 contains—

(a)a list of services specified in the first column of the table in Part 1 of that
Schedule, to which section 18 (mutual recognition) does not apply;

(b)a list of services specified in the first column of the table in Part 2 of that
Schedule, to which sections 19 and 20 (non-discrimination) do not
30apply;

(c)a list of authorisation requirements in Part 3 of that Schedule, to which
section 18 does not apply;

(d)a list of regulatory requirements in Part 3 of that Schedule, to which
sections 19 and 20 do not apply.

(2)35The Secretary of State must keep Schedule 2 under review, and may by
regulations—

(a)remove entries in the table in Part 1 or Part 2 of that Schedule or entries
in the lists in Part 3 or Part 3 of that Schedule;

(b)amend entries in those tables or lists;

(c)40add entries to those tables or lists.

(3)Regulations under subsection (2) are subject to affirmative resolution
procedure.

(4)But, during the period of three months beginning with the day this section
comes into force, the Secretary of State may make regulations under subsection
45(2) subject instead to made affirmative resolution procedure.

18 Services: mutual recognition of authorisation requirements

(1)An authorisation requirement in relation to the provision of services in one
part of the United Kingdom does not apply to a person who is authorised to
provide those services in another part of the United Kingdom.

(2)5A person is authorised to provide services in a part of the United Kingdom if
they have the permission of a regulator that exercises regulatory functions in
relation to the whole of that part to carry on a business of providing those
services in that part.

(3)But, for the purposes of this section, a person is not to be treated as authorised
10to provide services in a part of the United Kingdom where the permission to
provide those services only relates to their provision in relation to particular
premises or to a particular place or piece of infrastructure.

(4)Subsection (1) does not apply to an authorisation requirement to the extent it
can reasonably be justified as a response to a public health emergency.

19 15Direct discrimination in the regulation of services

(1)A regulatory requirement that directly discriminates against a service provider
is of no effect in relation to that service provider.

(2)A regulatory requirement directly discriminates against a service provider if—

(a)it has, or would have, the effect of treating the service provider less
20favourably than other service providers, and

(b)the reason for that less favourable treatment is the service provider’s
relevant connection, or lack of relevant connection, to a part of the
United Kingdom.

(3)A regulatory requirement is not to be taken to directly discriminate against a
25service provider to the extent the requirement can reasonably be justified as a
response to a public health emergency.

(4)For the purposes of this section, and section 20, a service provider has a
relevant connection to a part of the United Kingdom if the service provider—

(a)has a registered office, place of business or residence in that part,

(b)30provides services from that part, or

(c)has members, partners, officers or staff with a registered office, place of
business, or residence in that part.

20 Indirect discrimination in the regulation of services

(1)A regulatory requirement that indirectly discriminates against a service
35provider is of no effect in relation to that service provider.

(2)A regulatory requirement indirectly discriminates against a service provider
if—

(a)it does not directly discriminate (within the meaning of section 19),

(b)it applies to, or in relation to, the service provider in a way that puts the
40service provider at a disadvantage in the part of the United Kingdom
in which the requirement applies,

(c)it has an adverse market effect, and

(d)it cannot reasonably be considered a necessary means of achieving a
legitimate aim.

(3)A service provider is put at a disadvantage in a part of the United Kingdom if
it is made in any way more difficult, or less attractive, to provide services in
that part than if the requirement did not apply.

(4)A requirement has an adverse market effect if, because it—

(a)5puts a service provider that provides services in a part of the United
Kingdom but does not have a relevant connection to that part at a
disadvantage (as well as putting other service providers who provide
those services in that part without a relevant connection (if there are
any) at a disadvantage), but

(b)10does not put at a disadvantage (at all or to the same extent) some or all
service providers that provide those services in that part and—

(i)do have a relevant connection to that part, but

(ii)do not have a relevant connection to another part of the United
Kingdom,

15it causes a significant adverse effect on competition in the market for those
services in the United Kingdom.

(5)The application of subsection (4) is to be determined with regard both to the
content of the requirement and to the way in which it operates, or is
administered, in practice (as a whole or in particular classes of case).

(6)20In this section “legitimate aim” means one, or a combination of any, of the
following aims—

(a)the protection of the life or health of humans, animals or plants;

(b)the protection of public safety or security;

(c)the efficient administration of justice.

(7)25The Secretary of State may by regulations amend subsection (6) so as to add,
vary or remove a legitimate aim.

(8)Regulations under subsection (7) are subject to affirmative resolution
procedure.

(9)The application of subsection (2)(d) is to be determined with regard, in
30particular, to—

(a)the effects of the requirement in all the circumstances, and

(b)the availability of alternative means of achieving the aim in question.

21 Interpretation of Part 2

(1)In this Part—

• 35“authorisation requirement” has the meaning given by section 16(3);

• “legislative requirement” means a requirement imposed by, or by virtue
  of, legislation;

• “public health emergency” means an event or a situation that is
  reasonably considered to pose an extraordinary threat to human health;

• 40“regulator” means a person exercising regulatory functions, and
  includes—

  (a)

  a Minister of the Crown,

  (b)

  the Scottish Ministers,

  (c)

  the Welsh Ministers, and

  (d)

  45a Northern Ireland department;

• “regulatory requirement” has the meaning given by section 16(4).

(2)If a function conferred by legislation may only be exercised in a way that would
impose a regulatory requirement in respect of which section 19(1) or 20(1)
applies, the function is to be treated as though it were a regulatory requirement
for the purposes of those sections (and ignoring section 16(5)).

(3)5Subsection (2) does not affect the continuation in force or the continuing effect
of a requirement of the sort described in section 16(5)(c) and not preserved by
section 16(6) (existing requirements).

(4)Any effect of sections 5, 19 or 20 (direct and indirect discrimination for goods
and services) is to be disregarded when considering whether a person is
10authorised to provide services in another part of the United Kingdom for the
purposes of section 18 (mutual recognition for services).

Part 3 UK market access: professional qualifications and regulation

22 Access to professions on grounds of qualifications or experience

(1)15Subsection (2) applies in relation to provision applying in a part of the United
Kingdom (“the relevant part”) that limits the ability to practise a profession in
that part to individuals who have certain qualifications or experience.

(2)A qualified UK resident (see section 23) is to be treated for the purposes of the
provision (and any related provision) as if the qualified UK resident had the
20qualifications or experience required to be able to practise the profession.

(3)Provision does not fall within subsection (1) by making the ability of an
individual to continue to practise a particular profession, having started to do
so on a fully qualified basis, subject to continuing requirements as to training,
learning or other forms of experience.

(4)25Subsections (1) and (2) are subject to sections 24 and 25.

23 Meaning of “qualified” UK resident

(1)A UK resident is “qualified” in relation to a profession for the purposes of
section 22(2) if, in any part of the United Kingdom other than the relevant part
(“the other part”), the resident is qualified (within the meaning of subsections
30(3) to (5)) to undertake the full range of corresponding activity.

(2)In this section—

(a)“corresponding activity” means activity that is the same as, or
substantially corresponds to, relevant professional activity;

(b)“the full range” of corresponding activity is a range of corresponding
35activity that substantially corresponds to the full range of relevant
professional activity;

(c)“relevant professional activity” means activity that, in the relevant part,
ordinarily comprises the practice of the profession in question.

(3)To the extent that—

(a)40corresponding activity is ordinarily undertaken by practitioners of a
particular profession in the other part, and

(b)provision applying in the other part limits the ability to practise that
profession to individuals who have certain qualifications or experience,

a UK resident is qualified to undertake the corresponding activity if the
resident has the qualifications or experience required to be able to practise the
profession in the other part.

(4)To the extent that—

(a)5the position is not as described in subsection (3)(a) and (b), and

(b)provision applying in the other part limits the ability to undertake
corresponding activity to individuals who have certain qualifications
or experience,

a UK resident is qualified to undertake the corresponding activity if the
10resident has the qualifications or experience required to do so in the other part.

(5)To the extent that the position is not as described in subsection (3)(a) and (b) or
(4)(b), any UK resident is qualified to undertake corresponding activity in the
other part.

(6)For the purposes of subsection (3)—

(a)15it does not matter that corresponding activity may also be undertaken
by individuals who are not practitioners of a profession;

(b)to the extent that corresponding activity is ordinarily undertaken by
practitioners of more than one profession regulated as mentioned in
subsection (3)(b), a UK resident is qualified in relation to that activity
20only if the resident has qualifications or experience required to be able
to practise whichever of those professions most closely corresponds to
the profession in the relevant part.

(7)For the purposes of subsections (3) and (4)—

(a)qualifications may be relied on only if they were obtained in the United
25Kingdom, and

(b)experience may be relied on only if it was obtained mainly in the United
Kingdom.

24 Exception from section 22 where individual assessment offered

(1)Section 22(2) does not apply in a case where the qualified UK resident—

(a)30is able to seek, or has sought, to be able to practise the profession in the
relevant part by way of a process that satisfies the requirements of this
section, and

(b)has not lawfully practised the profession in the relevant part at any
time before being able to seek that ability by way of that process.

(2)35The process must have the result that, if the regulatory body so decides on an
application by the qualified UK resident, the resident becomes able to practise
the profession—

(a)despite the limitation referred to in section 22(1), and

(b)without further assessment of the resident’s qualifications, experience,
40knowledge or skills (except in connection with the sort of provision
referred to in section 22(3)).

(3)The process must require the application to be dealt with in accordance with
the principles set out in subsection (4).

(4)The principles are that, in connection with the ability to practise a profession in
45the relevant part—

(a)qualifications or experience obtained in any other part of the United
Kingdom should have the same effect as qualifications or experience
obtained in the relevant part, to the extent that the former demonstrate
the like knowledge and skills to substantially the same standard as the
5latter;

(b)the applicant should be able to rely on any qualifications or experience
obtained in any other part of the United Kingdom in order to
demonstrate the necessary knowledge and skills, so far as those
qualifications or experience are reasonably capable of demonstrating
10them;

(c)to the extent that the applicant cannot, on application of the principles
set out in paragraphs (a) and (b), demonstrate the necessary knowledge
and skills to the satisfaction of the regulatory body, the applicant
should (subject to subsection (5)) have an opportunity to do so by way
15of a test or assessment the demands of which are proportionate to the
deficiency;

(d)if the applicant can, on application of the principles set out in
paragraphs (a) to (c), demonstrate the necessary knowledge and skills
to the satisfaction of the regulatory body, the regulatory body should
20decide as mentioned in subsection (2).

(5)The process may, without contravening the principle set out in subsection
(4)(c), allow the regulatory body in a case to which this subsection applies to
decline the application without the applicant first being offered a test or
assessment as described in that principle.

(6)25Subsection (5) applies if the test or assessment would (having regard to the
knowledge and skills demonstrated by the applicant in accordance with the
principles set out in subsection (4)(a) and (b)) be similarly demanding to
obtaining so much of the usual qualifications or experience as the applicant
lacks.

(7)30The process must require the regulatory body to inform the applicant of its
decision within a reasonable time from the receipt of the application.

(8)Subsection (1) ceases to apply in the case of an applicant if, before the
regulatory body informs the applicant of its decision—

(a)the regulatory body accepts in writing, or

(b)35a court determines in legal proceedings,

that the regulatory body has failed to satisfy the requirement referred to in
subsection (7).

(9)A regulatory body that administers a process to which this section applies
must publish information about—

(a)40the procedure for making an application within the process, and

(b)the way in which the principles set out in subsection (4) will be given
effect in the context of the profession concerned.

But a failure to comply with this duty does not mean that the process does not
comply with the requirements of this section.

(10)45In this section—

• “the usual qualifications or experience” means the qualifications or
  experience that are, under the provision that falls within section 22(1),
  required in order to be able to practise the profession concerned in the
  relevant part;

• “the necessary knowledge and skills” means the knowledge and skills
  that are demonstrated by the usual qualifications or experience;

• “regulatory body” means—

  (a)

  the person, if any, responsible for determining whether a
  5person has the qualifications or experience referred to in section
  22(1), or

  (b)

  if there is no such person, the responsible administration;

• “responsible administration” means—

  (a)

  if the relevant part is Scotland and the provision that falls within
  10section 22(1)—

  (i)

  would be within the legislative competence of the
  Scottish Parliament if contained in an Act of that
  Parliament, or

  (ii)

  is provision which could be made in subordinate
  15legislation by the Scottish Ministers, the First Minister or
  the Lord Advocate acting alone,

  the Scottish Ministers;

  (b)

  if the relevant part is Wales and the provision that falls within
  section 22(1)—

  (i)

  20would be within the legislative competence of Senedd
  Cymru if contained in an Act of Senedd Cymru
  (assuming that any consent by a Minister of the Crown
  were given), or

  (ii)

  is provision which could be made in subordinate
  25legislation by the Welsh Ministers acting alone,

  the Welsh Ministers;

  (c)

  if the relevant part is Northern Ireland and the provision that
  falls within section 22(1)—

  (i)

  would be within the legislative competence of the
  30Northern Ireland Assembly, and would not require the
  consent of the Secretary of State, if contained in an Act
  of that Assembly,

  (ii)

  is contained in, or was made under, Northern Ireland
  legislation, and would be within the legislative
  35competence of the Northern Ireland Assembly, and
  would require the consent of the Secretary of State, if
  contained in an Act of that Assembly, or

  (iii)

  is provision which could be made in subordinate
  legislation by the First Minister and deputy First
  40Minister in Northern Ireland acting jointly, a Northern
  Ireland Minister or a Northern Ireland department,

  a Northern Ireland department;

  (d)

  in any other case, the Secretary of State.

25 Other exceptions from section 22

(1)45Section 22(2) does not apply to existing provision (subject to subsection (3)).

(2)In subsection (1) “existing provision” means—

(a)provision that is in force on the date that this Act is passed, or

(b)provision that comes into force after that date so far as it is, in
substance, a re-enactment or replication of provision within paragraph
(a).

(3)Subsection (1) does not apply (and section 22(2) accordingly does apply) if,
5after the date on which this Act is passed, provision comes into force in a part
of the United Kingdom other than the relevant part that changes the
circumstances in which individuals are qualified in relation to the profession
concerned.

(4)In subsection (3)—

(a)10“relevant part” is to be read in accordance with section 22(1);

(b)“qualified” is to be read in accordance with section 23.

(5)Section 22(2) does not apply in relation to provision that limits the ability to
practise a legal profession.

(6)In subsection (5) “legal profession” means—

(a)15in relation to England or Wales, the profession of barrister, solicitor,
notary, chartered legal executive, costs lawyer, licensed conveyancer or
licensed CLC practitioner (see section 53 of the Courts and Legal
Services Act 1990);

(b)in relation to Scotland, the profession of advocate, solicitor, notary,
20conveyancing practitioner (see section 17 of the Law Reform
(Miscellaneous Provisions) (Scotland) Act 1990), executry practitioner
(see section 18 of that Act) or commercial attorney;

(c)in relation to Northern Ireland, the profession of barrister, solicitor or
notary.

26 25Professional regulation not within section 22: equal treatment

(1)This section applies in relation to provision that—

(a)is not of the sort described in section 22(1),

(b)makes the ability to practise a particular profession in a part of the
United Kingdom (“the relevant part”) subject to a requirement or
30restriction, and

(c)applies differently to individuals according to—

(i)where any qualifications or experience of an individual were
obtained, or

(ii)what qualifications or experience an individual has.

(2)35“Requirement or restriction” includes, for example, a requirement as to
registration, monitoring, insurance or continuing professional development,
or a restriction on the undertaking of particular activities in the course of
practising the profession.

(3)Subsection (4) applies to the extent that—

(a)40the differential application is within subsection (1)(c)(i), and

(b)because of that differential application, the provision has the effect of
imposing a more onerous requirement or restriction on an externally
qualified UK practitioner than it would have the effect of imposing on
a locally qualified practitioner.