United Kingdom Internal Market Bill (HL Bill 135)

Part 4 continued    

(10)In Schedule 14 to the Enterprise Act 2002 (disclosure of information: specified
functions) at the appropriate place insert—

“Part 4 of the United Kingdom Internal Market Act 2020.”.

39 Enforcement

(1)5Where the CMA considers that a person has, without reasonable excuse, failed
to comply with any requirement of a notice under section 38, it may impose a
penalty in accordance with section 40.

(2)Where the CMA considers that a person has intentionally obstructed or
delayed any person in the exercise of the power under section 38(7), it may
10impose a penalty in accordance with section 40.

(3)In deciding whether and, if so, how to proceed under subsection (1) or (2), the
CMA must have regard to the statement of policy which was most recently
published under subsection (6) or (8) at the time the failure or (as the case may
be) the obstruction or delay concerned occurred.

(4)15Subject to subsection (5), no penalty may be imposed by virtue of subsection
(1) or (2) after the end of the period of 4 weeks beginning with—

(a)where the penalty is imposed in connection with the exercise of the
CMA’s functions under section 31—

(i)if that exercise involves the publication of a report in accordance
20with subsection (3) of that section, the day on which the report
is published,

(ii)if that exercise involves arranging for a copy of a report to be
laid in accordance with subsection (7) of that section, the day on
which the laying mentioned in paragraphs (a) to (d) of that
25subsection is fully accomplished, or

(iii)in the case of a review under subsection (1) of that section which
does not involve the publication or laying of a report as
mentioned in sub-paragraph (i) or (ii), the day on which the
review is concluded,

(b)30where the penalty is imposed in connection with the exercise of the
CMA’s functions under section 32, the day on which the advice or
report is given or provided in accordance with subsection (1) of that
section,

(c)where the penalty is imposed in connection with the exercise of the
35CMA’s functions under section 33, the day on which the report is
provided in accordance with subsection (1) of that section,

(d)where the penalty is imposed in connection with the exercise of the
CMA’s functions under section 34, the day on which the report is
provided in accordance with subsection (1) of that section, or

(e)40where the penalty is imposed in connection with the exercise of the
CMA’s functions under section 5 of the Enterprise Act 2002 in the
circumstances mentioned in section 38(1)(b), the day on which the
CMA finally concludes the carrying out of those functions.

(5)Subsection (4) does not apply in relation to any variation or substitution of the
45penalty which is permitted by virtue of section 40(11).

(6)The CMA must prepare and publish a statement of policy in relation to the
enforcement of notices given under section 38.

(7)The statement must include a statement about the considerations relevant to
the determination of the nature and amount of any penalty imposed under
subsection (1) or (2).

(8)The CMA may revise its statement of policy under subsection (6) and, where it
5does so, it must publish the revised statement.

(9)The CMA must consult such persons as it considers appropriate when
preparing or revising its statement of policy under subsection (6) or (8).

(10)Any statement or revised statement published by the CMA under this section
is to be published in such manner as the CMA considers appropriate.

40 10Penalties

(1)A penalty imposed under section 39(1) or (2) may be of such amount as the
CMA considers appropriate.

(2)The amount of a penalty imposed under section 39(1) may be—

(a)a fixed amount,

(b)15an amount calculated by reference to a daily rate, or

(c)a combination of a fixed amount and an amount calculated by reference
to a daily rate.

(3)The amount of a penalty imposed under section 39(2) must be a fixed amount.

(4)A penalty imposed under section 39(1) may not exceed—

(a)20in the case of a fixed amount, such amount as the Secretary of State may
specify in regulations,

(b)in the case of an amount calculated by reference to a daily rate, such
amount per day as the Secretary of State may so specify, and

(c)in the case of a fixed amount and an amount calculated by reference to
25a daily rate, such fixed amount and such amount per day as the
Secretary of State may so specify.

(5)A penalty imposed under section 39(2) may not exceed such amount as the
Secretary of State may specify in regulations.

(6)Regulations under subsection (4) or (5) may not specify—

(a)30in the case of a fixed amount, an amount exceeding £30,000,

(b)in the case of an amount calculated by reference to a daily rate, an
amount per day exceeding £15,000, and

(c)in the case of a fixed amount and an amount calculated by reference to
a daily rate, a fixed amount exceeding £30,000 and an amount per day
35exceeding £15,000.

(7)Regulations under subsection (4) or (5) are subject to negative resolution
procedure.

(8)Before making regulations under subsection (4) or (5) the Secretary of State
must consult—

(a)40the CMA, and

(b)such other persons as the Secretary of State considers appropriate.

(9)In imposing a penalty by reference to a daily rate—

(a)no account is to be taken of any days before the service on the person
concerned of notice of the penalty under section 112 of the Enterprise
Act 2002 (as applied by subsection (11)), and

(b)unless the CMA determines an earlier date (whether before or after the
5penalty is imposed), the amount payable ceases to accumulate at the
beginning of the earliest of the days mentioned in subsection (10).

(10)The days mentioned in subsection (9) are—

(a)the day on which the requirement of the notice concerned under section
38 is satisfied;

(b)10the day referred to in paragraph (a)(i), (a)(ii), or (a)(iii), (b), (c), (d) or (e)
(as the case may be) of section 39(4).

(11)Sections 112 to 115 of the Enterprise Act 2002 (procedural requirements,
appeals etc in relation to penalties) apply in relation to a penalty imposed
under section 39(1) or (2) as they apply in relation to a penalty imposed under
15section 110(1) of that Act.

Interpretation

41 Interpretation of Part 4

(1)This section applies for the purposes of this Part.

(2)“The CMA” has the meaning given by section 28(10).

(3)20References to the “operation of the internal market in the United Kingdom” are
to be read as including a reference to aspects of its operation, for example its
operation in relation to a particular description of goods or services or in a
particular area or region of the United Kingdom.

(4)“Regulatory provision” has the meaning given by section 28(8).

(5)25“Relevant competence” means—

(a)in relation to the Scottish Ministers, Scottish devolved competence;

(b)in relation to the Welsh Ministers, Welsh devolved competence;

(c)in relation to a Northern Ireland department, Northern Ireland
devolved competence;

(d)30in relation to a the Secretary of State, reserved competence.

(6)“Relevant national authority” means any of the following—

(a)the Secretary of State;

(b)the Scottish Ministers;

(c)the Welsh Ministers;

(d)35a Northern Ireland department.

(7)“Scottish devolved competence”, “Welsh devolved competence”, “Northern
Ireland devolved competence” and “reserved competence” are to be
interpreted in accordance with subsections (8) to (11).

(8)A regulatory provision, so far as applying to Scotland—

(a)40is within Scottish devolved competence if it—

(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 legislation by
the Scottish Ministers, the First Minister or the Lord Advocate
acting alone;

(b)otherwise, is within reserved competence.

(9)5A regulatory provision, so far as applying to Wales—

(a)is within Welsh devolved competence if it—

(i)would 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)10is provision which could be made in subordinate legislation by
the Welsh Ministers acting alone;

(b)otherwise, is within reserved competence.

(10)A regulatory provision, so far as applying to Northern Ireland—

(a)is within Northern Ireland devolved competence if it—

(i)15would be within the legislative competence of the Northern
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 competence of
20the 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 Minister in Northern Ireland
25acting jointly, a Northern Ireland Minister or a Northern Ireland
department;

(b)otherwise, is within reserved competence.

(11)A regulatory provision, so far as applying to England, is within reserved
competence.

30Part 5 Northern Ireland Protocol

Northern Ireland's place in the UK internal market and customs territory

42 Northern Ireland’s place in the UK internal market and customs territory

(1)An appropriate authority must have special regard to the following matters
35when exercising any function for a relevant purpose—

(a)the need to maintain Northern Ireland’s integral place in the United
Kingdom’s internal market;

(b)the need to respect Northern Ireland’s place as part of the customs
territory of the United Kingdom; and

(c)40the need to facilitate the free flow of goods between Great Britain and
Northern Ireland with the aim of—

(i)streamlining trade between Great Britain and Northern Ireland,
and

(ii)maintaining and strengthening the integrity and smooth
45operation of the internal market in the United Kingdom.

(2)A function is exercised for “a relevant purpose” if it is exercised for—

(a)the purpose of—

(i)implementing, or

(ii)otherwise dealing with matters arising out of, or related to,

5the Northern Ireland Protocol,

(b)the purpose of enabling or facilitating a purpose described in
paragraph (a) to be achieved, or

(c)a purpose relating to movement of goods within the United Kingdom
(including movement that involves movement in a country or territory
10outside the United Kingdom).

(3)In this section “appropriate authority” means—

(a)a Minister of the Crown;

(b)the Scottish Ministers;

(c)the Welsh Ministers;

(d)15the First Minister and deputy First Minister in Northern Ireland acting
jointly, a Northern Ireland Minister or a Northern Ireland department;

(e)any other person who exercises functions of a public nature.

Unfettered access

43 Unfettered access to UK internal market for Northern Ireland goods

(1)20On or after IP completion day, an appropriate authority must not exercise any
function in a way that would—

(a)result in an existing kind of NI-GB check, control or administrative
process being used—

(i)for the first time, or

(ii)25for a new purpose or to a new extent; or

(b)result in a new kind of NI-GB check, control or administrative
process—

(i)being introduced, or

(ii)being used.

(2)30This section does not prevent the exercise of a function if the exercise—

(a)is necessary for the administration of arrangements which have the
purpose of facilitating access for qualifying Northern Ireland goods to
the internal market in the United Kingdom,

(b)is necessary to secure compliance with, or to give effect to, any
35international obligation or arrangement to which the United Kingdom
is a party (whenever the United Kingdom becomes a party to it),

(c)is necessary where goods have been declared for a voluntary customs
procedure,

(d)is necessary for the purposes of VAT or excise duty in consequence of
40the Northern Ireland Protocol, or

(e)is necessary for the purpose of dealing with a threat to biosecurity in
Great Britain.

(3)Subsection (2)(b)—

(a)authorises (in particular) the exercise of a function in relation to a check,
45control or administrative process if the exercise is necessary to secure

compliance with, or to give effect to, Article 6(1) of the Northern Ireland
Protocol;

(b)but does not authorise the exercise of a function in relation to any
international obligation or arrangement if or to the extent that that
5obligation or arrangement has ceased to have effect by virtue of
regulations made under this Act or by virtue of section 47.

(4)For the purposes of this section the exercise of a function “is necessary for the
purposes of VAT or excise duty in consequence of the Northern Ireland
Protocol” if—

(a)10the appropriate authority exercising the functions is the Treasury, the
Commissioners for Her Majesty’s Revenue and Customs, or the
Director of Border Revenue,

(b)the function is exercised for the purposes of VAT or excise duty
(including for the purposes of preventing double taxation, partial or
15complete non-taxation, or evasion), and

(c)the appropriate authority exercising the function considers that the
exercise is necessary in consequence of the Northern Ireland Protocol.

(5)For the purposes of this section the exercise of a function “is necessary for the
purpose of dealing with a threat to biosecurity in Great Britain” if the exercise
20of the function consists of—

(a)the making, or operation, of legislation which satisfies the conditions
set out in paragraph 1 of Schedule 1, or

(b)any other activity which satisfies the conditions set out in paragraph
1(2), (3), (4) and (6) of Schedule 1 (reading any reference in those
25conditions to “legislation” as a reference to the activity in question).

(6)In determining for the purposes of subsection (5)(b) whether the condition in
paragraph 1(3) of Schedule 1 is met, a pest or disease is to be taken to be present
in Northern Ireland if it is, or may be, present in qualifying Northern Ireland
goods (including when the goods are in Great Britain).

(7)30For the purposes of this section—

(a)an “NI-GB” check, control or administrative process is one applicable
to the direct movement of qualifying Northern Ireland goods from
Northern Ireland to Great Britain;

(b)an “existing kind” of NI-GB check, control or administrative process is
35one that—

(i)was in use or available for use immediately before IP
completion day, or

(ii)is the same as, or substantially similar to, one that was in use or
available for use immediately before IP completion day (the
40“predecessor”);

(c)a “new kind of” NI-GB check, control or administrative process is one
that is not of an existing kind;

(d)where an NI-GB check, control or administrative process is of an
existing kind because of paragraph (b)(ii), that check, control or
45administrative process and the predecessor are to be treated as a single
function for the purpose of determining whether subsection (1)(a)
prevents its exercise;

(e)the purpose for which, or extent to which, a function would be used is
“new” if the function has not been used for that purpose, or to that
50extent, before IP completion day.

(8)A Minister of the Crown may by regulations amend this section so that it
applies to a type of movement instead of, or in addition to, a type of movement
to which it already applies (whether that type of movement is direct movement
or another type of movement provided for by regulations under this
5subsection).

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

(10)In this section—

• “appropriate authority” means—

  (a)

  10a Minister of the Crown;

  (b)

  the Scottish Ministers;

  (c)

  the Welsh Ministers;

  (d)

  the First Minister and deputy First Minister in Northern Ireland
  acting jointly, a Northern Ireland Minister or a Northern Ireland
  15department;

  (e)

  any other person who exercises functions of a public nature;

• “declared for a voluntary customs procedure” means declared, in
  accordance with the Taxation (Cross-border Trade) Act 2018, for a
  special Customs procedure or temporary storage;

• 20“direct movement” means movement that does not involve movement by
  land in a country or territory other than the United Kingdom;

• “excise duty” means any excise duty under—

  (a)

  the Alcoholic Liquor Duties Act 1979,

  (b)

  the Hydrocarbon Oil Duties Act 1979, or

  (c)

  25the Tobacco Products Duty Act 1979;

• “qualifying Northern Ireland goods”—

  (a)

  has the same meaning that it has in the European Union
  (Withdrawal) Act 2018, including any meaning defined for the
  purposes of that Act from time to time by regulations made
  30under the power conferred by section 8C(6) of that Act (and, if
  those regulations provide for different meanings to be defined
  for different purposes of that Act, regulations under section
  8C(6) may make provision about the meaning or meanings that
  are to apply for the purposes of this section);

  (b)

  35is to be taken to have had, immediately before IP completion
  day, the same meaning that it has (under paragraph (a)) at the
  time when this section comes into force.

44 Power to disapply or modify export declarations and other exit procedures

(1)A Minister of the Crown may by regulations make provision about the
40application of exit procedures to goods, or a description of goods, when
moving from Northern Ireland to Great Britain.

(2)That includes any exit procedure that is applicable by virtue of the Northern
Ireland Protocol or otherwise.

(3)The following matters (in particular) may be taken into account when a
45Minister of the Crown is exercising the power conferred by subsection (1)—

(a)the need for Northern Ireland goods to enjoy unfettered access to the
rest of the United Kingdom, and

(b)the need to maintain and strengthen the integrity and smooth operation
of the internal market in the United Kingdom.

(4)Regulations under subsection (1) may (among other things) make provision—

(a)disapplying, or modifying the application of, an exit procedure;

(b)5stating or restating what an exit procedure is, or is not, applicable to.

(5)Such provision may include provision for rights, powers, liabilities,
obligations, restrictions, remedies and procedures that would otherwise apply,
as a result of relevant international or domestic law, not to be recognised,
available, enforced, allowed or followed.

(6)10Regulations under subsection (1)—

(a)made during the initial period are subject to made affirmative
procedure;

(b)made after the end of the initial period are subject to affirmative
resolution procedure.

(7)15In this section—

• “exit procedure” means a procedure or other formality (including any
  supervision, restriction or control) applicable to goods moving from
  Northern Ireland (whether it is applicable before or after goods move
  from Northern Ireland, and whether it is applicable in Northern Ireland
  20or elsewhere);

• “initial period” means the period of six months beginning with the day on
  which this section comes into force;

• “relevant international or domestic law” has the meaning given by section
  47(8).

25Notifications under Article 10 of the Northern Ireland Protocol

45 Regulations about Article 10 of the Northern Ireland Protocol

(1)The Secretary of State may by regulations make provision for the purposes of
domestic law in connection with Article 10 of the Northern Ireland Protocol
(State aid).

(2)30Regulations under subsection (1) may (among other things) make provision—

(a)about the interpretation of Article 10;

(b)disapplying, or modifying the effect of, Article 10.

(3)Such provision may, for example, include provision for—

(a)aid not to be recovered except in accordance with the regulations;

(b)35persons to have no right of action of any sort or of a sort described in
the regulations in respect of aid except in accordance with the
regulations;

(c)the circumstances in which Article 10 is or is not to apply in relation
to—

(i)40aid granted to persons in respect of activities outside Northern
Ireland;

(ii)benefits which a person may derive from aid granted to or in
respect of another person;

(d)Article 10 not to be interpreted—

(i)45in accordance with case law of the European Court;

(ii)in accordance with any legislative act of the EU, including
regulations, directives and decisions, that would otherwise be
binding on the United Kingdom;

(iii)otherwise than in accordance with the regulations;

(e)5rights, powers, liabilities, obligations, restrictions, remedies and
procedures that would otherwise apply in relation to aid, as a result of
relevant international or domestic law, not to be recognised, available,
enforced, allowed or followed.

(4)Regulations under subsection (1)—

(a)10made during the initial period are subject to made affirmative
procedure;

(b)made after the end of the initial period are subject to affirmative
resolution procedure.

(5)In this section—

• 15“aid” means aid to which Article 107(1) of the Treaty on the Functioning
  of the European Union applies;

• “initial period” means the period of six months beginning with the day on
  which this section comes into force;

• “relevant international or domestic law” has the meaning given by section
  2047(8).

(6)In this section, references to “Article 10” of the Northern Ireland Protocol
include the provisions of EU law listed in Annex 5 to the Northern Ireland
Protocol and any other provisions or rules of law, including provisions of the
EU withdrawal agreement, that relate to Article 10 or Annex 5.

46 25Notification of State aid for the purposes of the Northern Ireland Protocol

(1)No public authority apart from the Secretary of State may comply with a
requirement of a provision of EU law applied to the United Kingdom by
Article 10 of the Northern Ireland Protocol (State aid) to give the European
Commission a notification or information relating to aid.

(2)30In subsection (1), “public authority” means a person who exercises functions of
a public nature.

Certain provisions to have effect notwithstanding inconsistency or incompatibility with
international or other domestic law

47 Further provision related to sections 44 and 45 etc

(1)35The following have effect notwithstanding any relevant international or
domestic law with which they may be incompatible or inconsistent—

(a)section 44;

(b)any regulations made under section 44(1);

(c)section 45;

(d)40any regulations made under section 45(1);

(e)this section;

(f)any other provision of this Act so far as relating to the provisions in
paragraphs (a) to (e).

(2)Accordingly (among other things)—

(a)regulations under section 44(1) or 45(1) are not to be regarded as
unlawful on the grounds of any incompatibility or inconsistency with
relevant international or domestic law (and section 6(1) of the Human
Rights Act 1998 does not apply in relation to the making of regulations
5under section 44(1) or 45(1));

(b)all rights, powers, liabilities, obligations, restrictions, remedies and
procedures which are, in accordance with section 7A of the European
Union (Withdrawal) Act 2018, to be recognised and available in
domestic law, and enforced, allowed and followed accordingly, cease
10to be recognised and available in domestic law, or enforced, allowed
and followed, so far and for as long as they are incompatible or
inconsistent with a provision mentioned in paragraphs (a) to (f) of
subsection (1);

(c)section 7C of that Act ceases to have effect so far and for as long as it
15would require any question as to the validity, meaning or effect of any
relevant separation agreement law to be decided in a way which is
incompatible or inconsistent with a provision mentioned in paragraphs
(a) to (f) of subsection (1);

(d)any other provision or rule of domestic law that is relevant
20international or domestic law ceases to have effect so far and for as long
as it is incompatible or inconsistent with a provision mentioned in
paragraphs (a) to (f) of subsection (1).

(3)Regulations under section 44(1) or 45(1) are to be treated for the purposes of the
Human Rights Act 1998 as if they were within the definition of “primary
25legislation” in section 21(1) of that Act.

(4)No court or tribunal may entertain any proceedings for questioning the
validity or lawfulness of regulations under section 44(1) or 45(1) other than
proceedings on a relevant claim or application.

(5)The period mentioned in each of the following provisions (standard time limits
30for seeking judicial review), or any corresponding successor provision, may
not be extended under any circumstances in relation to a relevant claim or
application—

(a)rule 54.5(1)(b) of the Civil Procedure Rules in relation to England and
Wales;

(b)35section 27A(1)(a) of the Court of Session Act 1988 in relation to
Scotland;

(c)rule 4(1) of Order 53 of the Rules of the Court of Judicature (Northern
Ireland) 1980 (S.R. (N.I.) 1980 No. 346) in relation to Northern Ireland.

(6)The jurisdiction and powers of a court or tribunal in relation to a relevant claim
40or application are subject to subsections (1) and (2).

(7)In section 7A of the European Union (Withdrawal) Act 2018, in subsection (5)—

(a)omit the “and” at the end of paragraph (e);

(b)at the end of the subsection insert “, and

(g)the provisions mentioned in paragraphs (a) to (f) of
45section 47(1) of the United Kingdom Internal Market Act
2020 (provisions to which this section is subject).”

(8)In this section—

• “relevant claim or application” means—

  (a)

  a claim for judicial review in relation to England and Wales,