Northern Ireland Protocol Bill (HL Bill 52)

Introduction

1 Overview of main provisions

This Act—

(a)provides that certain specified provision of the Northern Ireland
5Protocol does not have effect in the United Kingdom;

(b)gives Ministers of the Crown powers to provide that other provision of
the Northern Ireland Protocol does not have effect in the United
Kingdom;

(c)provides that enactments, including the Union with Ireland Act 1800
10and the Act of Union (Ireland) 1800, are not to be affected by provision
of the Northern Ireland Protocol that does not have effect in the United
Kingdom;

(d)gives Ministers of the Crown powers to make new law in connection
with the Northern Ireland Protocol (including where provision of the
15Protocol does not have effect in the United Kingdom).

Limitation of effect of Protocol etc

2 Limitation of general implementation of the Northern Ireland Protocol

(1)Section 7A(2) of the European Union (Withdrawal) Act 2018 (effect of law
relating to the EU withdrawal agreement) does not apply to—

(a)20any rights, powers, liabilities, obligations or restrictions from time to
time created or arising by or under excluded provision of—

(i)the Northern Ireland Protocol, or

(ii)any other part of the EU withdrawal agreement, or

(b)any remedies or procedures from time to time provided for by or under
excluded provision of—

(i)5the Northern Ireland Protocol, or

(ii)any other part of the EU withdrawal agreement.

(2)Accordingly—

(a)the rights, powers, liabilities, obligations, restrictions, remedies and
procedures concerned are not to be—

(i)10recognised or available in domestic law, or

(ii)enforced, allowed or followed accordingly; and

(b)no enactment, whenever passed or made, is to be read or is to have
effect subject to section 7A(2) of that Act so far as those rights, powers,
liabilities, obligations, restrictions, remedies and procedures are
15concerned.

(3)In section 7A of the European Union (Withdrawal) Act 2018—

(a)after subsection (3) insert—

“(3A)This section is subject to the Northern Ireland Protocol Act 2022
(limitation of effect of the Northern Ireland Protocol).”;

(b)20in subsection (5)—

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

(ii)at the end of paragraph (f) insert “, and

(g)regulations made under the Northern Ireland
Protocol Act 2022 (regulations etc. relating to the
25subject-matter of the Protocol which take
priority over this section so far as they are
incompatible with it).”

3 Other limitations in interpretation of law

(1)Section 7C of the European Union (Withdrawal) Act 2018 (interpretation of
30relevant separation agreement law) does not apply so far as it would require
any question as to the validity, meaning or effect of any relevant separation
agreement law (including this Act and any regulations made under it) to be
decided in a way which is incompatible with—

(a)any provision made by or under this Act, or

(b)35any conduct under section 18(1).

(2)In section 7C of the European Union (Withdrawal) Act 2018 (interpretation of
relevant separation agreement law), after subsection (2), insert—

“(2A)But also see the Northern Ireland Protocol Act 2022 (under which this
section does not apply so far as it would require any question as to the
40validity, meaning or effect of any relevant separation agreement law to
be decided in a way which is incompatible with that Act or regulations
or conduct under it).”

Goods: movement and customs

4 Movement of goods (including customs): excluded Protocol provision

(1)The first and second subparagraphs of Article 5(1), and Article 5(2), of the
Northern Ireland Protocol (no customs duties on goods moved to Northern
5Ireland, unless they are at risk of subsequently being moved to the EU) are
excluded provision.

(2)The following provision of the Northern Ireland Protocol is excluded provision
so far as it relates to qualifying movements of UK or non-EU destined goods—

(a)Article 5(3) (customs legislation applicable to and in the United
10Kingdom in respect of Northern Ireland);

(b)Article 5(4) and Annex 2 (provisions of EU law that are applicable to
and in the United Kingdom in respect of Northern Ireland).

(3)A Minister of the Crown may, by regulations, make provision for subsection
(2) to apply to prescribed descriptions of qualifying movements of UK or non-
15EU destined goods.

(4)A prescribed description of qualifying movements of UK or non-EU destined
goods may (in particular) relate to any of the following matters—

(a)the purpose for which the goods are being moved (including whether
the goods are being moved for commercial or non-commercial
20purposes);

(b)the manner in which the goods are being moved;

(c)the person or service being used to move the goods;

(d)whether or not the movement is a direct movement from one place to
another;

(e)25the place where the goods are being moved from or to;

(f)the place where the goods are destined to remain or move to after a
qualifying movement;

(g)the nature of the goods.

(5)A Minister of the Crown may, by regulations, make provision about the
30meaning of “UK or non-EU destined” in this Act; and any such regulations
may, in particular—

(a)provide that goods are UK or non-EU destined if prescribed conditions
or other criteria are met, including where a trader or other person
registered in accordance with a prescribed scheme states in accordance
35with the scheme that the goods are UK or non-EU destined;

(b)provide for goods to be treated as UK or non-EU destined;

(c)provide for the question of whether goods are UK or non-EU destined
to be determined by reference to circumstances after a qualifying
movement of the goods.

(6)40In this section—

• “qualifying movement” means—

  (a)

  movement to Northern Ireland from—

  (i)

  Great Britain,

  (ii)

  the Isle of Man,

  (iii)

  45any of the Channel Islands,

  (iv)

  any other place that is outside the EU;

  Northern Ireland Protocol BillPage 4

  (b)

  in the case of goods that originate from the sea, movement of the
  goods from the sea to a port or other place in Northern Ireland;

  (c)

  movement from Northern Ireland to—

  (i)

  Great Britain,

  (ii)

  5the Isle of Man,

  (iii)

  any of the Channel Islands, or

  (iv)

  any other place that is outside the EU; or

  (d)

  movement within the United Kingdom;

• “sea” means—

  (a)

  10the territorial sea, or exclusive economic zone, of the United
  Kingdom or any other country or territory, and

  (b)

  the high seas.

5 Movement of goods : new law about matters other than customs

(1)A Minister of the Crown may, by regulations, make any provision which the
15Minister considers appropriate in connection with any provision of the
Northern Ireland Protocol to which section 4 relates.

(2)But no provision about customs matters may be made under subsection (1) (see
instead section 6).

(3)Regulations under this section may, in particular—

(a)20provide for checks, controls and administrative processes (whether
applicable before or after a movement of goods), including powers of
search, examination and entry;

(b)restrict or prohibit the movement of UK or non-EU destined goods into
the EU;

(c)25make provision about the treatment of goods which cease to be, or
become, UK or non-EU destined goods.

6 Customs matters: new law

(1)The Treasury or HMRC may, by regulations, make any provision about
customs matters which they consider appropriate in connection with the
30Northern Ireland Protocol.

(2)Regulations under this section may, in particular—

(a)impose or vary the incidence of any customs duty;

(b)provide for checks, controls and administrative processes (whether
applicable before or after a movement of goods), including powers of
35search, examination and entry;

(c)restrict or prohibit the movement of UK or non-EU destined goods into
the EU;

(d)make provision about the treatment of goods which cease to be, or
become, UK or non-EU destined goods.

Regulation of goods

7 Regulation of goods: option to choose between dual routes

(1)This section allows for the option to choose compliance with a UK regulatory
route or the EU regulatory route (or both) as respects regulated classes of goods
5(which include manufactured goods, medicines and agri-food).

(2)As respects a regulated class of goods—

(a)a UK regulatory route,

(b)the EU regulatory route, or

(c)both of those regulatory routes,

10must be complied with in relation to Northern Ireland; and it is for the person
complying to choose which regulatory route or routes are to be complied with.

(3)For the purposes of this section a class of goods is “regulated” if any provision
of Annex 2 to the Northern Ireland Protocol (provisions of EU law that are
applicable to and in the United Kingdom in respect of Northern Ireland)
15applies to regulation of goods of that class.

(4)In this section, as respects a regulated class of goods—

(a)“UK regulatory route” means domestic law that applies to regulation of
that class of goods;

(b)“EU regulatory route” means relevant separation agreement law that
20applies to regulation of that class of goods.

8 Regulation of goods: excluded Protocol provision

Article 5(4) of, and Annex 2 to, the Northern Ireland Protocol (provisions of EU
law that are applicable to and in the United Kingdom in respect of Northern
Ireland) is excluded provision so far as it prevents section 7 from having effect.

9 25Regulation of goods: new law

(1)A Minister of the Crown may, by regulations, make any provision about
regulation of goods which the Minister considers appropriate in connection
with the Northern Ireland Protocol.

(2)The regulations may, in particular—

(a)30make any provision which the Minister of the Crown considers
appropriate in connection with a UK regulatory route being available
in accordance with section 7(2)(a) or (c) (including provision modifying
that UK regulatory route or the EU regulatory route);

(b)amend section 7 or 8.

10 35Meaning of “regulation of goods”

(1)References in this Act to regulation of goods are references to regulation of—

(a)making goods available on the market,

(b)putting goods into service,

(c)the production of goods (whether by manufacture or any other
40process), and

(d)use and import of goods;

and the references include any matter that is relevant to regulation of goods,
which may include matters that occur before or after goods are made available
on the market, put into service or produced.

(2)Those matters may include—

(a)5placing on the market, supply, marketing and sale;

(b)advertising;

(c)dealing with or possession of goods (including after they have been
placed on the market or put into service);

(d)provision of information;

(e)10packaging;

(f)application of marks or markings (including to packaging);

(g)licensing (including licensing of persons);

(h)notifications;

(i)testing, trials, inspection and conformity assessment;

(j)15transport or storage;

(k)market surveillance;

(l)compliance and enforcement.

(3)In the case of making goods available on the market or putting goods into
service, those matters may also include production of goods (whether by
20manufacture or any other process).

(4)A Minister of the Crown may, by regulations, make provision about the
meaning of references in this Act to regulation of goods (including provision
that changes the effect of any other provision of this section, whether by
amending it or otherwise).

11 25Regulation of goods: supplementary provision

(1)A Minister of the Crown may, by regulations—

(a)provide for section 7 to apply in relation to—

(i)regulated classes of goods that are prescribed;

(ii)regulatory routes that are prescribed;

(b)30provide for exceptions from the application of section 7;

(c)modify the effect which section 7(2) has as respects a regulated class of
goods to which it applies.

(2)A modification in regulations under subsection (1)(c) may relate to—

(a)all or some of a regulatory route;

(b)35all or some of the regulated class of goods.

(3)In this section “regulatory route” means—

(a)a UK regulatory route (within the meaning of section 7), or

(b)the EU regulatory route (within the meaning of section 7).

Other excluded Protocol provision

12 40Subsidy control

(1)Article 10 of, and Annexes 5 and 6 to, the Northern Ireland Protocol (state aid)
are excluded provision.

(2)The Subsidy Control Act 2022 is amended as follows—

(a)in section 42(8) (meaning of minimal assistance etc), for paragraph (d)
substitute—

“(d)under any of the Regulations mentioned in paragraph
5(c) by virtue of the Northern Ireland Protocol after IP
completion day and before the coming into force of
section 12(2) of the Northern Ireland Protocol Act 2022,
or”;

(b)in section 48(3) (disapplication of subsidy controls), omit paragraph (a).

(3)10A Minister of the Crown may, by regulations, make any provision which the
Minister considers appropriate in connection with any provision of the
Northern Ireland Protocol to which this section relates.

13 Implementation, application, supervision and enforcement of the Protocol

(1)Any provision of the Northern Ireland Protocol, or of any other part of the EU
15withdrawal agreement, is excluded provision so far as it confers jurisdiction on
the European Court in relation to—

(a)the Northern Ireland Protocol, or

(b)related provision of the EU withdrawal agreement,

(whether the jurisdiction relates to excluded provision or any other matter).

(2)20The following provision of Article 12 of the Northern Ireland Protocol is
excluded provision—

(a)paragraph 2 (presence and powers of EU representatives etc);

(b)paragraph 3 (practical working arrangements relating to the exercise of
rights of EU representatives).

(3)25Other provision relating to the implementation, application, supervision and
enforcement of the Protocol is excluded under section 14.

(4)A Minister of the Crown may, by regulations, make any provision which the
Minister considers appropriate in connection with any provision of the
Northern Ireland Protocol to which this section relates.

(5)30Regulations under subsection (4) may, in particular, make provision about
arrangements with the EU relating to the operation of the Northern Ireland
Protocol, including provision about—

(a)supervision of its operation, or

(b)information sharing,

35under such arrangements.

14 Provision of the Protocol etc applying to other exclusions

(1)Any provision of—

(a)the Northern Ireland Protocol, or

(b)any other part of the EU withdrawal agreement,

40is excluded provision so far as it applies in relation to any other excluded
provision (whether of the Northern Ireland Protocol or any other part of the EU
withdrawal agreement).

(2)The provision to which this section applies includes—

(a)Article 12 of the Northern Ireland Protocol (implementation,
application, supervision and enforcement), apart from paragraphs 2, 3
and 4;

(b)Article 13 of the Northern Ireland Protocol (common provisions);

(c)5Article 4 of the EU withdrawal agreement (methods and principles
relating to the effect, the implementation and the application of the
agreement);

(d)Article 6 of the EU withdrawal agreement (references to EU law);

(e)Articles 170 to 181 of the EU withdrawal agreement (resolution of
10disputes by the arbitration panel);

(f)provision of any Article of the Northern Ireland Protocol so far as it
applies in relation to provision of an Annex to the Protocol that is
excluded provision.

(3)Accordingly, the matters to which this section applies include—

(a)15the responsibility of the authorities of the United Kingdom for
implementing and applying provisions of EU law;

(b)the requirement for provisions of the Northern Ireland Protocol and the
other parts of the EU withdrawal agreement to be interpreted and
applied in accordance with the methods and general principles of EU
20law and in conformity with the relevant case law of the European
Court.

(4)A Minister of the Crown may, by regulations, make any provision which the
Minister considers appropriate in connection with any provision of the
Northern Ireland Protocol and other parts of the EU withdrawal agreement to
25which this section relates.

Excluded Protocol provision: changes & exceptions

15 Changes to, and exceptions from, excluded provision

(1)In this section “permitted purposes” means—

(a)safeguarding social or economic stability in Northern Ireland;

(b)30ensuring the effective flow of trade between—

(i)Northern Ireland and another part of the United Kingdom, or

(ii)a part of the United Kingdom and anywhere outside the United
Kingdom;

(c)safeguarding the territorial or constitutional integrity of the United
35Kingdom;

(d)safeguarding the functioning of the Belfast Agreement;

(e)safeguarding animal, plant or human welfare or health;

(f)safeguarding biosecurity or the environment;

(g)safeguarding the integrity of the EU single market;

(h)40lessening, eliminating or avoiding difference between tax or customs
duties in Northern Ireland and Great Britain;

(i)securing compliance with, or giving effect to, any international
obligation or agreement to which the United Kingdom is a party
(whenever the United Kingdom becomes a party to it), except for—

(i)45the Northern Ireland Protocol or any other part of the EU
withdrawal agreement, or

(ii)any obligation under them.

(2)A Minister of the Crown may, by regulations, provide for any provision of the
Northern Ireland Protocol or any related provision of the EU withdrawal
agreement—

(a)to become excluded provision wholly or to any other extent,

(b)5to be excluded provision to any greater extent,

(c)to be excluded provision to any lesser extent,

(d)to cease to be excluded provision,

if the Minister considers that it is necessary to do so for, or in connection with,
one or more of the permitted purposes.

(3)10But a Minister of the Crown may not exercise the power conferred by
subsection (2) to provide for any of the following articles of the Northern
Ireland Protocol to cease to have effect in the United Kingdom to any extent—

(a)Article 2 (rights of individuals);

(b)Article 3 (common travel area);

(c)15Article 11 (other areas of North-South co-operation).

(4)A Minister of the Crown may, by regulations, provide for exceptions from any
exclusion.

16 Additional excluded provision: new law

(1)A Minister of the Crown may, by regulations, make any provision which the
20Minister considers appropriate in connection with additional excluded
provision.

(2)The provision that may be made under this section is not limited by any other
power conferred by this Act on a Minister of the Crown to make provision in
connection with provision of the Northern Ireland Protocol or the other parts
25of the EU withdrawal agreement.

(3)In this section “additional excluded provision” means provision of the
Northern Ireland Protocol or any other part of the EU withdrawal agreement
which becomes excluded provision wholly or to any other extent by virtue of
regulations under section 15(2)(a) (including where it is subsequently excluded
30provision to any greater or lesser extent by virtue of regulations under section
15(2)(b) or (c)).

VAT and excise duties

17 Value added tax, excise duties and other taxes: new law

(1)The Treasury may, by regulations, make any provision about—

(a)35value added tax (including imposing or varying the incidence of the
tax),

(b)any excise duty (including imposing or varying the incidence of any
excise duty), or

(c)any other tax (including imposing or varying the incidence of any tax),

40which they consider appropriate in connection with the Northern Ireland
Protocol.

(2)The regulations may, in particular, make any provision which the Treasury
considers appropriate to lessen, eliminate or avoid difference between—