Northern Ireland Protocol Bill (HL Bill 52)

(a)value added tax in Northern Ireland and Great Britain (including
difference in the incidence of the tax),

(b)any excise duty in Northern Ireland and Great Britain (including
difference in the incidence of the duty), or

(c)5any other tax in Northern Ireland and Great Britain (including
difference in the incidence of the tax).

Other powers

18 Other Ministerial powers

(1)A Minister of the Crown may engage in conduct in relation to any matter dealt
10with in the Northern Ireland Protocol (where that conduct is not otherwise
authorised by this Act) if the Minister of the Crown considers it appropriate to
do so in connection with one or more of the purposes of this Act.

(2)Nothing in this Act affects any power of a Minister of the Crown arising
otherwise than under this Act (including any power by virtue of Her Majesty’s
15prerogative and any power to make subordinate legislation).

19 New agreements amending or replacing the Northern Ireland Protocol

(1)A Minister of the Crown may, by regulations, make such provision as the
Minister considers appropriate—

(a)to implement any relevant agreement, or

(b)20otherwise for the purposes of dealing with matters arising out of, or
related to, any relevant agreement.

(2)In this section “relevant agreement” means an agreement made between the
United Kingdom and the EU that modifies, supplements or replaces the whole
or any part of the Northern Ireland Protocol.

25The European Court

20 Role of the European Court in court and tribunal proceedings

(1)This section applies to proceedings so far as they relate to—

(a)the Northern Ireland Protocol,

(b)related provision of the EU withdrawal agreement, or

(c)30domestic law relating to—

(i)the Northern Ireland Protocol, or

(ii)related provision of the EU withdrawal agreement.

(2)In the proceedings, a court or tribunal—

(a)is not bound by any principles laid down, or any decisions made, on or
35after the day on which this section comes into force by the European
Court; and

(b)cannot refer any matter to the European Court.

(3)A Minister of the Crown may, by regulations, make any provision which the
Minister considers appropriate in connection with subsection (2).

(4)The regulations may, in particular, provide for a procedure under which a
court or tribunal may refer a question of interpretation of EU law to the
European Court where—

(a)the question arises in proceedings before the court or tribunal, and

(b)5the court or tribunal considers that it is necessary for the European
Court to deal with that question before the court or tribunal can
conclude the proceedings.

Final provisions

21 Preparatory expenditure

10A Minister of the Crown, government department or devolved authority may
incur expenditure, for the purpose of, or in connection with, preparing for
anything about which regulations under this Act may make provision before
any such provision is made.

22 Regulations

(1)15Regulations under this Act may make any provision that could be made by an
Act of Parliament (including provision modifying this Act).

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

(a)make provision notwithstanding that it is not compatible with the
Northern Ireland Protocol or any other part of the EU withdrawal
20agreement;

(b)suspend or repeal, or make alternative provision to, domestic law so far
as it gives effect to the Northern Ireland Protocol or any other part of
the EU withdrawal agreement;

(c)make provision for any EU law to form part of domestic law (with or
25without modifications), including provision corresponding to sections
3 to 6 of, and Schedule 1 to, the European Union (Withdrawal) Act 2018;

(d)make provision restating or modifying the effect which any EU law has
by virtue of section 7A of the European Union (Withdrawal) Act 2018;

(e)make—

(i)30different provision for different purposes or areas;

(ii)incidental, supplementary or consequential provision;

(iii)transitional or transitory provision or savings.

(3)Regulations under this Act may not create or facilitate border arrangements
between Northern Ireland and the Republic of Ireland which feature at the
35border—

(a)physical infrastructure (including border posts), or

(b)checks and controls,

which did not exist before exit day.

(4)Any power under this Act for a Minister of the Crown to make, by regulations,
40provision which the Minister considers appropriate in connection with any
provision of the Northern Ireland Protocol to which any section of this Act
relates—

(a)continues to be exercisable in connection with any provision of the
Protocol to which that section relates by virtue of regulations under
45section 15(2)(b) or (c);

(b)is also exercisable in connection with any provision of the Protocol to
which that section ceases to relate by virtue of regulations under section
15(2)(d).

(5)If an instrument, or a draft of an instrument, containing regulations under this
5Act would, apart from this subsection, be treated as a hybrid instrument for the
purposes of the standing orders of either House of Parliament, it is to proceed
in that House as if it were not a hybrid instrument.

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

(a)provide for any other power to make regulations conferred by this Act
10to be exercisable to any extent by a devolved authority—

(i)instead of by a Minister of the Crown, or

(ii)concurrently or jointly with a Minister of the Crown or any
other devolved authority;

(b)provide for scrutiny of regulations that are to be made, or have been
15made, by a devolved authority.

(7)Subsection (2)(e) does not apply to regulations under section 26(3) (but see
section 26(4) and (5)).

23 Making regulations under this Act: general provisions

(1)This section applies to regulations made under this Act.

(2)20But this section does not apply—

(a)to tax or customs regulations (see section 24), or

(b)to other regulations if the only provision under this Act which they
contain is made under section 26.

(3)The regulations are to be made by statutory instrument.

(4)25A statutory instrument containing the regulations is subject to annulment in
pursuance of a resolution of either House of Parliament, unless the regulations
make—

(a)provision which amends an Act of Parliament, or

(b)retrospective provision.

(5)30If the regulations make provision which amends an Act of Parliament or
retrospective provision (whether alone or with other provision), the statutory
instrument containing them is subject—

(a)to draft affirmative procedure, or

(b)if the instrument contains a declaration that the Minister of the Crown
35making the instrument is of the opinion that, by reason of urgency, it is
necessary to make it without it being subject to draft affirmative
procedure, to made affirmative procedure.

(6)A statutory instrument that is subject to “draft affirmative procedure” may not
be made unless a draft of the instrument has been laid before, and approved by
40a resolution of, each House of Parliament.

(7)A statutory instrument that is subject to “made affirmative procedure”—

(a)must be laid before Parliament after being made;

(b)ceases to have effect at the end of the period of 28 days beginning with
the day on which the instrument is made unless, during that period, the
45instrument is approved by a resolution of each House of Parliament.

(8)In calculating the period of 28 days, no account is to be taken of any time
during which—

(a)Parliament is dissolved or prorogued, or

(b)either House of Parliament is adjourned for more than four days.

(9)5If regulations cease to have effect as a result of subsection (7)(b), that does not—

(a)affect the validity of anything previously done under the regulations,
or

(b)prevent the making of new regulations.

24 Regulations relating to tax or customs matters

(1)10Only the Treasury may exercise a relevant power to make provision that relates
to tax.

(2)Only the Treasury or HMRC may exercise a relevant power to make provision
that relates to customs matters.

(3)Tax or customs regulations are to be made by statutory instrument.

(4)15A statutory instrument containing tax or customs regulations (whether alone
or with provision made otherwise than under this Act) is subject to annulment
in pursuance of a resolution of the House of Commons, unless—

(a)any of the tax or customs provision—

(i)amends an Act of Parliament, or

(ii)20is retrospective provision,

(in which case see subsections (5) to (9)); or

(b)this section is disapplied by subsection (10).

(5)If tax or customs regulations make tax or customs provision which amends an
Act of Parliament or which is retrospective provision (whether alone, with
25other tax or customs provision, or with provision made otherwise than under
this Act), the statutory instrument containing them is subject—

(a)to House of Commons draft affirmative procedure, or

(b)if the instrument contains a declaration that the person making the
instrument is of the opinion that, by reason of urgency, it is necessary
30to make it without it being subject to House of Commons draft
affirmative procedure, to House of Commons made affirmative
procedure.

(6)A statutory instrument that is subject to “House of Commons draft affirmative
procedure” may not be made unless a draft of the instrument has been laid
35before, and approved by a resolution of, the House of Commons.

(7)A statutory instrument that is subject to “House of Commons made affirmative
procedure”—

(a)must be laid before the House of Commons after being made;

(b)ceases to have effect at the end of the period of 28 days beginning with
40the day on which the instrument is made unless, during that period, the
instrument is approved by a resolution of the House of Commons.

(8)In calculating the period of 28 days, no account is to be taken of any time
during which—

(a)Parliament is dissolved or prorogued, or

(b)45the House of Commons is adjourned for more than four days.

(9)If tax or customs regulations cease to have effect as a result of subsection (7)(b),
that does not—

(a)affect the validity of anything previously done under the regulations,
or

(b)5prevent the making of new regulations.

(10)Subsection (4) to (9) do not apply if—

(a)tax or customs regulations contain provision made otherwise than
under this Act, and

(b)the statutory instrument containing the regulations, or a draft of it, has
10been approved by a resolution of—

(i)the House of Commons, or

(ii)each House of Parliament,

in accordance with the procedure applicable to the making of
regulations containing the provision made under the other Act.

(11)15In this section—

• “relevant power” means any power to make regulations conferred by this
  Act, except the powers conferred by—

  (a)

  section 6 or 17, or

  (b)

  section 26(3);

• 20“tax or customs provision” means provision that—

  (a)

  is made under section 6 or 17,

  (b)

  relates to tax and is made by the Treasury under a relevant
  power, or

  (c)

  relates to customs matters and is made by the Treasury or
  25HMRC under a relevant power;

• “tax or customs regulations” means regulations which—

  (a)

  contain tax or customs provision, but

  (b)

  do not contain any other provision made under this Act,

  (whether or not they also contain provision made otherwise than under
  30this Act).

25 Interpretation

(1)In this Act—

• “Belfast Agreement” has the same meaning as in the Northern Ireland Act
  1998 (see section 98(1) of that Act);

• 35“customs matters” includes any of the subject matter of Regulation (EU)
  No 952/2013 of the European Parliament and of the Council of 9
  October 2013 laying down the Union Customs Code;

• “devolved authority” means—

  (a)

  the Scottish Ministers,

  (b)

  40the Welsh Ministers, or

  (c)

  a Northern Ireland department;

• “domestic law” means the law of England and Wales, Scotland or
  Northern Ireland;

• “excluded provision” means provision of—

  (a)

  45the Northern Ireland Protocol, or

  (b)

  any other part of the EU withdrawal agreement,

• so far as it is excluded provision by virtue of this Act (including any
  regulations made under this Act);

• “exclusion” means the effect which arises by virtue of provision of the
  Northern Ireland Protocol or of any other part of the EU withdrawal
  5agreement being excluded provision;

• “goods” includes animals;

• “HMRC” means the Commissioners for Her Majesty’s Revenue and
  Customs;

• “Minister of the Crown” has the same meaning as in the Ministers of the
  10Crown Act 1975 and also includes HMRC;

• “Northern Ireland Protocol” means the Protocol on Ireland/Northern
  Ireland in the EU withdrawal agreement;

• “prescribed” means prescribed in regulations made by a Minister of the
  Crown;

• 15“regulation of goods” is to be read in accordance with section 10;

• “related provision of the EU withdrawal agreement” means any provision
  of the EU withdrawal agreement — other than provision of the
  Northern Ireland Protocol — so far as it applies in relation to the
  Northern Ireland Protocol;

• 20“relevant separation agreement law” has the same meaning as in the
  European Union (Withdrawal) Act 2018 (see section 7C of that Act);

• “retrospective provision”, in relation to provision made by regulations,
  means provision taking effect from a date earlier than the date on which
  the regulations are made;

• 25“tax” means—

  (a)

  value added tax,

  (b)

  excise duties, or

  (c)

  any other tax;

• “UK or non-EU destined” is to be read in accordance with section 4(6).

(2)30A reference in this Act—

(a)to provision of the Northern Ireland Protocol that does not have effect
in the United Kingdom is a reference to provision of the Protocol—

(i)becoming excluded provision wholly or to any other extent, or

(ii)being excluded provision to any greater extent;

(b)35to an enactment being affected by provision of the Northern Ireland
Protocol is a reference to the enactment being required (by section
7A(3) of the European Union (Withdrawal) Act 2018) to be read and to
have effect subject to section 7A(2) of that Act as respects that provision
of the Protocol.

26 40Extent, commencement and short title

(1)This Act extends to England and Wales, Scotland and Northern Ireland.

(2)This section and sections 21 to 25 come into force on the day on which this Act
is passed.

(3)The other provisions of this Act come into force on such day or days as a
45Minister of the Crown may, by regulations, appoint.

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

(a)incidental, supplementary or consequential provision, or

(b)transitional or transitory provision or savings,

in connection with the coming into force of any provision of this Act.

(5)Regulations under this section—

(a)are to be made by statutory instrument;

(b)5may make different provision for different purposes or areas.

(6)This Act may be cited as the Northern Ireland Protocol Act 2022.