Professional Qualifications Bill [HL]

Lord Patel Excerpts

2nd reading
Tuesday 25th May 2021 Lords Chamber

[Lord Patel (CB) [V]]

My Lords, I wish to speak mainly about how the Bill will affect recognition of qualifications of healthcare professionals and in particular medical doctors from overseas. I am a medical professional. Previously I have been involved with assessment of overseas qualified doctors and been a member of the General Medical Council, and I was chair of a regulator responsible for assessing the qualifications and experience of specialist doctors, a role now in the remit of the General Medical Council. However, I am currently not involved in the work of any healthcare regulator.

The Bill places obligations on regulators to establish a framework for recognition of professional qualifications from around the world and to share this information with similar bodies overseas, being transparent about entry and practice of regulated professions. The General Medical Council, the regulator of doctors in the United Kingdom, already has the powers, as the noble Lord, Lord Hunt of Kings Heath, said, to do the majority of things that the Bill describes. It also has a long history of a well-established system of recognition of medical professionals’ qualifications and experience prior to granting entry to the register. In this context, this Bill is not only unnecessary but will lead to more confusion and unintended consequences unless amended.

Clause 1(1), granting international professions entitlement to practise based on either qualifications or experience, will undermine patient safety. Clause 1(2) runs the risk of replicating the EU directive on mutual recognition of professional qualification—the so-called MRPQ directive—the shortcomings of which were highlighted in the past as the directive related more to recognition of medical qualifications and less to competences, including language skills, a skill not applicable to some professions. I hope that the Minister can clarify, particularly in relation to medical professionals, the policy intent behind the proposals in the Bill, and give an assurance that he understands the potential issues that could affect the current and future registration process of healthcare regulators.

I acknowledge that this is framework legislation covering more than 160 professions, but, as drafted, it runs the risk of unintended consequences that would impact negatively on patient safety and on workforce shortages in medicine. The current well-established processes of recognition of qualifications are on demonstration of knowledge, skills and experience in a variety of well-tested processes, as mentioned by the noble Lord, Lord Ribeiro. They go a long way to making sure that doctors from overseas have the necessary qualifications and experience, as well as language competences, before gaining entry to the medical register. The wording referring to “overseas qualifications” and “overseas experience” in Clause 1(2) would prevent regulators using their current system of assessment, and that cannot be right. I understand that that might not be the policy intent—the Explanatory Notes imply that—but in this area the Bill needs amending.

Unusually—in fact, uniquely—in his opening remarks the Minister indicated that he recognised the unique and well-developed processes of the General Medical Council for recognising qualifications of overseas doctors and intended to amend the Bill. I welcome those remarks. I would like to think that his change of mind was because he had sight of my speech, but I doubt that; it was probably more to do with briefing to his department from the General Medical Council. I am grateful to him for indicating that the Government will amend Clause 1(2), and I look forward to that—but I am sure that if the Government do not, I and others will be keen to do so in the spirit of improving the Bill. I look forward to the Minister’s reply.

Professional Qualifications Bill [HL]

Lord Patel Excerpts

Committee stage
Wednesday 9th June 2021 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted to speak to this group of amendments. My question for the Minister is why we need these amendments. I understand that he has brought them forward in part to satisfy concerns raised by the General Medical Council and those expressed in the report of the Delegated Powers Committee. My noble friend has had an opportunity to speak to other regulators—here I declare an interest as a non-practising member of the Faculty of Advocates—but what he is proposing in these amendments could appear to be micromanaging criteria that would best be left to the regulators.

Concern that has been expressed by the Bar Council for England and Wales that the Government are conflating two different aspects. The first is the right of the Government or the state to set out which person should have the right to enter and remain here. The second is what I believe is the right and the duty of the regulator, which is whether an individual has the right to practise a particular profession or to establish services in this country. In seeking to amend the Bill in the way the Government are doing, we are moving away from the mutual recognition basis which has served this country so well, and I do not agree with that premise. Perhaps I may repeat that I had the opportunity to practise in Brussels on European Community law on two separate occasions, so I think that the Bill before us and the regulations to which my noble friend has referred will make it much more difficult to achieve that in the future.

I refer also to a letter from my noble friend which he sent to the Delegated Powers Committee. He talks about a “generous agreement” that was sought with the European Union on professional qualifications. He goes on to state on page 12 in the third paragraph:

“However, for other trade partners, we are more likely to consider Mutual Recognition Agreement (MRA) frameworks, a more common precedent in international trade agreements.”


I confess to being slightly confused, because if we are moving away from mutual recognition of qualifications with the European Union, why are we seeking to establish them in international trade agreements? I look forward to my noble friend being able to clarify those concerns.

[Lord Patel (CB) [V]]

My Lords, I am grateful to the Minister for these amendments, as I have spoken at length about the problems that would have been created for the General Medical Council otherwise. I am also grateful that he had extensive consultation with his officials and the General Medical Council. As he said, the General Medical Council is grateful to him for bringing forward these amendments.

Having said that, I would like the Minister to confirm on the record that any determination made by a regulator on whether a professional is able to join a register can be based on an assessment of the individual’s knowledge, skills and experience rather than solely on qualifications. Can he further confirm that the regulator would be able to make such an assessment using whichever method they found appropriate, including existing tests of competence and any other test they might develop in the future when it is found necessary?

I also support the probing amendment from the noble Lord, Lord Lansley. When the General Medical Council considers qualifications and experience, it takes into account the experience that the individual may have gained in his or her own country, but it also has the power to look at the experience that the individual may have gained subsequently outside their country. The amendment sought by the noble Lord, Lord Lansley, seems appropriate and I would be interested in the Minister’s response, but, at this juncture, I thank him for his amendments, and I support them.

[Lord Hunt of Kings Heath (Lab) [V]]

My Lords, I refer to my interest as a member of the GMC board for the sake of this group of amendments. Like the noble Lord, Lord Patel, I welcome the government amendments and thank the Minister for his discussions with the regulator. I listened with great interest to the comments and queries of the noble Baroness, Lady McIntosh, about the amendments. In a sense, they reflect the generic and skeletal nature of this Bill, which means that each clause has to relate to many different professions. Frankly, I think it argues for a more detailed Bill, which would meet her issues as well as mine.

The argument that the GMC and others have put is very simple. Clause 1 currently gives power to the appropriate national authority—in the case of health regulators, the Secretary of State for Health and Social Care—to draft regulations to introduce a process that will require them to assess whether someone has a particular overseas qualification that is substantially the same as a UK qualification. In the case of the GMC, a person so deemed would then be eligible to practise as a doctor in the UK. That is because the GMC does not require those with UK qualifications to do anything further to demonstrate that they have the necessary knowledge and skills for registration. This could give an automatic entitlement to practise, under the current provision of Clause 1, for international medical graduates on the same basis as UK graduates. Currently, GMC has a very rigorous process for assessing whether the international medical graduate is safe and fit to practise. Without these amendments, it would be almost impossible for the GMC to manage operationally, with 10,000 international medical graduates applying for registration each year. It would be virtually impossible to assess this number of qualifications from countries as diverse as India, Pakistan, Nigeria, UAE and many others, with hundreds of different medical schools. The concern was that the Bill as drafted could force health profession regulators to accept professionals into UK practice in a way that compromised patient safety.

The Minister was sympathetic, and I am very grateful to him. However, there remains the issue of the relationship of Clause 3 to Clause 1, which we will come on to debate. In relation to the amendment from the noble Lord, Lord Lansley, he clearly has a point. I hope the Minister might take this away and give it further thought.

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[Lord Lansley (Con)]

My Lords, I am glad to have the opportunity to follow the noble Baroness, Lady Bennett of Manor Castle. She was right to say that we will probably need to think a little further about the subsequent scrutiny arrangements for the operation of this legislation. I fear that the amendments we have at the moment probably do not do it.

Perhaps with the exception of Amendment 54, they all suffer from the difficulty of proposing subsequent scrutiny of the impact of this legislation on issues which will themselves be impacted by a wide range of other legislation, administration and circumstances. It is difficult to isolate the impact of this legislation in particular. When we re-examine it we should, if not legislating, certainly be looking to Ministers to say that we should focus on understanding how it is working after a suitable period. One of the conventional processes would be five-year, post-legislative scrutiny. That would probably be the appropriate route down which to go.

I want to say a word about the issue of consultation, which came up under the previous group. There are a number of amendments in this group, but I am pretty sure that the proposers of Amendments 25 and 29 will recognise that they do not provide appropriate consultation opportunities. If there is a mutual recognition agreement in an international agreement with another country, it will have been subject to its own consultation arrangements. To have another consultation on the regulations to implement it would be inappropriate. It is also inappropriate and unnecessary to consult on regulations simply to get rid of the existing EU directives or retained EU legislation.

Turning to Amendments 14 and 19, in both instances there is a good case for consultation. I am not sure whether it needs to be legislated for in statute, but we too often assume that there is a public law duty to consult when there is not. It may be better to have a statutory duty to consult even if it is framed, pretty much as these provisions are, in broad and general terms, just to ensure that Ministers go through the appropriate processes at the right time. I am quite supportive of Amendments 14 and 19 for these purposes, particularly Amendment 19.

We had a previous discussion about demand. You cannot look at demand for professional services without actually asking consumers, so making sure that consumers are consulted in the process would be a good approach. I hope that Ministers will at least look at whether there is a place for a statutory duty to consult on regulations under Clause 1, and on the question of demand for professional services being met.

[Lord Patel (CB) [V]]

My Lords, I will speak mainly to Amendment 53 in the name of the noble Lord, Lord Fox. I had hoped that he would speak before me, so I could hear his views on the amendment, but I support its intent. I might have some reservations regarding whether a report should be made within 12 months or a longer period, as others have mentioned. I also agree with the noble Lord, Lord Lansley, that it is not a question of the impact on innovations of this Bill alone, but the cumulative impact of other Bills, to which this one might add. That is the issue I wish to explore.

The United Kingdom has a big ambition to be a science superpower, as has been said many times by our Prime Minister. In fact, he is the second Prime Minister, including Harold Wilson, to have mentioned science as a driving force for the United Kingdom and the UK’s leading in science. So, we have a great ambition: we are going to invest 2.4% of GDP by 2027 and, depending on the spending settlement to be announced shortly, it looks as though there will be £22 billion for R&D leading up to 2024. A significant amount of resources is being put in. So, what drives innovation? The drivers of innovation are research infrastructure; funding; importantly, career development opportunities for early-career researchers—I emphasise early-career; and collaboration and knowledge exchange through institutions in different countries working together.

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[The Deputy Chairman of Committees (Baroness Henig) (Lab)]

The noble Baroness, Lady Finlay, has withdrawn, so I call the noble Lord, Lord Patel.

[Lord Patel (CB) [V]]

My Lords, I agree with the comments of the noble Baroness, Lady Noakes, and my noble and learned friend Lord Hope of Craighead. The amendment could be extended to include all professions rather than just the health profession, but I will concentrate my comments on the health profession.

I support the amendment in the name of the noble Baroness, Lady Hayter of Kentish Town. Currently, the General Medical Council, as the regulator of doctors, has powers to regulate the training of doctors; to regulate clinical training following a degree course at university and the foundation years; and to regulate and approve specialist training conducted by the Royal Colleges. The curriculum is provided by the Royal Colleges but the General Medical Council approves it. The council then maintains a register of generalists and of specialists. In my case, it would be the specialism of obstetrics and gynaecology; I therefore could not practise cardiac surgery unless I was trained and approved by the regulator to be put on a specialist list of cardiac surgeons. The risk about not having consultation and producing regulation is that the regulator cannot then change the rules.

Amendment 27 is more to do with international agreements. There have been occasions when hospitals overseas have tried to open a branch for provision of specialist medical services with a view to their own people—their own doctors—delivering the care, until it was pointed out that that cannot be done.

It is possible—I have done it myself—to go to the United States and practise in a given hospital with a visa that allows you to do so, without having to go through any regulatory registering process or have experience and qualification approved. What we do not have, and quite rightly so, is a similar arrangement in the United Kingdom. It would therefore be wrong for any trade agreement to allow for that provision. Having the ability to guard, through consultation, against that is extremely important. Hence, I support Amendments 15 and 27.

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[The Deputy Chairman of Committees (Lord Lexden) (Con)]

The noble Baroness, Lady Garden of Frognal, whose name is next on the list, has withdrawn from the debate, so I call the noble Lord, Lord Patel.

[Lord Patel (CB) [V]]

My Lords, I will try to be very brief; I know that the hour is getting late. I will speak only to Amendments 20 and 28, both of which were brilliantly introduced by the noble Baronesses, Lady Hayter of Kentish Town and Lady Noakes.

I will address what the noble Lord, Lord Hunt of Kings Heath, raised about the report of the House of Lords inquiry that I chaired on the long-term sustainability of the NHS. He is right: the key threats to this were the strategy for long-term workforce planning and social care. Neither has been addressed yet.

On Amendment 20, the regulator has no role in terms of workforce planning. As the Minister said, the Government also do not have any role in imposing any regulations on the regulator when it comes to recognising overseas qualifications. The regulator also does not have a role in terms of recruiting professionals from overseas; that is the business of the service. However, as we all agree, the regulations that the regulator makes for assessing qualifications, experience and any other measures of competence cannot be diluted.

I support Amendment 28, tabled by the noble Baroness, Lady Noakes. If the Government were to take powers in relation to any regulations through any treaty, including trade treaties, that might dilute the regulator’s role in assessing overseas qualifications, experience and tests of competence, that would be unacceptable. That is the only time that regulators will have a role, in terms of being consulted in relation to workforce shortages.

[Lord Purvis of Tweed (LD)]

My Lords, I first endorse the remarks of the noble Baroness, Lady Noakes, whose comments in this area are very important.

I know that it is not in order in these proceedings to intervene on other Members, but I was itching to intervene on the noble Lord, Lord Lansley, because no one in this Chamber, notwithstanding the Grimstone rule holder, understands the CRaG process more. My question, which I will leave hanging—or convert into a question to the Minister—is as follows. My reading of the Bill is that it does not necessarily mean that an international recognition agreement will be considered a treaty under CRaG. A CRaG definition of “treaty” is any international agreement between member states or an international organisation. It does not include any agreement under an existing treaty—so, if we have a treaty with a country with which a mutual recognition agreement is subsequently signed, that does not necessarily need to go through the CRaG process. The international recognition agreement under this legislation does not necessarily state that that will be the case. My question was going to be on that, but the Minister can get back to me in writing at some stage; the hour is getting late, so he does need to reply today.

This may be of significance when it comes to scrutiny. To take the example of Canada, let us say that a subsequent agreement under the aegis of the Canada agreement expanding the mutual recognition elements would not be considered under CRaG but would trigger the regulation-making power in this area, which means we would still need to consider scrutiny. That is important because, when I looked at what the international recognition agreement stipulates on the activation of these powers, Clause 3(4) refers to

“the recognition of overseas qualifications or overseas experience”,

and that is it. It does not include fitness to practise and all the other areas the noble Baroness, Lady Finlay, alluded to, which are currently covered under the statutory protection for regulators to consider the fitness of someone who is applying, including their past record.

I was pleased that my noble friend Lady Randerson and the noble Baroness, Lady Finlay, raised this, because my document of choice for the day—the Department of Health’s consultation document—is quite clear on the Government’s intention to expand the role of regulators to have wider remit in considering the setting of standards and outcomes for quality assuring education and training, both pre and post-application. Indeed, the regulators would be able to have a view not just on the qualification of an applicant but on the appropriate education and training standards that the person went through to reach that qualification. In my view, that is important for the very point the noble Baroness, Lady Noakes, indicated.

Simply recognising an overseas qualification under an international agreement is way below what our current regulators look at when they take into consideration the standards of the education that led to that qualification. We have had scandals in this country, with Oxford colleges and others, which required the Government to go beyond the previous scandals that simply accepted a qualification. Now we look at the underlying quality assurance of the courses, the programmes of training and the education and training providers. Indeed, the Government say:

“We propose that all regulators should have the power to approve, refuse, re-approve, withdraw approval, monitor and quality assure courses, programmes of training, qualifications and education and training providers. Where relevant, these powers should also apply to post-registration courses, programmes of training, qualifications and post-registration education”.


If an international agreement with a country was simply about the recognition of the qualification, that is a diminution rather than a maintenance or enhancement. I think the points have been very well made, and I hope the Minister will be able to respond.

I think that the Minister said “never”. I have been in this House for seven years, and Ministers rarely use the word “never”. In fact, they never use that word, not least because they cannot bind their successor Governments. I have found that they rarely bind their successors as Ministers—but the Minister did do that. He said that it would never impact on what Governments would tell regulators about how they handled applications; they would never change the wider duties on regulators for the decisions made in an application; and they would not impact on the powers in connection with an application. If that is the case, why are those three specific provisions in Clause 1? Subsection (5)(f) means that the powers will be about a specific person, and that a regulator would

“have regard to guidance issued from time to time by a specified person”—

as in the Minister—

“when determining an application”.

Subsection (5)(g) refers to a

“provision as to the other duties of a specified regulator in connection with an application”.

Subsection (5)(h) likewise refers to a

“provision as to the powers of a specified regulator”.

So if the Minister is right that these regulations would never be used to do it, why are they in the Bill? I think that, as we heard under the previous group of amendments, they should be taken out.

Professional Qualifications Bill [HL]

Lord Patel Excerpts

Committee stage
Monday 14th June 2021 Lords Chamber

[Lord Lansley (Con)]

My Lords, I am very glad to follow the noble Lord, Lord Fox. Like him, I was moved to draft Amendment 56 not least by the report of the Delegated Powers and Regulatory Reform Committee, which at the end of its consideration of Clause 3 said that it

“represents an inappropriate delegation of power and should be removed from the Bill.”

The noble Lord was not proceeding entirely on his own initiative, and I entirely recognise where he is coming from.

I am coming from this as a Member of the International Agreements Committee. We are looking at many of the negotiations taking place between ourselves—now as an independent trading state—and other countries in creating international agreements. I do not personally see the world as divided into trade agreements and other agreements. We are increasingly entering into economic partnership agreements where, to be frank, the issue of services and the mobility of professionals should rightly play an increasing part in the economic partnerships that we forge with other countries. I want to see us enter into frameworks with other countries whereby our professionals can work there, and their professionals can work here. That will be, as trade often is, to the benefit of all parties.

On that basis, I considered whether this may be like the Trade Bill, in which we effectively gave Ministers the regulatory power to amend legislation and bring it in line with the continuity agreements we enter into. The conclusion I reached is that it is not like that; these are new agreements, not continuations of old ones. From our point of view, as a committee charged under CRaG with the scrutiny of new agreements, we are only too aware that this House has no capacity to block such a treaty, and no capacity to amend it.

Where secondary legislation is concerned, the House may have the power to stop statutory instruments, but in this territory, frankly, we would enter very difficult terrain. We would end up with our Government having signed an agreement with another country, intending to be bound by it under international law—indeed, it may have come into force—and, at that point, this House would have to consider its implementation in legislation. It seems to me, therefore, that the remedy of deleting Clause 3—and so requiring that every time Ministers want to implement an international recognition agreement in legislation, they have to do it in new primary legislation—is asking too much. As time goes on, there will clearly be framework international recognition agreements under which Ministers will regularly, or maybe frequently, need to change the secondary legislation affecting a range of professions and regulators.

My thinking was that we should—as we often do—allow Ministers the power to change the statutory instruments and secondary legislation relating to new international recognition agreements, but not the power to change primary legislation. That is why, instead of changing Clause 3 itself, Amendment 56 amends the regulation clause at the end, Clause 13, and would provide that the power in Clause 3 to implement international recognition agreements is a power to modify subordinate legislation but not primary legislation; that would be the effect of Amendment 56. Noble Lords may support the noble Lord, Lord Fox, and others in opposing Clause 3, but—if they share my belief that we will often be in this this territory, with Ministers having to change secondary legislation and much less frequently primary legislation, and that, when they do, they should secure the consent of the House, with our ability, as ever, to insert amendments, conditions and caveats, as well as sunshine clauses and so on—then they should in due course consider an amendment on the lines of Amendment 56 to strike a better balance, giving Ministers power but not a Henry VIII power.

[Lord Patel (CB) [V]]

My Lords, to start, I do not agree with the amendment tabled by the noble Lord, Lord Lansley. I clearly understand the point that he is trying to make; in fact, I have my name down with others to strike Clause 13 from the Bill, but we will come to that.

I will say in a minute why I do not agree with the noble Lord’s proposition but I do agree with that of the noble Lord, Lord Fox, and, absolutely, with his argument. It was clear from the comments of the Delegated Powers Committee that it considered this clause unnecessary. I personally think this is the key clause of the whole Bill; all the other clauses revolve around it.

Professional Qualifications Bill [HL]

Lord Patel Excerpts

Committee stage
Tuesday 22nd June 2021 Lords Chamber

[Lord Patel (CB) [V]]

My Lords, I shall speak briefly to Amendments 45 and 46, but I support all of the amendments in this group. Before I do so, I thank the Minister for the correspondence that I received like everyone else—I made a lot of fuss about it in the previous Committee meeting, and I am grateful now that I am receiving this correspondence.

I shall speak mainly about the medical profession, because I know that best. Although the regulator, which is the General Medical Council, is responsible for all areas of training and certification, the GMC delegates quite a lot of its responsibilities to other bodies. Therefore, information about the different aspects and different levels of training is available from the bodies that deliver the education and training. For instance, it is mostly the universities that deliver undergraduate training. They all follow a core curriculum set by the General Medical Council, but in addition most universities also provide some medical training that will be different from other universities. For instance, my university, the University of Dundee, puts more emphasis on primary care, as well as meeting all the requirements of the core training set by the General Medical Council. The regulator has the information about core training and also publishes information on the universities, but it is the individual universities that will have the information about their particular training in medicine.

For specialist training, again the regulator is the General Medical Council, but all specialist training is delivered by colleges and faculties—I declare an interest as a fellow of several colleges. It is the colleges that write the curriculum and the training, which is approved by the General Medical Council, and they make sure that the training is conducted according to the agreement. At the completion of specialist training, which may take several years, it is the General Medical Council that issues a certificate of completion of training and puts the doctor on the specialist register.

Some doctors may take higher degrees, such as a doctorate in medicine or a PhD; these are totally controlled by the universities that issue those degrees. The regulator has no role there, although in 99% of cases the degrees will relate to some aspect of medicine, whether that be research or clinical science. Following the completion of all this training, it is the regulator, the GMC, that is responsible for the revalidation that every doctor has to undergo every five years. That, too, is delivered and checked by professional bodies such as the colleges, but it is the regulator, the GMC, that is responsible for making sure that it approves the revalidation certificate.

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[Lord Hunt of Kings Heath (Lab)]

My Lords, in introducing this debate, I would like to apologise to my noble friend. I do not think that I was a member of the Better Regulation Task Force. I was the deregulation Minister in the Department of Health for a glorious period of four years, during which time we got rid of a few regulations—but I put through four major Bills to make up for that. Having done that, I was promoted, and I became a Better Regulation Minister in the DWP, the MoJ, Defra and finally DECC, where we were regularly hauled across to Downing Street to be given an absolute bollocking by the Prime Minister for why we were not doing enough to deregulate. Of course, for the other three months, we were called across and asked why we were not doing more to legislate to deal with a specific concern of Downing Street. Life does not change much. This Government talk a lot about deregulation but, my goodness me, they do not half like regulations when it comes to giving Ministers powers. That is really what I would like to explore in this stand part debate.

Clearly, we have had a very illuminating debate this afternoon. Despite the best intentions of the Minister, there is a sense of unease about the Bill, its rationale, the professions to be covered and its drafting. I say to the Minister that I would particularly note the comments from the noble and learned Lord, Lord Hope, when he talked about the unsatisfactory nature of the Bill. Coming from him, those were very telling comments indeed.

My own concern, as I have said, is about the extensive powers being given to Ministers throughout this Bill, and Clause 13 is an example. Clause 13(1)(a), taken together with the definition of legislation in Clause 16(1), means that the powers to which the Delegated Powers Committee has drawn the attention of the House in its report are Henry VIII powers. The powers conferred by Clause 5(2), Clause 6(1) and Clause 10(4) are also Henry VIII powers.

This is just one example of the increasing trend for Ministers to take powers unto themselves without adequate justification or explanation. I know that the Minister has sent a supplementary memorandum to the Delegated Powers Committee, and that we have had amendments to Clause 1, which have been very welcome. But it is noticeable that the Delegated Powers Committee, having considered that, says in its follow-up report that it none the less wishes to continue

“to press the Minister to provide … a much fuller explanation about the provision that could be made in regulations under clause 1; and”—

here it seems to me is the nub—

“full justification for all such provision—including that which amends primary legislation—being made by statutory instrument instead of by primary legislation with its attendant scrutiny.”

I do not want to repeat what I said at Second Reading or in our earlier debates, but the report of the Secondary Legislation Scrutiny Committee must be seen in parallel with the reports of the Delegated Powers Committee. It complains about the number of pieces of legislation that have been introduced, partly in response to the pandemic but partly because of our withdrawal from the EU, which are extraordinary in the powers they give to Ministers. In this Bill so far, the Minister has very courteously defended the use of these Henry VIII powers on what I would call technocratic grounds—in other words, “We need the powers because they are demand-led, and demand will change over time.”

As we have heard today, it is not possible at this moment for the Government to state explicitly where these powers will be used or what organisations or qualifications they will apply to. The Minister has explained the process he is still going through, but you could make the same arguments for any piece of legislation. The question I put to him is this: are we not seeing a general trend towards continuously bringing skeletal Bills in which extensive powers are given to Ministers and of which Parliament has very little opportunity to really go into the details?

The Minister has relied on the need for this Bill in relation to the specific needs of the different regulators, but he has not responded to the constitutional issues raised by it. I have instituted this debate to allow him to do so.

[Lord Patel (CB) [V]]

My Lords, to add to what my friend, the noble Lord, Lord Hunt of Kings Heath, has said, I will concentrate mainly on Henry VIII powers, which apply to other clauses in the Bill, not just Clause 13.

Henry VIII clauses allow Ministers to amend or repeal provisions in an Act of Parliament using secondary legislation. I tried to look up what the laws might say about Henry VIII powers being adopted. For those not familiar with them, Halsbury’s Laws of England provides the following description:

“As a general rule, primary legislation amends other primary legislation but leaves subordinate legislation to amend itself; subordinate legislation frequently amends other subordinate legislation, but mostly does not amend primary legislation.


Powers conferred by statute cannot be assigned without statutory authority, and whether they can be delegated depends on the construction of the statute. It will be assumed by the courts that Parliament does not delegate legislative or other power unless it does so by express provision or unavoidable implication; and provisions conferring power will be construed strictly against the person on whom the power is conferred.


An Act of Parliament may contain a power to make subordinate legislation which in turn can amend the enabling Act or another piece of primary legislation. The clause of the Bill containing such a provision allowing primary legislation to be amended by secondary legislation is commonly termed a ‘Henry VIII clause’ and the power itself is likewise called a ‘Henry VIII power’”—


terms familiar to us all. It goes on:

“The normal principles of statutory construction apply to Henry VIII powers but the courts will apply a restrictive interpretation if there is any doubt as to the scope of the power.”


The noble and learned Lord, Lord Thomas, who is speaking on this group, may wish to comment on that.

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[Lord Hunt of Kings Heath (Lab)]

My Lords, I will carry on with the theme of the previous debate, which was very interesting in relation to statutory instruments and how far they afford us an opportunity to scrutinise provisions in the Bill.

I believe one solution to the challenges facing the Bill is to sunset the whole Bill. I am putting this forward as a proposition for discussion now between Committee and Report. It is not the only solution. The noble Lord, Lord Lansley, also had an interesting amendment earlier which seeks to deal with the issue in a slightly different way, but nonetheless is worthy of consideration.

The Government’s defence, if you like, of parliamentary scrutiny is that the orders that come as a result of the use of the Act, when enacted, will come before Parliament in the form of statutory instruments, and most of them will be affirmative. The noble Baroness, Lady Randerson, asked what that means in practice. Since the Second World War, five statutory instruments have been defeated in your Lordships’ House. We also had the debate on tax credits in 2015 where we agreed two amendments to the Motion to approve the tax credit regulations. They sought essentially to delay consideration of the regulations until certain conditions were met. The Government were very cross about that, but the fact is that they decided not to proceed and one can say that the Lords defeated that statutory instrument, so six since the Second World War.

The Minister says, “Ah, but Parliament can debate them and scrutinise them in relation to an affirmative instrument”, and I accept that most will be affirmative, it means nothing. All we get is an hour’s debate, at most. We can put a regret Motion down, but what does that mean? Ministers take no account of regret Motions. It makes us feel better because we have a vote and defeat the Government, but it is meaningless.

This is the whole problem with the parliamentary appraisal of secondary legislation. It was not really considered when the Parliament Act was first introduced. We have an absolute veto, but because it is an absolute veto we feel very reluctant to use it. In effect we have no leverage whatsoever. As the noble Baroness said, apart from the imaginative use of the 2015 regulations, we cannot amend statutory instruments either. My suggestion is that the only way to deal with this, if the whole of the Bill needs to go forward, is a sunset clause.

Sunset clauses, as the noble Lord, Lord Purvis, reminded us on the second day in Committee, are not unknown to the Minister, who has just taken through the Trade Act, which has sunset provisions. The power there, I gather, is for five years, with an option for another five years through regulation. It simply ensures that if changes are made in that period, Parliament has the opportunity to scrutinise them again through debating further primary legislation. The noble Lord, Lord Purvis, asked for some form of comparable treatment in this Bill, and the Minister said that there is a difference, in that the trade agreements in the Trade Act are rollover agreements, many of which will be replaced in due course by other agreements. He argued that what we are talking about in this Bill are mutual recognition agreements rather than rollover agreements, and that there is a distinct difference. Up to a point, Minister, up to a point. It strikes me that there are some parallels. We currently have a status quo in relation to the existing regulation of professional qualifications. In time, we can expect more mutual recognition agreements to come forward and, as with the Trade Act, surely it is not unreasonable for Parliament to be able to scrutinise them properly and in primary legislation after a period of years.

Sunset clauses provide an expiry date for legislation and are used in circumstances where it is felt that Parliament should be given time to decide on its merits —again, after a fixed period. This is certainly one avenue we need to explore if the Bill is to be taken any further. I beg to move.

[Lord Patel (CB) [V]]

My Lords, I support the amendment of the noble Lord, Lord Hunt of Kings Heath, which would insert a sunset clause into the Bill. Why do I say that? Because many of its clauses, as we have already discussed, take Henry VIII powers and the intent of those clauses is not quite clear. The sunset clause overview states that a such a clause provides an expiry date for legislation:

“Sunset clauses are included in legislation when it is felt that Parliament should have the chance to decide on its merits again after a fixed period.”


Sunset clauses let Parliament reassess the legislation at a later date, once it is clear how it has been used in practice and how suitable it is to the policy challenge at hand.

The introduction of a sunset clause is also a useful method of reaching political compromise. It is clear from our discussions that we do not quite agree with a lot of the clauses. Reaching political compromise in the case of a controversial or sensitive provision allows the Government to make the provision they need for the time being, while building in a statutory guarantee of review of and parliamentary control over the Bill. In that respect, it is also good for the Government: they get their Bill through but it includes a sunset clause to allow Parliament greater scrutiny.

I was interested to see the guidance on the use of sunset clauses. The Government published guidance, through BEIS, on the better regulation framework in March 2020. This was written for government departments and explains how the better regulation system should operate. Section 1.5 of the guidance provides the following information on the use of review and sunset clauses:

“At an early stage in policy development,


government departments

“will need to consider whether either a statutory review clause is required or a sunset clause is appropriate … Sunset clauses are not a requirement, but a tool for policy makers to use where they are deemed appropriate and impose an automatic expiry of the measure on a specified date … and ensure scrutiny of the decision on whether or not to renew the regulation.”

On that basis, a sunset clause is the ideal way to deal with this Bill and the powers it takes through its different clauses, and I therefore support it.