Professional Qualifications Bill [HL]
Wednesday 12th May 2021
(3 years, 7 months ago)
Lords ChamberRead Full debate Professional Qualifications Act 2022 Read Hansard Text
Professional Qualifications Bill [HL]
Tuesday 25th May 2021
(3 years, 6 months ago)
Lords ChamberRead Full debate Professional Qualifications Act 2022 Read Hansard Text Read Debate Ministerial Extracts
The Minister of State, Department for Business, Energy and Industrial Strategy and Department for International Trade (Lord Grimstone of Boscobel) (Con)
My Lords, I start my remarks by recognising the wealth of professional experience that is in your Lordships’ House and will no doubt be on full display in today’s debate. Our regulated professions are a national asset, and the professionalism of our services sector is part of the UK’s offering to the world. Good regulation and the expertise of regulators underpin that professionalism.
The purpose of the Bill is to revoke the EU-derived system for the recognition of overseas professional qualifications in the UK following the post-Brexit transition period. The Bill replaces this system with a new framework, global in outlook and tailored to the needs of the UK. The Bill will allow action to be taken in the public interest if it is judged that a shortage of professionals has arisen in a profession. It also makes sure that regulators have the tools they need to strike agreements with their international counterparts on the recognition of professional qualifications, creating more opportunities for UK citizens to work globally. These agreements will be a key facilitator of services trade, creating opportunities for UK-based professionals to work and provide services abroad. I can reassure the House that the Bill does not restrict the independence of the UK’s regulators. It fully respects regulators’ autonomy to determine who can practise in the UK.
I begin by describing the constituency of the Bill. Across the UK, over 160 professions are regulated by law by a network of over 50 regulators. The Bill will apply to all professions regulated by law. This means areas where there are restrictions in legislation on pursuing the activities of a profession, such as for doctors. It also includes restrictions on using a professional title, such as for architects. These restrictions usually require individuals to gain a qualification, carry out specialised training or demonstrate their professional experience.
Typically, an individual is required by law to register with a regulator to practise that profession. Many of these regulators are established in legislation, operating independently of the UK Government and the devolved Administrations. The Bill also encompasses bodies established by royal charter, but only if they have functions under legislation in relation to a profession regulated by law. However, the Bill does not apply to professions regulated on a voluntary basis. For example, it does not apply to chartered professional titles that are voluntarily regulated, such as chartered accountants, although it includes auditors and chartered engineers.
Some professions are regulated on a UK-wide basis, and the regulation of others is entirely devolved. The Bill will apply to the entirety of the UK, while of course respecting the devolution settlements by allowing the devolved Administrations to make regulations within their devolved competence.
As I hope your Lordships can appreciate from my description, the regulation of professions comprises a complex regulatory landscape. It has resulted from the differing needs of professions and from legislation being introduced over a long period. That is why the Bill establishes a framework. It sets out a permissive approach, under which regulations could be made to provide tailored solutions for specific professions if and when required. It needs this flexibility because we cannot anticipate future professional shortages or the terms of future international agreements.
I emphasise that we want this new framework for recognition of professional qualifications to complement regulators’ existing practices. For this reason, the Government have engaged closely with a wide range of regulators. I can assure the House that I take their views very seriously. Indeed, following further consultation with the GMC and other healthcare regulators since introduction, the Government intend to table an amendment to Clause 1 in good time before Committee. This is to address concerns raised by regulators such as the GMC to ensure that the flexibility and autonomy of healthcare regulators and others is preserved in the event that these powers are used.
I turn now to the main elements of the Bill. Its core purpose is to update the regulatory framework for recognising professional qualifications and experience gained overseas. Through Clauses 5 and 6 we would revoke the EU-derived system, which places obligations on our regulators to offer preferential treatment to European Economic Area and Swiss-qualified professionals compared to those with qualifications from other parts of the world.
This system was always intended to be temporary, and it has not been reciprocated by the EU. We need to replace it with a new framework in line with our status outside the single market and our global Britain ambitions. We want our regulators to recognise professionals from around the world, considering the skills and knowledge they offer, not just where they came from. The Bill will ensure that regulators can be given the legal ability to recognise overseas qualifications wherever they were granted, if they deem it appropriate to do so.
Through Clause 1, UK Government Ministers and the devolved Administrations can require regulators to have a process to recognise professional qualifications from all around the world where the individual meets UK standards. This would be implemented through secondary legislation.
Clause 2 limits the use of this power to professions where demand is not being met and the resultant shortage could be addressed by opening up this new process for professionals with qualifications from overseas. This condition provides reassurance that UK Government Ministers and devolved Administrations can act only when there is a clear public interest in so doing. For the professions where this power is used, regulators will have flexibility in the way they assess individuals with professional qualifications and experience gained overseas without, I stress, compromising their rigorous standards. Where Clause 1 is not exercised, regulators will of course be free to continue recognising qualifications from overseas in line with their existing powers.
Noble Lords will be aware of the value of services exports in our economy. Indeed, the EU Services Sub-Committee issued a report on the future UK-EU relationship on trade in services in March this year. The report acknowledged the role of the mutual recognition of professional qualifications in services trade for many sectors. With that in mind, the Bill also includes two measures that support us as we seize opportunities for professionals in overseas markets and encourage talented professionals to work in the UK.
Clause 3 will enable UK Ministers and devolved Administrations to implement the recognition of professional qualifications elements of international agreements. In Clause 4, we propose a power to make regulations that would empower regulators to enter into recognition agreements with their overseas counter- parts. We would use this power only where regulators do not already have the ability to do so. That includes mutual recognition agreements agreed in accordance with trade agreements that the Government are striking around the world. It can also include individual agreements with overseas counterparts pursued at regulators’ discretion.
To be frank, we acknowledge that these powers are broad, but I reassure your Lordships that in our international negotiations on the recognition of professional qualifications, we have always sought to preserve the UK’s autonomy to set its own professional standards and determine who is fit to practise here. It is for this reason that the recognition of professional qualifications chapters of trade agreements often encourage the parties’ autonomous regulators to negotiate mutual regulation agreements without dictating how they should do this.
The Bill also contains several measures to provide support to professionals and regulators. These build on the good practices of many regulators. Clause 7 will maintain the legislative underpinning for an assistance centre, which provides advice to professionals interested in working in the UK or overseas. Clause 8 will require regulators to publish details about entry and practice requirements for their professions. Many regulators already do this, but we want this to be comprehensive to make information about careers more accessible.
Clause 9 will give a legislative underpinning to sharing information between regulators operating in different parts of the UK. Such information is often shared on a voluntary basis, and this can help inform regulatory action—for example, if there is evidence of malpractice. Clause 10 proposes that UK regulators be required to provide certain information to overseas regulators about UK professionals at the request of the individual. This would enable those overseas regulators to decide on UK professionals’ entitlement to practise.
Finally, in Clause 11, the Bill will introduce a new system for recognising all architects who qualified overseas. This profession is addressed specifically in the Bill because this is an area where we need primary legislation to move away from bespoke EU-derived obligations as soon as possible. This will expedite new international entrants to the Architects Register in the UK while requiring them to demonstrate an understanding of the specific UK landscape. Our proposals will make sure that UK demands can be met by architects from all around the world and improve the Architects Registration Board’s administrative processes.
To conclude, this Bill removes outdated legislation from the UK’s days in the EU. It replaces it with a new framework that upholds the great strength of the UK’s professionalism while protecting regulators’ autonomy. It makes sure that regulators can put in place the arrangements we need to recognise professionals from all over the world. It empowers regulators to secure arrangements that promote our world-leading services exports. I am sure that it will form the basis of a great partnership between government, regulators and professionals. I commend it to the House, and I beg to move.
Baroness Blake of Leeds (Lab)
My Lords, I thank the Minister for his clear introduction and positive engagement so far. This has certainly helped ease me into my first speech at Second Reading, and I hope that this constructive approach can continue, not simply for my benefit but to ensure that we end up with an improved Bill. Although I may still not know my way around the House or fully appreciate its quirks and traditions, what is clear to me is the benefits that will flow from recognising professional qualifications for public services and the wider economy.
Enabling regulators to recognise qualifications drives up standards of practice, gives confidence to UK employees and consumers and improves contracts for workers. It also allows people to move to the UK to fill gaps in our labour market and enrich our communities. As a former board member of NHS Leeds, I know how much the NHS, for example, depends on those workers. Last year, those who were non-British included 169,000 NHS staff in England—about 14% of all staff—122,000 staff on the Nursing and Midwifery Council’s register and 247,000 staff in social care. We are hugely grateful to those key workers, especially for their efforts during the pandemic. This support would not have been possible without the recognition of professional qualifications. The Bill also facilitates the recognition of UK qualifications in other countries so that British citizens can seek to work abroad.
I remind the Minister of the Government’s central promise in their Explanatory Notes that
“nothing in the Bill prevents, qualifies or otherwise impacts the ability of those with existing recognised qualifications from continuing their areas of practice in the UK”.
We will be holding him to that throughout the Bill’s passage. We cannot clap for carers today, then strip them of qualifications tomorrow. My noble friend Lord Hunt of Kings Heath will outline some of the concerns raised by the GMC and others on drafting that covers asking regulators to assess qualifications to be “substantially the same” as UK qualifications. I acknowledge the Minister’s intention to bring forward amendments in this area.
This legislation is needed to replace EU law so that we can ensure that we have the skills to keep our economy going. This new framework replaces the interim system which was set up for EEA and Swiss professions. We recognise that this is the next step in our departure from the EU. Although we will be seeking quite a few clarifications and assurances, Labour’s approach to the Bill will be broadly threefold.
First, regulators must remain independent and autonomous—nothing in the Bill must undermine their standing. Their independence is essential to maintain UK standards—for example in health, public safety and consumer protection. Their expertise allows the right calls to be made when approving qualifications and recognising when more training is required, and their decisions must be accepted and respected. We cannot get into a position where the Government pressure bodies to accept professional qualifications to, for example, clinch a trade deal with Australia.
This independence could also be threatened if regulators are not properly supported. The impact assessment states that most costs will fall to regulators, and the Government estimate the cost to regulators of transition and the new framework to be about £2 million per year, as well as additional costs for new transparency requirements. Therefore, will the Minister answer the following initial questions? Can he confirm that regulations created under the Bill, especially Clauses 1 and 3, can never force regulators to accept specific qualifications? Could FTAs put regulators under undue pressure to do so? Do regulators need additional funding and resources, or will they pass on all costs to professionals and businesses?
Secondly, on delegated powers, we need more meat on the bones of this skeletal Bill. The Government’s own report on delegated powers states that
“the substantive changes to the law envisaged by this Bill will be made through delegated powers rather than the Bill itself.”
That approach fits in with the wider pattern of this Government whereby Ministers often run scared of scrutiny. We understand that national authorities need flexibility to bring forward regulations as and when agreements are struck and shortages identified. Therefore, we accept that it is impossible to provide full clarity now but we are in the dark at the moment. The Government have identified priority professions in their impact assessment; for example, healthcare professionals, social workers, vets and teachers. Therefore, we are calling on the Government to publish draft statutory instruments on priority professions before Report in the Lords. Can the Minister commit to that?
Thirdly, on skill shortages, while attracting talent to the UK is essential for public services and the wider economy, the recognition of overseas qualifications is not a silver bullet for ending our current skills shortage. We believe that the skills agenda must be at the heart of our economic strategy. The agenda is essential to supporting new and emerging businesses, and is vital for the post-Covid recovery and tackling the climate emergency head on. However, after, sadly, a decade of Conservative neglect in many different sectors and professions, we are seeing shortages, including of 84,000 NHS workers in England, 112,000 social workers and 3,000 teachers. The Government’s Queen’s Speech briefing document also states that shortages account for 36% of all construction vacancies and 48% of all manufacturing and skilled trades vacancies.
We believe in a high-skill, high-wage economy, which is why we are often dismayed at the Government’s approach; for example, their lifetime skills guarantee is not guaranteed for everyone because people cannot use it if they are already qualified to level 3, unless they are getting a qualification that the Government have decided is valuable or if they need maintenance support while they are learning. We need to do much better than that. Therefore, we will be arguing that when a skills shortage has been determined under Clause 2 the determination should be published, along with details of how the appropriate national authority is investing in skills domestically. Can the Minister explain how that determination will be compiled; for example, will it be determined by the Government or the regulators? What sources and modelling will be used?
My noble friend Lady Hayter will be touching on other areas on which we will seek clarification, including on how the Bill relates to the EU-UK TCA, whether it allows for bilateral regulatory agreements with EU member states, where the assistance centre will be based and how it will be funded.
For now, I end by stressing how we want to promote opportunity, trade and standards through the recognition of professional qualifications. We must do it in a way that maintains regulatory independence, ensures parliamentary scrutiny and does not replace skills investment at home. In those key areas, we remain to be convinced.
Lord Purvis of Tweed (LD)
My Lords, I welcome the noble Baroness, Lady Blake, to her position on the Labour Front Bench and look forward to working with her in her new role. She has already demonstrated a grasp of this issue and I am sure that her role in offering scrutiny to the Bill will enhance our proceedings. I warn her that whenever the Government say that a trade Bill or a Bill associated with trade is merely a technical measure, framework or tidying-up, we are here for quite a long time. However, she will add to that. The Minister, as ever, is open and in advance of this legislation he has been receptive to those who have wished to engage with him. I know that that will carry on. His record until now has demonstrated that.
I wish to apologise to noble Lords. The European Affairs Select Committee on which I serve is currently taking evidence on UK citizens’ rights in Europe and European citizens’ rights here, and I will have to leave the debate for a short period in order to question some of our witnesses. However, that is linked to some of the considerations in the Bill. I mean no discourtesy to the House.
My noble friends will raise many issues that have been outlined by the Minister. I will focus on some of trade elements, some of the underlying reasons why the Bill is necessary, some aspects of devolution and, as the noble Baroness, Lady Blake, indicated, concerns regarding the wide-ranging nature of some of the regulatory powers, including the Henry VIII powers included in the Bill.
The Minister’s signature is on the front page of the impact assessment on the Bill. It states that the best estimate of the Bill’s costs are an additional £18.2 million but possibly a staggering £42.82 million. I have to say to the Government that their slashing of ODA to the world’s poorest while being happy to find up to £43 million for new bureaucracy shows that their priorities are all wrong. The Minister’s introduction goes on to state that the net long-term negative social value of the Bill is £11 million. I am pleased that the Government have at last recognised that the cost of the lack of an agreement in the TCA on mutual recognition of professional qualifications is going to cost us a great deal—a net negative value of £11 million, just with the Bill alone.
I turn first to the trade impacts. Paragraph 92 of the impact assessment contains curious language. It states:
“Professional qualification recognition requirements can act as a non-tariff barrier to services trade. If UK professionals’ qualifications are recognised in European countries this could be an enabler in bidding for, winning and providing traded services by regulated professionals.”
That is a good thing. However, bizarrely, the Government think that erecting new service trade barriers is a good thing. The paragraph continues:
“By ending unilateral recognition for certain professions, UK regulators may be in a better position to negotiate mutually beneficial and reciprocal recognition arrangements with our EU counterparts.”
Using the EU regulated professions database cited by the Government in their papers associated with the Bill and the impact assessment, in 2019-20, the UK had 6,093 citizens’ qualifications recognised automatically by EU member states for work. We recognised 9,436. If one takes out the seasonal recognition of workers from Spain, the figures are broadly similar. Now we have to get agreements separately on a new application process for each country, with no real negotiating strength. I am not sure about the basis of the assumption that that is good for services trade.
This is for each country and each profession. The maths can be quite straightforward using the figures in the impact assessment but, if the current trend for the recognition of qualifications carries on, next year we will require more agreements by our regulators of other European regulators than we will for the people we actually regulate for the certification of qualifications. That is why the cost—of up to £42 million—is ridiculous, given the fact that this will require more agreements than the people whose qualifications it is meant to recognise.
Paragraph 84 of the impact assessment states that Home Office modelling on the new skilled worker visa system could result in a 70% reduction in EEA long-term worker inflows—70% less is not exactly a negotiating incentive for Europe. It is not just a poor negotiating hand; we have chopped it off entirely. The number of people whose qualifications have been recognised has already fallen by nearly 50% since 2018, so we are in a situation of serious concern for professional labour shortages, which I will turn to in a moment.
I had to read this next paragraph twice, as I could not quite believe it. I am glad that the noble Baroness, Lady Noakes, is in her place, because I am sure that she will be interested to learn of this too. It states that:
“A reduction in the recruitment of EEA and Swiss-qualified professionals could reduce competition in the market for services, to the benefit of UK-qualified professionals in the UK. EEA firms may be less able to provide services involving regulated professions to UK customers, which may benefit UK businesses.”
I think I read in the press at the weekend that this is a free-trade Government: that is quite extraordinary—I must have been mistaken. The reason we have this Bill, as the Minister said, is to make it easier for foreign workers to be recognised because we have shortages. But the impact assessment says that the very fact that we have shortages is a good thing for UK businesses. Which is it, Minister?
What of the shortages and demand—the central element of Clauses 1 and 2? We were told that there would not be shortages in qualified workers because of Brexit, but the Government have deliberately refused to carry out an impact assessment of the TCA, so we must use this one instead. If it is not all about deemed shortages, what is it about?
This morning, I reviewed the Government’s list of shortages in skilled professions. The list, which is on GOV.UK, was updated on 6 April, and it is worrying, as the noble Baroness, Lady Blake, said. It is no surprise that it includes all musicians, all artists and all choreographers, proving the point that my noble friends on these Benches have been raising about this sector as a result of the TCA. The list also includes “Veterinarians —all jobs”, “Mechanical engineers—all jobs”, “Electrical engineers—all jobs” and all jobs in health and social care. I have quoted from one list but there is a separate list for health and education. Similarly worryingly, all business analyst and web designer jobs are included. This list is depressing for our economy. In one of the areas where we had relied heavily on highly skilled EEA workers, a
“70% reduction in EEA long-term worker inflows”
will have an additional impact on such services. Will this Bill help? Its bureaucracy and costs simply will not.
One reason the Bill will not help is the lack of interaction with this Government’s immigration and skilled workers policy. Look at the starting salaries of these so-called high-skilled workers, I wonder whether they meet the threshold of the immigration laws. Even if these workers coming from abroad—from outside the EEA, of course—have their professional qualifications fast-tracked or with less fees attached as a result of this Bill, their starting salaries do not match even the lowest threshold of the skilled worker points system, which has been set at £25,600. The Minister talked about looking at opening up opportunities. If you are in an FTA with a newly qualified midwife on a fast-track, low-fee application, recognised through the regulations in this Bill, the salary starts at £24,907. It does not meet the immigration points system threshold anyway. A registered teacher in England and Wales starts at £18,169; a Scottish social work graduate can expect an average starting salary of £23,000. Even with the shortage list and the points system, there is no proper interaction with what the regulations in this legislation will outline.
That is one issue with it, but noble Lords must read paragraph 86 of the impact assessment, which says that
“62 of the 88 professions likely to be included in the new framework are associated with occupations on the Shortage Occupation List.”
This new sledgehammer of a Bill seems to crack only two-thirds of the nuts. What about the remaining 26 professions?
The Minister said that this legislation is empowering. Well, paragraph 68 states that 90 regulators that regulate 140 professions are not included in the new frame- work, but can offer preferential access anyway. Do the Government feel that they will be allowed to do that? The Minister said that this is an enabling Bill. Will he insist on the independence of the regulators for those remaining 50 professions?
There are two final areas: interaction with the common travel area with Ireland, and devolution and trade agreements. The December 2020 guidance on the common travel area with Ireland makes specific reference to the route to work for service providers from Switzerland. In essence, to paraphrase, service providers from Switzerland can allow, for the purposes of that agreement, a Swiss national effectively to be considered a UK national for work in Ireland. This is intended to carry on until 2025. Is it the Government’s intention that it will do so? Will it allow for the other 50 of the 140 professions that I mentioned?
Is it the Government’s intention in future agreements to replicate our agreement with Switzerland to bypass the common travel area, effectively creating a route to work in the European Union via the common travel area? The last thing we need is yet another area of concern involving a professional barrier or border in the Irish Sea. I hope that the Minister can offer reassurance on that point.
What about future trade agreements? We were told repeatedly during the passage of the then Trade Bill that, for new trade agreements, if there were gaps in legislation, primary legislation would fill them. The Minister’s predecessor said that on a number of occasions. It now seems not to be true. The Government want to use the regulation-making powers in this Bill to implement key elements of FTAs. For example, if mutual recognition has been part of the EU-India trade discussions that are now under way, this should be done through primary legislation, not regulation now.
It is interesting that the justification for the use of delegated powers in this area is in paragraph 30 of the delegated powers memorandum, which states:
“The power is necessary to ensure commitments made by the UK under international agreements can be met. Since the power will be available in relation to international agreements concluded in the future, and the terms of those agreements are not known, it is not possible to deliver the necessary changes on the face of the Bill.”
Well, that is blindingly obvious—it is why we have legislation when we require it, and why we do not give the Government full-scale powers now to implement any agreement under any circumstances in future. That is an explanation of the use of delegated powers, not a justification for it.
On devolution, there is concern about the use of concurrent powers. In effect, the Government are saying, “If the devolved countries do not use the powers, we will”. I hope that the Minister can give us the up-to-date position on consultation, the request for legislative consent memorandums and implementation.
Finally, after stating categorically that this Bill protects the autonomy and independence of regulators, the Minister helpfully indicated half way through his speech that the Government will bring forward an amendment to do exactly that. Why is an amendment to protect the autonomy and flexibility of health regulators necessary before we have even started Committee stage? However, it is welcome, and I hope that the Government’s approach to the sensible amendments that will no doubt be brought forward by my noble friends on these Benches will be equally as receptive as their approach to the health professions. As the noble Baroness, Lady Blake, indicated, we will do our work to strengthen this Bill and improve it.
Baroness Fraser of Craigmaddie (Con)
My Lords, I declare my interests as set out in the register. I sit on the board of OSCR, the Scottish charity regulator. Although it is not concerned with regulating professions, it is still a regulator, and I am aware therefore of the unintended consequences that legislation can have in some areas, and that there are moments when more than one regulator can potentially be involved in service delivery. Also, as chief executive of Cerebral Palsy Scotland, I am involved with the employment of regulated allied health professionals, who are highly specialist in their field and, while not employed by the NHS, are still key. As chair of the Scottish Government’s National Advisory Committee for Neurological Conditions, I have looked at the specific workforce needs for the provision of neurological health and care services in Scotland.
It is vital that we ensure a robust scheme for recognising competent professional qualifications for those from across the world in this country, and vice versa for UK professional qualifications to be reciprocated. I therefore wholeheartedly support the general provisions of the Bill. The regulated professions are indeed a diverse group and the regulatory landscape is far from uniform. Therefore, I welcome the Government’s approach in establishing a framework under which profession-specific provisions can be made. Regulators must be able to set the standards and make autonomous and independent decisions. The Bill is needed and is important, and I look forward to supporting its passage through Parliament.
However, instead of looking at these matters in the context of trade and trade deals, I am looking at the Bill through the lens of health and social care, and as such I am not convinced that the regulation framework will achieve the stated desired results of improving service provision. To ensure public confidence that professionals are appropriately regulated, recognition of professional qualifications from overseas should be based on the equivalence of the standard and content of an overseas qualification rather than solely on reciprocity.
I have three general observations to make at this stage. First, qualification and registration alone are not sufficient. Qualification, whether from within or outside the UK, does not necessarily make an individual proficient to carry out their profession, and the regulatory process must be robust enough to ensure competency as a very minimal standard. What makes an individual truly competent is rigorous supervision from senior and experienced fellow professionals, access to ongoing professional development, and the opportunity for postgraduate and specialist training. We need these to be requirements so that the workforce has the skills to be swift and to adapt to the changing needs of service users. Regulators must make due consideration for experience, supervision and CPD, and see that benchmarks are set and met.
Secondly, we need specialist skills, not just generic skills. There is indeed a skills shortage throughout the health and social care workforce, but we must ensure that we are attracting the right professionals with the right specialist skills. As the noble Baroness, Lady Blake, said, just registering more people will not necessarily resolve vacancy issues. More and more is being expected of individuals who have the bare minimum of skillsets. We see this with health visitors in the expanding early years workload, and in schools, where classroom assistants and teachers are expected to support children with very complex disabilities, with a monitoring visit by a qualified paediatric therapist perhaps only once a term. The identification of “priority professions” in the Bill therefore must recognise that not all registered professionals are the same. In my own charity we employ Bobath-trained therapists—that means that, while being physiotherapists, occupational therapists and speech and language therapists, they have very specific qualifications to support people with cerebral palsy. Improvements in service provision will depend on being able to distinguish between those with the experience and specialisms that we require to develop sustainable services, and the rest.
Thirdly, we cannot rely on professionals from overseas to improve services. Evidence from the regulated allied health professional bodies that I have consulted suggests that professionals who come from overseas perhaps do not stay long, and therefore service provision is not necessarily benefiting. It is perhaps for another time to discuss how we can support and invest in the domestic workforce pipeline, but how can we then support regulation and regulators within this framework to support the retention of qualified professionals?
Notwithstanding these points, there are many aspects to be welcomed in the Bill: the commitment to sharing information across all parts of the UK with, I hope, the public, rather than just professions or employers; recognition that the Bill is not limited to specific professions, but concerns devolved and transferred matters; the establishing of an assistance centre; and the requirement for published information for entering and remaining within a profession. I trust that these requirements may take some heed of my earlier reservations and I look forward to supporting the further progress of the Bill.
Lord Bilimoria (CB) [V]
My Lords, the UK services industry accounts for 80% of our economy, and the UK is the second largest services exporter in the world. It is quite remarkable how well respected our services industry is, and our UK professional qualifications are, frankly, the most well regarded in the world in many cases, whether for our lawyers, our accountants or our doctors.
The Bill was announced in the Queen’s Speech on 11 May, making provisions relating to the recognition of professional qualifications in the UK. It obviously follows a lot of consultation by the Government which ran through the autumn of last year and which created a number of regulation-making powers designed to implement a new framework for the recognition of overseas professional qualifications in the UK. That would replace the EU law in the area, including the interim provisions that have been in place since the end of the transition period, making provision for international agreements on the recognition of professional qualifications, for any powers to authorise regulators to enter into regulatory recognition agreements with regulators overseas, and the sharing of information between regulators. The Minister also mentioned amending the Architects Act 1997.
Over 160 professions are regulated by legislation in the UK, and there are more than 50 regulators. The Government have explained that they seek reciprocal agreements on the recognition of professional qualifications as part of their trade agenda. I congratulate the Government, and Liz Truss and the Department for International Trade, on the fantastic job that they have done in rolling over more than 60 bilateral EU trade agreements, and on the work that they are doing on the new trade agreements. The Australian one is imminent. The enhanced trade partnership with India will lead to an FTA, I hope. The American trade agreement is in the offing, I hope, and joining the CTPPP will be a fantastic £110 billion of trade.
On top of that, we are now making the 60-plus agreements that have been rolled over from the EU into super-duper bespoke deals between the UK and the other countries, starting with Mexico and Canada. This is great news. Professional qualifications will be a key part of all these trade agreements. The Bill is equipping regulators to pursue agreements with their counterparts in other countries where they want to do so, and the Government say that they
“want to facilitate the continued strong reputation of UK professional qualifications, which will support export opportunities, including education exports and the recruitment of international students.”
The Government have stated that the feedback from the consultation and other stakeholders indicated that the regulatory landscape that had developed for professions was complex. That is something we have to accept. The UK’s current framework for recognising professional qualifications gained overseas is derived largely from EU law. The interim system has provided certainty for UK businesses and helped to maintain workforce supply for professions, including nursing and teaching. The Government have said that many of the professions within the scope of the regulation-making powers in Clause 1 have pre-existing legislative frameworks governing the way they are regulated. While the ability to allow for an overseas qualification to be treated as though it was a specified UK qualification is set out in the Bill, along with the conditions, it is necessary for this to be implemented in a manner that is tailored to each profession by the appropriate national authority.
We then have the regulator recognition agreements—RRAs—between the UK regulators and international counterparts on the recognition of professional qualifications. The recognition of professional qualifications and the regulation of professions is of huge significance to the UK’s world-leading services providers, which rely on this provision to sell their services abroad. Following the EU-UK Trade and Cooperation Agreement, the loss of automatic recognition adds levels of complexity and administrative challenges for companies. Businesses are looking for clarity on the recognition of qualifications and what it means in practice for UK-based firms’ continued provision of services in the EU.
As president of the CBI, I can say that businesses welcome the pathway provided in the TCA to establish recognition agreements and are ready to engage with government and regulators. Across the UK, companies are clear that the recognition of professional qualifications and the regulation of professions is an essential aspect of how they operate their businesses.
I look back to the 10 business priorities for UK-EU trade after Brexit that the CBI laid out when it identified
“10 immediate practical actions both sides can take to stabilise relations and strengthen cooperation”.
One of them was to secure the recognition of professional qualifications. The automatic mutual recognition of professional qualifications has now ended between the EU and the UK but, according to the CBI,
“the TCA creates a pathway for future agreements being struck between the UK and individual EU member states via the Partnership Council—although the exact process is still to be confirmed.”
Perhaps the Minister could shine some light on this. The CBI continues:
“The loss of automatic recognition adds significant levels of complexity and administrative challenges, particularly in the professional services sector. Newly qualified individuals in regulated sectors will not be … allowed to work or to deliver services in the EU without this recognition, leaving UK professionals and businesses losing business to EU competitors”
and other competitors. It continues:
“The CBI welcomes the steps that have already taken place by the UK government in supporting regulator to regulator recognition across the UK and Ireland, with 10 agreements already made in various sectors. But the pathway for more agreements, as set out in the TCA, should be established as quickly as possible to support the trade in services on both sides.”
Does the Minister agree with this, and that
“The EU should work constructively with the UK to facilitate this dialogue through the relevant governance mechanisms”?
I am proud to be a fellow of the Institute of Chartered Accountants in England and Wales. I would go so far as to say that it is the most highly recognised and finest accountancy qualification in the world. I say that with pride, and I am sorry that I am boasting. The ICAEW welcomes the passage of the Bill and a new UK framework for recognition of professional qualifications from around the world. It says that the Bill confirms that the UK does not give preference to any one nationality or country. It is a global recognition system, no matter where you work and qualify. This is positive, as it will make processes of recognition simpler for regulators to administer and demonstrates the UK’s global outlook—totally in tune with global Britain.
This is a rare opportunity to propose much-needed amendments to sections of the Companies Act 2006, such as Section 1221, which deals with the Secretary of State’s powers to recognise foreign qualifications for eligibility to become a UK statutory auditor. Select changes to the Act would enable the UK to enter more freely into audit recognition agreements with other countries. The Bill establishes transparency by setting rules and criteria for all professionals and for all potential applicants wishing to practise a profession in the UK.
Clause 16 of the Bill says that a regulated profession
“means a profession that is regulated by law in the United Kingdom or a part of it”.
Does the definition of a regulator in the Bill includes chartered bodies, or is it the profession’s statutory regulator? In the case of the accountancy profession that is the FRC/ARGA. I assume that it is the FRC/ARGA for audit, but for accountancy the ICAEW is considered the regulator. The Bill does not define clearly which regulator will be responsible. Perhaps the Minister would like to explain.
Clause 4 dictates the contents of a regulator recognition agreement. The ICAEW has agreements with accountancy bodies around the world. Will it, as a professional body, continue to retain autonomy over the formation and content of recognition agreements with other countries, or will this become the responsibility of the FRC/ARGA, or of the department for business? Will it gain new powers to intervene in ICAEW decisions? Will the Minister respond to that?
Finally, Clause 3 requires regulators of professions in all parts of the UK to publish information on the entry and practice requirements of their profession. We welcome these transparency measures, but any additional measures and obligations should be proportionate. The Bill could lead to a major work and cost burden for professional bodies if, in the interests of transparency, they were obliged to implement customer service standards for applicants that go beyond what is currently required, such as website redesign, process times for applications, fee caps, and so on. Do the Government agree?
The Solicitors Regulation Authority supports the overall aims of this Bill, including encouraging a diversity of talent and skills into the UK, and maximising opportunities for trade in professional services by providing an easily navigable regulatory framework. It is pleased that the Government’s approach is underpinned by the need for public confidence that professionals are appropriately qualified. Regulators must be able to set the standards and to make autonomous and independent decisions. Do the Government agree?
There is already an established system for recognising overseas legal professional qualifications that is targeted and proportionate, with mechanisms in place for candidates to qualify with appropriate exemptions based on an assessment of equivalence. The Solicitors Regulation Authority was very clear in responding to last year’s call for evidence. It said that recognition of professional qualifications in the legal profession should be based on the equivalence of the standard and content of an overseas qualification, assessed on a case-by-case basis, rather than solely on reciprocity. This approach would ensure that all providers of legal services in England and Wales have the knowledge and skills to practise safely and competently, and that any restrictions are targeted and proportionate. It is pleased that the Bill supports this approach and that it is underpinned by the need for public confidence that professionals are appropriately qualified. The SRA says it is essential that regulators can set the standards and make autonomous and independent decisions. This is key for it as an organisation exercising statutory regulatory functions in the public interest. Do the Government agree?
The UK is hugely fortunate to have the finest professional services in the world. They are a jewel in our crown, and I hope that the Bill does everything to strengthen their reputation, of which we are very proud.
Lord Hunt of Kings Heath (Lab) [V]
My Lords, I thank the Minister. I declare an interest as a member of the GMC board, although I will be speaking in a personal capacity on the Bill. I welcome my noble friend Lady Blake to the Front Bench and congratulate her on an excellent opening speech.
There are three points that I want to make about the Bill. First, I want to ask the Minister about its core purpose. We have been told that the Bill
“creates a new framework for the recognition of professional qualifications and experience gained overseas and takes steps to reform regulators’ practice. It will revoke and replace the interim system for professional qualifications that derives from the UK’s membership of the EU.”
We have also been told that the Bill
“is part of the Government’s plans to exercise the UK’s new regulatory flexibility”.
What is less clear is how is it to be done. We are in the dark, as my noble friend Lady Blake said.
The Minister also said that we need to remove outdated legislation. Is it the Government’s intention to streamline the approval process for professional qualifications? How does this fit with immigration law and the remit of the Home Office? The noble Lord, Lord Purvis, made some very interesting points about this and the perversity of Her Majesty’s Government’s position in relation to skill shortages.
The Bill aims to ensure the safety of service provision, provide consumer confidence and help maintain professional standards, but if they are to be maintained in the post-EU world is there a trade-off between these different objectives? In the closing remarks of his introduction to the Bill, the Minister referred to the determination of the Government to allow the autonomy of regulators to continue. That is very welcome, but how does that stand beside the Government’s wish to reform regulators’ practice? Will the Minister clear up that point?
My second point concerns the use of secondary legislation in the Bill. This is a very small Bill of 14 pages and 19 clauses, and it is littered with regulation-making powers. The core of the Bill is contained in Clauses 1 3, 4, 5 and 6, which relate to the “Power to provide for individuals to be treated as having UK qualifications”, the “Implementation of international recognition agreements”, the “Authorisation to enter into regulator recognition agreements” and the “Revocation of general EU system of recognition of overseas qualifications”. All these clauses are subject to a series of regulation-making powers. Then there is Clause 13, which is a Henry VIII clause par excellence. It essentially gives Ministers power to modify through regulations any piece of primary legislation. This has not been justified by the Government. All we have been told is that it is necessary because
“Changes would need to be integrated into the existing legislative scheme for given profession because a single approach covering all affected professions would not be ‘practicable’.”
That is not good enough.
I refer the Minister to the recent report of the Secondary Legislation Scrutiny Committee, which during the course of the past year has become increasingly concerned about the growing tendency of the Government to introduce skeleton Bills in which broad delegated powers are sought in lieu of policy detail. As a result, in September, the Secondary Legislation Scrutiny Committee, the Constitution Committee and the Delegated Powers and Regulatory Reform Committee wrote to Michael Gove and Mr Rees-Mogg raising their concerns. The committees said that, even taking into account the exceptional circumstances of withdrawal from the EU and the pandemic,
“the bills which have been introduced into Parliament in response to them have been extraordinary in terms of the extent to which they have permitted a shift of power from the legislature to the executive. … It is a constitutionally fundamental issue, not only in terms of the relationship between Parliament and the executive but also more widely in terms of the relationship of trust between government and the public at large. Without substantive provision on the face of the Bill, Parliament is being asked to pass legislation without knowing how the powers conferred may be exercised by ministers and so without knowing what impact the legislation may have on members of the public affected by it.”
Mr Rees-Mogg acknowledged that, “as these are exceptional times”, such Bills,
“do not necessarily provide a model example of how Parliament would like to see legislation brought forward”
and that
“Bills with substantial powers, though sometimes essential, should not be a tool to cover imperfect policy development.”
The implication of the use of skeleton legislation is that the instruments made under it may contain substantial policy changes which would be more appropriately subject to the greater scrutiny afforded to primary legislation.
Reflecting the conclusions of its correspondence with Mr Rees-Mogg, the scrutiny committee urged the Government
“ ‘to bring forward bills that contain clear policy intention instead of broad delegated powers’ and to ensure that ‘Departments do not use the exceptional powers given to them by Parliament as an expedient in the context of the pandemic as a cloak for effecting longer term, post-pandemic changes which would more properly be included in primary legislation.’ ”
Quite. It will be interesting to see what the Delegated Powers and Regulatory Reform Committee has to say about the Bill when it reports shortly. In advance of its forthcoming report, I suggest to the Minister that either the Government flesh out the policy details in the Bill or the case for a sunset clause becomes very clear. I support my noble friend Lady Blake’s argument for draft statutory instruments to be published before Report.
I now turn to my third point, which is of specific concern to the GMC and other health regulators. Clause 1 gives power to the appropriate national authority—in this case, the Secretary of State for Health and Social Care—to draft regulations and introduce a process that would require the GMC and other regulators 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. This 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 automatic entitlement to practise to international medical graduates on the same basis as UK graduates.
Currently, the GMC has a very rigorous process for assessing whether international medical graduates are safe and fit to practise in the UK. Under this Bill, that rigorous assessment could be completely lost. It would be very difficult for an agency such as the GMC, given that it has more than 10,000 international medical graduates applying for registration each year, and it would be impossible to assess the number of qualifications from countries as diverse as India, Pakistan, Nigeria, UAE et cetera and their many medical schools. This could also affect postgraduate qualifications and the potential for those qualifications to be captured by the Bill and subsequent regulations. There is concern that the Bill as drafted could force health professional regulators to accept professionals into UK practice in a way that compromises patient safety and could have an impact on workforce supply by requiring them formally to assess thousands of qualifications in detail in order to allow professionals to practise in the UK.
The Minister said the Bill does not restrict the autonomy of regulators, although, as I have already pointed out, in the documentation accompanying the Bill the Government say it
“takes steps to reform regulators’ practices”.
We need to know what exactly the Government mean when they say that the autonomy of regulators will not be impacted. Today, the Minister said he would table an amendment before Committee to deal with this. That is welcome and I look forward to seeing that amendment, but I hope that the Minister will be able to answer on some of the more substantive issues in relation to the Bill.
Baroness Garden of Frognal (LD)
My Lords, I too thank the Minister and the Bill team for their briefings. I recognise that this Bill is needed in the light of our leaving the EU and the arrangements made for professional bodies within that, but parts of the Bill are still a bit of a mystery. After listening to previous speakers, I am glad I am not the only one who feels that. Doubtless the scales will fall from our eyes as we progress.
I am chary of the assistance centre and wonder how welcome it will be and how relevant the additional duties, so I look forward to more briefings from the professional bodies affected by the Bill. It was most helpful to have the list of those within the Bill’s remit, and I note that those with royal charters are outside that remit. Royal charters are powerful barriers against interference, including from Governments, but I ask how useful this Bill is if so many prestigious professional bodies are not within its remit. I have a feeling that the august institution of the noble Lord, Lord Bilimoria, is outside the Bill’s remit, and it may be easier to be enthusiastic about a Bill if you are not directly affected by it.
I remind the House of my interests as a vice-president of City & Guilds, an organisation for which I worked for some 20 years. Nearly all that time was spent running the senior awards department, set up in 1990 to look after the top level of vocational awards. Now renamed the Professional Recognition Awards, they are recognised by Ofqual and attract funding.
Part of my remit was to persuade universities and professional bodies that those who had reached our high work-based standards also had the knowledge and skills for entry to university programmes or professional membership. The Minister’s list named 160 professional bodies. I had a very small team, so this was something of a herculean task, even without the universities, which in those days were loath to consider anything not profoundly academic. Vocational degrees had not really been invented and, although many professional bodies insisted on an academic degree for membership, by and large universities did not reciprocate by recognising professional expertise for their programmes.
I naively thought that if I could convince the Engineering Council, all the engineering institutes would immediately fall into line; I was very rapidly disabused. The civils, mechanicals, electricals and all the many other engineering bodies each fiercely upheld their autonomy. Of course, many of them were royal charter bodies, which would make them outside the powers of this Bill.
My brush with professional bodies, royal charters and limited entry qualifications was as nothing compared with an EU project called LangCred, to which I was rapidly appointed chairman. The aim was to compile a directory of all work-based qualifications across the countries of the EU, so that qualifications obtained in one country could be readily matched to similar-level qualifications in another. Again, the team was pitifully small: two people from most contributing countries and one delegate from smaller ones. Our remit was to cover from level 1 upwards. From memory, I think our highest level was 9. Across all work disciplines, we certainly covered the most senior professional and managerial roles. If I tell noble Lords that even after two generous tranches of EU money, we failed to produce this comprehensive directory, I do not think they will be surprised. This work was later taken up as mainstream EU work, with rather more resources, and was rather more of a success than our minimal team could achieve.
As chairman of LangCred I had the distinction of being the very first person to wind up a European economic interest group, which was not exactly the highlight of my career but an interesting experience none the less. When the Bill talks cheerily about overseas qualifications, I am taken back to those happy European days. I joined LangCred a year into the programme and, at the first meeting I attended, the two German delegates arrived, declared that they would continue to attend as observers but let us all know that Germany would never recognise qualifications not awarded by Germany. European harmony was alive and well even when we were members of the EU, and I can imagine only that it will not have improved since Brexit.
It rapidly became obvious that however professionally proficient someone was, without a comparable language proficiency their expertise would be less than welcome or useful. For an engineer, financier or caterer to work in Portugal or Poland, knowledge of the professional language, let alone the social language, would be essential. As the Minister said, they could not work and provide skills overseas if they could not communicate.
Unless I have missed it, nowhere in any of the literature we have been sent is there a reference to languages, not even to the need for good English to practise in the UK. Putting on my linguist’s hat, it is highly regrettable that the study of modern foreign languages at schools and colleges has been allowed to diminish in the way it has. Now that we have left the EU, the other European countries no longer have to pander to our insistence on English as the universal language, so it is more important than ever that we can converse in the languages of our former colleagues. Perhaps this Bill could be another peg on which to hang the vital importance of modern foreign languages. Can the Minister say what thought has been given to language proficiency in discussing the overseas parts of this Bill, or indeed the importance of good English for those from overseas who wish to work in the UK?
I look forward to the continued scrutiny of the Bill. I can hope only that our professionals will be able to continue their high standards and be joined by those from other countries with equally high standards, just so long as we can all agree on what those standards are and can understand the languages we speak. I can feel some amendments coming on in Committee, but meanwhile I hope this Bill will become increasingly clear as discussions progress.
Lord Ribeiro (Con) [V]
My Lords, it is a pleasure to be able to speak at Second Reading. I declare my interests as listed on the register.
We are dealing with more than 160 professions regulated by legislation and surely cannot accept a one-size-fits-all approach to these professions. The General Medical Council, mentioned previously by the noble Lord, Lord Hunt, was founded in 1858 and produced its first registration of doctors in 1859. We established processes for registering doctors 160 years ago, so the process for assessment and registration of doctors is now well established. For such organisations, unlike in other sectors, there are existing powers within legislation to do the majority of what this Bill seeks. To the medical profession and its regulators, given the long-standing history of overseas recognition and registration, this Bill seems unnecessary and risks cutting across these established processes. One might ask: if it ain’t broke, why fix it?
The consultation on the Bill found evidence that, while the regulatory landscape can operate smoothly,
“there is considerable diversity of approaches and expectations, which can be difficult to navigate.”
The desire for enabling approaches to the recognition of professional qualifications that meet the needs of all parts of the UK should not be used as a means to achieve uniformity in the regulation of professional bodies. Medicine requires strict regulations and standards, because patients’ lives may be at risk without them. Any dilution in standards, in a mistaken attempt to achieve uniformity, may have unintended consequences.
For this reason, the GMC—as the noble Lord, Lord Hunt of Kings Heath, noted—and other medical bodies have concerns about Clause 1(4), which could force health profession regulators to accept professionals into the UK to practise, in a way that compromises patient safety. It also has implications for the workforce we need, as it would require medical regulators to assess thousands of applications to allow medical professionals to practise in the UK. This seems unnecessary, given the well-established methods we currently have through the Professional and Linguistic Assessments Board, which the noble Baroness, Lady Garden of Frognal, mentioned in her speech.
PLAB, as we know it, is taken in two parts. Part 1 is a multiple-choice examination with 180 single best answers, and it lasts for three hours. Part 2 consists of an objective structured clinical examination, OSCE. While part 1 may be taken in overseas centres, part 2 is undertaken in the UK and consists of 18 clinical stations, each lasting eight minutes, with two minutes of reading time added. This is a rigorous assessment and is set at the level of competence of a foundation year 2 doctor, so why is there a need for an assistance centre? Do the Government not trust the GMC to undertake this task, given its long track record, which I have detailed? Why is there a need for another layer of bureaucracy between the regulator and the applicant?
I am also concerned by the use of “substantially the same” in Clause 1(2)(b). Clause 1(1) gives international professionals an entitlement to practise on the basis of their overseas qualifications or experience that are “substantially the same” as or equivalent to UK qualifications or experience. In the interest of patient safety, the GMC quite rightly believes it has the obligation to assure itself that professionals seeking registration have the knowledge, skills, and experience to practise safely in the UK. So I ask: is “substantially” 95%, 85% or 75% of the same knowledge and skills in order to be “substantially the same standard”? How is this standard to be tested? What guarantees can be given that this equates to the standards required to practise in the UK at the present time?
For example, in my discipline of surgery, patients are potentially at risk every time they undergo a surgical operation. As president of the Confidential Reporting System in Surgery, CORESS, I see reports of near-misses in surgery in the UK by professionals trained in the UK. This may be more apparent in locum doctors who may be unfamiliar with equipment or hospital practices and occasionally may misinterpret the labelling on packages. Language matters, and merely accepting qualifications is no guarantee that the practitioner has the language skills to work in the UK.
What assurances can the Minister give that these professional standards will be maintained? We do not accept an ill-defined criterion of “substantially the same”. The GMC believes, and I agree, that the wording of Clause 1(2) could result in secondary legislation that would prevent the GMC from interpreting qualifications or experience in a way that enables it to assess knowledge and skills through robust written and clinical tests like the PLAB I described earlier.
Although this may not be the intention of the Bill, it is important to spell this out clearly and make explicit provision in the Bill that regulators may put processes in place to determine appropriate knowledge and skills over and above the qualification as a necessary step towards registration. Without these assurances, the implications for patient safety are great. Coupled with the inevitable workforce shortages after leaving the EU, this could lead to a lowering of standards to fulfil the workforce needs.
My questions for the Minister are these: first, can the Government insert an explicit provision in Clause (1)(2) of the Bill that regulators are able to determine appropriate knowledge, skills and experience in any way they see fit? Secondly, regarding the use of “substantially the same” as UK qualifications or experiences, can the Government insert a provision into Clause (1)(2) of the Bill to clarify that the nature of an assessment of an international qualification is to be determined by each regulator and does not supersede the assessment of knowledge, skills and experience?
This Bill covers over 160 professions. It is important that the healthcare professions are protected from any unintended consequences. Can my noble friend the Minister confirm that healthcare professional regulators with well-established routes to their registers will not have these compromised by the provisions of this Bill? I look forward to hearing the Minister’s replies.
Lord Trees (CB)
My Lords, it is a pleasure to follow the noble Lord, Lord Ribeiro, and my remarks will chime closely with his. I speak as a veterinary surgeon and my remarks will apply to the regulation of and qualifications for veterinary medicine and practice, which is regulated by the Royal College of Veterinary Surgeons. I declare my interest as a fellow and former president of that college. I emphasise that I am speaking in a personal context. I would sum up the response of the Royal College of Veterinary Surgeons to this Bill as “concerned curiosity”. As one official at the college said to me, the Bill appears to be “a solution in search of a problem”.
The RCVS currently has full powers to enter into mutual recognition agreements, which it has done with Australia, New Zealand and South Africa. For countries with acceptable and comparable accreditation systems, it can accept graduates from vet schools which have satisfied those accreditation processes, such as certain vet schools in the USA and some EU countries. Finally, it has a process for all other graduates from any school in any country in the world, who must take and pass the royal college’s own exams.
Collectively, this ensures a level of competence in the individuals allowed to register as MRCVS and hence practise in the UK. Above all, it gives the public an assurance of professional competence and it ensures that our animals can be treated only by those who have satisfied the RCVS standards, which apply, of course, to those who graduate from the accredited UK vet schools. All of this means that this Bill adds nothing to the powers and capabilities that already exist for the veterinary profession. I realise that all regulators do not have the same powers, but, if not, why not just give all regulators such powers and leave it at that?
An underlying concern is the ability conferred on government by this Bill in Clause 3 to
“implement international agreements … that the UK strikes … so far as they relate to the recognition of professional qualifications.”
I confess I am not quite sure what that really means. But it is not unreasonable to fear that government pressure, as a result of commitments they make in a desire to achieve FTAs, will pressure regulators to relax standards.
In agreeing FTAs, the Minister is aware of concerns about relaxing standards regarding, for example, animal welfare on the importation of products of animal origin, or about relaxing environmental standards relating to the production of all manner of products. It is not unreasonable to ask if this is the thin end of the wedge to relax the standards of competence that we currently expect from professional personnel. This pressure will undoubtedly be exacerbated in professions where we have skill shortages, as are specifically included in this Bill. The vet profession is one such profession.
If we need more vets or more of any other profession, we should ask why we cannot produce more to our standards rather than trying to make up the numbers by imports—the standards of which it is, practically and realistically, impossible to assess without a great cost. How can a body like the RCVS, which charges a very modest retention fee to current members of £364 per year, possibly accredit or ensure appropriate in-country accreditation of, for instance, the 24 vets schools in Brazil, the 52 in India or the 20 in Mexico?
The reason we have a shortage of vets is not a lack of student applications but is, to a large extent, due to a shortfall in the recovery of the full cost of veterinary education. The income to vet schools comprises the maximum allowable student fee plus the government grant to universities for band A clinical subjects, which include medicine, dentistry and veterinary science, and is £10,990 per year for 2021-22. For clinical veterinary education, virtually all the clinical training—the hospitals, clinics and associated equipment and many of the clinical teaching staff—has to be provided from this total income. This is in marked contrast to clinical medical training, where there is a very substantial subsidy through the NHS budget.
The reality is that the real cost of the education of vet students, which has been estimated at around £27,000 per year per student, substantially exceeds the band A allocation plus the maximum student fee. The difference is about £7,000 per student per year. With a relatively modest uplift in band A grants for vet students, for what is in a national context a moderate number of students—currently about 1,000 graduates per year, this problem could be addressed. The schools could expand the intake of UK entrants to vet schools who would contribute as graduates to the UK market.
In conclusion, to return to my major concern in this Bill—namely that, as a result of trade negotiations involving international recognition agreements, regulators will be pressurised into relaxing professional standards—why is Clause 3 necessary? Will the Bill in effect debar a regulator, such as the RCBS, from requiring certain applicants where no regulator recognition agreement has been agreed, to sit that UK regulator’s own examination or assessment procedures?
Baroness Noakes (Con)
My Lords, the Minister explained that the Bill applies only to professions regulated by law. At his helpful briefing meeting last week, he undertook to let me have a list of the bodies covered by the Bill as I found it a bit difficult to work out what was covered and what was not. I am most grateful that this list arrived over the weekend—at 5.30 pm on Sunday afternoon, to be precise, which demonstrates real commitment by the Bill team.
I have a particular interest in whether the Bill applies to the Institute of Chartered Accountants in England and Wales, of which I am a non-practising member. It is a body governed by royal charter and the noble Lord, Lord Bilimoria, might like to know that it is not on the Minister’s list. Many chartered accountants act as auditors and the ICAEW is a recognised professional body and a recognised supervisory body for those members who wish to practise as auditors. The Financial Reporting Council, which is on the Minister’s list, oversees the regulation of auditors rather than carrying it out itself. I believe a similar approach applies to insolvency practitioners. Hence the Bill is rather complicated in its scope, certainly for chartered accountants and, I imagine, for other professions as well.
To turn the Bill itself, there is one very good thing in it, one rather dodgy thing and some other things which I am on the whole puzzled about. The best things about the Bill are Clauses 5 and 6. As my noble friend explained, these clauses allow us to remove some more EU-retained law from our statute book and thereby remove the obligation to recognise EEA and Swiss professional qualifications. I support any legislation which allows us to frame our laws in a way which suits the UK. Even though I support Clauses 5 and 6, however, I am not convinced that the Henry VIII powers are accompanied by sufficient parliamentary oversight. The EU’s distinction between primary and secondary legislation is not necessarily a good guide to determining how our Parliament should be involved. This concern applies throughout the Bill and not just to Clauses 5 and 6. I believe we are still waiting for the report of the Delegated Powers and Regulatory Reform Committee, and I shall reserve final judgment until I see it.
The dodgy bit of the Bill is Clause 3, which allows the Government to override existing approaches and procedures for the recognition of non-UK qualifications if they have been covered in a trade treaty. This is explicitly presented in the Government’s policy paper as strengthening the UK’s ability to negotiate international trade treaties. It is some time since I was president of the ICAEW, but the recognition of overseas qualifications was a thorny issue then and I expect it still is. In addition, the landscape has changed and become more complicated since my day, with the arrival of the FRC to oversee the regulation of auditors.
Many countries have chartered accountancy qualifications which simply do not match the UK’s. Sometimes that is due to the technical coverage of the qualifications, at other times to the areas of practical experience and ethical training, and sometimes to all three. The Bill must not try to ignore that fact. Let us suppose that our enthusiastic and energetic Secretary of State for International Trade negotiated a trade treaty with one of those countries for which recognition had not been granted already in the UK. That might be in relation to chartered accountancy in general or for audit purposes. Clause 3 might allow the Government to tell the ICAEW or the FRC to recognise those qualifications, even if they would not be prepared to do so themselves because of the factors I mentioned. Clause 3 does not seem limited to telling the regulator of a regulated profession what to do; it seems capable of applying to both the ICAEW, which is not on the list, and the FRC, which is. This would drive a coach and horses through the ability of professions to guard the standards and quality of their qualifications, and I do not think that this concern will be confined to chartered accountants or auditors; I expect other professions will have similar issues.
My noble friend may say that we can rely on the CRaG processes to stop the Government doing stupid things in trade agreements, but he will know that CRaG is basically a rubber-stamping process, with only the blunderbuss of a weapon of the other place refusing to approve a whole agreement. Alternatively, either House might use the nuclear weapon of refusing to agree any regulations made under Clause 3. In the context of a major trade treaty, these are wholly unsatisfactory safeguards and unlikely to protect UK professions. That is why we need to look again at the power in Clause 3.
I shall briefly cover three puzzling areas. First, I am far from convinced that the new assistance centre set up by Clause 7, which is a reincarnation of an EU requirement, is necessary or that the costs are justified. The costs are borne by the taxpayer and we need to see a stronger case made for it than has appeared in the documents so far. Secondly, Clause 8 requires the regulator of regulated professions to publish a load of information. Not all professions are covered by the Bill, so it could create an unbalanced universe, with some but not all professions needing to comply. It also seems quite onerous on those bodies, such as the FRC, which oversee regulation but do not themselves do the detailed regulation. Why should the FRC gather and publish all the information already available at the ICAEW? That will serve only to increase costs. I have yet to see any explanation for the need for this clause. Are there any real concerns that regulated professions hide information about how to access membership? Who, if anyone, is policing this and what are the penalties for non-compliance? More profoundly, is this a solution in search of a problem, to which the noble Lord, Lord Trees, referred in the context of the veterinary profession?
Lastly, Clause 9 covers the exchange of information by regulators and seems a helpful provision underpinning the UK’s internal market in services, but I ask the Minister to reflect on whether its scope—largely excluding the chartered professions—makes it fit for purpose. In my specific example of the FRC and the ICAEW, it would seem largely ineffective, since the FRC will not hold data relating to individuals. A similar criticism appears to apply to Clause 10 as well.
I would like to be enthusiastic about the Bill, but I fear that it is creating a new division between professions covered by the Bill and those which are not. I also dislike its focus on a big government solution to a series of relatively minor problems in a few professions, which is all that the call for evidence actually revealed. On that basis, it is not a very Conservative Bill, and encouraging the Benches opposite to view it in that light may be the best help that I can give my noble friend in getting the Bill through.
Baroness Randerson (LD)
My Lords, I declare an interest as chancellor of Cardiff University. Like other universities, Cardiff trains and educates a large number of the professionals to whom this Bill applies. I also have an interest in the subject in general, having spent decades of my professional life working within further education and trying to understand international qualifications and advise students on that basis.
I recognise the need for this Bill in the new post-Brexit situation in which we find ourselves, but I join in the general thumbs-down that speakers so far have given it, because I have some serious concerns and specific questions about how the system will operate and the basis of government policy. It is a deceptively slim Bill—which means, of course, that it is simply a shell and an avalanche of regulations will follow in due course. The circumstances differ considerably from one profession to another and, indeed, across the four nations of the UK, so it is essential that, when these regulations come to us, they are subject to the full and automatic scrutiny of this House specifically to allow practitioners in each of the professions to have their concerns heard in this place.
The Government’s policy is deceptively simple too: to allow and encourage regulators to assess qualifications available in other countries, to establish equivalence, to recognise those qualifications and, hence, to address shortages. In practice, those shortages have got decidedly worse in many professions because EU citizens have gone home in considerable numbers. There is concern that the Government’s starting point in this process is to dismantle the existing legislation based on the EU system of equivalence.
In most matters, across the board, the UK has subsumed EU law into UK law, with a view to gradual divergence as and when we feel we need it. For professional qualifications, however, this is not to be. The Government are instead taking the clean slate approach, apparently because of the apparent preference given to EU citizens and EEA nationals if we keep the current basis. We are putting ourselves at a huge disadvantage in this regard. There will be a gap, because the process is very lengthy, as the EU discovered when it set out on it. There will be a huge gap when we are trying to fill vacancies in Britain; and, of course, we want our professionals and companies to be able to go and work in the maximum possible number of countries in the world. So, why we are pulling out the rug from under the current system, I am not clear.
Because the Bill is a shell, it gives no glimpse into the huge complexity of this issue. Many noble Lords sitting here will be too young to be aware of the years of tortuous negotiation that lay behind the EU system. My noble friend Lady Garden gave us a glimpse into it. The single market, we thought, would open up the gates and people would be able to go freely from one country to another. It took years to sort it out. As I said, I was a lecturer in further education at the time. I taught a subject called European business and foolishly set my students a case study to follow—the development of the single market in relation to qualifications. It went way beyond the available timescale—and, indeed, their concentration spans.
Many noble Lords will also be unaware of the lack of confidence in foreign qualifications that existed before the EU system was established. Such lack of confidence upsets public trust in professions. Why is it all so complex? You start with the building blocks. For example, you might have a BSc in biology, but one BSc in biology is very different from another, and the whole approach to qualifications is different in some other countries. In the UK we emphasise underpinning skills and knowledge, whereas in Germany, for example, it is all task-centred. That makes equivalence difficult to evaluate.
The Bill applies to 60 regulators and 150 professions, but not all regulators are equal. They are not all equally well resourced or experienced in what they have to do. I am concerned about the ability of some of them to withstand government pressure to establish equivalence in order to follow on from a trade deal. In the EU, the organisation that delights in the name of CEDEFOP—the European Centre for the Development of Vocational Training—brings together policy-makers, employers, trade unions, training institutions, trainers and learners. This Bill does not do that; it takes an ad hoc, piecemeal approach. Admittedly, BEIS is working on a common framework, but there is also a role here for the United Kingdom Internal Market Act, and complex issues may emerge from that.
So, what is driving all this? The Government want to address shortages but there is also specific mention of government direction to regulators as a result of trade deals; I share other noble Lords’ concerns about this. I also have real concerns that trade deals could force the recognition of equivalence from the top down where, in reality, that equivalence does not exist. There are real dangers in reciprocity. I am concerned that recognition is to be driven specifically by shortages. What about individuals applying to work in the UK who need their qualifications to be recognised? Perhaps a university wishes to employ an eminent medical practitioner from a country where the qualifications have not yet been recognised. How will individuals be dealt with?
I am also very concerned about the total lack of reference to higher education institutions. They are the suppliers of so much of the training and are, therefore, essential partners, producing teachers, doctors, architects, social workers and so on. Where is the co-ordination to make sure that regulators’ decisions are made on a firm ground of knowledge about the background of qualifications that people have in their field? What requirements will there be to co-ordinate, and how will this ad hoc approach ensure that that co-ordination takes place? Have higher education institutions even been consulted on this? I share concerns about the lack of reference to English language. Excellent professional skills do not necessarily mean excellent English skills. Universities require a certain level of English. That is essential for trust. How will that be dealt with?
I emphasise that this is a dynamic process. Qualifications change over time, and they do so very rapidly in the modern world. What is equivalent this year may not be next year. We have a topdown approach, driven by shortages and government trade deals. How will they recognise changes in the actual qualifications?
The devolved Administrations have a great deal of power in this field and in the large majority of professions. In many cases, they have their own regulators, with distinctly different requirements. Clearly, they have to be part of this and not subject to last-minute requests for legislative consent Motions—that will not work. Given that this is driven by UK Government trade deals, how will they be brought into a true partnership on this issue and not just consulted as an afterthought?
Finally, a shortage in one country is not necessarily a shortage in another. This will require the Government to look across borders and recognise the needs of different countries. At the same time, if you come to the UK as an immigrant, your profession may not be recognised.
The Bill will challenge us and certainly the Government, and it will establish issues and problems for the future. I recognise the need for it, but the Government have probably underestimated the problems and challenges that they face.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a pleasure to follow the noble Baroness, Lady Randerson, who expertly outlined the complexity contained within this apparently simple Bill.
It is also a pleasure to welcome the noble Baroness, Lady Blake of Leeds, who is not currently in her place, to her new role. I share the concerns that she expressed about the situation of EEA and Swiss citizens who are already here and practising their professions: they are established and their skills and experience are proven, and we need to ensure that they are able to continue without stress, worry or fear. Some of the experiences that we are already seeing with the settled status scheme, at borders in particular, is a great cause for concern.
I share the concern expressed by the noble Baroness, Lady Blake, and many others about the risk of professional bodies coming under pressure to tie trade deals together with recognition. I particularly note the dangers, as the noble Baroness, Lady Randerson, said, of that whole approach to, and model of, reciprocity.
While sharing many of the concerns that noble Lords have expressed about the Bill, I welcome the fact that it gives us a chance to really think about professional skills and how this whole area of issues relates to immigration, education and our skills agenda. We can learn and think about three things in this debate. First, this is a chance to assess where we are with Brexit. Secondly, this is a chance to debate that intersection between immigration policy, professional recognition and overseas development assistance, which I will come back to. Thirdly, we need to think about the nature of professions in a fast-changing world. There was a reference to one of our professional bodies dating back to the 1850s, and we have organisations that have been set up over many decades. Are our current structures and arrangements fit for the 21st century?
On the first point about the state of Brexit, the Bill is further reminder that it is not done; it has barely even started, in terms of dealing with the fallout. It is interesting that, as we debate, there is the woe of the laborious swapping of the EU-based CE markings for the post-Brexit British-based UKCA markings, involving the retesting of thousands of construction products, many of which the professionals that we are talking about will have to use. We have recently seen the Government acknowledge that they need to extend the period for that because of the complexity, which illustrates our current situation. That complexity has been well highlighted in this debate.
The Government outline how the Bill is intended to replace the EU approach with one that is focused on enabling professional bodies to make bilateral agreements with bodies from other countries. I was going to expand on this point, but the noble Lord, Lord Purvis of Tweed, very successfully outlined the sheer complexity and volume of what we are talking about, so I will not go over that ground again.
We need to know what the Government mean when they talk about opening up global Britain to new trade opportunities in services. That is very much related to how we treat people wanting to come here, which is where immigration rights become particularly relevant. If we create barriers to people coming and providing services here—I am looking at immigration rather than qualifications—then those same barriers will be put up to our service providers when they go to other places. The concept of reciprocity can be very much employed against us if we are draconian in our approach.
We have rightly had a lot of discussion in your Lordships’ House, which I very much support, about the problems that musicians are experiencing in relation to operating within the EU. We should not forget that lots of these problems have been masked by the pandemic, and, as the pandemic becomes less of an issue, we hope, and travel opens up, a lot of these issues will become very much more evident.
I will pick up a few specific points and then come to a general discussion. I think I heard the Minister correctly when he talked about Clause 8 as a potential way of opening up professions and promoting skills development. This caused me to go back and have another look at Clause 8, because I had not really thought of it in those terms. I very much hope that the Minister will be able to reassure me on this point: putting a formal, technical publication on a website will not address our issues around the need for access to professional development, particularly for young people but for all people in the UK.
This is the first chance that I have had to mention an issue that ties with some that the noble Baroness, Lady Fraser of Craigmaddie, raised about professionals needing to work in the UK to confirm their qualifications, reach a certain level, and demonstrate that level. Visa changes in 2010 trapped students coming across for 415 STEM courses and 222 vocational, education and training courses. This meant that for immigration purposes, they were no longer classified as students but instead as workers. The case study that I know most about in this case concerns becoming a RIBA-qualified architect in the UK; students have to work in an approved practice for two years after they have completed their studies and then do a final exam. I have worked with students who were hit extraordinarily hard by that and who simply could not secure the immigration status and therefore a qualification they had paid hundreds of thousands of pounds for, in some cases. I will be asking the Minister whether the Government have really looked at that and how it will relate to the nature of the Bill. It is a complex area.
Another specific point is the relationship with the devolved Administrations. A government document states:
“We will not normally make regulations under these powers in devolved areas without the agreement of the relevant devolved authority.”
Some noble Lords will remember the wrestle that we had with the internal market Bill over the need to protect the independent regulation of teachers on these islands, in relation to the attempt to enforce automatic recognition. In Committee, the Government resisted any claim that there was an issue with that—and then, on Report, they acknowledged that there was a problem and brought in an amendment.
Given what happened with the internal market Bill, I have a direct question that I hope the Minister will be able to answer now: under what abnormal conditions would the Government be likely to impose on the devolved Administrations rules that they opposed?
Very briefly, I share the concerns expressed by the noble Baroness, Lady Noakes, the noble Lord, Lord Hunt of Kings Heath, and others about the extensive nature of the Henry VIII powers here. The noble Baroness, Lady Randerson, referred to the avalanche of regulations likely to result from this, and I had a picture flash in my head, as I expect many noble Lords did, of that Grand Committee Room in which so many of us have spent so many hours, either physically or virtually, over the last year or so. However, we must also acknowledge how thinly populated, whether physically or virtually, that Grand Committee very often is. We are looking at issues of great complexity and specialist knowledge. There was reference in Oral Questions to the number of Members of your Lordships’ House, but it seems we still do not have enough to fill the Grand Committee Room.
I come now to a couple of broader issues, which tie back to what we have now—the transitional arrangements, particularly those for teaching and nursing, and preferential treatment for Swiss and EEA citizens. The noble Baroness, Lady Randerson, referred to the way in which, over decades, relationships were established across the European Union when we were a member, through knowledge of courses and training systems in different countries. People coming from those countries are now a known quantity. I am particularly concerned about the pressure likely to be put on the professional bodies to deal with a global circumstance—to deal with that level of global complexity. I am particularly concerned, again, about the pressure that might be put on some professions. I am thinking here of the veterinary profession, referred to by the noble Lord, Lord Trees. I know and hear reports about the difficulty in filling positions relating to meat inspection that require veterinary qualifications. These are very skilled and important jobs, crucial to public health. Are we going to see pressure to let people in with skills that we perhaps cannot quantify and do not know about, just because of the need to fill those?
I come now to the philosophical approach, which is where I perhaps most differ from most other noble Lords who have spoken. A lot of the discussion is about Britain’s competitive advantage—how we are better at this than anyone else and how we can sell this to the world. The thesis I would put to your Lordships’ House is that we have a complex, difficult world, with a climate emergency and huge public health dangers, in which what we need are a great many more professionals—trained people in every country on this planet, able to help the human race deal with the challenges we face. So I really want to challenge this approach of competitiveness—of competing with others. I ask the Government again, though perhaps not now, really to consider how we might use these changes being brought in to help professional bodies in other nations, particularly, perhaps, in the global south, to develop their own skills and be able to operate effectively in their own environments. That is in all our interests.
I come back to Covid—no one is safe until everybody is safe. We need good-quality professionals in every country in the world, and we have a gross shortage at the moment. That is perhaps of relevance to our position as chair of COP 26. In the earlier debate, the noble Lord, Lord Goldsmith, talked about the importance of green finance, a fast-developing professional area in which we are likely to see new qualifications and new demands put on existing qualifications. How will the Bill contribute to and assist with all that?
What we need, really, is not an overarching policy that seeks to encourage a brain drain from other nations. We have to acknowledge that young people, and older people, often want to travel, to experience the world and learn from different countries and systems, so that they become better, more skilled professionals from that experience. I come back to immigration policy and taking approaches that do not just say, “We’ll try to nab the best from around the world and get them here, working for us”, but says, “We can take professionals of all different levels of experience and skill, perhaps giving them some experience here, and our professionals can go to other countries and gain experience”. That is a better way forward.
I come to my final two points. The noble Baroness, Lady Noakes, said that she had seen a list of what is covered. Will the Minister share that list with all the participants in this debate? It would be useful to all of us. My particular interest is the position of chartered environmentalist, which I do not believe will be covered but is a formal qualification organised by the Society for the Environment. We come back here to my issue about needing new skills, new professions and new ways of looking at the world, particularly looking at world systems thinking. I would like to see many more chartered accountants who are also chartered environmentalists. We need to see that kind of cross-fertilisation of ideas, and that requires movement. I was having a discussion about this and we were looking back, not just to our time in the EU but further back. Some of the most magnificent structures in the UK—some of our magnificent old churches and cathedrals—were of course often built by teams of masons who came from around Europe. If we think about environmental issues, the quality of our building, Passivhaus and better standards, those things need exchange of skills and knowledge.
Finally, I am very much looking forward to the speech of the noble Lord, Lord Sikka, who will be speaking in a few slots’ time. He will raise this with far more detail and expertise than I can offer. We have heard a lot of talk about how good UK regulation is but, particularly in the financial sector, we have some very serious questions to ask when we look at the issue of financial scandal after financial scandal, which has been the reality of life in the City of London. Members of your Lordships’ House who took part in debates on the Financial Services Act will very much reflect on that. Is this Bill an opportunity to really think about how we can deal with professional qualifications, thinking about not just competence but also ethics and fitness to practise?
Baroness Watkins of Tavistock (CB)
My Lords, it is a pleasure to follow the noble Baroness, Lady Bennett of Manor Castle. I declare my interests as a registered nurse and the work outlined in the register that refers to my use of that qualification.
As the Minister explained, the Bill will create a new framework for the recognition of professional qualifications gained overseas and steps to reform regulatory practice in the UK. I acknowledge that the current system for professional regulation, derived from membership of the EU, requires revision and I support the concept that it is necessary to create a new framework that will apply globally, while also recognising many of the challenges that other noble Lords have outlined in relation to successfully achieving the outcome the Bill outlines. Government would be provided with a set of powers that enable agreements with regulators to recognise professional qualifications and to maintain an assessment centre, with which regulatory bodies must co-operate to provide advice and guidance to the public on standards for any profession. UK regulators would also be required to provide overseas regulators with reciprocal information regarding UK-qualified registrants, and to provide information on entry, exit and practice requirements for the professions they regulate, particularly, as other noble Lords have referred to, academic qualifications. Where devolved Administrations within the UK have separate regulators, reciprocal information will need to be supplied between the four countries.
There are 160 professions and more than 50 regulatory bodies that would be covered by the Bill. I intend to use nursing as an optic to illustrate the need to amend the Bill to ensure that public safety and fair terms of employment are maintained when the Bill is enacted.
The Bill is part of the Government’s plans to ensure that lack of information is not a barrier to entering and practising professions, of which nursing and midwifery are examples. However, just knowing what is expected and conducting a digital application against the published criteria for registration is not enough. To maintain public safety and deliver individualised, compassionate care, it is necessary to demonstrate practical competence in nursing skills and a full comprehension of the English language, including technical terms and mathematical concepts; for example, to estimate and safely deliver oral and injectable medication.
At the very minimum, the Bill needs to make explicit provision that regulators may put in place processes to measure competence to determine knowledge and skills over and above the stated qualification as an additional step to gain UK registration. It is perfectly reasonable to suggest that such an approach will be required reciprocally by most countries. It certainly will be in the United States, Australia and New Zealand. Can the Minister assure the House that the Government will support any such amendments so that the Bill safeguards patient protection and that only professionals who are safe and fit to practise are able to join UK health professional registers, including those for nursing and midwifery?
Finally, we know that there are many professions in the UK in which we have acute and long-term skills shortages, particularly in nursing. Clause 2(1) and (2) make provision for an “appropriate national authority” to speed up recognition of overseas qualification recognition where skills shortages occur—or at least this is my understanding; perhaps the Minister can clarify the situation. The Bill contains nine delegated powers and is being presented to the House prior to the Delegated Powers and Regulatory Reform Committee of this House making a full assessment of its effects. Can the Minister confirm that time will be made for all relevant committees of this House to review the Bill before enactment to ensure that public safety is protected?
Globally, there is a severe shortage of nurses, which has been exacerbated by the pandemic. The UK needs to educate and retain UK-qualified nurses through excellent training at degree level and good terms of employment. To deliver health and social care the UK must not return to an overreliance on recruiting overseas nurses but welcome those who wish to come and register in the UK and enable our own nurses to have reciprocal opportunities to work in other countries. I remain very uncomfortable that we are recruiting nurses from India with the state of the pandemic there at the moment.
The recruitment of nurses and other health professionals from lower- and middle-income countries, where terms of employment are often poor, must not result in artificially low terms of employment for UK health professionals. Can the Minister assure the House that this is not a hidden intention within the Bill and that ongoing monitoring of terms of employment will be conducted by the Government to ensure that the Bill does not have that unintended consequence?
Lord Bourne of Aberystwyth (Con) [V]
My Lords, it is a great pleasure to follow the noble Baroness, Lady Watkins of Tavistock. I declare my interests as set out in the register. I thank my noble friend Lord Grimstone for setting out the principles of the Bill so clearly. At its most simple and straightforward, its purpose is clear: to provide for recognition of qualifications from around the world, which will help to ensure that the United Kingdom has the qualifications and the staff that it needs.
Previously, of course, reciprocal recognition of professional qualifications was based on the European Union (Recognition of Professional Qualifications) Regulations 2015. As others have said, outside the EU a new system is clearly required, and I support that. We adopted an interim system providing recognition for professionals from the EU, Swiss and EFTA states but this was not reciprocated, and we need a broader base to provide for recognition of individuals from other countries. I certainly support that, provided there is no dilution of professional standards.
I wish to highlight several areas at this stage; in concluding the debate my noble friend may be able to comment on some of them, to which other noble Lords have also referred.
The first refers to the regulation-making powers and delegated powers—the Henry VIII clauses; term them what you will. Obviously, the report of the Delegated Powers and Regulatory Reform Committee is awaited; reference was made to this by my noble friend Lady Noakes. I understand the Government’s approach but obviously there is a very real concern about extensive delegated powers. Can my noble friend comment on when we can expect the report so that we can use this in debating the Bill as it goes through Committee and beyond? Clearly, the sooner, the better.
A second area, relating to Clause 3, has also been referred to by many noble Lords in the debate. The possibility of the overriding of provisions in the context of international trade is bound to cause concern. Of course, trade is important but it should not trump professional standards. There is also, as the noble Baroness, Lady Randerson, mentioned, a devolved dimension here. How will we ensure that the devolved Administrations are brought in here with regard to trade matters as well as professional standards? Once again, can my noble friend comment on this and give some indication of the Government’s approach?
More generally, on the issue of the devolved authorities, I can well understand, and indeed approve of, the accommodation of the different nations of the United Kingdom, where there of course is separate consideration of professional standards and qualifications. This will therefore mean separate provisions for Wales, Scotland and Northern Ireland, as indeed the Bill made makes clear. Can my noble friend update the House on the position on the legislative consent Motions? I think the noble Baroness, Lady Bennett, made reference to that. It is anticipated that there will be legislative consent Motions from the devolved Administrations. I assume that there will be no difficulty with these, but perhaps my noble friend could give us a taster as to what progress has been made in this area. Can he also update us on the position on common frameworks to co-ordinate work on the mutual recognition of professional qualifications with the devolved Administrations? Clearly, that is an important area.
Finally, I refer to the assistance centre created under Clause 7, providing assistance and advice to individuals who seek to practise a regulated provision in the United Kingdom. It seems that the Government regard this as central. Can my noble friend give us some indication of exactly how this will operate: what the costs and benefits are, and so on? Reading about it, I do not quite see how it fits into the scheme of providing that necessary advice and assistance. This has been referred to by other noble Lords in the debate.
As I say, I recognise the importance of the Bill and can quite see the need for it in the present situation. I have concerns—apparently, like other noble Lords—about some areas of the Bill. I look forward to the Bill proceeding and being subject to the detailed scrutiny that will no doubt follow in Committee and beyond.
Lord Sikka (Lab) [V]
My Lords, it is a great pleasure and honour to join this debate, and I particularly thank the noble Baroness, Lady Bennett of Manor Castle, for raising the issues that she has.
We are all conditioned to place trust in professionals; after all, no one would willingly let an unqualified surgeon operate on them. However, there is a darker side to professional qualifications and trade in professional services, whether at home or abroad, and the mono- chromatic approach of the Bill pays little attention to that.
Professionally qualified bankers have crashed banks and the economy and are implicated in HBOS, RBS and other frauds. Professionally qualified accountants and lawyers are often the masterminds behind money laundering scams and ingenious tax avoidance schemes that plunder the public purse and condemn millions to go without decent healthcare, housing, education, pensions and social infrastructure. Professionally qualified insolvency practitioners unnecessarily prolong insolvencies to collect mega fees. Too many auditing firms, often licensed by the Institute of Chartered Accountants in England and Wales, are complicit in accounting scandals and tax avoidance. On a number of occasions, the courts have concluded that the tax avoidance schemes marketed by accounting firms are unlawful. Despite that, not a single accounting firm whose scheme has been judged to be unlawful has actually been disciplined by the ICAEW, and that is wrong. So my question is this: through this Bill, what will we actually be exporting and importing through mutual recognition of professional qualifications and work experiences?
The faith in professional qualification and regulation is double-edged; it also blocks the emergence of new professions. The Bill does not establish any universal norms or benchmarks for professional education—for example, the principle that professional qualifications must prioritise public welfare and not promote anti-social practices.
Consider the case of accounting and wealth creation. We all know wealth creation requires co-operation among a variety of stakeholders. Shareholders provide finance and get a return in the form of dividends. Employees provide brains and brawn and get a return in the form of wages and salaries. Society provides education, healthcare, security and a legal system, and gets a return in the form of taxes. However, in professional accounting education, payment of wages and taxes is considered a cost, while payment to finance capital in the form of dividend is considered a reward. The self-serving logic is that efficiency depends on cutting costs, so armies of auditing firms and accountants working in those firms are available to squeeze labour, cut wages and design tax-dodging schemes. No professional is ever hired to advise on how to reduce return-to-finance capital.
Alternatives to conventional accounting logics are available but never find their way on to the professional accounting education syllabus adopted by the ICAEW and other bodies. They continue to inculcate individuals into class warfare. This Bill does not check the worst of professional qualifications by establishing principles of good professional education.
I would welcome some clarity from the Minister about Clause 10, which is headed
“Duty of regulator to provide information to overseas regulator”,
and its link with broader regulatory issues which inevitably arise from reliance placed on professionals. Consider the case of Barings Bank, which collapsed in February 1995. Its audits were conducted by Coopers & Lybrand and Deloitte in the UK and in Singapore. The accounting qualifications of some of the Singapore staff were recognised in the UK and enabled them to become members of the UK bodies. However, this did not give the then banking regulator, the Bank of England, access to that staff and the audit firm’s working papers in Singapore. Paragraphs 15 and 153 of the Bank of England’s 1995 report titled Report of the Board of Banking Supervision Inquiry into the Circumstances of the Collapse of Barings said:
“We have not been permitted access to C&L Singapore’s work papers relating to the 1994 audit of BFS [Baring Futures (Singapore) Pte Limited] or had the opportunity to interview their personnel. C&L Singapore has declined our request for access, stating that its obligation to respect its client confidentiality prevents it assisting us … We have not been permitted either access to the working papers of D&T or the opportunity to interview any of their personnel who performed the audit. We do not know what records and explanations were provided by BFS personnel to them”.
I hope that the Minister will be able to say something about the interaction between mutual recognition of qualifications and regulatory co-operation. Would a foreign national enjoying membership of a UK professional body but not resident in the UK be required to co-operate with the Financial Conduct Authority or equivalent? Under reciprocal arrangements, UK citizens would be required to co-operate with foreign regulators.
The Bill applies to 160 professions that are regulated by legislation and a network of more than 50 regulators. This multiplicity of regulators results in duplication, waste and obfuscation. For example, we have four professional accountancy bodies, known as the recognised supervisory bodies, or RSBs, dealing with external auditing. They are overseen by the Financial Reporting Council, soon to become the audit, reporting and governance authority or ARGA. However, there are five recognised qualifying bodies, the qualifications of which are recognised for auditing purposes. In addition, there are four recognised professional bodies, RPBs, dealing with around 1,300 insolvency practitioners. The Bill does not streamline the regulatory maze and says nothing about the autonomy or powers of various regulators. If a qualification is recognised by just one recognised supervisory body or recognised professional body, would others be forced to do the same? Is there a pecking order of the professional bodies? I strongly urge the Government to streamline the regulatory arrangements and eliminate the powers of all the accountancy bodies and transfer them to the FRC or its replacement, ARGA.
The 160 professions covered by the Bill need to be seen in a broader light. The reason is that each profession erects barriers to entry, which erodes competition and the quest for higher quality. For example, UK law requires that only an entity under the control of individuals licensed to carry out an audit can conduct audits, so 51% of the partners of a firm or 51% of shareholders of a company conducting the audit must hold a licence to audit. This is unlike any other market. For example, there is no requirement that a pharmaceutical business must be under the control of qualified pharmacists. The recognition of professional qualifications and the monopolies built around them prevent others, such as technology companies, from entering the audit market to facilitate much-needed change. So the recognition of professional qualifications has consequences, leading to monopolies, lack of competition and inevitable failures. The Government’s impact assessment shows no awareness of such impacts or how the social closure around predetermined qualifications facilitates failure and prevents the emergence of new professions.
The protection of the audit market also has implications for which qualifications get mutual recognition. Many IT qualifications will not be recognised, even though they are useful for audit purposes.
Mutual recognition of qualifications is part of a brain drain which encourages doctors, nurses, engineers and others to migrate from developing and emerging economies to the UK. Despite making a huge investment in social infrastructure and individuals, the home countries will not be in a position to receive the benefits of that investment. This is a huge transfer in not only skills but wealth from poorer nations to the UK. Will the Government compensate poorer countries for the loss of their wealth and human resources, and on what scale? If the UK continues to entice people from poorer countries, what incentives will it have to develop its own education and related infrastructure?
Can the Minister explain the link between mutual recognition and the Government’s immigration policy? Will anyone holding a recognised qualification get priority in securing a work permit and possible settlement in the UK, even if they earn less than £25,600 a year? Also, the Bill does not put any time limit on mutual recognition of qualifications. How will that be addressed? Will it be a once-and-for-all decision?
Finally, the Bill permits specified regulators to recognise foreign qualifications. Thus, the regulators have a clear statutory and public role. Despite this, the Bill does not place all regulators and relevant professional bodies within the framework of freedom of information legislation; these are public bodies and should be within its scope so that ordinary people can ask questions and hold the bodies to account.
The Deputy Speaker (Baroness Fookes) (Con)
I understand that the noble Baroness, Lady Wheatcroft, has withdrawn, so I call the noble Lord, Lord Palmer of Childs Hill.
Lord Palmer of Childs Hill (LD)
My Lords, in a debate on professional qualifications, I need to declare that I am yet another fellow of the Institute of Chartered Accountants in England and Wales, although long retired from general practice. I compliment the noble Lord, Lord Bilimoria, and the noble Baroness, Lady Noakes, on their very interesting comments. I hope that, during the passage of the Bill, we can develop those comments, as I think there is room for co-operation on amendments. The noble Baroness said that this is not a Conservative Bill; I think there will be a number of noble Lords who would like to deny parentage of it as presently drafted.
First, I maintain that the professional and business sector provides high-value and good-value jobs. The UK is a major exporter in this sector, as sadly we are no longer the industrial giant of past years. I well remember being delighted, as a partner in a professional firm of chartered accountants, on the fairly rare occasions when a new client actually manufactured anything—most were pushing pieces of paper around from one place to another.
What are the priorities on the recognition of professional qualifications? It must be a flexible approach. I see this as giving UK professional bodies autonomy and flexibility over who they admit as members and on what terms. An authoritarian Government are not needed.
The noble Lord, Lord Sikka, was less than complimentary about the accountancy profession. I did not really recognise his description of what is happening; every profession has things about which some of its members say, “I wish some members of my profession did not do that—or they should not.” The noble Lord spoke about audit; there are a lot of conversations within the accountancy profession about audits and who should do them, and about the fact that large company audits are the province of a very small group of firms. I know that professional bodies are very interested in this, although it is outside the scope of this legislation.
The role of the UK Government is actively to promote professional mobility and recognition by striking recognition agreements with other Governments, particularly our major trading partners and—after the unnecessary Brexit—EU member states. UK professional bodies, without interference from the Government, should be free to recognise incoming professionals where they—not the Government—deem the level, scope and content of their qualification to be equivalent. But they should not be obliged to provide a bridging aptitude test where they do not reach that equivalent.
The experience of my professional body is that there will be times when the UK Government’s involvement will be necessary for agreements between UK and non-UK professional bodies, as happens. Reluctantly, I note that government involvement might be needed, as a recognition agreement may need approval by that profession’s regulator. For accountancy, as has been mentioned, this is the Financial Reporting Council, which controls access to UK audit rights.
As we move beyond Second Reading, we need to consider conflicting forces in any approach to recognition agreements. We will want to be seen as open for business with the EU, despite Brexit, and open to the rest of the world, thus replacing what has been lost by exiting the single market.
However, there will be professional concern to recognise only those who have met all legal requirements. Audit, as has been mentioned, is a relevant case. I am informed that many overseas professional institutes want deals that include UK audit rights, but to date only two non-EU qualifications have ever been accepted by the Financial Reporting Council, both of which are no longer available to new students.
Of course, there are multiple professional bodies. I understand that, for instance, the Engineering Council—mentioned by other noble Lords—has been involved, with other professional regulators, in round-table talks with BEIS. Clearly, the issues will vary by profession: chartered accountants are not dentists, and dentists are not accountants. The requirements will be different, and very often known by the professional bodies and not so much by government departments. I get the impression that some UK professional bodies have been more involved with the Government than others, but with a basic requirement that the Bill covers both inbound and outbound professional qualifications.
The Bill has powers to amend primary legislation with secondary legislation; on Clauses 5 and 6, the Library briefing states that it expects a “large number”—that is an understatement—of amendments to a wide range of Acts. It has been argued that it seems “prudent” to take a power rather than to capture all the amendments in the Bill. Others might well say that it smacks of a half-baked pudding. It suggests we will get a number of SIs which will need careful parliamentary scrutiny. Indeed, the memorandum available this morning from BEIS has an overview of the Bill in sections: the first is to “revoke”, the second to “introduce”, the next to “enable”, the next to “maintain”, the next to “create”—then there is another “create”, another “create” and another “facilitate”. That is only the tip of the iceberg of the statutory instruments that will be needed in the course of this Bill. We have an albatross here, which the Government do not seem to be dealing with.
On grandfathering, the briefing also reports that the Government have said that revocation of the 2015 regulations will not affect the status of qualifications already recognised and that applications could be completed. Can the Minister say whether there could be a discrepancy in qualifications after a certain date if that procedure takes place?
Baroness Verma (Con)
My Lords, I refer to my interests in the register. I thank my noble friend the Minister for the way he introduced this Second Reading. He laid out very clearly that this Government will be forward-thinking after coming out of Europe and that we will make sure that, instead of excluding professionals from countries we are currently limited to, we will welcome them. We will work closely with them through our regulators to ensure that we do not dumb down but collectively make our own country stronger through professional services and work closely with regulators, mutually, across those countries with which we will have trade agreements. That is right and proper, and it is important that, rather than constantly looking backwards, we look forward as a country with confidence.
I had a different set of notes; I changed them after listening to noble Lords because I was getting rather down in the mouth thinking that, rather than us all being optimistic about how we can make our country really strong and great, working with developing nations that are racing ahead, we should look at immigration, migration and all the challenges that we have collectively faced with the pandemic. We should see the opportunities to share best practice and make regulators—not in other countries but our own regulators—stronger and much more independent. They need to be able to look both at where there are jobs currently and at the jobs that do not actually exist. We should look at how we are going to future-proof ourselves.
I am glad that the Bill is here. When I first took the papers home, I thought it was a very small document. I agree with noble Lords that there will be a lot of scrutiny. That is what this House is really good at: scrutinising and making sure that we get the best outcomes, not just for our country but for the partners that we will deal with. I hope that, by being critical friends but also constructive contributors, across this House we will be able to use the collective expertise and experience that this House affords us to come out with something that is not only a game-changer for the professional bodies but a gold standard for those regulators with which we will no doubt be making these bespoke arrangements.
Sometimes I get rather depressed when I look at competency in English and the ability to communicate. Of course those are important issues, but we have failed ourselves by failing to address competency in language in our country for decades. It is only right and proper that we address that issue now and make sure that, as people come to this country, the competencies of speaking, reading and writing in English are there. This also applies when we engage with our partners across the waters. I do not know who mentioned India but, if I may say so, Indian workers tend to have absolutely accurate, precise English. They are taught it grammatically and they come to this country with a very high level of competency. Unfortunately, we have also allowed lower-skilled workers to arrive on our shores and huddle in communities where they do not bother to engage in learning English. That is something that we as a country should address instead of blaming migrants who come to this country.
I also hope that my noble friend the Minister will see to it that, as we come out and look at the work that the Secretary of State for International Trade is doing—I must congratulate her on her progress—we look at ourselves as a country that embraces the new world, where developing, emerging economies will play a large part in the generation of global wealth, and not look at ourselves as rule-makers without being rule-takers. I hope that these short comments have set out my position: I hope that I will be constructive to the Minister, but I will also take time to scrutinise every single line that the Bill presents.
Lord Davies of Brixton (Lab) [V]
My Lords, I declare my interest in the register as a fellow of the Institute and Faculty of Actuaries.
I thank my noble friend Lady Blake of Leeds for her introductory speech, which set out many of the points of real concern. I agree with what she said about the Bill. I wish to raise three points of concern, then a more general issue.
First, we are told that the Bill will replace existing EU law in this area. It will create a number of regulation-making powers designed to implement what is described as a new framework—that is, a new framework for the recognition of overseas professional qualifications in the UK and the authorisation of regulators in the UK to enter into recognition agreements with regulators overseas. I see that as the crux of the Bill.
However, we do not yet know how these powers will be exercised. We are provided with some general principles. Thus the Government emphasise in today’s speeches and the supporting documentation that they wish to adopt a permissive approach. They also refer to having a flexible approach. They declare their objective to complement existing provisions. There is also reference to the need to recognise their “global Britain” ambitions. Those principles are all well and good, but they are also vague and aspirational. We have no real guidance on what they mean in practice, and we have no real assurance that the wide-ranging powers in the Bill will be exercised only in accordance with these aspirations. The Bill itself provides no guarantees. Other speakers have dealt with this at length; I certainly share their concerns. We need greater clarity, presumably in Committee, on what the Government mean when they say that the Bill establishes “a new framework”. What is new, other than removing the links with the European Union?
One thing that might help to clarify what is in the Government’s mind in what they admit is a complex regulatory landscape is where they tell us that
“there are over 160 professions … regulated by legislation across more than 50 regulators”.
When we had a conversation with the Minister, I asked for a list. I very much hope that we get it by Committee. Seeing the breadth of what is involved would be useful for all of us. Also, some precise examples would be really useful. Where will these powers be exercised and how do the Government anticipate them being exercised?
Secondly, there is the issue of trade agreements, touched on by a number of speakers. Whether the Government like it or not, there is a widespread lack of trust. Given their approach and the way in which trade agreements have become trophies that they are all too desperate to declare, there is an inevitable fear that powers for professional recognition will be exercised for the wrong reasons.
My third concern, which goes into more detail, is what is meant in Clause 16(3) by a profession that is
“regulated by law … by reason of legislation”.
I fear that this definition is far too wide and unclear. I can claim detailed expertise only in my own narrow area, but I am aware of many references to actuaries in legislation that might be caught by such a definition. In some cases, for example, an actuary is anyone recognised as such by the Secretary of State. Clearly such a case is a regulation by law by reason of legislation, but it would be unreasonable to include those with what the Government have in mind. I am sure we will pursue those three points of concern in Committee.
Finally, I make no apology for mentioning some thoughts for the Government that have been expressed by my own profession and which I share. There is a concern that, historically, Governments have not always fully appreciated the value of professional bodies to the economy and social fabric of the UK, as well as the role that they play in the international trade in services that is so crucial to the UK’s economic future.
The Institute and Faculty of Actuaries is an exemplar of a professional body that is an exporter in its own right for its international membership. Many actuaries across the world, not just in the UK, regard membership of the UK’s professional body for actuaries as important in its own right, even when they do not practise in the UK and have no intention of doing so—it is often, increasingly, alongside a local qualification. This benefits everyone. The individuals concerned and the profession as a whole benefit from the training and examining that is provided to those from abroad who achieve UK qualification and registration. There is also considerable mutual benefit from the accreditation of foreign universities, training organisations, the publications that are produced and the specialised projects, including professional regulatory standards.
We want the Government to recognise that not just actuaries but other professional bodies have this important role through their global membership and we hope that, in introducing this legislation, that has been taken into account so that it does not interfere with this important role. Will the Minister commit the Government to championing the UK professional standards offered by UK-based professionals, particularly as global standard setters?
Lord Hope of Craighead (CB) [V]
My Lords, it is a pleasure for a lawyer to follow a speech by an actuary. My concern is about the way the Bill will affect the legal profession in Scotland. I must declare an interest as I am a non-practising member of the Faculty of Advocates. At a previous stage of my career, when I was Lord President of the Court of Session, I had some responsibility for the regulation of the solicitors’ profession in Scotland and before that, when I was Dean of the Faculty of Advocates, for the regulation of members of the Scottish Bar.
The new framework which this Bill seeks to create is needed and, in principle, it is to be welcomed. The current interim system for the recognition of professional qualifications and experience from overseas derives from the UK’s membership of the EU, so what we need now is a new framework that will meet the demands for professional services within the UK in the future, which is what Clauses 5 and 6 are about. Qualifications and experience gained outside the UK need to be recognised here where there is a demand that cannot otherwise be met without unreasonable delays and charges. We must be able to implement new international agreements about the recognition of professional qualifications that will enable us to do that. The broad aim of providing regulators with a consistent set of powers that will maintain standards is to be welcomed too.
However, regulation of professions is a complex business. As many noble Lords have said, the Explanatory Notes tell us that there are more than 160 professions in the UK and that they are regulated by a network of more than 50 regulators, and there is a range of other professions that are regulated voluntarily. This is a huge canvas. The noble Lord, Lord Palmer of Childs Hill, was not overstating matters when he referred to icebergs and albatrosses. The centralised systems which this Bill seeks to create will work only if the diversity that exists across the UK is fully respected. I use the plural word “systems” because, while the regulation of architects, auditors and most health professionals, but not social work and social care, is a reserved matter under the devolution systems, the regulation of many others is devolved. The need to recognise diversity does not end there. The variety of regulatory systems across the professions within the devolved Administrations needs to be fully recognised and respected too.
I suggest that consultation with the professions will be essential before the regulation-making powers are exercised. The Bill is remarkably silent about this. There is no mention of consultation anywhere in the Bill, or in the Explanatory Notes either, so far as I can see. I hope that the Minister can explain why that is so. If consultation is expected, why does the Bill not say that consultation is required?
As regulation of the legal professions in Scotland is wholly devolved, the appropriate authority in their case will be Scottish Ministers. It will be for them to decide whether the test which Clause 2(2) sets out is met—that is, to enable demand for legal services to be met without unreasonable delay or charges. That does not seem to be the situation at present. It is difficult to know how readily that test will be met in future in the case of legal services, so we must assume that that matter will arise sooner or later. Annexe A to the Explanatory Notes tells us that a legislative consent Motion will be sought from the Scottish Parliament. I suspect that that is in the future because there has been an election and the Scottish Parliament has only recently resumed its work. So far so good, but we need to be sure how the system that is being created will work for the legal professions in Scotland before that stage is reached.
The Law Society of Scotland already has in place a system of regulations made under the Solicitors (Scotland) Act 1980 for the recognition of international candidates seeking to requalify in Scotland to practise as solicitors. It is likely that they will need some amendment if they are to give full effect to the provisions in Clause 1. The process for amending regulations made under that Act is lengthy, and it requires the concurrence of the Lord President. As I understand the definition in Clause 16, he is a regulator for the purposes of the Bill. One would want to be sure that he would at least be consulted before the power in Clause 3 to implement is exercised, in view of the overriding responsibility that he has over that branch of the legal profession and the highly sensitive nature of this clause, to which the noble Baroness, Lady Noakes, has drawn our attention. Then there is the question of who would be the specified regulator for the purposes of Clause 1. I hope that it would be the Law Society of Scotland itself, which handles the day-to-day detail, not the Lord President, as the other regulator. The provisions in Clauses 8(4) and (5) seem to support this approach. Does the Minister agree with that?
The Faculty of Advocates, to which all practising members of the Scottish Bar must belong, has a different system. Regulation of the faculty is provided for by Section 120 of the Legal Services (Scotland) Act 2010. It states that the Court of Session is responsible for prescribing the criteria for admission to the faculty but that its responsibilities are exercisable on its behalf by the Lord President or the faculty. Here, too, one would want to be sure that this rather complex system is fully respected by the Scottish Minsters before the power in Clause 3 is exercised. Consultation with the Lord President and the faculty must surely be a prerequisite, as they seem to be regulators within the meaning of Clause 16. Here, too, is the question of which of them will be the specified regulator for the purpose of Clause 1. I do not expect the Minister to provide a conclusive answer to that question, although any comment he might feel able to offer would be very welcome, but the Scottish Minsters will certainly have to answer it, and they would be wise to consult before the power is exercised.
I have one or two other short points. I welcome the provisions about the exchange of information in Clause 9, which will be of particular interest to the legal professions in the various jurisdictions in the UK, and the provisions in Clause 10. As for Clause 7, on the assistance centre, it would be helpful if the advice and assistance that is to be provided could be extended to providing information about visa and work permit requirements as well as entry requirements for the profession. Also, as this is to be a UK body, should the devolved Administrations not be consulted on the arrangements that are being made before it is set up? We must assume that at least some referrals for its help and guidance may come from the devolved nations.
Clauses 7(5), 9(4) and 10(7) state that the duty these clauses impose can be taken into account in determining whether any disclosure would breach the Data Protection Act 2018. This, as worded, does not seem to be much of a protection. Would it not be better to say that the existence of that duty is a defence?
Overall, this is a necessary Bill, but I suggest that more thought needs to be given to how it will work in practice.
Lord Moynihan (Con)
My Lords, I declare my interests in sport, as set out in the register. I thank my noble friend the Minister and his officials for their respective briefings. The Bill, in particular Clause 7(1)(b)(i), is important to the sporting community and the future contribution that British ski instructors and mountaineers will make internationally, not least in the alpine ski resorts of France, Italy, Austria and Switzerland, to name just some of the key historic markets in which the UK has played a prominent role in the development of the ski industry and the present high-level qualifications of the ski instructor community.
At the heart of this is the importance of ensuring that our qualifications are aligned worldwide, and that acceptance of our professional qualification recognition can be applied in all markets. It is an essential step towards labour mobility and permit-free seasonal work. In the United Kingdom, the British Association of Snowsport Instructors—BASI—continues to take the lead through its recent work. In its alignment with the International Ski Instructors Association—ISIA—the world body for the protection and promotion of the interests of professional ski instructors, BASI’s qualifications are globally recognised. BASI, with ISIA, has been an active contributor to the agreement and development of international quality standards across national associations, rather than working rights—although some countries such as Japan choose to link ISIA-aligned qualifications with protecting working rights.
The current position is bleak for our ski instructors. Qualification recognition is complex. In some countries, the profession of snowsports instruction is regulated by law—but not in others. In the EU, there are regions within countries where this also varies, bringing yet greater complexity. Austria, France and Italy, for example, are currently not members of ISIA. Because ISIA has no legal powers to enforce its quality standards and because the trade and co-operation agreement between the UK and the EU allows member states to pursue their discretion as to whether they recognise third countries’ qualifications, it is essential and urgent that the Government ensure that there is ongoing recognition of BASI qualifications which, prior to the lost Covid season, historically led British ski instructors to play an important supportive role in, for example, the French Ecole du Ski.
The British ski industry has funded the growth and success of many ski resorts across the Alps, yet there are those who would ignore this contribution and fail to link it to allow qualified British ski instructors the opportunity to join their French counterparts who seek employment in the sector. Ski tourism from the UK involves 1.76 million holidaymakers, producing a total spend of £2.9 billion in ski holidays alone over the course of a full season. However, instead of embracing this spend, the reality is different. There are more closed shops in the mountain resorts of France, where numerous parochial mayors are only too ready to take the British spend and then exercise their authority and ban or do their utmost to discourage the French ski school under their influence and power from hiring outstanding British ski instructors, many of whom have provided significant added value to the profession and are there to satisfy the choice of British ski holidaymakers—especially those families with young children in the mountains who are more comfortable with their children being taught by a fluent English speaker. At the same time, the British Mountain Guides association is butting up against those delivering services in EU countries to be established as workers in those nations.
Remedying that market distortion will require strong commitment from the Government to stand full square behind our ski instructors and assist BASI with bilateral and multilateral negotiations to deliver continued opportunities. It is perhaps unrealistic to think that professional bodies such as BASI, the BMC or BMG are sufficiently resourced to manage negotiating with their counterparts in all 27 EU states, let alone to address any protectionist working-rights policies that might exist at either a federal or regional level. Whether skiing from Zermatt in Switzerland to Cervinia in Italy, or from Ischgl in Austria across to Samnaun in Switzerland, or traversing the 400-mile Portes du Soleil ski domain, which spans 13 resorts in France and Switzerland, British ski instructors now face a plethora of employment hurdles and obstructionist tactics to deter them.
Today, in the Swiss canton of Valais, which includes the resorts of Crans-Montana, Saas Fee, Verbier and Zermatt, a letter has been sent to the directors of ski schools setting out ways in which hurdles must now be put in the way of hiring British ski instructors by linking the recent decision with the UK’s departure from the EU and placing a raft of bureaucratic protectionist hurdles in the way of highly qualified British ski instructors who seek ongoing employment. There is now, for example, a requirement that federal government acts as an appellate body and local ski schools sign off the ski instructors they employ as qualified “teachers” without defining the Swiss qualifications required for such teachers as opposed to “ski instructors”. Much urgently remains to be done on that. Negotiations are essential to address the mutual recognition of professional qualifications, which in this case are regulated by law in the alpine countries and, of course, add to the work permit issues and growing barriers of entry in the world of ski protectionism, which equally need to be addressed.
We conceded the widespread advantages of EU membership during the exit negotiations. If one is a British citizen, regardless of what association one is a member of, one is not permitted to enter the common training test, formerly known as Eurotest. A BASI member with an EU passport is also not permitted to enter the CTT.
Sadly, the news for snowboarding is even worse. In 2006, BASI negotiated a bilateral agreement with France—the Satolas protocol—over the recognition of snowboard instructor qualifications. As a French snowboarder, if one wants to teach snowboarding, one must complete the Diplôme d’Etat de Ski moniteur national de skialpin qualification with ENSA, meaning that one needs to be both a top-level alpine skier as well as a top-level snowboarder in order to be able to teach snowboarding. The UK has been told by the French that they will no longer recognise the BASI snowboard level 4 ISTD qualification.
My noble friend the Minister might be tempted to take this opportunity to intervene, if that were permitted in this House at the moment, and say that this Bill is only framework legislation and that ski instructors are not regulated by law, unlike many of their international counterparts, and that this is a narrow Bill confined to the 160 professions that are regulated by law in this country. However, as my noble friend will know, Clause 7 does not restrict support to regulated professions but covers the work of the UK Centre for Professional Qualifications, the existing assistance centre, which is open to all British professionals, including ski instructors. It is here in Clause 7 where the Government could provide a public-facing service for advice and assistance to professionals on the application of their professional qualifications overseas.
After all, the BEIS-regulated professions team leads on the international-facing elements of the recognition of professional qualifications policy, which includes our ongoing work on the EU-UK Trade and Cooperation Agreement, working with the DIT on the RPQ elements of FTA negotiations and the Government’s work to support regulators—and, I assume, UK unregulated but internationally regulated professional bodies such as BASI—to agree recognition arrangements with their overseas counterparts. That supports UK-qualified professionals seeking to practise overseas and UK professionals intending to work in other countries. The contracted-out UK CPQ can provide guidance, officials have informed me, on how professionals can gain recognition of their qualifications by overseas regulators and professional bodies. That is an excellent initiative and the envy of many countries, and I welcome it being included in the Bill as a legally binding requirement.
I therefore ask my noble friend to confirm that the Government will first assist with bilateral negotiations for international recognition of BASI standards through the UK CPQ, while simultaneously working on a master agreement. The UK CPQ can help CTT-qualified British ski instructors work abroad and navigate the systems with other countries through mapping qualifications and providing support on the ground. Within the department, the assistance centre and the recognition arrangement team will, I hope, help BASI with its overseas counterparts on both bilateral and multilateral deals to protect British ski instructors. That should see bilateral progress made at the same time as preparing for an application for an EU 27-wide mutual recognition agreement, deliverable with Foreign Office backing, to cover British mountain guides and snowsport instructors. I hope that it can be negotiated and one day annexed to the free trade agreement.
I hope the scope for taking forward these negotiations can be agreed with BASI and with government support. We may need to seek to strengthen the Bill to ensure that the future of British instructors is not to be a bleak one and that a legally binding commitment on the Government to report back to Parliament on work under Clause 7 is considered in Committee, covering negotiations of mutual agreements and replacement of the scheme under which the highest-level British qualifications—BASI level 4 for snowsports instructors—is recognised throughout the EU and beyond. Such mutual recognition should include access to the CTT, enabling ski instructors and mountaineers to apply for jobs in alpine countries, with pre-agreed high-standard professional qualifications as well as advice and help to navigate restrictions on the freedom to work, the need for work permits and movement within Europe. I fully agree with the strong representations of my noble friend Lady Fraser. This falls within Clause 7 and is not excluded as a consequence of ski instructors and mountain guides not being regulated by law in this country. In general, save for the extensive Henry VIII powers in the Bill, I fully support the measure.
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.
Baroness McIntosh of Pickering (Con)
My Lords, I am grateful to my noble friend and congratulate him on so ably introducing the Bill. At the outset, I raise two points and will press him on his opening remarks. One is in relation to offering preferential treatment, which we understand is now historic, to EEA countries and Switzerland, which he said was not reciprocated by the EU and was always intended to be temporary. However, we were told that that was a matter for negotiation at various points of the legislation.
There are many quotes I could give. I asked a Written Question of the Department for Exiting the European Union, and my noble friend Lord Callanan replied on 16 March 2018 to the effect that:
“The Government is firmly committed to the agreement in December and we are working with the Commission to agree how they should be translated into legal form in the Withdrawal Agreement. We are committed to turning the Joint Report into legal text as soon as possible and it remains our shared aim to reach agreement on the entire Withdrawal Agreement by October.”
More recently, in the debate on legislation for the withdrawal agreement, again in response to a question from me, my noble friend Lord Callanan replied:
“With regard to lawyers … the existing professional qualifications were recognised as part of the withdrawal agreement for existing citizens. The future recognition of qualifications, after the end of the implementation period, is a matter for negotiation. It is in the White Paper. It is something that we want to agree and we think it mutually desirable, but it has not yet been agreed.”—[Official Report, 24/7/18; col. 1673.]
I agree that it was desirable, and it is my fervent wish that we can go on and negotiate this, albeit not with the EU collectively but with individual member states.
I take this opportunity to refer to my interests on the register. In particular, I am a graduate in Scots law, where there is a proud tradition whereby we marry aspects of Roman law, private international law and UK constitutional law. I was one of the cohort of the first ever Scottish undergraduates who undertook a six-month compulsory course on European Community law, as it then was. I am a non-practising member of the Faculty of Advocates and endorse entirely the comments made by the noble and learned Lord, Lord Hope of Craighead. I pay tribute to all his contributions, not least to those in his earlier life as dean of the Faculty of Advocates.
I speak very much from the focal point that I had as beneficiary of the free movement of lawyers and the right to establish legal services for those from this country in other European Union countries while we were members of the European Union. I accept that we are now in a different situation, but I would like to think that those up and coming advocates will benefit from similar experiences to those that I had. I press my noble friend again on the reciprocity of recognition of qualifications and the mobility for professions and the right to practise—my noble friend said “globally” but I would say perhaps a little closer to home.
The remarks of the noble Baroness, Lady Garden of Frognal, struck a chord. We are very poor in this country at speaking other languages. I am fortunate to be able to speak a number of other languages and, indeed, studied in Denmark and did some translations for the European Commission in that language. I regret that our knowledge of European languages and foreign languages generally in this country has gone down since we left the European Union.
I take this opportunity to celebrate the distinct nature of legal services across the United Kingdom and to echo the view expressed by the noble and learned Lord, Lord Hope of Craighead, that it is essential that these are recognised and respected—as they are in the Bill through the devolution aspect as regards the mutual recognition of qualifications. So too is the fact that the regulation of the legal profession, among others, is devolved.
I have a specific question for my noble friend. Can he explain how the regulations—as a framework Bill, the regulations are multiple; other noble Lords have referred to that aspect—are to be adopted under the Bill and how the distinct nature, certainly of Scots law, will be reflected in this? The helpful briefing note prepared by the House of Lords Library for today’s debate refers to the ongoing work in the common frameworks and the fact that the MRPQ and services frameworks are a matter for discussion and negotiation under the common frameworks. It would be very helpful if my noble friend could give us an update. If he is able to do so, can he also address the issue that the noble and learned Lord, Lord Hope, raised—that consultation should be with the professions as well as the regulators and the devolved assemblies?
The very helpful briefing from the Law Society of Scotland highlighted a number of clauses, in particular Clause 3 on implementation of international recognition agreements, Clause 5 on the revocation of the general EU system of recognition of overseas qualifications, and Clause 7 on the assistance centre. It is believed that the devolved Administrations should be consulted on the arrangements for the creation of the assistance centre. It would be helpful if my noble friend could set out precisely what form the consultation will take, and at what stage. The noble Baroness, Lady Blake, asked for publication of the regulations in advance; that would be very helpful indeed.
I welcome the fact that the Bill’s focus is to facilitate cross-border recognition and regulation and to ensure an integrated system of the transfer of professions, so far as the Immigration Rules will permit. Given the wide regulation-making powers under the Bill, I ask the Government to give a commitment to consult on any draft regulations, as I have addressed. I add a personal plea for an assurance that the arrangements will be reciprocal, as regards not just the mutual recognition of professional qualifications but the right to establish legal services in other countries on a similar basis.
Preparing for today, I also received a helpful briefing from the Law Society of England and Wales. On the mutual recognition of qualifications, it has asked for it to be made obviously clear that foreign lawyers can provide legal advice on home-state law and international law, as well as English and Welsh law, with the exception of the six reserved activities. The Law Society goes on to say that it believes the UK should seek to obtain equivalent rights for England and Wales solicitors operating in foreign markets—I would argue for Scots lawyers too—and that it is vital that legal and other professional services are at the forefront of the forthcoming trade negotiations, for the reason that other noble Lords have given—the economic importance of the sector. It also asks that the specificities of market access for the legal sector are recognised. MRPQ does not necessarily have the same importance for lawyers as for other regulated professions, in the sense that the difficulty for trade and legal services generally lies in behind-the-border barriers.
In his opening remarks, my noble friend referred specifically to Clause 11 and the work of architects overseas. I am slightly concerned that he is underestimating the difficulty in relation to architects, of whom I understand there is a shortage. It took 21 years for 12 EU countries to agree the mutual recognition of architects’ qualifications. I hope it will not take that long for my noble friend to be able to negotiate those agreements.
To conclude, I ask my noble friend specifically that, as the Bill proceeds through Parliament, it will recognise the distinct nature of legal services in the United Kingdom, that consultation with professions as well the devolved Administrations will be secured, and that reciprocal arrangements on the recognition of qualifications will be sought within individual countries and in the shortest timeframe possible.
I look forward to examining and scrutinising the Bill as it proceeds through its legislative stages in this House.
Baroness Meacher (CB)
My Lords, it is a pleasure to follow the noble Baroness, Lady McIntosh of Pickering. This is an important Bill. Having lost the EU framework, we clearly need robust processes for the recognition of professional qualifications and experience gained overseas. In particular, it will be important to ensure that we are able to maintain standards across our professions.
The issue I want to flag up today relates to the wholesale delegation of powers in this Bill, to which many noble Lords have already referred. I am prompted to speak having read the Delegated Powers and Regulatory Reform Committee’s counsel’s opinion and the government memorandum on the Bill. I emphasise, however, as a member of the committee, that we have not yet discussed the Bill—we are actually discussing it tomorrow. I am therefore speaking in a personal capacity rather than in any way representing the views of the DPRRC. I know that if we want to propose amendments in Committee, it is etiquette in this House to flag up one’s concerns at Second Reading, hence my short—I emphasise short—contribution today.
I realise that to write into the Bill precise detail relating to 160 professions and more than 50 regulators would indeed present problems, as several noble Lords have said. The issue is whether there is sufficient detail to enable Parliament to scrutinise the proposals and ensure that standards are adequately safeguarded in future.
As the Government’s memorandum says, “with some exceptions, the substantive changes to the law envisaged by this Bill will be made through delegated powers rather than the Bill itself”. That is not some peripheral detail, it refers to the substantive changes. Those delegated powers are Henry VIII powers. They enable Ministers to change laws through regulations—which, as we know, do not provide for the level of parliamentary scrutiny applied to Bills. There are two important conditions set out in Clause 1, which, I emphasise, limit the delegated powers to an important degree. These are indeed welcome—the question is whether they are sufficient.
One of the conditions is that the relevant regulator for any profession must be satisfied that the overseas qualifications or experience demonstrate “substantially the same” standard as is demonstrated by the relevant UK qualification or experiences. How does the regulator do that? What is meant by “substantially the same”? That is crucial. We do not want a drop in standards. Would it be wise to include in the Bill a provision that holders of overseas qualifications will be required to undertake appropriate assessments to demonstrate parity of their qualifications and the UK equivalent? It would then be left to regulations to modify that requirement where appropriate. That feels to me to be the way round, with a general principle that regulations might modify and Parliament could have a debate about it, at any rate. It may also be appropriate to include in the Bill a provision that candidates will generally be required to undertake an assessment of their character and suitability for the profession in question.
Another point we may want to pick up in Committee, as mentioned by my noble friend Lady Watkins of Tavistock, is the lack of any reference in the Bill to the quality of English of a holder of an overseas qualification. In some professions, that is fundamental. For example, I worked in mental health for many years—try speaking to a psychotherapist, or a therapist of any kind, who is struggling with their English. Other issues will be proof of identity and, perhaps, a clear criminal record.
As the Institute and Faculty of Actuaries points out, it will be important that barriers to entry to this country are consistent and not too onerous. We can benefit also from the requirements of the Solicitors Regulation Authority. No doubt its assessment processes will inform debates in Committee and on Report.
The House will want to take note of the Constitution Committee’s comments in its report on the Private International Law (Implementation of Agreements) Act, that it is
“a long-standing convention of the constitution … that outside the exceptional case of making provision for EU law, international legal agreements that make changes to UK law are given domestic force by an Act of Parliament”.
In this context, are the early clauses of this Bill an inappropriate delegation of power?
I do not want to say more at this stage because it would be inappropriate ahead of the DPRRC discussion on the Bill tomorrow, but I hope I have said sufficient in case I want to pursue any of these issues as the Bill progresses through the House.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
The next speaker, the noble Baroness, Lady Fox of Buckley, has scratched, so I call the noble Lord, Lord Moylan.
Lord Moylan (Con)
My Lords, it is a pleasure to speak after the noble Baroness, Lady Meacher, who makes important points about delegated legislation. No doubt we will return to them.
I declare my interest as an honorary fellow of the Royal Institute of British Architects. I assure noble Lords that this does not qualify me in any way to practise architecture—quite the reverse—but I mention it because Clause 11 of the Bill is devoted to the architectural profession. Although RIBA is not a professional regulator—noble Lords will note from the text of the Bill that this role is reserved by statute to the Architects Registration Board—none the less the clause may affect its members. In that respect, it is a matter of regret that the consultation that the Government have been undertaking on changes to the Architects Act has not been published in time for consideration in this debate. I understand that it is expected imminently. It is a pity that it is not available today, but I hope my noble friend the Minister can give some assurance that this response will be available before Committee. It is necessary, and would at least be extremely helpful in addressing Clause 11 if we could understand the context of policy in which the Government see this whole question, going forward.
I broadly welcome the Bill. In many ways I share the enthusiasm of my noble friend Lady Noakes for the scrapping of EU legislation but, like many other noble Lords, I am somewhat confused by the Bill. In some ways, this is not helped by the order in which its clauses are written. There is a degree of randomness about them. The start of the Bill is really Clause 4; that is the heart of the whole thing, and it is a permissive clause which allows the professional bodies in the scope of the Bill to enter into agreements with corresponding organisations in other countries. There cannot really be an objection to that. The only question, as hinted at by certain noble Lords, is why in a free society such permission from the Government is necessary. None the less, it cannot be objected to.
However, having addressed Clause 4, we must turn back to Clause 1, which makes a very important point. In effect, it says that there may be cases where the public interest requires the Government to intervene to ensure that those professional regulators are undertaking, or at least creating, a route by which those mutual recognitions can be put in place. The assumption is that there is a recalcitrance or a failure on the part of the professional organisations to carry out what they are permitted to do by Clause 4, and I do not object to that as such. Of course, in many cases, there may be reasons of public interest why the Government might want to act to make something happen, but it is not a very strong clause. Out of respect for the professional bodies or professional regulators, all that the clause does is require them to put in place a route whereby such applications can be processed. There is nothing in the clause mandating them to approve anybody or to ensure that something is coming through the envisaged pipeline. Therefore, it is rather weak as a measure for addressing what would have been an identified public interest.
A public interest is a very broad thing. One can imagine a public interest that covers a whole range of matters in which the Government could quite properly want to take an interest to ensure that action by the professional bodies would occur. But then we turn to Clause 2, which does something else. It says that there is only one public interest that the Government will contemplate that will allow and authorise them to take steps under Clause 1, which is a lack of supply, if noble Lords see what I mean, to meet something called demand in the domestic workforce. We are now going to say that, having taken this reasonable power—not a very strong power, but a reasonable one—to act in the public interest, the Government will limit themselves to using it only where there is a demonstrated demand.
This is the part of the Bill that causes me the most concern. Here I am repeating to some extent things that other noble Lords have said or hinted at. The first is that it seems to limit the sense of public interest unnecessarily tightly. I have made that point. The second is, as some noble Lords have indicated, that it will lead to endless debate about footling questions that are in many cases bound to end up the subject of judicial review: what is the right number of tax accountants for Wales? What is the appropriate number of lawyers or advocates in Scotland? There is no right answer to these questions, but this is the substance of a debate that the Government are inviting upon themselves every time they seek to exercise the powers. I say the Government—here, of course, I mean the national authorities, because it will not necessarily be this Government who exercise the power. Every time the national authority seeks to exercise this power, it will walk straight into this quagmire. I simply do not see any reason for it.
The third thing is that it links the Bill to immigration. A great deal of the debate we have had this afternoon has been not really about the recognition of professional qualifications but about the right to work in the United Kingdom. The Bill, although it stretches into the world of immigration, has no immigration effects. Simply having this qualification, even if there is a demand for it, does not necessarily give you the right to work here; no work permit flows from this. One is treading into the world of immigration policy without actually having an effect on it. That complicates the Bill very unnecessarily.
As background to my remarks—this will not necessarily be welcome to the many professionally qualified people who have spoken in the debate; I hasten to add, in case there was any doubt, that I have no professional qualifications at all, so I am not among them in any sense—although I do not share the caustic view of the noble Lord, Lord Sikka, of the professional bodies in his own sphere of activity, I come with a certain sort of scepticism and suspicion that professions often seek to limit entry into their profession with a view to generating a scarcity premium. Criticise me if you like, but I have to say that many regulators end up being captured by the professions they seek to regulate.
My worry about connecting this to immigration is that it puts the debate in the wrong place and gives to the regulators the notion that they are there as an arm of the immigration system, whereas we want them to carry out as objectively as possible the accreditation of foreign qualifications to the standard that the Bill requires—although that standard might change in the course of further stages. That process ought to have no consequence or connection to immigration at all. All that made me think that the Bill might be better without Clause 2 at all.
All that can be tested later and I hope I have laid out what I see to be the main issues. I must end by saying how grateful I am to my noble friend the Minister for the time he gave me to discuss these issues and explain them to me. While I feel that I understand the Bill better as a consequence, it may be that he has yet more to teach me, that I may not understand it well, and that he may win me over to his point of view entirely. We have opportunities to pursue that over the coming weeks and I look forward to them.
Baroness Finlay of Llandaff (CB) [V]
My Lords, other noble Lords have spoken of concerns over the Bill, recognising the need for it while expressing a wide range of concerns. I will focus my remarks principally on the risks to medical registration and declare that I am registered with the General Medical Council.
For some years now, the GMC has been keen to speed up its processes and be more flexible, particularly in how it assesses the competence of international doctors when registering them. The current Department of Health and Social Care consultation, Regulating Healthcare Professionals, Protecting the Public, has wide-ranging proposals to reform professional regulation and include the regulation of physician associates and anaesthesia associates. However, the proposals in the Bill risk undermining the principles behind those reforms, so can the Minister explain how the two departments are working together? He may wish to write to me to clarify whether the proposals in the DHSC plans can be implemented via secondary legislation using Section 60 of the Health Act 1999 to modify professional regulation in the Medical Act 1983 via an Order in Council.
In the Bill, regulators will be obliged to establish a framework to recognise professional qualifications from around the world, with international agreements to ensure greater transparency of information. Yet the GMC and other health professional regulators already have powers and many years’ experience in overseas recognition and registration, making the Bill unnecessary for the health professional regulators—as the noble Lord, Lord Ribeiro, and my noble friend Lord Patel have explained.
I am relieved to hear that the Government will bring forward amendments to Clause 1. Without amendment, Clause 1(4) would inadvertently compromise patient safety and decrease workforce supply. Time spent formally assessing thousands of qualifications in great detail will not meet the policy objective of maintaining existing levels of public and consumer protection. Take the example of a trauma surgeon with 25 years’ experience in the field. The surgeon’s original medical school curriculum, surgical exams and grades provide no indication of current competence and skills. It is an up-to-date skills assessment that is crucial to safe practice, and in which the GMC has a wealth of experience.
Without the Government’s heralded amendment, Clause 1(2) would prevent the GMC from interpreting “qualifications or experience” in a way that enables using written and clinical tests of knowledge and skills to continue. Its well-established processes currently register over 10,000 doctors annually. The Bill needs amending to explicitly support assessment of appropriate knowledge and skills over and above the original qualification.
The safe registration of healthcare professionals is more complex than simplistically focusing on baseline qualifications. Every international medical graduate must have an acceptable overseas qualification and demonstrate that they have the knowledge, skills and experience to practise in the UK, usually through a test of competence with evidence of relevant clinical experience. This is far more meaningful than trying to see whether each international qualification is “substantially the same” as UK qualifications.
I hope that the Minister, in responding, will explain the policy intent behind these proposals that cover over 160 professions, and how the Bill will be amended to avoid unintended compromise of current processes that work well and will allow flexibility in the future. I know he referred to it in his opening remarks, but we are seeking more clarity.
Finally, I declare that I am president of the Chartered Society of Physiotherapy and ask the Minister to confirm that the competencies assessment will continue to apply to allow reciprocity because, for example, respiratory physiotherapy is a core skill in the UK but not taught in some other countries. Currently, the society supports physiotherapists going through the Health and Care Professions Council registration processes. Overall, can the Minister confirm that where processes are well refined they will not be compromised, as the current proposals in the Bill will increase regulators’ workload without evidence of improvement? Can he also confirm that healthcare professional regulators will not have to establish a new stage in their application procedures for international professionals to individually assess each qualification presented by an applicant, but that they can instead undertake this assessment through their existing procedures, such as tests of competence?
Lord Bhatia (Non-Afl) [V]
My Lords, being almost the last speaker in this debate, I will not read out the speech I had prepared. I largely agree with what many noble Lords have said, particularly the noble Lords, Lord Bilimoria and Lord Patel, and the noble Baronesses, Lady Verma, Lady Meacher and Lady Finlay. Will the Minister confirm that all professionals, particularly doctors, must have the skills to speak perfect English, and that patients who do not understand English must have access to the services of a skilled translator?
Baroness Gardner of Parkes (Con) [V]
My Lords, when the Second World War ended and the Australian troops came home, they were eligible to attend universities and many of them became dentists. I myself became a dentist, but I was straight from school. Then the surplus of dental graduates in Australia was so high that there was no work except for digging the Snowy River scheme or the roads, and after a short time they discovered there was this need for dentists in the UK and huge numbers came here at that time, as I did myself. I welcome the Bill in helping to recognise professional qualifications gained abroad where they meet UK standards.
I came from Australia in 1956, having recently qualified as a dentist from Sydney University and having heard of the shortage of dentists here. My qualification and training for the National Health Service was really to be able to say that I was able to practise dentistry and make my life here in England. The rest, as they say, is history. All I had to redo of my training on arrival in England was to register: the standards of teaching were accepted. I doubt I would have stayed too many years more if more study had been required without any earnings, not to mention the costs one would have to incur. Today we still often need more skilled people than we can train here, and people move to the UK and bring their skills with them, which we can put to good use. Similarly, it is useful in this global economy for our professional skills to be recognised abroad, for exactly the same reasons.
When looking through the draft Bill, I found myself wondering about the merits of the proposed assistance centre. I fear this looks like something with the potential to be a costly and resource-intensive body, when it merely needs to be something that directs people to the relevant regulators of the professions. In this day and age, it could in fact be a website run by a government department at a low cost. I hope to hear more from the Minister as to what is envisaged for the assistance centre. In particular, I seek assurance, that it will not become the regulator to the regulators.
Lord Fox (LD)
My Lords, given the United Kingdom’s position on the G7, we should in fact be a net skills exporter rather than an importer. It is to be regretted that this is not within the scope of the Bill and not the discussion that we are having, because that is at the heart of the reason that many of these clauses are in place. I have less regret that I will not be talking about accountants or auditors.
There is more than a smack in this Bill of, “I’m from the Government and I’m here to help you.” As pointed out by the last speaker and by the noble Baroness, Lady Noakes, the very existence of the assistance centre rings alarm bells to some extent. We have to examine how—if indeed the Government are to help—the Bill will cause things to be better. It is very difficult to tell. I am not in the Minister’s address book. Unlike the noble Baroness, Lady Noakes, I did not receive the important letter that revealed all about this Bill. There are so many unknowns, not least because its ultimate operation is masked in the cloak of invisibility as given by the upcoming secondary legislation that we have yet to see. This is a skeleton Bill. I welcome the comments of others on this subject, particularly those of the noble Lord, Lord Hunt of Kings Heath. I hope that the spirit of his words will be turned into actions by Her Majesty’s loyal Opposition as we get further through the Bill.
No one denies—and the Government seem to have to assert—that there is an advantage of diversity contributed by professionals brought in from overseas, but I would refute the idea implicit in the Bill that EU and EEA membership inhibited our international recruitment aims. As was so eloquently acknowledged by the noble Baroness, Lady Blake, you have only to look at the non-European professionals and the roles they play in the National Health Service to see that it was perfectly possible within the past regime to bring many international non-European professionals into this country.
However, it is not clear what effects the Bill will have on the future recruitment of healthcare professionals. Indeed, the Government themselves have acknowledged that the healthcare sector may need a transition period to phase this in. It would be helpful if the Minister could explain: first, why is that necessary? Secondly, is the mysterious and rapid change already coming to the Bill aimed at helping that? And, thirdly, if it is affecting the healthcare sector, why will it not affect other core sectors to come?
My noble friend Lord Purvis brought up the common travel area, particularly the Swiss agreement around that. More generally, the Government have stated:
“The revocation of the 2015 Regulations does not affect commitments under the CTA”
—the common travel area. However, I observe that the Government also said that the Northern Ireland protocol would not help to create a border down the Irish Sea, so we have to be careful about what we take from this.
In the Explanatory Notes to the Bill, the Government say:
“both the UK and Irish governments have agreed to ensure there are adequate routes to recognition for qualified professionals across the UK and Ireland.”
What is the nature of these routes, when might we see them emerge on a road map and how will this be taken forward? There are real questions about professionals who get recognised in countries that are not recognised in the EU; how will they be able to practise in Ireland? Could the Minister give a detailed response to that particular question, perhaps by letter?
The Government have said that the interim system has to go because it was perceived as offering preferential treatment to professionals with Swiss and EEA qualifications. As such, to handle this perception, the Bill rounds down access, rather than rounding it up: it knocks back market access and throws away the potential services of many highly skilled EEA people before it has established a positive route from other countries. I suggest that this is not in the best interests of United Kingdom citizens.
From my noble friends Lady Randerson and Lady Garden, we heard how hard it is to implement reciprocal arrangements—it is enormously difficult. We only have to look at the numbers of different professions and countries, and multiply them, to see that there are thousands of potential negotiations. I am very keen to hear how the Government see the current flow of professionals. Will the list that my noble friend Lord Purvis talked about get longer—will more professions be added to it?
We then talk about trade the other way. The noble Lord, Lord Bilimoria, sandwiched, between his enthusiasm and his advocating for the accountancy profession, a really stark warning for the Government. He warned clearly that the service sector in this country cannot operate if it does not establish recognition of the professional qualifications of the people who deliver the profit in it.
When the Minister very kindly met with me and colleagues, I asked about that mutual recognition process: why, I asked, would a particular organisation in a particular country let in more professionals to compete? This follows the suspicions that the noble Lord, Lord Moynihan, has on the subject of some professionals blocking out others. The Minister’s view was that, by removing this reciprocal arrangement, we will encourage the Europeans to negotiate. First, I was interested in, and appreciated, the contribution of the noble Baroness, Lady McIntosh, because we were told that we were already having those discussions, but it seems that we were not. Perhaps the Minister could clarify that issue: have we actually discussed with our former European colleagues how we could have mutual recognition? If not, why not—because the Minister in charge said that we were?
Looking forward, the Government are of course not leaving things to chance on the supply side. We have heard that they are taking on powers to create a demand-led approach to the issue of a shortage of professionals in this country. I am interested in the words “demand-led”, and I wonder why they were used. I am suspicious that it is to try to allay the fears of people who associate this with immigration—I note the conversation earlier—and that this is designed to ameliorate the fears of people who feel that this will lead to mass migration. This a folly and not needed. We need to talk properly about what skills we need in this country.
The Government are deciding to take on themselves the ability to assess demand for professionals. We have heard from other speakers that that is a very fraught route. There are known knowns: we know that if the Government are to allow hundreds of thousands of houses to be built in the British shires, we will need more quantity surveyors. But there are unknowns—for example, the fintech industry. The fintech industry was built by people who were here before there was a fintech industry. If there had been a quota for fintech people, there would have been no fintech. There is an innovation-stifling nature within the centre of the Bill. For a Government who have abandoned industrial strategy to start to look at demand management of skills is really quite ironic.
I call on the Minister to address what, in reality, the Government can do about demand. It is not clear what the reaction of the Government would be if the regulators failed to deliver sufficient professionals of the nature that the Government had decided that demand required. I had a response from the Minister that said that if they did not do this, they would be breaking the law. But did not do what? Meet a quota or put the right words on a website? We need much more clarity around what the Government can really do about changing the flow of professionals. My sense is that this is overreaching and will underdeliver, and that it might be better to limit the ambition early. It is interesting that a Government, particularly fronted by a Minister who has so obviously thrived in an open and international market, should look at how skills are delivered in this micromanagement-centred and government-centred way. I would be interested in his personal view on this.
Many Ministers have mentioned the cavalcade— I think my noble friend Lady Randerson used “avalanche”—of secondary legislation. The contribution of the noble Baroness, Lady Meacher, was very helpful, and we look forward to the committee’s full report. The Government will have to think again, and we will obviously play our part in helping that thought to emerge.
My noble friends Lord Purvis, Lady Randerson and Lord Palmer of Childs Hill have all raised other important points. If the Minister is hearing some of these arguments multiple times, it is because the same issues were thrown up on the then Trade Bill and internal market Bill. They are an inevitable consequence of the route we have been forced down by the trade deal we have with the EU. I have said on many occasions that free trade is facilitated by the ability of people to ply their services globally. I have proposed amendments that would cause that to happen. To be fair, the Minister and the Bill use the language of free trade—dare I say, liberally—but in reality, when this Bill gets assent, it will establish a system that offers less free trade, less mobility and more associated paperwork. If the Government are here to help, perhaps the Minister can explain, in detail, how this really helps British business and citizens live their lives in this country.
Baroness Hayter of Kentish Town (Lab)
First, I also welcome my noble friend Lady Blake to our Front Bench, where she has immediately made an impact and demonstrated the impact she will continue to make. Ministers, beware.
As the Minister foretold, the debate has heard experience from across the architectural, medical, veterinary, accounting and even the sports, dental and legal worlds, raising various issues, but interestingly, one first raised by the noble Baroness, Lady Noakes: why do we need this Bill? She said it in the meeting we had before this all began, and that made us start thinking. The noble Lord, Lord Trees, mused that the Bill was
“a solution in search of a problem”,
adding nothing to the powers that already exist—in his profession, to recognise vets from other countries that the college wants to recognise. The noble Lords, Lord Ribeiro and Lord Patel, the noble Baroness, Lady Finlay, the GMC, the BMA and the Professional Standards Authority all question whether the Bill is needed in their sector, given that health regulators have a long history of overseeing regulation, and they are worried that the Bill might jeopardise that system and risk patient safety.
As we have heard, the Bill does not define which regulators will be covered, although the noble Baroness, Lady Noakes, has been sent the list. We are delighted but, like the noble Lord, Lord Fox, we have not seen it; I am sure that it is on its way to us. The Minister said that the Bill is about only regulators set up in legislation and not those set up by a royal charter. The ICAEW would therefore not be covered, although it sounds as if the FRC and the new ARGA would be. Can he confirm that? Also, will it cover the Law Society, the SRA, the Faculty of Advocates and some others? We need to know what this Bill covers.
I should be clear, because I have some questions about it, that there are many pluses in the Bill, enabling statutory regulators, where they so desire, to enter mutual recognition agreements. As noted by the SRA, this could maximise opportunities for trade in professional services, while the Law Society said that it could assist in regulator-to-regulator reciprocal agreements by going rather beyond what a precedent-based FTA could do.
As has been said many times, legal services are central to our exports and investment. They enable their clients to make the most of opportunities across the globe. As the noble Baroness, Lady McIntosh, said, the Law Society hopes that legal services will be at the forefront of forthcoming trade negotiations so that we can ensure that our lawyers operating overseas can carry out a range of functions, including as arbitrators, and partner locally based lawyers. A similar point was made by my noble friend Lord Davies of Brixton in relation to actuaries. There is potential there to help some of our crucial export services. However, there are questions. I think that they cover four areas: skill shortages; trade deals; standards and the independence of regulators; and parliamentary scrutiny.
On skills shortages, while attracting overseas talent has been vital to our public sector, it would be wrong to continue to depend on importing qualified staff where we should be building up our own skill base to correct any shortage. We do not want to see this Bill used as a substitute for the Government investing in professional training. If we lack vets or nurses, we should train up our own—with the adequate resources to do so—rather than steal from other countries, as the noble Baroness, Lady Watkins, mentioned.
There is also a question of how the Government will decide whether there is a shortage. What involvement will there be with the professions and service providers? The noble and learned Lord, Lord Hope, touched on that point and mentioned the need for consultation on both this and broader issues. Will the Government undertake to publish the data, modelling and forecasts that they use when deciding whether they think there is a specific skills shortage? Will that definition be for a whole profession or just a particular specialism, as was raised by the noble Baroness, Lady Fraser? Furthermore, do we risk amending our regulation system for a short-term skills shortage, because we will be using legislation rather than individual cases to make up for any shortfall?
The Bill gives powers to Ministers to compel regulators of specified professions to offer unilateral recognition routes for all countries, subject to meeting the requisite standards. I will return to that power shortly.
Turning to trade deals, Clause 3 is a major concern, as we have heard. It requires a supposedly independent regulator to set up a process for authorising people from other jurisdictions to practise here—not because the regulator thinks it is the right thing to do, nor because we need more professions to fill a skills gap, which is dealt with in a different part of the Bill, but as a consequence of an international trade deal. As the SRA says, we must retain public confidence that professionals are appropriately qualified, with regulators able to set standards and make autonomous, independent decisions. As we have heard from a number of speakers, recognition will need to cover knowledge, skills and experience—not simply qualifications.
The Law Society has raised the specific question that the Bill could allow foreign Bars to challenge the independence of UK solicitors and barristers by possibly allowing the Government to make decisions on equivalence—the grounds for challenge from foreign Bars, because it would be regulated by the Government rather than independently. We trust that dialogue with the SRA and the BSB will produce an amendment to safeguard against this.
In addition to whether regulators should be obliged to enter into agreements with countries designated by the Government is the question of whether, for example, as with the GMC, the Royal College of Veterinary Surgeons could be forced to recognise vets from India or Mexico—I think those were the examples given. Each country has dozens of vet schools, every one of which would have to be assured if this is not being done by requalification in this country, as it could not give blanket coverage to a whole country’s independent vet or medical schools.
Surely we must agree that no regulator should be forced, because of pressure for a trade deal—we see those pressures in what is happening to farmers in trying to get a deal with Australia—to extend its recognition beyond what it wants, with a consequent risk of reduction in standards. IPReg, for example, is very happy to recognise qualifications from countries of its choice but would not want to be forced to enter into reciprocal agreements with any particular country decided on by the Government. Which future trade agreements that the Government are already looking at are expected to contain MRPQ clauses with specific routes for professions or an obligation on regulators to instigate a route to recognition? If the Minister cannot answer today—which I would understand—I hope he can write to all Members participating so that we know what they are likely to be looking at.
Might it be better to leave any new mutual recognition agreements just to separate, stand-alone, bilateral, regulator-to-regulator recognition agreements, perhaps in parallel to, but not as a requirement of, an FTA with a third country? Forcing regulators to be covered by an international agreement carries significant risks, not least to standards and consumer protection—the very purpose for which statutory regulation takes place.
We note that there is a recognition arrangements team in the department to help regulators pursue agreements with overseas counterparts. That sounds helpful, but can the Minister assure us that that team does not amount to pressure on a regulator to keep the DIT happy?
While the Government have the admirable objective of maintaining existing levels of public and consumer protection and professional standards, how does this sit alongside their objective of using this to support the international trade agenda? Those two may be in conflict rather than in harmony. To reassure us, will the Minister undertake—we might even seek to have this written into the Bill—to ensure that the Department for International Trade will consult with relevant regulators, at the very least before it finalises a trade deal, but hopefully at the point it sets its objectives for one?
This brings us to standards and to the independence of regulators. We will seek certainty that nothing in the Bill undermines high standards of health, public safety or consumer protection and that language can continue to be tested. It is vital that regulators remain independent, as the noble Lord, Lord Ribeiro, and others stressed, and that the Government do not force them to accept professional qualifications. Indeed, we might even look to see whether the Bill could strengthen the independence of regulators. It will not be a surprise to some people in the House to learn that I would like to add a requirement that user or consumer representatives should be added to the councils of the various regulators. I will give it a try.
As we have heard, the medical world has specific concerns. The BMA stresses that patient safety must be prioritised over mobility, and certainly over the Government’s desire for trade deals. It worries that the Government’s emphasis on paper qualifications overlooks ensuring that doctors have the right skills and relative and up-to-date experience before they work here.
As my noble friend Lord Hunt said, the Bill allows the Secretary of State to require the GMC to assess whether someone with a particular overseas qualification is “substantially the same” as a UK qualification, and thus able to practise here. As we have heard today, that means that international medical graduates would have an automatic right to practise on the same basis as home graduates, without any further checks that they are safe to practise. This is clearly unacceptable, but we very much welcome what the Minister said in opening and his undertaking that the Government will bring forward an amendment to Clause 1. We trust that it will cover all the points of worry. We hope that it will be agreed and, if you like, signed off by the GMC before it comes to us.
I turn to parliamentary scrutiny. Along with my noble friend Lord Hunt, the noble Baronesses, Lady Meacher and Lady Noakes, and the noble Lord, Lord Palmer of Childs Hill, we are concerned that substantial changes to the law will be made through delegated powers rather than in the Bill. I rather thought we had gone way beyond this in how we make law. We put up with a lot of it when we were coming out of the EU because of the rush; I do not think there is any excuse for this now. At the very least, we ask the Minister to commit to publishing draft or pre-draft statutory instruments covering the priority professions before Report. This will be as important for the devolved authorities and devolved regulators as for all the other related regulators and Parliament itself.
With regard to the devolved authorities, because work is already ongoing on this, can the Minister confirm that Clause 9 does not undermine the framework work going on? Can he respond to the Law Society of Scotland’s call for more forthright commitment to respecting the distinct nature of legal services, perhaps linking what is in the Bill with the policy statement?
It is clear that parts of the Bill are necessary and welcome, and we endorse the objective of maintaining consumer, public and patient safety. We want to see our legal and accountancy professions trade for Britain, and we want our UK professionals to be able to work abroad, but this does not mean we will sweep the Bill straight through Committee. There are changes we will want to see made and improvements to be considered. We look forward to working with the Minister on this over the coming weeks, and in the meantime would be grateful for a letter responding to any of the points raised that he does not have time to cover now.
Lord Grimstone of Boscobel (Con)
My Lords, I thank all noble Lords who have spoken in this debate for their excellent contributions. In particular, I welcome the noble Baroness, Lady Blake, to the Front Bench. She spoke both eloquently and convincingly, and I look forward to working closely with her as this Bill progresses through its parliamentary stages.
We have heard a great deal today about the professionalism of our regulated professionals and the expertise of our regulators that exist in this country. I strongly agree with and endorse all these points.
The extensive experience on display in this House will be invaluable in helping us put in place arrangements that meet the needs of professions. I was pleased to hear support for the broad objectives of the Bill from a number of noble Lords, including my noble friends Lady Fraser of Craigmaddie and Lady Verma, and the noble Lord, Lord Bilimoria. I also very much welcomed the support in principle of the noble Baroness, Lady Hayter.
Noble Lords have raised many detailed points and questions. Almost without exception, these points have been erudite and excellent. I will deal with some of them now, but many will be best dealt with in Committee. I will write to noble Lords who have raised specific points of fact and other matters in the debate.
Before I turn to the points made by noble Lords, to give some context to my responses I will briefly return to the Bill’s objective. Let us remember that the purpose of the Bill is to revoke the EU-derived system for the recognition of overseas professional qualifications in the UK. The Bill will replace this system with a new framework that is global in outlook and tailored to our needs. The Bill will allow action to be taken in the public interest if it is judged that a shortage of professionals has arisen in a profession, but that action in no way restricts regulators’ ability to take decisions about individual applicants; it merely requires them to set up a route through which people can seek entry to a profession.
As the Government pursue their global Britain ambitions, we know that recognition of professional qualifications is a key facilitator of services trade, so the Bill will make sure that regulators can have the tools they need to strike recognition agreements with their international counterparts. It will allow the Government to implement those parts of trade deals concerned with professional qualifications. We have heard today that some regulators have these tools now, but some do not. Of course, if regulators have these tools they will not need to make use of the powers under the Bill. The Bill allows us to take action where necessary, while fully respecting the excellence of our professions and the autonomy of regulators to determine who can practise in the UK. Nothing that the Government do will in any way seek to undermine this.
As I have said, this has been a broad debate and I will strive to respond to as many points as I can. As always, my door is open and I am happy to follow up any individual points of particular concern in meetings.
I will begin with the questions asked by the noble Baroness, Lady Blake. I welcome her acknowledgement of the benefit that the recognition of professional qualifications can provide, including to public services. I of course share her gratitude, as I am sure the whole House does, for NHS key workers, many of whom gained their skills and qualifications overseas.
I was very pleased to hear the noble Baroness and many noble Peers, including my noble friend Lady Noakes, raise the important issue of regulator independence. This is a point where I believe we share some common ground. I must underline again the point that this new framework will fully respect regulators’ autonomy as to who practises in the UK. Why is that? It is quite simply because the regulators are the experts in their respective fields and they ensure that high professional standards are maintained. Regulators must continue to have the ability to act in the public interest, including in the best interests of their professions and the consumers of professional services.
This respect for regulator autonomy has been upheld in our approach to trade deals; I have some experience of this from my role in the Department for International Trade. None of the trade deals or recognition agreements that we have made so far or which we are negotiating will force our regulators to compromise their world- leading standards or to accept professionals who do not meet them. It would be the height of foolishness for the Government to seek to do that. In many cases these agreements merely establish application routes. And of course, in setting our negotiating parameters, we consult widely, including with the regulators themselves.
I remind noble Lords that the provisions of treaties implemented under the Bill would of course have already undergone parliamentary scrutiny, either through our committees or on the Floor of the House, as outlined in the Constitutional Reform and Governance Act 2010. I hope that all noble Lords will recognise the commitments that I have made from this Dispatch Box in the past about the importance of transparency and proper scrutiny of free trade agreements.
Where regulations made under Clause 3 amend primary legislation or retained direct principal EU law, they will be subject to the affirmative procedure. That will give us another opportunity to debate these important matters and will ensure that there is parliamentary scrutiny every time significant legislative change is made.
The noble Baroness’s second question was about delegated powers—an area which the noble Baroness, Lady Meacher, a member of the Delegated Powers and Regulatory Reform Committee, also spoke to. We have carefully considered the powers in the Bill and we believe that they are necessary and justified, given the complex regulatory landscape. We look forward to receiving the report from the DPRRC, and we will of course respond to any recommendations that it makes in a timely manner.
As many speakers have acknowledged, the subject matter of the Bill interacts with many different legislative frameworks specific to different professions and regulators. If the Government or the devolved Administrations were to add or remove duties on a particular regulator or give it further powers in pursuit of the Bill’s objectives, the changes would need to be woven into the existing legislation for that profession. I hope that noble Lords recognise that it would be unfeasible to specify detailed amendments to a potentially very large number of pieces of legislation on the face of the Bill.
Critically, we cannot anticipate what amendments might be required. We do not know now exactly what professional shortages may arise in future, nor do we know exactly the terms of future trade agreements. This Bill must be a framework with powers if it is to work. Although we do not plan to bring forward draft statutory instruments ahead of Report, I can reassure noble Lords that we will engage with interested parties in the event that we need to use the powers, and we would welcome the scrutiny that those parties will give. Indeed, as I said, Clause 15 provides that substantive regulations under the Bill that modify primary legislation will be subject to the affirmative resolution procedure.
The third question posed by the noble Baroness, Lady Blake, related to our commitment to the skills agenda. A number of speakers, including the noble Baronesses, Lady Hayter and Lady Garden of Frognal, and my noble friend Lady Noakes, acknowledged the need to support access to good-quality jobs in professions and to career progression. Of course, I support that. Although the lifetime skills guarantee is beyond the scope of the Bill, in January this year the Government published a White Paper that sets out how we will reform further education so it supports people to get the skills that our economy needs throughout their lives, wherever they live. I will of course be happy to write to noble Lords about the Government’s plans if that would be of assistance.
I opened this speech by highlighting the breadth of regulated professions in the UK. Some Peers have raised issues about specific professions, including chartered accountants, physiotherapists, ski instructors and vets. Although I cannot respond on each of these in turn, I can confirm that the letter that I sent to my noble friend Lady Noakes, which has been of extreme interest to a number of Peers, was copied to the House Library and is on public record there, and that it lists the professions and regulators to which the Bill applies.
It is important that I return to the impact of the Bill on medical regulators. A number of noble Lords, including the noble Lords, Lord Hunt of Kings Heath and Lord Patel, and my noble friend Lord Ribeiro raised concerns about the Bill’s impact on the work of the General Medical Council. I reassure your Lordships’ House that this is absolutely not our intent. As I said when I opened this debate, that is why the Government plan to table an amendment to Clause 1 in Committee. My officials have been in regular contact with the GMC in relation to this. I fully recognise the importance of ensuring that these regulators can operate in a way that upholds patient safety.
I turn now to other issues that noble Lords have raised on the Bill’s provisions and how they will work. I thank the noble Lord, Lord Purvis of Tweed, for his interrogation of the impact assessment, having read it so carefully. The Bill primarily enables other legislation to be made. It does not by itself introduce significant financial implications through most of its provisions. For the majority of the Bill’s provisions, costs arise only if and when enacted by regulations. Where there could be more immediate costs, such as from the transparency measures, they are modest as they are already provided for by many regulators.
Noble Lords have shown considerable interest in how the framework for the recognition of professional qualifications and experience gained overseas would operate. In particular, the noble Baroness, Lady Watkins of Tavistock, asked about the assessment process that regulators will use. Under the Bill, it is for the regulator to assess and determine whether qualifications and experience gained overseas are recognised. I am happy to repeat that no regulator will be forced to recognise a qualification. The Bill simply allows an appropriate national authority, in the case of shortages, to require a regulator to have a route in place to determine whether to recognise. Of course, any other specified condition that the regulator sets as part of its normal regulatory processes would also need to be met before access to a profession may be granted by the regulator. The Bill does not provide a short cut or a short circuit to becoming a professional in the UK. The technical amendment that the Government will make in relation to the matters raised by the GMC will make this clear, and I hope it will reassure noble Lords once they have had a chance to see it and consider it.
My noble friend Lord Moylan raised concerns that the imposition of a condition could give rise to trade barriers. Generally, we consider that it is for regulators, acting within their own autonomy, to enter into recognition agreements with overseas regulators. However, as I have said, in cases where the Government or a devolved Administration determine that there is a shortage of professionals in a regulated profession, that could be addressed by requiring the regulator to have this route in place for recognising overseas qualified professionals. They can do so. In defining what is a shortage in a profession, a range of factors would need to be carefully considered by the Government and the devolved Administrations. Of course, they would consult relevant parties before introducing this requirement.
A number of noble Lords, including my noble friend Lady McIntosh and the noble and learned Lord, Lord Hope of Craighead, raised the issue of consulting prior to introducing regulations under Clause 1 and elsewhere in the Bill. I absolutely anticipate that determining whether professions meet this condition would require extensive close working with a range of interested parties before introducing regulations. This will ensure that professions are rightly identified and that the introduction of regulation would assist in the alleviation of any shortages. The regulations made would complement regulators’ existing practices.
A number of noble Lords, including the noble Baroness, Lady Noakes, and the noble Lord, Lord Ribeiro, asked about the functions of the assistance centre. The assistance centre is an existing, public-facing inquiry service that provides advice and assistance to UK and overseas professionals on their professional qualifications. There is nothing mysterious about it: it does not tell regulators what to do; it just provides advice on demand for individuals seeking information about professions. It supports professionals with overseas qualifications intending to work in the UK, and UK- qualified professionals seeking to practise overseas. The objective of the service provided by the assistance centre is, and always has been, to complement and support regulators, and of course not to replace them. I am sure that this assistance centre works in conjunction with the devolved Administrations, but I will specifically seek to confirm that after this debate.
Many noble Lords spoke about the importance of respecting the devolution settlements for Scotland, Wales and Northern Ireland. My officials have had extensive discussions with the devolved Administrations, and I have met a number of my counterparts. The devolved Administrations rightly want to ensure that they can continue to regulate in areas of devolved competence and that their regulators maintain their autonomy. As I have said many times, the Government are committed to this. The Bill will apply to the entirety of the UK and it allows the devolved Administrations to make regulations within their devolved competences. The Bill contains concurrent powers, because some professions are regulated on a UK-wide or GB-wide basis despite being within devolved competences. I am sure we can discuss this further in Committee. These powers—all the powers in the Bill—are compatible with the devolution settlements.
Many noble Lords, including the noble Lords, Lord Purvis of Tweed and Lord Bilimoria, highlighted the importance of the mutual recognition of professional qualifications to international trade. Agreements on qualification recognition make it easier for professionals to practise between countries, supporting service exports and imports. Many noble Lords, including my noble friend Lord Moynihan, talked about the difficulties being experienced by some UK professionals seeking to deliver services in the EU after the end of the transition period.
I remind noble Lords that the UK proposed ambitious arrangements on professional qualification recognition during negotiations of the UK trade and co-operation agreement but, regrettably, the EU did not choose to engage with them. We took the horse to water but it refused to drink. Instead, UK regulators will now have to form profession-specific recognition agreements with their counterparts in EU member states, either bilaterally or across the whole bloc. I completely appreciate that this will take time and effort, but this is why the Government stand ready to help. We have already created a team in the business department to provide expert advice to regulators and help them pursue their recognition agreements, as will our posts overseas. The team has already published technical guidance to help regulators do this.
It is right that, having left the EU, we have to think bigger. To deliver our global Britain ambitions, this Government are pursuing a number of ambitious trade agreements with countries around the world, including the US, Australia and New Zealand. This Bill will help us make ambitious offers on the recognition of professional qualifications, should we choose to do so. Moreover, it allows us to empower regulators to go after their own recognition agreements if they do not have the powers already. In pursuing these agreements, as I have said before, we respect regulators’ autonomy.
In coming to an end, let me turn finally to the questions from the noble Lords, Lord Hunt and Lord Moylan, and the noble Baronesses, Lady Bennett of Manor Castle and Lady Verma, about how the Bill relates to the UK’s immigration system. I can assure noble Lords that the Bill is quite separate in law. It is specific to the recognition of professional qualifications and experience gained overseas. The recognition of a professional qualification does not mean that an individual meets the UK immigration requirements; it confers no rights to work. If an individual needs to secure a visa to practise a profession in the UK, that condition will still need to be met through the immigration system.
In conclusion, I thank all noble Lords who have taken part in this debate today. We have heard many valuable contributions, which, as I said at the beginning, is a testament to the experience in this House and the importance of professions to much of society. I look forward to the further stages of this Bill and to maintaining the excellence of our professions in all four parts of the UK, as they do business around the world. That is why we need this Bill.
Professional Qualifications Bill [HL]
Wednesday 9th June 2021
(3 years, 6 months ago)
Lords ChamberRead Full debate Professional Qualifications Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 2-II Corrected second marshalled list for Committee - (9 Jun 2021)
The Deputy Chairman of Committees (Lord Alderdice) (LD)
My Lords, the Hybrid Sitting of the House will now resume. I ask all Members to respect social distancing. I will call Members to speak in the order listed. During the debate on each group, I invite Members, including Members in the Chamber, to email the clerk if they wish to speak after the Minister. I will call Members to speak in order of request. The groupings are binding. A participant who wishes to press an amendment other than the lead amendment in a group to a Division must give notice in debate or by emailing the clerk. Leave should be given to withdraw amendments. In putting the question, I will collect voices in the Chamber only. If a Member taking part remotely wishes their voice to be accounted for if the question is put, they must make this clear when speaking on the group.
Amendment 1
“Purpose of this Act
(1) The purpose of this Act is to give regulators the necessary powers to ensure demand for professions can be met in the United Kingdom.(2) Nothing in this Act affects the independent process of defining the accreditation processes of the regulators.”Member’s explanatory statement
This amendment underpins the principle that the process of defining the accreditation processes rests with the regulators.
Lord Fox (LD)
My Lords, this amendment, I should emphasise to the Minister, is offered very much in the spirit of helpfulness. At Second Reading, the Minister said:
“The Bill will allow action to be taken in the public interest if it is judged that a shortage of professionals has arisen in a profession, but that action in no way restricts regulators’ ability to take decisions about individual applicants; it merely requires them to set up a route through which people can seek entry to a profession.”—[Official Report, 25/5/21; col. 971.]
In other parts of his speech, the Minister reiterated the view that it was not the Government’s intention to interfere with regulators’ roles and responsibilities. Yet he also said:
“I emphasise that we want this new framework for recognition of professional qualifications to complement regulators’ existing practices.”—[Official Report, 25/5/21; col. 909.]
It is because of the need to clarify how the Bill complements the regulators that I am putting forward this amendment with the support of my noble friend Lord Purvis of Tweed.
This Bill is backed up by secondary legislation that we have yet to see and which will define the true nature of this Bill. There are genuine concerns that the Bill creates potential for central government to intervene in a manner that cuts across the Minister’s assurances. This amendment seeks to clarify and delineate the purpose of this Bill. It does no more than the Minister has repeated in meetings and on the Floor of the House.
I make no apology for repeating that the overwhelming proportion of the reach of this Bill is yet to be seen. All we have is the skeleton. We know from the Minister that we should expect a deluge of secondary legislation, and it is in that where we will see reflected the true purpose of the Bill. I would add that, unfortunately, level of scrutiny of such secondary legislation sometimes falls below the level of the scrutiny by your Lordships of primary legislation, which is another danger.
Why should we be suspicious and, indeed, are those suspicions restricted just to these Benches? For the first time, but not the last, I refer your Lordships to the report of the DPRRC, published on 27 May, which addressed this Bill. In that report, the issue is clear. At the outset, the committee categorises Clause 1 as
“a Henry VIII power, as it includes power to amend primary legislation and retained direct principal EU legislation”
and goes on to say:
“The power can be used to make provision about a wide range of matters relating to applications to practise a profession, including ‘detail on the approach to be taken in assessing … qualifications’, requirements for regulators to have regard to guidance when determining applications to practise, the information to be included in such applications, fees to be paid and appeals.”
We have yet to see this potentially very far-reaching legislation. This takes this Bill to a place that is somewhat beyond what the Minister has outlined its role to be. Of course, those Henry VIII powers are qualified, but the scope of those qualifications is broad and will be discussed later.
As well as the mutability of Clause 1, the nature of Clause 3 has confirmed the need for this amendment. I was grateful that the Minister met me and colleagues this week. During that discussion, he confirmed that in relation to the purpose of the Bill, Clause 3 is explicitly needed in order to implement trade agreements where mutual recognition of qualifications is included. In fact, the Minister considers it vital for the Government to use this clause to make sure that the regulatory authorities enact the terms of a future free trade agreement. Of course, it is not needed for that. The Government could bring each trade deal to Parliament for approval, which would be a way of getting primary approval of such clauses within a free trade agreement. In that case, Clause 3 would not be required, and we can have that debate later. This is all about the creeping remit of the Bill, which is why I refer to it in this amendment.
The amendment clearly upholds the aim of giving all regulators the powers to regulate international professionals. Importantly, it also underpins the independence of the regulators—independence that the Minister so obviously treasures, but which this Bill, as drafted, so obviously threatens. In the Minister’s own words at Second Reading,
“the regulators are the experts in their respective fields and they ensure that high professional standards are maintained. Regulators must continue to have the ability to act in the public interest, including in the best interests of their professions and the consumers of professional services.”—[Official Report, 25/5/21; col. 971.]
We say prove that by accepting Amendment 1 and putting it in the Bill. I expect the Minister to say that he agrees with the text, but disagrees with putting it in the Bill. If indeed that is the Minister’s response, I would appreciate him explaining why he disagrees with putting it in the Bill. What is wrong with putting it in if that is the purpose of this Bill?
This is a skeleton Bill—another skeleton Bill—and this amendment tries to make clearer what this Bill is for, explicitly guiding what the Bill will do when the body of secondary legislation is added. I beg to move.
The Deputy Chairman of Committees (Lord Alderdice) (LD)
I call the noble Baroness, Lady Noakes.
Baroness Noakes (Con)
My Lords, the noble Lord is looking at an out-of-date list of speakers.
The Deputy Chairman of Committees (Lord Alderdice) (LD)
I call the noble Lord, Lord Palmer of Childs Hill.
Lord Palmer of Childs Hill (LD)
My Lords, I am rising rather surprised. We have heard my noble friend Lord Fox elegantly put the reasons why the Bill needs to be slightly tidied up, if nothing else. The amendments in this group do all they can to allow overseas qualifications to be treated as acceptable in the UK. The amendment in my name seeks to deal with a situation where the qualifications and experience are held to fall short; the Bill does not talk about what happens then. In many spheres, what happens is that there is some bridging measure to bring the applicant up to the required standard.
Amendment 12 in my name seeks to give the regulator relief from bringing the applicant up to the required standard if this would involve unreasonable cost, time and be a resource burden on the regulator. My noble friend Lord Fox said that the regulator will be independent. We must not add the cost of providing bridging training if people do not come up to standard.
As has been said, this is a skeleton Bill. We need to make it clear on whom the duty falls to provide the additional training or experience to bring it up to standard. The Bill does not say, but it must not be down to the independent regulator.
The Deputy Chairman of Committees (Lord Alderdice) (LD)
I now invite the noble Baroness, Lady Noakes, to make her intervention.
Baroness Noakes (Con)
My Lords, I asked the Government Whips’ Office to order the speakers as is normal in the Chamber when we do not have lists—that is to say, those who have tabled amendments are allowed to speak before those who simply wish to comment on them. I was advised that the list was issued late this morning.
The noble Lord, Lord Fox, may recall that I do not like purpose clauses. I believe that a Bill should be written in clear language and that its scope and impact should be readily understandable on its own terms. This Bill fails to meet that test, but I do not think that a purpose clause is the answer. Instead, we should focus on making sure that the Bill itself is fit for purpose. We have tabled a number of amendments aimed at doing this.
I also have a minor quibble with the drafting of Amendment 1. Subsection (2) refers to
“the independent process of defining the accreditation processes of the regulators.”
I believe that the independent processes which this Bill should protect go beyond mere definition of accreditation processes. We do not want any form of interference in the independent processes of regulators. This should be an enabling Bill which should unblock legal impediments to the recognition of overseas qualifications. It must steer clear of all the processes operated by regulators, not just of those defining accreditation.
I put my name down to speak because I recognised the Institute of Chartered Accountants’ provenance of Amendment 12 in the name of the noble Lord, Lord Palmer of Childs Hill. That is why I was keen for him to speak first. Amendment 9 in my name, in a later group, is slightly simpler, but on the same basic point. I realised a little too late that perhaps I should have asked to add my amendment to this group. The essence of Amendment 12 is to ensure that inappropriate burdens are not placed on regulators, as the noble Lord, Lord Palmer, has explained. I will not repeat those arguments. I will explain my own amendment when we reach it later.
This is a very real issue. The Government need to look at it again to ensure that their approach is reasonable in the context of what regulators could be compelled to do by the provisions of this Bill. As far as we can, we should seek to avoid any possibility that they could be compelled to do anything unreasonable, burdensome or otherwise inappropriate to their profession.
Lord Thomas of Cwmgiedd (CB) [V]
My Lords, I shall speak briefly in support of Amendment 1. Subject to the clear statement of the noble Baroness, Lady Noakes, it would be desirable to try to focus much more of this wide-ranging Bill. If that is not done, a provision to make clear that the independence of regulators is not in any way affected is of vital concern. The regulation of professions should be set by the structure ordained by Parliament—not by the Executive and then left to the regulators. If more precise provisions cannot be incorporated, Amendment 1 would have this vital effect of making clear the independence of the regulators.
In the case of the legal profession, it is convenient at this stage to raise two points about independence. First, the independence of the courts depends on the independence of lawyers, with their ability to challenge the powerful, particularly the Government. This can only be safeguarded by independent regulation within a structure set by Parliament. Given the position of the Executive in relation to the courts and the legal profession, it should not be the Lord Chancellor’s role to be involved in this in any shape or form. It is difficult to see, given the scope of the Legal Services Act, why these wide-ranging powers need to be given to the Lord Chancellor.
Lord Hunt of Kings Heath (Lab) [V]
My Lords, as we are at the start of the Committee stage, I declare my interest as a board member of the GMC, although I am speaking on the Bill in a personal capacity.
I support Amendment 1. We have a real problem with the skeletal nature of the Bill and the extensive use of Henry VIII clauses. It is a great pleasure to follow the noble and learned Lord, Lord Thomas of Cwmgiedd, whose powerful intervention illustrated some of the problems. The power in Clause 1 could be used to make provision about a huge range of matters relating to applications to practise a profession. Extensive powers are delegated to Ministers. As the Delegated Powers and Regulatory Reform Committee has pointed out, neither the Explanatory Memorandum nor the Explanatory Note gives adequate reasons for the extensive use of Executive power. I will come back to this during Committee, but the Minister should at least have a shot at explaining why Executive powers are needed to this extent. So far, we have not heard a reason.
The Delegated Powers Committee illustrated the example of the dentistry profession. Dentistry is one of the professions for which regulation is provided in primary legislation. The Dentists Act 1984 includes a provision to recognise overseas qualifications. Holders of overseas qualifications who wish to qualify for registration as dentists in the UK must not only have a recognised overseas diploma but, as a starting point, they must sit an examination to satisfy the regulator that they have the requisite knowledge and skill. They must also satisfy the regulator as to their identity, good character, good health and knowledge of English. The committee says that Clause 1 appears to allow such requirements and other comparable requirements in primary legislation relating to other professions to be watered down by statutory instrument, if Ministers considered this necessary to enable demand for the service of the profession in question to be met without unreasonable delay. I do not need to remind the Minister that the dentistry profession is under acute pressure.
My reading of the Minister’s amendments in Clause 1, which are welcome, is that some protection is provided, because regulations can specify additional conditions for a professional’s overseas qualifications to be met. But, of course, that depends on the Minister taking the necessary action. It also appears that Clause 3 could be used to implement an international agreement that encompassed an override in respect of the actions of a regulator. The noble Lord, Lord Fox, referred to this, and, again, we will come back to Clause 3 later today.
So there is a need to safeguard and protect the integrity of the regulators and uphold the public interest in high standards among the professions covered by the Bill. The noble Lord, Lord Fox, has attempted to draft such protection, and I hope that the Minister will be sympathetic. If not, he needs to realise that the current construct of the Bill will simply not do, and the House would be right to insist on further protections.
Lord Purvis of Tweed (LD)
My Lords, the noble Baroness, Lady Noakes, raised her consistent point, for which I give her respect, about declaratory statements within legislation. My noble friend Lord Fox, in bringing forward his amendment, which I had the pleasure to cosign, is justified in this instance, given what other noble Lords have said within this group. The Government have not provided the level of detail about the potential use of the extensive Henry VIII powers under this legislation in particular. Therefore, a statement that these powers should not be used to impact upon the independence of our regulators is of great importance.
That has been not endorsed but reflected in the Delegated Powers and Regulatory Reform Committee’s report. As has been my wont over many years in this place, I have taken great joy in reading Delegated Powers and Regulatory Reform Committee reports—I did not have grey hair when I came into this place. It is rare that a committee report such as this can be so clear. On the Trade Bill, the Minister was given great credit when the committee cited support of the Government and raised no issues, but in this area, it could not be clearer. So the calls of the noble Lord, Lord Hunt, and my noble friend Lord Fox for greater clarity are important.
The committee, in paragraph 8, said of the fact that no adequate explanation was given:
“This is particularly disappointing given that … as the Government have acknowledged, most of the substantive changes to the law envisaged by this Bill are to be made through delegated powers rather than the Bill itself.”
Therefore, a statement such as this amendment is clearer. So we agree with the committee that a much fuller explanation of the provision to be made in regulations under Clause 1, and the justification for that provision, is required.
The Government did not need to go down this route, as their own impact assessment indicated. The impact assessment started, under the Minister’s signature on the opening page, by giving reasons for the alternative approaches, and included:
“For recognition of overseas qualifications: a fixed (one size fits all) approach; and a risk/benefit system.”
I think there would be common ground between most of us on these Benches and the Minister on risk/benefit systems usually being best. But no, the Government have opted for “one size fits all”.
The impact assessment goes on:
“For regulators and international recognition agreements: arrangements for specific regulators.”
As we will no doubt hear in other groups, specific regulators have specific legislative underpinning for their own purpose and require scrutiny on a case by case basis. But the Government rejected it. And they rejected for information transparency a non-legislative guidance-based approach. So it is the Government’s choice to go down this route, which opens up a lot of areas where they should be much clearer in indicating the intent behind the regulation-making powers they want.
The Minister said on Second Reading that this Bill, while a framework, was the result of a considered view from reflecting and consulting with regulators as well as more widely with stakeholders. So I was frankly amazed to read that there is currently, for the healthcare professions, a live consultation on regulatory reform. It started on 24 March and closes a week today; it has not even closed yet. That consultation, Regulating Healthcare Professionals, Protecting the Public, touches on governance, the operating framework, fees, education and training, registration and fitness to practise. At paragraph 10, on the governance and operation framework, it says that the Government are
“proposing to devolve many of the decisions about day to day procedures to the regulators themselves, whilst ensuring that they continue to meet their overarching objective to protect the public.”
But this Bill provides the Government with Henry VIII powers to do exactly the opposite when they choose. So I ask the Minister: which is the Government’s intent—the one in the Bill we are scrutinising at the moment or the consultation that has not yet closed?
Paragraph 17 says that the regulators
“are accountable to the Privy Council … and the PSA provides oversight of how they carry out their regulatory functions. The Privy Council has default powers to direct most of the regulators if they fail to deliver their objectives. However, this does not apply to the GDC and GPhC. We propose that the GDC and GPhC are included within the Privy Council’s remit.”
So the Government, in their consultation, are seeking to expand the role of the Privy Council with its default powers, while this Bill is going in the opposite direction. So could the Minister explain what the relationship will be between the regulation-making powers in this Bill and the Professional Standards Authority? Can these powers be made to change the Professional Standards Authority’s legislative standing and how it provides oversight to the regulatory bodies it provides for? And what is this Bill’s relationship with the Privy Council? The Privy Council, as the Government say in their own live consultation at the moment, is the body these regulators are accountable to.
Paragraph 23 says:
“The proposals set out in this document aim to give regulators greater flexibility to determine how they set standards for, and quality assure, education and training.”
But the powers under this Bill will provide—in a way the Government have not yet provided information on—Henry VIII powers to completely determine what they are for the set purposes. So restrictions on the Government’s ability to use those powers which will impact upon this legislation are necessary.
The element of the consultation I thought was quite extraordinary is that the Government themselves say that when it comes to regulation of the medical professions they will go down a different route to change the legislation. The Government’s consultation says:
“We intend to implement … changes for each of the healthcare professional regulators through secondary legislation made under Section 60 of the Health Act 1999.”
There is no reference to any mechanisms under the Professional Qualifications Bill, so what is the Government’s intent for the Henry VIII powers under this Bill, with their already publicly stated intent to use the Health Act for medical?
Finally, the Government’s consultation closes with this:
“While we are required to hold a public consultation on all draft secondary legislation made using the Section 60 powers, we are taking this opportunity to seek views on the proposals that will, in due course, apply to all the professional regulators and all regulated healthcare professionals.”
On Second Reading, the noble Baroness, Lady Hayter, made a very valid request of the Minister, which was to see some draft regulations about the intent before we conclude our scrutiny of this Bill in this House. The Minister refused her.
The Government’s consultation says that they are
“required to hold a public consultation on all draft secondary legislation”
when they change the regulation of health professionals, so what is the Government’s position on this? The Government say, in paragraph 407 of that document:
“We also intend to commission a review of the professions that are currently regulated in the UK, to consider whether statutory regulation remains appropriate for these professions.”
Clearly that is not the case, because the Government have decided so, as I said at the start of my contribution. Can the Minister tell us what the status of this consultation is, if so many issues have been pre-decided by the Bill?
Baroness Hayter of Kentish Town (Lab)
My Lords, I slightly have the feeling that the back of an envelope was used for the drafting of the Bill. I could be quite wrong, but it has that feel about it.
I actually really welcome the “purpose” framing of the Bill—and here, unusually on this Bill, I disagree with the noble Baroness, Lady Noakes—because I think that such framing is extraordinarily useful when one later comes either to court cases, which have in the past occasionally been involved in determining what the purpose of a Bill was or what it meant, or to looking at statutory instruments. I like the idea of setting out what a Bill is for and what it is trying to achieve. Therefore, I welcome Amendment 1, although I have a question about one part of it.
What seems to me really important about Amendment 1 is the second part:
“Nothing in this Act affects the independent process of defining the accreditation processes of the regulators.”
As the noble Lord, Lord Purvis, said, this statement is of great importance. It clearly underlines many of the concerns raised with us—and, I am sure, with others around the House—by regulators, that somehow the Government will tell them how or when to accept the qualifications or experience gained under other jurisdictions so as to allow an individual to practice here. Indeed, this concern is reflected in Amendment 12, spoken to by the noble Lord, Lord Palmer, which emphasises that regulators should be able to rule on whether someone meets their standards.
As I said at Second Reading, regulation is all about protecting the public and the consumer or user interest. It is why we restrict when someone can call themselves a lawyer or a doctor. The comfort that gives to a client or a patient is obvious: it is shorthand for saying that someone has trained them up, someone has tested them, and someone knows they are fit to practice. For consumers, that is a really important purpose of regulation. It is why we have set up, in law, independent regulators to be able to decide whether somebody meets the recognised standards. They do of course do more than that—they look at CPD, at discipline and at various other issues—but for the purpose of this, it is about setting a standard and ensuring that someone can meet that standard before they practice, to protect users of the service. That part of Amendment 1 is really important.
What I am querying is the other bit, which says that the purpose of the Act—and as I said, I like the idea of a purpose of an Act—is to
“give regulators the necessary powers to ensure demand for professions can be met in the United Kingdom.”
Of course, that does not describe the Bill as it is at the moment; that is only one arm of the Bill. Indeed, the regulators who have been in touch with us say about the part I have just quoted that they can do it anyway, and ask why we are passing a Bill to give them powers that they already have. None of the regulators has been clamouring for these powers. Nobody, while we were in the EU, came to us and said, “Look, outside the EU we would love to have lawyers, doctors, vets”—I forget who is on the long list now—“from another country, but we are not able, because of our statutes, to have a process to take them in”. So this has got nothing to do with leaving the EU; either they had those powers before and they were not used, or they did not have them before and never felt the need of them. Nobody is asking for these powers. It is quite extraordinary that the back-of-an-envelope drafting managed to drop that bit in. Basically, that is what the regulators have been telling us.
We have also had the noble Lord, Lord Trees, telling us, from the veterinary surgeons’ point of view, that they have been able to do this. The noble Baroness, Lady Finlay, knows that the GMC has been able to recognise doctors’ qualifications and experience from around the world. None of the regulators needs this, so it is very hard to understand why it is being dropped in.
Of course, partly it is being dropped in because the purpose of the Bill is not simply to look at where there may not be sufficient professionals here. The Government say that they want to do trade deals, and, as part of those, want to be able to sell—or is it offer or swap?—the rights of professionals from other jurisdictions to come here. Actually, I think that that is what the Bill is about. Perhaps the noble Lord, Lord Fox, deliberately did not put it in the purpose of the Bill as he knows we are coming later to try to delete Clause 3 because we have our doubts about it.
It seems to me that we need to be clear whether we need the first bit. I will ask the Minister later—I have given him notice—which of the 160 regulators in the letter to the noble Baroness, Lady Noakes, do not already have the powers. If there are three of them, are we really passing a Bill for three regulators that cannot do it and probably do not want to do it anyway? I think that broad question needs to be asked. We will come on to that.
There is a big issue around whether the Government should be asking a regulator to do something it does not want to do. If a regulator wants to put in a process for recognising qualifications from another country, it has probably already done so anyway. We are therefore looking only at situations where it does not want to do it, and the Government are saying, “Nevertheless, we want you to”. We are going to come back to ask whether it is right that that should happen.
Going back to the second part of Amendment 1, the Minister has said in a letter to me—and to others too, I am sure; I do not think I get special words from him—that he
“fully recognises that the autonomy of regulators in assessing standards is key to protecting consumers and public safety and … in all negotiations a key concern for the government is ensuring the autonomy of UK regulators and protecting UK standards”.
If he is willing to put that in a letter to me, I see no reason why he should not put it in the Bill, so I hope he will at least accept the second part of Amendment 1.
The Minister of State, Department for Business, Energy and Industrial Strategy and Department for International Trade (Lord Grimstone of Boscobel) (Con)
My Lords, I thank the noble Lords, Lord Fox, Lord Purvis of Tweed and Lord Palmer of Childs Hill, for their proposed Amendments 1 and 12. These amendments would enshrine a purpose for the Bill and seek to avoid unreasonable burdens on regulators. I think we all recognise that, although this is a short Bill, it is a very complex one, as any Bill dealing with a landscape composed of more than 50 regulators and more than 160 professions was bound to be.
Many of the points raised in the debate, which I listened to very carefully, relate to the detail of subsequent clauses. So I propose, and I hope this is acceptable, to deal with these points later, in the order in which they come up in the Bill, rather than attempt to deal with all the points now. I have to say that I am very optimistic that, when I come to these points later, I will be able to deal with and assuage the anxieties expressed by noble Lords.
Coming back to the amendments in this group, I start with Amendment 1, tabled by the noble Lords, Lord Fox and Lord Purvis of Tweed. I accept that the noble Lord, Lord Fox, was trying to be helpful, as he always is, in tabling his amendment. The proposed new clause contains two provisions, and I will take them in turn.
First, the amendment states that
“The purpose of this Act is to give regulators the necessary powers to ensure demand for professions can be met in the United Kingdom”.
I am in firm agreement with the noble Lords’ intent. Indeed, one of the core purposes of the Bill is to give regulators the powers they need to enable demand for the services of professions in the UK, or part of it, to be met without unreasonable cost or delay. In essence, that is the purpose of Clauses 1 and 2. It is unnecessary to state one of the core purposes of the Bill separately, as it is already contained in Clause 2.
The Bill’s objectives, however—I think that this is clear to all of us—are wider than the purpose expressed in this proposed new clause alone. Do the noble Lords intend to limit the Bill only to responding to demand for services? That would be an opportunity missed. I will outline other important objectives of the Bill. It gives UK government Ministers and devolved Administrations powers to implement the professional qualification provisions of international agreements, and to empower regulators to enter into their own recognition agreements. These support the UK’s trade agenda. Having these powers has the knock-on benefit of helping to address demand for professions. Taken alone, however, these clauses are about international agreements and not demand for professions.
The Bill also has an important objective in relation to targeted steps for good regulatory practice. The clauses on transparency and information-sharing will support regulators in operating efficiently and individuals in entering professions. They are not necessarily about the demand for professions. I hope that the noble Lords recognise that these are also worthy purposes of the Bill.
The second provision in the proposed new clause outlines that nothing in the Bill affects the independent process of defining the accreditation process of regulators. As we all know, that process is important in maintaining professional standards in the UK. Once again, I find myself in firm agreement with the noble Lords’ intent. The Government are committed to upholding the autonomy of our regulators.
The noble and learned Lord, Lord Thomas of Cwmgiedd, spoke with great knowledge of this in the context of the legal profession, and I completely agree with his views about the need for the independence of the profession to be maintained. Let me say at the outset—I am sure that this is common ground across the Committee—that our regulators are the experts in their fields. They make sure that high professional standards are maintained. The core of the Bill supports the autonomy of regulators and their freedom to determine whether an individual with overseas professional qualifications is fit to practise in the UK.
Furthermore, and importantly, I am pleased to say that the regulators I have spoken to—I have spoken to a great number of them—agree that the Government are not interfering with their independence in the Bill. I add that I agree with my noble friend Lady Noakes about purpose clauses, especially when, as in the Bill, they serve no useful purpose. I am not therefore convinced of the need to set out the importance of the independence of regulators’ processes in an additional clause in the Bill, when the autonomy is manifest already. That autonomy, I beg to suggest, runs like a golden thread throughout the whole Bill.
I know we will come back to delegated powers when we debate individual clauses, but I appreciate the point raised by noble Lords that, with many powers contained in the Bill, a statement enshrining the purpose of the Bill would offer reassurance. I repeat, however, that those principles are delivered through the substance of the Bill, and I will offer arguments on the necessity of the powers later in the debate. I hope that they will assuage the fears of the noble Lords, Lord Hunt of Kings Heath and Lord Purvis of Tweed, and others.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
My Lords, I have requests to speak after the Minister from the noble Lords, Lord Lansley and Lord Purvis of Tweed. I call the noble Lord, Lord Lansley.
Lord Lansley (Con)
My Lords, not having participated in this group, I am prompted by the remarks of the noble Lord, Lord Purvis of Tweed, on the regulation of healthcare professionals, to which I do not think my noble friend responded. I have here the Law Commission report of April 2014—my noble friend will be aware of it—on the issues referred to by the noble Lord, which included the recommendation that Section 60 of the Health Act 1999, and indeed the powers of the Privy Council, should be substantially removed from the regulation of healthcare professions. What is the Government’s intention on the regulation of healthcare professionals? Do they intend to implement the Law Commission report seven years later, or do they now intend to proceed without any reference to it?
Lord Grimstone of Boscobel (Con)
My Lords, if I may, because it is a point of some detail, I will write to my noble friend and place a copy of my letter in the Library.
Lord Purvis of Tweed (LD)
I say to the Minister respectfully: he did not assuage my fears, because he did not address them. Can he reassure me now, from the Dispatch Box, that none of the Henry VIII powers in the Bill will be used to impact the accountability of the medical professions vis-à-vis the Privy Council, or—whether in response to demand or otherwise—to impact any of the powers or the relationship between the professional standards authority and any of the regulators that it has responsibility for?
Lord Grimstone of Boscobel (Con)
I did not believe that my comments on this group would assuage the noble Lord’s fears, but I am sure that as we progress through the Bill my comments on this matter in later clauses will do so.
Lord Fox (LD)
My Lords, this has already been a more interesting debate than I had anticipated. The response of the noble Baroness, Lady Noakes, on the subject of such clauses was not unexpected, but I emphasise that—as the noble and learned Lord, Lord Thomas, noted—this is a twin-track approach.
We would like at the end of this to have a Bill such that, in the Minister’s words, we all exit the Chamber assuaged. In the event that we do not, however, something along these lines is needed as a safeguard. I am not parti pris about the wording on this—I will take full advantage of the wisdom of others in the Committee, not least that of the Minister himself, if his department chose to engage to offer reassurance. He admits that such a clause would offer reassurance, and then says that the Government do not want to offer reassurance. The opposite of reassurance is something that I would not have thought the Government wanted to be spreading around, but clearly I am wrong.
On the chances of our being assuaged, there are two clear problems. First, while there has been some engagement with the medical profession, we have already had accountants, dentists and lawyers paraded as professions that have issues. I suspect that if there were experts in your Lordships’ House on many of the other professions, they too would express problems. So, while there has been consultation, it seems to me that more of that could be done.
That takes us to the other point, which is the back-of-the-envelope comment that the noble Baroness, Lady Hayter, made. I knew what my noble friend Lord Purvis was going to say, and I was still shocked when I heard him say it. There has been no reference by Her Majesty’s Government to this parallel exercise, and there would have been no reference to it had the diligence of my noble colleague not come to bear. It seems unthinkable that Her Majesty’s Government would bring a Bill such as this—a complex Bill, in the words of the Minister—without acknowledging a parallel exercise that is going on. The Minister does not seem to be prepared to answer the direct questions, but perhaps he could tell your Lordships’ House if Her Majesty’s Government are aware of any other parallel exercises going on in other departments at the moment. It would be helpful if they were all brought to light at this point rather than surfacing later.
It seems that assuaging us is going to take an awful lot of application from the Front Bench opposite. That said, we will wait and see how the debate goes today and on other days. On that basis, I beg leave to withdraw Amendment 1.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
We now come to the group beginning with Amendment 2. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
Clause 1: Power to provide for individuals to be treated as having UK qualifications
Amendment 2
Member’s explanatory statement
This amendment would enable regulations to specify additional conditions that must be met by an individual in order to be treated as if they have a specified UK qualification or specified UK experience.
Lord Grimstone of Boscobel (Con)
My Lords, I rise to move Amendment 2 and to speak to Amendments 3, 6 and 10 in this group.
I have set out the need for a framework for the recognition of individuals with overseas qualifications and experience that focuses on addressing unmet demand for professional services in the UK. Clause 1 brings in an important part of that framework. It means that regulations can be made which require regulators to have a route in place to determine whether to recognise overseas-qualified professionals from around the world. Where such regulations are made under this clause as amended, they would require a regulator to make a determination as to whether an individual has substantially the same knowledge and skills to substantially the same standard as the UK qualification or experience. These regulations would not and cannot alter the standards required to practise professions in the UK, and UK regulators would still decide who can practise here. Regulations would be made by an appropriate national authority, meaning the Secretary of State, the Lord Chancellor, or the devolved Administrations where within devolved competence. I reassure noble Lords that, where Clause 1 is not exercised—it can be exercised only when particular conditions are met—regulators will be free to continue recognising qualifications from overseas in line with their existing powers and any reciprocal agreements in place.
On Second Reading, several noble Lords spoke to the concerns of healthcare regulators. They highlighted that Clause 1, as it appears in the Bill, could limit the ability of regulators to assess knowledge and skills as they see fit. I committed at Second Reading to table an amendment to Clause 1 to ensure that regulators can assess knowledge and skills as they consider most appropriate. I assure noble Lords that the Government take the views of regulators very seriously. This brings me to the detail of Amendments 2, 3, 6 and 10 in my name.
First, the amendments recognise that, where Clause 1 regulations are used in relation to a given profession, additional criteria may need to be satisfied before an individual may become eligible to practise—for example, criminal record checks to ensure public protection. As raised by a number of noble Lords at Second Reading, this could also be used to ensure overseas-qualified professionals have suitable levels of English language proficiency in appropriate cases—something that, where appropriate, could also be addressed as a compensatory measure under Clause 1(3)(b)(ii). The amendment to Clause 1(1) and the addition of new subsection (3A) would allow these additional regulatory criteria to be specified in regulations made under Clause 1. These criteria would need to be met before an individual with an overseas qualification or experience is treated as having a UK qualification or experience.
Secondly, there are of course a variety of ways that regulators may wish to assess the knowledge and skills of an overseas-qualified applicant. These might include an assessment of their qualifications or a test of competence. The amendments to subsections (2) and (3) of Clause 1 and the addition of new subsection (3A) provide reassurance that, when the power in Clause 1 is used, regulators can assess an applicant’s knowledge and skills in whatever way they consider appropriate. I hope, in my first step in assuaging the concerns of noble Lords, that that is the start of the practice.
I have been clear since introducing the Bill that we must protect regulators’ autonomy. This includes autonomy over decisions about who practises a profession and flexibility in assessment practices, in line with regulators’ own rigorous standards. The methods used to determine whether a professional qualified overseas is similarly qualified to work in the UK should rightly be identified and implemented by regulators. Through these amendments, the Government want to ensure that regulators can use a full range of approaches to make this determination. This could include making judgments only on the basis of qualifications or experience, or on such other bases as a regulator considers appropriate.
I have discussed my amendments with the General Medical Council and Nursing and Midwifery Council, who raised this issue directly with me. I am pleased to say that, in a very good discussion we had yesterday, both the GMC and the NMC welcomed these amendments to the Bill.
At this juncture, it is right to address a point I have discussed with several noble Lords and which touches on the point of the noble Lord, Lord Purvis, about the interaction of the Bill with other matters—in particular, the interaction between this Bill and the Department of Health and Social Care’s consultation on regulating healthcare professionals, which also touches on international recognition of professionals. I reassure noble Lords that there is no reason whatsoever why any proposals resulting from the ongoing consultation and requiring legislative changes could not be implemented through legislation led by the Secretary of State for Health and Social Care and his Ministers. I have no doubt that that legislation would be the appropriate vehicle for upgrades to UK healthcare regulators’ legislative frameworks. This is my second point of assuagement.
To conclude on this point, I hope that noble Lords will agree that the amendments address the challenges raised at Second Reading. The amendments will ensure that flexibility and autonomy for regulators is preserved in the event that the power in Clause 1 is used. I beg to move Amendment 2.
Lord Lansley (Con)
My Lords, I apologise that I was not able to be present at Second Reading, so I will not detain noble Lords with my views about the Bill in general terms. However, I hope that I will be forgiven if I have not been able to say those things previously.
Amendment 11 in my name seeks to amend government Amendment 10. My noble friend the Minister has explained helpfully and clearly how the Government have brought forward amendments even before the Committee stage to points made at Second Reading and by the regulators. That is extremely helpful, and I agree with them. There was always a risk that if there was a generic recognition of overseas qualifications or experience, an individual would be deemed to have met the required standard in the United Kingdom, but not necessarily by that individual’s experience, qualifications or other factors. My noble friend referred to things such as language assessment. When I was Secretary of State for Health, we were closely engaged in our dealings on this with other countries in the European Union. It is simply not the case that because someone undertakes qualifications that are deemed to be the equivalent of those in the United Kingdom, people are able to practise here in a way that is not impaired. We set about trying to remedy that and we need to make sure that we do not introduce legislation which would reintroduce the same kind of problem.
I encourage noble Lords to look at government Amendment 10. I understand what is intended, but I think that there is a drafting problem. The determinations set out in proposed subsections (3A) (b) (i) and (ii) state that the qualifications and experience are substantially the same or may fall short. Those determinations are to be made
“(i) only on the basis of the overseas qualifications or overseas experience concerned, or (ii) on such other basis”.
The inclusion of the word “only” means either qualifications and experience on the one hand or on another basis on the other hand, but it cannot be both. I do not see why that is the case. To me, it is transparent that we may be looking for an individual to have overseas qualifications and experience, but the regulator should have the flexibility to look at other assessments or experience. For example, I can think of someone I met while I was in hospital not so long ago who looked after me. He was a medically qualified practitioner from overseas, but he was working as a technician in the NHS because his qualification was not recognised for our purposes. However, his experience here in the United Kingdom treating patients should have been taken into account in assessing, for example, his linguistic competence and other experience.
If, for example, a regulator wanted to look at overseas qualifications and experience, as well as UK experience, why should it not be able to do that? The inclusion of the word “only” precludes such a combination on its plain meaning. That may not be the Government’s intention, and obviously I will not press this amendment, but I hope that, at the very least, my noble friend will undertake to look at this and say that leaving out the word “only” might enable this amendment to the Bill to do what he wishes it to do.
Baroness Garden of Frognal (LD)
My Lords, I thank the Minister for the government amendments in this group. I want to speak in particular to Amendments 2 and 3, but having just listened to the noble Lord, Lord Lansley, I can see that Amendment 11 has an awful lot to commend it.
At Second Reading, I expressed concern that proficiency in English was not a prerequisite for individuals to be treated as having UK qualifications. I was prepared to put down an amendment to that effect, but I readily acknowledge that this is a matter much better left to the regulators than put in the Bill. The addition of the words “any other specified condition” leaves this in the hands of the regulators. It is hoped that many of them will recognise the importance that anyone working in the UK should speak and understand English. It is important not only for professional but for social reasons. We are still, alas, a hopelessly monolingual country, and any overseas worker who can speak only their language will have a difficult time both with their fellow workers and with sorting out their everyday life, however brilliantly they are qualified and however much experience they have.
Clause 1 concerns qualifications and experience, but leaves it with the regulator to consider whether experience makes up for any lack of appropriate qualifications. These amendments put the onus exactly where it should be—on the regulator. We on these Benches support the amendments.
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.
Baroness Finlay of Llandaff (CB)
My Lords, I declare that I am registered with the General Medical Council and I am president of the Chartered Society of Physiotherapy. Like others, I know that the GMC has welcomed these amendments from the Government. Indeed, they address many of the concerns that we raised at Second Reading. I have had some discussions too with the Health & Care Professions Council. It still has some concerns that I hope the Minister will be able to address.
Government Amendment 6 leaves in the phrase “substantially the same” at Clause 1(3)(b)(i), in respect of knowledge, experience and standards. Currently, the processes demand that registrants meet certain standards in order to practise. There is a concern that the phrase “substantially the same” in the legislation risks lowering this standard, potentially creating a two-tier system in which applicants from overseas would need to meet a lower standard than their UK counterparts.
It is, of course, most welcome that the Government have recognised that regulators currently make a holistic assessment: they look at education, training, commitment to CPD and, importantly, the level of experience of each applicant rather than just at something on paper from the institution from which they received a qualification at some time in the past. This focus on the situation of the individual, whether it is an overseas qualification or experience demonstrating an equivalent level of knowledge and skills, is crucial.
Our current workforce shortage is acute. We have a lot of vacancies across the UK and there seems no longer to be the incoming workforce that there used to be. We have people leaving as well, so the vacancy factor is becoming more acute with a workforce that is already feeling the strain and burnout following all the pressures of Covid. I hope that there will be a clear assurance from the Minister that there will be no dropping of standards in a rush to try to fill vacancies and that there will be a concerted effort to provide the education and training needed to make sure that we have the appropriate number of properly skilled people in our workforce.
The amendment proposed by the noble Lord, Lord Lansley, as discussed, seems to raise an important point. I think that the general tenor of the debate so far has been that we hope the Government will take their own amendment away and have another look at it, rather than expecting it to be put into the Bill today. It could come in on Report when it had been appropriately amended if necessary. It certainly would seem to need some more thought.
I am well aware from my own discipline of medicine that many drugs and conditions have remarkably similar names. It is extremely easy for people to become confused over which is which; that is how errors occur. Even if someone passes an English language test, it is actually their command of the language in the relevant discipline that becomes so important.
The other thing I want to ask the Minister before I sit down relates to those disciplines that are not yet on a professional register but will need to be. They include physician associates, anaesthesia associates and nursing associates in particular. I know that the General Medical Council will take on the registration of physician associates and anaesthesia associates, but I would welcome from the Minister confirmation that the same criteria will apply to them as will apply to those in professions that are already regulated by regulators to whom this Bill currently applies.
There is also a question about what will happen in future to some other groups that are not regulated, such as some of the psychological therapies that we discussed at length during the passage of previous pieces of legislation—for example, the Domestic Abuse Bill—when many Peers across the House expressed serious concerns about some of the standards of practice. We know that some of the schools of psychology have evolved in different countries around the world. It is important that we do not inadvertently create another problem by allowing people to come here and practise in an unregulated way.
That brings me to my last point, which is on cosmetic interventions. Currently, they are unregulated. I hope that we will see them regulated, but I request from the Minister confirmation that the same ability for a regulator to determine criteria will apply and that it will not be separate if it concerns a group coming into regulation that was not regulated previously. We know very well the number of damage cases that there are, particularly from inappropriate cosmetic procedures.
At this point, I seek those assurances from the Minister but reiterate that the government amendments are most welcome. They have demonstrated that they have listened to the representation, particularly from the General Medical Council but also from others.
Baroness Noakes (Con)
My Lords, I will be brief. I support the Government’s amendments in this group and the amendment in the name of my noble friend Lord Lansley. Initially, I thought that his amendment was attached to the word “only”, which is often misused in the English language—most often as an inappropriate or misplaced modifier. Initially I thought my noble friend was going to say that it was a misplaced modifier. However, I listened to what he said, and he raised a very substantive concern about the drafting of the clause. Like other noble Lords, I hope that my noble friend the Minister will agree to take this away and look at it and, if necessary, bring an amendment back on Report to make proper sense of his new amendments.
Of course, there is a slight problem: once we have amended a Bill, we are not supposed to go back and amend it again at later stages. However, I think that if my noble friend were clear enough from the Dispatch Box today that he will look at this, it would not cause a problem.
My noble friend Lord Lansley may well have noted that, in our Conservative notes on the amendments that we are considering today, his Amendment 11 was described as an opposition amendment. I know that my noble friend has not always toed the party line—he is not alone in that—but I have never regarded him as the Opposition. I share this with the Committee in the hope that it will improve my noble friend’s street cred.
Lord Fox (LD)
My Lords, I join noble Lords in congratulating the Minister on moving quickly on this. I also congratulate the GMC and the Nursing and Midwifery Council on moving quickly in terms of raising this issue with Her Majesty’s Government. Reflecting back on some of the things we heard in the debate on the first group of amendments, it seems that there are other professional groups in regulated professions that still have outstanding issues. I hope that the Minister can confirm that his door is just as widely open for them to bring their issues forward, albeit somewhat later, so that we can clear them up.
The Minister talked about whether we were assuaged and then stated that the Secretary of State for Health could bring forward statutory instruments concerning the health profession. We knew that. What we do not know, and what has not yet been answered, is how conditions set and laws made by this Bill that reflect on the consultation—as the noble Lord, Lord Purvis, set out frankly, this Bill and the DHSC consultation are travelling in highly contradictory directions—will affect the consultation and the health professions. It is that direction that we are more interested in, rather than the opposite.
I associate myself with the comments made by my noble friend Lady Garden of Frognal. These amendments are welcome. I note that, along with the noble Baroness, Lady Finlay of Llandaff, we expect to debate the word “substantially” later because we have some concerns around that. I also note her point about future regulators, so to speak. My assumption is that those regulators will be established by a different process somewhere else but, in order to add those additional regulators to this Bill, we will be seeing some more of the Minister’s statutory instruments in future. Perhaps the Minister can be clear about how future new regulators will be added to the terms of this Bill.
The noble Baroness, Lady Noakes, does not regard the noble Lord, Lord Lansley, as the Opposition, and I kind of do not, either. In this respect, I think the Minister would do well to listen to his very wise advice.
Baroness Hayter of Kentish Town (Lab)
My Lords, as has been said, the changes made are welcome. However, we should reflect that there are still concerns over the powers. On 7 June, the Delegated Powers Committee produced a report on the changes. It said that the Government had still failed
“to explain what such ‘additional requirements’ or ‘conditions’ might be”
and—this is the important bit—had failed
“to explain why the amendment would leave it to Ministers to determine … whether there are to be any such conditions and, if so, what those conditions are to be.”
The committee also said that the Government had failed
“to explain why all such conditions should be a matter for secondary legislation”
rather than primary legislation—a theme to which we will continue to return.
As the noble Lord, Lord Patel, said, the GMC welcomes the changes but has asked for a couple of things to be put on the record by the Minister today. For example, can the decision on whether a particular professional is able to join a register be based on an assessment of that individual’s knowledge, skills and experience, rather than on just their qualification? Also, will the regulators make that assessment? As the noble Lord said, the GMC has asked for that, but I must say, as a potential patient, that I too would like an absolute assurance that it will be the regulator who says that someone is fit to start cutting me open, or whatever else anyone would do.
On the little secret we heard about in the briefing from the other side of the House, perhaps the mistake next time could be calling my amendment a government amendment, because that way we might be able to get it through without anyone noticing. I live in hope.
The issue raised by the noble Lord, Lord Lansley, is a good one. I also wonder whether the Bill needs an “and/or”. That seems to go to the strength of putting this amendment to one side and putting it in on Report. The Minister should not think that there is any egg on his face or anything if we ask for a pause. As I am sure he will know, it is very normal for government amendments to be put in on Report; otherwise, they have to be brought back, slightly clunkily, at Third Reading, by which time we are normally rather tired and want to leave early. So if the noble Lord could not push his amendment today so that we can deal with it on Report, that might be the best way forward.
Lord Grimstone of Boscobel (Con)
My Lords, I thank all noble Lords who have given their careful consideration to the amendments in this group. It was an unusual experience for me standing at the Dispatch Box almost to feel a warm glow as noble Lords welcomed my amendments. The lesson that I learn from that is that the quicker one can amend one’s own Bills, the better, probably, in your Lordships’ House.
As noble Lords will appreciate, the Government have not brought these amendments lightly. As we have heard, they have been informed rightly and properly by careful engagement with healthcare regulators. I thank a number of noble Lords; perhaps I can single out the noble Baroness, Lady Garden of Frognal, for her support and the noble Lord, Lord Fox, for his comments. Without reservation, of course, my door is open to other regulators who wish to speak to me as this Bill continues its passage.
We heard again from the noble Lord, Lord Fox, on his point about consultation with the HSC. I think that group 7, which is about consultation, will be a good place to return to that and I will try to address in detail the points the noble Lords, Lord Fox and Lord Purvis, have made.
My noble friend Lady McIntosh referred back to what, in her view, was clearly the golden age of mutual recognition with the European Union. As I said previously, we would have liked to have maintained that mutual recognition. The phrase I used at Second Reading was:
“We took the horse to water but it refused to drink.”—[Official Report, 25/5/21; col. 975.]
I hope that noble Lords will support my amendments. I believe that they protect the public interest, maintain standards and ensure that regulators have the necessary flexibility and autonomy to regulate appropriately. I thank the noble Lord, Lord Patel, for his comments, echoed by the noble Baroness, Lady Hayter, and I am happy to give a complete reassurance standing at the Dispatch Box on the important points that were made.
In relation to the points made by the noble Baroness, Lady Finlay of Llandaff, about the use of the word “substantially”, we have a later group which is almost entirely devoted to discussing that word. If I may, I will leave comments on that until we get there and, again, I hope to assuage noble Lords’ fears when we reach that point.
On what happens if other regulators pop up in this field, the way the Bill is drafted and, frankly, one of the reasons why we have not included a list of professions—I am sure we will come back to that later as well—is because it is a moving target. Of course, any new profession that ends up being regulated by law will automatically fall within the purview of the Bill by being so regulated, and if it falls within the purview of the Bill, the standards of the Bill and the methods that we have been discussing today in relation to my amendments will also apply to those new professions.
I come to Amendment 11 in the name my noble friend Lord Lansley, who made some interesting points during the discussion which were reinforced by my noble friend Lady Noakes. I always admire my noble friend Lord Lansley’s forensic attention to the detail of the legislation before our House. I think all Front-Bench spokesmen from this side always listen carefully to the points that he makes. I will look at this again, but I hope that he appreciates that the wording of Amendment 10 is intended to provide more flexibility about how regulators make their determination. We believe that they need this flexibility and will find it helpful.
Some regulators—and this is, of course, completely a decision for the regulators—may consider it appropriate to look solely at what is demonstrated by a qualification obtained overseas, others may require an applicant to pass a separate test of knowledge and skills, while others may choose to combine the two. Regulators should have this broad discretion available to them. I believe, and I am advised, that the proposed removal of the word “only” from Amendment 10 could cast doubt on whether the first of those options is available. I will have another look at this to make sure that that is the right reading. Meanwhile, I ask my noble friend not to move his amendment.
I commend Amendments 3, 6 and 10 to the Committee and beg to move Amendment 2.
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
I call the noble Lord, Lansley, and then I shall call the noble Lord, Lord Purvis, who has requested to speak after the Minister.
Lord Lansley (Con)
My Lords, I am grateful to all noble Lords who have kindly approved of the argument made in Amendment 11 and to my noble friend for saying that he and colleagues will look at it again. I think that what they suggest is not the case. As it stands, Amendment 10 allows regulators to make a determination based on overseas qualifications and experience alone, but it runs the risk, which is a different risk, of preventing them combining that with other factors and assessments and bringing them together in the determination. That is the point. The removal of the word “only” would not, in my view, prevent a regulator making a determination based solely on overseas qualifications and experience.
I am grateful to the noble Baroness, Lady Hayter. If the Minister is willing not to move Amendment 10 today and to look at it again and bring it back on Report, I think that would be the best way to proceed. I think we all know what we want to achieve, which is to give the regulators flexibility. It is purely a drafting issue, and I am sure we will not need to be detained at length on Report if the draftsman, is, in the event, clear that the effect is as the Minister wishes it to be. He has not moved Amendment 10 yet, and I hope he will not move it when we reach it.
Lord Grimstone of Boscobel (Con)
I think I have in fact moved Amendment 10. I commended amendments to the House and begged to move.
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
May I explain to the Minister that we are debating Amendment 2, with which other amendments are grouped? The debate that is taking place currently is on Amendment 2 only.
Lord Grimstone of Boscobel (Con)
My Lords, I am grateful for that clarification. May I consider that point and come back to the House shortly on it?
Lord Purvis of Tweed (LD)
If I make a slightly longer intervention than I planned, it might allow the Minister to consult the Whips in order to respond to the noble Lord, Lord Lansley, in a constructive manner. Certainly, these Benches would appreciate it if the Minister was able not to move his amendment at this stage. Like my noble friend Lady Garden, I do not think that there is a large area of difference. I cannot speak for the Cross Benches—I see the noble Baroness, Lady Finlay—I am giving the Whip plenty of time here, I hope.
The Whip should not indicate to my noble friend Lord Fox for me to carry on speaking, because normally that is quite the reverse of what my noble friend asks me to do, which is to shut up. However, that said, I hope that the Minister will reflect on it. If he is able to respond positively with a nod, I will defer my actual comment until later on in the Bill—he is nodding enthusiastically to try to do that.
Lord Grimstone of Boscobel (Con)
My Lords, I apologise for the confusion. I am happy to have another look at Amendment 10 in the light of these comments. I commend Amendments 2, 3 and 6 to the Committee.
Amendment 2 agreed.
Amendment 3
Member’s explanatory statement
This amendment alters the determination that must be made by a regulator in order for an individual to meet the condition in subsection (2) of the Clause so that the determination relates to the knowledge and skills of the individual.
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
We now come to the group beginning with Amendment 4. Anyone wishing to press this or anything else in this group to a Division should make that clear in debate.
Amendment 4
Baroness Garden of Frognal (LD)
My Lords, I wondered if I had drawn the short straw for this set of amendments. It always feels slightly lonely when yours is the only name on an amendment, but I assure noble Lords that I have the support of all my Lib Dem colleagues. I beg to move Amendment 4 and speak to Amendments 5, 7, 8 and 33—there may be more to come later; I hope that this is not a spoiler alert—to remove “substantially” from the relevant clauses. It appears so often that it is obviously a favourite word of the Bill drafters, but it expresses a qualification, uncertainty and lack of conviction which we wish to challenge, and it surely threatens to undermine the authority of the regulators. If I were having an operation, or water were flooding through my roof, I am not sure that I would be reassured to know that the surgeon or the plumber had substantially the same knowledge and skills as those required by a UK surgeon or plumber, or substantially corresponded to the practice of a profession. Surely in legislation we need to be more assured. If we are genuinely looking at a level playing field between UK and overseas professionals, let us have the courage of our convictions and assure our citizens that they are in safe hands because the regulators have done their professional job and checked that qualifications and experience match across the countries, not just substantially but in their entirety.
Baroness Randerson (LD)
My Lords, I support these amendments. As my noble friend has excellently explained, we are probing the use of “substantially” and highlighting what we see as its inadequacy. The Minister’s own amendments start to tackle this problem. Both the British Dental Association and the British Medical Association have concerns that the proposals focus too heavily on simple qualifications and do not adequately recognise the importance of skills and experience, as well as the vital requirement to be of good character and to put patient safety first. This is fundamental in healthcare and being of good character is of course important in teaching-related professions.
The noble Baroness, Lady Finlay, earlier outlined the concerns of the Health and Care Professions Council. The Minister may argue that the BMA, the BDA and so on are not regulators, but they represent their profession. They have a stake in the respect in which that profession is held, and they pay substantial annual fees for the recognition of their qualifications. The impact assessment makes it clear that the proposals in the Bill will be likely to increase those fees.
In some measure, the amendment encapsulates the fundamental problem with the Bill. It tries to impose a simplistic solution on an endlessly complex and dynamic situation. The Government have grossly underestimated how long it will take to replace the current structure with an adequate and comprehensive alternative. The interim recognition of qualifications is swept away on enactment of the Bill, on the grounds that it gives preference to EEA and Swiss nationals before a replacement is necessarily ready. What will it be replaced with? Another set of recognition for qualifications from countries which will then be given preference as a result of international trade arrangements.
Baroness Hayter of Kentish Town (Lab)
My Lords, the requirement to speak Welsh in Wales is rather important.
I have some sympathy with the Minister. Later, we will get to our proposed new schedule—it is on pages 18 and 19 of the Marshalled List—to specify the regulators, again referring to the letter sent to the noble Baroness, Lady Noakes. The range of regulators covered by the Bill—and if they are covered they should be in the Bill—includes farriers, who may never have gone to university and for whom none of this might apply.
One has to be careful. Part of the problem is that we are trying to write a Bill for an enormous range of professionals. It does not include the Church—the right reverend Prelate will be very pleased—and their qualifications are probably recognised across different jurisdictions, but it includes all sorts of others, such as driving instructors. I used to call their body the DVLC, but I think it is now called the DVSA. It may well be that, in order to be able to instruct people, a driving instructor has to have five years post their own driving licence in one country but six in another. There may well be bits that are substantially the same, but I understand why we would want to include them. We are not just talking about the health service. I see the problems with that, but as a patient I would want the qualifications to be the same if not higher if we are recognising someone here.
Part of the problem is that, in writing what looks like a simple piece of law to cover the Security Industry Authority, the Royal Society of Chemistry and the Highways Agency—presumably the people who check that the roads are safe; I do not know what they do but they are in here—we have ended up with a Bill that tries to ensure that both doctors and farriers, for whatever reason the latter are regulated, are of high quality. I have some sympathy, but nevertheless I see a substantial problem in allowing too much flexibility, which would not be in the interests of patients in particular and maybe of other clients in sensitive areas. I look forward, as they say, to the Minister’s response.
Lord Grimstone of Boscobel (Con)
My Lords, I thank the noble Baroness, Lady Garden of Frognal, for tabling Amendments 4, 5, 7, 8 and 33, which probe the use of the word “substantially” in Clauses 1 and 4, and I thank the noble Baroness, Lady Randerson, for her comments. The point is that, in the end, it is the individual who must be fit to practise, and the assessments that we make must relate to the individual. It is here where the important matter of regulator autonomy comes in, and why it is that the only people who can safely work out what is the appropriate route for a particular profession and the right mix between the individual, the skills and the qualifications seems quite properly to be the regulator. That is the key safeguard that we want to achieve under the Bill.
I turn to the amendments. As we know, Clause 1 is the “Power to provide for individuals to be treated as having UK qualifications”. If amended as the Government suggest, under Clause 1 an individual would be treated as having UK qualifications if the regulator determined that the individual had substantially the same knowledge and skills to substantially the same standard as are demonstrated by the specified UK qualification or experience. The noble Baroness asked some interesting questions about this approach and whether it undermines the freedom of UK regulators. I reassure noble Lords that the issue has been very carefully considered.
If we removed the word “substantially” from Clause 1, that would change the requirement such that individuals would need the same knowledge and skills to the same standard as demonstrated by the specified UK qualification or experience. That suggests an assumption that it is often the case that skills and knowledge gained in one country for a profession exactly match those gained in another country for that profession. It also suggests an assumption that it is often the case that a profession in one country covers exactly the same set of activities as the equivalent profession in another country. Of course, these assumptions are not necessarily valid. So while it might make it easier for UK regulators to decline applications, removing “substantially” would remove regulators’ flexibility in considering how skills and knowledge developed overseas translate into the UK profession.
In the event that regulations were made under Clause 1 as drafted, regulators would have the discretion—and I believe that is where the discretion should sit—to make appropriate judgments about whether overseas skills and experiences meet their expectations to an acceptable degree. That drives us back to the consideration of whether the individual is fit to practise in substantially the same way as a UK individual would. This does not water down expectations and is not a compromise on quality, because if a regulator felt that the quality had not been maintained then they would not want to approve that person. The individual’s knowledge and skills must be substantially the same.
Lastly, including “substantially” does not restrict the freedom of regulators to make determinations of equivalence in ways that they deem fit. We come back to a point that we discuss regularly in this debate: the importance of regulators’ autonomy in deciding exactly the right approach to take.
On the question of English language proficiency, at Second Reading the noble Baroness raised the need in certain professions for demonstrable English language proficiency in order for an individual to deliver professional services to the standards required in the UK, and for regulators to be able to consider this. The Bill allows regulators to take into account language requirements as part of an assessment of knowledge and skills. Alternatively, under Amendments 2 and 10, regulations could provide that passing a language test was an additional condition in itself.
Amendment 33 examines the definition of “corresponding profession” in relation to authorisation that can be given by the appropriate national authority to enable regulators to enter into regulator recognition agreements. The amendment would change the permitted scope of regulator recognition agreements from those with overseas professions whose activities are
“the same as or substantially correspond to”
the UK profession to those with overseas professions that are “the same as or correspond to” the UK profession. As I have explained, there are differences between professions in different countries, and differences between how they are regulated between jurisdictions. Even under the EU’s prescriptive mutual recognition of professional qualifications directive, there were differences in the qualification requirements between different EU member states. The clause as drafted reflects the reality that professions do not exactly align across different countries’ regulatory systems and standards. Some countries do not make the same distinctions as us in how they define professions—for example, England and Wales distinguish between barristers and solicitors, but that is not the case in many other countries.
The amendment would narrow the circumstances in which a recognition agreement could be made, potentially preventing recognition agreements from being made at all if professions did not directly align with one another. The Government believe this would limit the autonomy of regulators to make decisions about how similar professions are in different countries. Regulators should be free to determine for themselves where it is appropriate to enter into regulator recognition agreements with their counterparts overseas.
Many noble Lords have spoken passionately about the need to ensure that regulators can make decisions that are appropriate to their professions. I hope I have explained why the word “substantially” is an important qualifier that allows for more regulatory autonomy in these clauses, and indeed in the other clauses where it is used, and that, on that basis, the noble Baroness is able to withdraw her amendment.
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
I call the noble Lord, Lord Fox, who has asked to speak after the Minister.
Lord Fox (LD)
I thank the Minister, who has used words to set out why the Government want to put “substantially” in there but in no sense explained it. Again, the Minister stated the importance of regulatory autonomy for the regulators, which of course is why I proposed Amendment 1—to put it at the very beginning of the Bill, rather than in words such as “substantially”, which mean several things to different people, in the body of the legislation. I have one specific question. Can the Minister tell us what the legal judgment is on including “substantially” and opening up regulators to legal challenge? In other words, if the law says “substantially”, who determines that, and is there legal recourse for an individual who has been turned down by a regulator to use that word to make a legal case? If the Minister does not have that legal writing to hand, perhaps he could furnish it before the next day in Committee.
Lord Grimstone of Boscobel (Con)
I thank the noble Lord, Lord Fox, for that point. Much as noble Lords know, I love giving my opinion on everything, but I hope it might be safer if I write to him about that legal point afterwards.
Baroness Garden of Frognal (LD)
I thank everybody who has spoken on this debate, which turned out to be rather more interesting than I was expecting. I can see the two uses of “substantially” and
“the same knowledge and skills”.
Perhaps “the same range of knowledge and skills” would be right, but I cannot understand why “substantially the same standard” is right, because surely we should be looking for “the same standard” throughout. I might amend some of the amendments on this point but I am not assuaged, I am afraid, by the Minister. He also did not really address the important points made by my noble friend Lady Randerson about why higher education institutions and others were not involved.
The noble Baroness, Lady Hayter, mentioned the farriers. I believe the farriers are regulated by a livery company, are they not? I declare my interest with City & Guilds; they are likely to have City & Guilds qualifications rather than degrees in farriering. I could be wrong on that but, from memory, that is what happens. But she is quite right that the range of these professions is extremely wide. Many of them are almost crafts and trades, rather than professions, but perhaps everything is a profession these days.
On that basis, this has been a very important debate and we may need to return to it at the next tranche. And we have another load of the word “substantially” in the next half of the Bill to have fun with. Meanwhile, I beg leave to withdraw this amendment.
Member’s explanatory statement
This amendment alters the determination that must be made by a regulator in order for an individual to meet the condition in subsection (3) of the Clause so that the determination relates to the knowledge and skills of the individual.
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
We now come to the group beginning with Amendment 9. Anyone wishing to press this or anything else in the group to a Division must make that clear in the debate.
Amendment 9
Baroness Noakes
“(iii) that the conditions mentioned in sub-paragraph (ii) can be met without imposing unreasonable costs or other burdens on the specified regulator or on individuals who are already qualified to practise the specified regulated profession, and”Member’s explanatory statement
The amendment adds an additional determination requirement related to the costs and other burdens involved in dealing with overseas professional qualifications which fall short of the standards of the relevant UK qualifications.
Baroness Noakes (Con)
My Lords, the noble Lord, Lord Palmer of Childs Hill, who is no longer in his place, explained the concerns which underpinned his Amendment 12, debated earlier this afternoon: namely that regulations could impose unreasonable burdens on a regulated profession to remedy a lack of appropriate qualification or experience in overseas professionals. My amendment has the same core concern. It was drafted after reading similar concerns expressed by the British Dental Association, which highlighted the burdens that could be imposed on regulators if they are required to assess professionals or overseas qualifications, or to develop new recognition agreements, to comply with regulations under Clause 1.
Even if regulators have autonomy over individuals who can practice, the regulations under Clause 1 could well impose burdens and costs in making the regulators set up operating processes to carry out the assessments to make the decisions, including having to assess the suitability of overseas awarding institutions, as well as the nature of practical experience that comes with individuals who wish to practice. In addition, it was noted that the costs which were incurred in any such new activity are likely to end up being borne by existing members. Regulators get the majority of their income from membership fees, and asking existing members to shoulder the costs of funding a problem of having too few professionals—which is what Clause 1 is said to be for—is, at the very least, unfair. That is why my amendment refers to the impact on existing members of the profession.
Amendment 9 would add a new determination that the regulated profession must make: that the additional processes of making good any deficiency in an overseas qualification
“can be met without … unreasonable costs or other burdens on”
the regulated profession or the existing members of that profession. I have expressed this in terms of costs or burdens because a regulated profession might, for example, have a shortage of suitable individuals who could carry out the processes and who therefore could not be obtained at any cost. It would actually be imposing an unreasonable burden for the regulated profession to bear. Importantly, my amendment places the judgment in the hands of the regulated profession.
Clause 2 refers to “unreasonable delays or charges”. These are words that my noble friend Lord Lansley wishes to delete with his Amendment 18, which is also in this group. But from my perspective, it should always be the regulated profession, and not the Secretary of State or other national authority, who should make that judgment. I look forward to hearing what my noble friend has to say about his Amendment 18, but I see the place for assessing burdens and costs, and that that assessment should be made by the regulated profession. I beg to move.
Lord Lansley (Con)
My Lords, I am very glad to speak to my Amendment 18 in this group.
In relation to Amendment 9, moved by my noble friend Lady Noakes, I think she has a point. Somewhere, we should be taking account of the costs that are imposed on regulators, and by extension as they are imposed on the professionals who are themselves regulated. In the previous group, the noble Baroness, Lady Randerson, referred to the material in the impact assessment on that point. Personally, I do not think Amendment 9 puts it in the right place, with great respect to my noble friend. There is a good point for putting it perhaps slightly later in Clause 1, and we may come back to this on Report. It seems that it certainly should be taken into account in the making of regulations under Clause 1; it just is not, at the moment. For example, there are things as to fees being paid in connection with an application but nothing to do with the regulations taking account of the costs on those regulated, including those who are currently regulated in that profession.
Why have I brought forward Amendment 18? The reason is that it relates to the inclusion of
“without unreasonable delays or charges”
at the end of Clause 2(2). What does that do? It is trying to define the circumstances where demand for a professional service is not being met. My fundamental problem with it is that it illustrates this by reference to unreasonable delays or charges. The implication is that this is the criterion by which one measures whether professional services are in sufficient supply.
For example, in relation to the health service, it is very hard to measure why there are delays for treatment. Sometimes they occur because of lack of workforce and sometimes for completely different reasons. It may be incredibly difficult to ascribe delays to simply having insufficient overseas applicants for a particular profession in the health service. Charges will be even more difficult since we do not charge. It may be possible to do this for dentistry but not for most other healthcare professions, since we do not charge consumers for access to services.
Interestingly, my noble friend Lord Grimstone wrote a letter to the Delegated Powers Committee—I think last Thursday—which is in its latest report, published on Monday. There is a paragraph which comes exactly to this point, in which he says:
“The Committee sought further clarification on the point that this demand needs to be met without unreasonable delays or charges. Those words make it clear that regulations can be made where the demand for the services of the profession is, strictly speaking, being met but the consumers of those services are experiencing unreasonable delays or having to pay high charges.”
Demand for those services under those circumstances is not, “strictly speaking, being met”; it is not being met. We do not need to write “unreasonable delays or charges” into the Bill for it to be evident that, in circumstances where insufficient members of a profession are providing services, there are delays in accessing those services; that is plainly the case.
As the end of the same paragraph, the Minister says, rather tellingly, that unreasonable charges and delays
“are illustrative of the considerations that the appropriate national authority would make in relation to this condition.”
“Illustrative” is not what the Bill says. It does not say “for example”, which it might well say. It says
“met without unreasonable delays or charges.”
It specifies those factors, so I think we should take them out. If unreasonable delays or high charges to consumers result from a lack of professional supply and that can be remedied by overseas applications, the appropriate national authority can make such a determination. It does not need the Bill to reference “unreasonable delays or charges” for that to happen.
I hope my noble friend will recognise that, in this respect, I am not trying to argue that delays or extra charges are not important; they are very important and may well be the principle determination one looks for in some professions. In others, one looks for other things. We should simply take those words out when the time comes—I hope we will—and the appropriate national authority will, if necessary, properly consult on what the demand for a professional service may be and the circumstances in which it is not being met.
Lord Bhatia (Non-Afl) [V]
My Lords, the Explanatory Notes state about Clause 9 that
“a regulator in one part of the UK could ask an equivalent regulator in another part of the UK for information relating to an individual’s fitness to practise and, where applicable, any instances of professional sanctions. This provision ensures that regulators in all parts of the UK have access to information that helps them fulfil their obligations.”
Does the Minister agree that, in view of the duty of all regulators to co-operate with each other, it should be mandatory for all four nations to allow any professions to practise in all four nations without any hindrance?
Lord Purvis of Tweed (LD)
I am grateful to the noble Baroness for bringing forward these amendments. She is very modest and did not tell the Committee whether they are considered opposition amendments, but, if it is not too unhelpful for her, I will say that I am very sympathetic to them. We have been considering them very carefully.
The noble Lord, Lord Lansley, quoted the interesting response from the noble Lord, Lord Grimstone. I think it was fairly clear that the Government intend to have these powers to, if they so choose, change the ability of the regulators to set fees for applicants. The Government will take those on board and then, for international trade purposes, set the fees for applicants. That changes the responsibility of the regulator quite dramatically, especially since many regulators, under law, have to seek approval from the Privy Council or the Scottish Parliament to do so.
I ask the noble Baroness, Lady Bloomfield, whether she might respond to the two times I asked the noble Lord, Lord Grimstone, about whether any of the regulations under this Bill will impact the oversight and accountability of the Privy Council regarding the setting of fees and the professional standards authority regarding its oversight. If the Government cannot, in Committee, offer reassurance on that point, then we are in a separate situation of considering the relationship of the Privy Council and Scottish Parliament.
If the Government intend to have the new powers now under the provisions of Clause 1(5)(e), which makes
“provision for fees to be paid in connection with an application”,
we have to look very closely at the impact assessment with regard to the impact of the Bill on fees. In their impact assessment, the Government have said that there is a high cost of this Bill of £42.82 million and a best estimate of £18.16 million. Let me be fair to the Government and take their best estimate of £18 million. The impact assessment says:
“These costs could be passed through in fee increases to professionals”.
I raised the staggering costs of this to professionals—the applicants—at Second Reading. The Minister responded that I should not be too concerned because this was not cost to the Government. It is not—it is to the applicants. I think the noble Baroness, Lady Noakes, and I agree; the Government do not have money—it is taxpayers’ money, as we are always told from that side of the House. The people who will be paying £18 million for this are the applicants. The Government say they want these new powers to reduce fees, but by implementing these powers the fees are going up. What is their plan, given that one completely contradicts the other?
The Minister may be able to help me out here as I do not know, but it may be that the Government are using the Home Office forecast of a 70% reduction in applicants from the EEA and Switzerland as a result of leaving the mutual recognition arrangements with the EU. Paragraph 90 of the Government’s impact assessment says that this
“may save resources by no longer assessing applications. It should be noted however that these regulators will also no longer receive the fee revenue attached to these applications.”
We could see a 70% reduction in the foreign fee applications, with an £18 million increase in this bureaucracy, which the Government say is going to be paid by British applicants.
I hope that the Committee is following me. If it is, I will refer back to the Department of Health and Social Care’s live consultation on the medical professions, which says in paragraphs 71 and 72:
“Four regulators (the GMC, GDC, GOC and the GPhC) can set registrant fees without any Parliamentary oversight. The remaining regulators can only implement fee changes with the approval of the Privy Council and, in some cases, of the Scottish Parliament ... We propose that all regulators should be able to set their fees in rules without Parliamentary oversight. This will make regulators directly accountable to registrants for the fees that they charge.”
However, this Bill will not do that; in fact, it is completely contrary to the proposals in the consultation for the medical professions to remove parliamentary oversight. The Bill is putting it in.
If that were not bad enough, the current situation for regulators setting their fees, as paragraph 73 says, is:
“Any fee changes, including those to put in place a longer-term approach, would require consultation.”
The Government are proposing—this relates to the point made by the noble Lord, Lord Lansley, about where the amendment of the noble Baroness, Lady Noakes, could fit—to put these regulations in place, with these provisions on fees and extra costs, through the negative procedure without any consultation. The Government are not only contradicting what they are saying to the medical regulators at the moment but weakening the ability of—or the requirement for—regulators to consult on who would pay these fees in the first place.
I would be grateful if the Minister could neatly wrap all this up for me because I am really struggling to work out whether BEIS or the Department of Health and Social Care is in charge of this situation. The impression I get at the moment is that no one is.
Baroness Hayter of Kentish Town (Lab)
My Lords, I will dwell on Amendment 18 in the name of the noble Lord, Lord Lansley. As he said, delays to services may not have anything to do with the workforce, although they may. I put my hands up: I live in a cladded building at the moment, and we feel strongly the lack of specialist fire surveyors to get things going. Therefore, one may have unmet demand for all sorts of reasons. Another one—save I would not want to say it to the ex-Secretary of State for Health—might be that the Government just do not spend enough money on the health service.
The issue that I really wanted to raise is not that one—I just cannot help teasing from time to time, as the Minister will well know—but the other point that the noble Lord, Lord Lansley, raised. In that letter sent by the noble Lord, Lord Grimstone, on 3 June to the Delegated Powers and Regulatory Reform Committee, which is in its report of Monday, the Minister said—it has already been quoted—that, in ascertaining whether there is an unmet demand for a particular profession, “delay” could be a factor. More surprising to me to hear from a Minister on that side of the House was his reference to “high charges” charged by the profession. Normally, that side of the House in particular would stray away from any government intervention in the setting of fees by professions or indeed any other service. As a consumer representative, I have often gone to the CMA or other regulators, saying, “We’re being ripped off”, and they say, “No; as long as the consumer knows what they’re paying beforehand and has the chance to take themselves out of the contract, we or the Government do not get involved in the fees charged to consumers”. As such, I find this unusual because it sounds like the Government are saying that if they felt that lawyers or surveyors, for example, were charging “high” fees—that was the word that the Minister used in the letter, not “excessive”—they could bring in regulation to open up the profession to outsiders. I hope that I have got that wrong, but it looks to me as if that is what this says, or it could be a way of defining it.
In a later group, we will come back to how we deal with skills shortages, and we will make comments at that point about the Government’s responsibility to fill any such shortages. However, at the moment, I ask for some explanation about whether it really is possible for the Government to put themselves in a position of defining whether a professional is charging excessive fees and, if so, being more sympathetic to bringing in overseas providers. Some clarity on that would be appreciated.
Baroness Bloomfield of Hinton Waldrist (Con)
My Lords, I thank my noble friends Lady Noakes and Lord Lansley for Amendments 9 and 18, which bring together two elements of the recognition framework proposed under the Bill. Noble Lords have raised some interesting points about the Bill’s potential impact on professionals and consumers of their services.
I turn first to Amendment 9, tabled by my noble friend Lady Noakes, which seeks to ensure that any cost or burden on UK regulators in helping individuals with overseas qualifications or experience to make up deficiencies in their knowledge or skills is reasonable. The amendment proposes that particular means of addressing these deficiencies should not be available if the costs or other burdens on UK regulators and existing UK professionals, including those who fund professional bodies, are not reasonable.
By way of background, I note that Clause 1 allows the regulator to specify a means for an individual with overseas qualifications or experience to make up for a shortfall in their knowledge and skills, compared to UK requirements. This is typically known as a compensatory measure, which could include aptitude tests, completion of an academic course or further experience. If Ministers in the UK Government or the devolved Administrations make regulations under Clause 1, the regulator will decide the means by which it assesses individuals with overseas qualifications and experience. It is for the regulator to specify any appropriate compensatory measures.
I agree with my noble friend that any compensatory measures to demonstrate that the professional has met this standard should not be unreasonable or burdensome on the regulator or the qualified professionals whom they regulate. This is why there is no requirement for the regulator to have to specify a means to make up shortfalls where it is not appropriate or not available. There is no requirement for the regulator itself to provide particular courses or experience to an individual to help them make up shortfalls.
In some cases, a regulator may, for example, simply specify that the individual must complete certain academic courses or obtain a certain amount of additional work experience. This would not place unreasonable costs on the regulator. I should add that compensatory measures are a commonly used approach in professional qualification recognition; it is not a new concept or practice for many regulators.
For example, if English language proficiency were required in order properly and safely to practise a profession, it would be reasonable for a regulator to require an individual with poor English to take a course and pass exams to show that their English had improved. It would not be necessary for the regulator itself to deliver that course. In conclusion, I hope that regulators would not consider that compensatory measures place unreasonable costs or burdens on them.
Amendment 18, tabled by my noble friend Lord Lansley, who speaks with some authority in this field, seeks to remove “unreasonable delays or charges” to consumers being taken into account under the condition in Clause 2 for making regulations under Clause 1. Instead, the condition would focus solely on whether regulations would enable demand for professional services to be met.
Clause 2 limits the scope of the power in Clause 1 to a specific set of circumstances where the appropriate national authority deems it necessary to enable the demand for services provided by that profession to be met without unreasonable delays or charges. By this, I mean that the consumers of those services in the UK are experiencing unreasonable delays or having to pay high charges. An illustrative example of an unreasonable charge might be where consumers or businesses face unreasonably high fees caused by a shortage of professionals. For example, this could be the NHS—a consumer of professional services—or the general public’s consumption of them, direct from a professional. An unreasonable delay might, for example, occur if a profession was unable to deliver its services quickly enough without more professionals in the workforce. This could include, for example, waiting times for social worker support—so unreasonable delay or cost can be made distinct from demand or shortage. Without this wording, the levers that we have to take action where there is a need are narrowed.
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
I have received a request to speak after the Minister from the noble Baroness, Lady Hayter of Kentish Town.
Baroness Hayter of Kentish Town (Lab)
The Minister has not answered my question. She seems to have continued to say that a national authority—that is, the Government or one of the devolved Governments—can decide when a professional is charging high fees. Can she be absolutely clear that she is saying that? I would like to know on what basis that would be and whether they would go to the CMA for advice. Whether it is a farrier or anything else—or an accountant, although I think they are not covered—on what basis is a Minister going to decide that a professional is charging a high fee? Will that be challengeable in court or via the CMA? What would be the mechanism for that decision?
Baroness Bloomfield of Hinton Waldrist (Con)
I am sorry that I gave that impression, but I do not believe that I did give the impression that the Government would set the fees. There would be a mechanism for oversight, which would be the impact assessment route that I mentioned in my speech.
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
I have had a request to speak from the noble Lord, Lord Purvis of Tweed.
Lord Purvis of Tweed (LD)
Could the Minister repeat what she said at the Dispatch Box? She said that the regulators do not have parliamentary oversight in setting their fees. The Health Department’s consultation at the moment says that four do not but the remaining ones do. They have to secure the approval of the Privy Council and, in some cases, the Scottish Parliament. So which is it, and will any of these regulations have any impact on the relationship with the Privy Council and the Scottish Parliament when it comes to the fact that they have to approve changes of fees?
Baroness Bloomfield of Hinton Waldrist (Con)
Perhaps I can clarify what I said earlier. The Privy Council is the intermediary between independent regulators and the Government; it is essential to maintaining regulators’ independence, such that regulators are able to deliver their duties impartially. There is no relationship between the council and the Bill.
Baroness Noakes (Con)
My Lords, I thank all noble Lords who have taken part in this debate for their contributions, an awful lot of which were on my amendment. Some important issues were raised by the noble Lord, Lord Purvis of Tweed, and the noble Baroness, Lady Hayter, none of which have been very satisfactorily dealt with by the Minister.
I turn to my amendment. I thank my noble friend Lord Lansley for his support and accept his challenge to look at the positioning of my amendment if I decide to take it forward at a later stage. The Minister talked as if compensatory measures were just sitting in every regulator’s toolbox to deal with every situation that could possibly arise, but the truth is that compensatory measures will have been designed for the sort of applicants who have already been coming to the UK for assessment, and they are not going to cause any problem. We do not even need this Bill for those applicants.
We are most likely to encounter problems when other forms of overseas applicant arise, with less traditional professional qualifications and/or experience. It is that which is likely to cause the burdens on the individual regulated professions to cope with things that they are not already coping with. The question posed by my amendment was about how we avoid unreasonable burdens being placed on those regulators and, in particular, on existing members of those professional bodies who fund the regulators.
To be honest, I do not think that the Minister answered that question at all. There is a very real problem there. I can see that we are not going to progress it any further today, but I recommend to my Front Bench that all the issues raised in this debate are looked at again before we get to Report because there are some big unanswered questions arising from this debate.
The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)
Before inviting the Committee to consider the withdrawal of the amendment, I call the noble Lord, Lord Lansley, who was attempting to come in after the Minister.
Lord Lansley (Con)
I am grateful. I just wanted to make a point after the Minister because I think she made a fundamental error in suggesting that if we were to take out the words
“without unreasonable delays or charges”
from this subsection unreasonable delays or high charges would not be able to be considered as factors in determining whether demand is met. On the contrary, they will be considered with other factors. They would not be excluded.
We will clearly come back to this again on Report because the reply to the debate was not satisfactory, and we will have to write these things out in more detail. Will my noble friend at least just agree that removing those words does not mean that those factors are not taken into account?
Baroness Bloomfield of Hinton Waldrist (Con)
The firm advice that I had from my officials was that it would.
“(4A) Before regulations under subsection (4) may be laid before Parliament, Senedd Cymru, the Scottish Parliament or the Northern Ireland Assembly, the appropriate national authority must undertake a formal consultation with the devolved administrations, regulators and the Lord President of the Court of Session.”
Baroness McIntosh of Pickering (Con)
I am delighted to move Amendment 13 and to speak to Amendments 24, 35 and 40. I thank the noble and learned Lord, Lord Hope of Craighead, for his support of these amendments. I shall speak also in support of Amendment 41, and look forward to hearing more detail and the thinking behind Amendment 42, in the name of the noble Baroness, Lady Randerson, Amendment 49, in the name of the noble Baroness, Lady Hayter, and Amendment 57, in the name of the noble Lord, Lord Purvis.
On the background to Amendments 13, 24, 35 and 40, the case was made at Second Reading, and I have now followed that up more firmly with these amendments. It is really about having regard to two distinct concepts. I come from the background of the Faculty of Advocates, albeit now as a non-practising member. There are separate jurisdictions of law in the UK, and there are sufficient differences between these legal systems to warrant an exclusion from the provisions that create greater regulatory integration of other professions between the UK’s composite parts throughout the Bill.
Secondly, as I said at the outset, it is a process of not just recognising that the distinct nature of legal services needs to be recognised and respected but also that the regulation of the legal profession, certainly as regards solicitors and advocates, is devolved. What I propose to do, and I hope that the House will support me in this regard, is to ensure that there will be a formal consultation with the relevant devolved Assemblies before any regulations are made under the provisions of the Bill as passed.
Amendment 13 relates to Clause 1, but the wording that I have used is similar in relation to Clauses 1, 3 and 5—Clause 3 relates to the “Implementation of international recognition agreements”, and Clause 5 relates to the “Revocation of general EU system of recognition of overseas qualifications”. A slightly different wording is used in Amendment 40 to reflect the fact that this relates to the setting up of an “Assistance centre”. As regards Amendment 40, I would go so far as to say that there should be a formal consultation with the devolved Administrations and regulators. I think the noble Lord, Lord Foulkes of Cumnock, and I have both been greatly assisted by the Law Society of Scotland in our preparation for this afternoon, and I thank the society most warmly for that.
The noble Lord, Lord Foulkes, goes further and goes to the question of consent—that consent be specifically given. In that regard, if that consent is not given then the understanding is that the arrangements would not proceed. I think it is extremely important, again underlining the fact that the purport of these regulations —also as regards to the assistance centre—must have regard to the nature of the devolved Administrations and regulators.
Amendment 49 in the name of the noble Baroness, Lady Hayter, and supported by the noble Baroness, Lady Randerson, looks to the common framework agreement. I have just one little question here. Is that what we understand by the common frameworks? I am following this as closely as I can, albeit living in England. Is the noble Baroness referring to the existing common frameworks, or is she proposing a separate one in that regard?
I believe that it really is essential that we adopt either Amendments 13, 24, 35 and 40 or something equivalent to them. I hope that my noble friend the Minister will look kindly on these amendments and go some way to assuaging my concerns that, without these amendments, we are not going to have a full consultation in advance of these regulations being laid.
With those few opening remarks, I look forward to hearing the rest of the debate on these amendments. I am grateful for the support of the noble and learned Lord, Lord Hope of Craighead. I have taken the precaution in Amendments 13, 24 and 35 to acknowledge the fact that the Lord President of the Court of Session has a specific role to play in regulating the legal profession in Scotland.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, like the noble Lord, Lord Lansley—who, following the revelations from the noble Baroness, Lady Noakes, I suppose I should now call my noble friend Lord Lansley—I did not participate in the Second Reading debate, as I was not able to be here, unfortunately. I agree with many people who said on that occasion that, although this is not a contentious Bill, it is a very important one. When you think of the number of professional bodies and areas of employment that are being regulated—more than 160—it is really a very important issue. I will come back to that.
However, I have sat through now two and three-quarter hours of what purports to be a Committee stage of the Bill. I must say that it is really a very disappointing and inadequate way of dealing with a Bill. It is not proper consideration when we cannot intervene properly and ask questions when the Minister is speaking and cannot intervene on each other. I would have liked to have intervened on the noble Lord, Lord Purvis. We could have had a dialogue about the Privy Council, of which I am a member. I know nothing about any of these matters because it is all delegated to various committees of the Privy Council. We could have maybe explored that.
There are other issues. The noble Lord’s predecessor in the Chair, the noble Lord, Lord Faulkner of Worcester, was very good and allowed the noble Lord, Lord Lansley, to come in without having to go through the process of emailing the Clerk. I think the noble Lord, Lord Purvis, managed to whisper in the Clerk’s ear. It is excellent that there is some flexibility, but it ought to be more flexible. We ought to have a proper Committee stage. The interesting thing is that most of the people participating have been here in person. There are relatively few today in this Committee stage on the screens. That is why I think that the Procedure Committee and the usual channels need to carefully consider changing the arrangements for Committee and Report stages, which are so important in dealing with aspects of Bills.
It was a fascinating exchange earlier between the noble Baroness, Lady Noakes, and the Minister. Under normal circumstances, there would have been a different kind of dynamic arising from that exchange. It could have been much more helpful in dealing with this Bill. At the moment, because everyone has to be dealt with equally—whether they are at home, as I was on a number of occasions, or here—we cannot have a proper Committee stage. One of my colleagues, the noble Lord, Lord Campbell-Savours, has suggested that we do away with that equality and the Procedure Committee should say that, for Committee and Report stages, certainly, those who are present should be able to operate normally as we used to do and that people at home should accept that and understand that. If they want to participate, they should be able to come here in one way or another. I really think that, in terms of considering our legislation properly, we need to look at that. That is nothing to do with the amendment, by the way, but it is very important.
Can I also say another thing that I would have said in Committee? As my noble friend Lady Hayter said earlier, there has been a lack of investment in training of doctors and nurses—over the last 10 years, in particular —so that we do not have home-trained doctors and nurses. I worry that some of the motivation of some people in the Government behind this—not everyone—is to bring in doctors and nurses from overseas as quickly as possible to make up for the fact that they have not been training enough doctors and nurses. As someone who has been involved in overseas development for years now—I used to be Minister in that department and now we are suffering that huge cut in our overseas development assistance—I think it would be wrong for us to drag in too many people and to see this as a way of bringing in too many doctors and nurses from overseas from countries that need them equally as much as, if not more than, we do, and which need their health infrastructure strengthened. That is nothing to do with amendment either, but it gets it off my chest.
The amendment would require the Secretary of State to seek the consent of the devolved Administrations —but with qualifications, I say to the noble Baroness, Lady McIntosh of Pickering—prior to making arrangements for the assistance centre. We welcome the provisions regarding the assistance centre; I speak on my own behalf, but I know, as does the noble Baroness, that the Law Society of Scotland welcomes it. Like her, I am grateful to Michael Clancy and his colleagues from the Law Society of Scotland for their help on these amendments.
The centre will provide advice and assistance regarding entry requirements—we will come to other aspects of it later—to those seeking to practise a profession in the United Kingdom or to those with UK qualifications seeking to practise overseas. We note the obligation on regulators, contained in Clause 7(2), to provide the designated assistance centre with any information it may need to carry out its functions. That seems entirely appropriate in the circumstances.
The obligation to make arrangements for the assistance centre lies on the Secretary of State. However, the centre will provide advice and assistance covering the whole of the United Kingdom, not just England. Accordingly, we consider that it would be important, and reflect the acknowledgement of the role of the devolved Administrations in earlier clauses of the Bill, for the devolved Administrations to be rather more than consulted on the arrangements for the creation of the assistance centre.
What I suggest in the amendment, as the noble Baroness, Lady McIntosh, generously said, goes further and is more radical than the amendment she has proposed. However, it would not give the devolved Administrations a veto; it says that the Secretary of State—should first “seek the consent” of the Scottish and Welsh Ministers and department in Northern Ireland; that is where I go further. If the Government do not get that consent within a month—it gives the devolved Administrations a veto or delaying power of a month—they can still go ahead. But if they do, notwithstanding the fact that they have not got approval from the devolved Administrations, they then have to publish a statement explaining why the Secretary of State decided to make the arrangements without the consent of the authority or authorities concerned. They have to explain why they have not taken account of representations before going ahead.
I say to my friend, the noble and learned Lord, Lord Hope, who knows more about the United Kingdom Internal Market Act than anyone around today, that this replicates the compromise that was agreed in that Act when we discussed it as a Bill in relation to, for example, the CMA and other aspects. Does the Minister consider that my amendment would have the same effect as the Government have already agreed in relation to the internal market Act? It is not revolutionary; it is more radical than the amendment of the noble Baroness, Lady McIntosh, but it is something that the Government have already agreed to in terms of the internal market Act. I therefore hope that it will be considered sympathetically by the Government.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
Just for clarification, if a Member wishes to speak after the Minister and is in the Chamber, they can message the clerk; if they are online, they can email the clerk. But all requests must come through the clerk to the Chair. I call the noble Baroness, Lady Randerson.
Baroness Randerson (LD)
My Lords, I wish to speak specifically to Amendments 42, 49 and 57, which I have co-signed. They all address issues related to the interaction of UK Government powers with those of the devolved Administrations and each of the three relates to different aspects of that issue.
Amendment 42 relates to the national assistance centre. The impact assessment makes it clear that this will be a centralised facility under the control of the Secretary of State, but it will also provide information and assistance in relation to devolved regulators and where the professional qualifications are different in the devolved nations. In preparation for this debate, I went online and explored the websites of a range of regulators. They all seem to provide comprehensive advice and information services, so I am puzzled as to what the problem is. Why is it necessary for the Government to overlay the well-established structure of regulators with this additional bureaucracy with—of course—its accompanying additional cost?
Because I am of a suspicious nature, I feel that the real purpose of the assistance centre is to enable to the UK Government to override the differences between the nations of the UK and, when making trade agreements, to take the opportunity to iron out those annoying differences in qualifications in one part of the UK and another. Hence my amendment, which simply requires consultation with the devolved Administrations on the function and operation of the assistance centre before it is established.
It should not be necessary to state this basic constitutional principle in terms of an amendment to a Bill, but the Government’s approach to this Bill has been woeful so far. It has been developed at speed—the noble Baroness, Lady Hayter, suggested it was on the back of an envelope—at a time when elections meant that there have been none of the usual opportunities to consult the devolved Administrations. In Wales, officials did not even see a draft of the Bill until the week before its introduction. They did not see the final version until we all saw it, when it was laid.
As drafted, this Bill confers a suite of regulation-making powers on the appropriate national authority. In Wales, the Welsh Ministers are that authority for the devolved areas, but the powers conferred on them are exercisable concurrently with the Secretary of State and the Lord Chancellor—hence the Secretary of State and Lord Chancellor could legislate in devolved areas and would not need to obtain Welsh Ministers’ consent.
As things stand, all the devolved Administrations appear to be opposed to this Bill in its current form. In Amendment 42, I offer just a modest solution to a very small part of the problem that the Government face. I would be grateful if the Minister could explain exactly how he sees the assistance centre working, how large it will be, what it will actually do and the estimated cost.
Amendment 49 relates to the interaction of this Bill with common frameworks, an issue that was raised by the noble Baroness, Lady McIntosh. Several noble Lords can boast that they have the T-shirt in relation to common frameworks and their interaction with government attempts to regain devolved powers. We fought several rounds with the Government on this issue during the passage of the internal market Bill. It is not at all clear how this Professional Qualifications Bill interacts with the well-established common frameworks programme.
There is a recognition of professional qualifications framework in preparation by BEIS, but it seems to have been delayed and there has been no explanation for that delay. Is this Bill designed to replace that common framework? If so, the Government need to tell the devolved Administrations, because they would much rather go ahead on the basis of a framework that involves non-legislative co-operation and a lot of working by consensus. This amendment is designed to ensure that the common framework on professional qualifications is not undermined or overtaken by any provisions in this Bill.
Lord Thomas of Cwmgiedd (CB) [V]
My Lords, I shall speak to all the amendments in this group. I do not wish to say anything further about the amendments proposed by the noble Baroness, Lady McIntosh of Pickering, and the noble and learned Lord, Lord Hope of Craighead, save to say that I warmly support them, as I do the amendment in the name of the noble Lord, Lord Foulkes.
I come to the principal issue on which I wish to speak. Amendment 57 and Clause 14 demonstrate that there are two significant issues before this Parliament. The first is the extent to which we have framework legislation with Henry VIII powers—and with a vague statement that these are needed—while knowing that there is no opportunity for proper scrutiny and amendment of the powers that will be exercised in subsequent regulation. The second problem is what I would describe as the chipping away—because this is what it is becoming—of the devolution arrangements. This is being done without the consent of the devolved Governments and without putting in place a proper framework for joint agreement on how to move forward where there is a necessity for a UK solution. I fear that these issues will bedevil this Session of Parliament. They come to a head in Clause 14.
Clause 14 gives the Lord Chancellor and the Secretary of State power to make regulations in devolved areas. It is immensely concerning that Henry VIII powers are being used without any indication as to precisely how this is to be done and no real argument as to why they are necessary. It is difficult to understand why this area needs to be chipped away. What is the benefit for the future of the union? It would be useful if the Minister could say what he sees as the benefits and acknowledge the costs of the damage to the union.
I warmly support Amendment 57, subject to one matter I shall mention later. It is difficult to see why this problem cannot be dealt with by Amendment 57. This would leave the devolved Ministers to make decisions within their areas of devolved competence. Something like a common framework or some structure for common policy-making could then be used to resolve the differences. Using the twin devices of framework legislation and Henry VIII powers is quite the wrong way to go about our constitutional arrangements. I hope the Minister will be prepared to discuss these issues in much greater detail.
The noble Baroness, Lady Randerson, has already touched on the point I wish to make about Amendment 57. Its proposed new subsection (5) is taken from Clause 14 of the Bill as it stands, and seems a wholly unnecessary irritant. It is not constitutionally necessary. I do not understand why this Government wish to irritate people by further constraining the powers of the Welsh Ministers in a way that is wholly unnecessary. Again, a cost-benefit analysis, thinking what we are doing this for, would be a great step forward.
I hope that the difficulties inherent in the combination of the Henry VIII powers and the chipping away of devolution can be seriously discussed between those in the devolved Administrations, together with this House and the Government. I would welcome such discussions before Report to avoid what it seems is a further significant strengthening of those who wish to oppose the union for very little benefit in return.
Lord Bruce of Bennachie (LD) [V]
My Lords, I support all the amendments in this group, particularly Amendments 13, 41, 42 and 57, which look to formal consultation with the devolved Administrations and, in the case of Amendment 41, the consent—under certain conditions—of the devolved Administrations to any regulations made under this section.
As all speakers on this group and in the debates on previous amendments have said, the Bill involves wide-ranging powers and Henry VIII clauses. These are apparently justified on the grounds that what may be required cannot be anticipated, and therefore cannot be legislated for in advance. This seems a dangerous and spurious catch-all which, of itself, is sufficient justification for requiring formal consultation with the devolved Administrations.
This all relates to trade deals yet to be negotiated. It will hinge on areas of skills shortages across and within the UK, as well as the opportunity for UK professionals to practise abroad. Professional regulation must surely be founded on ensuring that any professional is safely and properly qualified and experienced to practise in all or part of the UK. Yet this Bill and the powers within it are specifically linked to trade deals, and there is a risk that deals involving reciprocity could lead to standards being compromised. This concern has been identified by the report of the Delegated Powers and Regulatory Reform Committee of this House.
Also, given that skills shortages vary across the UK, and by time and sector, if a devolved Administration identify a skill shortage, will the Immigration Rules also be taken into account, not just the professional qualifications regulations? Clearly, that will be necessary.
The Government have stated that they would,
“not normally make regulations under these powers in devolved areas without the agreement of the relevant devolved authority”.
Right from the very beginning of the Brexit debate, however, we have debated what “normally” means. As the noble and learned Lord, Lord Thomas, has pointed out, it looks like a shifting definition, and one that is not to the benefit of the devolved Administrations—or indeed to the professions in the devolved areas.
In this context we should also consider the role of the assistance centre, whose staff should surely all be thoroughly conversant with all regulators, including in the devolved Administrations. The amendment from the noble Baroness, Lady Randerson, would be a helpful contribution to that, because the assistance centre is a welcome recommendation, but only if it is properly qualified and its staff fully appreciate what goes on across all aspects of the UK. In areas as complex and specific as professional qualifications, that is a big ask, which must be answered. The scale and diversity of the professions that we are discussing, and the regulators that engage with them, absolutely require that any changes should be carried out only after consultation and, wherever possible, consent.
As an example of this, Scotland has long had an all-graduate teaching profession. It is sad that Scotland’s education performance has fallen down the international scale; however, that is not the fault of the teaching profession but of a curriculum and examinations set-up that is simply not fit for purpose, yet whose reform is not being tackled. We are not short of qualified teachers. Many are unable to find permanent employment, which in itself is a scandal. We certainly need to tackle education reform in Scotland. In that context there may be a role for teachers from other countries to make a contribution, but it would be regrettable if standards were compromised in a trade deal, and if those teachers were recruited while well-qualified teachers in Scotland were unable to get employment in the profession, which is where we are currently.
The UK Government say that they are working with the devolved authorities on a number of common frameworks. I also have the T-shirt as a member of the Common Frameworks Scrutiny Committee, as do five noble Lords contributing to this group of amendments. The Government say that they are working on common frameworks to help co-ordinate policy development between UK nations where powers have returned from the EU and intersect with devolved competencies. This includes the mutual recognition of professional qualifications: the MRPQ framework.
In an update covering 26 September to December 2020, the Cabinet Office said that discussions on the framework made progress during that period but that development timelines should be extended. It went on:
“Agreement was reached between the UK Government and the devolved administrations that both MRPQ and Services should be developed over extended timelines to allow for more work to be done. All administrations remain committed to working to develop and agree these frameworks.”
That is all welcome, but I hope the Minister will agree that, as I have pointed out, the range and complexity of the regulation of professional qualifications, and uncertainty over the changes that may be needed, require formal consultation to be carried out and consent secured. How will this happen if we are operating on different timelines? The Government may be out there desperately trying to negotiate trade deals while all these procedures are in the process of a long, drawn-out common frameworks negotiation. As we know, the common frameworks are well behind the schedule originally hoped for and planned.
They have clearly set out the mechanism and an arrangement—which those of us on the committee feel has much to commend it—that seeks the maximum amount of co-operation and consent, looks to have fair and balanced dispute resolution mechanisms and ought to be the model for how the interconnection and co-operation between the UK Government and the devolved Administrations is carried through going forward. It would be good if Ministers acknowledged that so much has been learned in this process that it should be applied not just to those areas that were historically part of the transition out of the EU but to all future ways of working, and the principles on which the common frameworks have been founded and developed.
Baroness Bennett of Manor Castle (GP)
My Lords, I put my name down to speak to this group of amendments—the first time I have participated in this Committee—because, as the noble Baroness, Lady Randerson, said, they collectively address a basic constitutional principle.
I find myself in the slightly unusual position of standing up to speak in favour of preserving current constitutional arrangements. However, I pick up on the words of the noble and learned Lord, Lord Thomas, that what is happening here is a chipping away of devolved powers. I put it to those who wish to see the union continue that squeezing more tightly—squeezing away powers—is the way to ensure that people choose to slip out of its grasp.
I suspect that we might hear the Minister, as we have heard from Ministers in so many other debates on so many different subjects, say: “Don’t worry, we don’t mean any ill, this Government do not mean the wrong thing”. This morning, I was talking about the situation and debate around the potential Australian trade deal—about hormone-laced beef and animal welfare standards—and we said in that context, as in so many others, that words are just words. We need guarantees in a Bill.
All these amendments head in the direction that I would like to see, but I highlight in particular Amendments 41, 42 and 57. The noble Lord, Lord Foulkes, said that his amendment was not absolutely revolutionary, although, as you might expect to hear from me, I rather tend towards the total peaceful revolution. The amendment says that there would have to be a delay before a devolved Administration could be overruled. I question whether there would be any circumstances in which it would be reasonable for a devolved Administration to be overruled. I therefore repeat a question I put at Second Reading, to which I did not get an answer: can the Minister give examples of circumstances in which the Government might feel it right and justified to overrule a ruling from a devolved Administration, where that Administration say “No, these regulations on professional qualifications you are trying to impose are not good enough for us and do not meet our needs”?
In looking at why there might be different rules in different places, the noble Baroness, Lady McIntosh, pointed to the differences in legal systems, which is one very obvious area—a long-running historic circumstance. But there are also practical differences.
Somebody mentioned driving instructors. Driving in the highlands of Scotland may be very different from driving in most parts of England and there may be good, practical reasons why qualifications may be different in different nations, for obvious reasons, but also, of course, we are very much talking about politics. In something of an aside, the noble Baroness, Lady Hayter, referred to Welsh language qualifications for teachers in Wales. These are issues of intense political debate and discussion; they are not merely small, technical issues that can be ironed out by dealing with a few technical measures. These are political decisions that have been made by devolved Administrations who have been given constitutional powers that are supposed to be guaranteed. So it is very clear that we need to see change to what we have currently in the Bill.
The noble Baroness, Lady Randerson, highlighted something I have been puzzling over. At Second Reading, a lot of people questioned the whole issue of the assistance centre, and it is very hard to see how this all fits together for something so complex and difficult. As many noble Lords have said thus far in Committee, this really feels like a severely undercooked Bill; a great deal of work is needed. This is one area where I really believe we have to see change, and if we do not see change from the Government when we get to Report, we will be coming back to this and very much consulting with the devolved nations. We need to see that kind of consultation and involvement, and the first place where we really should be seeing consent from the nations is in their acceptance of the form that the Bill takes.
Baroness Finlay of Llandaff (CB)
My Lords, like others who have spoken, I strongly support these amendments. I am most grateful for the most comprehensive speech by the noble Baroness, Lady Randerson, who laid out clearly what the issues are, both in terms of the constitutional conflict that is in the Bill at the moment, and the consequences of it, and also the consequences for services within Wales. I think these also apply to Scotland, but I should declare an interest as someone who lives and works in Wales—that is the area of my own experience. I ask the Minister to explain quite clearly why the draft of the Bill was given to the Welsh Government only a week before it was published, and why the final version was not seen before it was laid on 12 May. To me, that does not feel like consultation or like any attempt to find a consensus agreement with devolved Administrations at all.
There is a concern that the skills shortages are being linked to the trade policy agenda, and how the new obligations on regulators could be moved and adjusted because they are driven by some trade policy, rather than by the need to ensure that we have safe and effective high-standard services for people within our nation. Although Clause 14 confers regulation-making powers on the appropriate national authority, these are exercisable only concurrently with the Secretary of State and Lord Chancellor. That seems to make it possible that the Secretary of State or Lord Chancellor could legislate in devolved areas and would not be required to obtain the Minister’s consent to those regulations. I understand that the Minister stated in a letter that these powers would not normally be used, but the problem is that once this is in legislation, such assurances do not carry any weight at all, and they are not binding on this or any subsequent UK Government. So it would seem that there are really serious risks, as the noble Lord, Lord Bruce of Bennachie, outlined.
In the event that there needs to be regulatory compromise in the interests of trade—I cannot think of a specific example, but I see the confusion and conflict between these two areas—will the Minister confirm that any such regulatory compromise will be notified to Parliament, to ensure that there is parliamentary accountability for any pressure put on to compromise any standards? We have heard in this debate already about the importance of common frameworks, but I will finish by advocating that the Government look very carefully at these amendments and make sure that they do not drive a further wedge between the four nations, because the consequences really do not bear thinking about. I certainly agree with those who say that they create an additional threat to the cohesiveness of the union.
Lord Hope of Craighead (CB)
My Lords, the Minister assured the House earlier this afternoon that the autonomy of the regulators would be respected. I am sure we all take the Minister’s assurance at face value and fully understand what he is getting at, but one of the many problems that lurks within the Bill and the wide regulation-making power it creates is the risk of causing collateral damage by careless or inadvertent wording or insufficient research before the power is exercised. As I said at Second Reading, the centralised systems that the Bill seeks to create will work only if the diversity that exists across the United Kingdom is fully respected. That is especially true where the devolved Administrations are concerned.
My own experience is confined to the systems for regulation of the legal profession in Scotland, but it is a guide to how the regulatory systems among the professions may differ from each other. In my cases, they involve not just one but two regulators working together, and there are different systems for the two branches of the legal profession in Scotland. For the Law Society of Scotland, which regulates solicitors, it is the society itself, working together with the Lord President of the Court of Session. For the Faculty of Advocates, it is the Court of Session itself, whose functions are then delegated to the Lord President of the faculty. The message that these two examples conveys is that it cannot be assumed that the regulatory systems that currently exist are alike in all cases, or even in most, so great care is needed to ensure that what is being done fits the requirements and practices of the profession that is being regulated.
This brings me to Amendments 13, 24, 35 and 40, in the name of the noble Baroness, Lady McIntosh, to which I have added my name. The point that each of these amendments is making is that prior consultation with the devolved Administrations and the regulators is essential before the regulation-making powers in Clauses 1(4), 3(3) and 5(2) are exercised. I shall say a little more about each of these subsections.
Clause 1(4), which is about providing for individuals with overseas experience and qualifications to be treated as having UK qualifications, really has to be read with Clause 1(5), which sets out a list of the many provisions that may be made in the exercise of the Clause 1 power. They are very wide-ranging. Paragraphs (f) and (g) in the list are of particular concern, as they are so wide in their scope. The words “guidance” in (f) and “other duties” in (g), which are not otherwise qualified, leave a huge amount to the discretion of the national authority.
Lord Purvis of Tweed (LD)
My Lords, it is a pleasure to follow the noble and learned Lord. To start where he left off, it is a disappointment that the Government chose not to have this Bill as a creature of the frameworks agreement, especially given the fact that recognition of professional qualifications was an area where there had been outstanding differences between the devolved Administrations. Indeed, many lengthy debates during the passage of the internal market Act led to some progress on the recognition of the frameworks, as the noble and learned Lord indicated.
My concern is added to by the fact that we persuaded the Government to have further exclusions—through government amendments—on the education and legal professions, with the exemptions in the internal market Act. However, it is not categorically stated within this legislation that we will not effectively see a back door. Because they are Henry VIII powers, the regulations that could be made under this Bill could be used—as the noble Baronesses, Lady Hayter and Lady Finlay of Llandaff, indicated—to implement a trade agreement which can effectively trump the internal market Act by including education and legal professions under MRA elements of trade agreements, which are excluded in the operation of the internal market Act. I would be grateful if the Minister could confirm that that will not be the case and confirm the principles established in the internal market Act for those professions which are considered very strong for public service. I understand that there are carve-outs for certain professions—which the Canadians in particular have had—in our Canada agreement. I would be very interested to know if that is the Government’s position.
The reason why I was slightly alarmed by the Minister’s response to the point I made in the previous group is that there are existing mechanisms—as she heard me say—under Section 60 of the Health Act for England and, as the noble and learned Lord indicated, there are certain areas where regulators have a statutory responsibility to seek approval from the Scottish Parliament for certain changes, including fees. Those mechanisms, certainly for Section 60, require public consultation and parliamentary procedures—approvals —in the Scottish Parliament, but the Minister said that there was no need for any consultation on an SI because the Government would publish an impact assessment on it. That is quite alarming, and not only because these provisions can apply across the UK. If the Government are not even committed to consulting the devolved Administrations, in addition to stakeholders, on some of these regulations, that would be contrary to many elements of what we have been told by the Government up until now about working closely with the devolved Administrations. It would be helpful if the Minister could confirm that that would never be the case—that regulations would never be brought forward that would impact upon the devolved Administrations without consultation. How that could apply more easily under this legislation than previous legislation was outlined clearly by my noble friend Lady Randerson and the noble Baroness, Lady Finlay.
Because of the concurrent nature of the powers under this legislation, in effect, the Government seem to suggest that the Secretary of State, the Lord Chancellor, the Welsh Ministers, the Scottish Ministers and the Northern Ireland department are all acting equally. That is not the case when it comes to UK Ministers’ determinations with regard to the impact on the other regulators. The Scottish Parliament cannot bring forward any regulations if it believes that a demand for professions could be met from other parts of the UK or abroad. The Scottish Parliament cannot bring forward regulations to make it easier to apply from other parts of the UK to Scottish regulators. But the UK Government can do that for Scotland if it was regarding England. I do not know why that is the case, because it is not reasonable. If the powers of determining demand rest with the UK Government, they should also, as the UK Government say, rest with the devolved Administrations. But of course they do not. The Secretary of State retains the power to activate this if the Welsh, Scottish or Northern Irish Ministers do not. So a concurrent power, in my mind, is always a kind of “If you don’t, we will” power, and I think it is best removed.
I speak now in support of my noble friend Lady Randerson’s amendment on the assistance centre. She and I both had difficulty finding information about the centre in the impact assessment, which goes back to the comments I made about the viability of impact assessments on consultation. But it turns out it was not there; it is in a different document, the policy paper Recognition of Professional Qualifications and Regulation of Professions: Policy Statement, coincidentally published on the same day as the Bill. The policy statement indicated a direction of travel at exactly the same time as the destination was highlighted. So we are back in the situation of there being two parallel processes.
That policy paper stated that the decision had already been made about the assistance centre, as a contract had been issued. That had not been mentioned by the Minister in his Second Reading speech, and it is not in the impact assessment. The UK Centre for Professional Qualifications, run by Ecctis Ltd, has been given the contract. I see the Minister shaking his head, but I will quote from the policy paper, if he does not mind:
“The UK has an existing contract with the UK Centre for Professional Qualifications to be the designated assistance centre.”
That is in the policy paper. If he can confirm that is not the case in his response, I would be grateful. Either the policy paper is wrong or there is not a contract. But if there is, he can make clear how much that has been issued for and provide information about that. I see the Minister nodding, so that is going to be helpful.
The final element I would like to raise—a separate concern about the necessity for consultation—is that on the medical professions consultation paper there is a clear list of 13 offences against fitness to practise. There are five Scottish offences and two Northern Irish offences and, if someone has committed or is committing one of them, they are no longer fit to practise. Because this list has the Scottish offences, but there is no reference in any of the provisions in the regulation-making powers under this Bill, I simply do not know what the interaction would be with regard to the fitness to practise offences. For example, because the Government have not made any comment about this so far, when it comes to bringing forward elements to ease applications from abroad, how do our regulators know that the applicant has not committed an equivalent offence in their jurisdiction, especially if in certain areas there are separate Scottish offences from those listed in England, Wales and Northern Ireland? I hope the Minister can give reassurance that no regulations could be made to change this that would make it harder for our regulators to find out whether those who are applying will have committed an equivalent of the listed offence. If the Minister can offer reassurance on these points, I would be grateful.
Baroness Hayter of Kentish Town (Lab)
My Lords, I am going to leave the question of an assistance centre to one side. I think I have an amendment later on to delete it from the Bill. I have yet to understand why we need a statutory body and why this cannot just happen. We were told that all this is being done at the moment, perhaps by BEIS, so I really do not understand why it has to be in here. But we will come to that elsewhere.
Colleagues know we are on somewhat delicate ground with these issues, with the devolved authorities having been excluded too many times, going right back to the Brexit negotiations and then the Internal Market Bill, with UK powers imposed over devolved competencies. Since then, we have seen the Government wanting to spend the levelling up fund and the shared prosperity fund on projects in the devolved areas but also in areas where the devolved Governments would normally spend money—and where, frankly, the devolved Governments know best how expenditure should be part of their strategy. That is the background to how we are looking at this. So the Bill—as the noble Baronesses, Lady Finlay and Lady Randerson, said—being seen a week before it was introduced is just more of the same: them as an afterthought.
I am not going to repeat here in public what the Minister told me in private was the reason for this, although he might like to spread that a bit further if he thought others would be interested. But the second reason given was that the other Governments had been in purdah and therefore this was not possible. While that may well be the reason it could not be shown straight away, it does not explain why the Bill had to be suddenly published and rushed into this House without taking a breath. There is no reason to think that suddenly we need more doctors, nurses, vets, furriers and everything else—a sudden shortage of skilled people—and that is why we need the Bill to give powers to regulators if, as I said earlier, there are any that do not have them at the moment.
Therefore, of course, the feeling is this is being rushed through because there is some trade deal in the offing that needs this urgently. If that is the case, I think we should be told. In one of his answering letters, I think the Minister said he could not comment on current negotiations. This seems too important. If it was not shown to the devolved authorities because they were having elections but then has to be rushed into this House, it feels to me either that the Government forgot about the devolved Administrations or that there is something else going on.
The problem, therefore—and the reason why the environment in which this is taking place is important—is that this Bill replays exactly the same problems as we had with the internal market Act. At first glance, the use of concurrent powers looks like a rather deliberate, perhaps subtle, undermining of devolution because it allows the Secretary of State to amend or repeal Welsh primary and secondary legislation and regulations even in areas of devolved competence, as we have heard. Also, in the case of Wales—like the noble Baroness, Lady Finlay, I come from there, so I am always much more aware of the differences there—it would apply to devolved regulators such as the Education Workforce Council and Social Care Wales.
The Minister has said that these powers will not “normally” be used but, as the noble Baroness, Lady Finlay, said, that does not offer a lot of comfort. Nice man though the Minister is, his words are not law and are not binding on the UK Government. We very much hope that the Government will accept Amendment 41, tabled by my noble friend Lord Foulkes, which seems to strike a really good balance. As in the internal market Bill, it would oblige the Minister to seek the consent of the devolved authorities but would allow them to proceed, albeit with a published explanation, if no consent is received within a month. So it is not an absolute veto, but it starts on the assumption of working towards consent, which is really important. I am absolutely confident that my noble friend will bring that back on Report.
Baroness Hayter of Kentish Town (Lab)
I thought he might. I think he can probably expect us to support him in that.
Amendment 49, which is in my name and that of the noble Baroness, Lady Randerson, would specifically allow the common framework approach, which we have been discussing, to trump the use of these powers in instances where the common framework procedure is developing a mutual recognition of professional qualifications framework. As we have heard, in its update covering the fourth quarter of last year, the Cabinet Office reported that discussions on the MRPQ framework had made progress, though the development timelines have had to be extended. As the Government and the devolved Administrations want the MRPQ framework to be completed, we want nothing from this Bill to be done outside of its remit.
The significance of how the devolved authorities are treated in this Bill has ramifications beyond the issue with which we are concerned today, which is the regulation of professional qualifications. I urge the Minister to engage with the relevant Ministers in the devolved Governments and do everything in his power at least to shore up, and hopefully strengthen, devolution rather than undermine it.
The noble and learned Lord, Lord Thomas of Cwmgiedd, said that the Government are chipping away at the devolution settlement; I think that that is what the noble and learned Lord, Lord Hope, was referring to when he talked about collateral damage. Something that happens in this Bill is chipping away at a really important part of the devolution settlement. I must ask the Minister whether he understands that. Does he understand those feelings? If so, does he feel an obligation, for the sake of the union, to amend the Bill to alleviate these concerns? I hope that we will hear a thoughtful and positive response from him on this.
Lord Grimstone of Boscobel (Con)
My Lords, these amendments have brought about a fulsome and entirely appropriate debate about respecting the devolution settlements for Scotland, Wales and Northern Ireland as the Bill continues its passage through the House.
Let me start by saying, in a direct answer to the noble Baroness, Lady Hayter, that I, too, find her a very nice person, although I must say that I think she has a suspicious mind in relation to this Bill. I assure her and other noble Lords that there is nothing going on about the timing of FTAs which is driving this Bill.
On a point of fact, the Bill was seen by the Administrations of Wales, Scotland and Northern Ireland on 22 April. This was just eight days after I first saw it, so it was not hidden or kept in a drawer away from the DAs until the last possible moment. It was seen by them pretty much as soon as I saw it after it had been prepared.
I assure noble Lords at the outset that the Government fully respect the devolution settlements. Devolved matters should of course be, except in the most exceptional circumstances, for the devolved Administrations to legislate on. The Government have no desire for this Bill to chip away at that in any way. I can confirm that we will seek legislative consent for the Bill in line with the Sewel convention, and we do not in any way intend to use this Bill to chip away at the devolution settlements.
I can confirm for the noble Baroness, Lady Finlay of Llandaff, that it is not part of our trade policy to compromise our standards. We have had many debates about that in this House. Free trade agreements will not compromise our standards or those of regulators. No free trade agreement will have the power to do that.
I thank the noble Lord, Lord Purvis of Tweed, for tabling Amendment 57 concerning the authority by whom regulations may be made and concurrent powers. I suggest that it is entirely fitting that the current definition of “appropriate national authority” in Clause 14 means that Scottish and Welsh Ministers and Northern Ireland departments are the appropriate national authorities and may make regulations, provided, of course, that they fall within the competence of the relevant devolved legislature. In direct answer to the noble and learned Lord, Lord Thomas of Cwmgiedd, let me say that the Government do not intend to disturb this in any way.
The issue is that this is a very complex landscape. As I have said before, it involves 160 professions and 50 regulators. Regulation varies between professions. Some professions are regulated on a UK-wide basis despite being within devolved competence. Some professions are also regulated across Great Britain. So the complexity of the regulatory landscape makes the use of concurrent powers important to the Bill’s operation in a purely practical sense. They are meant to be entirely practical and are not intended to undermine the authority of the devolved Administrations in any way. They make sure that professions that fall within devolved competence could have regulations brought forward across several parts of the UK by the relevant national authority. This will provide those professions with certainty and continuity.
Amendment 49, in the name of the noble Baroness, Lady Hayter of Kentish Town, aims to ensure that Clause 9 does not affect the establishment or operation of a common framework. The noble Baroness, Lady Randerson, also made this point. I am a huge enthusiast for common frameworks to make our systems work as efficiently as possible.
As noble Lords know, the common framework on the regulation of professional qualifications is under development between the UK Government, the Scottish Government, the Welsh Government and the Northern Ireland Executive to ensure a common approach on powers that have returned following our exit from the European Union and which intersect with devolved competence. Although this amendment relates specifically to Clause 9, let me assure noble Lords that we are committed to ensuring that the provisions in this Bill work alongside the common frameworks programme. We absolutely will consider this as we develop the framework further. The Bill does not constrain that.
There was a hiatus in the development of this framework, while work paused during the election period in Wales and Scotland. We are very keen now to resume discussions to seek collective agreement on the timeline for delivery of the framework, including concentration on interactions with this Bill.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
My Lords, I have received requests to speak after the Minister from the noble Baroness, Lady Randerson, and the noble Lords, Lord Foulkes of Cumnock and Lord Purvis of Tweed. We will start with the noble Baroness.
Baroness Randerson (LD)
I thank the Minister for his response to several of the issues that I have raised. I welcome his assurances on the common framework on this issue and I look forward, along with colleagues across the Committee, to scrutinising it in due course. I also welcome the information that he has provided on the assistance centre. That is helpful, but it would have been even more helpful if it had been included in the impact assessment so that we would not have had to waste time today seeking that information.
Finally, I want to make an important point. To me, it sounds as if the Minister has been really surprised by this Bill and therefore it should not be unexpected that the devolved Administrations have been surprised by it too. Since the vast majority of the Bill touches on devolved powers, why were not the officials of the devolved Administrations, if not the Ministers, involved at an earlier stage in the development of this policy? That would have improved trust if that had happened. Perhaps I may urge the Minister to make up for lost time by having some fairly intensive discussions with the devolved Administrations over the coming days.
Lord Grimstone of Boscobel (Con)
My Lords, I accept the point made by the noble Baroness about the assistance centre. In response to her other points, many things have surprised me since I became a Minister, so I am no longer surprised by them.
I should add that my officials have been in very regular contact about this with officials in the devolved Administrations. I have pulled out the Bill date as a specific one, but of course officials have been working hard on this for some time, right back to the call for evidence that was asked for last year. A lot of consultation has been going on, but again it is the complexity of this Bill that has led to perhaps there still being some rough edges, which I think the debates in our House are helping to iron out.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, like the noble Baroness, Lady Randerson, I am interested in the revelation that the Minister saw the Bill only eight days before the devolved Administrations, Can the Minister tell us which Minister supervised the drafting of the Bill?
Lord Grimstone of Boscobel (Con)
My Lords, I am the Minister responsible for the Bill and the policy; I am not just the Lords spokesman on the Bill. Of course, the work that goes on before a Bill appears on one’s desk is enormous: instructions to parliamentary counsel, development of the policy and so on. I am the policy Minister in relation to this Bill as well as the Minister who has the pleasure of addressing your Lordships’ House on the matter.
Lord Purvis of Tweed (LD)
My Lords, I thank the Minister for his response to the points raised by my noble friend and myself about the assistance centre. I thought he might reply along those lines, which is why I have the EU directive with me. The directive has never stipulated that a member state has had to have one centre. I shall quote from recital (33):
“In particular, it does not prevent the designation at national level of several offices, the contact point designated within the aforementioned network being in charge of coordinating with the other offices and informing the citizen, where necessary, of the details of the relevant competent office.”
There has never been a requirement under EU law for there to be a single member state office, but I welcome the fact that the Government recognise that the small, efficient European office that he claims was in place has to be put, as the very first thing the Government are doing, on a statutory basis in the post-Brexit world. I think that it is worth saying to the Minister that there was never that requirement, so I look forward to further debates about why the Government are insisting that there should now be a statutory office as the single point of contact.
My question to the Minister is this: he did not quite give a reassurance about the professions within Scotland that have been excluded from the internal market. However, I heard what he said about the interaction with the internal market Bill. I welcome the fact that he will be writing to me, so perhaps he might add that element about the legal and education professions. Regardless of the reassurance, my reading of the Bill is that it could potentially bring into scope those professions which have been excluded from the internal market Bill.
Lord Grimstone of Boscobel (Con)
I thank the noble Lord for his question. As he spoke, I was reminded that I had not fully answered it and I will certainly write to him on it. I hope that he and other noble Lords will agree that having four statutory assistance centres would probably be to overegg the pudding.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
I have received a further request to speak from the noble Baroness, Lady Bennett of Manor Castle, so I will call the noble Baroness now.
Baroness Bennett of Manor Castle (GP)
My Lords, I return to the question that I raised both at Second Reading and in my comments today. As the amendment seeks to address, it would appear that there is the possibility of the Government here in Westminster overruling on this. There are currently no requirements to consult or to interact with the devolved Administrations, but as I say, there is a possibility that the Government could overrule—and that indeed is referred to in the guidance for this legislation. I will ask the Minister again: under what circumstances would he imagine that the Government would overrule a devolved Administration if it objected to arrangements?
Lord Grimstone of Boscobel (Con)
I thank the noble Baroness for that point. Frankly, I can conceive of no circumstances in the area of professional regulation and the mutual recognition of professional qualifications where the Government would wish to overrule any devolved Administration.
Baroness McIntosh of Pickering (Con)
My Lords, this has been an excellent debate, and I thank all noble Lords who have contributed to it, in particular the noble Lord, Lord Foulkes, and the noble and learned Lord, Lord Hope of Craighead.
I regret to say that I am not completely assuaged by the replies of my noble friend. I will take as an example the wording of Amendment 13, which seeks to ensure that there is
“a formal consultation with the devolved administrations, regulators and the Lord President of the Court of Session.”
I take the point made by the noble and learned Lord, Lord Hope, that I do not expect the Lord President to be involved in every case, but I listened carefully to what he said at Second Reading and that is why this is included.
At Second Reading, the noble and learned Lord, Lord Hope, also highlighted the fact that while consultation with professionals is essential, as I think we would all agree, there is no mention of that either in the Bill or in the Explanatory Notes. I therefore remain discontent and dissatisfied. While in his summing up, my noble friend the Minister said that a lot of consultation had taken place, he did not say what form that consultation would take.
I have a further cause for concern, referring back to what the noble Lord said yesterday. I had hoped to intervene in the debate on the trade deal with Australia, but I was told that it was heavily oversubscribed. He made the point that the Trade and Agriculture Commission will only look at future trade deals literally just before they are to be signed. As we have heard in the debate on this group of amendments—and as the practice seems to have been—any consultation seems to be left to absolutely the last minute. It concerns me greatly that that is not doing justice to the complexity of this. I will look carefully at the Minister’s response before the next stage of proceedings. For the moment, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
We now come to the group beginning with Amendment 14. Anyone wishing to press this, or anything else in this group, to a Division must make that clear in debate.
Amendment 14
Lord Foulkes of Cumnock
“(5A) The appropriate national authority must consult such persons as it considers appropriate when preparing regulations under subsection (1).”
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, I am very pleased to move Amendment 14, which would require the Secretary of State, the Scottish and Welsh Ministers, and the Northern Ireland department to consult when preparing regulations under Clause 1. A number of noble Lords have said that it is important that the UK Government consult the devolved Administrations. It is equally important that the devolved Administrations themselves consult the bodies affected. Sometimes they are quite good at that; sometimes not. It is therefore important that we make it clear that this is a requirement. At Second Reading, the noble and learned Lord, Lord Hope, pointed out the need for consultation by the appropriate national authorities when preparing regulations. Both the Law Society and I agree strongly with those comments, and on the need for consultation on draft regulations under the Bill. As colleagues have said on a number of other occasions, this is a very important and wide-ranging measure which affects a considerable number of professions—160 as stated in the Explanatory Notes and as other noble Lords have said earlier.
Government across the UK does not possess the in-depth knowledge that would enable it to legislate unless it has such pre-legislative consultation. The Minister said that he would
“anticipate that determining whether professions meet this condition would require extensive close working”.—[Official Report, 25/5/21; col. 974.]
BEIS has made it clear in its engagement with stakeholders such as the Law Society of Scotland that it agrees that it is important for the Government to engage extensively with a range of interested parties before legislating. BEIS may argue that it is already well established that Governments need to consult before making secondary legislation, including through the government consultation principles of 2018, so there is no need to legislate for this. That may be so, but I am not so sure. In a number of recent Acts, the Government have nevertheless expressly legislated for consultation duties such as these.
We certainly agree that aspects of the Bill will require close working between the Government and a range of interested parties, including the professions. However, “close working” does not necessarily include statutory consultation. We also know that legislation has a particular way of concentrating Ministers’ minds in a way which published guidelines do not. That may be why legislation as diverse as the Fire and Rescue Services Act 2004 and the United Kingdom Internal Market Act 2020 have provisions which oblige the Secretary of State to consult before making orders or regulations. That statutory duty to consult is vital; it puts pressure on Ministers much more effectively than any guidelines. I therefore hope that the Government will seriously consider this amendment. I beg to move.
Lord Palmer of Childs Hill (LD)
My Lords, I apologise that what I am going to say has nothing to do with devolved Administrations, because the Bill obviously affects them greatly. The Bill is a law of unintended consequences. It has been described as having been written on the back of an envelope; that envelope has got a lot of writing all over it by now. Amendment 52, to which I have attached my name, is about how many organisations have not realised, and still do not realise, the impact of the Bill. They think: “Professional qualifications; that does not really worry us”. Many noble Lords have had consultations with large organisations, chartered organisations and the like, all of which have given us their opinion. Some have given us their opinion twice because they have changed it. However, small and medium-sized enterprises have not been consulted at all. They have probably not even known that this Bill exists and how it is going to affect them—how it is going to impact on the qualifications of their workforce and whether they are going to have problems with their workforce. When I talk about small and medium-sized enterprises, I mean those with one to 50 employees. If they have problems recruiting now, how will it be afterwards?
As the Bill seems to have been created on the hop, without thinking too much about some of the detail, we now come to trying to mop up a Bill which has not been terribly well thought out in the beginning. We have to look at how to rectify that after the Bill becomes an Act. My Amendment 52 is about the Government committing to there being a report back within 12 months of the Act being passed, particularly in relation to small and medium-sized enterprises. By then, they will have realised the impact of the Bill on the staff they have, do not have, and might have. They might then feel that they can contribute. At that stage, one year hence, perhaps we can put the then Act into a better format. At the moment, it certainly does not seem to have been thought out properly from beginning to end.
Baroness Bennett of Manor Castle (GP)
My Lords, it is a pleasure to follow the noble Lord, Lord Palmer, who has tabled a very useful amendment, Amendment 52, to which I was pleased to attach my name. I will speak chiefly to Amendment 55 in my name, but I will also look at the whole range of Amendments 52 to 55, which are all on variations of forms of reports. It might be useful for us to consider whether we can bring this together for Report. There is clearly a desire, coming from a number of different directions, to see a reporting and scrutiny mechanism for the Bill.
I will, however, briefly comment on and commend Amendment 19 in the name of the noble Baroness, Lady Hayter, which refers to consulting consumer interests. That is particularly interesting when we look back to the comments of the noble Lord, Lord Sikka, at Second Reading, and the concerns about the way in which many of our professional services are failing to meet the needs both of those using them and of broader society. There is something useful in the suggestion from the noble Baroness that would be interesting to take forward.
I will now address Amendments 52 to 55, on the issue of reporting back. There has been great discussion in this Committee about the complexity of the Bill, the difficulty of fully understanding its impacts and, indeed, the fact that, with its range of Henry VIII powers, much of the detail will come in later regulation of which we have very limited or no democratic oversight.
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.
Baroness Noakes (Con)
My Lords, I put my name down in this group in order to speak to Amendments 19 and 29, but I shall say a few words first on Amendments 52 to 55. Normally, I do not support Report amendments, which are a slightly lazy way of trying to open up a debate on wider issues, but in this case I think they have a point.
The Government’s impact assessment is, to use a tactful term, pretty light. It certainly does not analyse very much impact, probably because the Government do not have a clear idea of what they are going to do with the powers in the Bill. If that is not clear from the Bill itself, it is certainly clear from the report of the Delegated Powers and Regulatory Reform Committee. Poor impact statements are a widespread problem and we will not solve that for this Bill, but it is incumbent on the Government to be transparent about the impact of a Bill once it becomes law.
I shall therefore be listening carefully to what the Minister says, because it may well be that some or all of Amendments 52 to 55 will need to be considered again on Report. Alternatively, as my noble friend Lord Lansley suggested, we could legislate for post-legislative scrutiny; after five years might be an appropriate time for a report. However, it is very important that we monitor the Bill’s impact.
If the noble Baroness, Lady Hayter, has one defining characteristic, it is her determination to get the consumer interest felt, and she frequently finds all kinds of surprising ways to do that in Bills, but I want to explain why in this instance she is wrong to try to get the Bill amended with her Amendments 19 and 29. I was particularly struck by a briefing from the British Dental Association that commented that this Bill appears to focus on services, consumers and trade. Those are inappropriate concepts to describe the healthcare professions, which are certainly one of the major reasons given for this Bill being enacted and are cited as the professions likely to be covered by the regulations under Clause 1.
Those terms may well be appropriate for other professions which qualify and oversee professionals who trade their services, though I am not sure that “consumers” is always the right description for those other professions. For example, I do not really know who the consumer is in relation to regulated auditors, who are covered by this Bill via the Financial Reporting Council. The healthcare professions are focused on safety rather than on what consumers want or need from the profession, and we should never lose sight of that.
I do not think that either the consultation requirement in Amendment 19 or the board membership requirement in Amendment 29 fit well within this Bill, given the focus on the healthcare professions that is likely to follow once the Bill becomes law. I completely get that regulated professions and their regulators must not be focused on their own narrow interests but bear the public interest in mind. But that is usually achieved through regulators being independent of the professionals they regulate, and they often have independent members comprising some or the majority of their boards. If they are not on their boards, they are certainly well entrenched in their disciplinary processes. That aspect, the independent characteristic of the regulators, is what we should focus on in this instance, rather than the consumer interests.
Lord Sikka (Lab) [V]
My Lords, it is a great pleasure to speak in this debate, especially after the noble Baroness, Lady Noakes. I support Amendment 55 in the name of the noble Baroness, Lady Bennett of Manor Castle.
This amendment takes a broader view about the nature of skills shortages and human consequences from the recognition of professional qualifications. There are many reasons for this Bill, and one is the failure of the United Kingdom to produce skilled labour, and the relative absence of any coherent government strategy to produce the desired skilled labour force. The problems have been well documented. For example, in 2000 a report published by the National Skills Task Force said that there were
“external skill shortages, that is, recruitment difficulties due to an excess of demand over supply of required skills in the external labour market”.
Examples included
“highly-paid occupations requiring specific technical qualifications such as engineers and technologists and health and related occupations … and craft and technician vacancies in the engineering industry”.
It also referred to internal skills shortages—that is,
“skill deficiencies among existing employees”.
Similar skills gaps were identified in the 2019 report by the Industrial Strategy Council, which said that about 21 million workers—two-thirds of the workforce—might
“lack the basic digital skills”
that employers will need in 2030.
Some businesses have responded to skills shortages by renting talent from external partners—for example, through outsourcing partnerships. Of course, that creates its own logistical and organisational problems. Nevertheless, in the absence of a coherent strategy, neither the Government, the industry nor universities have been able to address the perennial problem of skills shortages.
Finding appropriate PhD students, as the noble Lord, Lord Patel, mentioned, is also highly problematical. It is simply too costly for many individuals to undertake a PhD in the UK. In supervising PhD students for nearly 30 years, I can only recall about one or two indigenous British students who came to do a doctorate in accounting, business or finance. It is so rare.
At the moment, the Government and industry are not even connecting the dots. The spate of hiring and rehiring workers on inferior pay and working conditions will not address skills shortages and will have a negative effect on attracting new local talent to crucial industries. After all, if the wages and working conditions are poorer, why would somebody want to go into that industry?
The Government’s strategy so far has been to enrol and recruit foreign workers to fill the gaps. That is especially evident in the National Health Service. Brexit has added new dimensions because it has alienated many EU workers residing in the UK. Their departure and the unwillingness of many other EU citizens to work in the UK have deepened and widened the skills shortages.
The Government are now looking to recognise foreign qualifications to address the local skills shortages. The aim, as always, is to poach skilled persons from abroad. The traffic will predominantly be one way from developing countries to the UK. I doubt that many Brits will actually want to go and work in countries such as Ghana, Zimbabwe or Nigeria, where the wages may be lower and the working conditions may not be comparable.
This ability to poach workers from other places will inevitably dilute the pressure on the UK to develop its own institutional structures to address the skills shortages. That development is highly necessary, and we need a government strategy. Therefore, it is absolutely right that Parliament must monitor the impact of this Bill on the management of strategies for addressing skills shortages, as has been extremely well articulated by the noble Baroness, Lady Bennett of Manor Castle.
To be clear, I am not against mutual recognition of qualifications, as this increases opportunities for individuals, but I am very concerned about the negative consequences for developing countries. They spend millions of pounds to educate and train engineers, doctors, surgeons and other skilled persons, but will never see the full benefit of their social investment. It can take more than a decade to train a skilled doctor or surgeon and, at the end, having developed those individuals, the developing countries will be unable to receive the benefits. There are also other consequences. To put it another way, if the UK started to see its highly educated citizens leave on a scale already observed in many developing countries, it would find itself with a smaller and less educated workforce. Such changes would coincide with a more rapidly ageing population due to the fact that emigrants tend to be younger adults.
For a long time, the UK has taken the cream of the skills from developing countries with absolutely no compensation. This brain drain retards the development of local economies and social infrastructure. It results in a huge transfer of wealth from poorer countries to the UK, while they suffer from a lack of sufficiently skilled personnel in both the public and private sectors. With a loss of skilled labour, poorer countries cannot offer universal healthcare to their citizens. That is just one example. The only appropriate redress is a bilaterally managed scheme of direct reimbursement of the value lost to each of the countries affected by migration of skilled labour. I sincerely hope that the Minister will give such an undertaking and, in due course, bring legislation to provide further details and make the compensation to developing countries a reality.
Baroness McIntosh of Pickering (Con)
I am delighted to support many of the amendments in this group. Those in the name of the noble Lord, Lord Foulkes, are very similar to those in my name. I notice that Amendment 38 extends the proposed consultation to Clause 6. I will limit my remarks to the amendments in the name of the noble Baroness, Lady Hayter, and Amendment 52 in the name of the noble Lord, Lord Palmer of Childs Hill.
The noble Baroness, Lady Hayter, has cleverly married the concept of consultation with specifying the number of bodies that are to be consulted upon. When she comes to move Amendment 27, I would be interested to learn why she picked those specific ones. I am also interested to learn from the Minister why there is no reference in the Bill to any specific professional bodies. What was the thinking behind that?
On Amendment 52 in the name of the noble Lord, Lord Palmer of Childs Hill, obviously, a number of professional people co-operate together in partnership, but many may consider them a small firm, if you like. I see some merit to Amendment 52 in relation to what the Bill’s impact will be on small and medium-sized companies. I look forward to hearing my noble friend’s response to that request.
Lord Fox (LD)
My Lords, this group is perhaps the inevitable consequence of trying to reduce a highly complex system and situation, as the Minister has highlighted, into a small one-size-fits-all Bill. In other words, we have a mixed bag of amendments in this group. I will speak initially to Amendments 53 and 54 in my name and to Amendment 52 in the name of my noble friend Lord Palmer of Childs Hill.
I thank the noble Lord, Lord Patel, for his support of Amendment 53. He said that he was disappointed to be speaking before me. I have to say that I am not disappointed to be speaking after him because he gave a much better speech than I could possibly have managed myself. The noble Lord, Lord Lansley, is right, in that the innovation issue is hard to measure, but I think that the point made by the noble Lord, Lord Patel, that this is part of a cumulative effect on innovation is important.
I was hoping to probe the Minister on how the Government have joined the dots between the intention of the Bill and how it will drive the future nature of our economy. To some extent, the criticism of the noble Baroness, Lady Noakes, of these kinds of amendments as a way of trying to shoehorn in something else is true; I make no apology for that.
At the heart of the Bill, there is a central conceit. At Second Reading, the Minister said:
“The Bill will allow action to be taken in the public interest if it is judged that a shortage of professionals has arisen in a profession.”—[Official Report, 25/5/21; col. 908.]
What is a “shortage of professionals”, and what level of omniscience is required from the department in order to identify that particular need in the market for professionals?
Is there a danger that the Bill is in fact solving yesterday’s problems? That is the innovation question—because we need people to create the businesses of the future. Yet we have a Home Office that lets in only people who already have a job, and BEIS, which will measure the current need for people. The noble Lord, Lord Patel, was closer to the mark when he talked about early career researchers—I would add research technicians. Both find it extremely difficult to get Home Office visas because they are paid less than the limit for them to come in.
We are going to have a debate about the availability of people, in the group starting with Amendment 17, and I do not want to pre-empt that, but I want to hear the Minister’s playback on how the department and those drawing up the Bill drew the dots between the Bill and innovation. That is one of my objectives with this amendment.
Amendment 54 looks at a different kind of impact. In fact, in retrospect it should have been grouped with the amendment of the noble Baroness, Lady Noakes, Amendment 9, because in a sense it measures the effect that she has highlighted there. As happenstance will have it, she did not get an answer to her questions the first time around, so this gives us a chance to run through them again.
Minister, there is a strong belief that the regulators will come under great influence from the Government on the level of fees. That will either reduce their income or maintain their income at the expense of those registering. This amendment seeks to give transparency to that problem. If indeed it is not a problem, we will see that clearly. The noble Lord, Lord Lansley, gave it something of a thumbs-up, in that it is measurable—and I assume that it is data that BEIS is already collecting because, of course, it is going to create a model of the entire professional market in order to manage it on behalf of the national economy. I assume that the data is already available. Therefore, publishing it would be very helpful and perhaps give a lie to the fears or expose them, so that the Government can change things to stop them becoming an issue.
Very simply, the point from the noble Baroness, Lady Bennett, about some joined-up reporting is well made. Whether it is the whole hog or just a few key elements—and I would probably prefer the latter to the former—I think that the global south issue can be solved by having a geographic split on where people are coming from, for example, to highlight those issues.
My noble friend Lord Palmer spoke on Amendment 52 about the need for there to be a realisation within organisations of the impact of the Bill, particularly on SMEs. In the past, many SMEs have picked up employees from the European Union without having to give a moment’s thought to the accreditation of their skills. That is now changing, and I absolutely agree with my noble friend that there has been no dawning on the vast majority of Britain’s businesses of that change. I think he has a great point.
The noble Lord, Lord Foulkes, spoke strongly, as usual. I agree with him—I would like the opportunity to intervene and interrupt the noble Lord, although of course I would exercise it with great care. But in the main, I would like the Minister to push back on Amendments 53 and 54 and say how this affects innovation and whether we can see the numbers when it comes to costs and the financial effect on the regulators.
Baroness Hayter of Kentish Town (Lab)
I start by saying that I may have misheard what the noble Baroness, Lady McIntosh, said. I think she was asking about Amendment 27, which is in the next group.
I will speak to Amendments 19 and 29 in my name, but also thoroughly endorse all the pleas that we have heard for a very thorough—and, indeed, statutory—requirement on consultations with all the relevant parties. The impact of this will be felt; it could be felt on professionals and on service providers or users of those services. This is not a technical thing, so it is important that the consultation takes place.
Amendment 19 simply specifies that it is crucial that consumers are consulted. Consumers may be users, patients, clients—in the case of lawyers—or customers. When I was involved with the regulation and standard setting for actuaries, which I guess comes under the FRC in this, noble Lords will not be surprised that I chaired the user committee and was on the board. We had pension administrators, pension trustees and other people who used actuarial services, so that we were able to get their input as we were setting standards for actuaries.
The word “consumer” is a broad one and it is always difficult to say what it means, but it seems to me that if one were setting standards or one wanted more actuaries in the country, and the same could be true of other regulated areas, talking to the people who use those services would be highly appropriate. So, despite what the noble Baroness, Lady Noakes, says about the use of that word, it seems to me that the people who use the services of the professions covered in the Bill really should be consulted if there is going to be a different way of recognising and approving people to carry out that profession.
As I said earlier, regulation was always set up to protect the consumers or end-users, however they are defined, and therefore, in changing the procedure of how a regulator works in accepting professionals, it should be automatic that users of those services that the regulator was set up to protect should be involved. It certainly should not be just between the Government and the service provider—in other words, the professionals involved—because those affected by the decisions should surely not be excluded. Government always needs reminding that the end-user is what regulation is all about. I thank the noble Lord, Lord Lansley, for his support on this. It ought to be automatic; we should not have to think about putting it in a Bill, but so often it does not happen.
I was reading earlier in one of the government documents—sorry, I have had lots of letters from the Minister—about the call for comments in a consultation that was put on the BEIS website, I think. I have to say that most people would not think that a call for consultation on the regulation of professional qualifications would affect them as, say, a pension trustee, not realising that it will affect the professionals that they depend on in decisions they take, whether it is about pension holidays or, more likely, making up for deficiencies in a pension. One has to be on the front foot and go out looking for the input of users or consumers of professional services; they will not automatically happen to be watching the BEIS website to see that there is a consultation taking place.
Amendment 29 may be slightly cheeky, but it is really a nudge to the Government. It says that a regulator set up either to create or to maintain standards in the interest of consumers or users really ought to have those end-users or consumers on its board, its council or its executive. Therefore, when we are talking about regulators, we should require them to have this. I think this is possibly pushing the boundaries of the Bill a little far, but if the Minister will accept Amendment 19, I will go quiet on Amendment 29.
Lord Grimstone of Boscobel (Con)
My Lords, before I address the important amendments in this group, may I clarify something in relation to the previous group, about consultations with the officials of the devolved Administrations? I am informed that a working group of officials across all devolved Administrations was set up as long ago as last August. I would not like the House to think that my comments about the timing of when I saw the Bill meant in any way that there had not been massive consultations before that, so I am pleased to have clarified that point.
On the amendments before us, noble Lords have spoken eloquently about engaging with a range of interested parties before making regulations, and said that the Government should continue to consider the impact of the Bill after it comes into force. I agree that these are important considerations. However, with the utmost respect, I believe it is unnecessary to add those specific requirements to the Bill.
Amendments 14, 25, 36 and 38, tabled by the noble Lord, Lord Foulkes of Cumnock, would introduce duties on the appropriate national authority to consult people it deemed appropriate before introducing regulations under Clauses 1, 3, 5 and 6. The Government are absolutely committed to working in partnership with regulators, devolved Administrations and other interested parties when regulations are made under the Bill, and of course, consultations are bound to form part of that.
Amendments 19 and 29, tabled by the noble Baroness, Lady Hayter of Kentish Town, focus on consultation with consumer representatives. Few would disagree that regulators must have the interests of consumers of services—be they customers, patients, or students—at the heart of their approach to regulating professions. That is an incredibly important point. I appreciate the intention of her amendment to Clause 4, but I can reassure the noble Baroness that any recognition agreement would still have to meet the regulator’s existing standards and duties around public protection—that would not be diluted in any way. Regulators rightly guard their autonomy to decide who is fit to practise a profession, to ensure that only the best candidates can do so. So I think we can expect that regulators will continue to ensure high standards to protect consumers.
Amendments 52, 53, 54 and 55 require the Government to report to Parliament on the impact of the Bill in a range of areas. The noble Lord, Lord Fox, proposes two reports. The first would be on the costs to regulators and applicants. Many regulators already operate in line with the framework set out in the Bill. Therefore, we believe that the anticipated costs to regulators and applicants will be modest. The second report would be on innovation. Innovation is an important feature in the Government’s wider ambitions, and I have carefully noted the sensible points made by the noble Lords, Lord Fox and Lord Patel, about this. However, because the Bill is not about immigration, I am not entirely sure about its relevance to the recognition of professional qualifications. However, I will of course consider it carefully.
We should note that a primary objective of the Bill is to allow an appropriate national authority to take action to help enable a profession to meet demand by ensuring that there is a route to recognition for individuals with overseas qualifications and experience. This should help to attract the talent needed from around the world to provide services in the UK—and, on a reciprocal basis, allow our professionals, who provide such a valuable export service to the UK, to practise overseas. I have no doubt that an indirect result of this would be to add to the pool of skills and experience in a profession, which in itself may help to drive forward innovation. However, the primary purpose of the Bill is to help enable service provision.
The noble Lord, Lord Palmer of Childs Hill, made a very good point on the impact on SMEs. Through my work chairing the Professional and Business Services Council and my regular engagement with this sector, I am well aware of the importance of professional qualifications for services exports.
The noble Baroness, Lady Bennett of Manor Castle, tabled an amendment that proposes a report to consider the Bill’s impact on skills shortages, how the Bill relates to immigration, overseas development and skills training, and skills demand in the health professions. Of course, these are all very important points, but I humbly suggest that this would speak to several policy areas beyond the Bill. The Government’s skills strategy, visas and immigration, international development, and how demand for skills is being met in health and social care are, I would say, outside the scope of this Bill. Publishing reports in each of these areas is not a necessary component to assessing the impact of the Bill.
A number of noble Lords were concerned about the impact of regulations brought forward under the powers in the Bill. This will also be considered in line with the Government’s better regulation framework.
I trust that this gives reassurance on the checks and balances that we have carefully built into the Bill. I hope it demonstrates that there is no need to specifically provide for further measures. I therefore ask the noble Lord to withdraw his amendment.
The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)
My Lords, it appears that the noble Lord, Lord Fox, wishes to speak after the Minister.
Lord Fox (LD)
Thank you. I did send an email—it is probably lurking in the system. Coming back to the Minister’s assessment that the costs would be low, I am again looking at one of my noble friend’s favourite documents—the impact assessment. It is limited in scope but does have estimates of costs. The Government’s best estimate—this has the Minister’s signature on the front, so I assume that he agrees—is £18.2 million, the majority of which will be absorbed somewhere in the regulatory system. I suggest that that is not a small amount of money for the regulatory sector. Can the Minister calibrate what he just told us or explain how these two numbers meet up?
Lord Grimstone of Boscobel (Con)
My Lords, I thank the noble Lord, Lord Fox, for that question. I do not think that I can really add to what is in the impact assessment. Those costs are incurred over a number of years, but I think the impact assessment was carefully prepared and that those are the costs.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, as the noble Lord, Lord Fox, said, in one of his better interventions earlier, this is a mixed bag of amendments and probably represents skilful grouping by the Government Whips’ Office. As a result, we have had a very wide-ranging debate.
I say to the noble Lord, Lord Palmer of Childs Hill—an area I know very well, by the way, but that is another story—that I agree with him. Although he did not deal with the devolved Administrations, he made some very good and useful points. The noble Baroness, Lady Bennett, mentioned all the reports and very sensibly suggested that they might be looked at and consolidated or reorganised in some way on Report. I hope that that will be considered.
I also thank my noble friend Lord Lansley—he is getting more on my side every day—for his support on a statutory duty to consult. As I said in my introductory remarks, it is important to make it a statutory responsibility, otherwise it is so very easy for Governments —of all shades—to forget that they have a responsibility to consult widely.
Having said all that, in light of the helpful reply from the Minister, I beg leave to withdraw my amendment.
The Deputy Chairman of Committees (Baroness Henig) (Lab)
My Lords, we come to the group beginning with Amendment 15. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
Amendment 15
“(5A) Regulations under this section relating to priority professions may not be made unless—(a) they have been published in draft form, and(b) the relevant regulators have been consulted on them for a period of three months beginning with the day on which they are published.(5B) In this section “priority professions” means—(a) healthcare professionals,(b) social workers,(c) teachers, and(d) veterinary surgeons and veterinary nurses.(5C) In this section, the relevant regulators are—(a) Nursing and Midwifery Council,(b) General Medical Council,(c) General Pharmaceutical Council,(d) Health and Care Professions Council,(e) General Optical Council,(f) General Dental Council,(g) Pharmaceutical Society of Northern Ireland,(h) General Osteopathic Council,(i) General Chiropractic Council,(j) Social Work England,(k) Scottish Social Services Council,(l) Social Care Wales,(m) Northern Ireland Social Care Council,(n) Teaching Regulation Agency,(o) General Teaching Council for Scotland,(p) Education Workforce Council,(q) General Teaching Council for Northern Ireland, and(r) Royal College of Veterinary Surgeons.”
Baroness Hayter of Kentish Town (Lab)
My Lords, in moving Amendment 15 I will speak to Amendment 27, both of which are in my name and those of the noble Lord, Lord Patel, my noble friend Lord Hunt and the noble and learned Lord, Lord Hope.
These amendments are here for two reasons. One is that the regulators listed already have the power to recognise professionals from other jurisdictions, so they are somewhat at a loss as to why they should need to be covered at all. The other is that the maintenance of their standards is particularly crucial to the lives of patients—be they human or animal—pupils and clients. If there is any chance that they will be mandated to open up their approval system further than it is already—because they already have one—at the behest of the Government, then there must be the most thorough consultation and agreement. This really is too important to leave to chance. We need a legal commitment to consult in the Bill for the priority professions listed in the amendment.
In answer to the question posed by the noble Baroness, Lady McIntosh, during our debate on an earlier amendment, the Government had a list—the Minister sent it in a letter to the noble Baroness, Lady Noakes—of all the regulators covered, but this group of healthcare and personal care professionals already have the ability within their statutes to do the necessary for international. So there is this two-way reason why we put them in the amendment: their clients or patients are particularly vulnerable if standards fall, and they already seem to have this power. Therefore, for the Government to take a power to ask them to do something outwith what they want to do seems to require a particularly high level of consultation. I beg to move.
Baroness Noakes (Con)
My Lords, I will be brief. The requirement in these amendments for regulations to be published in draft form and consulted on is sensible, for the reasons that the noble Baroness has given. I just do not see why they are confined to this so-called priority list, because any profession that could be brought within the ambit of Clause 1 or Clause 3 should be treated in the same way. While we can sympathise with the medical professions and vets being priority groups over such mundane things as auditors and farriers, in practice any profession that might be impacted by these sorts of regulations, and could therefore have its standards impacted, ought to be covered in a consultation process.
I do not think the consultation process, as drafted in these amendments, should be confined to the regulators, because it is not just the regulators themselves that would be impacted by any regulations made under these clauses; so would the professionals operating in those regulated professions and all the other groups affected by them. I support consultation being in the Bill because of the unusual nature of the powers the Bill is taking, but I do not think it should be confined to the so-called priority groups.
Lord Hope of Craighead (CB)
My Lords, I have added my name to Amendment 27, which is principally in the name of the noble Baroness, Lady Hayter of Kentish Town. There is a lot to be said in this particularly obscure Bill for the publication of regulations in advance of their being made, so that people can see them in draft and consider them before they take effect. Regulators themselves would of course be consulted if this amendment is passed, but publication gives the opportunity for the wider public to scrutinise them, and no doubt inform this House and the other place, before the crucial point comes when the regulations are made. So I support this particular amendment.
There is a lot of force in the point just made by the noble Baroness, Lady Noakes, that to confine this provision to the priority professions perhaps misses the point. Perhaps there should be a requirement across the board. There are other important professions that are not in this list. I am not claiming this particularly for the legal profession, as there are certainly other professions that are absent from this list, given the enormously long list of people who are within the purview of this Bill. The amendment may be a starting point but, for what it is worth, I support it.
Lord Hunt of Kings Heath (Lab) [V]
My Lords, it is a pleasure to follow the noble and learned Lord. I put my name to these amendments because I regard full and transparent consultation as very important. At its heart, the integrity and independence of our regulators is at stake. The problem is that the Bill gives far too many powers to Ministers. In the previous debate the Minister said that future trade agreements will not compromise standards. I wonder what our farmers and fishers think of that. We know that the Government are desperate for trade deals and that they have a track record of carelessness about their details. Clause 3 gives Ministers a completely free hand when it comes to trade agreements.
This debate is also set in the context of the independence of health regulators and fears that it may be compromised. Earlier, the noble Lord, Lord Purvis, made a cogent analysis of the interrelationship, or lack of it, between this Bill and the current extensive consultation by the Department of Health and Social Care on the reform of the health regulatory bodies. Those proposals are extensive and, as suggested by the noble Lord, Lord Purvis, give extensive powers to each regulator to streamline its own processes. I support that, because the public will benefit from more streamlined approaches to fitness to practise, which will deal with issues more quickly.
However, alongside this, it is widely expected that the forthcoming NHS Bill announced in the Queen’s Speech will contain extensive provisions on the very same regulatory bodies in health that we are talking about today. One provision will be to allow Ministers, by regulation, to abolish a regulator and establish others. I have huge reservations about this, because surely it puts their independence at risk if, on a whim, a Minister can get rid of a regulator that they do not like. When you put that prospect together with this Bill, alarm bells start to ring. Consultation is not everything, but it is a safeguard. My noble friend’s amendment would provide one such safeguard that I believe we need.
Baroness McIntosh of Pickering (Con)
My Lords, I am delighted to speak in the right place in the right order on these two amendments and I apologise for what happened earlier. I congratulate the noble Baroness, Lady Hayter, on bringing forward these two amendments. I echo the concerns expressed by my noble friend Lady Noakes as to why they are limited to certain professions and not others. I am not entirely sure that all medical professions are represented here—the noble Baroness, Lady Hayter, can confirm whether this is the case.
The noble Baroness will know that I am wedded to statutory consultation, and she has clearly set out what the specific forms of the consultation would be. With that support, I look forward to hearing my noble friend the Minister say whether he can see merit in these or whether they should be extended to other professions as well.
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.
Baroness Randerson (LD)
My Lords, I am very pleased to have the opportunity to speak on this group of amendments, and to reflect on the comments of the noble Lord, Lord Patel. He has reminded us of the complexity and sensitivity of these issues, with his example of medical practice in America. It is a country— the richest in the world— with the very highest medical standards, but it does not have the guarantees of high standards, perhaps, that we rightly want to take for granted in this country. I think he has pinpointed an important sensitivity on this issue.
I welcome these amendments, especially the emphasis on consultation, since I am very worried about the lack of awareness of this Bill beyond this Chamber. I think it is right to say that some of us in this Chamber have woken up only gradually to the huge complexity of the Bill. The Minister himself expressed some surprise at it, and the more that can be done to raise awareness among regulators and among the professions affected the better.
I have one very specific comment: I was struck, on reading the impact assessment, on how narrow the Government’s consultations with regulators were prior to the laying of this Bill. Out of 150 professions and 60 regulators, only a dozen were involved in some of the consultation. They were asked questions about the costs and, in one case, there were replies from only three of them. The costings we have been given on an expensive new policy are based, in some aspects, on replies from three regulators, and they could hardly be regarded as a representative cross-section. There is a real worry for us about a lack of understanding of the complexity of the Government’s policy.
Lord Grimstone of Boscobel (Con)
My Lords, I thank the noble Baroness, Lady Hayter of Kentish Town, for her amendments and I note that the noble Lords, Lord Patel and Lord Hunt of Kings Heath, and the noble and learned Lord, Lord Hope of Craighead, are supporting them. These amendments introduce a duty to publish, in draft form, any proposed regulations where they relate to the professions listed, and to consult on these regulations before they can be made under Clauses 1 and 3—the powers to provide for individuals to be treated as having UK qualifications and the implementation of international agreements respectively. I have spoken at some length about the commitment to engagement on both clauses but let me provide some further reassurance specific to these amendments.
First, and perhaps most importantly, the Government, through this Bill, will not and cannot bring forward regulations that affect the autonomy of regulators or the standards that they set. With the greatest of respect to noble Lords, I sometimes feel that they think there is more to this Bill than meets the eye. There is not. This is a Bill which, at its heart, is about the mutual recognition of professional qualifications. It is not, and could not be, a Trojan horse for the Government to somehow choose to undermine the autonomy or the standards of regulators. It would be the height of foolishness for any Government, not just mine, to do so. I suggest that a little injection of reality about what this Bill is about should creep into some of our debates, and I say that with the greatest respect to noble Lords.
I turn first to Amendment 15 to Clause 1, which would mean that, if one of the listed professions were deemed to meet the demand condition in Clause 2, and regulations under Clause 1 were justified, there would be a three-month period of consultation with their regulators before regulations relating to those professions could be made.
I recognise that the professions and regulators specified by the noble Baroness are primarily those supporting our important public services. It is of course essential that any regulations made under the Bill support the delivery of public services and complement regulators’ existing practices. However, there seems little merit in listing, in primary legislation, a set of priority professions —my noble friend Lady Noakes put this very succinctly —which would be subject to change as demand changed. To do so could unduly restrict the ability of the Government, or the other national authorities, to respond quickly and efficiently to the needs of the professions on the list when they were deemed to have unmet demand.
Moreover, let us remind ourselves of what Clause 1 does. It requires regulators to have a route to consider applications from these people. It does not tell them that they have to accept these people or that there has to be a diminution of standards in relation to them; it requires regulators to have a route to consider them. This in no way undermines the carefully constructed architecture that our regulators have put in place to protect patients, consumers and other users of regulated services. Decisions under the Bill will be informed by careful engagement with professions and their regulators, and not introduced without warning. I agree that regulators will need to be involved from the outset, and have time to prepare for changes.
Amendment 27, which relates to Clause 3, seeks to make a similar requirement to publish and consult on draft regulations, with the same regulators and professions, in relation to implementing parts of international agreements on the recognition of professional qualifications. As I have explained previously—and will no doubt have to continue to do—a key concern for the Government in all negotiations is ensuring that the autonomy of regulators within these trade agreements protects UK standards. That applies to all regulators and professional bodies which may be within the scope of an international agreement, not just the ones specified in this amendment.
Through the Department for International Trade the Government engage with a range of stakeholders, including regulators, to understand their priorities and inform the UK’s approach to trade with future trade agreement partners. We have several forums to inform these negotiations, including the trade advisory groups, which hold strategic discussions to help shape our future trade policy and secure opportunities in every corner of the UK. We also hold many ad hoc consultations with interested parties. BEIS also organises regulator forums that provide updates on the negotiations and the terms of trade deals.
In addition, to consult before making regulations at the point at which the international agreement being implemented has already concluded would, frankly, be too late to meaningfully impact the substance of the agreement. That is why in May this year we launched a public call for input as we prepared for trade negotiations with India, Canada and Mexico. I encourage all those with an interest, and of course that includes all regulators and professions, to respond. Why would we not want to know what people think before we embark on the negotiations? To think that we should consult them after the agreement has been effectively finalised, when it is being prepared for parliamentary scrutiny, seems, with great respect, to be shutting the stable door after the horse has bolted.
On Clause 3, it is important for the UK Government to be able to meet our international obligations on professional qualifications, to support UK professionals and trade in professional services, and to do so in a timely fashion. I know that on a later group of amendments we will come back to further examination of this clause.
I trust that this gives reassurance to noble Lords on the engagement of professions, including the professions cited in the amendments but of course all others, before any changes are enacted through regulations through Clauses 1 and 3. I ask that the amendment be withdrawn.
Baroness Hayter of Kentish Town (Lab)
My Lords, there is a problem in what the Minister said. He talked about consultation and a call for input, but that is very passive. As I mentioned on an earlier group, unless you know that the Government are going to be looking at your profession, who would think to input at the beginning? On a later group we will come to the need to have a negotiating mandate, because at that stage that might stimulate people to think, “Oh gosh, that’s my profession.” If the Government would like architects, surveyors or whatever to be covered then they may start talking about it, but just putting out a call does not actually tickle the trout; people do not know that they should be involved. What the noble Baroness, Lady Randerson, said was interesting: people do not even know that the Bill exists, so the idea that they are following the situation and will keep looking at websites just in case their profession is affected is not going to happen.
There is an issue, not just about the Bill but about all sorts of measures, of the Government’s consultations consisting of, “We hope you’ll hear what we’re doing and will come and tell us about it.” The Minister has talked about the trade advisory groups. I am sorry to go on about this again, but there are no consumers on any of those groups. Again, the users of those professional services, be they clients of City lawyers or whoever, will not actually sit on those trade advisory groups so are not part of that inner circle that is kept close.
The Minister has basically said, “You can trust us. The Government wouldn’t bring forward regulations that affected the independence of regulators. We would never think to abolish a regulator.” The problem is that he was not in this House—quite a few of us who are here today were, including my noble friends Lord McAvoy and Lord Foulkes—when we had the Public Bodies Act. Do noble Lords remember that? It abolished 32 public bodies with a skeleton Bill and then by statutory instrument. The poor noble Baroness, Lady Noakes, has to put up with me all the time because the National Consumer Council was abolished under that Bill; had it not been, I probably would not have had so much cause to be here because there would have been a statutory body on the formal list that the Government have to consult, and a lot of the stuff that I come in on at a very late date probably would have been dealt with before. So we have previously had a Bill on the basis of “Trust us, we won’t go round abolishing things”, and now here we are: we have no National Consumer Council any more. There is history here that predates the Minister, and that is why we would like a little more evidence in the Bill.
The Deputy Chairman of Committees (Baroness Henig) (Lab)
We now come to the group beginning with Amendment 16. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
Amendment 16
“(7) The appropriate national authority must seek reciprocal arrangements with other jurisdictions, including individual Member States of the European Union, for those with UK qualifications; as well as in the context of future Trade Agreements and continuing negotiations with the European Union in the context of the UK-EU Trade and Cooperation Agreement.”
Baroness McIntosh of Pickering (Con)
My Lords, before I speak to Amendment 16, I commend and endorse Amendments 23 and 47 in the name of the noble Lord, Lord Foulkes, supported so ably by the noble and learned Lord, Lord Hope. I shall leave them to speak to these amendments. I thank the noble and learned Lord, Lord Hope of Craighead, for lending his support and for cosigning my amendment.
I have sought to highlight that it is up to the appropriate national authority to
“seek reciprocal arrangements with other jurisdictions, including”—
as I specify—
“individual member states of the European Union, for those with UK qualifications, as well as in the context of future trade agreements and continuing negotiations with the European Union in the context of the UK-EU Trade and Co-operation Agreement.”
In his response at Second Reading, the Minister mentioned that the Government had been willing to negotiate mutual recognition of professional qualifications with our erstwhile partners in the European Union, but that they would not play ball. So will he take this opportunity to update us on the negotiations with our erstwhile partners? Is it still a matter of dialogue with them?
I understand that a specialised committee is also being set up within the context of the trade and co-operation agreement. It is a matter of great concern to those of us in this place, not least the noble Earl, Lord Kinnoull, who chairs the European Committee. There seems to be no sense of urgency. I am sure my noble friend will blame the European Union, but I would like to hear that it is a priority for this Government to set up all these specialised committees in the context of the TCA—but in particular this one.
What grieved me at the time was that when a statutory instrument was moved by our then Minister, my noble and learned friend Lord Keen of Elie, he stated that we were going to accept all those coming from the European Union and EEA countries to work here but we had not negotiated the reciprocal right for our, dare I say, lawyers—the issue of most concern to me—and practitioners in other professions. That seemed to me a very regrettable way of proceeding.
In the briefing that I received today, the Bar Council of England pointed out also that Clause 3 on international agreements has a part to play in the amendment. The council’s concern is that the clause is
“useful but limited to international agreements—that is, treaties to which the UK state is a party. The power would not be available to make or amend legislation to give effect to a mutual recognition agreement negotiated autonomously at the level of professional regulators. This is a further deficiency in the Bill.”
So I ask my noble friend to explain, where a professional body such as, for example, the Faculty of Advocates, the Bar Council or the Law Society of Scotland, has negotiated some mutual recognition, to what extent the Government would be able to support that and what the mechanism would be to do so.
My noble friend the Minister, in his letter to which I referred earlier, replied to the concerns raised by the Delegated Powers and Regulatory Reform Committee in its third report of this Session published on 7 June, in appendix 1, at the foot of page 12, where there seems to be something of a contradiction. He stated:
“The Trade Act 2021 provides for the implementation of provisions on the recognition of professional qualifications that are included in UK trade agreements with countries with which the EU had signed trade agreements as at 31 January 2020.”
At the end of the paragraph, he then stated:
“Finally, the powers provided in the Trade Act 2021 expire after five years, whereas it is anticipated that, for example, MRAs”—
mutual recognition agreements—
“formed as part of trade agreements will need to be implemented well beyond this limited period—especially in light of the lengthy timeframes MRAs typically take to finalise.”
I should be interested to know how that contradiction is going to be resolved in the context of the Bill. Are we really leaving it to regulations to resolve that timeframe? Are we going to be invited to look at these mutual recognition agreements as part of the trade agreements, because I understood my noble friend to say that we would not be going into that level of detail when we discussed other trade agreements hitherto.
So I commend this amendment to the Committee. It is appropriate that we seek reciprocal arrangements with other jurisdictions. That has served us extremely well in the past and made England, particularly London, the second centre in the world, after New York, for legal practice. We have done extremely well out of the arrangements and it is important that we continue to negotiate this, not just in future trade agreements but through the trade and co-operation agreement. In commending and moving the amendment, I hope that my noble friend will look favourably upon it and bring us up to date as to where we are.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, Amendment 23 in my name deletes Clause 3(2)(c), which provides regulations under this clause and relates to the charging of fees. That is at odds with the terms of Section 31(4) of the European Union (Future Relationship) Act 2020, which provides that no fees should be charged. That Act does not allow for the imposition of fees in regulations designed to implement the trade and co-operation agreement. So this is a probing amendment that gives the Government the opportunity to explain why they have a completely different approach in the Professional Qualifications Bill from that in the future relationship Act. I look forward to hearing how the Minister can explain that away.
Amendment 47 has also been signed by the noble and learned Lord, Lord Hope, who will be much better at explaining it than I could ever be.
Lord Hope of Craighead (CB)
I am very grateful for that invitation but before I get to the amendment tabled by the noble Lord, Lord Foulkes, I support what the noble Baroness, Lady McIntosh, has said in support of Amendment 16 about the need for
“reciprocal arrangements with other jurisdictions, including individual Member States of the European Union, for those with UK qualifications”.
This amendment is of particular interest to the legal professions in this country, in view of the achievements that were made right across the board in all three jurisdictions—Northern Ireland, Scotland and England and Wales—in that respect while we were in the EU.
I am quite sure that the professions do not want to lose the benefit which those arrangements were able to achieve. There is a gap here that the trade and co-operation agreement with the EU has left unfilled. Amendment 16 goes some way to addressing and filling the gap in the interests of those who would like to benefit from the kind of arrangements we previously had under the European Union.
Coming to Amendment 47 in the name of noble Lord, Lord Foulkes, it seeks to clarify the provision in Clause 9(4) about the risk that the duty of a regulator to provide information may contravene the data protection legislation. The same point arises in Clause 10(7), which is the subject of another amendment by the noble Lord, Amendment 50. Unfortunately, it is not in this group but will arise later on. Perhaps one is addressing the same point this evening. It also arises in regard to Clause 7(5), which raises exactly the same point. The Minister will appreciate that one is dealing here with a duty to disclose information. It begs the questions: first, does it breach any restriction under rules or contract, for example, or, secondly, does it breach the data protection legislation?
Concentrating on Clause 9, its structure is really quite interesting because it provides the duty in its subsection (2). It is a duty to provide
“any information … that is held by the first regulator … that relates to the individual”
and
“that … is requested by the second regulator.”
Then we come to its subsection (3), which says:
“A disclosure of information under this section does not breach … any obligation of confidence owed by the first regulator, or … any other restriction on the disclosure of information (however imposed).”
Those words are perfectly clear. They provide a complete answer—a complete defence—to a claim for breach of contract or a claim that the rules have been breached. For example, if I objected to the information being released by the first regulator that related to me on the ground that I had entered into a contract preventing the release of that information, I would simply be deprived of my contractual right to complain, because that is exactly what subsection (3) says.
The problem is subsection (4) which says:
“Nothing in this section requires the making of a disclosure which contravenes the data protection legislation”.
If that subsection had said that no disclosure which contravenes the data protection legislation shall be made, or words to the same effect, it would mean that, despite the firm duty in the earlier part of the clause, one was simply not required to disclose anything which would breach the data protection legislation. However, it does not say that; it just says that nothing requires you to do it.
Lord Lansley (Con)
My Lords, I am glad to have the opportunity to contribute to this short debate on these amendments. I will say a quick word on each, if I may.
First, on Amendment 16, I entirely support my noble friend’s wish for us to enter into mutual recognition of professional qualifications with the European Union but, as they say, it takes two to tango. We wanted to do it and our policy intention was to do it, but it was not the European Union’s intention to agree to it. I do not doubt that it would remain the Government’s intention to enter into such an agreement if it were possible to do so. I regret that putting this into the Bill does not change any of those circumstances. As it happens, I would not put it into the Bill at this place either. It is essentially contingent upon Clause 3 and our ability to negotiate an international recognition agreement with European Union countries in any case. It may be we have to do it with European Union countries individually, but I agree with the objective. It seems to me that Clause 4 allows regulators to enter into recognition agreements, and that is the mechanism. If the Law Society or anybody else wants to do it, they should seek approval from the Government to enter into such an agreement in that way.
I do not understand why we need Amendment 23 in the name of the noble Lord, Lord Foulkes. This is about international recognition agreements. It is not specifically about the European Union and it may not apply to European Union member states. It is not required to be consistent with the future relationship with the European Union. All it means is that when we allow the recognition of overseas applicants to our professions, the professional regulators may charge them fees in the way that they charge fees to UK applicants. I think that is perfectly reasonable, so I would not accept that amendment.
On Amendment 47, the noble and learned Lord, Lord Hope of Craighead, was probably not here when we discussed the Trade (Disclosure of Information) Act 2020, nor when we dealt with similar provisions in the Trade Act 2021. My noble friend on the Front Bench, the noble Lord, Lord Purvis, and I remember those discussions very well.
Supreme Court judgments have determined that where, for example, data protection legislation requires the protection of legislation—and there are specific duties relating to that—if there are other statutory gateways that might create a statutory provision permitting the disclosure of information which could contravene the data protection legislation, the position the court arrived at was that the decision-makers should end up being able to balance the statutory gateway in the additional statute with the originating data protection legislation. That is where it ended up, and that is why “taken into account” is the appropriate language. It would not be “considered a defence”, because that would conclude that it had not been weighed properly in the way that the court expected. It expected these two things to be considered alongside one another. That is where we ended up on the Trade (Disclosure of Information) Act, for reasons I understood then, and as far as I can see, this drafting is absolutely consistent with those pieces of legislation.
Baroness Bennett of Manor Castle (GP)
My Lords, I am glad of the opportunity to contribute to this short debate, but I will be brief and forbear commenting on Amendments 23 and 47, as noble Lords have already covered them and I cannot really add anything. I want to speak specifically to Amendment 16 and I thank the noble Baroness, Lady McIntosh of Pickering, for tabling it.
I think there should be pressure on the appropriate national authorities in the Bill to seek reciprocal agreements. It is something that certainly needs to be discussed and pushed. Other noble Lords have spoken about the situation of established professionals and the professional bodies. I want to take a moment to think about young people recently qualified, and those young people who have been through such difficult times and who will qualify in the next year or two, for whom there should be the opportunity, as a young professional, to go out and to travel—the European Union countries being the obvious place, being relatively close to home, relatively cheap, et cetera. It is crucial to those young people to have opportunities to stretch their wings, to learn new things and to develop professionally.
We have seen a lot of problems arising as a result of Covid. Covid is being blamed for lack of progress in a great many things, but it has also suppressed demand, and we are going to see a real explosion of demand as it becomes more possible to travel and to move. I will not get started on the great loss of free movement for the people of the UK, but given that we have so curtailed the opportunities for our young people, it is crucial that we do everything possible to open up, or reopen, professional opportunities for people to grow, to develop, to travel. Of course, if the Government do not want to consider this from any other angle, it is obviously of considerable importance if those people return to the UK and work here with those skills or, indeed, if they remain overseas but keep their UK contacts, which will be very important for UK business and professionals.
Lord Purvis of Tweed (LD)
My Lords, we are indebted to the noble and learned Lord for bringing Amendment 47 to us and to the noble Lord, Lord Foulkes, for his comments, and I have two questions for the Minister in regard to those. The first relates to a document which I am sure that the department for business Bill team is studying closely, which is the Department of Health and Social Care’s consultation on regulatory reform for the medical professions. Paragraph 156 has a set number of criteria of the data which the medical professions will now be required to have, which is not the same as the data within the Bill. In some areas, it includes, for example, registrants’ geographical locations and measures relating to fitness to practise, which includes former criminal records and other information that is held. Therefore, on the requirement for the information to be provided to the regulators in other parts of the UK, I am curious as to how the Bill will interact with what the Government’s intentions are for the other information which is now being proposed by the consultation on the medical professions.
It will be of importance, given that those entering the labour market who had previously been recognised—I am thinking of EEA citizens who now have settled status—are likely to be the biggest call upon this duty regarding transferring of data, because the estimates are that potentially up to 1 million people will be settled in the UK with a professional qualification recognised to carry out their work. However, because the Home Office chose not to verify their previous information in order to give them settled status, there is currently no formal record of their continued fitness to practise.
This leads to my second point. Can the Minister confirm the Government’s estimate of how many EEA professionals, who have in the past had their qualifications recognised to carry out work, as guaranteed under the withdrawal agreement, have their withdrawal agreement rights recognised? Certainly, if those who have settled status wish to move throughout the UK, that will presumably be the first call upon the Clause 9 duty, and the Home Office is not at the moment maintaining that information, as far as I understand, so it would be helpful to know this.
I also want clarification of the Government’s intentions regarding Amendment 16 and our position with the European Union. I congratulate the noble Lord, Lord Lansley, on re-entering the Government Benches, for being a loyalist now. He is not listening. Oh, he is listening. I congratulate him on being very loyal to the Government’s position regarding their intent. Clearly, he is of the view, as the Minister told us at Second Reading, that it was the Government’s intention to seek a mutual recognition agreement with the European Union covering all the countries together, and this was rejected by the European Union.
I was interested in that slightly revisionist bit of history from the Minister, so I read chapter 13 of the draft UK negotiating document, on mutual recognition of professional qualifications. I thought that I had better compare it with the European Commission negotiating mandate too, just to double-check that what we have been told is the case. It is certainly the case that the Theresa May Administration—which was before the Minister’s appointment, so I do not blame him for the situation—sought a level playing field for services, which included a reciprocal agreement between the UK regulatory bodies and the Union’s regulatory bodies with supervisory autonomy. The Boris Johnson Administration chose not to pursue that. Instead, they sought a Canada-style agreement, which we now have, because our arrangements in the TCA are the same as Canada’s.
However, the UK negotiating document, which the Minister says was a comprehensive offer that was rejected by the European Union, called for, under “Objectives and scope” in chapter 13,
“a framework to facilitate a fair, transparent and consistent regime … where … a service provider with a professional qualification obtained in the United Kingdom makes an application to a relevant authority in the Union”.
What did “relevant authority” mean? Well, the Government was very helpful in clarifying that. It meant that it was a body that authorised and recognised qualifications of a profession in a jurisdiction—that is, in each member state. The Government simply wanted a negotiated framework to facilitate an agreement in each jurisdiction. Paragraph 43 of the Commission’s negotiation mandate states that:
“The envisaged partnership should also include a framework for negotiations on the conditions for the competent domestic authorities to recognise professional qualifications”.
There is not really much difference between the two. I do not think that one is a comprehensive offer, and I do not think that the other is a rejection.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
The noble Baroness, Lady Hayter, has withdrawn from this group of amendments, so I call the Minister, the noble Lord, Lord Grimstone.
Lord Grimstone of Boscobel (Con)
My Lords, I thank my noble friend Lady McIntosh of Pickering, the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Foulkes of Cumnock, for their proposed amendments. They cover reciprocal recognition arrangements, the charging of fees and information sharing between UK regulators respectively. I will discuss each amendment in turn.
The noble Lord, Lord Purvis, again raised the DHSC consultation on medical professions, and I admire his deep knowledge of this. I would like to be able to respond fully to the points he has raised, so, if I may, I will write to him and put a copy of my reply in the Library. I also noted his point about EEA citizens’ withdrawal agreement rights. I will try to obtain the number and include that in the same letter.
Let me start with the amendment to Clause 1 from my noble friend Lady McIntosh of Pickering and the noble and learned Lord, Lord Hope of Craighead. I fully recognise the benefit of reciprocal arrangements for the recognition of professional qualifications. I completely understand why my noble friend Lady McIntosh and the noble Baroness, Lady Bennett of Manor Castle, seek this. I do not think I can put it better than my noble friend Lord Lansley succinctly did, in that it takes two to tango.
We have had the benefit of the great knowledge of the noble Lord, Lord Purvis of Tweed, on the negotiating stances within the EU agreement. I was not a member of the Government at that time so I cannot comment on the detail of that. I think it is now, frankly, a matter of history. The noble Lords may frown, but I think it is a matter of history and we have gone past that. I will see if I can glean any useful information to send to the noble Lord, Lord Purvis, but I am not entirely confident I will able to.
As the Committee will know, reciprocal recognition agreements can be secured through international agreements and through agreements between regulators. The EU-UK Trade and Cooperation Agreement includes a mechanism for agreeing UK and EU-wide recognition arrangements. I say in reply to my noble friend Lady McIntosh of Pickering that the first meeting of the partnership council is taking place this very day. I believe that a number of committees will start to meet after that. My information is that one of those committees will include services within its remit.
Regulators have the option to use this process if they wish. Some have indicated they might find it rather cumbersome and so may prefer to conclude arrangements outside this framework. Clause 4 of the Bill will support that. As we know, it provides powers to enable regulators to enter recognition arrangements with their counterparts in other countries. Of course, in reply to my noble friend Lady McIntosh, I say that some already have this power and have used it, and I thoroughly welcome that. Sadly or unfortunately, others do not have the power at present or have doubts about whether they do. One reason why we are bringing forward Clause 4 is to be able to give the power to all regulators that wish to have it. If they then use that power, nobody would be happier than me.
To help them to pursue this route, we are taking action to support regulators in securing such arrangements. For example, the Government recently published guidance to support regulators in agreeing recognition arrangements, including mutual recognition agreements with their counterparts in other countries. However, these arrangements are of course completely distinct from the purposes of Clause 1. As noble Lords have heard, Clause 1 concerns enabling the demand for the services of professions in the UK to be met without undue delay or charges. Clause 1 does not relate to mutual recognition arrangements. However, there is of course nothing in Clause 1 that would act to inhibit reciprocal recognition agreements being agreed where regulators wished to do so. Moreover, recognition agreements are, frankly, demand-led processes, and it is for regulators themselves to decide whether to enter into one and to decide the terms between themselves. That is a feature of the regulators having autonomy. Requiring national authorities to seek out reciprocal arrangements for certain professions would, I suggest with the deepest respect, reduce regulators’ autonomy. I know the importance that noble Lords attach to not doing that. I agree that it is appropriate for the Bill to support regulators’ ability to enter into such recognition agreements, and I hope that noble Lords will agree this is adequately addressed elsewhere in it. No doubt we will come back to this later.
I turn to the amendment to Clause 3 tabled by the noble Lord, Lord Foulkes of Cumnock. The current provision on the charging of fees makes sure that regulators can be enabled to cover any additional cost burden from administering any systems established under international recognition agreements. Of course, this may also be necessary if an agreement references fees. This will help to make sure that regulators are no worse off due to the UK implementing international recognition arrangements. It allows them to cover costs that will arise from implementing and operating processes to recognise professional qualifications from a trade partner’s territory. Some international agreements include commitments about the charging of fees. For example, in typical language, this would be that they are reasonable or proportionate. This power is necessary to implement such measures.
On the specific question of the noble Lord, Lord Foulkes, about why Clause 3 departs from precedent on the charging of fees, I noted the Law Society briefing on this point and understand its interest in hearing us place on record the reasons for the difference between the approach taken in this Bill and that in the 2020 future relationship Act. Clause 3 is a power created with the future needs of international agreements on the recognition of professional qualifications in mind. The requirements and concerns to be considered for this clause are distinct from more general implementation powers that deal with entire free trade agreements and all their different chapters, as is the case with the powers under the future relationship Act.
Clause 3 is also designed to be flexible and to ensure that the UK Government can implement the UK’s precedent-setting policy on professional qualifications, as well as more traditional mutual recognition agreement frameworks and other provisions. If the noble Lord would find it helpful to have a further discussion with me about that, of course I would be delighted. The debate that we come to later will turn to the detail of Clauses 3 and 4 and reciprocal arrangements, so with noble Lords’ permission I shall not go further into the detail of those clauses here.
I now turn to Amendment 47, which concerns Clause 9. I thank the noble Lord, Lord Foulkes of Cumnock, and the noble and learned Lord, Lord Hope of Craighead, for their amendment. Clause 9 relates to information sharing between UK regulators. The amendment seeks to create a defence if a disclosure made under the duty in Clause 9 contravenes data protection legislation. This clause places a duty on UK regulators, where requested, to provide information to another regulator in the UK relating to individuals who are, or have been, entitled to practise the relevant profession in another part of the UK. It ensures that regulators have the information, when an individual applies for entitlement to practise, necessary to assess that individual’s entitlement to practise the profession in that part of the UK. This necessary information is limited to information held by the UK regulator about the individual.
Clause 9 also specifies how the provision interacts with the data protection legislation. Where the new duty relating to the processing of personal data applies, it does not require the making of any disclosure which would contravene data protection legislation. This approach—I think that my noble friend Lord Lansley recognised this—and similar wording has been adopted in other recent Bills, some of which are now Acts, such as the Pensions Schemes Act 2021 and the Agriculture Act 2020.
Let me provide reassurance on the concern which appears to underpin this amendment that regulators may face legal challenges in complying with Clause 9. The clause specifically requires disclosure only when it does not contravene data protection legislation. There is therefore no defence needed. I hope that that reassures the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Foulkes of Cumnock. The clause is also clear that the duty to share information can be taken into account in determining whether improper disclosure has occurred.
We will return to the important issue of data protection in our wider debate, and I look forward to continuing this discussion. I thank noble Lords for their contributions and amendments. I hope my explanation of the Government’s objectives in relation to reciprocal arrangements, my agreement to write to noble Lords and the rationale for including provisions to charge fees and consideration of how the Bill requirements interact with data protection have been helpful, and that on that basis my noble friend will withdraw her amendment.
Baroness McIntosh of Pickering (Con)
My Lords, I am grateful to all who have spoken in this little debate. I hate to disappoint my noble friend Lord Lansley, but this amendment was entirely my own work—it was not from the Law Society of Scotland. I am grateful to the noble Lord, Lord Purvis, for the work that he put in to prepare for this group of amendments. To add to his comments on paragraphs 92 and 93 of the impact assessment, they do not record the loss of reciprocal rights for those lawyers who might otherwise have gone from this country, along with other professions such as dentists and doctors, to work in other European and EEA countries.
I am grateful to my noble friend the Minister for his full reply—especially the acknowledgement that the partnership council met for the first time today. For the first time, we hear that it is hoped that the committees will meet shortly after that. I believe that we should make this a priority, so that all professionals have reciprocal arrangements. I am grateful to my noble friend for spelling out the implications of Clause 4 in this regard, as well as Clause 3. I shall follow that extremely closely. I am grateful to have had the opportunity to probe this matter, and I shall continue to monitor it during the progress of the Bill. For the moment, however, I beg leave to withdraw the amendment.
Lord Hunt of Kings Heath (Lab) [V]
My Lords, I am using the stand part debate on Clause 1 to raise my general concern about the extensive power given to Ministers without adequate justification or explanation.
On Second Reading I referred the Minister to the recent report of the Secondary Legislation Scrutiny Committee, which during the course of the year has
“become increasingly concerned about the growing tendency for the Government to introduce skeleton bills, in which broad delegated powers are sought in lieu of policy detail”.
The committee went on to say that
“we urge the Government ‘to bring forward bills that contain clear policy intention instead of broad delegated powers’ and to ensure that ‘Departments do not use the exceptional powers given to them by Parliament as an expedient in the context of the pandemic as a cloak for effecting longer term, post-pandemic changes which would more properly be included in primary legislation’”.
Unfortunately, the Minister and the rest of the Government have chosen to totally ignore that in bringing this Bill before us. Not surprisingly, that has drawn a critical response from the Delegated Powers and Regulatory Reform Committee. A number of noble Lords have quoted extracts from the committee’s report today. It drew three powers to the attention of the House, and in relation to each it noted
“a failure to provide adequate explanation in the Memorandum. This is particularly disappointing given that (a) as the Government have acknowledged, most of the substantive changes to the law envisaged by this Bill are to be made through delegated powers rather than the Bill itself, and (b) these are Henry VIII powers”.
On Clause 1, the committee commented:
“It is a Henry VIII power, as it includes power to amend primary legislation and retained direct principal EU legislation … The power can be used to make provision about a wide range of matters”—
which we have discussed comprehensively today. As the committee says, the Explanatory Memorandum
“provides two justifications for the delegation of power. The first is that the use of the power ‘is to be demand-led’ and ‘demand will naturally change over time and so it is not possible to achieve the policy through provisions on the face of the Bill that apply to a fixed set of professions’”.
If we accepted that argument, we could justify dealing with almost every piece of legislation in that way. As the committee said,
“that does not explain why all of the changes within the scope of the power—across so many professions and including changes to primary legislation—should be a matter for secondary rather than primary legislation”.
Nor did the Government respond to concerns that Clause 1
“could allow such requirements—and other comparable requirements in primary legislation relating to other professions—to be watered down by statutory instrument if Ministers considered this to be necessary to enable demand for the services of the profession in question to be met without ‘unreasonable delays’”.
The committee continued:
“The second justification given for the delegation relates to the existing legislative provision covering a wide range of different professions and regulators: ‘the professions that are in scope of this power have pre-existing legislative frameworks governing how each is regulated. It is not feasible to provide, on the face of the Bill, for an approach that would interface with each of these various frameworks and their different approaches to the recognition of professional qualifications, or to address them individually’”.
Well, as the committee expressed itself:
“We are surprised and disappointed that neither the Memorandum nor the Explanatory Notes … give any examples of circumstances in which the power might be exercised and changes that could be made in such circumstances; or … explain why Ministers will have no duty to consult before making regulations.”
We have discussed that in some detail. This
“makes it difficult to understand how significant the changes that could be made in exercise of this power could be, particularly given the proliferation of existing legislative schemes that could be amended; and gives rise to uncertainty as to whether there may be aspects of the law relating to recognition of overseas qualifications that the Bill would allow to be provided for in regulations … but which should instead be subjected to the much greater Parliamentary scrutiny afforded to primary legislation.”
I hope the Minister will explain why the Explanatory Memorandum is so scanty on such an important matter. Will he justify the extraordinary powers he and his colleagues are taking to themselves? Does he accept that some of the mistrust he complained about two groups ago on the part of Members towards the Government perhaps rests on the cavalier approach the Government themselves have taken to this House and Parliament by the unsatisfactory nature of the drafting of this Bill? I beg to move.
Baroness Noakes (Con)
My Lords, on the face of it, Clause 1 does seem innocuous, but at its heart there is a power for the Government to interfere in the way that regulated professions recognise people who have qualified abroad. I am far from clear that a case has been made for government intervention. I have not seen any evidence of the regulated professions dragging their feet when it comes to recognising overseas professionals. I recognise that our country has a demand for some professionals, notably those related to healthcare, which may well outstrip the numbers who qualify here, but there is still a big step before saying our UK professions need the Government to tell them what to do.
I have no problem with giving the regulators additional powers if their current rules make it difficult to accommodate the recognition of overseas professionals and they need legislation to change that—but that is not what this clause is about. The clause covers many regulated professions that already have effective provisions for the recognition of overseas applicants, but the Government have not excluded them from the scope of Clause 1. I believe the clause would be better expressed in terms of a power to be exercised by the Government at the request of regulated professions or with their consent. The Government do not know best when it comes to the professions, but the Bill does seem to be predicated on that belief. I hope it is not too late to reshape how this Bill interacts with regulated professions.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
The noble Baroness, Lady Bennett of Manor Castle, has withdrawn from this group, so I call the noble Lord, Lord Fox.
Lord Fox (LD)
My Lords, I thank the noble Lord, Lord Hunt, for putting this amendment forward, and I commend him on the forcefulness of his speech. I am not going to repeat things he said, but I agree with his points. During the opening group, I touched on this issue and outlined the powers that are being taken into this clause, to which the noble Baroness, Lady Noakes, referred just now. I am still trying to understand what the Government think they are going to improve by doing this.
In essence, because of Brexit, the simple reality is that we are losing access to a considerable source of professionals. That is a problem, or potentially a problem. There is absolutely no certainty that we can replace them in another way, but there is also no certainty—indeed, possibly the opposite—that these clauses are going to help that to happen. So the idea that “We are from the Government and we are here to help you recruit people” seems to be unfounded.
There are two problems with Clause 1. One is that it seems to be a misguided effort. The other, which was front and centre of the points the noble Lord, Lord Hunt, made, is that this is the Government overstretching themselves in taking powers upon themselves and grabbing secondary legislation opportunities. We know that there is virtually no chance to amend—there have been very few examples in my lifetime where secondary legislation has actually been turned down. So it is with that that we on these Benches are supporting this amendment, and, of course, similar arguments will be put forward later on in the evening.
Baroness Hayter of Kentish Town (Lab)
My Lords, Clause 1 enables regulations to be made—as we have heard, they are never overturned—to require a specific regulator to put in place a procedure for assessing whether to treat overseas qualifications as if they were UK ones. However, we still do not know how many of the 60 actually lack such a power. The Minister wants this Bill; he says that it is necessary. Could he please list those regulators which, if circumstances required extra skilled professionals, could find that their statutes were insufficient and thus that they would need to be mandated, by law, to introduce a new process? Because, frankly, if there are no regulators that need this power, we do not need a law to give it to them.
If the regulator wanted to introduce such a process, and had the statute, why would it have to be mandated to do it? If the regulator does not want to introduce such a process, how autonomous is a regulator if it can then be told by a Government that it must do so with the force of law? It may, as the Minister has said, be just a process that they have to introduce, but we are, nevertheless, talking about the Government mandating a regulator to do something that it does not want to do—because if it does want to do it, it will just do it.
So the Minister needs to list the regulators who do not already have the power to adopt such a process. I understand that there may well be some, but it would be nice to know which ones they are. If the regulator has such a power, but does not want to introduce a process to assess whether somebody’s qualifications should be agreed, how does he justify mandating the regulator by law to do that?
Lord Grimstone of Boscobel (Con)
My Lords, I have previously set out the need for a framework for the recognition of overseas professional qualifications. The Government are proposing one that focuses on addressing unmet demand for professional services in the UK. The intention of Clause 1 is to bring in that framework. It means that regulations can be made which require regulators to have a route in place to determine whether or not to recognise overseas qualified professionals from around the world. The framework that the Bill introduces will replace the interim system for the recognition of professional qualifications that was put in place as the UK left the EU.
Clause 1 sets out the substance of the new recognition framework. I stress that these conditions cannot be amended by regulations under the Bill. Where regulations are made under this clause, they would require a regulator to make a determination as to whether an individual with overseas qualifications or experience has substantially the same knowledge and skills, to substantially the same standard, as the UK qualification or experience. As I have said previously, these regulations would not alter the standards required to practise professions in the UK. They could not alter such standards, and regulators would still decide who can practise. No regulator would be forced or pressured into accepting qualifications that did not reach UK standards. Any other appropriate regulatory criteria, such as language proficiency or criminal records checks, must also continue to be met before a regulator may give access to a profession.
Lord Hunt of Kings Heath (Lab) [V]
My Lords, this has been an interesting debate and I am grateful to the Minister. At heart, he is saying that the Bill is proportionate, but the speeches from the noble Baroness, Lady Noakes, the noble Lord, Lord Fox, and my noble friend Lady Hayter have undermined that point. It is clear that many of the current regulators already have the necessary powers, so the question must be: if the powers are required only for a limited number of regulators, why has a catch-all approach in the legislation been chosen by the Government? This gives us a clue to the kind of amendments that we will need to push on Report.
The Minister is grateful for the scrutiny the Bill has been given by the Delegated Powers Committee. I must say that, in my ministerial experience, it is not a committee whose recommendations are to be dismissed lightly. He has dismissed all of them in respect of the use of Henry VIII clauses and has given no explanation of why the Explanatory Memorandum is so inadequate. As for the offer of affirmative regulations in relation to the use of Henry VIII clauses, fewer than 10 defeats of secondary legislation have ever taken place in your Lordships’ House, as the noble Lord, Lord Fox, said. It makes not a jot of difference whether the procedure is affirmative or negative, because we can debate every negative SI. This is an alarming use of Henry VIII clauses.
I hope firmly that, on Report, we will amend the Bill to make it proportionate in the way that it needs to be. I am grateful to all noble Lords.
The Deputy Chairman of Committees (Lord Russell of Liverpool) (CB)
My Lords, we now come to the group beginning with Amendment 17. Anyone who wishes to press this or anything else in the group to a Division must make that clear in the debate.
Clause 2: Power conferred by section 1 exercisable only if necessary to meet demand
Amendment 17
Baroness Hayter of Kentish Town (Lab)
My Lords, in moving Amendment 17, I shall speak to the other amendments in the group. They make up two distinct elements which, as we have heard, lie at the heart of the Bill. The purpose of the Bill is to authorise statutory regulators, where their powers are not available, to be able to put in place a process that would recognise overseas professionals either to fill a skills shortage or to assist in implementing a new trade agreement where the agreement includes a professional skills recognition clause.
However, because of the two possibilities, as we have heard, a third issue arises, which is that of the absolute guarantee of the independence of regulators and the need to ensure that they are never mandated to recognise particular qualifications or experience. This third issue of independence is covered in Amendment 26 in my name and in Amendment 28 tabled by the noble Baroness, Lady Noakes, to which I have added my name. The amendments say quite simply that no regulation under a trade agreement provision can undermine the independence and autonomy of a regulator, and that any such regulation may permit but not require a regulator to recognise an overseas qualification in allowing someone to practise here. These are the very least that must be guaranteed in the Bill and I am sure that it is something we will want to return to on Report.
I turn to the first issue of a skills shortage. It is not clear whether this means that the whole of a profession such as medicine, or only one specialism such as geriatric care or trauma surgery, would be dealt with in a regulation to require a process to be in place. It may well be that we need one, but not the other. My guess is that trauma surgery is quite popular and geriatric medicine perhaps less so. It would be interesting to know how granular the regulations would be when we ask a regulator to put a particular process in place. More than this, of course, is how the relevant Government, be they the UK Government or a devolved one, would decide that there is such a skills shortage. What role will service providers or the relevant regulator play in that decision?
Amendments 20 and 21 in my name and those of my noble friend Lord Hunt and the noble Baronesses, Lady Finlay and Lady Bennett, would therefore require sufficient consultation with the regulator. The Government must also produce a report, not only on the findings of their consultation but on the data and the modelling used to come to the conclusion that there is a skills shortage. This is crucial to what was said earlier by my noble friend Lord Sikka and, I think, by the noble Baroness, Lady Bennett: the Government must also indicate what they have meanwhile been doing to fill the skills shortage, by way of training our own workforce rather than pinching from other—sometimes very much worse off and more needy—countries, and what they are doing to retain the workforce that we have.
I hear from my consultant stepson that retaining existing medical staff is one of the biggest challenges. It is no good keeping on bringing people over and recruiting them to the health service—or indeed anywhere else—if our retention is so low that we are losing people elsewhere. Continuing to hire in when we cannot keep those whom we have does not sound like brilliant workforce planning. Indeed, the Minister might like to explain how, after a decade of Conservative Government, we still lack over 100,000 social workers, 3,000 teachers and 84,000 NHS staff in England. The Royal College of Nursing estimated that, before the pandemic, we were 50,000 nurses short, and the Royal College of Psychiatrists has described lack of staff as one of the biggest causes of workforce burnout in mental health. If he has a moment, he might just reflect on how 10 years of Conservative Government has left us in the position where he now tells us that we need the Bill to fill gaps in our skill base.
I should add that the Bar Council is concerned about the restriction in Clause 2 of the Clause 1 power to situations of unmet need for particular professional services. The Bar Council feels that the Government have offered insufficient justification for this measure which could, it says, negatively affect professional autonomy through an unintended effect of the scope of pre-existing regulatory powers to recognise overseas qualifications. It sounds as if the consultation that we heard has taken place was perhaps not all that thorough. Rather than respond to that today, could the Minister undertake to meet the Bar Council before Report to see whether he can better understand and meet its concerns or find some arrangements to allay its fears? Given how much consultation we have heard has happened, that last-minute plea—it arrived in my in-tray today—suggests that the consultation has perhaps not been all that deep.
I turn to the second arm of the Bill: its potential power to require a regulator to set up a process for foreign accreditation. We again ask, as before—the Minister agreed to it—that he let us know which regulators lack that power. If there are such regulators, Amendment 26 in my name and that of the noble Lord, Lord Trees, again demands that any such regulation to implement an international recognition agreement does not undermine the independence and autonomy of a regulator. The noble Lord is unfortunately unable to speak because his name is not on the speakers’ list, but he obviously knows the Royal College of Veterinary Surgeons very well. It already has all these powers and frequently recognises professionals from other non-EU countries.
Baroness Finlay of Llandaff (CB)
My Lords, this is a very interesting group of amendments because, as far as I can see, it is about addressing the domestic skills shortage. I do not think anyone should be under any illusion about the extent to which there now is a skills shortage. I am going to address this purely across health and social care, which is the area that I know about. I am not going to touch on law and so on.
There is a skills shortage now, particularly among clinical scientists. These are not qualified doctors; they are scientists who are now working in the clinical arena, often carrying a great deal of clinical responsibility. As medicine progresses, and as clinical sciences progress, there will be more of these people coming forward who have very narrow but highly specialised skills. I have already mentioned the physician assistants and anaesthesia assistants. Anaesthesia—and I say this having trained for a time in anaesthetics myself—is not a straightforward discipline. Things can go wrong very rapidly, and the responsibility carried by somebody with this skill set is enormous, because somebody’s life depends on it. They need to know what they are doing all the time. Currently, this group of assistants are not registered. I use that as an example because there will be others, including people working in fields such as cardiology and radiology—in all kinds of interventional areas. Then there are those working in the diagnostic fields who are clinical scientists. If they get something wrong, the diagnostic label attached to a patient will be wrong, the treatment will be wrong, and that patient’s life may be not only damaged but lost. If that original diagnostic test is not properly conducted, the mistake is repeated all down the line. I have a major concern, therefore, about the domestic shortage of clinical scientists. We used to have a good supply of people who wanted to come here from Europe. Now, those from Europe have been returning to Europe, but people from Europe no longer want to apply to come to the UK. That is aggravating the existing gaps in the service.
I have added my name to Amendments 20 and 21, and I fully support the requirement for others to be consulted. In all these fields, there is increasing interdisciplinary working. Although the registration of doctors is held separately to that of nurses, midwives, physios and so on, they must in fact work as a team and there must be cross-fertilisation of skills and competencies. We need to invest in UK training to upskill our own professionals—hence Amendment 21. Amendment 21 may lead the way to credentialling, which has been suggested as a way forward across the different healthcare disciplines, whereby people develop highly specialised skills and are credentialled in one particular area, rather than having to go back to their baseline qualification to apply for a post. I also wonder whether the Bill itself has been drafted as it has to push forward credentialling. I would be grateful if the Minister was able to clarify whether that has been behind some of the drafting, particularly in Clause 2.
Amendment 26 stresses the autonomy of the regulator. I would have thought, from the comments we have heard about the Government’s respect for the autonomy of the regulator, that they would wish to accept that amendment, although I do not have my name on it—it is in the name of other noble Lords.
On Amendment 28, again I would hope that the reciprocal arrangements between regulators would be in the Bill itself, to ensure that there is cross-disciplinary working and an interchange of standards. It would be a real mistake to have standards for a certain procedure, or way of doing things, that vary depending on the background—the initial qualification, possibly decades old—of that professional. That would mean that, if they came up through a nursing background they would somehow be expected to operate at a lower standard when they are, as a sole operator, doing a diagnostic procedure such as a gastrostomy, and that the skills and competencies required of them to do that procedure would be different from those required of someone with a medical degree. They should not be: there should be one standard for the procedure—for the patient—and, if it is complicated, it may well be that it gets handed on to the person with the medical degree.
This is, therefore, a very important set of amendments, and I am most interested to hear the Government’s response to them.
Baroness Randerson (LD)
My Lords, the Minister emphasised that the UK wanted to retain mutual recognition of EEA qualifications, and my noble friend Lord Purvis disputed some of that. Whatever led us to the current situation, shortages are a real problem. As the noble Baroness, Lady Finlay, just mentioned, the impact of the lack of recognition is very serious in some professions.
I shall give noble Lords an example: there are around 22,000 EEA-qualified doctors licensed to practise in the UK, although a significant number of them will have returned home, or at least left the UK, in recent months and years. Nurses, in particular, have gone home in large numbers. In contrast to those 22,000 doctors, only about 2,000 UK doctors are licensed to practise in the EEA, so the impact of that decision not to have mutual recognition falls much more heavily on the UK than on the EEA. We are one country with an impact of 22,000, versus 28 countries with an impact of only 2,000 UK-trained doctors.
However, I am pleased to have the opportunity as a result of these amendments to emphasise that the Government have to get a grip on workforce planning generally. There are amendments in this group that refer to the importance of working far beyond reliance on foreign-trained doctors and professionals generally. The Government have to fund an expansion of university and medical school places and increase the number of places on training courses in a wide range of professions where there are shortages.
Judging by statements in the impact assessment, the Government’s purposes seem to waiver. They seem not to have made up their mind about whether regulators can continue to operate independently and autonomously or should be part of a co-operative effort to address skills shortages. This will partly be addressed by international trade agreements. This group of amendments incorporates some ideas that offer the opportunity for greater clarity. Amendment 20, which I support, ensures consultation with regulators, so that it is not the job of the Government alone to decide whether there is a shortage.
One example is from the information that I received in preparation for these debates. The British Dental Association makes the point that in healthcare professions, patient protection must remain the overarching aim. It points out that the current barriers to work in the UK for overseas-qualified dentists include the need, once they are registered, to undertake up to one year of additional training in dental practices. I know this, in part, from my experience of regularly going to the trainee doing one year’s practice at my local dental practice. These opportunities are apparently very rare and difficult to obtain because they involve costs to the practice hosting the training dentist and costs to the new dentists themselves, so any supposed shortage of new dentists in this country would not be resolved by the simple measure of encouraging more registrants. That is the point of the BDA’s comments.
Baroness Noakes (Con)
My Lords, I have Amendment 28 in this group, to which the noble Baroness, Lady Hayter, has added her name. I have sympathy with many of the other amendments in this group, particularly those that affect Clause 3. I think that, in one way or another, we are all struggling with how to make sense of this rather dirigiste Bill and trying to turn it into something that is oriented around the regulated professions rather than around what the Government want the professions to do.
Specifically, Amendment 28 would make it clear that Clause 3 could not be used to force a profession or its regulator to recognise overseas professionals. The power created by Clause 3(1) is very broad. The national authority can make whatever changes it likes in order to implement an international recognition agreement. I recognise that the Government have said they do not intend to use trade agreements to recognise professions directly but will work through mutual recognition processes. However, the fact remains that they could do so because, if Clause 3 becomes law, it will give them that power and nothing else in that clause or anywhere else in the Bill stops them. For example, they could agree to Indian chartered accountants being recognised as auditors in the UK even though existing recognition processes have thus far not determined that those qualifications are sufficient either for the purposes of chartered accountancy in general or for the specific purposes of the regulated audit profession. That is just not acceptable.
I said at Second Reading that this measure could drive a coach and horses through the ability of professions to guard their standards and quality. My noble friend the Minister said in response that the Government have not forced the professions to accept anything in treaty negotiations to date and that basically we could rely on the Government to do the right thing. However, giving a Government powers to do things on the basis that they will not actually use those powers is a dangerous approach to legislation, and one that the House should rightly reject.
I believe that recognition of regulator autonomy on the face of this Bill is essential, and no amount of Dispatch Box reassurance can make good the problem of giving the Government too much power.
Lord Hunt of Kings Heath [V]
My Lords, I am glad to follow the noble Baroness, Lady Noakes—I so agree with her. At the moment, Clause 3 gives Ministers a blank sheet to do whatever they wish, and I am afraid that ministerial assurances are not sufficient. One way or another, we need to amend Clause 3.
My principal reason for speaking is to support my noble friend in her Amendments 20 and 21 on skills shortages. It is surely important that any regulatory change is only considered before consultation with the relevant regulators, in the context of how the national body is undertaking work and investment in the domestic sector in order to help alleviate those shortages.
I am particularly interested in workforce issues in the health service and social care. I remind the Minister of a report by the King’s Fund in February this year which said that NHS hospitals, mental health services and community providers were reporting a shortage of nearly 84,000 full-time equivalent staff. Key groups, such as nurses, midwives and health visitors were severely affected. General practice was under strain, with a shortage of 2,500 full-time equivalents, with projections suggesting that this could rise to 7,000 during the next five years if current trends continue.
The regulator for health and social care, the Care Quality Commission, has highlighted workforce shortages as having a direct impact on the quality of care. NHS waiting time standards have been routinely missed for a number of years, which the consequences of Covid will exacerbate.
The Health Foundation, another respected independent institute, says that the UK ranks below the average of high-income OECD countries for the number of practising nurses and the annual number of new nurse graduates relative to its population. Further, about 15% of registered nurses in the UK are trained outside the country—more than double the OECD average.
Workforce shortages are not new in the NHS. They have been a recurring and enduring feature during its 70 years or so. The reasons are complex. A historical reliance on international recruitment may be part of the story. A bias in the UK towards focusing on the Exchequer cost of training doctors and nurses—which is expensive—but not on the cost associated with the failure to train enough staff is another factor. More broadly, workforce shortages are totemic of the short-termism that dominates national policy-making under this Government.
The noble Lord, Lord Patel, will speak at the end of this debate. I hope he mentions his House of Lords committee report from 2017. It argued that the absence of any comprehensive, national, long-term strategy to secure the appropriate skilled, well-trained and committed workforce that the health and care system will need during the next 10 to 15 years represented
“the biggest internal threat to the sustainability of the NHS.”
Amendments 20 and 21 post the way for a national authority to be required to publish a report on how skill shortages are being met and how we are investing domestically to address this shortage and upskill existing staff. I hope the Minister will be sympathetic.
Baroness Bennett of Manor Castle (GP)
My Lords, I shall speak chiefly to Amendments 20 and 21 in the name of the noble Baroness, Lady Hayter, to which I have attached my name. These amendments are also supported by the noble Lord, Lord Hunt, and the noble Baroness, Lady Finlay, which gives them both cross-party and non-party backing. I have mentioned that all noble Lords received a letter yesterday from the noble Lord, Lord Grimstone, and the noble Baroness, Lady Berridge, with her Department for Education hat on, about the Bill and the skills strategy. Its second paragraph says:
“Let me reassure you the Bill is not a short cut to addressing skills development for the UK.”
We can see that the Government have really understood some of the deep concerns that have been expressed by your Lordships’ House about this Bill.
The letter makes reference to the Skills and Post-16 Education Bill. I am not going to start its Second Reading now, although we have to look at whether ladening people with more debt is the answer to our skills shortage.
Another sentence in the second last substantive paragraph of this letter says:
“To meet demand across certain regulated professions, we need appropriately qualified professionals from both domestic and overseas sources.”
In relation to Amendments 20 and 21 and my earlier Amendment 25, do the Government accept that, particularly for certain key—basic, you might say—professions central to our health and well-being, such as nurses and doctors as a general category, we should be training at least enough medical professionals to meet our needs? That sentence would suggest that that is not something that the Government accept.
I come briefly to a couple of details about these amendments, particularly Amendment 21, which is quite valuable and perhaps adds more than my Amendment 51. They highlight important issues, one of which is in subsection (d), which asks for a report on the number of the professionals in the group being considered who are female and male. It is important that we highlight gender disparities. There has been a lot of discussion about medical professions, but I have interest in both the farming and the building and engineering areas, where we have huge skills shortages and there are very serious gender disparities in recruitment.
As I listened to the noble Baroness, Lady Finlay, talking about the complexities of modern medical approaches, I was thinking of some of the engineers I have been speaking to recently about the complexity of building ventilation, something that Covid-19 has very much brought into focus and which we clearly need to be thinking a great deal more about. There is a high level of complexity and a high level of skill is required; you have to understand each individual room and each individual climatic environment. It is a very complex area and requires very high levels of skills and training. I think also that when we are thinking about agriculture—we will be talking about this in the Environment Bill and in the agriculture Bill—we are talking about agri-ecological approaches and agriforestry approaches, not just one field of monoculture that you whack the plough over and you whack the sprayer over, but very complex management of ecosystems that requires a very high degree of skills that we simply do not have now. It requires training and may require people being brought in.
I also want to highlight, as the noble Baroness, Lady Hayter, did, retention rates. Of course, nursing is the obvious area, but there is also a big issue in medicine that needs to much more attention. This is a really important amendment. The support for it demonstrates that, as does the Government reaction, but I think we need a much clearer picture of what the Government’s overall approach is. Are they determined to meet the challenge of training enough people for our needs?
Lord Lansley (Con)
My Lords, I am pleased to follow the noble Baroness, Lady Bennett of Manor Castle, again, and to follow up the points she made about skills shortages. We spoke in an earlier debate about the formula in Clause 2 relating to the condition that there is, in effect, unmet demand. I think that at the time I expressed the view that it was unsatisfactory to define that by reference to unreasonable delay and higher charges. This gives us another opportunity to look at that. I think there is merit in the formula in Amendment 21; I just think we may need to develop it a little and make it very clear that in Clause 2—Section 2, as it will be—where a Minister or the appropriate national authority is considering regulations, the condition is that there is unmet demand in that profession. What is meant by that?
The letter that the Minister sent to the Delegated Powers Committee last week said:
“The Government plans to consider various factors in determining ‘unmet demand’, and further detail on our approach is provided in the Government’s policy statement that accompanies the Bill.”
Well, the policy statement, in a very curious paragraph, says:
“Our proposed framework is intended to enable professions to meet the demands placed on them in all parts of the UK without undue cost or delay.”
In that particular context, the cost and delay appear to relate to the cost and delay of the regulators. It is rather strange.
The policy statement goes on to say that where they make these determinations, “Considerations for” what they refer to as “priority professions”—in other words, where there is demand for skills from overseas—
“will include: whether the profession is on the shortage occupation list; vacancy levels; workforce modelling and skills forecasting; and whether there are other ways that professions might address shortages … We will allow for these determinations to evolve”.
Well, some of those factors are indeed those that the noble Baroness has included in Amendment 21—not completely, but I think we are getting there. So I suggest that the route down which we should go on Report is to amend Clause 2 to say “These are the various factors that appropriate national authorities should consider”. It would not be an exhaustive list but of course, in doing so, they should also consult the regulators and the professions in relation to this.
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.
Lord Grimstone of Boscobel (Con)
My Lords, I start by thanking the noble Baronesses, Lady Hayter of Kentish Town and Lady Finlay of Llandaff, the noble Lord, Lord Hunt of Kings Heath, the noble Baroness, Lady Bennett of Manor Castle, and others—and my noble friend Lady Noakes, of course, for tabling these amendments.
I am very conscious that noble Lords have dug very deep in this debate and that my answers, particularly at this time of the evening, will not necessarily do justice to the questions that they have asked. Where that is the case, I shall be writing to noble Lords as soon as possible after this debate.
I particularly thank the noble Lord, Lord Purvis, for reminding me that “never” should never be used by a Minister. I have learnt in my time in your Lordships’ House that it is always wise to take the advice of the noble Lord—so I will do so and, with permission, substitute “hardly ever” for “never” in that instance. I am particularly indebted to him for having invented the “Grimstone rule” in our many debates on the Trade Bill.
Amendment 17 seeks to change the condition set out by Clause 2. Noble Lords do not need me to repeat yet again the purpose of the clause. Demand for the services of a profession includes, but is not necessarily synonymous with, a skill shortage. For example, it could allow consideration of whether consumers can access a service without a long wait or having to pay unreasonably high fees. I completely and utterly endorse the idea that the Bill is not a shortcut to addressing skills development for the UK and does not replace work to boost domestic skills. I endorse the importance that the noble Baroness, Lady Bennett of Manor Castle, attaches to that. The Government have published a Skills for Jobs White Paper and introduced the Skills and Post-16 Education Bill to provide the legislative underpinning to those reforms. Alongside those reforms, it is appropriate that Clause 2 uses a broader condition. The amendment also relates to the implementation of international agreements. However, those powers are already provided by Clause 3. I fear that a reference to them in Clause 2 risks conflating two different issues: trade and skills shortages.
The noble Baroness, Lady Hayter of Kentish Town, has set out the purpose of the report proposed in Amendment 21. In determining whether Clause 2’s condition is met, decisions will be informed by much of the information suggested in that amendment, where available. There is a requirement in Clause 8 of the Bill for regulators to publish information, including the number of individuals who have become entitled to practise the profession. I hope that this satisfies the need to have such information on record. While I value the outcomes that these amendments seek to deliver, they are not necessary. Therefore, I would ask that they be withdrawn or not moved.
I turn to Amendment 20, which the noble Baroness, Lady Hayter of Kentish Town, has explained fully, and I will not repeat that here for brevity. As I have said in relation to earlier questions from noble Lords, I am committed to ensuring that regulators and other interested parties are fully engaged on any regulations brought forward as a consequence of the Bill. I recognise and support the objectives of the amendment. However, there is already engagement planned in determining which professions meet the condition set out in Clause 2. In answer to the specific question the noble Baroness asked, I have already met the Bar Council once, but I am happy to do so again following this debate. I can also confirm to her that the shortage test is granular and is therefore at the level of the speciality, as opposed to some kind of overall definition of medical professions.
Amendment 22, tabled by the noble Baroness, Lady Hayter of Kentish Town, would place requirements on the Government around consultation on international agreements that involve provisions on professional qualifications. These include publishing negotiating objectives, consulting regulators, and reporting and producing impact statements on the professional qualifications provisions and their effects at certain stages. In all negotiations, a key concern for the Government is ensuring the autonomy of regulators within those international agreements and protecting UK standards. I have already spoken about my commitment to engagement, so let me put on record some examples. The Government have recently launched public calls for input on trade negotiations with India, Canada and Mexico; and they engage widely through the trade advisory groups and the BEIS-organised regulator forums.
The Government are committed to a transparent and inclusive trade policy. This includes through consultations on proposed new FTAs. Before negotiations commence, the Government publish economic scoping assessments on the impacts of FTAs. Indeed, we recently published pre-negotiation information notes on India, Mexico and Canada. Before any final deal, impact assessments considering the impact on different sectors and bodies will be published and laid before Parliament prior to ratification, as with the UK-Japan agreement.
In answer to the noble Baroness, Lady Randerson, I say that the Trade Act 2021 provides for the implementation of provisions for the recognition of professional qualifications included in UK trade agreements with countries with which the UK signed agreements as of 31 January 2020. However, it provides for the ability to amend primary legislation in respect of these agreements only if it is retained EU law. Additionally, those powers may expire after five years, whereas it is anticipated that, for example, MRAs formed as part of trade agreements may need to be implemented well beyond this limited period—especially in light of the lengthy timeframes that MRAs typically take to finalise.
In response to my noble friend Lord Lansley’s point about how scrutiny processes should work in relation to these agreements, I have to say that he and I generally see eye to eye on the sequences of these scrutiny arrangements and how they should operate. I understand the interesting point that the noble Lord, Lord Purvis, makes about CRaG coverage. I will look into that and write to him. I believe that the additional requirements set out in this amendment are disproportionate, as their objectives are being delivered already. I therefore hope that the noble Baroness will not press her amendment.
Finally, I turn to Amendments 26 and 28 tabled by the noble Baroness, Lady Hayter of Kentish Town, and my noble friend Lady Noakes. As I have mentioned previously, I strongly support regulator autonomy. However, ensuring the preservation of that regulator autonomy to determine who should practise is best achieved through the agreements themselves. Clause 3 will simply implement those agreements. The limit of the Government’s ambitions on professional qualifications is well illustrated in the recent agreement with the EEA EFTA states. Although ambitious, it respects the key priority of regulatory autonomy to assess applicants and determine who should practise. Under that agreement, the autonomy of regulators and national authorities to set standards and reject applicants who do not meet them is maintained.
For most trade partners, we are more likely to agree mutual recognition agreement frameworks. I am concerned that these amendments could create issues if a regulator wishes to enter into a binding recognition agreement that, for example, required the contracting regulators to recognise specified qualifications. In this circumstance, the amendment tabled by my noble friend Lady Noakes, although no doubt well intentioned, would render implementation through regulations made under Clause 3 impossible. Meanwhile, the amendment tabled by the noble Baroness, Lady Hayter, would result in uncertainty on this point, depending on whether this was construed as undermining regulator independence or autonomy. These amendments could therefore undermine regulator autonomy, rather than preserve it, by restricting what agreements reached by regulators could be implemented under Clause 3. On that basis, and in conclusion, I ask the noble Baronesses not to press their amendments.
The Deputy Chairman of Committees (Lord Lexden) (Con)
I have received one request to speak after the Minister. I call the noble Lord, Lord Fox.
Lord Fox (LD)
I will be very brief. In his response, the Minister said that the calculation for shortages would be granular. Whether it is because it is late or because I am stupid, I do not really understand what that means. Perhaps he can add it to his correspondence list. In that regard, it will help greatly if the letters that the Minister has promised can come before the next day in Committee, where possible, because it will certainly lubricate the process.
Lord Grimstone of Boscobel (Con)
I thank the noble Lord for that point. I think that I can answer the first point immediately because it comes back to the question asked by the noble Baroness, Lady Hayter. She wondered whether it would be at the level of, say, the medical profession rather than at the level of a specialty within that profession, such as anaesthesia. On letters, we will do our best to get them out quickly. It is slightly irritating that we have our next day in Committee as quickly as next Monday, but we will certainly do our best.
Baroness Hayter of Kentish Town (Lab)
I thank the Minister for that. On letters, I know that he is backed by many civil servants and colleagues. He is looking at the whole of my office at the moment—me—so could he not expect us to go to the Library and find things? When he is writing to one person who has asked a question, can he automatically circulate the letter to us because I am afraid otherwise we have no way of seeing it? That would be very kind.
I thank everyone who has contributed to this debate, which I have found really useful. The Minister is not going to like what I say, but there you are. The comments made by the noble Lord, Lord Lansley, and the noble Baroness, Lady Noakes, will help in the redrafting, but I think it is only fair to say to the Minister, nice try, but he can be fairly sure that three groups will be brought back on Report. One will be about the autonomy of regulators. They should not be forced to something. It has to be said somewhere that no trade agreement can underpin them. We can take advice on where it goes.
On the second one on skills, we will want some assurances that other things are going to be done and this will not be the immediate device for filling skills. I think that is in Amendments 20 and 21. We definitely want to look at this again. On skills, I very much welcome the clarification about granular. If I understood what the noble Lord, Lord Patel, said earlier, specialists —be they specialist registrars or consultants or members or fellows of the royal colleges—are awarded the specialisms by the medical royal colleges. I get a nod from across the Committee. The colleges are not the regulator, that is the GMC. I am going to keep out of that and leave it for the specialists. I am sure the Minister will need to discuss that with the medics. It is welcome that he says it will be granular, but then it will not be a regulator which is able to do that because, I think I am right in saying, the medical royal colleges are not regulators in this sense.
The third element was international agreement, which was covered by Amendment 22. Although we may want to look at the detail of that, I think that putting the Grimstone rules into this piece of legislation will be important. For the moment though, having said thank you for the answers but we will be still back, I beg leave to withdraw the amendment.
Professional Qualifications Bill [HL]
Monday 14th June 2021
(3 years, 6 months ago)
Lords ChamberRead Full debate Professional Qualifications Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 2-II Corrected second marshalled list for Committee - (9 Jun 2021)
The Deputy Chairman of Committees (Lord Haskel) (Lab)
My Lords, the Hybrid Sitting of the House will now resume. I ask all Members to respect social distancing. I will call Members to speak in the order listed. During the debate on each group I invite Members, including Members in the Chamber, to email the clerk if they wish to speak after the Minister. I will call Members to speak in order of request. The groupings are binding. A participant who might wish to press an amendment other than the lead amendment in a group to a Division must give notice in debate or by emailing the clerk. Leave should be given to withdraw amendments. When putting the Question, I will collect voices in the Chamber only. If a Member taking part remotely wants their voice accounted for if the Question is put, they must make this clear when speaking on the group. We will now begin.
Clause 3: Implementation of international recognition agreements
Lord Fox (LD)
My Lords, I rise to oppose Clause 3 standing part of the Bill. Judging from the range of people who have co-signed this amendment and those who would have signed it had there been space, this issue is not confined to one set of Benches. I thank the noble Lords, Lord Trees and Lord Hunt of Kings Heath, and the noble Baroness, Lady Noakes, for signing it. I also acknowledge the craft of the noble Lord, Lord Lansley, in drafting Amendment 56; I will obviously allow him to speak for himself, but it may well be another way of thinking about the clause. We have already heard about some of the issues in Clause 3, as your Lordships have sought to make amendments. Of course, we are in Henry VIII territory again, but there are particular concerns about this clause, which I will highlight.
The Minister told us at Second Reading:
“Clause 3 will enable UK Ministers and devolved Administrations to implement the recognition of professional qualifications elements of international agreements.”
He said:
“To be frank, we acknowledge that these powers are broad”.—[Official Report, 25/5/21; col. 910.]
Broad is a good word. In one of his many letters—for which I thank the Minister, as they arrived at five o’clock yesterday evening—he again confirms the importance of the autonomy of regulators, which he has returned to on many occasions.
However, this clause essentially gives the Government of the day the ability to make whatever provision is required to implement any international recognition agreement to which the UK becomes a party. It includes the power to amend primary legislation and retained EU legislation. If regulators were indeed autonomous, what exactly would this clause be implementing? To date, I am aware of no indications from the Minister or his department as to the nature of what changes might be necessary to implement such international agreements. Perhaps he can give us some examples but, in the meantime, we have to assume that nothing is off the table and that the autonomy of the regulators would not be protected in any way if this Bill were passed with this clause in it.
When I first read the Bill, I was already more than somewhat disquieted by this clause but when I read the Delegated Powers Committee report my fears were amplified. I cannot match its authority, but its damning condemnation of the scale of the powers in this clause are really quite important and should be taken into consideration. As the committee said:
“Implementation of such agreements in UK domestic law could raise matters of considerable public interest (for example, were such agreements to give preference to professional qualifications issued in particular countries—perhaps linked to trade deals).”
In the letter to the noble Lord, Lord Lansley, the Minister confirms that the clause will ensure that the Government can meet their international commitments. Would I be right in assuming that this would include mobility frameworks in free trade agreements?
The DPRRC report goes on to highlight the lack of clarity in changes that secondary legislation would make in domestic law, or the scale of change this law might exert on the 160 or so professions in question by international regulation agreements that the committee implicitly linked to trade deals. It then explains that the justification for this delegation is the fact that the nature of future international agreements cannot be known, which we will come back to. Additionally, the DPRRC notes that the Government fail to try to explain why these
“‘necessary changes’ should …be made by Ministerial regulations rather than by Act of Parliament.”
I expect the Minister to respond to this debate by saying that this clause is vital to Her Majesty’s Government’s plans to implement international trade agreements. But this is true only if the Government refuse to bring these agreements to Parliament for approval. How does he justify the taking of power for the Minister and not leaving it to a future Act of Parliament? How does he respond to the DPRRC’s telling conclusion that
“clause 3 represents an inappropriate delegation of power and should be removed from the Bill”?
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.
Lord Davies of Brixton (Lab)
My Lords, I declare an interest as a member of a professional organisation. We have before us the international agreements clause, as we could call it. In their response to the Delegated Powers and Regulatory Reform Committee, the Government said:
“Clause 3 is necessary to ensure that the provisions of international agreements can be implemented domestically and be given effect to by particular regulators.”
I am not sure about the use of “necessary” but that is how they have chosen to phrase it and, taken at face value, it is all well and good. It is established practice for trade agreements to cover a range of issues, including the recognition of professional qualifications—or rather, it would be acceptable if we could trust the Government. The problem, of course, is that we cannot trust this Government, particularly when they seek to assume such wide-ranging powers.
There are two levels of concern. First, and crucially, the driving principle should be the maintenance of the quality of professional standards and the service provided, not any wider considerations of economic benefit. For example, as stated by the General Medical Council:
“Patient safety is, and must remain, the principle consideration when considering whether to facilitate access to the medical register as part of an economic trade agreement.”
In other words, there must be no room for any trade-off of potential broader economic advantages at the price of weakening professional standards. One way of ensuring that the correct professional standards are maintained is the fullest, earliest possible involvement of the relevant UK regulators in the discussions that take place on the trade agreement; that is, before and during the trade discussions. The Minister has protested that it is no part of the Government’s trade policy to compromise our professional standards. It is possible that I have—again, in the Minister’s words—“a suspicious mind”, but the Government’s record suggests otherwise. This is a general issue where some reassurance would be appropriate, whoever is in government.
The second level of concern is that this is not a normal Government. The evidence we have so far is that this Government are desperate and will do almost anything to justify their decision to change our international trade arrangements to get Brexit done. More store is being placed on obtaining trading agreements for their own sake, however bad or vague they might be. The Government are desperate to present the public with so-called achievements of favourable trade agreements.
For example, we are led to believe that a trade deal with Australia will shortly be announced. It will be the first big post-Brexit trade deal that is not simply a rollover of arrangements that the UK enjoyed as an EU member. In practice, Australia is a relatively small export destination for UK goods and services, but that does not matter because it is all about the politics. There is also an ambitious Secretary of State.
How can our professional services depend on their interests being defended in any future trade deal under the terms of this legislation, any more than, for example, the hill farmers of Wales will be defended under the putative agreement with Australia? It is obvious that, whatever the terms, getting the deal is the only thing that matters to the Government.
In addressing this issue, the Government have to be honest that trade agreements are almost invariably about more than trade. It is innocent to believe otherwise. For example, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership is much more about achieving the UK’s Indo-Pacific tilt for foreign policy than an economic project. However, the UK has to accept all the CPTPP rules to become a member if it wants to achieve that strategy.
There are real concerns, which I hope the Minister will address, that professional standards risk being the sacrificial lamb, slaughtered on the altar of political ambition.
Lord Trees (CB) [V]
My Lords, since this is my first contribution to this Committee stage, I thank the Minister for his personal letter to me after Second Reading addressing my concerns about the Bill. He is always courteous and meticulous in responding and I sincerely appreciate that.
However, I still have certain concerns. At Second Reading, I asked two main questions. One was whether the Bill would debar relevant regulators from requiring certain applicants—where no regulator recognition agreement has been set—to sit the UK regulators’ own examination or assessment procedures. I commend the Government and thank the Minister that the Government’s own amendments, brought in with regard to Clause 1, have made it clear that this is not the case.
However, the other question and my concern relating to Clause 3 remain. Why is there a need for a clause in the Bill connecting professional recognition to trade agreements? It leads to a genuine concern that Clause 3 will pressurise regulators into relaxing standards. That concern remains, so I will consider it in some detail
A major purpose of the Bill is to give regulators powers to reach mutual recognition agreements or other methods to enable overseas professionals to register and practise in the UK. The Royal College of Veterinary Surgeons—and I declare my interest as a fellow and former president—and the healthcare professions, particularly the General Medical Council, as my noble friend Lord Patel has mentioned, already have these powers, and one wonders how many of the 50 or so other regulators in the UK do not have them. A question I raised at Second Reading still stands: why not give such regulators the powers they currently lack and leave it at that? Why link regulatory recognition to international agreements?
If we look at the precise wording of Clause 3—and I have not added any words, just subtracted some—Clause 3(1) states:
“The appropriate national authority may by regulations make … provision … for … implementing any international recognition agreement to which the United Kingdom is a party.”
Clause 3(4) continues:
“An ‘international recognition agreement’ means so much of any international agreement … for … the recognition of overseas qualifications or overseas experience for … determining whether individuals are entitled to practise in the United Kingdom”.
I am not a lawyer, but this translates to me as meaning that the Government can implement an agreement to recognise whether individuals can practise in the UK. There is no mention in Clause 3 of involvement or consultation, let alone agreement, with the relevant regulatory authority in the UK. That is my amateur interpretation but the noble Baroness, Lady Noakes—I hope I am not pre-empting her—put it more bluntly at Second Reading:
“The dodgy bit of the Bill is Clause 3, which allows the Government to override existing approaches and procedures for the recognition of non-UK qualifications if they have been covered in a trade treaty.”—[Official Report, 25/5/21; col. 931.]
However, as we have heard already from the noble Lord, Lord Fox, and others, that is not all. The Delegated Powers and Regulatory Reform Committee, in its report on the Bill, had plenty to say about Clause 3. The committee’s concerns are different from mine but are none the less serious and pertinent. Its report notes that Clause 3 gives Ministers broad powers by regulations, including Henry VIII powers to amend primary legislation, without conditions. The report considers and rejects the justifications for this in the Explanatory Memorandum of the Bill and concludes that
“clause 3 represents an inappropriate delegation of power and should be removed from the Bill.”
It seems to me that Clause 3 adds nothing to the reasonable and positive elements of the Bill to enable regulators to have greater ability to recognise, by the means they so determine, overseas applicants for registration to practise in the UK or to ensure that the regulators have such processes and that they communicate them publicly to facilitate overseas applications.
There are serious concerns about the potential that Clause 3 gives the Government to determine or influence the process of professional recognition in the UK and serious concerns from the DPRR Committee about the powers this clause gives the Government to amend primary legislation. I argue that, collectively, these facts support the view that Clause 3 should not stand part of the Bill, which I support.
Baroness Bennett of Manor Castle (GP)
My Lords, I want to put myself on the record as one of those who would have signed the noble Lord’s amendment, had there been space. I again draw attention to the way in which our systems, with the limit of four signatures, no longer allow a full representation of the range of views in your Lordships’ House. I say to the noble Lord, Lord Fox, that should we get to a vote at a later stage, he has the support of the Green group in this matter of Clause 3.
This morning, in my continuing efforts to spread news about what happens in your Lordships’ House to the general public, I wrote what I believe is the first non-specialist press article on the Professional Qualifications Bill, in the Yorkshire Bylines. In it, I described the Bill collectively as a “massive power grab” by the Government, and I believe that Clause 3 is the key part of that power grab, as a number of noble Lords have already indicated.
Baroness Noakes (Con)
My Lords, in last week’s Committee, we emphasised the need for the Bill, and not just the Government’s fine words, to recognise the autonomy of the regulated professions. If the Government really do intend to respect the independence of the regulated professions, it is quite difficult to see why Clause 3 is required.
If the Government sign a trade treaty that includes the recognition of qualifications, and if they do respect the autonomy of the professions, it is difficult to see why we need Clause 3 in addition to Clause 4. Many regulators already have powers to enter into recognition agreements for overseas regulated professions, and if they do not have them, Clause 4 is there to empower them to do so. As such, they either have the powers already or can acquire them by using an order under Clause 4, which seems to me to make Clause 3 redundant if—and only if—the Government do actually mean what they have been trying to tell us: that they respect the autonomy of the professions.
Put another way, there is no evidence before the House that Clause 3 is needed. When faced with an unnecessary clause, the right thing to do is remove it. The Delegated Powers and Regulatory Reform Committee, which other noble Lords have referred to, was highly critical of the Government’s taking of Henry VIII powers in the Bill, particularly in relation to Clause 3. There is very good reason for the Committee to agree with the DPRRC that Clause 3 should not stand part of the Bill.
I looked very carefully at my noble friend Lord Lansley’s Amendment 56 in this group, but I am not convinced that the existing distinction between what is in primary and what is in secondary legislation is sound. It means accepting that the EU’s use of regulations versus directives, and the use of statutory instruments to implement the EU law coming into our law as we left the EU, is a good basis going forward for determining the degree of parliamentary scrutiny that is required for any changes. Because of this, I cannot support my noble friend’s amendment.
Lord Hunt of Kings Heath (Lab)
As we are starting the second day of Committee, I declare my interest again as a member of the GMC board, although clearly, I am not speaking on its behalf.
I put my name to the noble Lord’s clause stand part Motion, and I was happy to do so, although I acknowledge that the noble Lord, Lord Lansley, has given a different and interesting perspective. Equally, I remind noble Lords that I have a sunset clause that we will debate next week. All of us are trying to get to grips with the same problem. The Minister brought some very welcome amendments last week and made some very welcome remarks about the Government’s wish to protect the autonomy of regulators. The issue is that, on any reading of the Bill, Clause 3 would seem to be able to override those protections. This is where we get to the heart of the Bill.
My noble friend Lord Davies was absolutely right: we have seen how the farmers are being dealt with over trade agreements, and it is pretty clear that the Government are willing to ditch a great deal in order to get a trade agreement. That is why it is no good having legislation that does not protect the professional autonomy of regulators. Does the Minister accept that, notwithstanding the warm words he has used, in the event of a trade agreement it will be perfectly possible to use this clause to override any of the protections in Clause 1?
If, as I think the Minister has to say, it will be possible, the question posed by noble Lords and the noble Baroness, Lady Noakes, then comes back: why do we have to have this clause at all? If we do have to have it, why is there not some protection within it that says that, notwithstanding the trade agreement, it cannot override the protection given in Clause 1? One way or another, before the Bill leaves your Lordships’ House, we have to tackle this head on.
Baroness Fraser of Craigmaddie (Con)
My Lords, I come to this with a slightly different perspective. Many Members of this House have contributed to the Committee stage of the debate from a ministerial, government or legislative perspective, but I would like to look at it from what my noble friend Lady Noakes might say is the consumer or regulator perspective.
In the debates on the Bill, many noble Lords have acknowledged that we are dealing with a particularly complex landscape. We have had contributions from specialist clinicians, accountants and others, but we have not heard from airline pilots, driving instructors, slaughterers or pig farmers, who are included in this legislation. The list of professions is a given. As the noble Lord, Lord Fox, acknowledged, Clause 3 deals with hypotheticals—with future agreements about which we do not yet know, and on the terms of which we can only hypothesise. My noble friend Lord Lansley pointed out how important the mobility of professionals is and will increasingly become in this complex landscape. Many of the regulators of these numerous and diverse professions are governed by pre-existing legislative frameworks. I cannot see how it would be possible to deliver in the Bill the necessary future changes which all these individual professions might desire.
At every opportunity, my noble friend the Minister has rightly stressed the autonomy and independence of the regulators. Indeed, he has described this as running,
“like a golden thread throughout the whole Bill.”—[Official Report, 9/6/21; col. 1453.]
I do not believe that Clause 3 alters this in any way. Many regulators already have robust processes for overseas applicants who wish to join the UK register. They are able to judge the equivalence of qualifications and have already built up considerable experience and relationships with overseas regulators. These regulators would be in an excellent position to advise the Government if and when they felt it necessary to bring forward further secondary legislation. I have spoken to the Health and Care Professions Council, which feels that it is one that could help the Government to shape and hone this secondary legislation to ensure that it met its intended purpose and did not conflict with existing standards, but enhanced, protected and maintained patient safety priorities. It would be reassuring if the Minister could set out how he envisages that a formal process of consultation and engagement would work.
Last week, when he was talking about powers under Clause 3, the Minister referenced European trade forums and ad hoc consultations with interested parties. BEIS also organises regulator forums which provide updates on the negotiations and terms of trade deals. Some regulators—the Health and Care Professions Council is one, and there may be others; I am afraid that I do not know—are not members of either the ETAG or the BEIS regulator forum. There may be others of which I am not aware. Can the Minister give regulators such as these some confidence as to how these powers could be used in future by successive Governments?
Specifically, I understand that the power in Clause 3 is limited to the professional qualification elements of international agreements. In his response to the Delegated Powers and Regulatory Reform Committee’s third report, the Minister gave the example of the UK’s original offer to the EU as the furthest the Government would or could go to require regulators
“to put in place processes to consider applications … from professionals in the EU.”
This is key. Clause 3 ensures that processes are put in place. There should be a clearly outlined route to registration. I cannot find any obligation for a regulator to recognise overseas professionals if they are not satisfied that all their own independently set and required standards have been met. However, as I have already said, experts and regulators are keen to help and work with the Government to provide the necessary expertise and to advise on all aspects of professional regulation equivalence of overseas qualifications which may be required in preparation for and during trade negotiations.
Some have therefore expressed concerns—which have been shared by other Members of this House—that Clause 3 could lead to a situation in which this expertise would be bypassed. Can the Minister enable us to understand further the impact which the provisions in Clause 3 are likely to have? Can he offer any further reassurances as to the context in which these Clause 3 provisions would be used and how the Government intend to work with regulators to inform these trade negotiations on recognition of qualifications?
Baroness McIntosh of Pickering (Con)
My Lords, I commend the noble Lord, Lord Fox, on securing this Clause 3 stand part debate. I associate myself with everything that he, my noble friend Lady Noakes and the noble Lords, Lord Davies of Brixton and Lord Hunt, said.
I repeat that I am a non-practising member of the Faculty of Advocates, and I should probably state that I am an associate fellow of the British Veterinary Association.
Many believe that, while Clause 3 is useful, it is limited to international agreements—treaties to which the UK state is a party. If this is the case, when he sums up the debate, can my noble friend confirm that the power would not be available to make or amend legislation to give effect to a mutual recognition agreement negotiated autonomously at the level of professional regulators? In the view of the British Bar Council, this is a deficiency in the Bill and another reason why Clause 3 might not fit in here.
I particularly associate myself with the comments made by the noble Lord, Lord Hunt, and others, about farmers. As my noble friend will be only too aware, I have mentioned this just about every time we have debated either the Trade Act—as it now is—or individual trade agreements: there is no parity of approach between, for example, our farmers and what they might expect to get from the Australian deal, and the Australian farmers and wine producers and what they might expect. I should be delighted if the doors to Scotch whisky were to be opened in a reciprocal arrangement, but I will not hold my breath.
Where is the symmetry in the approach adopted under Clause 3? In our approach to regulations under this recognition of professional qualifications and in individual trade deals to which I have just referred, we seem to be rushing to accommodate members of those professions who wish to come here. As others, notably the Bar Council and the Law Society of England and Wales and the Law Society of Scotland have pointed out, there does not seem to be any support for our professionals who go over there. My noble friend was very clear that there was no reciprocity of agreement with the European Union. Am I being completely ignorant? Does the agreement with the EU also cover the agreement with the EEA and Switzerland? I am at a loss to understand why we are not seeking to reach an agreement on the basis of reciprocity of professional qualifications, not just with the EU but with the EEA and Switzerland.
I would like to press my noble friend the Minister further, and more specifically for a response to the amendments I tabled on day one of this Bill. I asked specifically for provision for consultation with the devolved Administrations and the individual regulators in them. My noble friend said—I am paraphrasing—“There will be many consultations”, so what form will those consultations take? What is the specific mechanism and at what stage will they take place? I do not think it is fair that the devolved Administrations should be presented with a fait accompli; they should be consulted at the earliest possible stage. The noble Lord, Lord Foulkes, tabled an amendment that went further, saying that the consent of the devolved Administrations should be sought. That is a moot point, to which I am sure we can return at later stages.
I conclude by saying that my greatest difficulty with Clause 3 is understanding the policy that lies behind it. Doing my homework, preparing for the Bill this afternoon, I found that, for once, the Government have produced an impact assessment. I know that will please my noble friends Lady Noakes and Lady Neville-Rolfe, who is not here today, as we always look to the impact assessment. That is commendable. It is something to which we should refer frequently and in great depth.
In paragraph 36, on page 11, the impact assessment refers to:
“The preferred option, ‘Provide powers in the Bill to enable the government to implement the RPQ provisions of international agreements and support regulators in making agreements with their international counterparts on the recognition of professional qualifications,’ … These powers will enable the UK government to make regulations to achieve its policy aims, including the amendment of primary legislation where necessary.”
Slightly before that, on page 8, the policy objectives are set out. I will not read them all out, but one is to
“end the interim system which gives preference to EEA and Swiss professional qualifications.”
I hope my noble friend will put my mind at rest, but in the following policy objectives, I do not see anything about what the benefits to our professionals will be, whether they are pig farmers or advocates, when trying to ply their profession or establish their professional service in another jurisdiction. That is another reason it is extremely difficult to understand what the policy is behind Clause 3 and what reciprocal arrangements the Government are seeking. I hope my noble friend will set these out when he sums up this little debate.
Lord Purvis of Tweed (LD) [V]
My Lords, I am grateful to my noble friend Lord Fox for bringing this debate forward in such a cross-party manner. I was struck by the comments of the noble Baroness, Lady Noakes, who has been consistent in this area. Her argument and that of my noble friend Lord Fox has been supported by the Delegated Powers and Regulatory Reform Committee report. In paragraph 32, the committee cites the Constitution Committee, saying that both are of the view that the Government’s previous attempt at legislation in the Private International Law (Implementation of Agreements) Bill,
“which allowed Ministers to implement a category of international agreements by way of statutory instrument, represented an inappropriate delegation of power.”
I agree. In that Bill, we attempted to make the Government see sense. To some extent, they did, because the powers under it, which are drafted almost exactly like those in this Bill, had an additional clause, with a sunset. The powers under that Bill for international agreements can last for only five years after their signing. Perhaps this is the point the noble Lord, Lord Lansley, made: in recognition of that, if changes mean that agreements need to be updated or go beyond the scope of that Bill, new legislation should be brought forward. I would be interested to know from the Minister why the previous mechanisms for implementing a trade agreement on certain aspects include a sunset clause and this one does not.
Fundamentally, this is about trust. Because of the concerns of other committees and the debates we had on the Trade Bill, we consistently and repeatedly raised concerns about the use of Henry VIII powers especially but also about secondary legislation for implementing trade agreements or parts of them. The Minister and his predecessor, the noble Baroness, Lady Fairhead, tried to reassure us by repeating the statement that Liam Fox, when he was the Secretary of State for International Trade, gave in the House of Commons on 16 July 2018. When it came to scrutiny of trade agreements, he said that
“the Government will bring forward a bespoke piece of primary legislation when required for each new future trade agreement that requires changes to legislation and where there are no existing powers.”—[Official Report, Commons, 16/7/18; col. 42.]
Clause 3 and the Henry VIII powers in Clause 15 are a direct contradiction of that. This Bill seeks to use broad Henry VIII powers where regulations
“contain provision amending, repealing or revoking primary legislation”
when it comes to implementing a trade agreement. I think I can say collectively that we respect the Minister and take his word at the Dispatch Box, but why are the Government now contradicting the commitment that Dr Fox gave as Secretary of State in 2018?
I share some of the concerns of the noble Baroness, Lady Noakes, about Clause 3. It provides even broader powers than those in Clause 1. Clause 3 does not limit itself to Henry VIII powers in legislation connected with regulators. It relates to any regulations under the Henry VIII power concerning individuals
“entitled to practise a regulated profession.”
These regulations are not limited to the regulators themselves. The breadth of the powers in Clause 3 is breathtaking. In the letter the Minister sent to the noble Lord, Lord Lansley, he simply said that he would consider the need for impact assessment on regulatory independence when implementing an international recognition agreement. That is not good enough. This should be the default, and it should be the default that if there are requirements to revoke, amend or repeal legislation, it should be done in primary legislation.
I was grateful for the Minister’s letter and, like my noble friend Lord Fox, grateful for the letters he sent to us yesterday. I was grateful to the Minister for confirming what I said in the previous day of Committee—that CRaG would not necessarily be a default process for these agreements. Given that the implementing of what could be sub-agreements would not go through CRaG, this is of even more concern. The Minister said in his letter—and mentioned briefly at Second Reading—that if a mutual recognition agreement was not a treaty in its own right and did not amend the original treaty, there would be no need to go through the CRaG process. He said that this was the appropriate result, because Parliament would have had the opportunity to scrutinise the original treaty and the regulations made to implement the MRA.
The point is that these new aspects are potentially extremely wide and could impact massively on who is fit to practise in the UK. If Parliament would have no ability to extend scrutiny of the Henry VIII powers, even under the affirmative aspect—on which the noble Baroness, Lady Bloomfield, said it was not the Government’s intention to bring forward consultation, when she spoke to the noble Baroness, Lady Hayter—or have the same level of scrutiny on either an affirmative or a negative instrument, as it would under CRaG, this would not be sufficient.
Baroness Hayter of Kentish Town (Lab)
My Lords, as we have heard, Clause 3 gives powers to Ministers to do all sorts of things, but particularly over professional regulators to implement what the Government have negotiated with a third country as part of a trade deal. We are not talking about participation in negotiations on a trade deal, but when a trade deal is done, Clause 3 would give Ministers powers to make such provision as they think necessary to implement any international recognition agreement.
Basically, it states that, where the Government have agreed that opening up a particular UK profession to people qualified in that third country, Ministers can tell a supposedly independent regulator—if I understood what the Minister said earlier—simply to put in place a process for assessing any applicants. However, it goes much further than that, as the noble Lord, Lord Purvis, and others have said. It could even be to accept such applications, not simply to have process by which they would consider applications. Why is this power needed? Either the regulator already has the power to have such a process to consider applications so that it can judge the qualifications, experience, fitness to practice and general bone fides of applicants, in which case this power is not needed, or it lacks the power and does not want it because if it wanted such a process, it would have put it in place.
Not everyone opened their emails at 5 pm yesterday, but I did, and I had a letter from the Minister. One of the questions we have been asking—and which he helpfully promised to answer—was how many regulators are we discussing anyway, under the 60 regulators who do not already have the powers to accept or consider applicants from third countries to practice here. He named three, meaning that we may be doing this for just three regulators. One is the Health and Safety Executive, another the Teaching Regulation Authority, and the third is the Security Industry Authority, which I think regulates bouncers. Someone who knows about this can tell me if I got that right—I see that the Minister confirms it. So this Bill will enable a regulator which regulates our bouncers to take applicants from third countries with which we have done a trade deal, so that their bouncers can come and operate at our nightclubs, which are closed at the moment because of Covid. I thought I should share with colleagues that we are possibly talking about three regulators who do not have the power, and that one probably does not want it anyway. If they can already consider applicants, then this seems to go further than saying that you need a process in place, and seems possibly to say, “You will accept these applicants,” whom I am sure were already regulated in their own countries. Nevertheless, it seems to require regulators to accept them, not just to put a process in place.
My noble friend Lord Hunt asked why should a Minister be able to override what a statutory regulator—a supposedly autonomous regulator set up in law to protect the public and maintain standards—and establish a new route against its wishes? If the regulator is happy, everything is hunky-dory, and we do not need this power anyway. The Government have said that Clause 3 is a more proportionate method to implement mutual recognition agreements, but they have failed to tell us which trade deals being considered will have a mutual recognition agreement and why regulator-to-regulator side agreements are not satisfactory. The Minister’s letter—for those of your Lordships who did not open their emails at 5 pm yesterday, and incidentally I am impressed that the Minister was there to press send at that time—to the noble Baroness, Lady Randerson, says that if an MRA is agreed and approved by the trade agreement,
“it may need to be implemented in law”.
However, the Minister in that letter gave no example of why it would need to be implemented in law, or what type of MRA that is. Perhaps he can now spell out the circumstances in which an MRA would need to be implemented in law in the way envisaged in Clause 3.
I am anyway still bemused about why—given that the Government have said that, in their negotiations with other countries, it is for the autonomous regulator to determine who practises a profession—a Minister might need to instruct a regulator in law to set up a route for negotiations and recognition.
As the noble Baroness, Lady Noakes, and others said, and as the Delegated Powers Committee wrote, the Government have failed to satisfy us that Clause 3 is needed at all, and—as Amendment 56 tabled by the noble Lord, Lord Lansley, emphasises—have failed to explain why, should something along these lines even be needed, it should enable primary legislation to be implemented by statutory instrument. Clause 3 states that the Government—or any of the devolved Governments—can use regulations to implement any international recognition agreement, which means that they could use it, as others have said, to authorise Brazilian vets, Japanese bouncers or Australian teachers to work here without our regulators being the ones to decide that. It certainly seems to go beyond simply having a process in place, which is the point on which I wish to press the Minister. Earlier he said that it was all about making sure there is a process in place. If I have not understood correctly, I am looking forward to the Minister’s explanation of why this is needed.
The Minister of State, Department for Business, Energy and Industrial Strategy and Department for International Trade (Lord Grimstone of Boscobel) (Con)
My Lords, I thank my noble friend Lord Lansley for his amendment to Clause 13, which limits the regulation-making power of Clause 3, and I note that the noble Lord, Lord Hunt of Kings Heath, intends to oppose Clause 13 standing part of the Bill and that the noble Lords, Lord Fox, Lord Trees and Lord Hunt of Kings Heath, and my noble friend Lady Noakes intend to oppose that Clause 3 stand part of the Bill. I hope to provide noble Lords with the assurances they are seeking, but I have listened carefully to the points made during the debate and know that I may have an uphill task ahead of me on some of these matters. I will of course be reflecting on that after this debate.
Before I turn to my noble friend Lord Lansley’s amendments to Clause 13, it would be helpful to consider them in the context of Clause 3. I will therefore outline the rationale for Clause 3. Before I do that, I apologise to the noble Lord, Lord Patel, if letters to him have been misdirected—although he may be grateful not to have received them at 5 o’clock yesterday afternoon—and I will of course ensure that that does not happen again. In answer to the noble Lord, Lord Purvis of Tweed, I will of course research what previous Trade Secretaries have said on matters germane to the Bill.
Let me again outline the rationale for Clause 3. I think it is common ground that international agreements on professional qualifications can be beneficial in reducing non-tariff barriers to trade by supporting UK trade in services and helping professionals to provide services abroad. I still believe that Clause 3 is important to ensure that the UK can meet its international obligations by allowing national authorities to implement those parts of international agreements that relate to professional qualifications.
As I have described before, what is implemented under this power will be subject to the outcome of negotiations. It is the case that for many trade partners, we are likely to agree the standard model of recognition of professional qualifications: a mutual recognition agreement framework. Perhaps in answer to my noble friend Lady McIntosh’s fears about reciprocity, I think the clue is in the name: these are mutual recognition agreements. Under these frameworks, the parties to the deal encourage their regulators to negotiate and agree recognition arrangements, but—and this is the key point—with no obligation that they do. It is up to the regulators to decide whether to agree a recognition agreement and to propose its terms. This takes time. Sometimes, once a mutual recognition agreement is agreed and approved under the FTA’s governance processes, it can be annexed to the FTA itself, and then it may require implementation by the Government, often—this is the reality—years after the FTA was actually agreed. That is one of the answers to the noble Lord, Lord Purvis of Tweed, as to why sunset clauses do not really work in those circumstances.
With other select trade partners, the Government may look to agree more ambitious provisions for the recognition of professional qualifications. An example of this is the excellent deal recently agreed with the EEA EFTA states, Norway, Iceland and Liechtenstein, and I am happy to use it as an example, as requested the noble Lord, Lord Fox. This agreement includes a framework that ensures that there will be a route to recognition for UK professional qualifications in the EEA EFTA states and vice versa, but, as I have stressed previously, this is a route to recognition, it is not an obligation to recognise and it does not affect the ability of national authorities or regulators to set and maintain professional standards.
The Deputy Chairman of Committees (Lord Lexden) (Con)
My Lords, I have received requests to speak after the Minister from the noble Baroness, Lady Noakes, and the noble Lords, Lord Hunt of Kings Heath, Lord Purvis of Tweed and Lord Lansley.
Baroness Noakes (Con)
I will raise just two topics. The first is trust; the Minister regretted that the Committee did not trust the Government on this. We have to remember that when very wide legislation is placed on the statute book, it can be used by a later Government to its full extent, whatever the current Government intend—in this instance, in relation to regulator autonomy. We have plenty of examples of that; the most glaring at the moment is the legislation being used to cover the hundreds of statutory instruments on coronavirus restrictions. Very clear statements were made to both Houses of Parliament when that legislation went through about the circumstances in which it would be used. That has been completely ignored to cover the biggest deprivation of civil liberties in peacetime, for circumstances that the legislation was never intended to be used. The Committee is entitled to be entirely sceptical about very broad expressions in statute.
My second point relates to letters. I received one letter, yesterday at 5 pm, so I have not seen many of the letters which have been referred to. It is extremely difficult, when letters come out at 5 pm on a Sunday and we start the next Committee day the following working day, to have any chance of tracking down whether any letters have been issued. As far as I understand it, the Library does not operate in real time and there is no real-time way to interrogate how things are laid there—even if these letters were laid in the Library, which I have no idea about.
The reason Ministers write letters in Committee is that they have failed adequately to deal with an issue at that stage. When the Minister handled the last group of amendments last Wednesday, he said that he would answer it very briefly, as it was getting late, and would write. Whomever he addresses the letter to, when he writes, he is writing to the whole Committee, and it is only right and proper—and this always used to be the case—that all other Members taking part in the Committee get a copy of it. It is additionally laid in the Library so that the rest of the House has access to it.
We have lost sight of how to conduct our business properly—partly because hybrid proceedings make it more difficult for us to run things down completely in Committee, but there are always cases where you cannot run things down in Committee and have to rely on subsequent correspondence. The way the Minister’s civil servants are operating this letter-writing procedure is depriving the Committee of its ability to operate effectively.
Lord Grimstone of Boscobel (Con)
I thank my noble friend for those two comments and the spirit in which they are offered. I realise that my point about trust is not a personal matter in relation to me but the more general point my noble friend makes. On letters—I will not dwell on this too long—I think the short gap between the two stages of this Committee, and this Committee being on a Monday, was a particularly difficult practical point. The officials have literally been working day and night on this; that is why not all the letters were available until the end of Sunday. We copied all of them to Front-Bench spokesmen, but I take my noble friend’s point that in future, as well as putting them in the Library, it would be convenient for noble Lords if letters were copied to them—albeit sometimes, when there is such a restricted period between the two days of Committee, they may arrive later than any of us would wish.
Lord Hunt of Kings Heath (Lab)
My Lords, I am grateful to the Minister for his response. He said he would consider this between now and Report, which I am very grateful for. He then referred to Clause 4, making the point that it will be useful in encouraging regulators to make mutual recognition agreements, but that there will be no obligation and it will be up to the regulators to agree. However, we are debating Clause 3, and our problem is its open-ended nature, which on my reading means that Ministers can simply, through regulations, tell regulators what to do. I will not go into the issue of trust again, but does the Minister recognise that there is a problem with Clause 3? Is he prepared to look at its wording to make it clear that it cannot be used to override the protections he has already put into the Bill through Clause 1?
Lord Grimstone of Boscobel (Con)
I thank the noble Lord for that point. Of course, anyone who listened to this debate could not but hear what noble Lords have said on this. As I said, I will reflect on this matter.
Lord Purvis of Tweed (LD) [V]
My Lords, I am grateful for the Minister’s reply to the noble Lord, Lord Hunt, which I will come to in a moment. He was extremely dismissive of legislative powers to implement international trade agreements having sunset clauses. He has just taken through the Trade Act, which has exactly those clauses in it. The power there is a five-year sunset, and a regulation can extend it to no more than a further five years. This is to protect exactly that kind of scrutiny of these changing agreements, so that Parliament, if there are changes in that period, has an opportunity to scrutinise them again. All I was asking for was some form of comparable treatment in this Bill, which he is taking through, to the one he has just taken through on the rollover agreements. I cannot for the life of me think why he championed them in the latter and now dismisses them in the former.
Lord Grimstone of Boscobel (Con)
I thank the noble Lord for that comment. My belief is that this Bill applies only to our famous 50 regulators and the 160 professions, and that it is those regulators that are governed by law, but I will write to the noble Lord and send a copy to all Members of the Committee to confirm this.
On the point about sunset clauses, the trade agreements covered in the Trade Act were all rollover agreements, many of which will be replaced in due course by other agreements. The noble Lord will know that some of that process has started already and that what we are talking about here is mutual recognition agreements rather than rollover agreements in their entirety.
Lord Lansley (Con)
My Lords, I am grateful to my noble friend the Minister for his response to my Amendment 56. If I understand it correctly, he attributes to the professions legislation considerable complexity; for example, the supplementary delegated powers memorandum that the department submitted referenced the Dentists Act—a mix of primary legislation and secondary legislation. If this House accepted that there are practical reasons for providing a power of this kind to enable the amendment of both primary and secondary legislation, will my noble friend say that the Government will not use it as a precedent in relation to future legislation or future arrangements for the approval of trade agreements and other international agreements? There is a principle here: in future, as these trade agreements come through, where they impact on primary legislation, they should be implemented through primary legislation. Does my noble friend accept that this will not be cited as a precedent?
Lord Grimstone of Boscobel (Con)
That is certainly a helpful suggestion put forward by my noble friend. I will reflect on it.
Lord Fox (LD)
My Lords, this has been a very good debate—the Minister has clearly listened and responded strongly. We have certainly listened to his response.
First, I take issue with the noble Baroness, Lady Hayter, who appears to have redefined the phrase “being bounced by the Government”. She was looking at me when she referred to door security, at which I take umbrage.
On the subject of letters—we already have more in the post—I point out that the timetable is the Government’s timetable. If it is short, it is clearly the Whips with whom the Minister needs to have a word rather than us suffering. I support the point made by the noble Baroness, Lady Noakes, about making this available to all of us.
The notion that we all want to see people able to work in different territories as a result of this is absolutely true. The Minister will know that I have spent a great deal of my time proposing amendments to various Bills in order to put back mobility frameworks that were being removed in another way, so my support is there. What we have heard in this debate is a compelling argument about Clause 3. The noble Lord, Lord Patel, was right that this is the key clause of the Bill.
The noble Lord, Lord Trees, asked the right question: why is there a need for Clause 3? The Minister attempted to answer that and, in doing so, used the example of the EFTA agreement. In that agreement, as he said, it is agreed to have a route to recognition. This confirms the suspicion of the noble Baroness, Lady Fraser, whom I congratulate on making the only case for supporting the Government that we have heard so far—although even that contained some pretty hard questions, which I hope the Minister will be able to answer, probably in another letter.
The point is that the powers in Clause 3 are constrained by the wording of the FTA. We do not know what the next FTA or the FTA after that will say, but the only constraint comes from the words in that FTA. The powers in the clause are in effect unlimited, as the noble Lord, Lord Hunt, pointed out. That is the concern. Before we talk about Amendment 56 and the like, we must establish the answer to the question asked by the noble Lord, Lord Trees: why do we need this clause. What is it that we need? Frankly, it is a nice-to-have power for this Government but, as the noble Baroness, Lady Noakes, pointed out, it could very well become a nasty-to-have power in future when other people may take it and use it in different ways.
The Minister is right to identify that there is more work to be done. He reflected that it is an uphill task. Well, there is often more than one way to get to the summit. Straight up, rather than taking a more considered and circuitous path, may be the best way to get the elements of Clause 3 that the Minister considers essential there. At the moment, the sledgehammer of this clause, as we have seen, will not be acceptable.
The Deputy Chairman of Committees (Lord Haskel) (Lab)
My Lords, we now come to the group consisting of Amendment 30. Anyone wishing to press this amendment to a Division must make that clear in debate.
Amendment 30
Baroness Noakes
“(1A) Regulations made under subsection (1) may not require a regulator of a regulated profession to enter into a regulator recognition agreement.”Member’s explanatory statement
This is a probing amendment in connection with the extent of the rule making power.
Baroness Noakes (Con)
My Lords, Amendment 30 is a probing amendment on the abiding theme in our debates on this Bill, namely regulator autonomy.
Clause 4(1) says that regulations can be made
“for the purpose of, or in connection with, authorising a regulator … to enter into regulator recognition agreements.”
That seems pretty straightforward. Authorising a regulator to enter into a recognition agreement should not involve any element of compulsion, but I have learned to be wary of wide regulation-making powers.
My Amendment 30 seeks to make it clear that Clause 4 cannot be used to compel regulators to enter into recognition agreements. With this probing amendment, I am asking one simple question: are there any circumstances in which the power in Clause 4 could be used to force a regulator to enter into any recognition agreements?
Since tabling my amendment, I have seen the Government’s response of 3 June to the Delegated Powers and Regulatory Reform Committee, where they state that the power cannot
“be used to provide regulators with the ability to enter into regulator recognition agreements where they lack sufficient abilities”.
If my noble friend the Minister confirms today from the Dispatch Box that nothing in Clause 4 could compel a regulator to do anything it does not want to do, we will be able to dispense with my amendment fairly straightforwardly.
Baroness Randerson (LD)
My Lords, I am very pleased to speak in support of this amendment in the name of the noble Baroness, Lady Noakes. This issue is the crux of the independence of regulators. The situation is that not all regulators are equal: they do not all have the same legal powers; they do not all have the same clout; they do not all have the same capacity. For example, in the years between 2007 and 2016, the Nursing and Midwifery Council issued 46,257 decisions on international regulation, whereas the General Chiropractic Council issued 29. We are obviously not talking about a group of organisations that are equal in terms of their ability to withstand not just the letter of the law, but the thrust of government policy. Pressure from the Government can be a very powerful thing for an organisation. We also have to take into account the fact that some of the countries with which these international trade agreements will be signed will have regulators that are only now properly developing. Not only are all our regulators not equal, but in other countries, not all regulators are equal.
I draw the Minister’s attention to a set of statements in the impact assessment. He has often emphasised the independence of regulators, so can he therefore explain the contrast between two of its paragraphs? Paragraph 111 of the impact assessment says:
“The Bill contains a power to enable regulators to negotiate and agree Recognition Arrangements (RAs) with their overseas counterparts. The Bill does not require the negotiation of RAs”.
In paragraph 118, however, it says:
“The Bill contains a power to make regulations to implement the recognition of professional qualifications (RPQ) components of international agreements. These regulations could include the ability to bind regulators to implement the RPQ chapters of IAs as appropriate.”
Paragraph 111 says that they cannot be bound, whereas Paragraph 118 says, just as the noble Baroness, Lady Noakes, suggested, that regulations might trespass on the independence of regulators. I simply ask the Minister for clarification.
In his letter to me this weekend which, in the spirit of proceedings here, I read just after midnight, the Minister said that MRAs
“would not place obligations on regulators and instead encourage them to develop MRAs.”
Which is it? Are regulators to be truly and, in a wholesale way, independent and not subject to pressure, either direct or indirect, or are they to have their wings clipped potentially by regulations?
This amendment clarifies beyond doubt what I believe, from the Minister’s previous statements, is his favoured interpretation: that regulators would always be independent.
Lord Davies of Brixton (Lab)
My Lords, I crave the indulgence of the House; I hide behind the excuse of being a beginner. I put my name down to this amendment because it is one of those probing amendments about which you think, “Why not? What is the possible objection?” I really have no more to add to what the noble Baroness, Lady Noakes, said in moving the amendment. There is a certain amount of pleasure in this: I suspect that I will rarely agree with the noble Baroness, but on this occasion I do, so I am more than happy to reinforce the points she made.
Lord Purvis of Tweed (LD) [V]
My Lords, in the Minister’s letter to the noble Baroness, Lady Hayter, yesterday—which I hope has been circulated to all those who have been participating in the Committee, as the noble Baroness, Lady Noakes, indicated—the Minister cited the reason for moving away from what he termed the “prescriptive and unpopular” EU-derived system of mutual recognition across members. The next sentence says:
“But it did at least give all regulators [Inaudible] a means to establish international recognition routes with EU member states.”
The Government say that it was “prescriptive and unpopular”, so they want to do exactly the same. However, there is not the same kind of protections on the regulators at the moment for their operational independence if they decide not to enter into an agreement. There will be substantially good reasons why they may not want to, and they were outlined by the GMC on its response to the Government’s consultation on the CPTPP.
The GMC has indicated that the approach of the UK regulators in many areas has gone beyond simply looking at the areas listed by the Government in this Bill, which we debated at our first Committee sitting. The regulators on health and certain other areas look at the broad fitness to practise, the background education and the ability to verify the educational standards in country of that applicant. Unless they are satisfied with that broad range of all the other areas, they do not wish to have mutual recognition. However, this is where the problem arises: in the future, it might be desirable that we have mutual recognition in professions with applicants from a certain country, but not yet. It should be up to the regulator and there should be independence when making the decision that a country’s standards on the education and training route for that applicant were not sufficient to meet UK standards.
At the moment, there is insufficient protection in Clause 4, because, as the Minister keeps reminding us, it is purely enabling, and could be completely undermined by Clause 3. The powers in Clause 3 can, in effect, force the regulator to move. It is not simply the slightly benign word that the Minister used in his letter— to “encourage”. Perhaps I am alone in being slightly cynical, but whenever I hear the Government say that they want to encourage someone, then that someone should be worried. It is not simply about encouragement, however. Clause 3 allows for that regulator to move to start the process of a mutual recognition agreement.
There is another reason why I think this probing amendment is justified, and I hope that the Minister can offer the reassurance that the noble Baroness seeks. The Government do not seem to know what the problem is in regard to many of the regulators yet, but they want an answer to them all under this. This comes at a great cost, because this Bill, as the impact assessment indicated, may well cost up to £42 million. These costs are passed on to the applicants. The Alice in Wonderland nature of it is that the Bill’s stated purpose is to reduce the fees for those applicants. However, it is the regulators who want to avoid a situation where they are forced through an MRA agreement to have a fee system imposed on them by the Government. That is why the justification for the voluntary nature of it is very strong. If the Minister were able to say that he would consider adding to Clause 4, which offers the kind of reassurance in statute that would be required, we would be more amenable to be assuaged.
Baroness Hayter of Kentish Town (Lab)
My Lords, I seek the Committee’s indulgence—I did not want to keep popping up in the last group—because there were some unanswered questions which I had posed. I am sure that more letters will come, but I asked the Minister to make it absolutely clear that Clause 3 was talking about more than just a regulator setting up a process and possibly accepting applicants. Perhaps he could write about that, because he went on to say that nobody objected to the new EFTA agreement, but that is only about a process. There is a big difference between asking a regulator to put a process in place and telling them what the outcome has to be.
Regarding this amendment, as the noble Lord, Lord Fox, said on the last group, mutual recognition agreements between willing partners are to be welcomed. They work and we like them. It is about professional movement and all the things that we are in favour of. Clearly, if they require a legal basis, then it is helpful for that basis to exist. However, I need some examples, even if no one else does, of what legal basis would be needed for a mutual recognition agreement. I quoted in the earlier group the letter to the noble Baroness, Lady Randerson, which said that an MRI may need to be implemented in law, yet we have had no examples of what type of issues would need to be so implemented; that is, going beyond what a regulator can do at the moment. Perhaps either now or in correspondence, we could have some examples of that.
Amendment 30 must be right, because surely it is not for a Minister to require in law—it goes much further than encouragement, as the noble Lord, Lord Purvis, said—for a regulator to enter negotiations with another overseas regulator against its will. We are not talking about when it wants to do it. We are telling it when it does not want to do it that it must. This needs some justification by the Minister.
Lord Grimstone of Boscobel (Con)
My Lords, I thank my noble friend Lady Noakes for this amendment to Clause 4. It is worth reminding ourselves of the essential difference between Clause 3 and Clause 4. Clause 3 provides a power for the Government to implement international agreements, including the professional qualification elements of free trade agreements and bespoke agreements on professional qualifications. These are agreed between the UK Government and international trade partners. Clause 4 provides a power for national authorities to authorise regulators to enter regulator recognition agreements. These are often bilateral agreements between UK regulators and their counterparts in other countries on professional qualifications that make it easier for professionals to obtain recognition in their respective jurisdictions. I think the comments made by the noble Baroness, Lady Randerson, referred mainly to Clause 3, when she looked at the impact assessment, rather than Clause 4, which of course is the subject of this amendment. Also, it is always a pleasure to hear from the noble Lord, Lord Davies. I welcome his comments.
I agree with the sentiment behind my noble friend’s amendment. Regulators must continue to have the ability to act in the best interests of their professions and the consumers of professional services. Clause 4 as introduced—I say this categorically—cannot be used to compel regulators to enter into reciprocal recognition agreements. It can only authorise them to do so, not oblige or compel. No circumstances can change this. I hope that reassures the noble Lord, Lord Purvis of Tweed, and others. It is not the Government’s policy to force regulators to enter into regulator recognition agreements. The decision to enter such an agreement must sit squarely with the regulators themselves. They are best placed to determine which recognition agreements would be most beneficial and to decide the terms of any agreements which they may enter.
I am sure that your Lordships recognise the value of recognition agreements and the importance of their creation being demand-led, regulator-led processes. Therefore, while I agree with the sentiment behind the amendment tabled by my noble friend Lady Noakes, I believe that the clause as drafted meets the objectives of it. With this reassurance, I hope that my noble friend feels able to withdraw her amendment.
Baroness Noakes (Con)
My Lords, I thank all noble Lords who have spoken on this amendment. I heard the noble Baroness, Lady Randerson, say that not all regulators were equal. That clearly is true, particularly in relation to overseas regulators. She highlighted that some were less well developed. There are some which simply come nowhere close to the standard which would induce a UK regulator to enter a mutual recognition agreement, and that is what we really need to protect. I also thank the noble Lord, Lord Davies of Brixton, for his support on this occasion. I hope that we may find lots of other opportunities in future to agree.
I think that my noble friend the Minister has given an unequivocal statement that this clause cannot be used to compel a regulator. That is what I was seeking to establish. I thank him for that and beg leave to withdraw my amendment.
The Deputy Chairman of Committees (Lord Haskel) (Lab)
We now come to the group beginning with Amendment 31. Anyone wishing to press this or anything else in this group to a Division must make that clear in the debate.
Amendment 31
Baroness Hayter of Kentish Town
31: Clause 4, page 3, line 36, after “qualifications” insert “approved by the regulator of the regulated profession”
Baroness Hayter of Kentish Town (Lab)
My Lords, Amendment 31 in a way continues what the noble Baroness, Lady Noakes, and others, have just touched on. It seeks to answer a concern raised particularly by the British Dental Association and mentioned by others.
The amendment, along with Amendment 32 in the name of the noble Baroness, is to strengthen Clause 4 to make it absolutely certain that where a domestic—UK—regulator is looking to recognise professional qualifications, experience or whatever, this would apply only to qualifications which had been approved by the regulator of that third country. This is important because in some countries not all educational institutions or award-giving bodies may be fully accredited by the national regulator, although they may look good on paper. There may be institutions giving out qualifications, but those qualifications are not recognised by the national regulator. It is vital that qualifications issued by an unaccredited institution abroad are not expected to be accepted here.
Amendments 31 and 32 would ensure that a qualification which had been approved by the appropriate regulator in the other country, rather than just having been awarded within its territory, is what would be considered by our regulators here. Without this amendment, a qualification from an awarding organisation outwith the remit of the parity regulator might be thought acceptable in the mutual recognition agreement. I beg to move.
Baroness Noakes (Con)
My Lords, I am glad to have heard the noble Baroness, Lady Hayter, introduce her amendment. We both tabled our amendments in light of the British Dental Association’s comments, but we ended up drafting them rather differently. I thought that the noble Baroness, Lady Hayter, was drafting hers so that it would have to be approved by the UK regulator, rather than by the overseas regulator. I think that we are on the same page, and that my drafting is probably slightly more accurate, but let us not go there. It so confused those in the Public Bill Office that they tried to claim that there was a conflict between our amendments, and that we had to invoke something in the Standing Orders. I said that no, they were not in conflict, and could exist side by side perfectly well, but I now see that they are trying to address exactly the same issue.
The noble Baroness is right that a number of countries have a multitude of individual qualifications, some of which are good for the purposes of the regulated profession, and some which are not. There is a good example in this country: lots of bodies recognise accountants, but not all of them can be recognised as registered auditors; and there will be lots of examples beyond that. It is that point which we are trying to ensure is properly identified when dealing with Clause 4 and the position of the overseas regulation in relation to particular qualifications, and I hope that my noble friend the Minister will look on one or both of these amendments favourably.
Baroness Randerson (LD)
My Lords, Amendment 32A, in my name and that of my noble friend Lady Garden, would require the appropriate national authority to consult with higher education institutions and other training providers before making regulations under this clause. I declare an interest as chancellor of Cardiff University.
I asked a Written Question, answered by the noble Lord, Lord Callanan, in which I asked Her Majesty’s Government
“why higher education institutions and other providers of training for professional qualifications are not listed as stakeholders affected in the impact assessment for the Professional Qualifications Bill; whether higher education institutions or others …were consulted on the proposals in that Bill, and … what plans they have to consult such providers in the future.”
The Answer stated:
“The proposals in the Bill do not affect the UK qualifications or experience required to practise a profession. The Government ran a Call for Evidence on the recognition of professional qualifications … between August 2020 and October 2020, which was open to anyone with an interest in professional qualifications”,
and that there were, among others,
“26 responses from educators who provide training and higher education institutions.”
The Answer continued:
“Officials have met representatives from Universities UK to discuss proposals in the Professional Qualifications Bill and will continue to pursue an active programme of stakeholder engagement.”
So, having told me in the Answer that this Bill has no impact on HEIs and other trainers, the Government went on to say that the HEIs and trainers identified themselves in the public consultation as being concerned by, or interested in, this Bill. Following that, the Government have been in discussion with Universities UK at least. Will the Minister clarify whether the Government have also spoken to other training providers, not just the representatives of universities?
I have had correspondence from Universities UK, which says that, although its contact with the Government has been fairly constructive so far, it would be helpful to require the Government to consult with higher education providers as they strike regulator recognition agreements, given the importance of these agreements to certain sections of higher education. The potential impact on onshore recruitment of EU students on relevant courses should be monitored. Clearly, that is of importance because if you are doing away with the EU-established system, there will be an impact on the number of EU students coming to this country, potentially some of them afresh as they will want to get their qualifications here, but also on the top-up courses that our HEIs provide. It also says that it would be helpful to have frequent consultation and analysis-sharing between the Government and higher education providers to help ensure that the Bill benefits the range of bilateral agreements that could increase recruitment to higher education, rather than have a detrimental effect.
It is not the case that this Bill does not affect HEIs. It affects the number of foreign students applying to the UK on top-up courses, and, crucially, what the HEIs and other training providers teach. Depending on what they teach, it affects who they employ and how many of them they employ, so this has a deep impact on them. I urge the Minister to consider this very reasonable amendment. The Government have recognised the legitimate role of higher education—I hope they have consulted other trainers as well—so what reason could they have for rejecting such a sensible and modest amendment?
Lord Moylan (Con)
My Lords, Amendment 55A is in my name. There are many excellent provisions in the Bill requiring regulators to share information. They are required to share information with regulators at home and abroad, and with people who wish to be qualified to practise in this country. However, there is nothing in the Bill which requires the sharing of information with people who are already practising the profession in this country. Indeed, there is nothing in the amendment spoken to by the noble Baroness, Lady Randerson, which touches on my point, although it would expand the requirement for information sharing.
It might be thought otiose to have such a requirement where a regulator is also a membership body, as it could be assumed that naturally it would communicate with its members, but a regulator is not always a membership body. I remind noble Lords that I said at Second Reading that I was an honorary fellow of the Royal Institute of British Architects, and I am grateful to RIBA for discussions about this topic. RIBA is a membership organisation representing its profession, but it does not regulate the architectural profession. As noble Lords will know from other parts of the Bill, that is a function reserved by statute to the Architects Registration Board. Experience is that stand-alone statutory regulators do what is required of them by statute, and very little else. That is why a nudge is needed, and this amendment would achieve that.
This clause would allow professional practitioners to know what agreements regulators were pursuing, what mutual recognition agreements were in the pipeline, what progress had been made and the timeline for the agreement. It would also provide a clear path for professional practitioners to have their views on how agreements should be prioritised made known to the regulator. Remarkably, without this amendment, there is no statutory obligation on a regulator to have any communication with regulated professionals at all.
Why does it matter? To take the example of architects, British architects are known to lead the world. They work on major projects throughout the world, and they often work with our world-beating civil engineers on transport, infrastructure and other major projects. They earn a great deal of export earnings for us as a country, too. When they are doing this, they need to be able to send architects to work in other parts of the world. On occasion, they also need to be able to employ in this country architects who are from countries where a pipeline of work might be developing and have specialist knowledge of regulations—be they on planning or whatever—that apply in the country where the project is being delivered. They are very commercial architects—they have to be, because they operate in a harsh commercial world—so they look ahead. They see a pipeline of activity in a particular country that might be coming forward with new projects—airports, infrastructure, or whatever it might be. They want to be able to have some influence on their regulator about how mutual recognition agreements might be prioritised to facilitate capturing that work.
I have used architects as an example, but there are other professions that might find themselves in a similar situation, which would want to have that two-way flow with their regulator and which, not being a membership organisation, would need, in my view, the help of statute to ensure that that communication took place. This is so modest and commonsensical a suggestion that I hope my noble friend will be able to rise and simply say that he accepts it.
Baroness Finlay of Llandaff (CB)
My Lords, I speak particularly to Amendments 31 and 32, and I commend Amendment 32, tabled by the noble Baroness, Lady Noakes, to the House. I remind the Committee that the British Dental Association said:
“We would strongly advise that any body issuing qualifications which might be recognised in the UK must be a recognised body for the purpose of issuing professional qualifications by the regulator in a given country. This is crucial to avoid situations in which a UK regulator might be asked to enter into recognition agreements with another regulator in a country where not all educational institutions might be fully accredited by that regulator.”
Unfortunately, I was too late to add my name to Amendment 32. I strongly support it and hope that the Government will take it on board. I have wondered whether it would benefit from “relevant” being inserted before “overseas”, but that would come later on. We certainly need something of that nature in the Bill.
I also speak briefly to Amendment 32A because, as the noble Baroness, Lady Randerson, outlined, it is essential that there is a degree of stability in the higher education system and with training providers. In some subject areas, there is a need for simulation suites and quite complex teaching that requires long-term investment, and, as the noble Baroness said, staff may need to be taken on. You cannot just shed staff; you cannot ask staff to start teaching something they are unfamiliar with without due warning. I am concerned that there is a danger that the Bill could inadvertently destabilise some of our own systems.
Baroness Fraser of Craigmaddie (Con)
My Lords, like the noble Lord, Lord Davies, I am also new to this House—in fact, I am even newer than the noble Lord. Like him, I support my noble friend Lady Noakes’ points on Amendment 32, but I actually wish to speak to Amendment 32A in the names of the noble Baronesses, Lady Randerson and Lady Garden.
Baroness Garden of Frognal (LD)
My Lords, I start by apologising to the Committee for the discourtesy of not being here last time for a later amendment. I spoke on the first two groups, and I completely failed to notice that I was down to speak on another one, so I went home. It was not until I got frantic texts and emails from my colleagues asking where the devil I was that I looked at the list again and realised, to my horror, that I was down. I am sorry; I have been in this House for 14 years and I really should know better. I apologise.
I have added my name to my noble friend Lady Randerson’s amendment, and she has explained coherently the reasons for it. The Bill seems to have ignored the very significant part played in professional qualifications by higher education training providers, awarding organisations and, indeed, many other bodies. I declare an interest in that for many years I worked for City & Guilds developing and promoting professional qualifications. Of course, many of the awarding organisations do much of their own regulation, sometimes through exchanges with other organisations to ensure that standards are being maintained. We all know that universities have a practice of having visiting academics to check their standards. Sometimes that is done with the support of expert committees; certainly, at City & Guilds we had tremendous expert committees to guide us and, of course, we were in constant dialogue with the recognised professional bodies.
Our universities tend to be their own hardest taskmasters because they are fully aware of their reputation if they are to attract students and to keep their place in whatever league table they deem appropriate. Universities, training providers and awarding organisations know that they stay in business because of the respect for, and quality and relevance of, their standards. I am as bemused as my noble friend about why these bodies do not appear to have been consulted in the drafting of the Bill given that so many of its clauses concern qualifications with no mention of who actually awards them. This amendment seeks to rectify the omission.
I look forward to the Minister’s reply and hope that he will see the sense of having something in the Bill that recognises the organisations which award the qualifications that we are all talking about.
Lord Grimstone of Boscobel (Con)
My Lords, I thank the noble Baronesses, Lady Hayter of Kentish Town and Lady Randerson, and my noble friends Lady Noakes and Lord Moylan for these amendments. I shall begin by addressing Amendments 31 and 32.
The amendment tabled by my noble friend Lady Noakes would limit qualifications recognised in recognition agreements to qualifications approved by the overseas regulator, while the amendment proposed by the noble Baroness, Lady Hayter of Kentish Town, would limit the qualifications involved in recognition agreements to those approved by the UK regulator. On the face of it, these amendments seem reasonable. However, they would have no practical effect. Regulations under Clause 4 would authorise the regulator to enter into an agreement with an overseas regulator of a corresponding profession which carries out functions relating to regulating a profession. Logically, a regulator would enter into only an agreement which concerned those professionals whose qualifications and experience had been recognised by that overseas regulator. It is also true that the UK regulator would agree, as part of a recognition agreement, to recognise only those qualifications which meet UK standards. Given that, I humbly suggest that these amendments are unnecessary. They simply reflect what would happen in practice, and indeed what happens now, for regulators that can already enter into such agreements. I therefore ask the noble Baronesses to withdraw or not move their amendments.
The amendment in the name of the noble Baroness, Lady Randerson, would require the Government and the devolved Administrations to consult higher education institutions, training providers and other bodies before regulations are laid under Clause 4. I have already spoken about engagement, including in response to previous amendments tabled by the noble Baroness, so I will not rehearse those points again in full. However, I reassure her that my officials are working closely with the Department for Education to engage with a range of training providers.
The key point in relation to this amendment is that the regulator recognition agreements envisaged by Clause 4 will be regulator-led. The decisions will be for them; Clause 4 merely authorises them to enter into agreements. Of course, in considering and progressing recognition agreements, regulators will naturally want to engage with education providers and many others. I think, therefore, that the answer to the noble Baronesses, Lady Randerson and Lady Finlay of Llandaff, is that the Government do not need to get between the regulators and education providers in this matter. Indeed, if the Government did get between those two sides, they would risk being seen as seeking to limit regulators’ autonomy, to which I know we have all been paying so much attention.
Regulators will also want to work with national authorities, which themselves already work closely with a wide range of education and training providers, so I think that the amendment is unnecessary. Further, as my noble friend Lady Fraser of Craigmaddie has helpfully confirmed, this engagement already happens naturally, as one would expect it to. I hope that this reassures the noble Baroness, Lady Randerson, and I ask her not to move her amendment.
I thank my noble friend Lord Moylan for his support of Clause 4 at Second Reading and I appreciate his interest in regulator recognition agreements. His amendment seeks to require regulators to report annually on the status of recognition agreement negotiations, to publish criteria for the initiation of negotiations, and to establish a process to allow for consultation within their sector. I appreciate the intention behind my noble friend’s amendment and I too am keen to support the development of recognition arrangements wherever I can. However, I think that placing these legal obligations on regulators is unnecessary.
First, regulators are a varied group and not all of them may wish to enter into recognition agreements, so requiring them all to publish criteria for the initiation of negotiations and to establish a process to allow for consultation within their sector seems burdensome. Secondly, it is our experience that the regulators one might expect to be active in international discussions already provide updates on recognition agreements and consult routinely on opportunities with their professions and other interested parties. Legislation to enforce this seems unnecessary.
We have spoken at length about regulator autonomy. I hope I have been clear throughout that we must trust regulators to act in the interests of their profession and to determine which recognition agreements are beneficial. I therefore ask my noble friend not to move his amendment.
Baroness Hayter of Kentish Town (Lab)
My Lords, my noble friend Lord Davies of Brixton merely agrees with the noble Baroness, Lady Noakes, but I am actually going to defer to her. It is clear that her amendment is superior to mine. I did not use the term “UK” in mine and I understand the implication of that. It was drafted slightly sloppily, and for that I apologise.
The Minister says that the amendment is not necessary because Clause 4(2) states that it is for regulators to regulate agreements between regulators, as well as dealing with the recognition of qualifications. In a sense, therefore, you have go in through one to get to the other. The issue raised in the amendment in the name of the noble Baroness, Lady Noakes, perhaps goes back more to Clause 3, which covered whether anything is ever going to be asked of a regulator, not just in a regulator-to-regulator agreement but when the Government ask it to do that as part of a trade deal, where we may still actually need it. I think that the implication—the real meat of it—is still needed. I know that her drafting is brilliant, but perhaps we need it in Clause 3. However, we can look at that.
I want to make one more comment arising out of the interesting issue raised by the noble Baroness, Lady Fraser. She mentioned that some of the overseas training is valuable; one might say almost that it is too valuable to some of our education establishments because it is keeping them going. But what comes out at the end does not stay with us and is not filling the skills gap. The noble Lord, Lord Trees, who is not here, has told me that it is much the same for vets. We are training an awful lot of overseas vets, and I think he said that something like 40% of them then leave because they get very high-quality training, but unfortunately do not stay to be vets here. I know that that is more about the earlier issue on skills, but it is one to bear in mind.
For the moment, and again with apologies for my rather poor drafting, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Barker) (LD)
We now come to the group consisting of the question of whether Clause 4 should stand part of the Bill. Anyone wishing to press this to a Division should make that clear in debate.
Lord Hunt of Kings Heath (Lab)
My Lords, I am saying that Clause 4 should not stand part of the Bill. We have now discussed Clause 4 extensively in the last three debates. I do not intend to go over the ground because that would be unnecessary. Coming to the crunch, the Minister has said that Clause 4 would be used by national authorities to encourage regulators to make mutual recognition agreements, but that they will be under no obligation to do so. Today, the noble Lord, Lord Purvis, said that he was not quite sure what “encourage” means. In a sense, one Government’s encouragement may become another’s diktat, particularly when Clause 3 is part of their armoury.
Something else the noble Lord, Lord Purvis, said, on the first day in Committee, was about the interrelationship between the Bill and what is happening with health regulators. At the moment, there is an extensive consultation on the use of Section 60 orders in relation to a whole host of health regulators. What is interesting is that in that consultation no reference is made by the Government to them upholding the independence of those regulators—something the GMC noted, I think, in its response. Put that alongside the Government’s intention to bring an NHS Bill to Parliament very shortly—it was mentioned in the Queen’s Speech, but has not yet been published, I suspect because extra clauses are being added day after day. Part of that intention is to add clauses on regulations that will give the Government the power to abolish a regulator through an order-making power and set up new regulators through an order-making power. Regrettably, that came out of a Law Commission recommendation quite some years ago. When you put this together, you have to worry about the future independence of the health regulators. It is pretty clear that, with the legislative changes, they would potentially come under more direct control from the Department of Health. One has to say, many of those regulators enjoy considerable oversight by the department already—hence, a little scepticism about the Minister saying that it is entirely up to the regulators what they do.
My principal reason for raising Clause 4 was to refer to the Delegated Powers Committee, which refers to this being a Henry VIII clause. It refers to the memorandum and accepts that it says that it is a narrow power and cannot be used to change regulators’ abilities to recognise overseas qualifications, but, as the committee says, the memorandum fails to explain this or say what effect regulations under Clause 4 should have. I wanted to raise this because the report of the Delegated Powers Committee is critical throughout of the Minister’s department, the Explanatory Memorandum it has produced and its failure to provide sufficient explanation. I put it to the Minister that when I was a Minister, we worried about the Delegated Powers Committee and, frankly, always accepted its recommendations. We seem to be developing a new convention, where Minister think this is just any old committee and can be ignored. It cannot be; it has to be taken seriously. I urge the Minister to recognise that when the Delegated Powers Committee says that there is not enough explanation, something needs to be done about it. When it says that Clause 3 will not do, it is not something you can simply ignore; you have to come back with some proposals to deal with it. That is how legislation works in your Lordships’ House. I do not really expect the Minister now to go through what Clause 4 says, because he has done it; I just wanted to draw attention to the Delegated Powers Committee’s report.
Baroness McIntosh of Pickering (Con)
I have two brief points. I would like to speak in support of Clause 4 standing part of the Bill, but I welcome my noble friend explaining, in response to earlier amendments, that this will be regulator-led and is permissive, not prescriptive.
First, I am slightly concerned by subsection (1), as explained in paragraph 39 of the Explanatory Notes, which then go on to say that it seems quite prescriptive. I do not know if that takes away from the permissive nature of the rest of the clause.
Secondly—and, to be honest with my noble friend and the Committee, I could not think of where else to raise this—I accept that they are not regulated bodies, but I understand that the professional drivers and attendants of pig farmers, chicken producers and livestock transporters are covered by the remit of the Bill. It is interesting to see, but I cannot understand why beef and lamb producers are not covered, because it strikes me that they might like the opportunity to make common ground with countries with which we are seeking to do deals. It may be that they are allowed to do so, but if they are, I wonder why they are excluded from the remit of the Bill.
Finally, I assume that the costs will be minor. I would like to place on record the fact that most of the bodies that have contacted me welcome the powers set out in Clause 4. I do not know whether paragraph 66 on page 18 of the impact assessment is relevant here. That refers to frameworks but I presume that also covers regulator recognition agreements. It comes up with a figure, giving a mean of £350,000 as a best estimate. On what basis has that figure been reached?
Lord Fox (LD)
My Lords, we are indebted to the noble Lord, Lord Hunt, for opposing that this clause stand part. The way in which he set out the issues around delegated powers was excellent. I have nothing to add, but I would like to associate myself with what he said. His point about the severity of the sanction of a DPRRC report is very well made. I have tried to make in different ways. I think we will all be waiting to see how the Government react in legislative terms.
The term “encouragement” has come up and, clearly, Clause 4 is the encouraging end of a continuum that goes through “recommendation” and ends up in “compulsion”. Here, I come back to the question that my noble friend Lord Purvis asked when we were debating Amendment 30. The Minister confirmed that Clause 4 is voluntary, which we were all grateful for, but omitted to respond to my noble friend’s question about whether Clause 3 has the power to override Clause 4 and move that encouragement further down the continuum towards compulsion. Rather than ask it that way around, let us ask it the other way around. Are there any circumstances in which Clause 3 can be used? In other words, would the Minister rule out that Clause 3 can ever be used to compel regulators to do things as a result of Clause 4?
Baroness Hayter of Kentish Town (Lab)
My Lords, the Government need to justify why this clause is in the Bill. What would happen if it were not? What would we lose? What is the worse that could happen if it were not in the Bill?
UK regulators are free to enter into negotiations with other national regulators at the moment, so why is this clause needed? Could the Minister just answer that, how it would be used and why we need to give Ministers this power? It does not use the words “encourage” or “encouragement”; it says that the Government can authorise a regulator to enter into negotiations, but it is hard to understand when that would ever be needed. Can the Minister answer the question: what would happen if this were not there and why, if a regulator did not do it of its own free will, the Government would need this power to authorise it to do it?
Lord Grimstone of Boscobel (Con)
My Lords, I note that the noble Lord, Lord Hunt of Kings Heath, set out his intention to oppose Clause 4 standing part of the Bill. I hope that the arguments I have previously set out in favour of Clause 4 have gone some way to assuaging the noble Lord’s concerns.
First, I will directly answer the question just posed by the noble Baroness, Lady Hayter. The fact is that there are regulators that would like to enter into regulator recognition agreements that do not have, or are not sure whether they have, the powers to do so. My noble friend Lady McIntosh of Pickering referred to regulators that have contacted her welcoming this clause. If regulators want this power in this Bill, and all of us are agreed that it is helpful for them to have it, even if the numbers are small, why would we not want to give it to them? Why are noble Lords saying that it is okay for regulators that already have this power to enter into recognition agreements but, for some reason that I find inexplicable—with due respect—regulators that do not have this power or are not sure whether their power is appropriate should not be allowed to have it? That seems to go against the spirit of regulatory autonomy and recognising that regulators know what they are talking about, in this area.
Before I start, I say to the noble Lord, Lord Hunt of Kings Heath, that of course I have taken the comments made by the Delegated Powers and Regulatory Reform Committee seriously. I read its memorandum very carefully, and think that the supplementary memorandum that I submitted afterwards met some of its concerns. I will continue to reflect on its two responses to me, as we attempt to move this Bill forward.
In answer to what my noble friend Lady McIntosh said about the coverage of the Bill, it looks weird when noble Lords start quoting individual examples of regulators that are covered or not. It is simply because the class of regulators that are covered by the Bill is that class of regulators that are governed by law. Off the cuff, I could not answer why the regulators of people who deal with pigs can and the regulators of those who deal with another animal may not. One would have to go back to the original legislation to do that, but this Bill does not make a value judgment on these regulators; it merely uses the legal definition of which regulators are covered by law to be its class of regulators for the purpose of the Bill.
I take this opportunity to emphasise the importance of regulator recognition agreements for enabling professionals who have qualified in one jurisdiction to work in another. They are important for trade: they help sought-after UK professionals to provide services into overseas markets and help overseas-qualified professionals to have their qualifications recognised in the UK, where a regulator determines that they meet our rigorous standards.
In some territories, or for some professions, there can be barriers to UK professionals practising overseas. Reciprocal agreements put in place by regulators can reduce these barriers. I come back to the point made by the noble Baroness, Lady Hayter: why would we not want regulators to do this, if that is what they want to do? For example, regulator recognition agreements can set out streamlined processes for two regulators to recognise each other’s professionals on the basis of similar standards. They can also include provisions that set out how applications for recognition will be treated; for example, through agreement on standard application or evidence requirements.
Baroness Hayter of Kentish Town (Lab)
The Minister has to understand that we are wholly supportive of regulator-to-regulator agreements; it is the best way, it is good for our professionals, very good for the City and for all sorts of things. The problem here is that the Minister does not even know how many regulators might need this. In his letter to me he named three: the Security Industry Authority, which I very much doubt wants an international agreement on this; a teaching register; and the Health and Safety Executive, which again is very unlikely to want this. He has now thrown into the mix the Intellectual Property Regulation Board, so we are possibly talking about having a whole Bill for four regulators. We would understand it if the Bill, in the case of statutory regulators which do not at the moment have the power to enter into a regulator recognition agreement, said that the Minister could by regulation make that happen. The problem is that it goes much further than that. We might have only three or four regulators but we have a whole clause which sounds more than the Minister suggests. Perhaps he could agree to a preamble to this clause that would spell out, where the regulator does not under its own statute have the necessary authority, that the Minister could do it. Is he willing to look at that?
Lord Grimstone of Boscobel (Con)
As always, I will consider carefully the suggestions made by the noble Baroness but, without wanting to repeat myself, I really do not understand this antipathy to giving power to those regulators that do not have this power.
Lord Fox (LD)
I assure the Minister that I have managed to work out that if two things are standing next to each other I can feel differently about one from the other. Everything that I have said has recognised the benign nature of Clause 4, but what I asked and did not hear an explicit answer to was whether that benign nature could be modified by the very close Clause 3—and never mind how close it is; it could be anywhere in the Bill. The Minister did not answer that question, and because of that I assume that I and my noble friend Lord Purvis, the noble Baroness, Lady Noakes, the noble Lord, Lord Hunt, and others, are correct that Clause 3 can modify Clause 4, and benign, beneficial and voluntary elements of Clause 4 can be made compulsory by Clause 3. Unless the Minister is prepared to say that that is not and can never be the case, I am afraid I will leave this Chamber clear that what I have just said is correct.
Lord Grimstone of Boscobel (Con)
The noble Lord’s colleague the noble Lord, Lord Purvis, cautioned me on the previous day of Committee never to use “never” at the Dispatch Box, and I am trying to remember his strictures on that. The reason I did not answer the question directly is that I am not going to do so unless I am completely sure of my facts on this. I do not believe that it is possible for Clause 3 to creep its way into Clause 4 but, so that I can give the noble Lord, Lord Fox, a completely definitive answer, I will write to him, and I will copy that letter to all other noble Lords. Indeed, I will hand deliver it to noble Lords who wish to get it particularly expeditiously.
Lord Hunt of Kings Heath (Lab)
I suspect that we should be wary of what we wish for, and that the Minister is now going to take his revenge in the number of letters that we will receive over what I hope will be a very pleasant weekend. I do not think we can take this any further because he has said that he will respond to the noble Lord, Lord Fox, whose question, alongside that of the noble Baroness, Lady Hayter, seems to me the core of the argument. The only other question is about pig farmers as opposed to beef farmers; the Minister said that at some point pig farmers were covered by the legislation but beef farmers were not. I suggest to the noble Baroness that we leave as an eternal mystery why that should be.
The Deputy Chairman of Committees (Baroness Barker) (LD)
We now come to the group consisting of Amendment 34. Anyone wishing to press this amendment to a Division must make that clear in debate.
Amendment 34
Baroness Blake of Leeds
“Recognition of foreign auditors and foreign audit qualifications
(1) Section 1221 of the Companies Act 2006 (approval of overseas qualifications) is amended as follows.(2) In subsection (1A)(a), for “covers all” substitute “sufficiently covers”.(3) In subsection (91A)(b), for “covers all” substitute “sufficiently covers”.(4) In subsection (1B), for “is” substitute “may be”.(5) In subsection (3), for “equivalent” substitute “sufficiently comparable”.(6) In subsection (5), after “qualifications” insert “or experience”.(7) In subsection (7A)(a)(ii), after “not” insert “sufficiently”.”Member’s explanatory statement
This new Clause amends the Companies Act 2006 such that the Financial Reporting Council, the statutory regulator for audit, would gain greater discretion over which foreign auditors and foreign audit qualifications could be accepted in the UK.
Baroness Blake of Leeds (Lab)
Amendment 34 is in the name of my noble friend Lady Hayter, and I thank the noble Lord, Lord Palmer of Childs Hill, for signing it. The amendment would make changes to the Companies Act 2006 to allow the Financial Reporting Council—the current statutory regulator for audit—greater control and discretion over the acceptance of foreign auditors and foreign audit qualifications in the UK. The Institute of Chartered Accountants in England and Wales has said that these changes would fix a historic problem, as comparing and recognising qualifications between countries has been very difficult for the FRC. This is due to Section 1221 of the Companies Act 2006, which is highly prescriptive in terms of the degree of identity required between the UK standard and the foreign one. The ICAEW states that, in the last 30 years, the UK has recognised only two non-EU qualifications for audit and, post mergers in those countries, neither is the current version any more. Does the Minister think that this needs to change? Can she explain, without the amendment, exactly what changes the Government will propose?
Can the Minister also update the House on audit reform? In March the Government recommitted to a new authority and stated that
“legislation is needed in many areas to complete the task of remodelling the regulator and to establish the FRC’s successor body, the Audit, Reporting and Governance Authority (ARGA).”
However, this legislation was not mentioned in the Queen’s Speech and we are wondering why. When will it be brought forward? Will the changes suggested in Amendment 34 form part of the new Bill? I beg to move.
Baroness Noakes (Con)
My Lords, I support the thrust of Amendment 34 and it is good to see the Benches opposite getting involved in the exciting world of chartered accountancy and auditing. I remind the House that I am a member and former president of the ICAEW.
The wording of Section 1221 of the Companies Act 2006 is rather black and white. I understand that the Act is still the longest Bill that your Lordships’ House has ever considered, and I bear the scars of weeks and weeks in Grand Committee considering hundreds, if not thousands, of amendments. Despite all that effort, from memory I think that we did not focus on the wording of Section 1221, which is clearly a major failure of your Lordships’ legislative scrutiny.
I turn to the amendment. Section 1221 gives little scope for judgment where an overseas qualification is largely the same as a UK one for audit purposes but is not exactly the same. We heard that that has led to relatively few uses of that power. That contrasts with this Bill, where the formulation in relation to overseas qualification is “substantially the same”. I know that the noble Baroness, Lady Garden of Frognal, who is not in her place, queried the use of “substantially” on our first Committee day, but it seems to me that it gives an important element of flexibility to the Bill. Something like that would probably give an element of flexibility in the context of Section 1221 of the Companies Act 2006; indeed, I wonder whether a better formulation for that would be to use “substantially”—that is, to mirror the kind of wording that is used in respect of recognition of overseas qualifications in this Bill. The noble Baroness may like to consider that if she chooses to bring forward this amendment again on Report.
Lord Palmer of Childs Hill (LD)
My Lords, I am a co-signatory to Amendment 34. In fact, I put the same one in because its source is the Institute of Chartered Accountants in England and Wales, of which I have been a fellow for 50-odd years. I view that as an interest, I suppose.
As has been stated by noble Lords, the amendment gives greater discretion over which foreign auditors and foreign audit qualifications are accepted in the UK. The noble Baroness, Lady Blake, explained why this was and why it was needed. It allows the regulator to apply its professional judgment; this amendment states that clearly.
In 2020, the big four UK accountancy firms performed the audits of 96 of the 100 companies in the FTSE index—this is very much a closed shop. The dominance of the big four audit firms has long been a matter of concern, and their record on big company failures has not been impressive. Various professional bodies have been looking at this matter for some time in relation to companies such as Carillion, Thomas Cook and BHS—one could go on about this.
As mentioned by the noble Baroness, Lady Blake, in March this year the Business Secretary launched a major overhaul of audit. We did not hear too much about it after its launch. The amendment that we put forward today is to allow the regulator greater discretion, if it is needed, as a step to unleash competition in the audit market. As I said, when the big firms’ audits are controlled by the big four accountancy firms, something really needs to happen.
We are promised a new audit profession, overseen by a new regulator, with the aim of driving up standards and quality—this was referred to by previous speakers. This amendment will assist in the aim of requiring large companies to use smaller challenger firms to conduct part of the audit. In the debate on the previous amendment, the Minister spoke about giving empowerment to regulators. This amendment attempts to give those regulators that empowerment to do what they think is right rather than something that is written down in black and white.
The noble Baroness, Lady Noakes, talked about flexibility, which is relevant to this very technical amendment—there was a laugh in relation to this being accountants talking about more accountants. But this is important, because the proper audits of companies are how this country runs, and it has not been running too well on the big companies side. I spent the first seven years of my career at a firm called Peat Marwick Mitchell, which is now KPMG, and audit has changed radically since then. There is too much looking at systems and not at whether those accounts and balance sheets—snapshots of a company’s position on a particular date—are true. Clearly, in companies such as the ones that I have mentioned, this is not the case.
This is a very technical amendment that had its genesis in the largest professional accountancy body in the UK. I hope the Minister will consider accepting it.
Baroness Bloomfield of Hinton Waldrist (Con)
I thank all noble Lords for participating in this short debate, and I thank the noble Baroness, Lady Hayter, for the amendment and the noble Baroness, Lady Blake, for presenting it so ably. I welcome the opportunity to consider the important issue of mutual recognition of statutory audit qualifications in the UK and the audit qualifications in other jurisdictions.
The Companies Act 2006 provides that these may be agreed on a reciprocal basis by the Financial Reporting Council—FRC—on behalf of the UK Secretary of State, with the competent authority of an overseas jurisdiction. Amendment 34 would give the FRC the discretion to relax the standards of compliance that overseas qualifications must meet before they can be recognised in the UK. It would not compel the FRC to relax those standards but would enable it to do so where it considers this appropriate as part of a reciprocal agreement.
The UK’s audit sector is highly respected and valued both domestically and across the world. The Government are currently consulting on the White Paper Restoring Trust in Audit and Corporate Governance. These reforms are needed because there have been a number of examples of poor practice and poor standards in UK corporate audit that have risked the UK’s reputation as a safe and trusted place to do business—a number of noble Lords, including the noble Lord, Lord Palmer, have just mentioned this. We therefore need to be careful when considering the framework to allow individuals to undertake statutory audit in the UK to ensure that it is robust and maintains the UK’s high standards and reputation.
While this amendment would only provide the ability for the regulator to apply looser requirements to recognising other nations’ qualifications, it would open the door to concerns of loosening standards and reduced oversight. It would also expose the regulator to pressures to use the flexibilities provided in cases where this might not be in the best interest of the UK profession or its clients. The statutory audit profession in the UK has a comparatively strong reputation internationally for the standards that it maintains. The Government are working hard to maintain this reputation, and we would not wish either the UK’s standards or its reputation to be devalued.
The Government acknowledge that an essential part of maintaining our standards and reputation internationally is to seek to influence developments in corporate reporting and audit by building links to other regulators that are prepared to uphold comparable standards. The ability for UK auditors and those with comparable qualifications overseas to exchange and transfer experience is an important part of this.
The noble Baroness, Lady Blake, asked why the audit reform was not included in the Queen’s Speech. The reform of audit and corporate governance is a priority for Ministers. We have promised to legislate on an appropriate timetable, and the Government do not intend to add new requirements at a time when they would hold back businesses’ recovery from the pandemic. By the time of presenting proposals to Parliament, the Government want to be confident that they are effective and command broad support. Consultation on the Government’s White Paper is open until 8 July, and Ministers look forward to contributing to the BEIS Select Committee’s inquiry into the delivery of audit reform.
I believe that the regulator can already make agreements with international counterparts to this end, so I ask the noble Baroness to withdraw her amendment.
The Deputy Chairman of Committees (Baroness Barker) (LD)
I have received a message from the noble Baroness, Lady Noakes, who wishes to speak.
Baroness Noakes (Con)
Could my noble friend the Minister explain why, in Clause 1, which we know will be applied largely to the medical professions—we are therefore dealing with patient safety—it is adequate for medical professions if
“a specified regulator of the specified regulated profession has made a determination that the overseas qualifications … demonstrate substantially the same knowledge and skills”,
but, somehow, a different standard is implied when the much more mundane activity of auditing is involved? I do not quite understand how the Minister can have one view of the medical professions and another of what happens in the accounting profession. Can she explain that contradiction?
Baroness Bloomfield of Hinton Waldrist (Con)
I do not agree that that is a contradiction. This would have the effect of weakening the standards in audit reform, which we are keen to prevent—so I do not agree with the premise of my noble friend’s question.
Baroness Blake of Leeds (Lab)
I thank the Minister for her full response. I particularly thank the noble Baroness, Lady Noakes, for reminding me of the many hours of excitement that I have ahead of me in this place and thank her for her suggested wording. I also welcome the reminder from the noble Lord, Lord Palmer, of the shortcomings in this particular area.
We keep mentioning the word “assuage”, which I do not think I have ever come across quite so much in my life before. I looked up “assuage” and it referred to the easing of grief. I am not sure that my particular grief in this area has been eased by this. There is a great deal in the answers that we will look at. I am sure we will revisit this very important, if technical, area in the meetings ahead, and I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Barker) (LD)
We now come to the group beginning with Amendment 34A. Anybody wishing to press this or anything else in this group to a Division must make that clear in debate.
Amendment 34A
Lord Lansley
“Indemnity and insurance
In exercising functions under section 1 or 4, or under any regulations made under section 3, a regulator of a regulated profession must ensure that an individual is properly indemnified or insured against liabilities that may be incurred in the course of practising the profession.”
Lord Lansley (Con)
My Lords, this group has three amendments in it, two of which are in my name. The other amendment, in the name of the noble Baroness, Lady Garden of Frognal, strictly speaking, is not really related. Her amendment makes a perfectly good point, it seems to me; I will not dwell on it, as I am sure she will introduce it very effectively. It simply asks for language requirements to be something that the assistance centre provides information and assistance on, so it sounds perfectly reasonable.
Amendment 34A in my name is somewhat prompted by the Government’s amendments to Clause 1 that we debated last Wednesday. If noble Lords will recall, those looked at the risk that the Government acknowledged in their supplementary memorandum to the Delegated Powers and Regulatory Reform Committee. In paragraph 6, they said their amendments were
“to avoid the risk that clause 1 could allow an overseas-qualified individual to circumvent additional requirements that other legislation imposes, or allows a regulator to impose, on overseas-qualified individuals.”
That is, indeed, exactly the risk that was referred to, quite properly, at Second Reading and to which the Government responded.
What was added into Clause 1 was “and any other specified condition”. In its response to the supplementary memorandum, the Delegated Powers and Regulatory Reform said that, while it welcomed the amendment since it was intended to mitigate that risk, the appropriate conditions that were going to be added in were not specified. In part, Amendment 34A is part of a process of trying to tease out from my noble friend what is going to be in those conditions under Clause 1 that are in addition to the requirement for an overseas qualification or overseas experience to be substantially the same as UK qualifications and experience.
One of the things that I felt it was helpful to illustrate that is the question of indemnity insurance. That is what Amendment 34A relates to. For a number of regulators—especially of course, those that I am aware of, in the medical professions—there is a requirement on practitioners as part of their professional standards to have professional indemnity. Would this, for example, be one of the conditions that my noble friend would anticipate would be specified under Clause 1? That is by way of probing that situation.
Amendment 60A, however, is both to probe this issue rather more but also perhaps to make a suggestion to my noble friend when they are considering what might give further reassurance. Given the debates we have had last week and today, time and again noble Lords are saying that they remain concerned, notwithstanding the Government’s intentions and statements, that regulators will find that a consequence of the regulations under Clause 1 or as a consequence of Clause 3, which we have just been talking about, will be that they cannot impose or exercise the same control on overseas applicants to practise in the United Kingdom as would be the case for a UK applicant.
Baroness Garden of Frognal (LD)
Well, my Lords, we could all do with a little kindly looking on our amendments. I will speak to Amendment 42A in this group and, like the noble Lord, Lord Lansley, I cannot quite see how it relates to his amendment. Nevertheless, I shall plough on.
This amendment seeks to clarify the language requirements for UK workers wishing to work in another country where English is not the main language and quite possibly not even spoken. We cannot assume that English will be understood by everyone, and those working abroad should have a working knowledge of the professional terms, as well as an ability to speak socially to those with whom they work. I have mentioned before the European Union project LangCred in which I was involved, where we were attempting to create a directory of all work-based qualifications so that people could move seamlessly across the EU. We kept coming against the fact that, however professionally or vocationally qualified they were, if they could not speak the language of the country, they were going to have problems. We can no longer assume that a bunch of Geordie construction workers could make a good living in Germany while speaking only Geordie. I was never sure in the days of “Auf Wiedersehen, Pet” whether that situation was entirely realistic, but I really do not think that it would work today. I rather suspect German law would not allow it.
Years ago, I got a job as a French and English teacher in a German gymnasium—a grammar school equivalent—while speaking only French and Spanish. Herr Direktor loved French and always spoke to me in French very happily, but after a few months he called me in to tell me that Düsseldorf had dictated that they could no longer employ me unless I spoke German. My RAF husband was too young to be officially married, and we were not allowed to live in married quarters, so were living in a German flat. I was surrounded by Germans and German shops, and as a linguist of course I had picked up quite a lot of German at that stage—none of which Herr Direktor had ever heard me speak, but he assured me, in French of course, that he had told them that I was fully competent in German, so I continued in my job. He quite liked me, but I rather suspect that he could not be bothered to recruit another teacher. But these days I certainly would not have been employed.
So it is important that those wishing to work abroad are fully informed that they need to speak Portuguese, Polish, Japanese or Mandarin before they embark on a job for which they may be fully professionally qualified in Portugal, Poland, Japan or China. Our teaching and learning of modern foreign languages have declined woefully in recent years; it really is a cultural deficit in this country that our language speaking is so very poor. Perhaps there might be more enthusiasm and incentive if young people were fully informed of their inability to work abroad unless they had mastery of more languages than English, and this amendment ensures that the advice includes a language component.
Baroness McIntosh of Pickering (Con)
I will speak to two of the amendments in this group in the name of my noble friend Lord Lansley. My understanding is that the first, Amendment 34A, is already covered by most of the professions, which require people to take out professional indemnity and insurance before allowing them to practise. So I wonder why this amendment is required—although I understand it is a probing amendment. But there we are—I look forward to hearing what my noble friend has to say.
I have some sympathy with the amendment in the name of the noble Baroness, Lady Garden of Frognal. My understanding is that many practitioners, particularly legal practitioners, who work outside UK jurisdictions actually relate to English language clients, so the problem does not arise—but again, I look forward to hearing what my noble friend says in summing up.
My greatest concerns relate to Amendment 60A in the name of my noble friend Lord Lansley, and an incident which many in the Chamber may recall took place in the 1980s and 1990s, in which a gynaecologist, Richard Neale, was allowed to practise in this country, first in the Friarage Hospital, Northallerton, and then in other hospitals as well, even though he had been struck off the register in Canada, where his last known employment was. I took up the case with the GMC at the time and was assured that this would never happen again. But, as we have the Bill before us this afternoon, and as we have Amendment 60A as a probing amendment, I will ask the Minister: does he accept the assurance given by the GMC at that time? Can he put my mind at rest that this case could not happen again? I found it extraordinary that a gynaecologist—or indeed any medical professional—could be recruited without even a cursory phone call, ideally, or email to the last known place of work, which I think any diligent employer would undertake as minimum due diligence. Can my noble friend reassure me that there are provisions—if not in the Bill, then elsewhere—to ensure that this situation simply could not arise again?
Baroness Noakes (Con)
My Lords, my noble friend Lord Lansley has hit upon some important issues with his Amendments 34A and 60A. I am not 100% convinced by the drafting of either amendment, but the underlying issues are very important. On Amendment 34A, many regulated professions require indemnity insurance to be held by a professional, but I am not sure whether all regulated professions must have indemnity insurance. For example, I am not certain that farriers are required to have insurance. It is clearly sensible for any professional offering their services to have indemnity insurance, but it may not actually be required. My noble friend’s amendment rather implies that every single regulated professional has to have indemnity insurance.
Fitness to practise is rather different: it is a cornerstone of professions, in that only those of good standing are allowed to practise. Fitness to practise can be determined by a number of factors—some straightforwardly, such as criminal convictions, to which my noble friend referred in connection with the Disclosure and Barring Service. Others crucially depend on often quite subtle judgments within the context of particular professions: for example, whether an individual has the right degree of scepticism or can demonstrate that they exercise the right degree of professional care when undertaking their profession. These are really quite difficult areas of judgment. I could not see exactly how that fitted naturally into the scheme of this Bill. It would be difficult to say that there should be a condition relating to the judgment around fitness to practise. But I shall be interested in what the Minister has to say in response to these amendments.
Lord Purvis of Tweed (LD) [V]
My Lords, I shall refer initially to insurance and then to the wider issue of fitness to practise. Like the noble Baroness, Lady Noakes, I am slightly scratching my head about the overall requirement on indemnity, but I understand the point. I also understand that there is a mix among professions on the need for indemnity insurance. My grandfather, who was a farrier, had it; he would have been unlikely to have clients unless he was insured but it was not a requirement, and that is often the case for sole traders. There is a second category where you cannot be registered with a professional or trade body unless you are part of a wider indemnity programme or scheme. There will be others, such as social work, where indemnity is a requirement for practising.
Where this requirement exists, especially in medical professions and social work, for example, the noble Lord, Lord Lansley, may have a point but, more widely, it comes down to the Minister’s case that there is complexity all around. However, there are very good reasons why there are certain requirements in certain professions, some set out in regulations and others within the statutory provision. In one of his letters in response to questions that I raised as to why it seemed that health professions’ regulations were being contradicted here, the Minister said that the Government’s approach would be bespoke for the medical professions. That is our point: elements of this will require certain types of response in certain statutory provisions that are linked directly to the specific needs of the profession, or groups of professions, in that field—especially in the case of medical professions where public safety, not trade or economic benefit, is paramount. However, we know that the Government’s imperative in this Bill is an economic one—it is demand-led and shortage-led.
In his letter to the noble Lord, Lord Lansley, and in his response, the Minister has been quite clear: if the Government consider that people are paying too much for UK professions, they want to obligate regulators to open the tap to new, foreign applicants. That is the intent and, therefore, the links with standards and public safety are tricky. The Minister knows me well enough not just to take my word for it, so let me quote from the Government’s document, the Delegated Powers and Regulatory Reform Committee memorandum. In paragraph 16 regarding the powers in Clause 1, the initial memorandum—not the second one referred to by the noble Lord, Lord Lansley—says:
“Where the power is used in relation to a profession, the specified regulator will be obligated to consider applications for recognition from individuals with qualifications and experience, from every country in the world, and to provide a decision in line with the conditions set out in 001, and any other further requirements in the relevant regulations.”
The autonomy that we often hear about from the Minister is not apparent in the Government’s own document because the specified regulator will be “obligated to consider applications”.
When it comes to the application itself and the decision on it, the other provisions in Clause 1 could be forced on the regulator. This brings me to the wider point on which I agree with the noble Lord. There is no consideration of fitness to practise. It is essential that fitness to practise is consistent for the GMC, the medical professions and others that fall into the category where the Minister does not know if they are “in or oot” of the Bill, as we would say in the borders. If you are not in a statutory regulatory profession such as plumbing, and you wish to make sure that everybody’s gas boilers are safe in this country, which is essential, then you have to be registered with Gas Safe; it used to be the Corgi mechanism.
Qualifications are one thing, and fitness to practise is also considered there, but it is now a core element within the medical professions. On the first day in Committee, I asked a question of the Minister to which I have not yet had a reply, about where in the requirements on regulators the Government would insist that they have to take fitness to practise into consideration when it comes to criminal records. There are certain offences in the UK where, if someone has a conviction, they cannot apply for recognition of their qualification to practise; if they commit that offence while on the register, they are struck off it.
Nothing in the Bill would have UK regulators asking an equivalent requirement of a foreign applicant, so we would have a bizarre situation. We have left the EU, where this requirement was under the EU directive, and where we were able to seamlessly access the EU’s criminal data; this is now lost. We now have a very odd situation where the Government seem to suggest that, if there is a shortage of a profession, and there is demand, a UK applicant’s fitness to practise—including the requirement to look at a criminal record and judge them on that—stays, but for a foreign applicant, from any other country in the world, the regulator is obligated to consider their application without doing a fitness to practise check.
That is, I believe, untenable. The Government will have to reflect on this and bring forward their own amendments to ensure fitness to practise. Indemnity is not just for insurance but contributes to ensuring that those working for our medical professions and public services are safe to do so, for the sake of the public. I hope that the Government will consider this very carefully.
Baroness Hayter of Kentish Town (Lab)
My Lords, I too want to concentrate on Amendment 60A, the new clause proposed by the noble Lord, Lord Lansley, which, as the noble Lord, Lord Purvis, has said, is absolutely crucial, particularly on fitness to practise.
We have in this country high standards not just of professional capability but of probity, which, indeed, go further and wider than the professions covered in this Bill. I well remember on almost my first day as a magistrate, many decades ago, seeing a man lose his licence to be a bus conductor in London because of a very minor and quite unrelated traffic offence; it was because of the standards we demand of those in public sector.
Our doctors, nurses, social workers, lawyers and teachers are not just good with their hands and brains; they are also not wife-beaters, drunken drivers, shoplifters or fraudsters. Fitness to practise means obedience to ethical codes, and never carrying out tasks outwith the abilities and competence of the particular profession. It includes in many professions the reporting of errors, maintaining skill levels, undertaking CPD and other aspects of what being a professional means. As the amendment tabled by the noble Lord, Lord Lansley, allows, it is important that if we are either to encourage—a word we have used—or even mandate regulators to have processes in place to recognise those qualified in other jurisdictions, then checking up on these wider aspects really must be permitted as part of the process. I hope that, in one way or another, the Minister will agree to bring something back in the Government’s own words on Report.
Lord Grimstone of Boscobel (Con)
My Lords, I thank my noble friend Lord Lansley for tabling Amendments 34A and 60A, and I thank the noble Baroness, Lady Garden of Frognal, for tabling Amendment 42A.
Amendment 34A seeks to require that a regulator of a profession ensures that an individual is suitably indemnified or insured before they may practise a profession, if that regulator sets up recognition routes as a result of regulations made under Clauses 1, 3 or 4. Amendment 60A intends to ensure that the recognition of an individual with overseas professional qualifications or experience should not be sufficient in itself to confer an entitlement for that individual to practise that profession in the UK or a part of the UK. It seeks to ensure that the regulator can require that an individual has demonstrated their fitness to practise and produced evidence of their overseas experience.
I am in complete agreement with my noble friend’s intent in bringing forward these two new clauses. Under Clause 1, as amended in my name, regulations creating recognition routes can specify additional conditions which must be satisfied before a regulator makes a determination that recognition is given. This means that any other appropriate regulatory criteria, such as language proficiency, appropriate indemnity or insurance arrangements or criminal record checks, must also continue to be met before a regulator may give access to a profession. All these conditions could be imposed by a regulator under Clause 1, as amended. In answer to the noble Lord, Lord Purvis, determining fitness to practise sits absolutely within the autonomy of the regulator. Nothing in the Bill disturbs that.
The amendments are also relevant to Clause 3, relating to the implementation of international agreements. As I set out earlier, Clause 3 does not affect the ability of national authorities or regulators to set and maintain professional standards. This includes the requirements to practise that profession, including being fit to practise and any requirements to have insurance.
Clause 4 allows the appropriate national authority to authorise a regulator to enter into regulator recognition agreements. The decision to enter into such an agreement and its terms are for the relevant regulator. This goes to the heart of the principle of regulator autonomy. It should be for the regulators concerned to decide whether to place requirements relating to professional indemnity insurance. It is highly unlikely that a regulator would agree terms which would provide access to a profession to individuals unfit to practise it. Language proficiency, indemnity arrangements and criminal record checks are prevalent examples of criteria that our professional regulators use now to assess and determine an individual’s fitness to practise. Nothing in the Bill disturbs this and, again, the regulator is free to determine how to go about it. I have been clear that we must protect regulators’ autonomy, including deciding who practises a profession and how to make assessments on issues such as information relating to overseas experience.
I have discussed this Bill with regulators such as the GMC, the GNC and the Nursing and Midwifery Council. Let me be crystal clear, the amendments in my name allow them to determine who is fit to practise their profession here, beyond recognition alone. They have welcomed this. The amendments to Clauses 3 and 4 are unnecessary as they do not cut across regulators’ ability to set and maintain standards.
Lord Lansley (Con)
My Lords, I am grateful to all noble Lords who have participated in this short debate. I particularly thank the noble Lord, Lord Purvis of Tweed, and the noble Baroness, Lady Hayter of Kentish Town, for their support for the purposes of Amendment 60A. If we all agree that, when the time comes, the Government will specify all the necessary conditions under Clause 1 to ensure that, under all circumstances, regulators can make whatever judgments, impose whatever requirements, and seek whatever evidence they require for a fitness to practise decision, then Amendment 60A is not required. The difficulty is that, as the Delegated Powers and Regulatory Reform Committee said, we do not know the appropriate conditions that will be specified in Clause 1. Clause 3 powers could technically override them. We just know it is not the Government’s intention to do so, and they have provided assurances.
After Second Reading, my noble friend acted swiftly to amend Clause 1. That has provided substantial reassurance, but not quite enough. One route we might look at on Report is to see whether “any other specified condition” referred to in Clause 1(1) as amended might be further defined to make it absolutely clear that everything that contributes to professional standards and fitness to practise determinations and judgments by professional regulators should be encompassed within those conditions. The question is how to draft it without having to reproduce everything. This is the territory we are in, otherwise that is not the assurance that is in the Bill. We are simply living with a statement that has no definition within it.
I hope to engage my noble friend and other noble Lords further in discussion about how we might achieve the purposes that I think we all seek. As my noble friend said, we are in agreement about the intent; the question is whether the Bill provides not only the powers but the assurances necessary for regulators in future and clarity within the Bill. Insurance is a similar argument. Pending further discussions, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
We now come to the group beginning with Amendment 37. Anyone wishing to press this, or anything else in this group, to a Division must make that clear in debate.
Amendment 37
“(3) Nothing in this section affects individuals whose qualifications were recognised by virtue of the European Union (Recognition of Professional Qualifications) Regulations 2015 before subsection (1) comes into force.”Member’s explanatory statement
This amendment makes it explicit that qualifications recognised before the EU regulations were revoked are not affected.
Lord Palmer of Childs Hill (LD)
My Lords, this provision is often described as a “grandfather” clause or policy, or “grandfathering”, although those words are not in the amendment. It is a provision by which an old rule continues to apply to certain existing situations, while a new rule will apply to all further cases. Those exempt from the new rules are said to have grandfather rights, or acquired rights, or to have been “grandfathered”—there is a big use of the word “grandfather”.
The virtue of the provision is that it keeps the expertise which exists in all these professions. Surely this must be very close to Members of your Lordships’ House; if we have any reason for existing, it is that one would not want to lose the expertise of this House. In very simple terms, that is what this amendment seeks to do.
The amendment is simple. It makes it explicit—the Minister may well say it is already there, but it is not explicit—that the qualifications recognised before the EU regulations were revoked are not affected. This simply makes it clear. I hope the Minister might accept it as a clarification in the Bill. I beg to move.
Baroness Fraser of Craigmaddie (Con)
My Lords, I rather hope that the Minister will—to use the word of the Bill—assuage my fears that these amendments are not required. If noble Lords will bear with me, I must say I really struggled to understand, when reading these amendments and looking at the Bill, how it could possibly be that we would put any barriers, hurdles or anything in the way of people whose qualifications have been recognised under previous EU regulations. It is really concerning to me.
To turn to my regulator of choice, the Health and Care Professions Council registered 551 new registrants from the EEA and Switzerland last year—the year of Covid—and 951 the year before. That is around 22% and 26%, respectively, of the total number of new registrants each year. It would be a tragedy if there were any barriers to those who have been registered as fit to practice and they were not able to do so.
Let us not kid ourselves that it is a simple path to registration for professionals from the EEA and Switzerland even with the previous EU regulations in place. These professionals have already experienced uncertainty in their status due to the UK’s exit from the EU. Hopefully, most will have applied for settled status, but let us, as I say, not put any more barriers in their way. Even a whiff that their qualifications might no longer be recognised or that they may have to go through other processes could be enough to send these valued people back to their own countries.
I am also not clear whether it is proposed that there will be a transitional period between the existing and the proposed routes to registration for overseas registrants. If so, can further light be shone on this? I plead that any transition from one system to the other is as smooth and painless for professionals and regulators as possible. I look forward to being assuaged.
Lord Hunt of Kings Heath (Lab)
My Lords, I put my name to Amendment 60, to which my noble friend will refer in the wind-up, and will also speak in favour of Amendment 37.
Amendment 37, as we have heard, makes it explicit that qualifications recognised before the EU regulations were revoked are not affected. My noble friend Lady Blake’s Amendment 60 seeks to ensure that existing qualifications in the UK are not affected by the Bill. Rather like the noble Baroness, Lady Fraser, I assume that that is guaranteed or assuaged somewhere in the Bill, but it would be helpful to have the noble Lord’s reference point on that.
The noble Lord, Lord Palmer, made some interesting points about grandparenting, which is obviously a long and sensible tradition when making changes to a regulatory body or regulating a profession for the first time which is already in some form of voluntary accreditation. I think the HCPC will be well used to doing that. Provided that we can be assured that the people being transferred over are, in the words of noble Lords, fit to practice, it should be a fairly straightforward process.
I was struck by the suggestion of the noble Lord, Lord Palmer, that we as Members of this House would be particularly favourable towards grandparenting—I suppose that means that in any reform of the second Chamber, existing Members would transfer over. It is probably about the only way to get this place to agree to reform—but in your dreams, my Lords.
Baroness McIntosh of Pickering (Con)
I support the comments of the noble Lord, Lord Palmer of Childs Hill, in moving his Amendment 37 and echo many of the remarks made previously on this.
My starting point is this: we now face a potential shortage in many professions, particularly among veterinary surgeons and many categories of medical staff, including doctors, nurses and other clinicians. It therefore seems odd that we have two amendments in this small group on the need for this to be in the Bill. Can my noble friend explain, as he has said many times during the passage of this Bill, at Second Reading and in earlier debates, that the Bill is deemed to be a tool to address potential shortages in the professions, such as veterinary surgeons and medical staff at every level? If that is the case, is it his view—bearing in mind the two probing amendments in this group—that it should perhaps be explicitly stated in the Bill, for the avoidance of doubt?
Baroness Finlay of Llandaff (CB)
My Lords, it is a pleasure to follow all those who have spoken on the amendments in this group, because they are incredibly important. The noble Baroness, Lady Fraser of Craigmaddie, spoke about the dangers of a “whiff” of doubt; I fear that whiff is becoming a smell out there among those whom we desperately need to retain in this country to do the work. I did a different type of straw poll, in west Wales; I just asked how many of the people were immigrants from Europe. We have over 270, and they are holding up the NHS. If they leave, I am afraid we will be in a real pickle. We have a real problem recruiting new people into jobs. We have vacancies not just among front-line clinicians but, as I spoke about on day one, among clinical scientists, where a terrible shortage is affecting our diagnostic processes.
The other problem is that those in Europe do not want to come at the moment because there is an element of doubt, and they feel that they will not be welcomed. Even those who have been well trained, who might come for one or two years and bring some skills over, are not doing that. They are staying away. Although it might sound a bit far-fetched, I think the unfortunate legacy of the Windrush scandal has tainted people’s minds a little bit and tipped them over towards mistrust.
The Minister used the word “trust” earlier today in relation to this Bill. I urge the Government to make it absolutely crystal clear that the qualifications that were previously recognised will remain recognised in perpetuity for the people who hold them unless there is a major change. Something like that might happen; for example, a profession might disappear completely or change so much that ongoing training would obviously be wanted. There is a real need to emphasise that these are valid qualifications and that they are of equal status—and that the people who hold them are viewed as being of equal status, that they are welcome here and that we appreciate the work that they do.
Lord Fox (LD)
My Lords, this has been a short but important debate. I expect the Minister to stand up and say that EEA professionals whose qualifications were recognised before the end of the transition period will continue to be recognised, but I warn him—again, in the spirit of helpfulness—to be careful what he promises because there is a problem: how do we know who has qualifications?
For the 5 million-plus EU nationals who have applied for settled status, the Home Office has only been checking the box that says “settled status”. It has not been verifying all withdrawal agreement rights, including professional qualifications. If these people remain in the job they are in now, so be it, but in the event that they move to another job with a new employer, I do not know how the process of them verifying their professional qualifications will happen. When the Minister answers this question, he needs also to answer the question of how this process will be effected for the millions of people, potentially, who came through the mutual recognition process, meaning that their names may not have been—indeed, probably were not—gathered with all the regulating bodies. How will it be managed? As previous speakers have emphasised, the role that these people already play in the United Kingdom is not just important but vital. It is also vital that the Government understand that these people’s qualifications need to work not just for their current job but for their next job and the one after that.
Baroness Blake of Leeds (Lab)
I thank everyone for their contributions in this really important area. I join noble Lords in raising concerns about the impact of the Bill on the qualifications of those who already live and work in the UK.
I thank the noble Lords, Lord Patel and Lord Hunt, and the noble and learned Lord, Lord Hope, for signing my Amendment 60. Their expertise, especially in the medical and legal professions, has been incredibly helpful for this debate and for my first amendment to a Bill in this House. I could not be more appreciative of such cross-party support. I share the intention behind Amendment 37 and thank the noble Lords, Lord Palmer and Lord Fox, and the noble Baroness, Lady Bennett, for tabling it.
It is absolutely clear from the debate that we need to give those who already have their professional qualifications recognised in the UK certainty and confidence that this legislation will not affect them negatively, especially because, in many cases, the professionals and people working in these areas already live in our communities, have decided to call the UK their home and are people on whom all of us so often rely, particularly for our vital public services. This is especially true in the context of shortages, as the noble Baroness, Lady McIntosh, set out, picking up on the comments made by the noble Baronesses, Lady Fraser and Lady Finlay, about the whiff of doubt that exists at the moment.
We cannot repeat this frequently enough: last year, the number of non-British people here included 169,000 NHS staff in England, 122,000 staff on the Nursing and Midwifery Council’s register and 247,000 staff in social care. We are hugely grateful to all these key workers—especially for their efforts during the pandemic. As I said at Second Reading, we cannot clap for carers today then strip them of their qualifications tomorrow. We need to stand behind all these workers and want to do so side by side with Ministers.
In the Explanatory Notes to the Bill, the Government’s central promise was that
“nothing in the Bill prevents, qualifies or otherwise impacts the ability of those with existing recognised qualifications from continuing their areas of practice in the UK”,
but the Bill as drafted is currently silent on this. Therefore, Amendment 60 would write the Government’s own promise into the Bill. Surely the Minister will have no objection to accepting this simple but extremely important amendment. How can he guarantee protection of workers without it?
I am very grateful to the noble Lord, Lord Patel, for pointing out in conversation that many who have registration are not currently practising, and there needs to be reassurance for them as well. We have the opportunity to provide the certainty and confidence that all so richly deserve. Let us do what we can to provide the atmosphere of trust that we have mentioned today.
Lord Grimstone of Boscobel (Con)
My Lords, I thank the noble Lord, Lord Palmer of Childs Hill, and the noble Baroness, Lady Blake of Leeds, for their amendments. I note that they are supported by several other noble Lords. Many noble Lords, including the noble Lord, Lord Purvis of Tweed, have spoken previously about the importance of ensuring that professionals who have already had their qualifications recognised in the UK should be able to continue to rely on those recognition decisions. I completely agree with this. Those professions make an important contribution to the UK, the individuals concerned are very valuable to us and I am happy to put that firmly on the record. That is why this Bill, and any regulations made under it, will not affect the status of those with existing recognised professional qualifications. As I will explain, we are in complete assuagement territory here, without there being a whiff of a doubt, and I hope I can demonstrate that clearly to noble Lords.
To explain fully, the Government secured provisions to protect existing recognition decisions in each of the UK-EU withdrawal agreement, the UK-EEA EFTA separation agreement and the UK-Swiss citizens’ rights agreement. EU-qualified professionals living or frontier-working in the UK at the end of the transition period who had their qualifications recognised by the relevant UK regulator will continue to have their recognition protected under the terms of the withdrawal agreement. In answer to the noble Lord, Lord Fox, those individuals will be on the professional register of the professions with which they are registered. This is of course a separate matter from any question of settled status in an immigration context.
There are similar provisions for holders of Norwegian, Icelandic and Liechtenstein qualifications under the UK-EEA EFTA separation agreement and for holders of Swiss qualifications under the UK-Swiss citizens’ rights agreement. Indeed, under that last agreement, Swiss professionals can continue to apply for recognition of qualifications under the current terms up until the end of 2024. These provisions have been given effect in the 2019 recognition of professional qualifications regulations, as amended in 2020 using powers under the European Union (Withdrawal Agreement) Act 2020. Clause 5 does not amend or affect the legislation which upholds the UK’s obligations under these agreements, and the UK will continue to protect the rights of these citizens.
The regulations which commence Clause 5(1) will include saving and transitional provisions. These will ensure that professionals whose qualifications were recognised from the end of the transition period to the point when the 2015 regulations are revoked are unaffected. The Government will consider carefully when to implement commencement regulations to support a coherent legislative framework, while also ensuring that decisions are taken at the right time for professions affected. This will support a smooth transition to the new framework for recognising overseas qualifications. These regulations will be laid before Parliament at a suitable time and not without the appropriate prior engagement with devolved Administrations, regulators and other interested parties. This also allows regulators time to transition from operating under EU-derived obligations to the new system suited to the needs of the UK economy. I hope this answers the point made by my noble friend Lady Fraser.
Additionally, the Bill does not change the status of any recognition arrangements that regulators have with counterparts in other countries. They can continue, and the Government are conducting extensive engagement with regulators to ensure that they understand the measures in this Bill. The Government will make clear in those interactions that the Bill will not affect in any way the status of professionals already practising in the UK. I hope this provides reassurance that the Bill is fully consistent with the intent behind these amendments, and that noble Lords therefore feel able not to press them.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
I have received requests to speak from the noble Lord, Lord Fox, and the noble Baroness, Lady Finlay of Llandaff. I call the noble Lord, Lord Fox, first.
Lord Fox (LD)
My Lords, I thank the Minister for his partial answer to my point, but he will find if he goes back to the department that proof of recognition will have to be re-presented if people are moving jobs. If that is not the case, I will be happy to accept it and we can have one of his famous letters on the subject. My understanding is that this is not his department’s doing but part of the hostile environment that the Home Office still pursues; the noble Baroness, Lady Finlay, made the point about the hangover from previous incidents. My understanding is clear on this, so I would be pleased if the Minister is able to disabuse me of it.
Baroness Finlay of Llandaff (CB)
My Lords, to add to that, I listened carefully to the Minister when he spoke about the person holding the qualification, but my concern relates to the qualification itself. If somebody holds a qualification that was mutually recognised in the EU, has not yet come to this country but wishes to in five years’ time, will that qualification remain recognised as it would have previously or is there a possibility of additional hurdles being put in place for that person coming in? I go back to the term “grandfathering” and whether the recognition that existed will continue, or whether it continues only up to date for those people who are currently on a register in this country and possibly have settled status. That was not clear, or perhaps I did not understand it.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
I invite the Minister to reply to both speakers.
Lord Grimstone of Boscobel (Con)
My Lords, these are both important questions which affect the rights of individuals, and so I will write to noble Lords on these matters to be crystal clear with my answers.
Lord Palmer of Childs Hill (LD)
My Lords, I thank all noble Lords for their contributions to this debate, which has been incredibly helpful. I particularly thank the noble Baroness, Lady Fraser of Craigmaddie, for introducing words like “whiff”, “processes” and “painless”. That is the whole point: this should be painless rather than putting things in people’s way. I thank the noble Lord, Lord Hunt of Kings Heath, who has noticed the similarity between expertise in the House of Lords and keeping the expertise in qualifications. I thank the noble Baroness, Lady McIntosh of Pickering, for her comments about making people welcome, and I thank the noble Baroness, Lady Finlay, for saying the same.
The Deputy Speaker (Baroness Fookes) (Con)
We come to the group beginning with the question that Clause 5 stand part of the Bill. Anyone wishing to press this or anything else in the group to a Division must make that clear in debate.
Baroness McIntosh of Pickering (Con)
I am grateful to have the opportunity to discuss more broadly the contents of Clauses 5 and 6. Clause 5 relates to the revocation of the general EU system of recognition of overseas qualifications. It revokes the European Union (Recognition of Professional Qualifications) Regulations 2015 and provides regulation-making powers to the appropriate national authority—in this case the Secretary of State, the Lord Chancellor and the devolved Administrations—to modify any legislation that it considers necessary as a consequence of this provision. The fact that this is a broad regulation-making power underlines the need that I identified earlier to consult before the power is exercised, so I again press my noble friend on that point. Clause 6 looks at the revocation of other retained EU recognition law and provides the appropriate national authority with a regulation-making power to modify other legislation for professions that are outside the scope of these regulations but still part of the broader EU-derived recognition framework.
My first question to my noble friend relates to Clause 5(1), which represents basically a cliff-edge revocation of the whole of the EU MRPQ regime in UK domestic law. If we adopt such a one-size-fits-all measure, and given the constraint placed by Clause 2 on the gap-filling power in that clause, would it not be sensible for the Bill to include a power to save, in an appropriate case, the effect of specified elements of the EU-derived MRPQ rules in relation to a particular profession or professions?
This has been put forward by the Bar Council of England, which states:
“We doubt whether Clause 5(2), even read with Clause 13(1)(c)”—
which we will discuss separately—
“provides a power to save the effect of any part of the remaining EU-derived MRPQ regime.”
My concern is that there may be parts of that regime which, for an interim period or even longer, some of the regulators or professions would wish to keep. I understand that that would not be possible. Is that something my noble friend might review for the purposes of the debate today?
I understand that Clause 5(1)
“would come into force on a day specified by the secretary of state in regulations.”
A memorandum to the Delegated Powers and Regulatory Reform Committee says:
“BEIS has said that it intends that commencement regulations would “include savings and transitional provisions relating both to qualifications that have already been recognised and to applications that are already in progress but not yet complete”.
Can my noble friend confirm how that will play in the different jurisdictions, particularly regarding the legal profession, which is dealt with separately in Scotland, England and Wales?
The Library briefing also states:
“Clause 6 would come into force on the day the bill was passed. In the context of clause 6, the Government has said not all pieces of relevant legislation will be revoked at the same time. Some arrangements may be kept for a longer period depending upon the needs of a given sector.”
My concern is that this may lead to some confusion and a lack of understanding of the legal status of the provisions. I refer again to BEIS and its memorandum to the Delegated Powers and Regulatory Reform Committee on 12 May 2021. Paragraph 50 says:
“In particular, it is expected that the healthcare sector will need a longer period of time to transition to the new system to avoid recruitment and retention issues in those sectors”,
which we have just briefly debated. It continues:
“BEIS is of the view that it is appropriate to allow for Departments and devolved authorities to revoke these measures at an appropriate time, without fixing a particular date in the bill.”
Is my understanding correct that we could be faced with different situations in the different devolved nations? Are the Government mindful of what the implications might be?
I am grateful to have had the opportunity to discuss these concerns about Clause 5. Will my noble friend consider that there may be parts of the EU system we want to keep? I accept we have taken the decision to leave it, but, for an interim period, that may be the case. The Explanatory Memorandum states:
“Following the end of the transition period, this system had been retained in the interim to provide certainty to businesses and public services by offering preferential qualification recognition to holders of EEA and Swiss qualifications. The new recognition framework, as set out in Clause 1, will be implemented alongside revoking the 2015 Regulations.”
To sum up, there could be different regimes working at the same time under Clauses 5 and 6. How does my noble friend intend that his department will manage that to the best possible effect?
Baroness Randerson (LD)
My Lords, I welcome these amendments. I will start with the points the noble Baroness, Lady McIntosh, was dwelling on at the end—the impact assessment gives the impression that, when this Bill becomes law, it terminates the transitional arrangements which continue to recognise EU qualifications. Indeed, most of the Bill indicates that. Clause 6 undoubtedly muddies the water somewhat. There is a need for clarification from the Minister because there is scope for a great deal of confusion.
From previous comments made by the Minister, I gather that the UK wanted to agree mutual recognition of qualifications as part of the trade agreement with the EU but the EU was not prepared to accept that. I pointed out on the first day in Committee that this is not an agreement between equals; for example, there are 22,000 EU-qualified medics working in this country but only 2,000 UK-trained medics across the countries of the EEA plus Switzerland. In short, we depend a lot more on them than they do on us. The pattern is repeated across a large number of professions. It is not uniform, but it is repeated widely.
Therefore, the Government’s decision to throw their toys out of the pram and say, “If you won’t recognise ours, we won’t recognise yours”, is, I regret to say, simply self-defeating. It also displays a seriously worrying lack of awareness of how long it takes for a regulator to go through the approvals process for each new country’s qualifications. The impact assessment refers to contacts with regulators but, as I said in a previous debate, these are very minimal, and regulators were notably sparing in their responses to government consultation. We do not have a thorough picture of how this will impact on regulators, but I can assure noble Lords that years, not months, is the norm for recognising qualifications—for going through the whole process. As a result of this Bill, there will be a gap when the old qualifications are no longer recognised and the new ones are not yet accepted. Already, we have shortages in a number of professions; we have had shortages for many years, but the Brexit situation has made them much worse. The rhetoric that went along with Brexit has made so many foreign professionals feel unwelcome, and that lack of feeling welcome has had an impact way beyond the EU immigrants; it has impacted on people across the world.
I suppose I should be reassured that the impact assessment states that, although the Bill sweeps away current EEA recognition, the regulators are able to sign recognition agreements with individual countries. However, there is an element of farce here, because dealing with that costs money and is bureaucratic and complex. It is a pity the noble Baroness, Lady Noakes, is not in her place, because she would be nodding fiercely with me on that one. But it will cost money, and that cost will fall on people working in each of the professions concerned. Also, the Minister himself told us in a letter that the old agreements were unpopular, although I have not found anyone echoing that within the sector. But the Government felt that they were unpopular and wanted to replace them.
The sensible thing would be for the Government simply to continue to accept the status quo—the EEA system—at least for a much longer interim period and perhaps review it after five years. I hope we can persuade the Minister that the pragmatic thing to do is to accept this amendment, or maybe even to commit to looking at it again and adding that the whole thing will be reviewed in five years’ time. It will take that long to re-erect a sensible, comprehensive system to replace what the Bill is sweeping away.
Lord Purvis of Tweed (LD) [V]
My Lords, it is a pleasure to follow my noble friend. She highlighted extremely well the nonsense in the Government’s proposals, which seek a faster-track application system and reduced fees for in-demand services, at the same time as recognising that the Bill itself will increase fees. I will make a couple of points in support of my noble friend’s case and that of the noble Baroness, Lady McIntosh. Some of us have not lost hope that a degree of pragmatism will still be found somewhere in the basements of Whitehall and that the Government can bring it up to see the light. If so, it would be in our self-interest and in the interests of our professions and public services.
On the first day in Committee, noble Lords discussed the Minister’s attempt to read a degree of revisionism into the position of the UK and the EU in forward-looking negotiations and the withdrawal agreement. For the benefit of the Committee, the UK’s negotiating document called for “a framework” for the relevant authority of a profession in a jurisdiction. The EU’s response, in paragraph 43, referred to
“a framework for negotiations on the conditions for the competent domestic authorities”.
There really was not much between the two after the UK Government said that they wanted a Canada-style agreement. The EU said, “You will have it”, and we have such an agreement, with increased burdens and complications and the UK having to negotiate with each individual member state. That is the impression given by the Government’s impact assessment, which says that it gives us a competitive advantage and our professionals an advantage over others. However, we seem to hear from the Government that they are now quite open to a Europe-wide mutual recognition system. The Minister is being coy: this is an opportunity for him to be abundantly clear on whether the UK would favour—continues to favour, if his argument is to be believed—a Europe-wide system.
My noble friend Lady Randerson pointed out why it is in our interests to hit the pause button and not inflict more damage. The regulated professions database, which the Government have cited in the Bill’s accompanying documents, makes the case for us. Its records go back to 1997-98 and the number of UK doctors since then who have had their UK qualifications recognised in all European countries—the 27 and the smaller number before enlargement—is 2,468. In that period the UK has recognised 32,412 to work in our health service. The figures for civil engineers were 550 from the UK working in Europe and 1,227 Europeans in the UK.
For UK nurses going abroad, the figure is 4,570, while for EU nurses with recognised qualifications working in the UK over the period it is 47,000. If you take out Ireland—to which 3,850 UK nurses went, while Europe had 3,355 coming in—700 British-recognised nurses went to Europe to work, against 44,000 Europeans working in our health system. It is abundantly clear that these difficulties, which will continue, are putting pressure on our services which the Government say the Bill is meant to counteract.
The worst example I have found, however, is in social work. It is clear from government statements that there is a shortage in the profession. This database shows that over the same period, 63,000 British social workers’ professional qualifications have been recognised abroad, while in the UK we have recognised 201,000 from the 27 and their predecessors.
It is perfectly clear that we are creating a major problem in our labour market. The Government themselves have said in a Home Office statement that they forecast a 70% reduction in new applications. So the reason the noble Baroness, Lady McIntosh, is correct to say that there should be a degree of pause is that we have damaged the reputation of those who have worked here already, we have stopped that trajectory and, as I said, we are forecast to cut it by 70%. That will never be compensated for by those coming from other countries through some of those mysterious mutual recognition agreements that have not even been negotiated yet. I do not know what the Government’s view is on solving this problem of demand. The Bill will not do that and they need to set out what the solutions will be. At the very least, there could be a degree of common sense so that we do not halt all the benefits that the UK has at the moment and hit the pause button. For that reason, I support the amendment.
Lord Grimstone of Boscobel (Con)
My Lords, the core purpose of the Bill is to update how regulators recognise professionals whose qualifications and experience have been gained overseas, reflecting our status outside the single market and our global outlook. Clauses 5 and 6 are part of the means of doing that. I note that my noble friend Lady McIntosh of Pickering has given notice of her intention to oppose Clauses 5 and 6 standing part of the Bill. I hope that over the course of my speech I can change her mind. Noble Lords have raised a number of detailed technical points in this short debate, and I will obviously write to them on those points of detail, to the extent that I do not answer them fully in my response.
Clause 5 revokes legislation that places obligations on regulators to recognise professional qualifications in line with the systems that were in place when the UK was a member of the EU. Clause 6 complements Clause 5 by providing a power for modifications to be made to other retained EU recognition law to cause it to cease to have effect. The current arrangements for the recognition of professional qualifications were an interim system put in place to provide essential continuity immediately after the transition period. They were never meant to be permanent, nor do I believe that they should be. Legislation that obliges regulators to offer unreciprocated recognition to European Economic Area and Swiss-qualified professionals in the UK, often preferentially, is clearly not appropriate going forward. That is why Clause 5 will revoke the 2015 regulations.
Clause 5 also provides a power for consequential amendments to be made to other legislation, in particular corrections to cross-references or imported definitions. I hope noble Lords will appreciate that this will require a level of detail that would be set out more appropriately in secondary legislation. It will also enable the devolved Administrations to modify legislation that falls within their devolved competence.
We believe that there are benefits to all four corners of the UK from having a global outlook to the recognition of professional qualifications. We have not placed an obligation on the devolved Administrations to use this power because we trust that they will make decisions that will allow the new framework to operate effectively, including revoking any remaining legislation no longer compatible with our new status outside the EU single market. As we make these changes, we will work with interested parties, such as the devolved Administrations and regulators, to make sure that they work for the professions concerned.
Clause 5 will come into effect only through commencement regulations. These regulations will include saving and transitional provisions ensuring that professionals recognised before the revocation are unaffected—a point that we discussed in one of our earlier debates. The savings also ensure that any ongoing applications made before revocation would be treated under the rules of the interim system, which means that applications in the pipeline will continue to be considered.
The Government will consider carefully when to implement commencement regulations to support a coherent legislative framework while also making sure that decisions are taken at the right time for the professions affected. I assure noble Lords that we will not rush this. We will think about it carefully, and the commencement regulations will be brought in when we think it is the right thing to do, taking all this into account. This will support a transition to the new framework for recognising overseas qualifications. These regulations will be laid before Parliament at a suitable time and—I assure my noble friend Lady McIntosh—not without the appropriate prior engagement with the devolved Administrations, regulators and other interested parties. This also allows regulators time to transition from operating under EU-derived obligations to the new system suited to the needs of the UK’s economy going forward.
I turn now to Clause 6, which complements Clause 5 and enables modifications to be made to other relevant retained EU recognition law to cause it to cease to have effect. This is legislation which provides for, or relates to, the recognition of overseas qualifications or experience for the purpose of determining whether individuals are entitled to practise.
In providing for the revocation of this EU law, your Lordships have just heard me say that the Government are committed to their existing obligations to implement the provisions in the UK-EU withdrawal, EEA EFTA separation and Swiss citizens’ rights agreements with regards to qualification recognition. I reassure noble Lords, as I did in a previous debate, that Clauses 5 and 6 do not amend the UK’s obligations under these agreements, nor do they prevent regulators setting up or continuing routes to recognition for professionals with overseas qualifications in line with other existing powers.
Clauses 5 and 6 are essential for paving the way for the introduction of the framework I have set out. I commend that these clauses should stand part of the Bill.
Baroness McIntosh of Pickering (Con)
My Lords, I am grateful to those who have spoken and to the noble Baroness, Lady Randerson, for being so supportive, for her reference to the impact assessment and for her recognition that there will be a gap as a result of the Bill, as the old qualifications will no longer be recognised nor new ones accepted. I think both she and the noble Lord, Lord Purvis of Tweed—I am also very grateful for his support and forensic analysis of the situation—said that the status quo for a limited period would be acceptable.
I am grateful to my noble friend for his response. I am not entirely clear whether he suggested that we will now have that limited reliance on the status quo, because he said in relation to Clause 5 that the commencement regulations would be brought in at the right time after the appropriate consultation. I am not sure I heard him respond to the Bar Council’s concerns that those good parts of the regulations that will be dropped when the new regulations come in might be kept in the longer term, but I commend that to my noble friend to consider.
The noble Lord, Lord Purvis, set out very pressing reasons, and went on to analyse the 70% reduction in applications that the Government have accepted there will be. He made a plea for a pause to limit the damage at this time. Concern has been expressed in the Committee, justifying this debate. I will consider whether further action is required at the appropriate stage, but for the moment I beg leave to withdraw my amendment.
Lord Foulkes of Cumnock
“(d) publish advice and information about immigration requirements for entry to the United Kingdom for purposes of practising a regulated profession.”
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, there have been a number of interesting debates today, and this is an important one. This amendment requires the Secretary of State to make arrangements for the assistance centre to give information about visa and work permit requirements. In a previous debate, the noble Lord the Minister—the noble Baroness the Minister is answering this debate—told us that the assistance centre is up and running. Clause 7 provides for the assistance centre, which is there to facilitate transparency on the recognition and regulation of professional qualifications in the United Kingdom, to provide advice and assistance to UK qualified professionals who want their publications and experience to be recognised overseas, and to publish certain advice and information.
I agree with the Law Society of Scotland, which drafted this amendment for me, that it would be important for the assessment centre also to provide advice and information about visa and work permit requirements for entry to the UK for employment and other related purposes. At present, the UK Centre for Professional Qualifications—UK CPQ—which is managed by Ecctis, provides advice and information across the UK on recognition of professional qualifications in an international context in the UK and abroad. Clause 7 provides the statutory basis for that service.
The UK CPQ does not provide advice or information about visa and work permit requirements for entry to the UK; nor does it signpost to relevant advice and information on immigration matters. There is another body, the UK national agency for international qualifications and skills—UK ENIC—which is also managed by Ecctis. Visitors to its website, who wish to see information about visa and nationality matters, are directed to the Home Office. I do not need to tell the Committee that that is not the most helpful advice to give to anyone. That there is a choice of bodies with similar names operating in the same sphere and run by the same entity must be confusing to an individual from abroad who wants to have their qualification recognised but also to obtain the basis for employment in the UK; namely, a visa or work permit.
I agree with the Law Society of Scotland’s view that it would be much better and more cohesive were the assistance centre more of a one-stop shop, in respect of the benefits of offering a joined-up service to nationals of other countries seeking to requalify and potentially establish themselves in the UK. This amendment will help achieve that. I agree with the Law Society’s view that the Long Title of the Bill is broad enough to bring such functions within the ambit of the assistance centre. Perhaps between now and Report, the Minister—who I know is a very helpful Minister—could make inquiries about whether such a provision could be included in amendments later in the Bill’s passage. In the meantime, by making this point, I hope that the Government will agree that there would be practical and reputational benefits of offering comprehensive advice and assistance to international colleagues.
That deals with Amendment 39. Amendments 44 and 50 are also in my name. I will not press them, because we dealt with the same principle on a previous amendment. Members who were there will recall that I passed on the responsibility to my friend, the noble and learned Lord, Lord Hope, who sadly cannot be with us today. What he explained then applies to this amendment equally well. The points made by the Minister and the noble Lord, Lord Lansley, were helpful, particularly the Minister’s assurance that the regulator is not required to make the disclosure if that would contravene the data protection legislation. It was very helpful to have that clarified. The noble and learned Lord, Lord Hope, and I put on record our thanks to the Minister. I beg to move.
Lord Fox (LD)
My Lords, it is always a pleasure to follow my near namesake, the noble Lord, Lord Foulkes, and endorse his words. This group contains a number of different amendments. I will focus on Amendment 43 in my name, but that does not indicate that I do not support elements of the others.
I have done what the noble Baroness, Lady Noakes, advises against, which is to table an amendment to one element of this clause in order to speak to a larger confusion that I have. This is a probing amendment, but the real point is: what is this centre for and why will it operate as it does? We have established a few facts at Second Reading and through previous amendments, so we know that the Government foresee one overarching centre rather than four national ones, and to do this, the Minister has painted a picture of two people and a website—a landing page. Forgive me, but this is a website requiring 48 lines of primary legislation, so it must have some importance in the mind of the Government to go to this much trouble when it replaces what was a sentence in an EU directive, which is the previous assistance centre. So much for red tape. We have 48 lines of primary legislation to establish a website run by two people.
My amendment leaves out Clause 7(4), which deals with disclosing information. Clearly, it reinforces that certain information cannot be disclosed, but to whom will this information be disclosed? It paints a picture of the collection and dispersing of individuals’ data, so what is the point? Why is it there? What data is it—whose stuff? I do not understand what it is for. I understood that it was to point people in certain directions. This is saying that it is a requirement to disperse data, but what data, and to whom? That is the central reason why I have put my name to this amendment. Of course, if it is collecting important data, it would be nice to know that it is doing so properly, so the terms of this subsection are of course correct, but we need to know why this centre is being set up as it is and what on earth it is for.
Baroness Garden of Frognal (LD)
My Lords, I have two very small amendments in this group, both taking us back to my unfavourite word, “substantially”. When we were discussing this last week, my main objection was that “substantially” always implies that something is missing. Last week it was applied to standards, and my argument then was that you cannot water down standards so should not use “substantially”. With these two amendments, my argument is that the word is completely unnecessary. In “substantially corresponds to”, “substantially” is a modifier and “corresponds to” is a modifier; you do not need them both, so I simply put this forward to ask if we can please neaten up the Bill by two words and take out “substantially” in both contexts.
Baroness Noakes (Con)
My Lords, I speak on Clause 7 standing part of the Bill, rather than on the detailed amendments in this group. We had a brief discussion about the advice centre on our first Committee day, when the Minister told us that the current UK Centre for Professional Qualifications does not cost very much, although he would not tell us how much. The UK set up the Centre for Professional Qualifications because it was required to by the EU, so I do not understand why BEIS has not looked long and hard at whether it needs to carry on funding it now that we have left. Just because people have occasionally found an item useful is not a sound rationale to carry on spending money on it. There has to be a demonstrated need, and nothing in the documents on the Bill has established this.
Until I got involved in the Bill, I had not heard of the centre. I have since visited the website and am doubtless going to be included in its statistics on hits next time it reports to the Minister how successful it is. I did not find it useful at all. I first wanted to know how I could come to the UK to practise as a registered auditor, but the website gave me no information at all. It does not have a global search facility, so I could not even work out whether the information was hidden somewhere on the website. When I said that I was a UK professional accountant seeking to practise abroad, again it had absolutely nothing to tell me.
I suspect that, if the centre disappeared from the web tonight, no one—but no one—would miss it. Most of what is on the website can easily be found with a search engine and a couple of extra clicks. It is not a treasure trove of information; it is very minimalist. The best thing that could be done with it is to put it to sleep, which is why I do not believe that Clause 7 should stand part of the Bill.
Baroness McIntosh of Pickering (Con)
I am delighted to speak in support of Amendment 39 from the noble Lord, Lord Foulkes, and I commend the remarks of my noble friend Lady Noakes, because it takes a brave person to say what she did. I look forward to hearing my noble friend Lady Bloomfield’s response from the Front Bench. I do not know whether I have the temerity to try the same, as a non-practising advocate, but I am tempted.
Amendment 39 is particularly important given the reasons that we debated in the short debate on Clauses 5 and 6 standing part of the Bill. Those reasons were raised again by the Law Society and the noble Lord, Lord Foulkes, who so eloquently moved Amendment 39: we need a tool to remove all barriers, or any whiff of a barrier, that might be in this place. It is important to take this opportunity to do that. I hope that my noble friend enthusiastically endorses Amendment 39 as a small but essential tool to enable those who might consider applying for their chosen profession to work in the United Kingdom to do so.
Another reason for this was given by the noble Lord, Lord Purvis, in summing up the last debate, who mentioned that we now have a Canada-style agreement. The briefing I have from the Law Society of England and Wales is rather discouraging:
“This model is yet to deliver a single MRA between the EU and Canada in the three years since it came into force … We feel Government impetus is necessary to achieve MRAs.”
Clause 7 is an essential part of the Bill. It is extremely important that we have an assistance centre and I welcome the fact that it is already up and running. It is even more important that it passes the Noakes test—that it is easy to use, fit for purpose and will embrace Amendment 39.
I am not going to speak at length, but I take this opportunity to support the amendment in the names of the noble Lord, Lord Foulkes, and the noble and learned Lord, Lord Hope of Craighead, on disclosure. I look forward to my noble friend’s response on that and to Clause 7 stand part.
Baroness Randerson (LD)
My Lords, my noble friend Lady Garden has wisely pointed out the poor grammar in the Bill. I hope that note will be taken of that. The really significant question here is what the assistance centre is for. It is built on—and the Minister went out of his way last time to point this out—the modest size and the modest number of inquiries that the current assistance centre has dealt with. It is a creation of the UK Government as a result of a non-legal requirement from the EU—a suggestion from the EU. It is not a legislative requirement by the EU. The UK Government decided to make the requirement in law, but the EU situation does not make it a requirement.
We therefore have this organisation that has clearly, in the past, had a small, modest but useful function, but the world has moved on. If you search for anything online these days, there is a wealth of information. Even if you have a limited level of experience in a particular field, you rapidly discover what information is reliable and what is not. What is proposed here is a much bigger organisation—a much more grandiose and legally established organisation with scope for further growth. The Minister told me not to be suspicious, but I remain suspicious. In my view, the UK Government see this organisation as an opportunity for them to take a centralising, co-ordinating role which will nudge the devolved Administrations out of the way in fields where the vast majority of activity is devolved, such as health, teaching and social work. The day-to-day activity in the health service, the teaching profession and social work is done and controlled by the devolved Administrations, even if there are not always separate regulators.
We have raised previously the concurrency of powers of the devolved Administrations and the UK Government. This is an attempt by the UK Government to bring what they see as order and an element of control to the situation. If the assistance centre had a purpose, modern search facilities online have now made it redundant. I agree with the noble Baroness, Lady Noakes, that it is better to put it to sleep—put it out of its misery.
Baroness Hayter of Kentish Town (Lab)
My Lords, while I absolutely agree with my noble friend Lord Foulkes that any advice would be better if it was comprehensive and included all the things that everyone would want to know if they were applying either to move here or to go away, the more fundamental question, which I and the noble Baroness, Lady Noakes, asked, is whether we need Clause 7 at all. As she and others have said, it is not clear why it is necessary to establish a statutory advice centre simply to handle information and provide advice and assistance. It will not make any decisions. It will not have the authority to chide regulators for not doing something; it does not have any authority over them. The statutory requirement is actually on regulators to provide advice to the centre—there is no statutory requirement on the centre to fine them if they do not do it or anything else like that—although, as has been said, there are already other ways of getting that information. In addition, only the UK Government, not the other Governments in the Bill, interestingly enough, are able to enforce this requirement. I do not know whether that is an oversight but, given that there is more than one national authority in the Bill, it would be interesting to know why the requirement on regulators is laid down only by the UK Government.
This is all very strange. It is a very clunky and convoluted way of simply asking statutory regulators to tell a Minister such information as is needed to provide advice to potential applicants on how they go about getting their qualifications recognised here. They have been doing that for years. We heard earlier about a number of regulators, particularly in the health service, veterinary science and other areas, that have been doing this for years without any statutory requirement to provide the advice, so it is unclear why the new law is needed. As has already been said, we know that the assistance centre is already in operation. But I think none of us knows why we need a specific underpinning now, and what it is that could not be done by a couple of civil servants within BEIS.
The Minister said last Wednesday that “new legislative cover” is required, but he did not spell out what it was required to do—why this could not be done on a voluntary basis. We have lots of other advice centres which do not have to have statutory underpinning, so why is legislation needed? He said, as the noble Lord, Lord Fox, just quoted, that the centre
“is basically a focal point—a signposting mechanism that tells people where to go to get more information about professions”
and that
“it employs either two or three people.”
It must be tiny; I was going to say that it received 1,600 queries in a year, but it has now received 1,601—I think our little website here gets far more hits than that. As the Minister had the honesty to confess:
“These queries can be as simple as saying, ‘What is the address of the place I have to write to, to find out how I become a nurse in Great Britain?’”—[Official Report, 9/6/21; col. 1501.]
If you google “nurse vacancies”, you might just find it. The idea that we are employing anybody and paying them money to tell people about the address they need to write to to find out how to become a nurse in Great Britain makes me worried, and why on earth does it have to be a statutory body if it is just signposting?
The impact assessment says that
“the Secretary of State can (through contractual arrangements) require the national assistance centre to support professionals”—
it is unclear what “support” means—
“in getting their UK qualifications recognised overseas by providing reasonable information to their overseas counterparts.”
Again, surely the regulator can do that. If a doctor wants to apply to be a doctor in New Zealand, for example, surely their regulator can supply that information. If it is to be done by the advice centre and by contract, it is really hard to think why, again, it needs two bodies or persons to be statutory if they are simply setting up contracts to be able to exchange information—because it is not a decision-making body.
It is unclear what the relationship will be between the centre and overseas regulators. If it is by contracts, how much will they be bound by data protection to ensure that the overseas regulators will look after people’s data according to normal laws? That is easier in a regulator-to-regulator agreement—we have talked about these elsewhere, so why not here?
I am completely mystified as to why Clause 7 is in the Bill. Perhaps we can just take it out, and then we can all go home.
Baroness Bloomfield of Hinton Waldrist (Con)
I have to confess that I am still surprised that this is proving such a contentious part of the Bill. For the record, the centre has had 1,602 inquiries—I rang it this morning and it was very helpful, answering the phone within minutes and telling me exactly what to do about what I was asking.
I thank the noble Lords, Lord Foulkes and Lord Fox, and the noble Baroness, Lady Garden of Frognal, for their amendments, which address wide-ranging issues around the operation of the assistance centre, in particular extending the scope of advice provided, readjusting how information-sharing interacts with data protection, and the definition of “corresponding profession”.
Amendment 39 from the noble Lord, Lord Foulkes, seeks to place an additional duty on the Secretary of State to make arrangements for the assistance centre to publish advice and information about immigration requirements for entry to the UK for the purposes of practising a regulated profession. I clarify that, under the current arrangements, the assistance centre is part of the UK ENIC, which I had not realised until the noble Lord brought that up. The UK ENIC focuses more broadly on academic qualifications, whereas the assistance centre focuses on professional qualifications.
Placing an additional duty on the assistance centre to publish advice and information about immigration requirements would go beyond the scope of the Bill. Furthermore, under the provisions of the Immigration and Asylum Act 1999, immigration advice and services can be provided only by qualified persons. To include these additional requirements would increase the asks on the remit of the assistance centre and the qualifications of the staff required to deliver it. It would also increase the costs associated with doing so. I know that others in the Committee, including my noble friend Lady Noakes, wish any service to be as economical and targeted as possible.
The Home Office already provides guides and tools to the public to help them understand immigration requirements and eligibility, including a dedicated visa-checking tool. Adding this to the assistance centre contract would therefore duplicate Home Office services.
Amendment 43 tabled by the noble Lord, Lord Fox, would remove Clause 7(4), which clarifies that the disclosure of the information required under Clause 7 does not breach disclosure restrictions, such as any obligations of confidence. The subsection as drafted is both consistent with existing legislation and required to give clarity about the intersection of this clause with data protection legislation. Without it, no direction would be given on which takes precedence.
The noble Lord, Lord Fox, also asked about the information that the Government are asking regulators to provide to the assistance centre. This is very limited in nature and not onerous: it is to ensure that the assistance centre has the necessary information to support the delivery of its functions. It also facilitates transparency on the recognition of professional qualifications in the UK. Regulators are already required to provide this information to the current assistance centre, and, in our engagement, no regulators have raised concerns about continuing to do so. The objective of the service provided by the assistance centre is and always has been to complement and support regulators, not to replace them.
Amendments 44 and 50 tabled by the noble Lord, Lord Foulkes, relate to data protection in Clauses 7 and 10. Similarly to another tabled by him last week, they seek to create a defence if a disclosure made under the duties in either clause contravenes data protection legislation. As my noble friend Lord Lansley reflected on the first day of Committee, the approach in the Bill is consistent with existing legislation such as the Trade (Disclosure of Information) Act 2020 and the European Union (Future Relationship) Act 2020. I return to my earlier point that Clauses 7 and 10 require disclosure only when it does not contravene data protection legislation. Therefore, a defence is not needed.
The Deputy Chairman of Committees (Baroness Barker) (LD)
I have received a request to speak after the Minister from the noble Lord, Lord Fox.
Lord Fox (LD)
I thank the Minister for her response. I am having trouble matching the words that she is using with the thing that she is describing. That is my problem. The words “a website run by two people” and “assistance centre” are not really the same, so are we talking about an assistance centre or a landing page? When I talked about a landing page the other Minister kind of nodded. It would help if the Government would clear up what this thing actually is and, in so doing, tell us how much they think it will cost.
The specific question I have is about data. The Minister seemed to suggest that in order for this centre/website to conform to existing data protection regulation it needed guidance in primary legislation. Is that because it will be asked to do more data protection, less data protection or the same amount? If it is the same amount of data protection, why does it need primary legislation to tell it what to do?
Baroness Bloomfield of Hinton Waldrist (Con)
Providing a statutory basis for the continued existence of an assistance centre places a duty on competent authorities to co-operate with it. This is to ensure that the assistance centre has the necessary information to help support the delivery of its functions, rather than relying on voluntary information-sharing arrangements. In a practical sense, it provides a signposting system through its website. It also has a telephone answering service, which dealt with my question this morning about the need for English language skills for particular professions. It answered the question very carefully and properly by saying that that was not part of its remit and I needed to talk to the visa requirements section. The centre is at least directing you to where you need to go for your questions to be answered.
The legislation also requires that the assistance centre provides information to the Secretary of State when requested. As I said, this is not onerous information, but it is an important requirement, as the Secretary of State has a responsibility for the wider recognition of professional qualifications principles. Lastly, its existence in legislation helps validate the credibility of the assistance centre for engagement with its overseas counterparts.
Lord Foulkes of Cumnock (Lab Co-op)
My Lords, a lot of interesting things have emerged during this debate. The noble Baroness, Lady Noakes, my noble friend Lady Hayter and the noble Baroness, Lady Randerson, seem to have set up a new all-party group—friends of Google. I warn them to be careful and alert them to the fact that if you Google something you will find at the very top of the list people who have paid to come top of that list. If you look, for example, at getting a Covid test, you will find that the ones that you pay for are right at the top and the free ones are down at the bottom. Beware of Google—and other equivalents—because they do not necessarily give you the best advice.
The Minister has been very helpful in her response. However, some things still need teasing out as far as the assistance centre is concerned. I would argue still that the visa and admission regulations that I am suggesting would enhance its role. It was suggested by the noble Baroness, Lady Randerson, that the functions it is dealing with now might be better dealt with at a devolved level. As she knows, I am a very strong devolutionist. Immigration, visa regulations and other regulations are not devolved. Therefore, that would give the assistance centre a little more credibility.
However, my noble friend Lady Hayter has a good point: does it need to be statutory? I think you can have an assistance centre working very effectively without it having to be on the face of the Bill. Often, we argue strongly that things should be on the face of a Bill, and we get rebuffed, but I am not sure the case has yet been made for it to be statutory.
When I was a Minister, I used to tell officials and civil servants to go back and think again from time to time. I ask that both Ministers—the noble Lord, Lord Grimstone, and the noble Baroness, who has replied so eloquently to this debate—perhaps have another look afterwards, in the cold light of tomorrow morning, and go back to the department and say, “Wait a minute. Some valid points have been raised”. That is what these sessions of Committee and Report are about—going back to the department. Perhaps it could be arranged for some of us to be given more information and some direct contact with the centre. There are things that can be done between now and Report that would make the Bill much better and make it more likely for us to get consensus when we get to Report. I hope the Minister will be able to do that. She is nodding nicely to me as always. With that, I will withdraw the amendment.
Professional Qualifications Bill [HL]
Tuesday 22nd June 2021
(3 years, 6 months ago)
Lords ChamberRead Full debate Professional Qualifications Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 2-III Third marshalled list for Committee - (17 Jun 2021)
Baroness Noakes
“(1A) Subsection (1) does not apply to a regulator of a regulated profession if—(a) the regulator oversees the regulation of a regulated profession carried out by another person or persons,(b) the regulator is satisfied that the information required by this section is available on the website of that other person or persons, and(c) the regulator’s website states where the information may be found.”Member’s explanatory statement
This makes provision for a regulator which does not regulate a profession directly but oversees the regulation carried out by other professional bodies.
Baroness Noakes (Con)
My Lords, in moving Amendment 45 I will speak also to Amendment 46 in my name. I shall also speak to Amendments 63 and 68 in this group, in the name of the noble Baroness, Lady Hayter of Kentish Town, to which I have added my name.
Amendments 45 and 46 both deal with the position of regulators that oversee the regulation of a regulated profession but do not carry out that regulation themselves. This typically arises where a regulator oversees a number of professional bodies, each of which provides qualifications for, and regulate those who practise, the profession. An example of this is the Financial Reporting Council, which oversees regulated auditors, but wholly or partly through the work done by several professional accountancy bodies. Those professional bodies qualify and regulate the accountants within their membership, not all of whom are regulated auditors. I will not attempt a technical description of the medical and dental professions, but the General Medical Council and the General Dental Council sit over the top of various other bodies and medical colleges to which individuals belong, and I suspect that similar issues arise.
Clause 8 requires the regulator to publish information on requirements to practise. My Amendment 45 is intended to ensure that, if the information is displayed on another website, the regulator need not gather and load up that information on its own website but can signpost where to find it. For example, the FRC could signpost information on the websites of the Institute of Chartered Accountants in England and Wales and the corresponding bodies in Ireland and Scotland, as well as the other bodies which have recognised audit qualifications. Anything else is just bureaucracy for the sake of it and is inefficient.
Clause 9 places a duty on a regulator to provide information to a regulator in another part of the UK. My Amendment 46 says that if someone else holds the information, they should seek to get the information provided by that other person. A regulator may have information about individuals in relation to the particular regulated profession but may not have information relating to the broader context of an individual’s membership of a professional body—for example, a full disciplinary or complaint record. Gathering information only for the purpose of sharing it with another UK regulator would again be duplicative and inefficient.
Since the amendments in this group were tabled, the noble Baroness, Lady Hayter, and I have received an extraordinary letter from the Minister that is relevant to all the amendments in this group. This was one of my noble friend’s Sunday missives, which we have all learned to love during the passage of this Bill. Noble Lords may recall that I initially asked for a list of the bodies covered by the Bill. I received a letter, dated 23 March, listing 160 regulated professions. The Minister said at the time that this was a list of the regulated professions that BEIS considered fell within the Bill’s definition. Last Sunday’s letter claimed that the earlier list was “indicative”—although he did not say that at the time—and a new list was attached. The new list has over 250 professions and nearly 60 regulators.
Baroness Hayter of Kentish Town (Lab)
My Lords, it is nice to follow the noble Baroness, Lady Noakes. Clearly, she and I were doing the same thing on Sunday afternoon; when everyone else was out enjoying the rain, we were sitting at our computers waiting for letters from the Minister. When I have finished speaking to Amendments 63 and 68, I am sure that, if he were to indicate the Government’s willingness in principle to accept them, the House would give him leave to give such an indication and save us from having to go through the whole group.
In respect of Amendments 45 and 46, respectively moved and tabled by the noble Baroness, Lady Noakes, it is clearly right that an arm’s-length regulator, which now also includes the Legal Services Board, should not have the same legal requirements to provide regulators’ information to the assistance centre, and nor should it be caught by the other requirements that apply to front- line regulators.
As we have heard, 160 professions were originally caught by this legislation; as late as the Minister’s letter to me of 18 June, it was still 160 professions. The first time round, of course, it was the 57 varieties in the letter to the noble Baronesses, Lady Noakes and Lady Garden, on 24 May. As the noble Baroness, Lady Noakes, said, even the new list is “indicative”, although we were not told that the first list was indicative. I received the Minister’s letter at 2.16 pm on Sunday afternoon with some amusement because, as the noble Baroness said, we now have 60 regulators and about 200 professions. As I think she indicated, you really could not make it up.
Legislation has been drafted without the department even knowing which bodies are covered. It has then had to correct or revise it quickly afterwards to add, for example, recognised supervisory bodies, because it has just realised that the Companies Act and the Statutory Auditors and Third Country Auditors Regulations include them. As we heard, the Institute of Chartered Accountants in England and Wales has been added. We had specifically been told on 5 June, and again as late as 18 June, that the ICAEW was not included; we now find that it is. As the Minister’s letter was not private, I shared a copy of it with the ICAEW. It emailed to say that
“it feels like government seem to be rushing through this legislation without having thought through the detail of the Bill and its consequences, and parliamentarians”—
I think that means us—
“are now having to try and fix this. For the list of regulators and professions affected by this Bill to have changed so substantially while the legislation is being scrutinised … does not help give certainty on such an important and wide-ranging legislative measure—a point hopefully the Minister would recognise.”
I mentioned the Legal Services Board, which is now included in the list when it was not before, but the list still lists the Law Society of England and Wales as the regulator of solicitors. I would have thought that it would be more appropriate for the Solicitors Regulation Authority to be listed. The SRA has written to me, to say:
“We would support the SRA being named on the face of the bill”.
It is rather surprised that the Law Society is mentioned. That was undoubtedly correct under the Legal Services Act 2007, but it should now be the SRA because it has recently been established as a legal entity. Clearly, even what we had on Sunday still needs correcting, and it needs correcting now, rather than at some point in the future.
As the noble Baroness, Lady Noakes, said, the Minister’s letter says that the Government are still testing the list, and will make it public only after that. That really is not sufficient. The Government should not only know which bodies will be covered but have consulted them prior to drafting the Bill. It is no good finding out now that new regulators have not had the chance to put their pennyworth in, and that their specific remit, structure and the way they work clearly cannot have been considered because they have not been consulted.
I think that the noble Baroness and I both agree that it is also not adequate, even when the list is finalised, simply to have it available somewhere in the ether once the Bill is enacted. How are professions regulated by these bodies, or indeed foreign professionals who might want to be authorised here, to know whether the Bill covers them and whether it covers a list of regulators? Saying that there is a list on GOV.UK is insufficient, because who would know to look there to see whether there was a list of regulators covered by the Bill?
This is a powerful Bill. It will enable a Minister to mandate a supposedly independent regulator to put certain processes in place—our Delegated Powers Committee calls it a Henry VIII power. These professions are regulated in law but supposedly with an arm’s-length approach, up till now, as to how they gain and retain their professional standing. A new law would give powers to Ministers over these professional regulators. How can it be possible that those regulators are not listed in the Bill? Of course it must be possible to add or subtract regulators as they change their titles or merge—the sort of thing that happens over time—but it cannot be right to add in a new regulator at the whim of a Minister with no by your leave from Parliament and no mention in legislation.
Amendment 63 would therefore add in a reference to a schedule listing the regulators covered by the Bill, and Amendment 68 comprises that proposed new schedule. As the noble Baroness, Lady Noakes, suggested, given that it was a copy-and-paste, it is not now as accurate as I thought it was when I tabled the amendment. That is not my fault; the list was from the Minister’s original letter. Unless the Minister will now accept the amendment in principle, the amendment I will table on Report will be the corrected version. Perhaps by then the Minister will have been able to confirm that all statutory bodies covered by the Bill have been identified and consulted, and to provide us with a list of which of those 60 regulators do not already have the power to recognise overseas qualifications and therefore might not even need the Minister’s authorisation, as allowed for in the Bill. As I said, if the Minister will indicate now that he accepts this in principle, then I am sure that we can shortcut this.
Lord Purvis of Tweed (LD)
My Lords, I have been a Member of a Parliament—either the Scottish Parliament or this Parliament—for nearly 18 years now. I cannot remember a government proposal for legislation that is so catch-all and which would have powers to amend primary legislation with whatever it wants, by whoever it wants, whenever it sees fit. For the Government not to know who the Bill will apply to while it goes through Parliament is unacceptable. Therefore, although I support all the amendments in the group, I also support the call for the Government to take their foot off the accelerator and pause, so that not just Parliament but the Government themselves can properly scrutinise who will be impacted by the Bill.
In many respects we have an indicative Bill, not an indicative list of bodies. We should not have indicative Bills presented to us. If the Government want to do this properly, there are well-established measures for presenting draft Bills. A draft Bill would probably have fleshed out all these aspects, and allowed those groups to indicate whether or not they will be part of the framework, whether they want to be part of it, or whether they desperately do not want to be. At least we would have known. When I say “we”, I want to be all-inclusive, and I include the Minister—he would have known as well.
It is not just a question of whether the Government know which regulators and regulated professions will be in the framework. The impact assessment also includes a number of those that will not be in the framework, which is equally important. Do the Government also know this list? Otherwise, there might be some horrible kind of purgatory, where some of these bodies do not know whether they are on the way to legislation, and so are in a holding pattern, or whether they will not be part of it.
Lord Moynihan (Con)
My Lords, I will speak to Amendment 45 in the name of my noble friend Lady Noakes, which makes provision for a regulator that does not regulate the profession directly but oversees the regulation carried out by other professional bodies. This refers precisely to the British Association of Snowsport Instructors, to which I referred at length at Second Reading. I too congratulate the noble Baroness, Lady Hayter of Kentish Town, on her excellent Amendment 63. I will speak in favour of it because it recognises:
“The appropriate national authority or the Secretary of State may by regulations amend”
the schedule,
“so as to insert additional regulators.”
These will not necessarily be regulators of regulated professionals by statute but may be regulators such as the British Association of Snowsport Instructors.
I highlight this case because I have received a letter, distributed in May by the department of the economy in the Canton du Valais in Switzerland. That canton has more mountainous regions than any other in the Alps, including many famous ski resorts such as Crans-Montana, Zermatt and Morzine-Avoriaz, to name but a few. The letter, sent by the department to ski instructors in Switzerland, said:
“The enforcement of Brexit on 1 January 2021 will mean major changes in the hiring of British nationals. We would like to inform you of the following changes to your sector of activity. As of 1 January 2021, British nationals can no longer avail themselves of the agreement on the free movement of persons. They are therefore subject to the foreign nationals and integration Act (AIA), its ordinance (AOA) and its directives (AIA directives). This implies that the employment of British nationals is strictly reserved for highly qualified persons and must meet the strict conditions of the applicable law. Thus, according to the LEI guidelines, the hiring of snow sports teachers can only be done for qualified teachers, provided that there is an exchange agreement between a partner in the country of origin and a Swiss institution. In addition, the teachers must come from non-EU EFTA countries where there is a long tradition of the activity in question. Therefore, it will not be possible to hire British nationals as ski instructors. The recruitment of ski instructors will have to be done at Swiss level, or within the European Union countries. The Foreign Labour Section team is at your disposal for any further information. Please take note of the above. Our best regards”.
That is a massive blow, announced in May, for all British ski instructors who have done so much over many generations to develop the sport of skiing, both in Switzerland and in Europe. It is also wrong. It says that the ski instructors should come
“from countries where there is a long tradition of the activity in question”—
but, of course, the country with the longest tradition of activity in Swiss-based skiing is the United Kingdom. It was Sir Arthur Conan Doyle who introduced skiing to Switzerland after returning from one of his skiing trips in Norway. He brought with him some skis, and he felt that Switzerland was the perfect terrain for such activity.
This is extremely serious for the future of not just British ski instructors but all those who support them. Seasonal businesses and the travel industry have argued the case very strongly that most people who go skiing in the Alps are supported. When they go on holiday, they tend to book through a British company, to be met at the resort by a British representative and, often, to be looked after by British staff—cooks, cleaners and ski instructors, as well as water sports instructors elsewhere in Europe and bar staff. This is all at risk. So the UK outbound tourism industry is facing a crisis in this sector post Covid. Thousands of young people—some 25,000 UK young people support outbound tourism—are also at risk.
It is exceptionally important to cover the second point, but I appreciate that it is the first point, on the British Association of Ski Instructors, that is most pertinent to this set of amendments. Not only does it effectively regulate all ski instructors in the United Kingdom but, through its hard work and diligence with international regulators—many of whom are supported in law in their respective countries—it is in a position whereby, as a result of the situation in which we currently find ourselves, it is not given the support by government that is absolutely necessary to remedy this.
Of course, when we were looking at the previous clause, Clause 7, on the assistance centre, there was an opportunity to put a great deal of effort, time and commitment behind securing the interests of those people as we go forward. I would argue that it is very urgent. If that sort of letter is circulating within the Alps, we need to act now.
I very much hope that one of two things might happen. The Minister is a Whitgift-educated man, and Whitgift is an outstanding centre of sporting excellence. I am sure that he wants to go back there with his head held high, having defended the interests of ski instructors in this country. Either he can use his extraordinary powers of negotiating skill to return pretty swiftly to Brussels to sort out this problem—and, in the case of Switzerland, negotiate with his counterparts there—or he can give a commitment that he will strengthen the assistance centre to make sure that this is a priority for the help given by the assistance centre. There was much debate and uncertainty about whether the resources behind the assistance centre would be adequate when the Committee looked into that in detail. Alternatively, he can accept the amendments in the names of the noble Baroness, Lady Hayter, and my noble friend Lady Noakes. Those are the three options.
I very much hope that the Minister will recognise the importance of this issue, which is now critical and urgent, and in so doing be able to give a very clear commitment to the Committee today that he intends to take this forward. I hope that he will underline the urgency in the same way that I have tried to do for the Committee this afternoon.
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.
Lord Hope of Craighead (CB) [V]
My Lords, it is a pleasure to follow my noble friend Lord Patel. I too wish to support all the amendments in this group, but I shall particularly mention Amendments 45 and 46, in the name of the noble Baroness, Lady Noakes. I like these amendments because they are directed precisely to an issue which affects two of the regulatory functions that I had when I was Lord President of the Court of Session in Scotland, as I mentioned at Second Reading.
The word “regulator” is defined in Clause 16 as meaning a
“a person having functions under legislation that relate to the regulation of the profession in the United Kingdom”—
a broad definition. The Lord President is such a person. But he does not exercise those functions on his own. His function, in essence, is to supervise or oversee the other regulator which in each case is the professional body itself. The definition does not draw that distinction, but it is relevant to what Clauses 8 and 9 require the regulators to do. The information to which Clause 8 refers is held by the professional bodies, not by the Lord President.
Amendment 45 addresses itself exactly to the function that the Lord President can perform, which is to ensure that the professional body does what Clause 8 requires. That makes very good sense. There is no need for him to duplicate what the professional bodies are asked to do—which, if the Bill remains as it is, would be its effect. All that is needed is to identify what the Lord President should do as overseer to ensure that the information is made available. The same is true as regards Clause 9. Here too duplication of what the professional body is being asked to do is unnecessary. What Amendment 46 requires of the Lord President is just the kind of thing that he does frequently throughout the year to ensure that the professional body is doing what it is required to do.
For these reasons, I am grateful—indeed very grateful —to the noble Baroness for bringing these amendments forward. I do not need to comment, for the reasons that the noble Lord, Lord Patel, gave, on Amendments 63 and 68. I hope that the Minister will recognise that the amendments to which I have been speaking make very good sense and will improve the Bill, which in its present form is, for reasons I have hinted at, highly unsatisfactory. I hope that he will feel able to accept them.
Lord Davies of Brixton (Lab) [V]
My Lords, I declare my interest as a member of a profession, as listed in the register of interests. I support Amendment 63, tabled by my noble friend Lady Hayter. It is entirely reasonable that it should be clear to which professions this legislation should apply—in addition to architects, who get their own bit in the Bill—so I commend my noble friend’s diligent work.
However, I have a question about what counts as a regulated profession. I know this issue comes up under Clause 16, but it is clearly important in the context of the amendment. Clause 16 tells us that
“‘regulated profession’ means a profession that is regulated by law in the United Kingdom”
and draws our attention to Clause 16(3), which says:
“For the purposes of this Act, a profession is regulated by law in the United Kingdom … if by reason of legislation … individuals are entitled to practise the profession in the United Kingdom … or … individuals are entitled to practise the profession in the United Kingdom, or in that part of it, only if … they have certain qualifications or experience, or … they meet an alternative condition or requirement.”
All that tells us, in effect, is that a regulated profession is a profession that is regulated by law. I find this difficult without a comprehensive index of all the legislation that might be caught by that definition, particularly given the open-ended Clause 16(3)(b)(ii) at the end about meeting
“an alternative condition or requirement”.
So this question is relevant to the amendment. Could the Minister tell us a bit more about what is envisaged might be covered by that part of the definition?
Let us start from the other end. What professions might be covered by the Bill and is there a useful definition that covers them? My noble friend Lady Hayter has helpfully provided us all with a list. The list is interesting in itself, making clear the extraordinary hodge-podge nature of the Bill. Clearly, it is not a list based on a rational assessment of the needs for legal recognition; it is probably a combination of historical accidents. My question is: how do I, other noble Lords and, most relevant, the Government really know which professions are covered by the Bill, given the breadth of the requirement to meet an “alternative condition or requirement”?
How do we know there is not buried somewhere in past legislation a condition or requirement that applies before an individual can practise their profession? I mentioned this issue at Second Reading. Here is an example: there are requirements in the legislation covering both pensions and life insurance that an actuary can sign off on certain statutory reports only if they have been approved by the relevant government Minister—invariably, the Secretary of State. Does that count as regulation? If so, should various Secretaries of State be included in the list of regulators? Perhaps the Minister could address this issue. I do not ambitiously expect an immediate response, but a considered response would be helpful.
Baroness McIntosh of Pickering (Con)
I support my noble friend Lady Noakes in her two amendments and the noble Baroness, Lady Hayter, in her Amendments 63 and 68. The first list that I saw was the one produced informally by my noble friend Lady Noakes, which I was delighted to see and took as gospel. Now we have had two or three iterations of it. While that may cause us some confusion and bemusement, one has to look to the professions and the regulators that are required to regulate them. I start from a simple premise: I am a non-practising member of the Faculty of Advocates. I understand what the faculty does, along with the corresponding regulator in England and the Law Society of Scotland—that is, the regulators for their respective professions.
I am delighted that the noble Lord, Lord Purvis, has leapt to the cause that I supported on the question of why pig farmers were chosen for special treatment under the Bill. If I may pause on the completeness of the list, I am not even sure that all the professions listed on pages 20 and 21 of the impact assessment—which I know the noble Lord, Lord Purvis, thinks is no longer entirely up to date—are covered in the new list. It is difficult to see whether
“Chief engineer class I fishing vessel”
and
“Deck officer class II fishing vessel”
have simply been renamed in the list that we received on Sunday afternoon or whether they are the same in the impact assessment and the latest letter. What causes me some concern and confusion, in the light of the comments by the noble Lord, Lord Purvis, is the foot- note to table 4 on page 20 of the impact assessment:
“European Commissions’ Regulated Professions Database. It should be noted that recognition decisions are captured at the generic profession level and not the specific profession level. Some generic professions listed may therefore include specific professions which do have alternate routes and/or which may be likely to be included in the new framework. This table is therefore likely to overstate the recognition decision numbers of the specific professions without alternate routes and which are not likely to be included in the new framework.”
Now I am even more confused than before.
In the light of the forensic work that the noble Lord, Lord Purvis has done in this regard, I am still not entirely convinced as to why pig farmers are included, and producers of chickens for meat production only are included. Does that mean that overseeing egg-producing chickens is not deemed to be a profession and is therefore not regulated for the purposes of the Bill? I go back to what I said when this issue was first raised on the second day of Committee: could my noble friend please state the legal basis for including pig farmers? Has it been correctly identified by the noble Lord, Lord Purvis? I would like to understand, when I meet them at Thirsk auction mart, whether they are included or not. Are egg-producing chickens included or only those for meat production? Perhaps more importantly, on what basis are beef and lamb producers and producers of chickens for other purposes not included? Is that a permanent exclusion or could it be revisited, and might they be included at a later date?
The noble and learned Lord, Lord Hope of Craighead, was being very restrained when he said that this is an unsatisfactory situation. We have to accept that the Bill before us is perhaps not fit for purpose and that we need to do other work on it. I do not think that, hand on heart, we can allow it to go forward to Report and eventually leave the House in this form, because we would not be serving well the professions or indeed their regulators if we did. So I support Amendments 45, 46, 63 and 68 and particularly the call from my noble friend Lady Noakes to pause the legislation at this stage so that we can do the work that, undoubtedly, my noble friend and his department would be delighted to do.
Lord Fox (LD)
My Lords, this has been an interesting debate. Before talking about the amendments specifically, I want to respond to the noble Lord, Lord Moynihan. I support his point, but the ski instructors of Great Britain are not alone in having their route to working in the EU cut off. We should look at the overall economic impact of this. Research by Make UK, which represents the UK’s manufacturing industry, shows that 61% of manufacturers regularly send their employees to the EU to follow up their manufacturing work with service work. Almost all of those have qualifications that until now have been recognised in the EU, but that is no longer the case. So this is a huge economic issue, not just for ski instructors and their families but for the entire manufacturing and indeed service sector of this country. The noble Lord has hit on a point, but it is actually a much bigger point overall.
Lord Fox (LD)
This is not funny, because the Government are trying to micromanage the skills of this country, and it is truly absurd that we should be debating this and a shame that the Government have got themselves into this position. This letter is indicative of a failure of precision and a lack of detail. The Minister stood up and said that the Government need the Henry VIII powers because they are unable to foresee the future. They actually need these powers because they are unable to describe the present and need this to retrospectively fill in the gaps that the Bill will almost certainly leave because of that lack of precision and the failure to understand the detail.
I am sure the Minister’s ambition when he first heard about the Bill was to take it through this House as quickly as possible and get on with what he considers to be the other more important parts of his job. It is clear that the Bill came before him very late in the drafting process, by his own admission. But it is now very hard to see how anything we can do to the Bill makes it fit to leave your Lordships’ House. The comments from all Benches about having a hard, long look at this before it goes any further are very wise advice to the Minister.
The Minister of State, Department for Business, Energy and Industrial Strategy and Department for International Trade (Lord Grimstone of Boscobel) (Con)
My Lords, I thank noble Lords for the comments in this debate, which, as they may imagine, I have listened to with a certain lack of enjoyment. If I may, I will come back to the substance of that later.
I thank my noble friend Lady Noakes and the noble Baroness, Lady Hayter of Kentish Town, for their Amendments 45, 46, 63 and 68, which concern the regulators that the Bill applies to, as well as the duties on those regulators to publish information. I will start with Amendment 45, which concerns Clause 8 and the duty of a regulator to publish information on requirements to practise. We might remind ourselves of the purposes of this clause. Clause 8 is first and foremost about increasing transparency. It does this by requiring regulators of professions in all parts of the UK to publish information on the entry and practice requirements of professions. This is in direct response to our evidence-gathering. We found a complex regulatory landscape—I think the whole Committee would agree with that—which is difficult for professionals and aspiring professionals to navigate. Some regulators already publish the information listed in Clause 8, and those that do not should be able to prepare it within the six months of lead time set out in the commencement provisions relating to the clause.
The amendment’s explanatory statement by my noble friend Lady Noakes helpfully clarifies that “persons” means “professional bodies”, but I remind the Committee that many professional bodies regulate on a voluntary basis and not by law. The core principle of the Bill—I will come back to this again later—is that it applies to those regulators which are regulated by law in whole or part. The Bill does not apply to many of them because they regulate on a voluntary basis and so fall outside the duty to publish information under Clause 8. The amendment could create new burdens on bodies not covered by law in any other way.
Moreover, Clause 8 already makes provision, where there is more than one regulator involved in the regulation of a profession, for just one to publish the transparency information required. My noble friend Lady Noakes is seeking to provide for a similar effect with her amendment to a wider group of organisations in this space but, with all due respect, it is not necessary.
Amendment 46 concerns Clause 9 and the duty of a regulator to provide information when requested to a corresponding regulator in another part of the UK. This information helps regulators to check things like fitness to practise when a professional moves between jurisdictions within the UK. The amendment would apply these provisions to “another person or persons”—suggested in the explanatory statement to be professional bodies. Once again, this blurring of the nature of the bodies to which the Bill applies is unhelpful. Indeed, in this case it creates risks.
The clause places a specific duty on a defined regulator to make sure that important information is shared when requested. This might be critical to protect the public from harm. This amendment creates ambiguity around which body must fulfil the duty. It also introduces “must seek to ensure” into the provision. I do not believe this is enough. If there is more than one regulator or professional body involved in regulating a profession, then the law must be clear on who must provide the relevant information; it should be the regulator of the specific professional activity regulated in law. This is important to make sure necessary checks are done on professionals in a timely way. This clause is particularly important where a professional activity is regulated by different regulators in different parts of the UK. At our last count, the number of “corresponding” regulators this amendment would apply to was around 25. The provision in the clause is important, but any burden arising from it will be very limited.
I thank the noble Baroness, Lady Hayter of Kentish Town, for her Amendments 63 and 68, which seek to remove the definition of when a profession is regulated by law in Clause 16 and add a schedule listing the regulators to which the Bill applies. I think we have all learned things through the passage of this Bill. In particular, I have learned that a definition which was apparently clear-cut on when
“a profession is regulated by law”
has taken this amount of time to establish.
As the noble Baroness said, the list in the proposed schedule in her amendment is the same as the list of professions and regulators in the letter which I placed in the House of Lords Library on 24 May. Actually, I indicated at that time that this was not the final list:
“The following table is comprised of over 160 professions and more than 50 regulators that BEIS consider fall within this definition”—
the definition regulated by law—
“and is the product of engagement with other departments, regulators and external organisations. Please note that BEIS are still conducting assurance work to confirm the professions and regulators to which the Bill will apply … The list below should be considered indicative only.”
I think that was the appropriate health warning to put on that letter. A very detailed exercise has been going on across Whitehall to confirm who is covered by law, which, as I said earlier, one would have thought it would be straightforward to find out. A very detailed exercise has been going on to update that letter, which was indicative, and to make the letter I have now sent as accurate as possible—although even that letter may still need some updating around the margin going forward.
In order to achieve this list, we have had to work with a large number of government departments and the regulators. This thorough mapping of the landscape of regulated professions has not been done properly, I have written down here, “for far too long”. I wonder whether it has ever been done properly at all before now. Yet this list of regulators regulated by law was the list to which the European Union regulations applied. What has come to light, frankly, during this process, is that not all regulators have a copy of the list of the professions which they regulate. The list of professions attached to this list has come from the regulators and, quite rightly and properly, the GMC drew attention to the fact that some extra medical professions needed to be included in the list. Furthermore, not all departments had full visibility of which regulators that fell under their purview were covered by law.
I accept, without reservation, that it is not good enough that these lists have been incomplete and that noble Lords must have felt they were playing a game of blind man’s buff in trying to see who the Bill applies to. Of course, as a Minister on the Front Bench, it has been uncomfortable to sit here and listen to the quite reasonable points made by my noble friend Lady Noakes, the noble Baroness, Lady Hayter of Kentish Town, the noble Lord, Lord Purvis of Tweed, and others.
This list must be put into good shape. By the mere act of our working through this Bill and unearthing these matters—in the way that our House is here to do—we are doing a good job. The landscape is complex, but by the time we have finished the Bill, I believe we will have learned all there is to learn about regulated activities, and this rather technical matter about which regulators and professions are covered by law.
Since the first letter, there have been, as I have mentioned, some changes to the indicative list, with some more regulators coming on to it. We have now identified close to 60 regulators—I think it is 55 or 56 —and more than 190 professions as falling within the ambit of the Bill. I placed an updated list in the House of Lords Library yesterday. I thought noble Lords would congratulate me on working at the weekend on a Bill as important as this; I now have almost perfect knowledge of when noble Lords eat their lunch on a Sunday. I have asked my officials to keep the list under review as they continue their work with national authorities and regulators. Certainly, I would not want to be the Minister who took this Bill forward without knowing to whom it applied. I will, of course, inform noble Lords if further updates are made.
Actually, the vast majority of the professions and regulators contained in the indicative letter I shared on 20 June are the same as those I shared in the indicative letter of 23 May. As I said, we have done further work with departments to assess where existing legislation will mean that the Bill applies to certain professions and to determine the relevant regulators. This is detailed work that has drawn on expertise from many departments.
In answer to the point of my noble friend Lady McIntosh about animals—the virtual zoo to which she referred—whether or not an animal or a farmer falls under regulations that are governed by law is a matter for legislation that is owned by Defra, which at certain times in the past must have considered it appropriate to put an animal or an activity into its statutes. It is not something that I or my department have taken a value judgment on in relation to the list that should be included in the Bill.
The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)
My Lords, I have received two requests to speak after the Minister, from the noble Lord, Lord Purvis of Tweed, and the noble Baroness, Lady Hayter of Kentish Town. I will call them in that order.
Lord Purvis of Tweed (LD)
My Lords, on the Australian point, I think the Statement on the Australian agreement will be repeated in this House, and I will pursue that aspect with the Minister there; so he has advance notice. What he just said at the Dispatch Box does not tally with what he sent me in letters, with accompanying documentation, about services and the recognition of professional qualifications. My questions to the Minister are on the back of this.
This place will scrutinise legislation but also the Government’s proposals. We have no proposals from the Government to scrutinise because they have not brought forward proposals on what they want to do with some of these powers, so we are struggling. On the specific point of the list, it is not just the regulator bodies that should be on a list. The list is meaningful if we know what the bodies are with regards to the professional qualifications.
On the regulated professions database, the entry for pig farmers shows that they are regulated by legislation. No one has ever denied that is the case because anybody involved in livestock maintenance or husbandry in this country operates under the welfare of farmed animals regulations. On the database, there are the Welfare of Farmed Animals (England) Regulations, the Welfare of Farmed Animals (Scotland) Regulations—there is no reference to any for Scotland on the list—the Welfare of Farmed Animals (Wales) Regulations, and the Welfare of Farmed Animals Regulations (Northern Ireland). Further down it has a box:
“Qualification level: NA—Not applicable”.
If the Bill is about recognising professional qualifications for someone wanting to become a pig farmer in any component part of the United Kingdom, and there are no applicable qualifications for it, why is it on this list? We know that a farmer is regulated by laws, and lots of them, but that is irrelevant for the purposes of the Bill. It is of concern because, if it is in the Bill, it will fall foul of all the different requirements under the Bill.
I want to ask a second question with regard to the list and say why it has to be meaningful. Incidentally, we have raised farriers previously; the noble Baroness, Lady Hayter, did so. Farriers remain on the list, so I looked up the Farriers Registration Council. It says that the route to be a farrier is through an apprenticeship; there is no qualification route as an automatic mechanism which can be recognised by someone else. All the professions under the list which have apprenticeship routes are not covered by Clause 1, so where would they be covered? That is the concern that this list generates. It is not just about what is or is not on it; what does it mean by being on it?
Lord Grimstone of Boscobel (Con)
I thank the noble Lord for that. Surely this is why we are going to have the assistance centre and why we are going to require regulators to publish on their websites what it takes to become a member of their profession. I say to the noble Lord that an apprenticeship is a qualification, and if the requirement to become a farrier is that you have to be an apprentice, it is quite right that the farriers should put that on their website. It should say how one goes about being an apprentice; it should not be something known only to a favoured few. Boys or girls who wish to become a farrier should have a place to go and find out how to do it.
The Bill will open up, for the first time, for this list of professions—which nobody has pulled together and done the work on—whether you have to have qualifications or apprenticeships to do them. It will make that publicly accessible, and that will be a good thing in encouraging our people—young, middle-aged and old—to a route if they want to qualify and join these professions.
Baroness Hayter of Kentish Town (Lab)
I think I am in even greater despair now than I was before the Minister responded. Is this a “better regulation” Bill or is it about recognising incoming professionals from other countries, who can then have the right to practise here?
I find some of the Minister’s words extraordinary: he said that he felt uncomfortable, that he has apologised and that he has eaten humble pie. I thought he was leading up to saying, “And therefore we will, if you don’t mind, put your amendments to one side and come up with our own words”. I thought he was leading up to saying, “Actually, you’ve got it right”. Because he also said that—I am not very good at writing quickly, so I may not have got it quite right—as a Minister, he needs to know to whom the Bill applies. But so do the professions: the farriers, the pig farmers and the chicken farmers, abroad or here, need to know, because this is all about bringing people here from another country. It is not about our sixth-formers wanting to know, if they want to become a professional, whether they should do an apprenticeship, go to university or go to a college of further education. It is not about that.
I think it was this Government who set up the Better Regulation Task Force, or maybe it was ours. Perhaps my noble friend Lord Hunt will help me.
Baroness Hayter of Kentish Town (Lab)
I am assured that we had one of those, so I cannot even blame this Government. But we do have a Better Regulation Task Force, so if there is no list of regulators at the moment, what on earth has that task force been doing in all the time that it existed under a Labour Government and for the 11 years that it has existed under a Conservative Government? That is exactly the sort of job it should be doing.
If we really need a list of regulators, so that young people can know whether to go to an apprenticeship or get their articles—that is what they used to be called, but I do not think they do those any more; the noble Lord, Lord Palmer would remember—I would understand that. But that is not what this Bill is about. It is about giving powers to a Minister to say to a regulator: “You will do something to accept people coming from another country to use the qualifications they have obtained”—whether by apprenticeship or by degree, or by sitting next to Harry or whatever—“to come here”, either because we have a skills shortage or because we are signing a deal with Australia, or wherever. That is what the Bill is about. It is not about helping our sixth-formers know where to get a job.
Lord Grimstone of Boscobel (Con)
I thank the noble Baroness for her comments. Of course, it goes without saying that I always listen to the noble Baroness’s comments very carefully and take them away for consideration. The best advice I can give her about what this Bill is about and what is covered is to refer her to the Explanatory Memorandum on the Bill.
Baroness Noakes (Con)
Well, my Lords, that rather took my breath away—and doubtless the breath of everyone else involved in this Committee. I am sure that my noble friend the Minister will want to reconsider his advice to the noble Baroness, Lady Hayter, on that point and perhaps write to her.
I certainly want to thank all noble Lords who have taken part in this debate, which has been an extremely important one. I pay tribute to my noble friend Lord Moynihan for his ingenuity in bringing forward the very real issues related to British ski instructors under BASI, but I do not think that they quite fit in this group of amendments. Nevertheless, it was good to have those issues raised again.
I will deal with my two amendments first. My noble friend said that the amendments were not necessary. I do not think he was listening to what I said about the accountancy, auditing and other related professions such as insolvency practitioners, what the noble Lord, Lord Patel, said about the medical profession, or what the noble and learned Lord, Lord Hope of Craighead, said about the legal profession in Scotland. People who understand about professions think that this is important.
My noble friend said that this is not necessary. Of course, it is not necessary: the burden of my argument was not that this is necessary but that it is not desirable to require regulators who do not, by the nature of what they are doing, hold lots of information, to duplicate that information within their systems and on their websites. I hope that my noble friend will look carefully at what other noble Lords have said. I am happy if he ignores me, but if he would listen to what other noble Lords have said on these issues, he will see that there are some very real problems in there. The fact that a regulator might need to point to what is on a professional regulator’s website or to information that a professional body has, rather than the regulator, does not seem to me to be an impediment, nor does it muddy up his precious concept that this Bill applies only to professions regulated by law. I therefore hope he will think about that again before we get to Report, because otherwise I think I shall probably bring these back at that stage.
We obviously had a lot of discussion on the list, and it is clear that it is still very much a work in progress, as my noble friend the Minister has said. I was really quite surprised to find the concept of some form of regulation being equal to professional qualifications. I never thought that this Bill was about an activity being regulated, but that now seems to have come within the purview of this Bill. It has changed for me the concept of what this Bill is supposed to be about.
I do not think the list is complete. For example, under “Professional business services and administrators of oaths” the only regulator that is cited is the Institute of Chartered Accountants in England and Wales. Actually, I did not know that chartered accountants were administrators of oaths, but I will bet you a penny to a pound that there are many other professional bodies that are regulated for the administration of oaths and it is not just the ICAEW. So we might say that even this latest list is perhaps not worth the paper that I have printed it out on.
It is not just about the completeness of the list; it actually goes to the heart of this Bill. BEIS did not consult on this Bill or any policy proposals. All it did was issue a rather strange call for evidence, some of the replies to which were really rather thin, and it then worked out its own policy and put out a statement of policy at the same time that it published the Bill. We have been aware for some time that a number of the professional bodies have been behind the pace on whether they are covered by the Bill and how it will affect them. Some are not even particularly well aware of it. My noble friend said that his officials were now reaching out to all these other bodies that they are now starting to bring within the net of the Bill, but that does not take the place of proper consultation on what is in this Bill, how it applies to a number of professional activities and whether we actually have a solution that is robust and deals with all the practical issues that arise with respect to professional bodies. As we have heard, each of the major professions has its own set of idiosyncrasies, and that is quite likely to continue.
My own view, and I think that of the noble Baroness, Lady Hayter, is that we will need a list on the face of the Bill for all the reasons that she said a few minutes ago. It is not enough to have a definition-based approach, and I was glad that my noble friend said that he would consider that further. We will return to all of these issues again at Report, but for now, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
We now come to the group consisting of the question whether Clause 9 should stand part of the Bill. Anyone wishing to press this to a Division must make that clear in the debate.
Baroness McIntosh of Pickering (Con)
My Lords, I am delighted to have the opportunity to pose some general questions on Clause 9. Taking up my noble friend the Minister’s invitation to read the Explanatory Memorandum, I am looking at the relevant paragraphs as a starting point. Clause 9 is entitled “Duty of regulator to provide information to regulator in another part of UK”. First, how wide is this duty, and how many regulators does my noble friend believe will fall within the remit of Clause 9? Being more familiar with the law and the legal profession than any other, I am obviously aware that the legal profession has devolved regulators in other parts of the four nations, but how many professions fall into that category? My other concern is that my understanding is that surely this would be happening anyway, so is why Clause 9 needed in that regard?
If it is some consolation to the noble Baroness, Lady Hayter, I am also struggling to understand the background and the need for this Bill. Perhaps I have a different starting point to the noble Baroness: my starting point was that I was full of admiration and thought it was the right thing for the Government to recognise professional qualifications from EU countries, EEA countries and Switzerland, but I was hoping—as I have mentioned before during the passage of this Bill—that we would have reciprocal rights negotiated. I repeat my disappointment that, having shown them an open door, that was not reciprocated by the other nations to which this Bill applies.
Harking back to the last debate on the amendments in the names of my noble friend Lady Noakes and the noble Baroness, Lady Hayter, I am disappointed that my noble friend the Minister was not able to point to the Defra legislation regulating the profession of pig farming and chicken producing for the production of meat only. Given that we have left the European Union—everyone keeps telling me we have, and that we are in this brave new world where we no longer rely on it—how on earth is it that we are relying on the European Commission database in this regard? That seems completely perverse.
My noble friend referred to this as a “technical matter”, but I do not see it as just that. To me, it goes to the heart of this part of the Bill: which professions are to be regulated by law, particularly in the context of Clause 9, which causes a regulator to
“provide information to regulator in another part of UK”?
The Law Society of Scotland briefing states:
“The provisions in this clause seem reasonable for the most part. However, the terms of clause 9(3) and (4) raise some questions. Clause 9(3) provides that a disclosure of information does not breach ‘…(b) any other restriction on the disclosure of information (however imposed)’. This provision sits uneasily alongside clause 9(4).
Clause 9(4) provides that ‘Nothing in the section requires the making of a disclosure which contravenes the data protection legislation (save that the duty imposed by this section is to be taken into account in determining whether any disclosure contravenes that legislation)’.
These provisions lack clarity. The duty under clause 9 can be taken into account when considering if a disclosure contravenes data protection law. Why should it not simply be that compliance with clause 9 is a defence to an accusation that data protection law has been contravened?”
I realise that we discussed that earlier in the debate.
I will also look at the impact assessment and raise the issue of costs. Paragraph 131 of the impact assessment states:
“In total, we are aware of 32 regulators operating in different parts of the UK, which regulate 20 professions, which may be affected by the information-sharing provision upon commencement. These professions are care managers (adult care home, domiciliary, residential child-care)”
and a whole host of others. It goes on to state:
“22 of the regulators are public sector, and we”—
the Government—
“are treating the other 10 as businesses.”
It then states in table 19 that, at 2019 prices, the total annual cost to “collect & share data” is £2,380. For businesses, the
“Ongoing direct costs of collecting/sharing data to regulators treated as public sector”,
at 2019 prices, are deemed to be £4,759. However, the
“Transitional direct costs to regulators treated as public sector for collecting/sharing data”
are deemed to be £38,076, and the
“Transitional direct costs to regulators treated as businesses for collecting/sharing data”
are deemed to be £19,000-plus, at 2019 prices. Could my noble friend confirm that those figures are still correct, or will they now be revised as the indicative list keeps growing, as we have heard this afternoon?
Given those few remarks, I believe that it would be immensely helpful to take some time between the completion of Committee, which will hopefully be today, and Report, so that my noble friend the Minister can call and chair a round table—I hope that noble Lords may also find this appealing and wish to participate—with the regulators covered by Clause 9 before we reach Report. I would find it immensely helpful to know which professions we are dealing with and which will fall within the remit, and to understand entirely how they feel Clause 9 and other provisions in the Bill will relate to them.
Baroness Noakes (Con)
My Lords, while I sought to amend Clause 9 in the last group of amendments to avoid unnecessary burdens resulting from it, I could not work out why it was needed. When I searched the documents accompanying the Bill, I could not find an explanation of why it is needed. It has not been needed, to date, for people who practise within the United Kingdom and I cannot conceive of the circumstances in which it would be needed going forward.
I ask my noble friend the Minister to explain specifically why Clause 9 is needed, rather than making generalisations such as, “If a regulator needs to have information, this facilitates the sharing of it”. What problem is Clause 9 trying to solve? That is what I am trying to get to the bottom of.
The impact statement relating to Clause 9 is pretty unsatisfactory. It seems to be based on one regulator alone answering a question, with some costs and benefits then being extrapolated from three or four regulators that answered a completely different question. This borders on the absurd, and I do not know how my noble friend the Minister managed to pluck up the courage to put his signature on the front page. If he can help me by explaining how he acquired the courage to sign off on the costs and benefits that accompany Clause 9, I am sure that that would be of value to the Committee.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
The noble Baroness, Lady Blake of Leeds, has been forced to withdraw, owing to a connection problem—I am sure that we can all sympathise with that—so I call the Minister to reply.
Lord Grimstone of Boscobel (Con)
I thank noble Lords for their contributions on Clause 9. In answer to my noble friend Lady McIntosh of Pickering, we are not relying on EU data to work out the coverage. As we discussed at length earlier, the EU data is incomplete, which is why it has been necessary to go back to departments and source regulators to try to complete it. On her point about round tables, I would be more than happy to do that, and I will ask officials to work out with me what series of round tables would be useful and whom they would involve.
In answer to my noble friend Lady Noakes, I will have another look at the impact assessment to make sure that it still fully represents the situation, and I will write to her and other noble Lords if I feel that it does not.
Several noble Lords have previously commented positively on the commitment to ensuring the sharing of information between equivalent regulators in the UK. Of course, I am in complete agreement with that; that is why I believe that this clause is so important. My noble friend Lady McIntosh of Pickering has indicated that she intends to oppose this clause, but I hope to convince her to support its inclusion in the Bill.
Let us remind ourselves that the clause’s purpose is to ensure that regulators in one part of the UK provide relevant information about individuals who have been recognised in that part of the UK to regulators of a corresponding regulated profession in another part of the UK, where required. This is important. Although existing voluntary arrangements work well in certain cases, in answer to the point made by my noble friend Lady Noakes, they do not always work well, I am told, and this Bill’s provisions will ensure consistency. They will give greater confidence to regulators that they can access necessary information where required and pass it on to the corresponding regulator to ensure that a professional is qualified to practise in that part of the UK. I do not think that the fact that it may work smoothly now with some regulators takes away the need for it to be made to work smoothly with all regulators.
To put a little more context around the discussion, noble Lords have spoken a number of times during debates on the Bill about certain professions falling within devolved competence. Some of the professions have different regulators in different parts of the UK, of course. If a professional whose qualifications are recognised in one part of the UK wishes to practise in another, and his profession is one of those that falls within devolved competence, it follows that the regulator in the second part of the UK will need to consider whether that professional is rightly qualified to practise in their jurisdiction. To that end, the regulator will need to access information about the individual’s qualifications, experience, fitness to practise and, if applicable, any evidence of malpractice. This is why, during the application process for recognition but also beyond—such as if a malpractice case comes to light following recognition—these regulators find themselves needing to share information.
As I have said, I understand and acknowledge that, in several cases, this kind of information sharing already takes place, such as in the teaching profession, where the General Teaching Council for Scotland, the General Teaching Council for Northern Ireland, the Education Workforce Council and the Teaching Regulation Agency all share information with each other. However, although there are existing sharing obligations in some sector-specific legislation, this differs between professions. It can even vary within professions. So, again in answer to my noble friend, this clause therefore brings consistency.
Let me be clear also that I do not believe that this is unnecessary red tape. It does not put an unreasonable duty on regulators. The information required to be shared in this clause is limited to information held by the regulator about the individual and would not require a regulator to procure information it does not already hold. The information sharing that this clause requires of regulators delivers many of the purposes of regulation that your Lordships’ House has highlighted during these debates, such as protecting consumers and public health, by making known to regulators those individuals who have not upheld our high regulatory standards.
My noble friend Lady McIntosh of Pickering brought to the attention of the House that legal services and systems of course have distinct natures in the different parts of the UK. She suggested that
“there are sufficient differences between these legal systems to warrant an exclusion from the provisions that create greater regulatory integration of other professions between the UK’s composite parts”.—[Official Report, 9/6/21; col. 1481.]
I want to be clear that this clause already recognises that professions are regulated differently in different parts of the UK. Indeed, its very purpose is not to undermine this but to ensure that information flows effectively when there is a need to do this. To exclude legal professions would not only confuse the scope of the Bill but exclude from this clause the range of legal regulators that for the most part regulate separately across the UK and will therefore require information on professionals whom they do not regulate.
I hope that I can assure noble Lords completely that legal regulators will still operate completely autonomously to make decisions about who practises within their jurisdiction. My officials have engaged closely with legal regulators and the Ministry of Justice in developing these proposals. The Bar Standards Board, the Solicitors Regulation Authority and the Chartered Institute of Legal Executives were content to be included in this clause specifically.
As my noble friend acknowledged, the Law Society of Scotland described the provisions in it as
“reasonable for the most part.”
Its specific concerns were around data protection—my noble friend Lady McIntosh reiterated that today—which we fully considered in an amendment that we debated on day 2, to the satisfaction of the House. The clause is explicit that the information required to be shared does not require any disclosures that would contravene data protection legislation. This should help the Law Society of Scotland in that regard.
The provision in the clause is required for the good reasons I have set out here, but the extent of concern around its potential impact is perhaps not. As I noted in my comments on Amendment 46—this is in direct response to my noble friend Lady McIntosh—we estimate that the number of corresponding regulators covered by this amendment is around 25.
Clause 9 will facilitate and support greater co-operation across the union and give confidence to regulators, professionals and consumers that professions are regulated appropriately and effectively across our United Kingdom. It gives a legal underpinning to co-operation that already works well in some cases but at the moment ultimately relies on good will. I hope that my noble friend will feel able to withdraw her opposition to this clause standing part of the Bill.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
I have received requests to speak from the noble Lord, Lord Hunt of Kings Heath, the noble Lord, Lord Fox, and the noble Lord, Lord Purvis of Tweed. I first call the noble Lord, Lord Hunt.
Lord Hunt of Kings Heath (Lab)
My Lords, I support the noble Baroness, Lady McIntosh, in her request for a round table with regulators between Committee and Report. That would be very helpful indeed.
I just want to ask the Minister about Clause 9. I remind the House of my membership of the GMC board. The Minister will know that, particularly in the health sector, there are regulators that currently regulate for the whole of the United Kingdom, but the devolved Administrations could decide to take over regulatory authority if they wished under the legislation that led to the devolved Administrations; that is particularly the case in relation to Scotland. That being so, will this clause apply to the interrelationship between the regulators in both countries? If the answer is yes, that makes the case for this clause because, clearly, one of the issues relates particularly to the National Health Service. Although it is run by four different government departments, none the less it has some UK-wide characteristics. The key one I believe is an ethos, but secondly there is the ability of staff in the NHS from the different countries to cross the border without any problem in relation to qualifications.
Lord Grimstone of Boscobel (Con)
I thank the noble Lord for his question. Again, I repeat that I am very happy to hold round tables on this, as necessary.
On the noble Lord’s particular point, if a new separate regulator was set up that fell within the definition of a corresponding regulator for the purposes of this Bill, Clause 9 would automatically apply to it and the information sharing would happen in that way.
Lord Fox (LD)
My Lords, I am getting more confused; I am Confused of Wherever. When we set out on our journey on this Bill, the Minister was clear that this was about the mutual recognition of qualifications between different regulatory countries and repealing certain aspects as a result of Brexit. Since then, in the debate on a previous group, the Minister talked about recruiting people into skills, which was not in the initial remit, and now we seem to have strayed firmly into the territory of the internal market Act. Most of the people in this Chamber sat through the happy hours of the then internal market Bill, which was there to do the things that the Minister has just talked about. It seems to me that we are conflating lots of different objectives, the reason being that, once again, if you read the title of the Bill, it can be almost anything you want, and, because of the Henry VIII powers, you can do almost anything you want. Things keep changing. The furniture keeps getting moved. So can the Minister please reassert the focus of this Bill so that I can perhaps knuckle down under his iron will and we can get through it?
Lord Grimstone of Boscobel (Con)
I thank the noble Lord. When I earlier impolitely snapped at the noble Baroness, Lady Hayter, and said to read the Explanatory Memorandum, I was not saying that with any disrespect. This Bill, as we have just acknowledged, is about professional qualifications. It has a broad long title and one sees from the Explanatory Memorandum that it covers a number of matters that affect regulators and professional qualifications, additional to the mere mutual recognition of professional qualifications from overseas. You could easily say that Clauses 1, 2, 3 and 4, allowing recognition arrangements, are the heart of the Bill. But at the same time, as I said—and we have obviously not tried to hide this, as it is stated in the Bill—it covers various other matters in relation to regulators in the United Kingdom.
Lord Purvis of Tweed (LD)
My Lords, the point from the noble Lord, Lord Fox, about the internal market Act remains valid. An entire part of that Act, Part 3, relates to professional qualifications. Under this Bill, a UK resident will be someone who, under a trade agreement, is entitled to practise. Under the internal market Act, that qualification is automatically recognised in another part of the UK, other than for those professions that are excluded. Can the Minister be very clear? Where does Clause 9 sit in relation to the internal market Act, given that that Act requires automatic recognition for a person’s qualifications in another part of the United Kingdom? Is it not just more bureaucracy, as has been suggested?
Lord Grimstone of Boscobel (Con)
I thank the noble Lord for that question. The way I see it is that the UKIM Act introduced a principle of automatic recognition of professional qualifications gained in one part of the UK, as well as provisions for the equal treatment of individuals who obtain their qualifications in a particular UK nation and those who obtain theirs in other parts of the UK. Clause 9 merely supports professionals as they seek recognition in another part of the UK by providing a legislative underpinning to information shared by regulators with their counterparts in another part of the UK. This is entirely about information sharing. It is not about the recognition of professional qualifications.
Baroness McIntosh of Pickering (Con)
My Lords, I am grateful to noble Lords who have spoken at various stages of the debate. I want to clarify at the outset—and I am sorry if I was not clear—that I was in no way calling for an exclusion of the legal profession. I clearly stated that my experience is most familiar with the legal profession because I am a non-practising member of the Faculty of Advocates. I simply asked how many regulators will be covered by Clause 9, and my noble friend was kind enough to answer that he thinks 25 regulators will be covered by it. I asked for specific examples of where the Government think Clause 9 provides a solution to a particular problem.
I have to say that, from the questions raised by the noble Lords, Lord Fox and Lord Purvis, I am even more confused now than I was at the beginning of the debate as to the relationship of this clause to this Bill and the relationship of this clause to the internal market Act, which I sat through and contributed to on this specific theme. If anything, my noble friend has confirmed my understanding, and that of my noble friend Lady Noakes. I am most grateful again for her eloquence in stating her own view as to why Clause 9 is perhaps not necessary. My understanding is that the regulators are already communicating in the way that they should.
The noble Lord, Lord Hunt, made an argument as to why Clause 9 might be needed in one specific aspect, but I think that would have been covered in any event under the relevant provisions of the internal market Act.
I am grateful to have had the opportunity to debate this. I would just like to add a word of caution to my noble friend the Minister. The Explanatory Memorandum is not entirely clear in every particular. I refer to Clause 3 —not that we are debating that at the moment— and particularly paragraph 32 on page 6, which I think raises more questions than could possibly be answered.
This is something that I will keep under review for the next stage. I am not entirely convinced as to why Clause 9 is in this Bill, but, for the moment, I will not press my objection.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
We now come to the group consisting of the question that Clause 13 stand part of the Bill. Anyone wishing to press this to a Division must make that clear in debate.
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.
Lord Davies of Brixton (Lab) [V]
My Lords, I fully support my noble friend Lord Hunt and the remarks of the noble Lord, Lord Patel. I will look at the wording of the clause; I might be slightly more inclined to consider giving the Government these powers if I understood better what the clause is getting at. I admire and sympathise with the parliamentary draftsperson; I understand that there is a massive amount of custom and practice, but what does the wording of this clause actually provide? We know what the Government are trying to do—take all the power—but we should at least try to provide something vaguely comprehensible.
Let us look at the wording. Subsection (1)(a) says that you cannot modify the legislation; under subsection (1)(b) you can
“make different provision for different purposes”;
and under subsection (1)(c) you can
“make supplementary, incidental, consequential, transitional, transitory or saving provision.”
That is just a word salad. I assume that there are good definitions of all these words, which make them distinct, but I struggle to understand what they are.
Subsection (2) says that, under Section 8, there is no power to modify legislation. Does that mean that you can still make different provisions for different purposes under Section 8, or does the word “modify” encompass everything in one? Subsection (3) gives us even more words: “amend, repeal or revoke”.
I really hope we can get an understanding of what the real powers that can be exercised under this clause mean and what the distinctions are between all these different ways of expressing what to me—a lay person—seem essentially to be the same objectives.
Lord Thomas of Cwmgiedd (CB) [V]
It is a pleasure to follow the noble Lord, Lord Davies of Brixton, and his analysis of Clause 13. I do not wish to add to it, because each of the words used in that clause is deliberately used by parliamentary draftsmen for purposes that, at the moment, I do not fully understand. My objection to the clause—this is why I support the noble Lords, Lord Hunt and Lord Patel—is that this is yet another piece of framework legislation with extensive Henry VIII powers, unclear as they are, as the noble Lord, Lord Davies, pointed out. There are occasions when one can see a justification for Henry VIII clauses or wide regulatory powers, but we have to ask about the context, and the context of this Bill is the professions, however broadly we define them. It is essential that professions be regulated under a structure approved in detail by Parliament, simply because we must be certain, first, of the quality of the professions, and secondly, of the scope of the restrictions. Thirdly, we must be certain that the professions are completely independent of government interference, given the reliance the Government place on them and the need for them to be steadfast in their independence and independent advice and statements to government.
The debate earlier this afternoon on Amendment 45 showed the fallacy of trying to do what the Government propose. It is only because this Bill—framework though it is and vague though it is—has been fully subjected to parliamentary scrutiny that some of the really difficult issues and the lack of preparation have come out. I dread to think what will happen when we move to looking at the way the Bill is to operate under regulations. It is clear, then, that the regulations will not subject to detailed parliamentary scrutiny. What can be worse than passing what I regret to say, with due deference to parliamentary counsel, for whom I have the highest respect and have had the pleasure of working with on many occasions, is a wholly unsatisfactory and poorly prepared Bill? But a draftsman is not to be blamed for that. The blame lies with those who give the draftsman instructions.
This is the kind of Bill on which Parliament must now take a stand. We should not be legislating without good primary legislation that sets out the detail, so that we are sure how the regulatory powers are to be used. We should curtail the use of these powers in relation to matters of great importance to the prosperity and health of the nation, and that is the independence of the profession.
I therefore warmly support the noble Lords, Lord Hunt and Lord Patel, in this regard. I have not added to what the noble Lord, Lord Patel, said about Henry VIII powers because I do not think I could have improved upon his eloquent explanation.
Baroness McIntosh of Pickering (Con)
My Lords, first, it was churlish of me not to thank my noble friend the Minister for his enthusiastic embracing of the idea of a round table in connection with Clause 9; for that I am extremely grateful to him. I am also grateful that he asked us again to refer to the Explanatory Memorandum in relation to Clause 13, in addition to the remarks made by the noble Lord, Lord Hunt, in moving this amendment. The EM states that the powers under Clause 13
“may be used to modify legislation, including, where relevant, Acts of Parliament.”
Again, an Act of Parliament is being amended not by another Act, but simply by regulation.
Every Government like to govern by regulation and every Opposition would prefer things to be on the face of the Bill—that is just a fact of life to which I am becoming accustomed, having only served as a shadow Minister, not the real thing. But I would like to take this opportunity to ask my noble friend the Minister one specific question. Clause 13 as drafted is silent on any requirement to consult on these regulations. What consultation will there be, and at what stage might draft regulations be passed to the regulators as well as the relevant devolved Administrations? It is extremely important that they see them at the earliest possible stage.
Could my noble friend also put my mind at rest regarding an issue that the noble Lord, Lord Hunt, referred to in connection with Clause 9: the potential conflict between regulators of a devolved nation and regulators in another devolved nation or, indeed, the “mothership”—the English regulator? Might that situation arise under Clause 13? How would my noble friend aim to prevent that arising?
Lord Fox (LD)
I am grateful for the speeches we have heard so far. I am a cosignatory to this amendment and I would like to associate myself completely with the comments of the noble Lords, Lord Hunt and Lord Patel. However, if they will excuse me, I would like to single out the comments of the noble and learned Lord, Lord Thomas of Cwmgiedd, which were a clear, clarion call as to what we need to do with this clause: take it out. If we do not, we will let a Bill leave your Lordships’ House with so much power vested in the Minister and the department.
We are still struggling with what this Bill is for. If, as the Minister says, the first four clauses are its beating heart, then if things change, these issues can be picked up in primary legislation. Secretary of State Fox was very clear: trade deals will be brought to Parliament and debated as primary legislation. If and when the Government renege on that, perhaps it would be a problem of their own creating, but to leave this Henry VIII clause in the Bill is to pass too much untrammelled power going forward. I am sure that every department wants that ability not to have to worry about what Parliament says when it is making regulations and primary legislation, but your Lordships are here to stand up against things like that. We should remember the words of the noble and learned Lord, Lord Thomas, as we move forward to Report.
Baroness Hayter of Kentish Town (Lab)
My Lords, my noble friend Lord Hunt referred to “unease” about the Bill. I would put it slightly stronger: the “worry” about the Bill is threefold. First, as we have been hearing, it is badly thought out, badly drafted and not subject to proper consultation. Secondly, it is powerful: it allows statutory bodies—ones we thought autonomous —to have their roles, structures and working practices altered, not at their request to a Minister but to comply with government policy. Thirdly, as we have just been hearing, these changes to statutory bodies will be imposed by secondary legislation.
Hence, it is entirely legitimate to ask questions about Clause 13. Again, it is about whether there are two parts to the Bill. I have been focused on the idea that the Bill is about recognising international qualifications, but we are hearing from the various trade talks that the Government will indeed want to add professional services into the mix. As we have said before, this will often be really welcome and will be prioritised, I hope, in some of the trade talks—but only where it is judged good for our professions and not where it is imposed in a deal for something else.
Lord Grimstone of Boscobel (Con)
My Lords, I note that the noble Lords, Lord Hunt of Kings Heath, Lord Fox and Lord Patel, have stated their intention to oppose that Clause 13 stands part of the Bill. The purpose of Clause 13 is to clarify and set out the parameters of the delegated powers in the Bill. Without it, there would be uncertainty about the limits of the powers in the Bill. Appropriate national authorities could have more, not less, discretion over how they make regulations under this Bill. For example, without Clause 13, the limits placed on the power to make regulations in Clause 10, which can amend the duty to provide information to overseas regulators, would no longer apply. The regulation-making powers could potentially be interpreted more broadly. On this point, the DPRRC observed that the power in Clause 10, which is described in Clause 13 as presently drafted, was an appropriate use of delegated powers. I do not believe that introducing uncertainty in the use of the powers under the Bill is the outcome noble Lords are seeking to achieve.
The debate, rightly and properly, has often returned to the DPRRC’s report on the Bill and its recommendations about the broad powers in the Bill. I respect and understand the points made by the DPRRC and by noble Lords during the Committee proceedings. I particularly noted the comments made by the noble Lord, Lord Hunt of Kings Heath, in this regard, supported by the noble and learned Lord, Lord Thomas of Cwmgiedd. The challenge we face, and I know I have said this previously, is that the existing legislative frameworks across numerous regulators include a mixture of primary and secondary legislation, so national authorities may require the ability to amend both primary and secondary legislation. I recognise the concern that noble Lords, including the noble Lords, Lord Patel and Lord Purvis of Tweed, and the noble Baroness, Lady Hayter of Kentish Town, have about the Henry VIII powers and the important comments made by the DPRRC. I will ensure that on Report I give as full an explanation as I can of why I believe those powers are necessary. I will not attempt to answer the legal points raised by the noble Lord, Lord Davies of Brixton, now. If I may, rather than doing it from the Dispatch Box, I will write to him, copied to other noble Lords present today.
I believe that if we are to move forward and put some greater coherence into the legislation surrounding professional regulators regulated by law in the UK this is the only route open to us. It allows us to provide for the implementation of international agreements of professional qualifications or to introduce routes to recognise qualifications from around the world in areas of unmet demand. The powers have also been designed to allow for flexibility to meet future needs. Of course I understand that noble Lords are worried about anybody at this Dispatch Box using the word “flexibility”. This is why I will have to explain as fully as possible how these powers will be used.
These future needs may be the terms of future trade agreements or changes in demand for professions in the UK. Clause 13, as drafted, allows appropriate national authorities to act expediently and in a proportionate manner through statutory instruments. These statutory instruments will of course be held to the rigorous scrutiny of the appropriate legislative process and will be informed by intensive engagement and, I can absolutely ensure my noble friend Lady McIntosh of Pickering, consultation with interested parties. Regulations made under this Bill—and I know this was a concern of the noble Lords, Lord Purvis and Lord Fox—will not cut across reforms to specific professions where they are also being taken forward. For example, DHSC’s consultation on proposals to modernise the legislation of healthcare professional regulators closed last week. If legislative changes are needed as a consequence of that reform programme, the intention is to use the existing powers under health legislation.
I hope that I have offered some reassurance about the intention behind the delegated powers in the Bill and I will, of course, continue to reflect on the points raised during the debate. I will see what I can do further to explain the rationale for these powers, but I do not believe that removing Clause 13 would address the concerns raised. I hope that the noble Lords feel able to withdraw their opposition to Clause 13 standing part of the Bill.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
I have received one request, so far, to speak after the Minister. I call the noble Lord, Lord Purvis of Tweed.
Lord Purvis of Tweed (LD)
My Lords, I am grateful to the Minister for indicating that we will have more information on Report, but we have been asking some questions of concern since Second Reading, so I think the very least the Minister and the Government can do before we start Report, and indeed before the deadline for amendments on Report, is to provide information. Otherwise, it is pointless once we are on Report.
My question follows up a question from the noble Baroness, Lady Hayter, on trade deals to which the Minister referred. In an earlier group, in response to a question I had about legal services in the Australia deal, the Minister categorical ruled out that there would be mutual recognition of lawyers in the Australia deal to try to allay my fears that it would override the internal market Bill. The attachment in the Minister’s letter to me, which is about the agreement in principle, has a specific paragraph:
“Legal services provisions which will both guarantee that UK and Australian lawyers can advise clients and provide arbitration, mediation and conciliation services in the other country’s territory using their original qualifications and title”.
If that is not a new agreement on professional qualifications that will have to be implemented by this legislation, in which the Minister is intending to using a Henry VIII power rather than primary legislation under previous commitments, how on earth can we trust any other commitments about intent from the Dispatch Box?
Lord Grimstone of Boscobel (Con)
I thank the noble Lord, Lord Purvis, for that. I really believe that we have to wait until we see the detailed text of the Australia FTA, which will be subject to proper scrutiny. I think if there is one thing that the noble Lord and I agree on, it is the need for proper scrutiny of free trade agreements once the text is available. Trying to debate these free trade agreements purely on the basis of brief references to what they say is not something that I believe either he or I would feel is satisfactory.
Coming back to his earlier point, I will communicate with noble Lords as fully as can before Report on the matters to which he referred.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
I have received one further request to speak after the Minister, from the noble Lord, Lord Lansley.
Lord Lansley (Con)
My Lords, I welcome what my noble friend had to say about returning to this issue on Report. When we do, given that, as the noble Lord, Lord Fox, said, it is our anticipation that future free trade agreements will be implemented in primary legislation, would my noble friend at that time also give us a guarantee that, where there is a choice between using primary legislation to make the necessary legislative changes to implement an international recognition agreement and using a power under this Bill, the Government will use the former to allow this House to scrutinise it in more detail?
Lord Grimstone of Boscobel (Con)
I thank my noble friend for that comment. As we know, these questions are difficult to answer in the abstract. What I can say is that, where primary legislation is needed, it will be used. I do not think that it is reasonable to ask me to define which aspects will be covered by primary legislation at this stage for agreements that have not yet been finalised.
Lord Hunt of Kings Heath (Lab)
My Lords, this has proven to be a very interesting debate, and it has moved us on a little. The noble Lord, Lord Patel, was very clear about why we are concerned about the use of Henry VIII clauses. He should take the noble and learned Lord, Lord Thomas, saying that he could not better his words as a pretty good compliment.
It seems to me that there are two things here. The first is the actual wording of Clause 13. My noble friend Lord Davies did a great service when he went through it. I reread it and, frankly, found it very hard to understand. When the noble and learned Lord, Lord Thomas, also says that he does not fully understand Clause 13, I suspect that that means that no one does, except perhaps one parliamentary counsel and possibly an official in the noble Lord’s department who issued the instructions. The fact is that this is poor legislation if it is almost impossible to work through what this clause actually means.
At heart, this is not just an academic debate. The noble and learned Lord, Lord Thomas, put his finger on it when he said that at the heart of this is the independence of our professions. One of the great successes that we in the UK enjoy, both in terms of prestige and financially, is the way in which many of our senior professions are viewed globally. The independence of those professions is one reason why that is so. That is what makes the Bill so important and why we are all rather worried about the current situation with it.
My noble friend Lady Hayter said that, if we leave it as it is, we are leaving any changes in the future without sufficient parliamentary scrutiny. The noble Baroness, Lady McIntosh, asked for draft regulations; I do not think that she received an answer to that, but it was a very important point.
The Minister has promised a full explanation on Report, which we will now get earlier, but he needs to come forward with changes to the Bill because it will clearly not get through after its current process through your Lordships’ House. There is a question for noble Lords generally about what to do with it.
The noble Lord, Lord Lansley, asked a pertinent question in relation to trade deals and the Government’s preference for primary or secondary legislation. The Minister answered him very carefully by saying that there would be primary legislation when needed, which is not quite the answer that I think the noble Lord was seeking. Of course, he had an earlier amendment that seeks to deal with this in one way; I have a sunset clause, which is another way of dealing with the problems in the Bill. There may be other approaches, but, between now and Report, we have to do something to protect the independence of our professions and Parliament’s role in scrutinising the provisions in the Bill.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
We now come to the group consisting of Amendment 56A. Anyone wishing to press this amendment to a Division must make that clear during the debate.
Clause 14: Authority by whom regulations may be made
Amendment 56A
Baroness Finlay of Llandaff (CB)
My Lords, I start by apologising to the House, as I wrongly said previously that nursing associates are not regulated. Actually, the Nursing and Midwifery Council now holds the register of those who meet those criteria.
In moving Amendment 56A, I am grateful to my noble and learned friend Lord Thomas of Cwmgiedd for his support. We have already had a discussion about exactly which regulators are affected by this Bill. There are two regulating bodies based in Wales that this legislation would affect: the Education Workforce Council and Social Care Wales. There is no valid reason whatever that the Westminster Government should have a say over these bodies, as they operate in wholly devolved areas.
The letter previously referred to, which was sent by the noble Lord, Lord Grimstone, to the noble Baronesses, Lady Hayter of Kentish Town and Lady Noakes, concerning the professions and regulators within scope of the Bill, exemplifies a key concern that my amendment tries to address. The letter failed to clarify that the Education Workforce Council is a Wales-only regulator, but also failed even to mention Social Care Wales. This was clearly a mistake, as we have now heard, and I hope it has been corrected, but it also flags a wider issue: Wales and Welsh bodies are clearly an afterthought for this Government when considering this Bill.
In its current state, I fail to see how the Welsh Government would recommend that the Senedd consent to the Bill, unless a number of issues are satisfactorily resolved. Clauses 1, 3 to 6, 8 and 10 confer various regulation-making powers for different purposes on the “appropriate national authority”. Of particular and cross-cutting concern to all these clauses is the way “appropriate national authority” has been defined by Clause 14. This means that the powers of the Welsh Ministers, along with those of the other devolved Governments, are exercisable concurrently by the Secretary of State or Lord Chancellor. Hence, the Secretary of State or Lord Chancellor could make provision, through regulations, on matters that fall within devolved competence.
In addition, as we have heard, Clause 13 contains provisions that mean that the powers to make regulations, conferred by Clauses 1 to 6, include powers to modify primary legislation, such as UK Acts of Parliament and Senedd Acts, as well as secondary legislation. The combination of concurrent functions and Henry VIII powers means that the Secretary of State could exercise these regulation-making powers to amend Senedd Acts and regulations made by Welsh Ministers. While Ministers may claim they do not intend to use these concurrent powers in areas of devolved competence, the wording of the Bill does not reflect this sentiment. The Secretary of State and Lord Chancellor would be able to exercise these powers in devolved areas without requiring any consultation with, or consent from, Welsh Ministers. That is clearly unacceptable.
Clause 14(5) requires Welsh Ministers, when exercising the regulation-making powers in the Bill, to obtain the consent of a Minister of the Crown when such regulations would, if made in an Act of the Senedd, require the Minister of the Crown to consent under Schedule 7B to the Government of Wales Act 2006. This effectively imports the restrictions imposed by paragraphs 8 to 11 of Schedule 7B to the 2006 Act into the regulation-making process. This restriction is unique to Welsh Ministers’ powers; Scottish and Northern Ireland Ministers are not subject to a corresponding restriction. However, it is not without precedent—a similar restriction was imposed by the Fisheries Act 2020.
What does this mean in practice? It means that the Welsh Ministers would, when making regulations using the powers conferred by this Bill, need to obtain the consent of a Minister of the Crown in certain circumstances, including where, for example, the regulations modified or removed a function exercisable by a reserved authority. Further, the removal of this provision via a future Act of the Senedd would also engage the Minister of the Crown’s consent requirements. Again, this is not a suitable state of affairs. Therefore, I must question whether some of these powers are even necessary.
For example, the power conferred by Clause 1 enables the “appropriate national authority” to make regulations that require specified regulators to consider and assess whether qualifications and experience gained outside the UK should be treated as if they were specified UK qualifications for the purposes of practising that profession in the UK. Both the Education Workforce Council and Social Care Wales already have powers enshrined by Welsh Ministers in Welsh legislation to recognise international qualifications and determine whether they are equivalent to UK qualifications, so I ask the Minister why the Bill now gives powers to override this. The solution, I suggest, is simply to accept my amendment.
Baroness Randerson (LD)
My Lords, I am pleased to have the opportunity to support the amendment in the name of the noble Baroness, Lady Finlay. I shall take a moment to express my concern about the chaotic state of this Bill. I will not waste more of the time of this House by repeating what the noble Baroness said, but the omission of the social care regulator from the Minister’s letter was such an obvious error. I cannot help thinking that a lot of work still needs to be done to make this Bill ready to pass into legislation.
As the noble Baroness has said, as the Bill is drafted, the regulator confers a suite of regulation-making powers on the appropriate national authority. Welsh Ministers are that authority for the devolved professions and have a right to be fully recognised as that, not to have to ask for permission from the UK Government nor to have their existing powers overridden by this legislation. According to the Bill, those powers are to be exercised concurrently with the Secretary of State and Lord Chancellor, who could legislate in devolved areas and, as the Bill stands, would not need the consent of Welsh Ministers on those regulations.
It is worth adding that the situation in Wales is always slightly more complex, because of the nature of Welsh devolution; it started from a bad place, has moved forward significantly in gaining clarity and logic, but is not 100% there yet. There are areas where Welsh Ministers have some Executive powers that are not reflected in the legislative powers of the Senedd, and that has to be recognised.
The reassurance that we received from the noble Lord the Minister—I realise that the noble Baroness, Lady Bloomfield of Hinton Waldrist, will respond to this group of amendments—that the power to override Welsh Ministers would not normally be taken is of no great reassurance to us, because the UK Government have said that in the past and then overridden the decision of the Senedd or the wishes of Welsh government Ministers.
This is a serious issue for the Government and this Bill. I warn them that, as the Bill stands, the Government will not get consent from the devolved Administrations or the Senedd in Wales. They have to take that into account as, to get this on to the statute book, they must start by overriding Welsh Ministers and Senedd powers.
Lord Thomas of Cwmgiedd (CB) [V]
My Lords, the issue on which I speak will be brief and parallels what I said earlier on Clause 13. It is important to keep this Bill as defined as possible. This amendment tries to do that by forcing the Government to explain why the relatively simple issues on Wales cannot be dealt with in the Bill. If there is a real need for the consent of Ministers of the Crown for Welsh Ministers to exercise powers, can a reason be given?
As the Minister knows from her own experience, the Welsh devolution settlement is extremely complicated, and all this part of the Bill does is make it even more complicated again. I can see no reason why the consent of Ministers of the Crown is required for just two regulators in Wales. Therefore, if there is no real need for these powers, this clause should not be in the Bill. Otherwise, I entirely agree with what has been said by the noble Baroness, Lady Randerson, and my noble friend Lady Finlay of Llandaff. I hope the Government can explain why this clause is needed and, if there is no satisfactory explanation, remove it.
Baroness Garden of Frognal (LD)
My Lords, in the face of such Welsh expertise, I rise apprehensively as an Englishwoman to add my support to the noble Baroness, Lady Finlay, the noble and learned Lord, Lord Thomas, and my noble friend Lady Randerson, and to support Wales and the Welsh Assembly. We all recognise that the Scottish Parliament, the Northern Ireland Assembly and the Welsh Assembly have different powers, remits and terms of reference. However, it seems strange that the Welsh Assembly is the only one to require the consent of a Minister of the Crown before being able to act, whereas the others do not. If devolution is truly to mean that the different nations have mastery over their countries, this surely cannot be necessary. The noble Baroness has already pointed out that Wales has prestigious bodies which could undertake these tasks.
Baroness Hayter of Kentish Town (Lab)
My Lords, I really do not want to add to what has been said because it is slightly strange that the UK Government will have to consent to regulations made by a Welsh Minister. I am sure the Minister will say, “But the Welsh Government saw this and did not object.” Can she tell us exactly what discussions took place with the Welsh Government, and what assurances they were offered if they did nod it through, which I think is unlikely? What assurances were they given to allay their fears about it?
Baroness Bloomfield of Hinton Waldrist (Con)
Hoffwn ddiolch i bawb a siaradodd yn y dadl byr ond bwysig hon. I thank all noble Lords who have spoken in this short but very important debate. I thank the noble Baroness, Lady Finlay of Llandaff, for her amendment, which relates to Clause 14 and the Welsh Minister’s powers to make regulations under the Bill. I note that it is supported by the noble and learned Lord, Lord Thomas of Cwmgiedd. The amendment would remove the subsections within Clause 14 whereby a Minister of the Crown’s consent would be required before any provision is made by Welsh Ministers in regulations that would, if contained in an Act of Senedd Cymru, require such consent.
First, I reiterate that the Government fully respect the devolution settlements. Devolved matters should normally be for the devolved Administrations to legislate on. It is hard to conceive of a scenario where this would not be adhered to. I remind noble Lords that the Government are seeking legislative consent to the Bill in line with the Sewel convention. The conditions in Clause 14 that the amendment would strip out are entirely in line with the devolution settlements. To deviate from the agreed position under the Welsh devolution settlement purely for the purposes of regulations made under the Bill would be inappropriate and unnecessary.
On the concurrent powers in the Bill, some professions are regulated on a UK-wide basis, and the regulation of some professions is entirely at devolved level. The Bill will apply to the entirety of the UK and, in line with the devolution settlements, allow the devolved Administrations to make regulations within devolved competence. The inclusion of concurrent powers ensures that professions which fall within devolved competence but are regulated on a UK-wide basis can be dealt with under the Bill by the relevant appropriate national authority. Of course, we shall always consult the relevant devolved Administration before these powers are used in devolved areas.
In answer to the noble Baronesses, Lady Randerson and Lady Finlay of Llandaff, officials met the Education Workforce Council at the end of April and are meeting the social care regulators next week to discuss the Bill. Social Care Wales was on the first indicative list and came off the second one following clarification from departments. As noble Lords know, the Education Workforce Council was on both lists. Because we are meeting the regulators so shortly, I will agree to write to noble Lords and update them on the progress of those discussions when they have actually happened. To that end, I hope that I can persuade the noble Baroness to withdraw her amendment.
Baroness Finlay of Llandaff (CB)
My Lords, I think I should start by saying “Diolch yn fawr iawn” to the Minister for her reply.
I am most grateful to the noble Baroness, Lady Randerson, for supporting me and the noble and learned Lord, Thomas of Cwmgiedd, in this amendment. I am also grateful for the support of the noble Baroness, Lady Garden of Frognal, and for her interpretation when she described it as “any passing Minister” being able to make some power, which is how it did feel when I read this in the Bill.
As has been said, the devolution settlement is indeed very complicated, and the problem is that the Bill appears to worsen those complications. The noble Baroness, Lady Hayter of Kentish Town, really put her finger on it in explaining what is, in some ways, the delicate nature of all this. I look forward to having a written reply from the Minister, because this is very complicated indeed. I do not think that we have clarified it adequately and, following that letter, I may well want to come back to it on Report. In the meantime, I beg leave to withdraw the amendment.
The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)
We now come to the group beginning with Amendment 58. Anyone wishing to press this or anything else in the group to a Division must make that clear in the debate.
Clause 15: Parliamentary procedure for making regulations
Amendment 58
Baroness Randerson
Member’s explanatory statement
This amendment would mean all regulations made under the Act are subject to the affirmative procedure.
Baroness Randerson (LD)
My Lords, I will speak to Amendment 58 in my name and that of the noble Baroness, Lady Bennett. This is about as modest an amendment as one could possibly imagine. It simply requires that all regulations that flow from the Bill are made by the affirmative procedure. The Government have acknowledged that most of the substantive changes to the law envisaged by the Bill are to be made by delegated powers.
The Delegated Powers and Regulatory Reform Committee has drawn our attention to what it sees as significant problems with the Bill in respect of the constitutional principles involved. The noble Lord, Lord Patel, drew our attention to this issue earlier in our debates this afternoon. For instance, the DPRRC draws attention to the Henry VIII power in Clause 1, which gives the Government power to amend primary legislation to make provision about a wide range of issues, including details of the approach to assessing applications from overseas applicants, guidance to regulators on how to assess them, fees to be paid and appeals.
The Government’s excuse is that these changes are to be demand-led, but the DPRRC does not regard that as a justification for Henry VIII powers. Paragraph 20 of its report points out that when those powers will be executed by affirmative procedure, that in itself will provide minimal scrutiny. Paragraph 23 points out that
“Ministers will have no duty to consult before making regulations.”
Clause 3 of the Bill gives Ministers powers to make regulations in connection with the implementation of international recognition agreements—another Henry VIII power and, this time, not subject to any conditions. We can already see the reality of this principle with the very broad agreement made between the UK and Australia in the recent trade deal, which specifies mutual recognition of professional qualifications in some detail.
The Constitution Committee makes the point that there is a long-standing constitutional convention that international agreements that change UK law require an Act of Parliament, so the DPRRC considers that Clause 3 should be removed from the Bill. Clause 4 also contains a Henry VIII power on authorising a regulator to recognise an overseas regulator. I go through this because I am pointing out that, in the face of this barrage of criticism from those in this House whose job is to safeguard the constitutional integrity of the UK, it is a very small request in this amendment that the blizzard of regulations that we can expect to flow from this Bill should be made by the affirmative procedure.
Lord Moynihan (Con)
My Lords, I declare my interest, having in prior years been a long-standing member of the Delegated Powers and Regulatory Reform Committee. I echo the comments of the noble Baroness, Lady Randerson, that its report on the Bill and the use of secondary legislation makes telling and worrying reading. Before I cover that, I place on record my thanks to my noble friend Lord Grimstone for his response to my speech earlier and the constructive way in which he handled that. Also, it is important for the Committee to place on record that he has sought to catch the mood of the House rather than to counter it by speaking “note rote”. That is a notable parliamentary and diplomatic skill, and he has done it more capably than many Ministers that I have heard in nearly 40 years in both Houses. However, as he knows, that does not negate the challenges that the Government face with this Bill on its passage through the House.
Most of the substantive changes to this Bill are envisaged to be undertaken by the Executive. As the noble Lord, Lord Hunt, has said, there is a creeping growth of secondary legislation. Some of it is understood in the context of the huge number of statutory instruments following Brexit, but both Houses need to review and reverse that process, otherwise we will be in a situation where the balance of power between the Executive and the legislature is out of kilter. Parliament must be consulted. My noble friend Lord Grimstone said that many of the Bill’s aspects would be under rigorous scrutiny with interested parties; it is even more important that they are under rigorous scrutiny with Parliament.
The noble Lords, Lord Hunt of Kings Heath and Lord Patel, when talking about Henry VIII powers, and the noble and learned Lord, Lord Thomas of Cwmgiedd, on the lack of detailed parliamentary scrutiny, made eloquent contributions to what is relevant not only to the very light-touch but important amendment in the name of my noble friend Lady Sanderson but to the wider use of secondary legislation, because there is a significant difference between negative and affirmative resolution. With negative, there is no requirement to approve the SIs for them to become law, and with the affirmative, there is a far higher degree of scrutiny sought, with the three forms of high and appropriate scrutiny that are well known to every Member of the House. That is why, wherever possible, Parliament should insist that as much as possible is on the face of the Bill, and why resorting to secondary legislation should be kept to an absolute minimum. It is with those comments in mind and made that I believe, not only in the context of Amendment 58 but throughout the Bill, that we need to return on Report to make sure that there is appropriate parliamentary scrutiny throughout.
Lord Purvis of Tweed (LD)
My Lords, I support Amendment 60 in my noble friend’s name, and I will speak to Amendments 65,66 and 67 in my name and that of my noble friend Lord Fox. This is a very short debate which in many respects reinforces points made in other groups, but it can be divided into two areas: first, the necessity of avoiding, where at all possible, using secondary legislation to amend primary legislation, as the previous group have indicated; and, secondly, to have an argument about pausing not just the Bill but the implementation of an Act before the Government have their policy ducks in a row.
Baroness Blake of Leeds (Lab)
This has been an interesting debate, especially for those of us who are only just beginning to get to grips with the whole process of affirmative and negative procedures. I thank the noble Baroness, Lady Randerson, for her explanation and the clarity with which she gave her understanding of why she has put forward the amendment. Clearly the Minister needs to explain why a distinction has been drawn and why the Government believe it is necessary.
As we have heard, Clause 15 states:
“Regulations under this Act are subject to the affirmative resolution procedure where they contain provision amending, repealing or revoking primary legislation or retained direct principal EU legislation”—
otherwise, regulations are negative. Amendment 58, in the names of the noble Baronesses, Lady Randerson and Lady Bennett, seeks to ensure that all regulations made under the Act will be subject to the affirmative procedure. As the noble Lord, Lord Moynihan, stated, the Delegated Powers Committee has raised similar concerns, stating, for example, that the power in Clause 10(4), which is subject only to the negative procedure, was “inappropriate”.
There seems to be a recurring theme throughout the discussions and debates that we are having as we go through these procedures: namely, that we must ensure that Parliament is not sidelined and that appropriate parliamentary scrutiny can take place. How many negative SIs does the Minister expect to come before Parliament in the first year after Royal Assent?
On Amendments 65, 66 and 67, I thank the noble Lords, Lord Purvis and Lord Fox, for putting forward the idea of one-year delay to revoking retained EU legislation, and I thank the noble Lord, Lord Purvis, for his detailed explanation of why that could be an attractive route to follow. I would like the Minister to explain whether this was ever considered. Indeed, would it give the regulators time to raise funds to cover any additional costs, or—to return to the theme of unease around so many areas of the Bill—is the Minister only worried about how a one-year delay could affect the UK’s pursuit of trade agreements?
Baroness Bloomfield of Hinton Waldrist (Con)
I thank the noble Baroness, Lady Randerson, and the noble Lord, Lord Purvis of Tweed, for their proposed amendments. As we have heard in this debate, the amendments concern parliamentary procedure for regulations made under the Bill and, separately, the timings for the revocation of relevant retained EU law. I note the concerns raised by almost all noble Lords who have participated in this debate about the use of delegated powers.
The Government have carefully considered the powers in the Bill and consider that they are necessary and justified. It would be unfeasible to specify in the Bill detailed amendments to a large number of pieces of primary and secondary legislation. In respect of certain policies, there is a need for flexibility to make changes over time. For example, the Bill takes a power to implement international agreements so far as they relate to the recognition of professional qualifications, the content and timing of which will depend on the outcome of trade negotiations.
On trade negotiations, I reiterate that the UK’s offer to potential trade partners on the recognition of professional qualifications depends on many factors, including the size of the potential market for the export of professional services. On the concerns addressed by the noble Baroness, Lady Randerson, I reiterate my noble friend’s comments about the status of the Australian trade deal. I understand the noble Baroness’s concerns, but I feel that we should probably wait for the final text to be issued.
I will start with Amendment 58, which I note the noble Baroness, Lady Bennett of Manor Castle, supports. The amendment would have the effect that all regulations made under the Bill would be subject to the affirmative procedure. Clause 15 sets out the parliamentary procedure for how regulations under the Bill should be made. The clause already provides that any regulation amending, repealing or revoking primary legislation or retained direct principal EU legislation is subject to the affirmative procedure. It is right that Parliament has the appropriate scrutiny of such regulations.
The clause goes on to set out that the negative procedure should be used for other, more technical regulations. Further, as an additional safeguard, the Bill provides that regulations subject to the negative procedure may be made also subject to the affirmative procedure where required. For example, regulations made under Clause 10(4), in relation to the duty placed on UK regulators under that clause to provide requested information to their overseas counterparts, would be made under the negative procedure. Those regulations may make provision in connection with that duty—for example, in relation to the timeframe in which the duty is to be complied with. The negative procedure is clearly more fitting in these instances and will provide an appropriate scrutiny for such measures.
I turn to Amendments 65, 66 and 67, which propose a minimum of 12 months before revoking relevant retained EU law. I thank the noble Lord, Lord Purvis of Tweed, for tabling these amendments, and I note that the noble Lord, Lord Fox, supports them. We have already discussed at length the core professionals whose qualifications and experience have been gained overseas, reflecting our status outside the EU single market and our global outlook. Clauses 5 and 6 play a key role in doing that. The details of those clauses were addressed on day 2 of Committee, so I will not repeat them now, but I will repeat what my noble friend the Minister said about the timing of commencement regulations for these clauses and his assurance to noble Lords that the Government have no intention of rushing this.
The Government will consider carefully when to implement commencement regulations to revoke the EU-derived system under Clause 5(1). In order to support a coherent legislative framework while making sure that decisions are taken at the right time for the professions affected, there will need to be appropriate prior engagement with the devolved Administrations, regulators and other interested parties. Likewise, Clause 6 provides for the revocation of other retained EU law by the appropriate national authority, and I would expect there to be appropriate engagement from all such authorities with regulators. As a result, I am confident that the Bill will come into force in an orderly manner with no surprises for regulators, and that it will not bring with it such wholesale changes for which the regulators would need a year to prepare if regulations were to be made before that period had elapsed. I hope that has allayed some of the concerns of the noble Lord, Lord Purvis, that we were passing legislation before we had our policy ducks in a row.
I hope my explanations on these points have provided appropriate reassurance and I ask that the amendment be withdrawn. Lastly, I apologise to the noble Baroness, Lady Blake, but perhaps I could write to her with specific answers to her questions.
Baroness Randerson (LD)
I thank all noble Lords who spoke in this short debate. To sum up the situation on the affirmative versus the negative procedure, the reality is that negative instruments slip through this House almost unnoticed. The occasional one might catch the eye of an eagle-eyed Peer who might raise it and turn it into an affirmative procedure, but the vast majority slip through. The procedure is intended for routine things such as renewals year on year, not the kind of procedure envisaged in this legislation. At least we get the opportunity to debate affirmative instruments, although that is done on an “accept it or reject it” basis. We cannot amend them, and it is therefore a pretty blunt instrument. Noble Lords know that the number of affirmative instruments rejected by this House is extremely small.
I join the noble Lord, Lord Moynihan, in thanking the noble Lord, Lord Grimstone, for his acceptance that he has to provide greater clarity in response to our criticisms. The noble Baroness, Lady Bloomfield, also indicated that she will write in response to the specific questions from the noble Baroness, Lady Blake. My noble friend Lord Purvis pointed out a lack of clarity about how and why this legislation will operate.
I noted the Minister’s comments about the Australian trade deal. The announcement sets out in detail the issues that will be covered, but not exactly how they will be covered. I read it with great interest. The two Prime Ministers stood there in person and announced it proudly. Is the Minister now saying that this is just a rough sketch of what might be and that we should not rely on this as the brave new future announced to us only a week or so ago?
I conclude by saying that the Bill has come to us far too soon. That view is probably shared by many noble Lords across the Committee. There has been a lack of consultation with the devolved Administrations and the regulators and a lack of research. It shows. The Bill was conceived with absolutely no understanding of the complexity of this process. Going back to Second Reading, my noble friend Lady Garden and I warned that the process of agreeing the mutual recognition of qualifications will take years. We have been arguing about how we set up a system to do that. It has nothing to do with the process of making the agreement on mutual recognition. We are in the calm before the storm on this.
We have a situation where there is uncertainty about who the regulators actually are and there is no recognition of how long it takes to agree the qualifications. This is a truly terrible Bill. I do not say that because I disagree with the principle behind the need for mutual recognition of qualifications. We need to have it, but we have a Bill that has not decided what it is about, how it will do it and why it will have to do it. The noble Baroness, Lady Noakes, said that it is bordering on the absurd, so I urge Ministers to go back to their department to have a long and honest conversation and then either withdraw the Bill and put it out of its misery or at the very least have a delay before Report to give them the opportunity to recharge their batteries and consider what they really want from the Bill. In the meantime, I beg leave to withdraw my amendment.
Lord Hunt of Kings Heath
“Expiry
(1) The appropriate national authority may not make regulations under this Act after a period of four years beginning with the day on which this Act is passed.(2) Any regulations made under this Act expire on the day after that period.”
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.
Lord Fox (LD)
Once again, my Lords, I find myself following the wise words of the noble Lords, Lord Hunt and Lord Patel. In his speech, the noble Lord, Lord Hunt, referenced the Trade Act. Students of the Trade Act will have heard me make a speech about secondary legislation on at least two occasions and I am not going to repeat it, but—spoiler alert—it was very similar to the speech the noble Lord, Lord Hunt, gave. The key element both of us brought out was the complete lack of government jeopardy when it comes to secondary legislation. In other words: it is essentially a bet that cannot be lost. What they are betting with is the right governance of a very important thing.
After several trailers from the noble Lord, Lord Hunt, we come to this amendment. He has trailed this several times and the sunset clause is one way of putting some insurance into this Bill. What we would really like is for the Bill to leave this House not needing a sunset clause; that has to be the objective. This is very much a second-order or third-order solution to something sub-optimal. In that respect, I am not enthusiastic; I am somewhat reluctantly drawn to supporting this clause because we have to put in some element of insurance if we cannot get this right. I hope that, by hook or by crook, we can get the Bill right and perhaps not need a sunset clause, but in the meantime, we should keep that option open.
Baroness Blake of Leeds (Lab)
I thank my noble friend Lord Hunt and the noble Lord, Lord Patel, for tabling Amendment 59. A four-year sunset clause is an interesting proposal, given the wider concerns that keep coming up throughout these debates: how quickly the Bill has been put together, the lack of thinking through of all the elements, and the concerns just raised by the noble Lord, Lord Fox.
Have the Government considered a mechanism for reviewing the Act’s effectiveness and, if so, what sort of review is the Minister proposing? I hope he will acknowledge the lack of confidence that has been expressed from all sides of this Chamber. I finish by asking the Minister to explain why the Bill’s provisions should last longer than four years, without a review mechanism.
Lord Grimstone of Boscobel (Con)
My Lords, I thank the noble Lord, Lord Hunt of Kings Heath, for his amendment and the noble Lord, Lord Patel, for the views he expressed.
The amendment would impose a time limit of four years on appropriate national authorities making regulations under this Bill, once enacted, and regulations already made under the powers in the Bill would expire the day after that four-year period is completed. Of course, this is familiar to many as a sunset clause. However, sunset clauses are typically insurance policies against powers that, at some point in the future, may be no longer suitable to deliver the policy aims which required the legislation to be made.
The Trade Act, which we have heard referred to by a number of noble Lords, with its rollover of international agreements to be replaced in due course, is an example of legislation in which a sunset clause that can be renewed by Parliament is appropriate. However, this Bill and the delegated powers within it are drafted deliberately to endure, futureproof the legislation and provide flexibility to make necessary changes over time. I even like to think of the Bill as having a sunrise —not sunset—effect because it is intended to help our professionals enter new markets and deliver a global Britain, having ended the one-sided, EU-derived temporary arrangements. I therefore feel that a sunset provision is at odds with the purpose of the Bill.
Returning to debate a new professional qualifications Bill in four years’ time because this Bill no longer provides for that flexibility, would, I respectfully suggest, not be the best use of the expertise of this House. Of course, I have nothing against such clauses where they are appropriately used, but inclusion here would undermine the ability of the UK Government and devolved Administrations to respond swiftly to changing demands for services. It would potentially thwart the implementation of future regulator recognition agreements, which, as we know, may not in reality be implemented for some years after a free trade agreement is agreed.
There is also a risk that in providing for the expiry of regulations made under Clause 3 to implement international agreements, the UK may be left without provision upholding the commitments that we have made under those agreements, thereby placing us in breach of their terms. As I remarked to the noble Lord, Lord Purvis of Tweed, on day two in Committee, I believe that sunset clauses would not be appropriate in these circumstances. By sunsetting, we limit the opportunity for service trade and constrain regulators’ abilities to exploit opportunities with their international counterparts, for example through Clause 4.
The powers in the Bill are designed to support a flexible response as the regulatory landscape evolves over time. Curtailing the ability to do that through a time limit would put us into regulatory limbo rather than preparing us for the future. We know that the Bill will allow the UK to replace the interim system of recognition currently in operation. Stripping away regulation that the Bill creates to replace the EU system would only create a new gap.
Finally, if the intent behind this amendment is indeed to mitigate any potential misuse of powers, I reiterate that the powers detailed in the Bill are carefully tailored to its requirements; they are focused on a specific purpose. I believe that the reason why some noble Lords are arguing for a sunset clause is that they think it is a rotten Bill: “If we are not able to kill it off now, why not do so in four years’ time?” I prefer to share the ambition of the noble Lord, Lord Fox—I was pleased to hear him state it so clearly—that the Bill should leave our House in good shape, do what it is intended to do and be fit for purpose. On that basis, I hope that the noble Lord, Lord Hunt, will agree that a sunset clause is not appropriate and will consider withdrawing his amendment.
Lord Hunt of Kings Heath (Lab)
My Lords, I am grateful to the Minister and to noble Lords who have taken part in this debate. The Minister is an eternal optimist and I liked his description of the Bill as a sunrise Bill. I say at once that I agree with the noble Lord, Lord Fox, that a sunset clause is not to be desired. The aim is to reach some consensus on the way forward. My reading is that the Minister is not going to get the Bill through at the moment, as it will be heavily amended on Report. This is a House of Lords starter Bill so the Parliament Act does not apply, and—
Lord Hunt of Kings Heath (Lab)
No, I do not think that it applies to Lords starters; it applies to Commons starters.
Rather than just repeating the reasons why the Government need the clauses as they are, I hope they will start to negotiate because that is the way to get through this. There are ways in which the Bill can be amended to modify the executive provisions, but the Government have to be prepared to move. I thought the noble Lord, Lord Patel, was very wise in repeating to the Minister the wise words of his own better regulation advice on where sunset clauses can be appropriate. My noble friend Lady Blake asked where there will be a review mechanism at all if there is no sunset point.
Ultimately, it seems that we have reached a crunch position where the House is unhappy and will vote to take chunks out of the Bill, one way or another, unless we can reach a satisfactory solution. Clearly, the Bill is a Lords starter for one reason: it is a Bill on which we should be able to come together because at heart we all want to see professional qualifications in this country maintaining independence, a very high standard and interchangeability with other countries, where that is appropriate. Although noble Lords may have some doubts about this Bill, I do not think there is any argument about the intent of where the Government seek to go. We now need to see movement from the Government. Having said that, I beg leave to withdraw my amendment.
“Saving: autonomy of regulators
Nothing in this Act affects the autonomy of regulators to act in the interests of their profession, including but not limited to the ability to—(a) set and maintain professional standards.(b) set requirements to practise a profession. (c) determine who is fit to practise.(d) set requirements for having insurance. (e) set the training requirements (including requirements about gaining experience).(f) determine appropriate levels of flexibility in assessment practices;(g) determine to make a regulator recognition agreement.”
Baroness Hayter of Kentish Town
I apologise for my response during my noble friend Lord Hunt’s comments. Is it not wonderful that you learn something new every day? I had not realised that a Lords starter is not subject to the Parliament Act. I was just preparing something for a meeting I have tomorrow saying how the Bill was a Lords starter because that is normal for a noncontentious Bill. That is presumably why noncontentious Bills are put here.
However, with a final flourish, Amendment 60B is in my name and those of the noble Baroness, Lady Noakes, and the noble Lords, Lord Lansley and Lord Fox. It basically sums up the deep concerns we share about the Bill’s potential to undermine the independent standard-setting and public interest duties of what we have seen as autonomous regulators. As the Minister will recognise, everything in this amendment is what he promised in Committee. I am not suggesting that the department made up its position as the Bill went along. In this amendment we have simply brought things together to make the Government’s position, as the Minister has stated, much clearer and easy to read, so because of that, I think the Minister will have no issue at all with the amendment and will probably want to accept it.
As the amendment is all things that the Minister has been saying, I do not propose to rehearse all the arguments—he is familiar with all of them—save to say that a Bill to compel regulators either to enter negotiations with an overseas regulator or put in place a process for recognising the qualifications of applicants trained abroad to fulfil a promise made by the Government in a trade deal or to fill a skills shortage defined by a Minister is not compatible with a regulator’s independence if it is carried out by diktat rather than at the regulator’s request. I completely understand that if there is a deal and particular professions would like to have the mutual recognition of qualifications, they may find they do not have the powers and may come to the Minister saying “Look, our statute does not allow for it. Please can you do the necessary?” I quite understand that that power might need to exist but it should come from them, not from the imposition of the Minister.
Lord Purvis of Tweed (LD)
My Lords, we started Committee with an amendment in the name of my noble friend Lord Fox. It sought to establish at the very outset of the Bill the principle that nothing in it would have a negative impact on the autonomy of our regulators. I am glad that we are able to say—well, not quite “We told you so”, but certainly the fact is that we have learned little in Committee that has meant that the case is not even stronger, so reassurance needs to be provided in the Bill.
The powers in Clause 1 could be extensive when it comes to individual applications. The powers in Clause 4 could be forced on a regulator. The powers in Clause 3 could implement elements of trade agreements on regulators in all four parts of the United Kingdom with little scrutiny or accountability. In reverse order, on the trade side, during the debate on the previous group, the Minister sought to give the impression that the regulatory powers were needed to implement trade agreements and the professional qualifications elements of those agreements because, without those powers, we would not able to implement international agreements and therefore may need to act urgently. Clearly, I have not been following in Committee because, by definition, these regulators are statutory. If the Government’s statement that a treaty would be implemented by primary legislation is correct, that would be the vehicle—when that treaty is being implemented—to make changes to any of the legislation of those regulators. I simply cannot understand why a Henry VIII power is necessary for that.
On forcing the regulators to enter into mutual recognition agreements, if the Government are saying that this measure is purely enabling, there is a degree of merit in that. However, in Committee, we have heard that such enabling could go beyond and add extra pressure. In Clause 1, the powers on the application process are extensive. Whether we have a declarative statement at the outset or the protections that would be brought about by this amendment, there will have to be protections. If the Government genuinely want to avoid a situation where this Bill either must be paused or does not progress at all—my understanding is that the noble Lord, Lord Hunt, is absolutely correct that Bills starting in this place are not subject to the Parliament Act and that the Minister therefore has to be nicer to us—they must provide reassurance. That can happen now only through much greater detail about the organisations and regulators that will be impacted by this, as well as about certain areas of draft regulations along the lines of what the Government would really want to use these powers for. Without meaningful reassurances, this Bill has significant difficulties.
Baroness Noakes (Con)
My Lords, I need to say very little, other than that I support what the noble Baroness, Lady Hayter, and the noble Lord, Lord Purvis of Tweed, have said. I know my noble friend has heard the strength of feeling in Committee, about the importance of regulator autonomy. I think there is agreement in Committee, though not necessarily yet with my noble friend the Minister, that something needs to be in the Bill to recognise that.
I hope that by the time we get to Report, if indeed there is a Report stage on this Bill, the Government will have taken ownership of the issue, because I am afraid that if they do not the House will.
Lord Fox (LD)
My Lords, I have gone through the entire Committee session in complete agreement with the noble Baroness, Lady Noakes. Not a scintilla of difference has come between us all day. The fact that this amendment is signed by such a broad group of people indicates two things. One is that there is broad hope that we can get a Bill out of this process that we can live with. Also, this is the essential building block that has to start the process of creating a Bill that this House is much more comfortable with. As we have heard, the Minister has spoken time after time about the autonomy of the regulator. He cannot be faulted in the number of times he has said it. However, at no point is that autonomy echoed in the words of the Bill. That is what this amendment, very simply, seeks to do. As the noble Baroness, Lady Hayter, put it, it is to take the Minister’s words and to put them into the Bill. Without that insurance, as my noble friend Lord Purvis explained, that are plenty of ways that autonomy can be eroded and, indeed, set to one side.
My noble friend Lady Randerson, speaking to a previous group, explained that mutual recognition of qualifications takes years. It does not take years if it rides in on the back of a free trade agreement and overrides the rights and autonomy of our regulators. That is the fear that runs through all the people trying to correct this Bill. This amendment, or something that the Government pick up and make their own, is one way of starting the process of having the dialogue that will help the Bill make further progress.
Lord Grimstone of Boscobel (Con)
My Lords, I thank the noble Baroness, Lady Hayter of Kentish Town, for her amendment, which sets out the autonomy of regulators to act in the interests of their profession. I note that the amendment is supported by my noble friend Lady Noakes and others. Of course, I commend their commitment to upholding regulator autonomy, and it will come as no surprise that I support their intent here. I was told before I joined your Lordships’ House that understanding the mood of the House was an important requisite if a Minister was to have a chance of even modest success in his role. I do not think that anybody who has listened to our debates on this matter could be in any doubt about the mood of the Committee on this topic.
I spoke at length on regulator autonomy on days one and two of Committee, saying, in particular, that regulatory autonomy is, and has always been, a priority in this Bill. Throughout the Bill’s development and following its introduction, the Government have engaged closely with a wide range of regulators—even the newly discovered ones—to make sure that their autonomy is upheld throughout the Bill. We will of course continue to do so, not just during the Bill’s passage but in its implementation. Subject to the usual channels, I believe that we may now have time available to us before the Bill moves to Report stage to make sure that process is fully and conclusively completed.
This is why of course we listened even before the Bill started its passage through the House, and tabled our amendments to Clause 1: to ensure, in that case, regulatory autonomy over decisions about who practises a profession and flexibility in assessment practices, in line with the rigorous standards set by regulators. I think noble Lords will recognise now that the overall effect of Clause 1, as amended, will be to ensure that regulators can use a full range of approaches to make their determinations about knowledge and skills, and it preserves their ability to set further conditions, such as those set out in the amendment. I am pleased that, through discussion, we were able to get both the General Medical Council and the Nursing and Midwifery Council to welcome this. The proposed new clause would also specify that regulators are able to determine whether to make a regulator recognition agreement. Perhaps I may humbly say that Clause 4 is already the means of achieving this.
Clause 3 ensures that, where the UK has international agreements on the recognition of professional qualifications, these can be implemented. The principle of autonomy will be a key priority in reaching these agreements. Of course, I understand the point made by the noble Lord, Lord Purvis of Tweed, that there will be a number of future free trade agreements that will require primary legislation to implement them. Equally, there may be some, for example the Swiss mobility agreement—not a full free trade agreement but one that acts within the spirit of the Bill—which may not need primary legislation. That is why it has been important to have this flexibility.
Agreements under Clause 4 are entirely regulator-led. The appropriate national authority may grant regulators the power only to enter into agreements, not to dictate what agreements to enter into. It is for the regulator to decide whether it wishes to enter into a recognition agreement with its counterparts overseas, and the terms of any agreement. I hope that I have conveyed through this, and my previous comments, that the Bill protects and values the autonomy of regulators. But of course, I go back to my earlier comments: the strength of feeling expressed by Members of this House has not gone unheard. I have listened carefully to the points made and I will continue to consider the importance of regulatory autonomy and to ensure that this is respected.
I would still highlight that the Bill, as drafted and amended by the Government, does give powers to regulators where they need them. If the Bill can be improved through scrutiny, who would not want it to be? However, the Bill is already consistent with the intended effects of the amendment, so I suggest that there is no need for an additional clause. I therefore ask that this amendment be withdrawn.
Baroness Hayter of Kentish Town (Lab)
I thank the noble Lord and the noble Baroness, Lady Noakes, for their support for this. If I have understood the Minister correctly, he said, “Don’t worry about it because it’s all in the Bill, so it isn’t necessary”. But if it is all in the Bill, there is no harm in it. Given the concerns that we have had, I see nothing wrong with the reassurance, as I mentioned at an earlier stage. Sometimes, when things are tested, perhaps in courts afterwards, a very clear statement of intent and reassurance can work wonders—even more than a ministerial statement from the Dispatch Box. Therefore, it would not be right to say that it is not needed. If it is an extra bit, that seems to me a welcome addition.
However, I am very grateful to the Minister for saying that he has listened to everything we have said and will think about this. I will give away a small secret, just within these four walls: there is no date, as yet, in July for Report, so it may well be that we have until September, which should give the Ministers and their drafters plenty of time. It would obviously be better if any amendments that we agree with could come in their names, because they tend to be drafted better than ours, and it is also much easier to have a discussion and agree.
The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)
Before I go on to the next group, it is perhaps worth saying to those who wish to speak after the Minister that the earlier they can inform us, the more likely it is that the message can be passed directly on. I am afraid that I was not able to call the noble Lord, Lord Lansley, as I had to apply the same rules that I applied to the noble Lord, Lord Purvis of Tweed, for the same reason.
We now come to the group beginning with Amendment 61. Anyone wishing to press this or anything else in this group to a Division must make this clear in the debate. I call the noble Lord, Lord Palmer of Childs Hill.
Clause 16: Interpretation
Amendment 61
Member’s explanatory statement
See explanatory statement for the amendment in the name of Lord Palmer of Childs Hill to page 13, line 19.
Lord Palmer of Childs Hill (LD)
My Lords, it is my great pleasure to speak here in the graveyard spot on this Bill to the amendments in my name. I thank the Minister for his letter of 20 June concerning the professions and regulators to which this Bill applies. It would have been a bit more helpful to have had it earlier.
It seems that BEIS has recognised the point I made in my amendments that the ICAEW and other accountancy professional bodies are in the scope of the Professional Qualifications Bill, owing to their role as recognised supervisory bodies for the purposes of statutory audit, insolvency, probate and administration of oaths. This has been referred to by many noble Lords from around the Chamber during the course of this Bill. As this addresses the point made in my amendments regarding the rationale for including the ICAEW, of which I am a member, in the scope of the legislation, I hope that the Minister will acknowledge when he replies that it helped to review the actual impact of the Bill, as his letter helped me in making this speech.
It feels like the Government are rushing through this legislation without having thought through the detail of the Bill and its consequences. Noble Lords are now having to try to fix this. For the list of regulators and professions affected by this Bill to have changed so substantially while the legislation is being scrutinised by your Lordships’ House does not help give certainty on such an important and wide-ranging legislative measure.
Between this Bill’s conclusion in the House of Lords and it eventually beginning to go through the lower Chamber—and eventually when it comes to Report—it is vital that BEIS takes stock of this legislation, reviews its intended and unintended consequences, and engages with those regulators and professional bodies in scope to iron out any remaining concerns. The noble Baroness, Lady Noakes, said earlier in this debate that there needs to be a pause to the Bill. There needs to be a certain something which does not just carry on as we are now.
A remaining concern—and my last words on this—is on the need for the regulation of accountants and tax advisers. At present, anyone can set themselves up to give this service—and maybe they should. I hope that the Government will consider whether any regulation in some form is required. After all, where pig farmers go, accountants should surely follow. I beg leave to move the amendment.
Baroness Noakes (Con)
My Lords, the noble Lord, Lord Palmer of Childs Hill, has tabled these amendments, which I know were suggested by the Institute of Chartered Accountants in England and Wales, so I felt somewhat obligated to speak on the amendment. I know that the ICAEW is pretty keen to be included in the Bill’s scope. As the noble Lord explained, its wish has been granted to some extent, but only for certain aspects where it regulates professions. The noble Lord’s amendments would actually go considerably further by making chartered accountancy a regulated profession. Amendment 64 names the ICAEW as the “chartered accountancy regulator”, thus relegating all the other chartered accountancy bodies to also-rans. If the noble Lord was even thinking about pressing his amendment, I would strongly oppose it. I hope that my noble friend the Minister will resist it.
The inclusion of chartered accountancy is not logical. The ICAEW already enters into mutual recognition agreements, so Clauses 3 and 4 would have no relevance whatever. I cannot believe that the Government would ever make a determination under Clause 2 that there is a problem with meeting a demand for accountants’ services. There is no shortage of accountants.
The ICAEW’s rather grandiose briefing to me said that it wanted to be in the Bill so that there could be
“a debate on the role of the profession in shaping global business practice, reporting and governance”.
In other words, the ICAEW wants to be seen as important. Legislation should not be used to support the egos of anybody, let alone professional bodies.
Right at the end of his remarks, the noble Lord, Lord Palmer of Childs Hill, raised whether the provision of accountancy and tax advisory services should be regulated. That is pure protectionism and not something I would ever support, even for my own profession of accountancy. I know that the noble Lord will not press his amendments, but if he does I hope that my noble friend the Minister will strongly resist them.
Baroness Hayter of Kentish Town (Lab)
My Lords, my sister is not a chartered accountant, but she is an accountant. I do not know whether that is an interest to declare, but I should note that.
Unsurprisingly, I have a lot of sympathy with what the noble Baroness, Lady Noakes, said. In fact, when the noble Lord first raised the possibility of this with me, I was really interested, but we were both quite surprised that somebody actually wanted to be regulated. As someone who has worked very much on the consumer side, I have tried to get people regulated and on the whole they have resisted. However, that falls apart, because we have now discovered in the letter that the ICAEW will be there.
Earlier, I read out the note that I had had from the ICAEW as a result of the Minister’s letter on Sunday, saying that it seemed as if the Government were “rushing through the legislation”. I did not quote this, but I will say it now:
“Between this Bill’s conclusion in the House of Lords and it beginning to go through the lower chamber, it is vital that BEIS take stock of this legislation, review its intended – and unintended – consequences, and engage with those regulators and professional bodies in scope to iron out any remaining concerns.”
As I said on the previous group, I hope that we will use the time between now and Report, rather than between now and when the Bill arrives in the other House, but it sounds as though the ICAEW and the other accountancy bodies have not yet had a discussion with departmental officials. I hope that that can be put in hand. I hope the Minister will be able to confirm, although maybe not at this moment, that those meetings have taken place so that, as the ICAEW says, any intended or unintended consequences are fully understood and any problems can be ironed out. I look forward to hearing from the Minister that that will take place.
Lord Grimstone of Boscobel (Con)
My Lords, I thank the noble Lord, Lord Palmer of Childs Hill, for his amendments. I am grateful for the opportunity to clarify the Government’s thinking on whether the chartered accountancy profession is one to which the Bill applies, as well as the situation in respect of other chartered professions. I hope that noble Lords have noted, as I have responded to this, that we have been listening to their concerns and that we are looking to engage and make improvements where we can. I can confirm to the noble Baroness, Lady Hayter, that officials are already in discussion with the ICAEW.
As a short digression, I have to say that it is nice to hear regulators are now clamouring to join the bandwagon of this Bill. I hope that marks a turning point for us. I will be going home with a spring in my step this evening, having heard that.
I should begin by acknowledging that the UK’s chartered accountancy bodies set the highest standards with their qualifications and require continuous professional development, rightly. As a result, the UK’s accounting sector is highly respected and valued both domestically and across the world. We are rightly proud of it.
I would also like to highlight that, as we have heard from noble Lords, the ICAEW is a regulator to which the Bill applies, by virtue of its role as a regulator of auditors, insolvency practitioners and some other distinct specialisms. The professional activity of audit is regulated in statute by the ICAEW and the other recognised supervisory bodies for audit, all overseen by the Financial Reporting Council. We continue to deepen our understanding of these relationships as a result of the mapping work that I described much earlier today.
One of the objectives of this Bill is to revoke the current EU-derived system for recognising professional qualifications and experience gained overseas. We are taking away this prescriptive system and leaving it to our autonomous regulators to decide what recognition arrangements they require. If our regulators need help to create recognition routes to meet demand, or to agree reciprocal agreements with overseas counterparts, we can use the powers in this Bill to give them what they need.
Chartered titles are, in general, a form of self-regulation. Chartered accountancy is not a profession regulated in law, and there are no statutory impediments to the chartered bodies having whichever international recognition routes they deem appropriate. So there is simply no need for government intervention under this Bill to help chartered bodies set up recognition routes or international recognition arrangements for professional activities not regulated in law. Indeed, the ICAEW already has many overseas members and international agreements relating to accountancy. Therefore, the profession of chartered accountancy does not need to be included among those professions to which the Bill applies.
This is true of all voluntarily regulated professions. Professional bodies for those professions continue to reign with autonomy over their unilateral recognition routes and over the formation of the content of recognition agreements with overseas counterparts. So, I repeat: they do not need any help under the powers of this Bill. I hope that the noble Lord is reassured by this explanation, and I ask that he withdraw the amendment.
We are now reaching the end of the 27th grouping, which marks the end of the Committee stage for this Bill. I would like to express my sincere thanks to all noble Lords for their excellent and insightful contributions. I think it is fair to say that Ministers and officials have learned things from these insightful contributions. I will be reflecting on all the points made. If the noble Baroness would like to tell me where she will be for her summer holiday, I will make sure that the letters are delivered to her expeditiously.
I look forward to continuing to discuss this Bill with noble Lords. I will hold further round tables; I, and officials, will meet further with regulators; I will meet with the devolved Administrations; and I will do this before we return for Report.
The Deputy Chairman of Committees (Lord Duncan of Springbank) (Con)
Before saying that there are no requests to speak after the Minister, I will just confirm this time that there are no such requests. No? Excellent—I therefore call the noble Lord, Lord Palmer of Childs Hill.
Lord Palmer of Childs Hill (LD)
My Lords, I am glad that the Minister understands the mood of the House, which has been very clear over the course of our proceedings on the Bill. I thank the noble Baronesses, Lady Noakes and Lady Hayter, for contributing on these amendments, which noble Lords will appreciate were put down at a very early stage of the Bill, on the basis of the Institute of Chartered Accountants in England and Wales indicating to me—but not to everybody—that it wished to be named in the Bill. The noble Baroness, Lady Noakes, quite rightly said that it is not the only accountancy body. I raised this with the ICAEW, which said that it did not at this late stage want to be seen as speaking for all the other bodies but to test the water on behalf of the accountancy profession.
Noble Lords made the point that there is no shortage of accountants, but inclusion in the Bill does not necessarily mean shortage—I am not sure whether there is a shortage of pig farmers but nevertheless they are in the Bill; therefore, there is an argument for this. The noble Baroness, Lady Hayter, quite rightly said that some accountants feel that they need to be seen in, and part of, the Bill, but they have come very to it very late. I hope that this can be ironed out.
I thank the Minister for replying positively to many of the points that concerned me and beg leave to withdraw my amendment.
Professional Qualifications Bill [HL]
Tuesday 9th November 2021
(3 years, 1 month ago)
Lords ChamberRead Full debate Professional Qualifications Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 36-I(Corrected) Marshalled list for Report - (8 Nov 2021)
Lord Lansley
Lord Lansley (Con)
My Lords, there are three amendments in this group, characterised by the fact that they appear more or less in the same place in the Marshalled List. My Amendment 11, which leads the group, relates to the very specific point, to which we have referred on a number of occasions: whether secondary legislation, and regulations under the Act, should be able themselves to modify primary legislation. The amendment’s intention is of course to restrict that possibility and limit it to subordinate legislation and retained EU legislation. Of course, there is a separate power in relation to the very specific EU retained legislation relating to the recognition of overseas professional qualifications.
I will not make a long argument about this, because the time is late. Ministers will say that there is a lot of private legislation out there relating to these professions, but as it happens, we are amending the primary legislation relating to architects in the Bill. I am not sure to what extent, given all we know and have discovered about the processes of seeking to recognise professional qualifications from overseas, just how often they will need to amend primary legislation and whether it really is impossible to achieve it through a route that exposes the changes to primary legislation to the proper scrutiny of this House.
Because it is linked to this, I reiterate a point I made in Committee. Ministers will acquire a power under the Bill to implement international regulatory recognition agreements and these aspects of international trade agreements by secondary legislation. I hope that the Minister—I know it is his stated intention—would expect new significant trade agreements, wherever they impacted on our legislation, to be the subject of legislation brought forward for this purpose. I do not want us to find that the legislation we see in future relating to trade agreements leaves out the recognition of professional qualifications because it can be achieved through subordinate legislation and we are therefore not able to examine it in the same way as we can other issues relating to a trade agreement, through primary legislation.
I will not talk about the protection of regulator autonomy; that is very much for the noble Baroness, Lady Hayter, who raised these issues in detail in Committee, as did my noble friend Lady Noakes. I am rather grateful to my noble friend Lord Grimstone—as we are in many other respects—for bringing forward government Amendment 12, which would put a pretty cast-iron clause into the Bill to give the regulators the confidence about their future autonomy that they seek.
Baroness Hayter of Kentish Town (Lab)
My Lords, like the noble Lord, Lord Lansley, I welcome Amendment 12, which the Minister will speak to shortly. As has been said, right from the start we worried about the independence of regulators and indeed, as I suggested earlier today, the Law Society still retains a slight frisson of concern there, although I note the Minister’s words. Regulators have been worried about their independent ability to decide who was fit to practise in this country and that that might be undermined by a government diktat to co-operate with another country to accept their professionals or to drop standards in order to meet a government trade objective. As the Minister mentioned earlier, given that I am now looking at trade deals, I think he realises that I will be able to keep a beady eye on that as we go forward, along with the noble Lord, Lord Lansley, who will be looking at that as well.
As I mentioned before, it was also of concern to the users of regulated services in case their trust in professionals, which stems from a regulator keeping to standards and high quality of enforcement, might be in any way in jeopardy. However, the Government have recognised these concerns and have come forward with the very welcome Amendment 12; it must be good because there is even a Lib Dem name attached to it, so we know that this government amendment is well received. Needless to say, of course I still prefer the wording of Amendment 15, which was short and to the point, but I am content not to press it in favour of the Government’s own amendment.
Lord Fox (LD)
On the subject of Amendment 11, I have full sympathy with the point made by the noble Lord, Lord Lansley. If my noble friend Lord Purvis were to speak, he would remind the Committee that at the outset we were promised primary legislation for trade deals, and I am gratified that at least two noble Lords will be keeping an eye on the overall process.
In Committee, back in July, the very first amendment that we discussed, in my name and that of my noble friend Lord Purvis, was very similar to Amendment 15. Its purpose from the outset was to protect the autonomy of the regulators. In that respect we are both delighted that the Minister has listened and, through the process of discussion, has come up with Amendment 12. It does a lot of the heavy lifting in dealing with what I referred to earlier as the Trojan horse of suspicion.
In protecting regulatory authorities from Clauses 1, 3 and 4, the amendment very much creates a situation where they are allowed to go about their business in the way that we want. It is for that reason that I took the unusual step—at least, unusual for me—of countersigning the Government’s amendment, which clearly indicates our support from these Benches for what we see as a welcome and important addition to the Bill.
Baroness Noakes (Con)
My Lords, throughout our consideration of the Bill I have been critical of my noble friend the Minister and the Government for riding roughshod over regulatory autonomy, so I very much welcome Amendment 12 in his name and that of the noble Lord, Lord Fox.
I have a residual concern. While this protects the autonomy of regulators over whom they may admit to practise in their profession, there may still be a concern that significant costs will be loaded on to regulators from having to comply with the obligation to consider individuals or institutions overseas, because that is what has been negotiated as part of a trade treaty, which would result in a considerable cost for the predictable outcome of not approving those individuals or institutions, and those costs would inevitably be borne by UK professionals because there is nowhere else for costs to go. To some extent, therefore, I was unhappy with the formulation of Amendment 12. However, taking it in combination with the amendment that we have already considered relating to consultation with regulators, I have to hope that the Government would never proceed with regulations that imposed unreasonable burdens on UK-regulated professionals in the pursuit of something that would not be achievable, in terms of the recognition of individuals within an overseas profession. I think that taken together those amendments are okay, but I have a residual concern that burdens might end up on professionals.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, from the outset of the consideration of the Bill, the Opposition have been clear that this legislation must not undermine regulators’ independence and that the Government cannot force them to accept professional qualifications. The public rightly expect that high standards of health, public safety and consumer protection will be maintained through the process of recognising overseas qualifications. This was repeated to us time and again in the meetings that my noble friends had with regulators and organisations across different sectors and professions.
My noble friend Lady Hayter of Kentish Town spoke in Committee about
“the Bill’s potential to undermine the independent standard-setting and public interest duties of what we have seen as autonomous regulators.”—[Official Report, 22/6/21; col. 201.]
A Bill compelling regulators either to enter negotiations with an overseas regulator or to put in place a process for recognising the qualification of applicants trained abroad, in order to fulfil a promise made by the Government in a trade deal or to fix a skills shortage as defined by the Minister, would not be compatible with the regulators’ independence. That concern was shared widely across the House during debates.
From looking through Hansard, I think it was the noble Baroness, Lady Noakes, who said that regulator autonomy needs to be in the Bill to recognise its importance. It was clear to many noble Lords that this could impact on our current domestic standards, with regulators perhaps being forced to accept lower levels of training requirements or changes to fit in with practice in the UK.
The Minister of State, Department for Business, Energy and Industrial Strategy and Department for International Trade (Lord Grimstone of Boscobel) (Con)
My Lords, I will speak first to the amendment in my name on regulator autonomy and then respond to my noble friend Lord Lansley’s amendment and that of the noble Baroness, Lady Hayter of Kentish Town.
As your Lordships know, I am a great advocate of the autonomy of our regulators. I have no doubt that regulators are best placed to determine who is fit to practise in their professions. The consequence is that to interfere with this could undermine public confidence in those who provide important services.
The Bill absolutely will not undercut regulators’ ability to make determinations about individuals with qualifications, experience or skills from overseas. I have previously given this assurance to your Lordships. However, picking up the point from the noble Lord, Lord Kennedy, I began to realise that the mood of the House was not to rely on assurances in this area. No matter how eloquently I argued the case for assurances, it would not cut the mustard. I absolutely recognise the continued strength of feeling on this issue. That is why I am proposing to make the protection of regulator autonomy clear in the Bill, and to do so specifically for Clauses 1, 3 and 4.
Protecting the autonomy of regulators is particularly relevant to these clauses, because this is where regulations made under the Bill will most directly intersect with regulators’ existing powers. This could be through empowering regulators to assess individuals with overseas qualifications, enabling them to enter into recognition agreements or placing substantive obligations on them.
These clauses also attracted particular interest from the DPRRC, and your Lordships rightly asked for more assurances. The amendment in my name places two conditions on regulations made under Clauses 1, 3 and 4. The first condition is that the regulations cannot remove regulators’ ability to prevent unfit individuals practising a profession. The second is that the regulations cannot have a material adverse effect on the knowledge, skills or experience of individuals practising a regulated profession. To put it simply, regulations cannot lower the required standards for an individual to practise a profession in the UK or, importantly, part of the UK. Taken together, these two conditions will make sure, enshrined in statute, that regulators will retain the final say over who practises in their profession and that the standards of individuals practising professions are maintained.
I also reassure your Lordships that this does not ask regulators to change expectations where they differ between different parts of the UK with good reason. In the case of devolved regulators, such as the General Teaching Council for Scotland, this would mean the requirements of a regulator for part of the UK.
As I said, in framing this amendment I have drawn inspiration from contributions made in this House and from discussions with regulators. Indeed, I am particularly pleased that it has been recognised by the noble Lord, Lord Fox, who has chosen to put his name to this amendment. I hope that this will be the first of many amendments that I bring forward at the Dispatch Box that the noble Lord, Lord Fox, will feels able to do that to going forward.
I turn now to Amendment 11. Of course, I recognise that my noble friend wants safeguards around how powers that could modify primary legislation are used. That is entirely reasonable. But I hope that my explanation of the regulator autonomy amendment in my name provides reassurance that the Government have listened to both noble Lords’ and the DPRRC’s concerns that regulations made under the Bill will be an appropriate use of the powers in Clauses 1, 3 and 4.
In particular, I know that some noble Lords have questioned how regulator autonomy will be safeguarded in trade deals. First, I repeat what I have said previously: in all negotiations, a key concern for the Government is ensuring the autonomy of UK regulators and protecting UK standards. Now, of course, the regulator autonomy amendment in my name ensures, in statute, that this concern is reflected in any regulations made under Clause 3.
I come to the point that my noble friend Lord Lansley made in asking for an assurance that primary legislation will be used to implement any consequences of free trade agreements that affect professional qualifications. I am not able to give that assurance because, by this Bill making it statutory that we cannot undercut the autonomy of UK regulators and diminish UK standards, it is appropriate that secondary legislation will be used to implement those aspects of future trade deals.
This new clause that I am putting forward means that Clause 3 cannot be used, for example, to require the automatic recognition of overseas qualifications—it would not be possible to do that. Before regulations are made, the Government will engage extensively with regulators on trade negotiations. Earlier today, I spoke about how I have formalised that in the new regulated professions advisory forum, which provides regulators with a mechanism to inform UK objectives for trade negotiations and the implementation of commitments that we make in them. If I have learned anything from the Bill, it is that regulators will not shy away from telling the Government when they have concerns about their autonomy.
Should any of your Lordships remain in doubt about whether powers in the Bill should be used to modify primary legislation, I remind the House that the relevant sector-specific legislation can be primary or subordinate legislation. Why we have these differences is lost in the mystery of time, but there is no consistency at all between professions in this matter. For example, the qualification and experience requirements to be a doctor or vet are set out in primary legislation. By contrast, the requirements for pharmacists or social workers are set out in subordinate legislation. That is why regulations made under the Bill may need to amend both primary and subordinate legislation in order to work for all regulated professions.
To give a further example, Clause 4 ensures that regulators can be authorised to enter into regulator recognition agreements with overseas counterparts. Many regulators already have this power; however, not all do. The Architects Registration Board and the General Dental Council are examples of regulators which do not have this power and may therefore benefit from Clause 4. But their powers are set out in primary legislation, so my noble friend’s amendment would prevent them being authorised to enter these agreements under Clause 4 if necessary. To give a further assurance, of course the Government envisage that regulations made under Clause 4 would be made at the request of the regulator. It would seem unfair to prevent them entering into recognition agreements simply because their powers are set out in one type of legislation rather than another. There frankly is no rationale or sensible reason for this difference. I hope that I have provided the House with the necessary reassurance that we have taken seriously the concerns about the use of delegated powers. For this reason, I ask for the amendment to be withdrawn.
I thank the noble Lord, Lord Kennedy, for speaking to Amendment 15, and the noble Baroness, Lady Hayter, for her contribution. My amendment addresses the same core concerns as Amendment 15. Both amendments —I understand that the noble Baroness’s amendment was very well intentioned—ensure that the Bill does not require regulators to allow those whom they determine to be unfit to practise and that the Bill cannot lower professional standards. Amendment 15, however, would further specify the protection of regulators’ autonomy regarding flexibility in assessment practice. The ability of regulators to make assessments as is most appropriate is already accommodated in the amendment in my name to Clause 1.
Finally, Amendment 15 also seeks to prevent anything in the Bill affecting a regulator’s ability to determine to make a regulator recognition agreement. This point is unnecessary. FTAs—such as the UK’s current deal with Canada—often contain frameworks for agreeing regulator recognition agreements. However, there is no obligation on regulators to enter into these agreements in any deal the UK has entered into. I am concerned that specifying this in legislation could unhelpfully suggest that the Government are unsupportive of such agreements. The Government are keen to support regulators agreeing them, where they wish to do so. In view of my own amendment, I formally ask the noble Baroness not to press her own.
Lord Lansley (Con)
My Lords, I thought that my noble friend gave an extremely helpful response to the debate and explanation of the relationship between the Government’s new clause in government Amendment 12 and Clauses 1, 3 and 4. Regulators in particular looking at this debate will, I hope, look at subsections (2) and (3) of the Government’s proposed new clause and share their view with us. If that holds, it provides a central piece of protection for regulators in future, in relation to all the substantive powers made available through the Bill. I am grateful for what the Minister has brought forward, and what he has said this evening. I beg leave to withdraw Amendment 11.
“Regulations: protection of regulator autonomy
(1) The appropriate national authority may make regulations under section 1, 3 or 4 only if satisfied that the conditions in subsections (2) and (3) are met. (2) The condition in this subsection is that the regulations do not remove the ability of any regulator of a regulated profession to prevent individuals who are unfit to practise the profession from doing so.(3) The condition in this subsection is that the regulations will not have a material adverse effect on any regulated profession in terms of the knowledge, skills or experience of the individuals practising it.(4) The reference in subsection (2) to individuals who are unfit to practise the profession is a reference to individuals who are unfit to practise the profession by reason of their character, a lack of knowledge, skills or experience or otherwise.(5) A reference in this section to practising a profession includes a reference to undertaking activities that comprise the practise of the profession or using a title associated with the practise of the profession.”Member’s explanatory statement
This amendment prevents the appropriate national authority making regulations under section 1, 3 or 4 unless satisfied that the conditions in subsections (2) and (3) of the new Clause are met.
“Regulations: consultation with regulators
Before making regulations under section 1, 3 or 4, the appropriate national authority must consult a regulator of a regulated profession if the authority considers that—(a) the regulator is likely to be affected by the regulations, or(b) it is otherwise appropriate to consult the regulator.”Member’s explanatory statement
This amendment requires the appropriate national authority to consult a regulator of a regulated profession before making regulations under Clause 1, 3 or 4 if the authority considers that the regulator is likely to be affected by the regulations or it is otherwise appropriate to consult the regulator.
Baroness Blake of Leeds
“Protection for existing recognised qualifications
Nothing in this Act prevents, qualifies or otherwise affects the ability of those with existing recognised qualifications to continue practising the profession to which the qualifications relate in the United Kingdom or any part of the United Kingdom.”
Baroness Blake of Leeds (Lab)
My Lords, as I said in Committee, there is a clear need to give those who already have their professional qualifications recognised in the UK certainty and confidence that this legislation will not affect them negatively, especially because, in many cases, the professionals and people working in these areas already live in our communities, have decided to call the UK their home and are people on whom all of us so often rely, particularly for our vital public services. Amendment 16 seeks only to enshrine the Government’s own central promise from the Explanatory Notes that
“nothing in the Bill prevents, qualifies or otherwise impacts the ability of those with existing recognised qualifications from continuing their areas of practice in the UK”.
The Minister said in Committee says that he completely agrees with
“ensuring that professionals who have already had their qualifications recognised in the UK should be able to continue to rely on those recognition decisions.”
Then why not put it in the Bill? Without this simple amendment, how can the Minister provide the reassurance that these workers so desperately need? He also stated in Committee:
“The regulations which commence Clause 5(1) will include saving and transitional provisions”
to
“ensure that professionals whose qualifications were recognised from the end of the transition period to the point when the 2015 regulations are revoked are unaffected”,
and to
“support a smooth transition to the new framework for recognising overseas qualifications.”—[Official Report, 14/6/21; cols. 1734-35.]
When will we see these regulations, and what does “a smooth transition” actually mean? Will it ensure that no one with qualifications recognised today will lose out on job prospects tomorrow?
We feel strongly about this issue, and I look forward to hearing unequivocal and clear commitments from the Minister tonight
Lord Purvis of Tweed (LD)
My Lords, an issue raised in Committee that it would be helpful for the Minister to provide an update on—in writing would be satisfactory to me—concerns those European Union workers who had been providing services, with their qualifications recognised, and had applied for settled status but on the fast-track element, which did not ask them to provide any more information about the qualifications recognition. With Clauses 5 and 6 revoking the previous EU scheme and the move towards the domestic schemes, there is still potentially a grey area for those workers who will have to provide proof of their qualifications recognition if they change employer, or indeed if they seek new rental or property agreements, et cetera.
Previously, the noble Lord, Lord Grimstone, indicated that the Government were aware of this, and he provided assurances. It would be very helpful if the Government could say how many of these workers could be in this position. It emphasises the point made by the noble Baroness, which I agree with, that, even if there are unintended consequences of putting at risk some of these workers, we can ill afford it.
The second element is that it would be helpful to know the Government’s intentions for the timing of the revocation of the EU scheme. Previously, the Minister indicated that it would be when the Government were ready to do so but that they were not in any rush to do it. It will be helpful to know what timeframe we are looking at, because the noble Lord, Lord Frost, in a Statement he provided to the House in September, said that the Government were now carrying out a substantial review of previous European legislation and retained EU law. Are professional qualifications separate from that review or will they be considered as part of it? If the Minister could give some reassurance on that, I would be grateful.
Finally, because this will probably be my last comment on the Bill in this House—which I am sure the noble Baroness, Lady Bloomfield, will be pleased to hear—I want to put on record how she and the noble Lord, Lord Grimstone, have engaged in this process. I have been in this House a number of years, and we hear at the Dispatch Box fairly frequently that the Government value the input and scrutiny from this House and take on board whenever we amend legislation, and we always welcome that. But our amendments quite frequently get buried in the dust in the other House, when all our great counsel and wisdom is turned back.
The benefit of the noble Baroness and the noble Lord listening and then acting by tabling the government amendments is that this is now government policy, and the Bill is now substantially changed. If I understand it correctly, this will be the first time that the autonomy of regulators will be respected in primary legislation. That is a considerable achievement for the parliamentary process of a Bill of which we had been not only sceptical but critical at the early stages, but which we now support. Therefore, I commend both Ministers and their teams for the work they have done. Personally speaking, I think the Bill is in a much better position. For the benefit of our regulators and those who receive services that the professions operate, it is a better Bill as a result.
Baroness Bloomfield of Hinton Waldrist (Con)
I thank the noble Lord, Lord Purvis, for his kind words; I will certainly try to continue to do my best at the Dispatch Box. I also thank the noble Baroness, Lady Blake of Leeds, for her amendment. In Committee, the House sought confirmation that professionals who have already had their qualifications recognised in the UK will be able to continue to rely on those recognition decisions. Indeed, those professionals will be able to continue to do so, provided of course that they meet any ongoing practice requirements. Nothing in the Bill, nor the regulations anticipated under it, will interfere with or reverse such decisions.
Regulations commencing Clause 5 will include saving and transitional provisions to ensure that professionals’ existing recognition will continue to be valid, and applications made before revocation comes into effect by the commencement regulations will continue to be assessed under the relevant retained EU recognition law. It is possible to make similar provisions in regulations under Clause 6.
The noble Baroness, Lady Blake, asked what a smooth transition would look like. It will include regulations which ensure that the UK meets its international obligations under the EU-UK withdrawal agreement, EEA EFTA separation agreement and the UK Swiss citizens’ rights agreement. It includes saving and transitional provisions to ensure that professionals’ existing recognition will continue to be valid, and applications made before revocation has commenced will be assessed under the EU system. Commencement of Clause 5(1) is timed to avoid burdening regulators or creating gaps in their ability to recognise overseas qualifications. The Government took a similar approach when amending retained EU recognition law in 2019 to ensure a smooth transition for businesses and professionals following the UK’s withdrawal from the EU.
The noble Baroness also asked why, if we are so committed to protecting the ability of those with existing recognised qualifications to continue practising, we are not putting this on the face of the Bill. We believe that this matter is best dealt with through saving and transitional provisions in secondary legislation. The UK Government and devolved Administrations took this approach when amending EU legislation on recognition of professional qualifications to prepare for leaving the EU. We see no reason to depart from this approach and enshrine this commitment in the Bill.
The revocation of the general EU-derived system will not impact the ability of professionals with recognition decisions awarded under that system to continue practising in the UK. This applies even where a professional takes a career break and chooses to return to a profession in which they were awarded recognition. The noble Lord, Lord Purvis of Tweed, asked about the fast-tracked settled status of EU citizens. We are unable to provide the House with the precise timetable at present, but we will engage with stakeholders as we go forward.
Professionals who do take a career break should check with their regulator to establish what, if anything, they will need to do to continue practising or to return to practice. This will of course vary between professions. If a profession has a continuing practice requirement, that will also apply for individuals currently practising. For example, where a registered medical professional has a licence to practise, they must revalidate their registration every five years. Similarly, when a professional returns to the UK, their first port of call would be to the relevant regulator in the UK to ascertain requirements for recognition.
The Bill does not make commitments in these areas, because that would be interfering with regulators’ ability to regulate. The main reason that this amendment has been proposed is to protect those with recognition decisions, but there is no threat from this Bill to those decisions. The Professional Qualifications Bill respects existing recognition decisions and any ability a regulator has to set professional standards. I therefore ask the noble Baroness to withdraw this amendment, if I have provided sufficient reassurance.
Baroness Blake of Leeds (Lab)
I thank the Minister for her response, and the noble Lord, Lord Purvis, for his comments.
I think I can honestly say that there is still concern. I have heard it particularly from those professionals who are not practising at the moment—so there is a continual need for reassurance. However, I thank the Minister for her comments and beg leave to withdraw the amendment.
The Deputy Speaker (Lord Russell of Liverpool) (CB)
We now come to the group beginning with Amendment 17. I remind the House that if Amendment 17 is agreed to, it will pre-empt Amendment 18.
Clause 16: Interpretation
Amendment 17
“(3) For the purposes of this Act, a regulator is a regulator of a regulated profession if it is listed in Schedule (Regulators of regulated professions).(3A) The appropriate national authority or the Secretary of State may by regulations amend Schedule (Regulators of regulated professions) so as to insert additional regulators.”
Baroness Hayter of Kentish Town (Lab)
My Lords, I will move Amendment 17 and speak to its associated Amendment 20, which would place the list of regulators covered by the Bill into a schedule.
I know that the Minister is familiar with this because we argued it in Committee, but, interestingly, in asking a rather simple question—“Which regulators are covered by the Bill?”—we discovered that not only did the Minister not know but nor did the officials and indeed some of the very regulators covered. At the time, as we rather playfully looked through the list, we discovered that one of the regulators on the Minister’s list was the body regulating bouncers—which were hardly the professionals we quite had in mind on a trade deal, nor where we thought there was likely to be an unmet need. But there we are. We also found that others on the list already had the powers to authorise incoming professionals, so it did not actually require an ability for Ministers to make that possible if their own statute did not.
At the time, we noticed that the Minister was slightly uncomfortable with the absence of a comprehensive list and he very graciously said:
“I accept, without reservation, that it is not good enough that these lists have been incomplete and that noble Lords must have felt they were playing a game of blind man’s buff in trying to see who the Bill applies to.”—[Official Report, 22/6/21; col. 161.]
I confess that I was never very good at sticking the tail to the right end of the wretched donkey and I understand that it has taken BEIS a little time to get it right. I think we have had two updates of the list, with some regulators added and some gone. I see that the pig farmers have gone from the latest list and the aircraft engineers have also disappeared, as have analytical chemists. However, we have in their place chicken farmers, schoolteachers and waste managers—so it seems that the Government can turn flying pigs into chickens.
Baroness Noakes (Con)
My Lords, I think it was in the briefing before Second Reading that I first asked which regulators were covered by the Bill—one of those naive questions where you are often surprised by the answer that you get. My noble friend the Minister said he would write to me, which he duly did, and it was a surprise to other members of the committee when we got the letter—and things sort of went downhill after that. We had another version of the list, with more regulators on, and then a more definitive version that appeared more recently and is on the website.
For me, this struck at the competence with which the Bill was put together, and nothing that has happened has made me change my view that it was not put together in a competent way. But I am satisfied that the Government have done a very considerable amount of work to try to establish the scope of the Bill and to whom it applies, and are committed to keeping an updated list on the website. So I am happy with where we have ended up—but, my goodness, it has been an extraordinary journey.
Baroness Blake of Leeds (Lab)
I think we can all congratulate Members on their persistence on this issue and I have to tell noble Lords that my vocabulary has expanded at an enormous rate by being involved in the Bill. I have never heard the expression, “I am not assuaged” quite so often, but it clearly shows that we are moving in the right direction. As we have heard, there are still concerns and, given the lateness of the hour, I just want to add that with Amendment 18 we really feel that we would like to see statutory protection to ensure that the list is regularly maintained and updated. That is the question we have: we have achieved so much through the debate here, but how can we be reassured that the list will be kept updated and maintained, and how often will it happen? Because of our experience, we need a reassurance that the list will not be removed once the Bill has received Royal Assent. I will listen very carefully to the Minister’s reply.
Lord Fox (LD)
My Lords, I think no one has had a bigger headache on this list than the Minister himself and the department, but it was a headache, frankly, of their own making.
I am with the noble Baroness, Lady Hayter, on this: I think it should be a separate schedule. We proposed a mechanism in Amendment 19 by which this schedule might be created and maintained. The noble Baroness, Lady Blake, talked about keeping it updated: if it had not been for the scrutiny of your Lordships and the constant harrying of the Ministers, this list would not have been nearly right now. I suspect there are still amendments to go into it. For that reason, we think Parliament should hold on to a regulatory process and, through a statutory instrument, that schedule can be updated.
What we have sought to do in Amendment 19 is not to second-guess where the list is now—because, as the noble Baroness, Lady Hayter, pointed out, that is like catching a knife—but to give the Government a process by which a definitive list may be created, put in a schedule and updated easily and, I would say, flexibly through a statutory instrument. Why? Because this is not just a list of organisations on a website: there are rights and responsibilities that come with being on this list and, indeed, not being on this list. Which professions are going to be scrutinised to see whether demand is met or unmet? This is a really important issue that Parliament should continue to maintain scrutiny over.
The noble Baroness, Lady Hayter, talked about the responsibilities of those organisations, but also the rights—which ones have the autonomy that the Minister’s amendment has granted and which are not part of this list? Furthermore, when the conversations are being had with the devolved authorities, a list gives weight to those discussions and gives a very clear indication of which professions are in and which are not. So, one way or another, putting it in the schedule is really important, as is a way in which that can be flexibly maintained, whereby Parliament maintains its ability to scrutinise that process; because without that scrutiny, where would we be now?
Lord Grimstone of Boscobel (Con)
My Lords, I thank the noble Baronesses, Lady Blake of Leeds and Lady Hayter of Kentish Town, and the noble Lords, Lord Purvis and Lord Fox, for their amendments. These amendments return to the debate about the regulators and professions to which the Bill applies, a topic which has covered me in embarrassment at various stages during the Bill’s passage. I admit that it was not our finest hour. Noble Lords rightly asked that the Government fully and precisely articulate who meets the definitions in the Bill.
The Government too, of course, and the regulators want to be clear about who the Bill applies to. It was for this reason that I asked my officials to carry out a comprehensive exercise to determine all those regulators and professions that meet the definitions in the Bill. My officials worked closely throughout the summer with other government departments, devolved Administrations and regulators. I am grateful to all those who contributed. Every regulator that meets the definitions in the Bill has been directly contacted by my officials, and is aware that the Bill applies to them. My officials have also contacted those regulators that we no longer consider the Bill applies to. I have written to my counterparts in the devolved Administrations to confirm the professions and regulators that operate in those parts of the UK. I am pleased to report that they have fully co-operated in this exercise. This extensive engagement culminated in the drawing up of a list of regulators and professions affected by the Bill, which we published on GOV.UK on 14 October. This exercise has provided the additional clarity rightly demanded by this House. The Government remain absolutely committed to regularly updating a list of professions and regulators to which they consider the Bill applies, and to keeping that list in the public domain.
I have also asked my officials to ensure that the assistance centre will also publish the list and will signpost professionals to all the professions and regulators identified on it. This will be part of our future service requirements and our contractual requirements for the assistance centre. Building on our work with regulators to prepare the list, my officials will continue engaging with this network of regulators through a variety of avenues to ensure they are kept updated on our work in this area. In answer to the noble Baroness, Lady Hayter of Kentish Town, I say that it would not be sensible to use the new forum that we are setting up as a means for doing this. The forum would be so large that we would probably have to go to Rome to use the forum there for its meetings, and it would frankly be unwieldly to have a forum of that size. That forum is going to have a cross-section of all the regulators on it. We will refresh that cross-section from time to time to make sure that all regulators from all parts of the UK have a chance to put their views. Of course, we will have other networks where we will engage through a variety of avenues to ensure that regulators are kept updated on our work in this area.
Perhaps picking up a point made by the noble Lord, Lord Fox, I say that the regulators will of course want to know that they are on this list, because a regulator who is covered by the definition gets the benefit of regulatory autonomy. There is therefore a positive reason for a regulator wanting to be included.
Lord Fox (LD)
On that note, in the event that I happened to be the chief executive of a regulator that was not on that list, it would help to know what the process was by which one sought to join the list or, indeed, to be taken off it. If we are not going to have a schedule as we discussed, the process by which a regulator puts itself in the frame or seeks to put itself in the frame would be really important, as well as publishing the list. Discussing that process would be useful.
Lord Grimstone of Boscobel (Con)
Of course, the interesting thing is that this process derives entirely from the legal definition of a regulator that is governed in law. It is not a matter of grace and favour to say whether a regulator is included or not; it is a matter of fact as to whether the regulator statutes make it a regulator engaged in law.
Lord Fox (LD)
It is more about having to draw attention to the fact that they believe that they are within the law. I cannot imagine that the department will have enough resources to continually trawl the horizon and find them, so individual organisations may find themselves asking how they go about getting on the list.
Lord Grimstone of Boscobel (Con)
I think the simple answer is that they should write either to the Minister responsible, whoever that is—if it is me, of course, I will attend to that—or to the senior officials within the department or within the devolved Administrations. This will obviously be something that officials will monitor and keep up to date.
Baroness Hayter of Kentish Town (Lab)
I start with an apology to the noble Baroness, Lady Noakes: of course it was her. In fact, I have just seen in my files the letter where it was shared with her and then, afterwards, with us. I apologise for that oversight.
Something that the Minister said has caused me great concern. I was suggesting that, as a way of having someone overlooking the list on GOV.UK, it be linked to in the agendas or whatever for the forum. The Minister then seemed to suggest that it would be an enormous collection, but his own policy statement says that there are about 50 regulators, and around 45 went to the first meeting that he held, so there is not a great number. We are talking not about hundreds of regulators but about what has sometimes been 61. The most it has ever been was 80, and we are down to 70 at the moment, I think—I am sorry, but I do not have the absolutely up-to-date figure in front of me. My concern is that those are not all invited to the forum, which the Minister has given me to understand that he will, on the whole, chair—he may not always be able to, but that would give it a certain kudos. I am not saying that every regulator would want to turn up, but I would find it a bit surprising if he is setting up a regulator forum but not inviting all the regulators covered by the Bill to it.
I am not expecting him to pop up now and give me that assurance, but it may be that an exchange of letters afterwards could do so—because the regulators’ forum was seen by a number of us as something that is very important. But I hope that it will not just be a hand-picked selection of the 50 or 60 regulators that are covered. Having said that, as I said at the beginning, I will not test the opinion of the House on this. I still think that I am right and he is wrong, but there you are—it happens. I beg leave to withdraw the amendment.
Professional Qualifications Bill [HL]
Wednesday 17th November 2021
(3 years, 1 month ago)
Lords ChamberRead Full debate Professional Qualifications Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 36-I(Corrected) Marshalled list for Report - (8 Nov 2021)
The Minister of State, Department for Business, Energy and Industrial Strategy and Department for International Trade (Lord Grimstone of Boscobel) (Con)
My Lords, before we progress with Third Reading of this Bill, I would like to make a short statement about our engagement with the devolved Administrations. My officials and I have worked closely and collaboratively with the devolved Administrations throughout the passage of this Bill. We are continuing to discuss the requirements for legislative consent with the Northern Ireland Executive, the Scottish Government and the Welsh Government. I am grateful for their continued engagement on this issue. I beg to move.
Lord Grimstone of Boscobel (Con)
My Lords, I start by thanking your Lordships for the constructive approach that has been in evidence throughout this Bill. We have had robust discussions and debates and the Bill is all the better for that. In particular, I thank the noble Baronesses, Lady Hayter of Kentish Town and Lady Blake of Leeds, and the noble Lords, Lord Kennedy of Southwark, Lord Purvis of Tweed and Lord Fox, for the time—sometimes a deservedly hard time—that they have given me.
The Bill will achieve four key outcomes for the UK. First, it will end unequal EU-based arrangements for the recognition of professional qualifications. Secondly, it will help to strengthen the UK’s ability to negotiate and deliver ambitious deals on the recognition of professional qualifications with international partners. Thirdly, it will help professionals to enter new markets. Finally, it will provide smooth working arrangements for recognition of professional qualifications across all four nations of the UK.
I recognise that the Bill did not enter your Lordships’ House in the good state in which it leaves. The experience, diligence and practical knowledge of noble Lords have moulded this Bill into what it is today. Enshrining on the face of the Bill the concept of regulator autonomy in regard to preventing unfit individuals from practising is a landmark event.
I was gratified that the government amendments, the stakeholder engagements and the supporting documents prepared over the summer between Committee and Report were well received. I pay tribute to the noble Lord, Lord Hunt of Kings Heath, and my noble friends Lord Lansley and Lady Noakes for the expertise that they demonstrated throughout our discussions. I thank my noble friend Lady McIntosh of Pickering and the noble Lords, Lord Foulkes of Cumnock and Lord Bruce of Bennachie, for the constructive nature of the conversations that we have had on this legislation. I also thank my ministerial counterparts in the devolved Administrations and their predecessors, whom I have met on five occasions and written to nine times this year concerning the Bill. I remain optimistic and hope that they will give legislative consent to the Bill.
I thank all the regulators to which this Bill applies. We have engaged with them through a variety of avenues, including seven round tables that I hosted. They, other professional bodies and the government departments with which we have engaged have helped to shape and improve this legislation as it has moved through your Lordships’ House and we are extremely grateful for their constructive involvement.
My thanks also go to the officials who have worked so hard to get us to this position. I give particular thanks to the policy team, led by Tim Courtney, who not only overcame the challenge of compiling the list of regulators but, with his partner Cathy, welcomed the birth of their daughter, Penelope, just 12 days ago. On behalf of your Lordships’ House, I wish all three of them the very best. Tim was ably assisted by Hannah Riches, Nick French, and Sarah Mackintosh, while the Bill team was led superbly in shipshape fashion by Jamie Wasley and Jennifer Pattison. I would further like to thank my private secretary, Zack Campbell, for his sterling service on the Bill, and of course the office of the Leader of the House and the Whips, the Office of the Parliamentary Counsel and the clerks in this place. Last, but certainly not least, I thank my Whip, my noble friend Lady Bloomfield of Hinton Waldrist.
Baroness McIntosh of Pickering (Con)
My Lords, I thank my noble friend for going the extra mile to put the Bill in the state in which it is. His statement today on his continuing engagement on legislative consent with the devolved Administrations is particularly welcome. In paying tribute to him, his Bill team and my noble friend Lady Bloomfield, I urge him to ensure that we see some fruit from the common frameworks and recognise their importance in implementing what is in not just this piece of legislation but other forthcoming legislation as well. I am personally grateful to him.
I thank the Law Society of Scotland, in particular Michael Clancy, at what has been a very difficult time for him through his illness. I also thank the Faculty of Advocates, of which I am a non-practising member, for its engagement in the round table hosted by my noble friend. I warmly thank my noble friend for all that he has done and I hope that the Bill will have a safe passage through the other place.
Baroness Blake of Leeds (Lab)
My Lords, this has been the first Bill I have taken part in since I joined your Lordships’ House. While I originally thought that it was going to be an important, if not straightforward, Bill, the legislation has been much more of an eye-opener than I was expecting. For example, I did not expect that simply asking who the Bill related to would result in such confusion from the Government and months of delay. Securing a list of regulators and professions in scope of the legislation has been important work. I recognise the effort that the Government have put in to compile the list, although I again suggest that perhaps it could have happened before the Bill was published.
It has been fascinating and enjoyable and I am glad that my first Bill has been so important both for British citizens who want to work abroad and for workers who want to bring their expertise to the UK. Our public services would not function without them and our communities are richer when they decide to make the UK their home.
Ultimately, I have seen first-hand how this House can really scrutinise and improve legislation. I am sure that the Minister will agree, as he has stated, that this is a better Bill now than when it was first introduced to Parliament. From the start, we on these Benches said that it should not undermine the independence and autonomy of regulators due to their important function of setting standards and protecting consumers. There was widespread concern from inside and outside the House that Clause 3 in particular could force regulators to lower standards due to what Ministers had agreed in the free trade agreements.
I thank the noble Lords, Lord Lansley and Lord Fox, and the noble Baroness, Lady Noakes, for working cross-party on this important issue. That is why the Government’s amendment to protect regulatory autonomy is such a welcome addition to the Bill. This is a big change and, while not perfect, it should protect domestic standards across 205 regulated professions. I pay tribute to all the regulators which have engaged so constructively with us.
As this was a skeleton Bill, we also pushed the Government repeatedly to consult regulators and devolved authorities on regulations. The Government’s amendment making statutory provision for consultation with regulators, including departments in devolved Administrations, is a good step forward.
Baroness Noakes (Con)
My Lords, while it is undeniably true that this is a better Bill leaving the House than when it arrived, in particular because of the addition of Clauses 14 and 15, it was never clear to me what problem the Bill was seeking to address and whether indeed it was necessary. My noble friend claimed that four benefits would flow from the Bill. If ever there was a case for post-legislative scrutiny to see whether those benefits in fact accrue, this is one of them, because I am less than clear that the considerable effort that my noble friend has had to put in to turning the ragbag of a Bill that arrived here into something that resembles a meaningful contribution to the area of professions was a good use of his time and that of his officials. As I say, I am quite clear that it is a better Bill, but whether the Bill was ever necessary is an open question.
Lord Moynihan (Con)
My Lords, on behalf of the British Association of Snowsport Instructors and all the winter sports organisations, which have taken a very active role and interest in the passage of this Bill, I thank the Minister for his consistent, collaborative and close support for the British winter sports federations, particularly with the newly-formed contacts in UK embassies, addressing issues such as work permits, local regulations and overt protectionism. We have taken one step forward as a result of the Bill being before this House, but that one step has been very much as a result of the efforts of my noble friend, for which many thanks.
Lord Fox (LD)
On the assumption that there are no more professions that would wish to thank the Minister, I shall do so. I am pleased that he is continuing to work on legislative consent, which is important. Too many Bills are starting to come through your Lordships’ House where legislative consent is not given. Given the nature of this Bill, it is important that the devolved authorities are working with it 100%, so I thank the Minister for his statement and associate myself with the comments of the noble Baroness, Lady McIntosh, about the role of frameworks.
It is something of a cliché to say, “The Bill leaves this place a better Bill”, but in this case the cliché is true. The Minister set out his view on that and other noble Lords have been more specific about its shortcomings. I will not go into them, but I thank the noble Lord, Lord Grimstone, who has had an ear to this issue from the beginning and took the very worthy decision to put the Bill on holiday over the Recess and come back with something that we were all better able to support, with some reservations from the noble Baroness, Lady Noakes. I also thank the noble Baroness, Lady Bloomfield, whose whiply eye stared across at us when she thought we had talked for too long.
The Bill team has had a particularly rough ride on this, and I thank it for its work, as I thank the wider community that has fed into the Bill. I thank the ever-changing Opposition Front Bench for its engagement and work. Finally, I thank my colleagues, my noble friends Lady Randerson, Lady Garden, Lord Palmer of Childs Hill and Lord Purvis, as well, of course, and without whom we could not have survived, Sarah Pughe, our legislation administrator who drove us through all of this.
The Bill has a lot to achieve in that it needs to set out a structure for how the Government engage with the professions in future. It was quite clear that that engagement had not existed in the past, and perhaps this can be a stepping stone to a wider engagement between the Government and these regulatory authorities.
Lord Davies of Brixton (Lab)
My Lords, I declare an interest as a member of a profession, albeit one which is not mentioned specifically in the Bill. I still have some residual concern that, although we welcome the list, the way the Bill is drafted could incorporate professions not listed, because of some obscure entry in other pieces of legislation which have not been picked up. However, my main question is that a lot of work arising from the Bill remains to be done and the UK-EU Partnership Council has an important role to play. I am a keen follower of the Partnership Council, I look at its minutes and its meetings, and this issue, even though it has been identified as a priority, does not appear to have been discussed. Perhaps the Minister can reassure me that the matter will be dealt with with utmost haste.
Lord Grimstone of Boscobel (Con)
My Lords, I thank noble Lords for their comments and thanks, particularly to my officials and the Bill team. I say to the noble Baroness, Lady Blake of Leeds, that no one would have known that this is the first Bill that she had worked on, and I am sure that it is the first of many in which she will successfully participate. I have noted the point made by the noble Lord, Lord Davies of Brixton, and, if I may, I will write to him about where this stands in relation to the Partnership Council. I beg to move.
Professional Qualifications Bill [Lords]
Wednesday 15th December 2021
(3 years ago)
Commons ChamberRead Full debate Professional Qualifications Act 2022 Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 36-I(Corrected) Marshalled list for Report - (8 Nov 2021)
The Secretary of State for Business, Energy and Industrial Strategy (Kwasi Kwarteng)
I beg to move, That the Bill be now read a Second time.
Services are a critical part of our economy, our trade and our lives. UK-qualified professionals in sectors including architecture, law and medicine, among many others, are at the forefront of their fields globally. It is a testament to their success that the UK is today the second largest exporter of services in the entire world. Good regulation is essential in providing the confidence that the market needs to grow. Good regulation is essential in providing the confidence that the market needs to grow. The Bill supports that endeavour so that services can not only thrive but provide excellent jobs in the future.
Margaret Greenwood (Wirral West) (Lab)
The British Dental Association has warned that the Bill could water down the standards required to practise. What are the Secretary of State’s thoughts on that? What assurance can he give the House that standards will be maintained?
Kwasi Kwarteng
I assure the hon. Lady that many such issues were rightly addressed and debated at great length in the other place. I have seen the concerns of some of our professional bodies. I feel that the Bill gives a measure of support, and I feel strongly that it is proportionate. It is on that basis that I am introducing the Bill and begging leave for it to be read a Second time.
I turn to the Bill’s elements—perhaps through these remarks the hon. Lady may get some reassurance. First, the Bill will revoke the current EU-based approach, temporarily retained from the end of the transition period, which often gives unreciprocated preferential access to holders of European economic area and Swiss qualifications, and put in place a new system that is global in outlook and can be tailored to the UK’s needs. The Bill is not a rejection of the valuable skills offered by EU professionals. On the contrary, it will ensure fairness and put them on an even footing with applicants from around the world. Professionals who have already had their qualifications recognised and work in the UK can continue to do so provided that they meet any ongoing practice requirements.
The Bill will also enable the Government and devolved Administrations to act promptly where shortages in services may occur and where consumers may well face unreasonable delays and charges. That is particularly important for regulated professions in the public sector. For example, in a 10-year period, just under a quarter of all UK recognition decisions were for secondary school teachers alone. Let me be clear, however, that the Bill is intended to complement, and not simply to replace, the Government’s ambitious domestic skills agenda.
The Bill will also support our trade agenda and boost UK businesses exporting services all over the world—in short, it will help spread our skills, innovation and expertise abroad. It will ensure that the UK can implement professional qualification provisions in the future trade deals that we all anticipate with enthusiasm. It will also ensure that UK regulators can be empowered to strike deals on recognition with their overseas counterparts while taking full advantage of provisions in such future trade deals. Finally, it will help professionals, both at home and from overseas, to access global markets.
We are working collaboratively with the devolved Administrations and devolved regulators, and I very much hope that we will come to a resolution on legislative consent by the time that the Bill leaves the House. Of course, our regulators’ expertise underpins all our professions, and that is the very reason why the Bill has the protection of regulator autonomy at its very heart. Regulators agree that that is the right approach, and in general they have voiced hearty support for the Bill.
This Bill is about ensuring that the regulation of professional qualifications works for the whole of the country’s interests. It is about fairness, ensuring that wherever professionals may come from, they have an equal opportunity to practise their professions; and it is about making access to professions more transparent, as well as supporting our own UK trade agenda. On that basis, I commend it to the House.
Bill Esterson (Sefton Central) (Lab)
Having the skilled workforce that our employers need is essential for the economic success of our country. The shortages of lorry drivers, carers, nurses, doctors and vets, and the shortages in hospitality and in farming, are well documented. Some are covered by this legislation, which, as the Secretary of State said, replaces EU law and allows the recognition of qualifications in other countries, so that workers can come here and fill the gaps in our economy. The requirements for our future economic success include the need for mutual recognition of qualifications to the benefit of our domestic businesses, public and voluntary sectors. Our success as we recover from covid will depend on the boosting of our prospects for trade internationally, for instance through the ability of UK professionals to apply their expertise abroad.
Regulators must remain independent, and it would undermine them and the high British standards they uphold were the Government to force them to accept professional qualifications awarded overseas which were of a lower standard. I shall return to that point, and explain how the Bill has been amended in the House of Lords.
The public will expect high standards of health, public safety and consumer protection to be maintained. We need to address shortages of key skilled staff, but the overseas qualifications that have been recognised in the UK by professional bodies need to have been accredited by the regulators themselves on the basis that they meet or exceed our standards, and not because the regulators are pressured into lowering standards by the Government as a consequence of poorly conceived international agreements. The Conservative peer Lord Bourne said that these were far from unreasonable fears, and I therefore hope that this issue will be explicitly addressed. The Government have made promises that standards will be maintained, and those promises need to be kept.
Most of the changes for which the Bill provides are designed to be implemented through secondary legislation. The use of statutory instruments has become the Government’s favourite method of legislating, and it is essential that all changes made through secondary legislation can be scrutinised in full.
Attracting talent to the UK is essential for public services and the wider economy, but we are currently facing a skills shortage. The recognition of overseas qualifications is not a silver bullet to end that shortage; nor is it a long-term answer. A neglect of skills by this Government has seen further education funding halved and 200,000 apprenticeships lost since 2016. The Government must invest in skills at home and must do so in a strategic way, with a long term view. Indeed, a national and ambitious strategy would be very welcome, and is surely a part of any serious levelling-up agenda—if the said agenda is to become more than a slogan.
The shortage of intermediate and advanced-level technical skills has been highlighted for many years by business, trade unions and the Labour party. The need for overseas skilled workers, at least in the short to medium term, is one result, and when there are regulatory difficulties in recruiting from overseas, the scale of the problem becomes apparent. The most recent NHS figures reveal that there are about 39,000 vacancies for registered nurses in England. The president of the British Veterinary Association, James Russell, has said that between 400 and 500 vets working part time will be needed to fill in additional export health certificates for meat and fish products—from sausages to salmon—shipped to Northern Ireland alone, with many more needed owing to other increases in demand. The occupations of nurses and vets are among the 205 covered in the Bill.
Labour would seek regulatory equivalence for financial services and mutual recognition of professional qualifications, because we absolutely recognise the importance of looking after our world-class financial and professional service businesses. Our ability to trade internationally, not least to maximise our trade in services, is essential to our long-term economic prospects, to the creation of good jobs at home and to the prosperity of people and communities across the UK.
The initial version of the Bill did not stand up to scrutiny. The Financial Times reported the way in which the Government introduced it as a
“chaotic handling of a post-Brexit regime for recognising the qualifications of foreign professionals”,
in contrast to the Government’s claim that it would help to make Britain
“the best place in the world to work”.
I want Britain to be the best place in the world to work. I want us to buy more, make more and sell more in Britain, but serious concerns have been raised about the Government’s mismanagement of such an important piece of legislation. One concern was that the Bill as originally presented was not going to give British employers what they needed to ensure that our economy and our people could thrive.
Remarkably, the Government admitted introducing the Bill to Parliament without knowing which professions were in scope of the legislation. Labour argued in the Lords that we had to know who and what was in the scope of the Bill. It stands to reason that the relevant regulators and professions need to be aware of these changes. That was why we tabled amendments in the Lords to ensure that this information was made public. But the disarray continued. Having initially listed 160 professions and 50 regulators affected by the legislation, the Government twice published a revised list, ultimately increasing the numbers to 205 professions and 80 regulators. Due to the increased number of regulators in scope of the legislation, the Government also had to publish an updated impact assessment, with the total cost to regulators increasing by nearly £2 million. That is hardly the way to inspire confidence that the legislation will help businesses or skilled workers.
The Government were criticised from all sides in the Lords, including by those on their own Back Benches. Conservative peer Baroness Noakes said that
“it has all the hallmarks of being a Bill conceived and executed by officials with little or no ministerial policy direction or oversight…we learn that the Bill was drafted with a far-from-perfect understanding of the territory that it purports to cover. This is no way to legislate.”—[Official Report, House of Lords, 22 June 2021; Vol. 813, c. 149.]
My Labour colleague Baroness Hayter said of the list:
“I understand that it has taken BEIS a little time to get it right. I think we have had two updates of the list, with some regulators added and some gone. I see that the pig farmers have gone from the latest list and the aircraft engineers have also disappeared, as have analytical chemists. However, we have in their place chicken farmers, schoolteachers and waste managers—so it seems that the Government can turn flying pigs into chickens.”—[Official Report, House of Lords, 9 November 2021; Vol. 815, c. 1696.]
Given the shambolic way in which the Bill was introduced, it would have come as no surprise if someone had accused Ministers of making a right pig’s ear of the legislation. It is little wonder, then, that with wonderful understatement the Government spokesman, Lord Grimstone said—[Interruption.] The Secretary of State might want to hear this from his own Minister in the Lords. Lord Grimstone said that the errors and various revisions had made him feel “uncomfortable”, and that he had listened to the criticism with “a certain lack of enjoyment.” To the credit of Lord Grimstone, he had the grace to confess his embarrassment at the mistakes made by the Government.
I return to the matter of regulatory autonomy. Consistent arguments were made by peers that this legislation must not undermine the autonomy and independence of regulators. Independence is essential to protect domestic standards and consumers. Labour’s amendment in the Lords sought to guarantee regulator autonomy, and our amendment was supported by the Conservatives Lord Lansley and Baroness Noakes, and indeed across the parties. As a result, the Government amended the Bill to provide statutory protection for regulator autonomy. I was hoping that that was where the Secretary of State was going to go in his response to my hon. Friend the Member for Wirral West (Margaret Greenwood), but he did not go quite that far.
We are told by the Government that their changes to the Bill should protect domestic standards across 205 regulated professions and ensure that regulators are not obliged to reduce standards due to provisions included by the Government in free trade agreements. The change made to the Bill was welcomed by regulators and stakeholders. The Bill has been improved, thanks in large part to my Labour colleagues in the Lords. However, there remain outstanding concerns, including about how the Government will consult and seek the consent of devolved Administrations. We believe that the Bill should be amended to ensure that the devolved Administrations have a proper voice when the powers in it are used. We will press these points in Committee, as we did in the Lords.
We as a country have serious shortages of skilled workers. Some, such as those related to heavy goods vehicle drivers, are well documented, but there are many others. To give just one other example, the most recent NHS figures reveal that there are about 39,000 vacancies for registered nurses in England, with many unfilled posts. The number of nurses from the European economic area joining the Nursing and Midwifery Council register has fallen by more than 90%, from 9,389 in the year to 31 March 2016 to just 810 in the year to 31 March 2021. Thousands of nursing shifts each week cannot be filled because of staff shortages, according to hospital safe staffing reports. That is unacceptable.
Of course, this is an area that requires attention from other Departments if it is to be addressed, but given the severity of the situation and the fact that the shortages were often predictable and predicted, it is essential that the Bill gets it right and ensures that our country has the skills it needs today and in the future. The Government’s approach to the Bill so far does not inspire confidence that it will play its part in addressing the shortage of nurses or, indeed, care staff, many grades of whom are also covered by the Bill.
The Bill provides a framework to allow mutual recognition of professional qualifications between regulators and professional bodies in the UK and the equivalent organisations overseas. The provisions in clauses 3 and 4 will allow for the implementation of regulator-to-regulator mutual recognition agreements and of the recognition arrangements in new international trade agreements. Importantly, the Law Society advises that the Bill will enable the mutual recognition agreement provisions in the UK-EU trade and co-operation agreement to be implemented, but it raises concerns about the arrangements. It says that the provisions for mutual recognition agreements in the TCA are largely based on the EU-Canada comprehensive economic and trade agreement, but no mutual recognition agreements have been signed between the EU and Canada in the three years since CETA came into force.
The concern that the Law Society raises is that the fact that no mutual recognition agreements have been signed using similar provisions may mean that the arrangements in the TCA are not sufficient for setting up such new agreements as are needed to encourage professionals to make up the shortages of nurses or vets, or those in 203 other professions. The Law Society therefore wants assurances from the Government—we will pursue the same point in Committee—that additional support, co-ordination and guidance will be available, if needed, on how to make the most of the provisions in the trade and co-operation agreement, not least in case they are to form the benchmark for future free trade agreements. I trust that the Minister, in winding up the debate, will address the very real concern about how to ensure that mutual recognition agreements are put in place in a timely fashion.
As it was the Law Society that carried out the analysis about the need for additional attention to be paid to how mutual recognition agreements will be negotiated, let us remember that legal services in the UK contribute £4.29 billion to our international trade each year. We are a global legal centre, and solicitors in England and Wales are respected the world over. The Minister with responsibility for professional services—the Under-Secretary of State for Business, Energy and Industrial Strategy, the hon. Member for North East Derbyshire (Lee Rowley)—is not here, but perhaps his colleague who is responding to the debate can tell us, on his behalf, what assurances the Government can offer the Law Society, which wants legal qualifications to be recognised abroad and needs mutual recognition agreements to be secured but fears that, without additional Government impetus, none will be.
There is much still to do with this Bill. Lord Grimstone had the decency to accept its shortcomings and some of the changes needed, with Labour’s help, on regulator autonomy, but there is more to do in Committee and on Report in this House. On consultation with the devolved Administrations, we need the Government to come back to us. On the maintenance of high standards of health, public safety and consumer protection, on keeping promises that regulators will not be pressured by the Government into lowering standards, and on scrutiny of changes made through secondary legislation, we need assurances. On being able to attract professionals and fill the holes in our labour market, the Government need to do much better now, while putting in place a plan to address skills shortages in the long term.
The Labour party will address the concerns of employers, to support our economy, professional workers in this country and those who wish to work abroad. This is in our national interest. I hope that the Government will engage with us in that spirit and address the concerns raised in the Lords, by the professional organisations that need this legislation to be effective and by the devolved Administrations. I also hope that Ministers will address the shortcomings that we have identified in a way that delivers a system of mutual recognition of professional qualifications that is fit for purpose.
Owen Thompson (Midlothian) (SNP)
May I start by outlining that although the Scottish National party is not against the principles of the Bill, we cannot support it as it stands? I am not looking to divide the House at this stage, because I hear from the Secretary of State that constructive engagement is taking place. We will be happy to look at what we can agree as the Bill progresses through Committee and its remaining stages, but it is certainly worth putting it on the record that there are concerns in the Scottish Government and in elements of Scottish civil society—I do not think that anyone is in any doubt about that.
The Bill’s intention is to facilitate the cross-border recognition and regulation of professional qualifications so that we can ensure an integrated system for the transfer of professionals. It is certainly welcome that the Government are addressing the issue; the regulation and recognition of qualifications from abroad is particularly significant to smaller countries such as Scotland that seek to attract incredible skills and expertise from our neighbours. As an example, the world-leading Scottish food and drink industry, and indeed that of the whole UK, has traditionally been very heavily reliant on the services of EU-qualified vets, who were able to bring their skills to Scotland under the terms of EU rules on the mutual recognition of professional qualifications.
We owe a huge debt of gratitude to those who bring their qualifications and skills to contribute to our industries, which is precisely why it is so crucial to recognise consistency in qualifications to support working across countries. SNP Members’ preferred solution, of course, would be to recognise Scotland’s democratic vote in 2016 and rejoin the European Union, but it might be pushing it a bit to persuade Government Members to do that. In the meantime, it is important that we have legislation in place to ensure that skills and experience are not lost in any steps that we take.
The SNP supports the key principles that the Bill seeks to address, but there are technicalities. Technicalities often matter a great deal more than principle, and unfortunately the Bill is another example of the Government using technicalities to undermine devolution and hoping that no one will notice. I will come back to that point shortly, but it is worth running through some of the Bill’s devolved implications more generally.
The whole Bill applies to Scotland. Certain professions and qualifications are reserved to this place, but plenty are not, including teaching, the legal profession and some social care professions. The Bill does not make separate provision for devolved and reserved professions; it applies to all regulated professions active in Scotland, whether they are reserved or devolved. I appreciate that the Government recognise that point to a degree and are seeking legislative consent from the devolved legislatures to clauses 1 to 10 and 15, as they should. However, there are other clauses that evidently fall within devolved competence but for which the Government are not seeking permission from the devolved Administrations.
Clause 13(1) provides that a power to make regulations under the Bill
“includes power…to make consequential…or saving provision.”
That the UK Government can consider a clause relating to consequentials as outwith the Scottish Parliament’s competence is a bit surprising, to say the least.
Clause 16 is really the devolution buster. When the Bill was originally introduced, it defined “appropriate national authority” as
“the Secretary of State or the Lord Chancellor”,
forgetting that Ministers of a devolved Government are also appropriate national authorities for provisions that fall within devolved competence. As the Law Society of Scotland notes:
“The Scottish Ministers are also an ‘appropriate national authority’ in relation to regulations under the bill which contain only provision which are within the legislative competence of the Scottish Parliament.”
Clause 16(3) helpfully remembers that Scottish Ministers are also a relevant authority. That is encouraging—it is progress—but there is still no provision requiring consent from a UK Minister to act in those areas.
In practice that means that any power conferred on the appropriate national authority in devolved areas can be exercised by UK Ministers. There is no requirement for UK Ministers to seek consent from the Scottish or Welsh Governments when exercising those powers. When the Secretary of State makes regulations under those powers, they would be subject to procedures in this place instead of the Scottish Parliament. The Bill alters the Executive competence of Scottish Ministers by enabling the Secretary of State to act in devolved areas without the requirement for consent. It is not the first time that that has happened, and for as long as Scotland remains part of the Union, I am sure it will not be the last.
The United Kingdom Internal Market Act 2020, which was passed in this place despite the Scottish Parliament and Welsh Senedd’s refusal of consent, treats devolution as an inconvenience to get around, rather than as a backbone of our constitution. Through that Act, the Government have given themselves power to subject
“healthcare services provided in hospitals”
in Scotland to market access principles, without needing the Scottish Parliament’s consent. It creates an external Westminster body that is responsible for testing whether a Bill in Holyrood would affect the UK internal market. Power has been taken from Scotland’s elected Parliament and placed in the hands of unelected bureaucrats—I am sure that sounds familiar from somewhere.
The Bill falls into a pattern of power grabs. As I say, we do not seek to oppose it at this stage, but I urge the Minister and the Secretary of State to take those points on board. When the devolved nations raise concerns about consent being ignored or not required, the response we have tended to get time and again from the UK Government is that they do not intend to use those powers without consent. However, we need more than pinky promises when it comes to what does or does not require consent. In that way, the Government avoid clashing with the devolved nations and are forced to keep their promises. Indeed, the only possible reason they would not do it is that they do in fact intend to meddle with devolution without consent. If that is not the case, I look forward to amendments being tabled to make that case solidly, and I say to the Government: prove me wrong.
In conclusion, I urge the Government to take these simple steps. Our asks on the Bill are relatively straightforward. The Scottish Government are currently recommending that the Scottish Parliament does not give its consent to the Bill. Its provisions are only required because we are leaving the EU—something Scotland voted against—and it adds insult to injury by trampling on devolution, which Scotland overwhelmingly did vote for. The Government do not have to be hellbent on making the Bill controversial and unconstitutional, and I urge the Minister and the Secretary of State to table amendments to bring it into line with devolution.
Chi Onwurah (Newcastle upon Tyne Central) (Lab)
I will not detain the House for long, but I put on record that I think the brevity of this afternoon’s debate more reflects concern about the rise of the omicron variant than it does a lack of interest in this important subject. Professional qualifications are a key part of many sectors of our economy and public realm. They are significant factors in the protection of service users, from consumers to covid patients. The Bill promotes mutual recognition and professional qualifications. It increases opportunities for many, including nurses and lawyers, to work here and abroad.
Many Members of the House will have constituents who could be impacted by the Bill. Newcastle has many professionals who may benefit from the recognition of their qualifications, and many businesses that might look to recruit international talent. As my hon. Friend the Member for Sefton Central (Bill Esterson) emphasised, it is essential that we maintain our high standards and recognise that qualification recognition, although important to our public services and economy, will not solve our skills shortage. The Government must invest in skills and also give our regions the power to do so. I emphasise that because Labour wants Britain to be the best place in the world to live and to work. The Bill started in the other place and my Labour colleagues’ work on it certainly reflects that. Their scrutiny and amendments have significantly improved the Bill by securing statutory protections for regulator autonomy and statutory consultations with regulators. Regulating key professions is not a market option; it is essential to protect service users and professionals.
Unfortunately, it remains the case that far too much of the actual content of the Bill will be passed as secondary legislation. That is unacceptable. In addition, as emphasised by the hon. Member for Midlothian (Owen Thompson), the devolved Administrations are not adequately consulted and must have a voice. The Government have a duty, indeed, to consult them and to seek the consent of devolved Administrations as the Bill passes through the House.
The Government’s handling of the Bill has been chaotic. As my hon. Friend the Member for Sefton Central (Bill Esterson) said, they introduced the Bill without knowing which professions were in its scope. We have a weak Prime Minister without the support of his own Back Benchers. But it is absolutely essential that we protect our regulators’ autonomy to ensure that our standards are fit for purpose and that we protect the professional standards that British citizens have come to rely on. Labour is therefore demanding that the Government amend the Bill to ensure that Parliament is given the opportunity to scrutinise secondary legislation appropriately and that the devolved Administrations are included in the regulation-making process. I look forward to the Government recognising the validity of our concerns as the Bill passes through this House.
The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Paul Scully)
It is a pleasure to follow the hon. Member for Newcastle upon Tyne Central (Chi Onwurah). I thank everybody who has spoken during the debate. [Interruption.] Yes, all the people in this extensive debate.
This Bill will support trade through allowing regulations to implement trade agreements and allowing our own professionals to enter new markets. It will also support our work to meet domestic need, such as addressing national shortages, while ensuring that professional standards are maintained and regulator autonomy is protected.
My right hon. Friend the Secretary of State rightly noted the relevance of the Bill to supporting international trade for our world-leading services sectors. Provisions on the recognition of professional qualifications can make it easier for UK professionals to provide services overseas—for example, by making it easier for regulators to agree recognition agreements with overseas counterparts. With trade partners, the Government would look to agree provisions that could require regulators to operate routes to recognition. Our deals with Norway, Iceland and Liechtenstein, for example, include this type of measure. But I can reassure the House that in any agreement regulators’ existing autonomy to set standards and assess them against these deals would be maintained. Regulators are not obligated to enter into recognition agreements with counterpart regulators overseas.
Turning specifically to the UK-EU trade and co-operation agreement, this secures continued market access across a broad range of key services sectors, including professional and business services. It also includes the framework to agree professional-specific arrangements on the recognition of professional qualifications. BEIS has established a recognitions arrangement team that provides advice and support to regulators if they pursue these arrangements. The hon. Member for Sefton Central (Bill Esterson) talked about legal services, in particular. The TCA with the EU secures continued market access across a broad range of key services sectors, but on legal services we negotiated unprecedented provisions for UK lawyers to practise in the EU using their UK title in both UK and international law.
The UK proposed ambitious arrangements on professional qualifications with the TCA, but regrettably the EU did not engage with them. However, on legal services we do, as I say, have unprecedented provisions. The Bill is also consistent with our other international commitments, including the common travel area with Ireland. The Bill does not alter the Government’s determination to uphold our CTA commitments. The Government are also working closely with the Irish Government and regulators to ensure that UK and Irish professions have continued routes to recognition.
The hon. Member for Sefton Central, and others, talked about skills and skills shortages. I thank him for his point on that. However, it is important to be clear about how the Bill fits into the Government’s overall skills strategy. The Bill allows regulations to be made requiring a regulator to be able to receive applications, assess individuals’ qualifications and experience gained overseas, and decide on whether to treat them as if they had the required UK qualifications or experience. That can be done only where there is a clear unmet demand for the services of a regulated profession.
Separate from the provisions of the Bill, the Government can, when necessary, consider short-term measures to deal with skills shortages, as they have in the case of HGV drivers. The Bill also plays its part in making sure that aspiring and qualified professionals can find the information they need to access professions, including transparency requirements for regulators to have clearer information online, and it provides for an assistance centre to help professionals directly.
But neither the Bill nor such short-term measures take the place of our domestic skills strategy. Our lifetime skills guarantee will enable anybody to acquire the skills to do those jobs wherever they live and whatever the stage of their life. The Skills and Post-16 Education Bill currently going through Parliament will set up the country for success by giving people the skills and the education they need for work. It puts employers at the heart of the skills system to make sure that local skill provision meets local needs, so that people can thrive where they live.
I will respond to the points raised by the hon. Member for Midlothian (Owen Thompson) on concurrent powers in the Bill and securing legislative consent motions for the devolved Administrations. I want to reassure the House that the Bill has been carefully designed to respect the devolution settlements. The inclusion of concurrent powers ensures that professions that fall within devolved legislative competence but are regulated on a UK-wide basis can be dealt with efficiently and appropriately under the Bill by the relevant and appropriate national authority.
The UK Government are working hard to seek common ground with the devolved Administrations. The devolved Administrations rejected our previous proposal of a formal duty to consult before regulating in areas of devolved competence, but we have now offered to place on the face of the Bill a stronger duty to consult. The amendment would require the Secretary of State or the Lord Chancellor to consult with devolved Administrations before making regulations under the Bill that contain provisions that could be made by devolved Administrations themselves, and then to publish a report on the consultation to be agreed with those devolved Administrations.
We have also offered to table an amendment to carve the Bill out of schedule 7B of the Government of Wales Act 2006, allowing the Senedd to remove UK Ministers’ concurrent powers if they deem that to be necessary. The Welsh Government will still be required to consult with the UK Government on the removal of those powers.
The Government’s approach demonstrates our commitment to transparency and scrutiny, and to preserving the balance of the devolution settlement while maintaining a coherent approach across the UK. Let me make it clear: it is not the Government’s intention to make regulations in relation to matters on which the devolved Administrations could legislate without seeking their views.
I hope that hon. Members from across the UK can support the Bill. We will continue to work in collaboration with the devolved Administrations and devolved regulators to ensure an approach that works for all parts of the UK. I look forward to discussing the Bill in Committee, and I commend it to the House.
Question put and agreed to.
Bill accordingly read a Second time; to stand committed to a Public Bill Committee (Standing Order No. 63).
Professional Qualifications Bill [Lords] (Programme)
Motion made, and Question put forthwith (Standing Order No. 83A(7)),
That the following provisions shall apply to the Professional Qualifications Bill [Lords]:
Committal
(1) The Bill shall be committed to a Public Bill Committee.
Proceedings in Public Bill Committee
(2) Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Thursday 20 January 2022.
(3) The Public Bill Committee shall have leave to sit twice on the first day on which it meets.
Proceedings on Consideration and Third Reading
(4) Proceedings on Consideration shall (so far as not previously concluded) shall be brought to a conclusion one hour before the moment of interruption on the day on which proceedings on Consideration are commenced.
(5) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.
(6) Standing Order No. 83B (Programming committees) shall not apply to proceedings on Consideration and Third Reading.
Other proceedings
(7) Any other proceedings on the Bill may be programmed.—(Andrea Jenkyns.)
Question agreed to.
Professional Qualifications Bill [Lords] (Money)
Queen’s recommendation signified.
Motion made, and Question put forthwith (Standing Order No. 52(1)(a)),
That, for the purposes of any Act resulting from the Professional Qualifications Bill [Lords], it is expedient to authorise the payment out of money provided by Parliament of:
(1) any expenditure incurred under or by virtue of the Act by a Minister of the Crown; and
(2) any increase attributable to the Act in the sums payable under any other Act out of money so provided.—(Andrea Jenkyns.)
Question agreed to.
Marriage and Civil Partnership (Minimum Age) Bill (Money)
Queen’s recommendation signified.
Resolved,
That, for the purposes of any Act resulting from the Marriage and Civil Partnership (Minimum Age) Bill, it is expedient to authorise the payment out of money provided by Parliament of:
(a) any expenditure incurred under or by virtue of the Act by the Secretary of State, and
(b) any increase attributable to the Act in the sums payable under any other Act out of money so provided.—(Tom Pursglove.)
Question agreed to.
Professional Qualifications Bill [ Lords ] (First sitting)
Tuesday 18th January 2022
(2 years, 11 months ago)
Public Bill CommitteesRead Full debate Professional Qualifications Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 18 January 2022 - (18 Jan 2022)
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 6 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 9 - Question accordingly negatived.
The Chair
Before we begin, I have a few reminders for colleagues. Will Members please switch off or turn their electronic devices to silent? No food or drinks are permitted during sittings except for the water provided. Members are expected to wear masks when they are not speaking, in line with current Government guidance and that of the House of Commons Commission. I remind colleagues that they are asked by the House to have a covid lateral flow test before coming on to the parliamentary estate. Please also give each other and members of staff some distance when seated and when entering and leaving the room. Hansard colleagues would be grateful if Members could send any speaking notes to hansardnotes@parliament.uk.
We will first consider the programme motion on the amendment paper. We will then consider a motion to enable the reporting of written evidence for publication. I hope that we can take those matters formally without debate.
Ordered,
That—
1. the Committee shall (in addition to its first meeting at 9.25 am on Tuesday 18 January) meet—
(a) at 2.00 pm on Tuesday 18 January;
(b) at 11.30 am and 2.00 pm on Thursday 20 January;
2. the proceedings shall (so far as not previously concluded) be brought to a conclusion at 5.00 pm on Thursday 20 January.—(Paul Scully.)
Resolved,
That, subject to the discretion of the Chair, any written evidence received by the Committee shall be reported to the House for publication.—(Paul Scully.)
The Chair
Copies of written evidence that the Committee receives will be made available in the Committee Room and will be circulated to Members by email. We now begin line-by-line consideration of the Bill. The selection list for today’s sitting is available in the room. It shows how the selected amendments have been grouped together for debate. Amendments grouped together are generally on the same or a similar issue, as colleagues will know. Please note that decisions on amendments do not take place in the order that they are debated, but in the order they appear on the amendment paper. The selection and grouping list shows the order of debates. Decisions on each amendment are taken when we come to the clause to which the amendment relates. Decisions on new clauses will be taken once we have completed consideration of the existing clauses of the Bill. Members wishing to press a grouped amendment or new clause to a Division should indicate when speaking to it that they wish to do so.
Clause 1
Power to provide for individuals to be treated as having UK qualifications
Question proposed, That the clause stand part of the Bill.
The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Paul Scully)
It is a pleasure to serve under your chairmanship, Mr Pritchard. The Bill will replace the interim system for the recognition of professional qualifications that was put in place when the UK left the EU. That interim system can give preferential treatment to professionals within the European economic area and with Swiss qualifications. It has not been reciprocated by the EU, and will be superseded by our recent trade agreement with the EEA and European Free Trade Association states. It must therefore be revoked.
Clause 1 sets out the substance of a new recognition approach. It means that regulations can be made that require regulators to consider applications from individuals with professional qualifications and experience gained around the world. Regulators will determine whether an individual with overseas qualifications or experience has substantially the same knowledge and skills to substantially the same standard as demonstrated by the relevant UK qualification or experience. Equally, other relevant regulatory criteria must also be met—for example, regarding language proficiency or criminal record checks. The regulations would not alter the standards required to practise professions in the UK. No regulator would be pressured into accepting qualifications that did not reach UK standards. My officials have worked with all regulators affected by the Bill, and I am happy to report that the regulators support clause 1.
Where clause 1 is not exercised, regulators will be free to continue recognising qualifications from overseas in line with their existing powers and any reciprocal agreements in place. As a result of the condition in clause 2, there are only certain conditions under which a Secretary of State, the Lord Chancellor or a devolved Administration would be able to make regulations under clause 1. Action can be taken only where there is a clear public interest to do so—in this case, unmet demand for services. I hope that my explanation has provided further clarity on why the Government believe that that approach is necessary and proportionate. I assure the Committee that the regulators support the clause.
Bill Esterson (Sefton Central) (Lab)
It is a pleasure to see you in the Chair, Mr Pritchard. Having a skilled workforce is essential for the economic success of our country, and the Bill will promote mutual recognition of professional qualifications, which will in turn increase the opportunities for many professionals from abroad to work here in Britain. We also need our high-class professional services professionals to have the opportunity to work abroad. The Bill matters both in addressing access here and in creating a potential for mutual recognition agreements for professionals to work abroad.
Whether it is for the billions that qualified professionals contribute to our economy—such as the £60 billion of gross added value that legal services are worth and the £5 billion in the export of legal services—or the societal contribution that nurses, doctors, veterinarians and others make to the fabric of our country, it matters greatly that we get the legislation right. Although the Bill has faced much scrutiny from colleagues in the Lords, there are areas where it could be amended to ensure that we in this House, as well as our colleagues in the devolved Administrations and the regulated professions, deliver the certainty that the Bill should provide to millions of professional workers.
We therefore encourage the Government to properly consult with the relevant regulators and professional bodies before making regulations, so that they can avoid the same shambolic approach that the Government took, for example, in the establishment of the Trade Remedies Authority, where the Secretary of State had to step in at the eleventh hour last year to prevent the disastrous removal of vital protections for our steel industry. Similarly, we encourage the Government to properly consult with the devolved Administrations, and provide appropriate reassurances to them that they will be appropriately consulted when regulations affect them, and that the Bill will not strip more powers from them when it comes into force. The relevance of the Trade Remedies Authority is that the Government opposed our amendment in Committee to then Trade Bill to include, among others, the devolved Administrations. Our amendments to today’s Bill would reassure the devolved Administrations that this legislation will not be another attempt by Westminster to seize responsibilities that were previously devolved.
We have also tabled new clauses to strengthen certain aspects of the Bill. Having qualified professionals here in the UK contributing to our economy and social fabric is vital. It is therefore galling to see yet more shortages of skills across the country—shortages that, we hear today, are in the tens of thousands for nurses and carers. We know about the shortage of vets. All of those are covered by the Bill, as are driving instructors, who of course link to lorry drivers, where we have a significant and sustained set of problems. That is why we seek an obligation for the Government to provide a report to the House about what they are doing to tackle the skills shortages facing the country. We also seek additional certainty for workers who already have their professional qualifications recognised in the UK.
Finally, we seek certainty that a number of regulators and regulated professionals are covered by the Bill. When the Bill was in the Lords, it was clear how little effort and thought went into it from Ministers. It was truly shambolic. In fact, it was so shambolic that the Government’s own Minister, Lord Grimstone, said that the deep errors had made him feel “uncomfortable” and that he had listened to the criticism
“with a certain lack of enjoyment.”—[Official Report, House of Lords, 22 June 2021; Vol. 813, c. 160.]
Conservative peer Baroness Noakes said that
“it has all the hallmarks of being a Bill conceived and executed by officials with little or no ministerial policy direction or oversight.”—[Official Report, House of Lords, 22 June 2021; Vol. 813, c. 149.]
I hope that today’s Minister is giving a little more political direction and oversight than his colleagues have previously. How does he feel about the Bill? Is he, as his colleagues were, uncomfortable with it? Is he certain that the wrinkles have been ironed out?
This is an important piece of legislation, which will affect people’s lives and livelihoods, and every effort must be made to deliver the system that those in scope need. Lord Grimstone had the decency to accept the shortcomings of the Bill and of the Government, and in collaboration with Labour made the necessary amendments to put the Bill into better shape. I hope that today’s Minister will address the remaining concerns with us as we debate the amendments before us.
Question put and agreed to.
Clause 1 accordingly ordered to stand part of the Bill.
Clause 2
Power conferred by section 1 exercisable only if necessary to meet demand
Bill Esterson
I beg to move amendment 2, in clause 2, page 3, line 2, at end insert—
“(2A) In determining whether the condition in subsection (2) is met, the appropriate national authority must have regard to the availability of professional services in the regulated profession by reference to such factors as appear to the authority to be relevant including, but not limited to—
(a) the extent of delays in accessing professional services,
(b) the level of charges for services,
(c) available workforce data, skills needs or workforce modelling forecasts,
(d) vacancy levels or recruitment difficulties,
(e) whether the profession is on the occupation shortage list, and
(f) the views of the relevant regulator and of professional representative bodies.”
This amendment requires additional information to be taken into account by the appropriate national authority when deciding what regulations are to be made in accordance with the powers conferred under clause 1.
The reluctance to consult on matters of great importance to people’s lives and livelihoods is a flaw and a hallmark of how the Government operate. The Bill does not provide any obligation to consult the relevant regulators and other professional representative bodies when determining to make recommendations that will no doubt affect them and their members. How can that be right?
The second report of the Lords Delegated Powers and Regulatory Reform Committee stated clearly that it was
“surprised and disappointed that neither the Memorandum nor the Explanatory Notes…explain why Ministers will have no duty to consult before making regulations.”
The Minister should explain why not. As Conservative Baroness Noakes said to other peers, that
“goes to the heart of this Bill. BEIS did not consult on this Bill or any policy proposals. All it did was issue a rather strange call for evidence, some of the replies to which were really rather thin, and it then worked out its own policy and put out a statement of policy at the same time that it published the Bill.”—[Official Report, House of Lords, 22 June 2021; Vol. 813, c. 167.]
Failure to consult the relevant experts will only lead to mistakes and time wasted in trying to rectify those mistakes.
Furthermore, while the Bill was in the Lords, the Minister in that place said:
“I fully agree that it is important for the relevant national authority to engage with a range of stakeholders before making regulations. Because of the complexity of these matters, it would be the height of foolishness not to do that.”—[Official Report, House of Lords, 9 June 2021; Vol. 812, c. 1500.]
Does the Minister agree with his colleague that it would be “the height of foolishness” not to consult with the appropriate stakeholders? If he does, does he accept the need for the amendment?
Paul Scully
I thank the hon. Member for his amendment, which would alter the unmet demand condition in subsection (2). The amendment would require the appropriate national authority to consider a specific set of factors to determine whether that unmet demand condition had been met.
I agree that the appropriate national authority should be transparent when determining whether the unmet demand condition is satisfied. I also recognise that considering a combination of the factors set out by the hon. Member in the amendment would make a sensible determination of unmet demand. That is why the Government committed to publish specific guidance to support appropriate national authorities in their determination of unmet demand. Factors in the amendment would of course be part of that guidance anyway.
The other place agreed that that was appropriate, because setting matters out in guidance, rather than on the face of the Bill, will give the appropriate national authority the freedom to tailor its unmet demand assessment to the needs and circumstances of each profession. I expect that appropriate national authorities will be clear in showing how they have reached their determination. Their approach must withstand scrutiny.
For example, a devolved Administration is best placed to determine the factors relevant to assess whether there is unmet demand for a profession in an area of devolved legislative competence. It is important that they are able to decide how best to make such determinations, and are not forced to work through a list of prescribed factors in the Bill. I therefore hope that the Committee will agree that setting the factors out in guidance is more appropriate.
The amendment also refers to the gathering of views of interested parties. I agree that that is clearly of the utmost importance. Therefore, clause 15 sets out a duty to consult with regulators when appropriate national authorities are using the powers under clause 1. That will provide an opportunity for regulators to express their view on unmet demand and on the content of any resultant negotiations. Given that the Bill already legislates for that, I do not see the need to repeat such an obligation in clause 2.
The proposed amendment also extends the consultation to give regard to the views of professional bodies. I am sure that appropriate national authorities, as a matter of good practice, will look to liaise with such bodies where appropriate. I hope the Committee is reassured that measures are in place to guide the application of the clause and provide transparency of how decisions will be made, as the hon. Member rightly suggests is required, as well as appropriate engagement with key parties. There is no need, therefore, to set that out further in the Bill. As such, I ask the hon. Member to withdraw the amendment.
Bill Esterson
I am grateful for the Minister’s response. I come back to the point that the Lords Delegated Powers and Regulatory Reform Committee made—that this part of the Bill does not contain the duty to consult. I take his point about it being later in the Bill, but the point is, if the Government are happy to put it in later on, why is it missing here? We have not really had an answer, so we will test the will of the Committee.
Question put, That the amendment be made.
Paul Scully
Clause 2 restricts the use of power for an appropriate national authority to make regulations under clause 1. It does so by limiting the use of power to a specific set of circumstances and introducing the condition that the appropriate national authority can make regulations only where to do so would address an unmet demand for the services provided by that profession, such as by preventing unreasonable delays and charges.
The clause provides reassurance that both the UK Government and the devolved Administrations can exercise the power in clause 1 only when there is clear public interest and when it is in their competence to do so. That means that action can be taken where necessary to meet the demand for services, ensuring recognition for appropriately qualified professionals in demand areas. It prevents regulations from being made under clause 1 where regulators already have sufficient existing recognition routes in place. In those circumstances, the condition in clause 2 would not be met. Clause 2 does not prevent regulators from using existing powers to create routes to recognition; it simply ensures that where there is pressing need, the regulations can be made.
Question put and agreed to.
Clause 2 accordingly ordered to stand part of the Bill.
Clause 3
Implementation of international recognition agreements
Question proposed, That the clause stand part of the Bill.
Paul Scully
The UK is the second-largest exporter of services in the world. The clause is therefore needed to ensure that the UK can meet its international obligations, allowing appropriate national authorities to implement parts of international agreements relating to professional qualifications. Nothing implemented under the clause can force regulators to recognise applicants who are unfit to practise, or materially adversely affect the knowledge, skills and experience of the individuals practising a profession.
As many professions in the UK are already subject to existing legislative frameworks, including primary legislation, amendment may be required to reflect the terms of international agreements on professional qualifications and to be consistent with our international obligations. Existing powers may not provide for the full implementation of international agreements, which is why clause 3 is so important.
Question put and agreed to.
Clause 3 accordingly ordered to stand part of the Bill.
Clause 4
Authorisation to enter into regulator recognition agreements
Question proposed, That the clause stand part of the Bill.
Bill Esterson
Encouraged by the closeness of the vote, we will have another go with new clause 1. The amendment provides additional reassurances to the devolved Administrations that the Bill does not affect the establishment or operation of common framework agreements, which are devolved matters. This amendment would—[Interruption.] Sorry, I am speaking to the wrong provisions. I am amazed that nobody noticed. [Laughter.]
Bill Esterson
Given your vast experience, Mr Pritchard, and given my experience of debating with you over a number of years, I know that you were about to intervene to stop me. We will speak to new clause 1, but we will not test the will of the Committee on the matter; we will come back to it on amendment 3.
The new clause would place an obligation on the Secretary of State to provide guidance to regulators concerning mutual recognition under the EU-UK trade and co-operation agreement. The Bill provides a framework to allow mutual recognition of professional qualifications between regulators and professional bodies in the UK and the equivalent organisations overseas. The provisions in clauses 3 and 4 will allow for the implementation of regulator-to-regulator mutual recognition agreements, and of the recognition arrangements in new international trade agreements.
Importantly, the Law Society advises that the Bill will enable the mutual recognition agreement provisions in the EU-UK trade and co-operation agreement to be implemented, but it raises concerns about the arrangements. The Law Society says that the provisions for mutual recognition agreements in the TCA are largely based on the EU-Canada comprehensive economic and trade agreement. No mutual recognition agreements have been signed between the EU and Canada in the three years since CETA came into force. The concern is that the lack of mutual recognition agreements using similar provisions may indicate that the arrangements in the TCA are not sufficient for setting up such new agreements as are needed to encourage professionals to make up the shortages of nurses, vets or other professionals.
The Law Society and the Labour party want assurances that additional support, co-ordination and guidance will be available if needed by regulators and professional bodies on how to make the most of the provisions in the trade and co-operation agreement, not least in case they are to form the benchmark for future free trade agreements. More than assurances, the new clause would oblige the Secretary of State to provide guidance to regulators on how to make the most of the provisions in the trade and co-operation agreement.
Chi Onwurah (Newcastle upon Tyne Central) (Lab)
It is a pleasure to serve under your chairmanship, Mr Pritchard. I will not detain the Committee for long, but I will speak briefly in support of the new clause in my name and that of my hon. Friend the Member for Sefton Central, who made some excellent comments.
I declare a slight interest as having a professional qualification myself—that of a chartered engineer. That qualification is not part of the list of qualifications that will be subject to the legislation, but professional qualifications are an important part of many sectors, such as engineering, in our economy and our public realm. They are a significant factor in the protection of service users. Think of the many professions that have such an impact on service users, from the legal profession to chartered engineering, medical professions and nursing. It is important that those professions are well regulated, and the Bill is important to all our constituents. Newcastle, for example, has many professionals who benefit from the recognition of their qualifications.
We want the UK to be the best place in the world to live and work. That means being able to attract those with professional qualifications. We must recognise the importance of the autonomy of the regulators, provided for by Labour amendments during the passage of the Bill, and the importance of appropriate guidance, for which the new clause seeks to provide, for professional qualification regulators, particularly when it comes to the impact of trade deals. Many of us in this House—I bow to my hon. Friend the Member for Sefton Central with his extensive experience, however—might find the intricacies of the many trade agreements somewhat difficult to master, so it is critical that the regulators of professional qualifications have the support and guidance that the new clause seeks.
I note, for example, that in the EU-UK trade agreement we have not achieved any reciprocity of professional qualification recognition, so we are in a worse position than we were before leaving the European Union. For many with professional qualifications in this country—lawyers, engineers—being able to work abroad is an important part of their training. I myself worked in France, the US and Nigeria for some time, bringing skills back to this country. Not having reciprocal agreements in many areas leaves us worse off with regard to, say, the European Union, where there is a system of automatic recognition of professional qualifications for seven sector professionals—nurses, midwives, doctors, dentists, pharmacists, architects and vets—and a general system that enables workers to have their professional qualifications recognised.
Given the challenges of negotiating a mutual recognition agreement, surely the Minister understands that many of the professional qualification regulators could benefit from the advice and guidance of his Department and, more broadly, of the Government, with all their experience. Therefore, in providing for an obligation on the Secretary of State to provide guidance to regulators concerning mutual recognition—specifically under the European Union-UK trade and co-operation agreement—and in supporting regulators, the new clause would protect all our constituents by ensuring the quality and professionalism of the services that they very much enjoy now and hope to continue to do so.
Paul Scully
I thank hon. Members for the new clause, which seeks to place the obligation on the Secretary of State to provide additional support, co-ordination and guidance to regulators on mutual recognition agreements under the trade and co-operation agreement. Noting the importance of regulatory recognition agreements in supporting professionals who are qualified in one jurisdiction to work in another, I will also explain the benefits of the clause standing part of the Bill.
On the new clause, the hon. Member for Sefton Central was right to acknowledge that, since the end of the transition period, the process by which UK-qualified professionals seek recognition in the EU has changed. Professionals are now subject to the relevant rules in EU member states.
The hon. Member for Newcastle upon Tyne Central talked about the negotiations and about mutual recognition and reciprocal arrangements. The UK proposed ambitious arrangements on professional qualification recognition during the negotiation of the TCA, but regrettably the EU did not engage with them at that point. Instead, we agreed provisions based on existing EU precedent. The TCA provides a mechanism for the UK and EU to discuss the potential for mutual recognition of professional qualifications, where that is in both parties’ interests to do so.
Regulator recognition agreements can make it easier for professionals to navigate that landscape, as we heard, and agreements can be reached independently between regulators or under the TCA. Article 158 of the TCA provides a framework for the UK and the EU to agree arrangements to facilitate recognition of professional qualifications. Using that process, regulators and professional bodies may develop joint recommendations for professional recognition arrangements to be adopted. Annex 24 to the TCA contains guidelines to help them to do so. My officials are holding discussions with their counterparts in the European Commission to clarify the detailed process for making the best use of this framework.
I turn to the support available for regulators. Last year, BEIS established a dedicated recognition arrangements team to provide the support, guidance and co-ordination to regulators of professional bodies that the hon. Members have asked for. There is considerable experience there. That team supports them to pursue recognition arrangements through the framework of the TCA and other trade deals, and on an independent, regulator-to-regulator basis.
Bill Esterson
I am grateful to the Minister for describing the dedicated support team that the Department has set up. Will he give us some examples of the advice it has been able to give already? How many inquiries has it had from regulators or professional bodies?
Paul Scully
I will happily write to the hon. Gentleman with that detail. I have not been directly involved in that advice. None the less, we are here to talk about the amendment. The debate for today is whether we put that experience and advice on the face the Bill or have the existing structure, whereby that team is already offering that advice, is available and is stepping up with its experience to do so. That team regularly engages with regulators of professional bodies. It has published technical guidance on gov.uk. It is obviously going to be hard to quantify how many people have read and used that information, but information on how to seek recognition arrangements inside and outside the TCA is there.
The Department has also provided limited, targeted financial support to regulators seeking to agree recognition arrangements for a pilot recognition arrangements grant programme. I hope the hon. Member is therefore assured that the Government share the priority highlighted by his amendment and have already instituted support for regulated and professional bodies to make the most of the provisions in the TCA.
Clause 4 is part of our support for regulators as they pursue recognition agreements, ensuring that all regulators can take full advantage of international opportunities and enter recognition agreements at their discretion. Some regulators believe that they can already do so with their overseas counterparts and seize those opportunities. For example, the Financial Reporting Council has entered into a memorandum of understanding with the Irish Auditing and Accounting Supervisory Authority. If they can already enter recognition agreements, no further action is needed, but many regulators are currently considering recognition arrangements for the first time, and not all regulators have clear powers to enter them. Clause 4 can help. The Government are committed to supporting regulator recognition to fit legal agreements with the EU and beyond, and have taken action with that aim.
Bill Esterson
I am grateful to the Minister for his answers, which I will come back to. I commend my hon. Friend the Member for Newcastle upon Tyne Central for what she said about the importance of different professions, including her own, as part of the UK’s economic success, exporting around the world, gaining experience and returning it to this country. It is clearly in all our interests that we have good trade in services and facilitate that by supporting our professional services to trade internationally. She gave some excellent examples from across the professions of exactly why that matters and why it is a concern that we are relying on a clause that has not seen after three years any mutual recognition agreements signed up to in the corresponding EU-Canada agreement. That is the reason for the amendment and why we are raising this concern.
I am given a degree of assurance by the Minister that the dedicated support team is in place. I just gently say to him that, as the Minister, he really should have anticipated my question and probably pre-empted it by giving us some examples. I hope he is not going to blame his officials, because he should have asked for that information before, so that he could give us examples of the team in operation and told us how many inquiries there had been.
Chi Onwurah
I thank my hon. Friend for giving way and for his kind comments earlier. Is he concerned, as I am, that the Minister considers the lack of any negotiated reciprocal agreement under the Canada deal as some sign of success, and that that is why he is so complacent when it comes to providing proactive advice to our professional regulatory authorities for the EU trade deal?
Bill Esterson
A large degree of complacency and a lack of preparation characterise the whole way that the legislation has been brought forward, as Lord Grimstone and a number of Conservative peers acknowledged in the Lords. I think my hon. Friend is certainly on to something. The key thing is how we can ensure that mutual recognition agreements can be entered into by professional bodies and regulators in this country in a timely fashion that supports the kind of activity that she mentioned and maximises the benefit to our professional services that want to work abroad, as well as to employers who need access to staff in this country.
I will take the Minister at his word that a dedicated support team is up and running. In that spirit, we will not press the amendment to a vote.
The Chair
I remind the Committee that, as I set out in the preamble, the Question that is about to be put relates to clause 4, not to new clause 1. The debate on both has just taken place, but the decision on new clause 1, on which the shadow Minister has indicated his thinking, will come later.
Question put and agreed to.
Clause 4 accordingly ordered to stand part of the Bill.
Clause 5
Revocation of general EU system of recognition of overseas qualifications
Question proposed, That the clause stand part of the Bill.
Paul Scully
To clarify for the record, the team has taken steps forward, because there is already advice and guidance on gov.uk and a pilot grant programme is working. As I said, I will write to the hon. Member for Sefton Central with the specifics that he asked for.
Clause 5 revokes the European Union (Recognition of Professional Qualifications) Regulations 2015, which implemented the EU’s general system to facilitate the recognition of professional qualifications from the EEA and Switzerland, as set out in the EU directive on the mutual recognition of professional qualifications. The regulations were retained temporarily to provide certainty to businesses and public services at the end of the transition period, but the time has come to change our approach now that the UK is an independent trading nation, free of the obligations of the EU single market.
Several such modifications will be made to various pieces of legislation, and the most practical means to make those changes is by taking the power to do so through regulations, rather than by attempting to amend various regulations through the Bill.
Chi Onwurah
The Minister spoke about revoking the European Union provisions. With regard to mutual recognition for qualifications, does he think that British professionals are in a better position now than they were before?
Paul Scully
Many regulators will continue to be able to make their own determination in those areas, but the Bill will create a wider framework. The Architects Registration Board and the General Dental Council, for example, will be able to take wider views as a result of the Bill.
The Government remain committed to international agreements, including the EU withdrawal agreement, the EEA EFTA separation agreement, and the Swiss citizens’ rights agreement, all of which the Bill upholds. We gave effect to those agreements in regulations in 2019 and 2020, and there are protections in place for existing recognition decisions, which the Bill upholds.
Clause 5 does not affect those agreements or professionals who have already had their qualifications recognised in the UK, who will continue to be able to practise, provided that they continue to meet any ongoing practice requirements. The clause simply ends the legacy of EU qualification recognition in UK law.
Question put and agreed to.
Clause 5 accordingly ordered to stand part of the Bill.
Clause 6
Revocation of other retained EU recognition law
Question proposed, That the clause stand part of the Bill.
Paul Scully
Clause 6 complements clause 5 by providing a power for modifications to be made to other retained EU recognition law in order to cause it to cease having any effect. It enables the UK Government and the devolved Administrations to bring an end to the legislation for specific sectors that continue to implement EU qualification recognition law.
Question put and agreed to.
Clause 6 accordingly ordered to stand part of the Bill.
Clause 7
Assistance centre
Paul Scully
Clause 7 provides a statutory basis for the continued delivery of an assistance centre. It is an inquiry service that provides support to overseas professionals seeking to practise in the UK, as well as to UK professionals seeking to practise overseas.
Question put and agreed to.
Clause 7 accordingly ordered to stand part of the Bill.
Clause 8
Duty of regulator to publish information on requirements to practise
Question proposed, That the clause stand part of the Bill.
Paul Scully
Clause 8 is about increasing transparency by requiring regulators of professions in all parts of the UK to publish information on entry and practise requirements. Our evidence gathering found that the complex regulatory landscape is sometimes difficult for professionals to navigate, including in relation to transparency of information regarding entry into professions and application fees, so the clause requires regulators to make available the information about what qualifications or experience are needed, application processes, registration processes, how to continue to practise, ongoing training units and fees.
Question put and agreed to.
Clause 8 accordingly ordered to stand part of the Bill.
Clause 9
Duty of regulator to provide information to regulator in another part of UK
Bill Esterson
I beg to move amendment 3, in clause 9, page 8, line 12, at end insert—
“(6) Nothing in this section affects the establishment or operation of a common framework agreement relating to professional qualifications.
(7) A “common framework agreement” is any agreement between a Minister of the Crown and one or more devolved authorities as to how devolved or transferred matters previously governed by EU law are to be regulated.”
This amendment provides additional reassurances to devolved administrations that the Act does not affect the establishment or operation of common framework agreements which are devolved matters.
The amendment provides additional reassurances to devolved Administrations that the Bill will not affect the establishment or operation of common framework agreements, which are devolved matters—that is to say any agreement between a Minister and a devolved authority as to how devolved matters previously governed by EU law are to be regulated—relating to professional qualifications. It is important that when divesting powers to a devolved authority, we allow those powers to remain and do not seek to revoke them on a whim, buried in a Bill such as the one we are debating.
The position of the Labour Government in Wales is that assurances by Ministers in Westminster that they will not use powers granted to them without consultation with devolved Administrations is not good enough. If Ministers say they will do something, they should be prepared to put their commitments on the face of the Bill. Indeed, as the Welsh Government say, although the UK Government have stated that they do not intend to use the concurrent powers in the areas of devolved competence without the agreement of the relevant DAs, the provisions in the Bill do not reflect that, and the Secretary of State and Lord Chancellor would be able to exercise these powers in devolved areas without requiring any consent from Welsh Ministers. As representatives of the devolved Administrations are telling the Government, matters that were previously the preserve of the devolved Administrations, such as common framework agreements, should remain so.
Paul Scully
I thank the hon. Member for the amendment, which seeks to ensure that clause 9 does not affect the establishment or operation of a common framework. A framework for the regulation of professional qualifications is under development between the UK Government, the Scottish Government, the Welsh Senedd and the Northern Ireland Executive, to ensure a common approach on powers that have returned following our exit from the European Union and that intersect with devolved legislative competences. Those discussions are well advanced, and they are a testament to the collaborative and collegiate working between Administrations.
Although the amendment relates specifically to clause 9, let me reassure the Committee that we are committed to ensuring that the provisions in the Bill work alongside the common framework programme, and we will consider this as we develop the framework further. However, the common framework is a separate entity. The Bill does not constrain it in any way, and a reference to that effect on the face of the Bill is entirely unnecessary. I hope that reassures the hon. Member and that he will withdraw his amendment.
Bill Esterson
Well, that is not the view of the Welsh Government. [Interruption.] We could go into the support that the Welsh Government have given the UK Government recently on tests, but you might tell me to move on rather quickly, Mr Pritchard.
The point that the Welsh Government are making is that it is very important that confidence is retained and that there is no indication of the UK Government going into areas of devolved competence without agreement. The Bill is going through Parliament now. There is no indication of a final date on the wider negotiations and discussions that the Minister referred to. It would therefore be prudent to ensure that in areas such as the common framework, which the Government have committed to, they intend to follow such an approach. If so, they should have no concerns about the provision being in the Bill. On that basis, I would like to press the amendment to a vote.
Question put, That the amendment be made.
Paul Scully
Clause 9 ensures that regulators in one part of the UK share information with a regulator in another part of the UK. It places a duty on UK regulators, when requested, to provide information that they hold to another regulator. The information must relate to individuals who are entitled to practise the relevant profession in part of the UK.
In many cases, information sharing between regulators is already done on a voluntary basis. The clause will ensure that good practice continues across professions in the UK. It means that when an individual applies to practise a profession or moves between jurisdictions within the UK, the regulators have the necessary information to assess that individual’s entitlement to practise. It is limited to information held by the UK regulator about the individual and would not require a regulator to obtain information that it does not already hold. It makes sure that information sharing takes place if the practice does not already exist, and where it does exist, the clause ensures that it continues in the unlikely event that voluntary co-operation breaks down.
That approach supports co-operation between regulators across the UK to help protect consumers and public health. Information sharing can inform regulatory action, for example if there is evidence of malpractice, because regulators are best placed to determine whether they require further information about an individual to inform their decisions on entitlement to practise. The clause therefore provides flexibility to regulators on whether they want to ask a counterpart regulator in another part of the UK for that information.
I will also take this opportunity to reassure the hon. Members whose amendment has failed to gain approval in this place that commitments were made at the Dispatch Box in the other place that we would work with our counterparts in the DAs to complete the common framework. We will continue to work towards that. We have offered to revisit whether the Bill’s provisions should be referenced in the framework itself. With common frameworks, including regulated vocational qualifications, there has always been a shared sentiment between the UK nations that there should not be legislative underpinning; that they are more successful when entered into voluntarily, with the focus on collaboration, information sharing and good practice.
Question put and agreed to.
Clause 9 accordingly ordered to stand part of the Bill.
Clause 10
Duty of regulator to provide information to overseas regulator
Question proposed, That the clause stand part of the Bill.
Paul Scully
Clause 10 places a duty on UK regulators, when requested, to provide information to overseas regulators relating to individuals who are or have been entitled to practise the relevant profession in the UK, assisting professionals practising in the UK who are seeking to practise their profession abroad by ensuring that overseas regulators have the information to assess an individual’s entitlement to practise.
Question put and agreed to.
Clause 10 accordingly ordered to stand part of the Bill.
Clause 11
Amendments to the Architects Act 1997
Paul Scully
This clause relates to the recognition of internationally qualified architects in the UK and the administration of the system by the profession’s regulator, the Architects Registration Board. It is designed to facilitate a new system that will replace the interim recognitions system, which gives EU qualification holders an expedited route on to the UK register.
Question put and agreed to.
Clause 11 accordingly ordered to stand part of the Bill.
Clause 12
Crown application
Question proposed, That the clause stand part of the Bill.
Paul Scully
This clause ensures that regulators that are part of the Crown or act on its behalf are bound by the provisions in the Bill, and regulations made under it, in the same way as other regulators. That includes executive agencies of Government Departments, such as the Health and Safety Executive.
Question put and agreed to.
Clause 12 accordingly ordered to stand part of the Bill.
Clause 13
General provision about regulations
Question proposed, That the clause stand part of the Bill.
Paul Scully
The clause details the extent and limits of the powers to make regulation provided to appropriate national authorities in the Bill. It is a framework Bill. The clauses are essential to ensure that the Bill works in practice and can carry out its intended functions. It details new powers that can be used to make supplementary, incidental or saving provisions. It also sets out where the Bill does not allow powers to make regulations to modify legislation. That ensures that the use of the Bill stays within its remit.
Question put and agreed to.
Clause 13 accordingly ordered to stand part of the Bill.
Clause 14
Protection of regulator autonomy
Bill Esterson
I beg to move amendment 4, in clause 14, page 11, line 13, at end insert—
“(6) Subsections (7) to (9) apply where the Secretary of State makes regulations as the appropriate national authority under this Act which extend to the whole of England and Wales, Scotland and Northern Ireland.
(7) Before making such regulations, the Secretary of State must—
(a) consult such persons as the Secretary of State considers appropriate, and
(b) following that consultation, seek the consent of the Scottish Ministers, the Welsh Ministers and a Northern Ireland department.
(8) If consent to regulations is not given by a relevant authority set out in subsection (7)(b) within the period of one month beginning with the day on which consent is sought from that authority, the Secretary of State may make the regulations without that consent.
(9) If regulations are made in reliance on subsection (8), the Secretary of State must publish a statement explaining why the Secretary of State decided to make the regulations without the consent of the relevant authority.”
This amendment obliges the Secretary of State to consult the devolved administrations where regulations affect a regulator that covers the whole of the United Kingdom.
The amendment obliges the Secretary of State to consult the devolved Administrations where regulations affect a regulator that covers the whole of the United Kingdom, and we will be pushing it to a vote. The amendment is important because there are some regulators that operate on a devolved basis—the Law Society, for example, because of the different legal systems across the nations of the United Kingdom. Another example is the Institute of Chartered Accountants in England and Wales, which is separate from the Institute of Chartered Accountants of Scotland. Those are two regulators covering different areas of the country.
In those cases the relevant devolved Administration must be consulted before regulations that affect that nation are made. There are also regulators that govern the whole of the United Kingdom, such as the Civil Aviation Authority or the Royal College of Veterinary Surgeons. Just as the Government should consult the devolved Administrations when making regulations that affect the individual nation, so too should they consult the devolved Administrations when a regulation is made that affects the whole of the United Kingdom.
The amendment does not give the devolved Administrations the power to overrule the Secretary of State. Withholding consent does not mean new regulations will not be introduced. Instead, it allows those devolved Administrations to make their representations, and it gives them a statutory right to argue their case to the Secretary of State and try to change his or her mind. If the Secretary of State still believes their course of action is the correct one, despite representations from the appropriate devolved Administration, in their authority as Secretary of State they will, of course, still be empowered to make regulations.
The amendment adopts the formula that was adopted in the United Kingdom Internal Market Act 2020, so we are asking for the Government to follow their own lead.
Stephen Flynn (Aberdeen South) (SNP)
I perhaps do not share the hon. Member’s view that the UK Government should have the ability to override the devolved Administrations in respect of the concerns they have. He has mentioned that the content of the amendment is based on the United Kingdom Internal Market Act 2020. Will he be cognisant of the fact that the devolved Administrations were against the 2020 Act? Does the amendment go far enough?
Bill Esterson
The hon. Member is right, of course. We may not agree entirely, but we are trying to hold the Minister and the Government to consistency with their own measures through our amendment. That is the spirit in which it is intended, with the one-month period in the amendment in which consultation should take place. It is an attempt to improve on a wholly inadequate and unacceptable situation, putting in some degree of consultation. I accept the difference of opinion between us on the ideal, but that is what we are trying to do with the amendment. His colleagues could have tabled an amendment to go further, but they have not done so in this case. Our amendment is what we can vote on.
It might seem odd for the Government to be inconsistent—now I come to think of it, perhaps it is not odd at all—and, in a rational world, we might expect them to take the same approach that they obligated just over a year ago, applying that consistently across post-Brexit legislation. That seems like a good idea to me. I wonder what the Minister thinks.
Paul Scully
I thank the hon. Member for the amendment, which seeks to require the Government to consult with appropriate persons and to seek the consent of the devolved Administrations when making regulations that extend to the whole of the UK, even when legislating in a reserved area. As the Government have set out repeatedly, it is absolutely not the Government’s intention to make regulations in relation to matters on which the devolved Governments could legislate without seeking their view.
Lord Grimstone has put that assurance on the record many times in the other place, including in correspondence with ministerial counterparts in the devolved nations. We are therefore not convinced that the amendment is preferable to the Government’s own, more flexible proposals, which Ministers of all four nations are now discussing.
Working with the devolved Administrations is the way to make the Bill operate best for all our UK nations. That is why I and Lord Grimstone wrote to our ministerial counterparts in the devolved Administration ahead of Second Reading, offering to put a duty to consult with devolved Administrations in the Bill. Thus far, Ministers in the devolved Administrations have rejected our offer, but our discussions are ongoing.
I hope that we will be able to reach an outcome that maintains the policy integrity of the Bill while giving all four nations of the UK the assurances that they need about the operation of the powers.
Bill Esterson
I wonder whether the Minister will clear something up for me. If he gets an indication from the devolved Administrations, is it his intention to come back on Report with a Government amendment to put that duty to consult into the Bill?
Paul Scully
That is exactly why we continue to discuss ahead of further stages of the Bill. As I say, we offered an amendment to provide for the duty to consult and to publish the outcome of the consultation. That was rejected by the Scottish and Welsh Governments. A rationale for the inclusion of the current powers and the reasons why a consent mechanism would not be possible on the face of this Bill were shared with the Welsh Government on 22 September. However, we will continue to work with the Welsh and Scottish Governments and the Northern Ireland Executive on that basis, to try to do everything we can to secure an agreement.
Stephen Flynn
I take cognisance of what the Minister says, but the reality of the situation is that we have seen Bill after Bill introduced by the UK Government delving into devolved areas of competence. If the UK Government really had a respect agenda, they would try to solve those problems before such Bills came before the House—although the Bill has a number of other issues as well. How confident is he that he will be able to get agreement with the devolved nations in this regard?
Paul Scully
In terms of confidence, all I can say to the hon. Gentleman is that I will continue to try. I am keen that we do everything we can as a UK Government to stretch our arms out and to say, “We want to work with the Scottish and Welsh Governments and the Northern Ireland Executive to get the skills list.”
Stephen Flynn
I thank the Minister for giving way again; he is being very generous. Just for clarity, is he saying that he will try incredibly hard, but if the devolved Administrations are not happy, he will ultimately override them and force through his views?
Paul Scully
I think we have made it clear with the devolved Administrations that we want to get as many agreements as we can, but we need to press on with this legislation. However, that is not the same as closing down the conversation. It is important that we do everything we can to work with them.
This amendment has some similarities to the Government’s own position, in that it advocates consultation. However, as with some of the other proposals that we have discussed, the amendment is somewhat less flexible and therefore less satisfactory than the Government’s own approach.
For example, the amendment is limited to regulations that extend across all four nations. What if the Lord Chancellor wished to make regulations under the Bill, or the regulations extended to only two or three nations of the UK? The amendment would oblige the Government to seek the consent of the devolved Administrations even when legislating in the reserved area that I have talked about.
Hon. Members will be aware that the Bill now includes a duty to consult regulators, which extends to regulators in the devolved nations. In addition to the consultation that we would normally undertake with devolved Administrations, wherever appropriate we will engage directly with those closest to the issues before making regulations.
I will continue to engage, as I have said, with my counterparts in the devolved Administrations to persuade them of the merits of the Government’s approach. I do not believe that the amendment is preferable to the Government’s approach, so I ask the hon. Member to withdraw it.
Bill Esterson
We have had an interesting series of exchanges. The hon. Member for Aberdeen South made the point well that we see this approach in Bill after Bill; indeed, we see it in clause after clause in Bill after Bill. We have already seen it in more than one clause today.
We have hit the nail on the head with the amendment, because we are calling for consistency. In the absence of a formally agreed commitment to wider consultation, if it was good enough 13 months ago to provide for a one-month period of consultation, with the Secretary of State having the final say after listening to representations or if representations were not forthcoming, why is it not good enough today? On that basis, I will press the amendment to a vote.
Question put, That the amendment be made.
Paul Scully
Clause 14 protects regulators’ autonomy with regard to their ability to prevent individuals who are unfit to practise from doing so. The autonomy of regulators in determining those who can practise professions and maintain standards is paramount. The regulators are the experts and they are best placed to determine who should practise in their professions.
The Government added this clause during proceedings on the Bill in the House of Lords, recognising that enshrining this commitment provided important legislative reassurance and support to regulators to deliver their core function. Peers and regulators welcomed the addition of the clause and were content that it protects the regulator’s autonomy. It places two conditions on regulations made under clauses 1, 3 and 4, which are the clauses most relevant to regulator autonomy.
The first condition is that the regulations cannot remove the regulator’s ability to prevent unfit individuals from practising a profession, and the second is that the regulations cannot have a material adverse effect on the knowledge, skills or experience of individuals practising a regulated profession. The effect is that the regulations cannot lower the required standards for an individual to practise a profession in the UK or part of the UK.
Taken together, these two conditions make sure that regulators will retain the final say over who practises in their profession and that the standards of individuals practising professions are maintained.
Question put and agreed to.
Clause 14 accordingly ordered to stand part of the Bill.
Clause 15
Consultation with regulators
Question proposed, That the clause stand part of the Bill.
Paul Scully
Clause 15 places a duty on appropriate national authorities to consult regulators who are likely to be affected by, or are otherwise considered appropriate to consult on, regulations made under clauses 1, 3 and 4 of the Bill. They must do so before such regulations are made. The Government added the clause during proceedings on the Bill in the House of Lords, recognising that enshrining this commitment provided important legislative reassurance and support to regulators to deliver their core function. Peers and regulators welcomed the addition of this clause.
Question put and agreed to.
Clause 15 accordingly ordered to stand part of the Bill.
Clause 16
Authority by whom regulations may be made
Question proposed, That the clause stand part of the Bill.
Paul Scully
Clause 16 sets out who is an appropriate national authority for the purpose of this Bill. Appropriate national authorities may make regulations where specified for the purposes set out under this clause. In addition to the Secretary of State, the Lord Chancellor is also considered an appropriate national authority and may make regulations under the Bill.
Question put and agreed to.
Clause 16 accordingly ordered to stand part of the Bill.
Clause 17
Parliamentary procedure
Question proposed, That the clause stand part of the Bill.
Paul Scully
Clause 17 sets out the parliamentary procedure for how regulations under the Bill should be made, including the situations in which legislation must be subject to the affirmative resolution procedure or may be subject to the negative resolution procedure. The clause also sets out how this works for all nations of the UK.
Question put and agreed to.
Clause 17 accordingly ordered to stand part of the Bill.
Clause 18
Interpretation
Question proposed, That the clause stand part of the Bill.
Paul Scully
Clause 18 provides interpretation of the terms used in the Bill. It includes clear definition so that there is no ambiguity over the meaning of the Bill’s provisions and how they apply.
Question put and agreed to.
Clause 18 accordingly ordered to stand part of the Bill.
Clause 19
Extent
Question proposed, That the clause stand part of the Bill.
Paul Scully
Clause 19 details the territorial extent of the Bill. The regulation of some professions is devolved. The Bill respects the devolution settlement and the fact that professions have different regulators in different parts of the UK. It covers regulated professions and regulators across the United Kingdom and extends to England, Wales, Scotland and Northern Ireland.
Question put and agreed to.
Clause 19 accordingly ordered to stand part of the Bill.
Clause 20
Commencement
Question proposed, That the clause stand part of the Bill.
Paul Scully
Clause 20 sets out procedural detail for the commencement of the provisions of the Bill. It stipulates the timings at which, and conditions under which, the various sections and sub-sections will come into force.
Question put and agreed to.
Clause 20 accordingly ordered to stand part of the Bill.
Clause 21
Short title
Amendment proposed: 1, in clause 21, page 15, line 11, leave out subsection (2)—(Paul Scully.)
This amendment removes the privilege amendment inserted by the Lords.
Bill Esterson
This poses the question of why the Government are proposing this amendment. Perhaps the Minister will explain why they are removing the provision which says that nothing in the Act will impose any charges on the public or on public funds. Does he expect that the Act will, indeed, incur costs to the public purse, perhaps to the regulators or those professionals working in the regulated sector? Will he provide assurances around what costs they now expect?
Paul Scully
The House of Lords maintains the approach that when a Bill is introduced in the Lords, it does not involve taxation or public spending, deal with non-domestic rates or council tax, or otherwise infringe financial privileges. The House of Lords does that via the privilege amendment. There is no equivalent for Bills that start in the Commons. We believe that it is appropriate—this is a technical move—to remove that privilege.
Amendment 1 agreed to.
Question proposed, That the clause, as amended, stand part of the Bill.
Paul Scully
Clause 21 gives the short title of the Bill for references to it in future papers or bodies of work. The short title is the Professional Qualifications Act 2021.
Question put and agreed to.
Clause 21, as amended, accordingly ordered to stand part of the Bill.
New Clause 2
Skills shortages reporting
“In relation to any regulated profession falling under the provisions of this Act, the Secretary of State must lay before Parliament an annual report detailing any workforce shortages, including what measures are being taken to resolve the shortages.”—(Bill Esterson.)
This new clause obliges the Secretary of State to produce an annual report setting out which sectors are facing skills shortages and what measures are being taken to resolve the shortages.
Brought up, and read the First time.
Bill Esterson
We have serious shortages of skilled workers, so the new clause obliges the Secretary of State to produce an annual report setting out which sectors are facing skills shortages and what measures are being taken to resolve those shortages.
As the Royal College of Nursing notes, we went into this pandemic with 50,000 nursing vacancies in the UK, and we are likely to have lost far more nurses throughout. The British Medical Association has estimated a shortage of around 49,000 doctors and doctors in training across primary and secondary care. The Royal College of Veterinary Surgeons has identified a shortfall of nearly 1,000 vets. Meanwhile, professional services firms in the UK have warned of a growing shortage of white-collar workers as companies fight for top talent amid a global economic recovery from the coronavirus crisis.
There are shortages across the economy. HGV drivers have been given an enormous amount of attention because of their impact on supply chains—including, at times, with fuel suppliers, but more commonly with food. We have all noticed that our favourite food has sometimes not been available on supermarket shelves. I talked to the manager of a store in my constituency on Friday. He said that that is week to week, and it is down to shortages, including of drivers.
The role of driving examiners is covered in this Bill; there is an interdependency between what is in the Bill and what is not. It is essential that the Bill gets that right so that our country has the skills it needs, today and in the future. By requiring the Secretary of State to produce an annual report setting out the areas in which we face skills shortages, we will be able to see some of the more obvious shortages in advance, giving the Government some chance of mitigating the problems before they become a crisis.
Paul Scully
I thank the hon. Member for his new clause, which introduces a reporting requirement to set out the professions facing workforce shortages and the measures that are being taken to resolve those shortages. I would like to make it clear from the outset—much as Lord Grimstone, my colleague in the other place, has done—that the Bill is not solely about addressing UK workforce shortages, but about ensuing that professional qualification recognition works for the UK.
Clause 1 allows appropriate national authorities to act where there is unmet demand, ensuring that regulations have the processes in place to assess overseas professionals who might help to alleviate that. That is not a replacement for the Government’s skills strategy. In this instance, the Bill is one part of a means to meet unmet demand or shortages. The Bill does not undercut, nor will it replace, the work that the Government are undertaking to support home-grown skills.
The Government already publish information on workforce shortages. For example, the shortage occupation list is a publicly available document comprising professions and occupations that experts at the Migration Advisory Committee deem to be in shortage. Given that workforce shortages are already documented in such a way, with expert input, and with the next shortage occupation list review taking place this year, there is no need for the Secretary of State to also publish a report on professions in shortage.
I turn to the request to report on the measures that are being taken to address workforce shortages. The Government have set out an ambitious reform programme in the “Skills for jobs” White Paper, focusing on giving people the skills that they need in a way that suits them. For example, the lifetime skills guarantee is already being delivered through a wide range of activities, from short, flexible, employer-led bootcamps to the skills accelerator, and by enabling providers to have more control over budgets and funding levels. As Members can see, the Government are already undertaking a great deal of work on both identifying workforce and skills shortages and developing approaches to tackling them. A requirement in the Bill for the Secretary of State to publish a report on workforce shortages would be unnecessary, and it would result in the duplication of work that was being undertaken elsewhere in the Government. I therefore ask that the amendment be withdrawn.
Bill Esterson
The Minister referred to skills development. When I meet businesses around the country, as he does, that is often the first item on the agenda. There is great concern about the shortage of technical skills, some of which are covered by the Bill and some not. Parity of esteem within that wider skills agenda is at the heart of what businesses are calling for. Any measure that can be taken to improve understanding, address shortages and find a long-term approach to developing skills—by training people in this country in technical and vocational areas, and by valuing technical learning and the development of skills as much as we do academia—is key.
Where we have shortages, it makes sense to have a systematic approach to addressing them. I read out the figures earlier for what things were like before the pandemic. They have become worse as a result of the pandemic, and they have been exacerbated by the gaping holes that the Government have left in the trade and co-operation agreement with the EU. The Government have belatedly acknowledged some of that, including by adding care workers to the shortage occupation list, which I asked about in a written question a few months ago. There is clear recognition of the need to address these skills shortages. The amendment would put in place a system for the professions covered by the Bill to put that the Government in the strongest possible place to identify and address the shortages. It seems to me that that would be a valuable tool, rather than the Government’s more fragmented approach—the Minister explained it very well—which is one reason why we have shortages. We will press the amendment to a vote.
Question put, That the clause be read a Second time.
Bill Esterson
I beg to move, That the clause be read a Second time.
For workers whose professional qualifications are already recognised in the United Kingdom, this new clause provides additional certainty that the legislation will not affect them negatively. There is a clear need to give those whose qualifications are already recognised here that certainty and confidence. In many cases, those professionals already live in our communities and have decided to call the UK their home. They are people on whom we all so often rely, particularly in our vital public services.
The explanatory notes to the Bill state that
“nothing in the Bill prevents, qualifies or otherwise impacts the ability of those with existing recognised qualifications from continuing their areas of practice in the UK”.
If it is in the explanatory notes, why is it not in the Bill? That is a fundamental gap in the Government’s approach, because without this simple amendment, how can the Minister provide the reassurance that these workers, their employers, their families and their communities so desperately need? Enshrining the Government’s own promise from their explanatory notes in the Bill would achieve what those people, and those who rely on them, are looking for.
Paul Scully
I thank the hon. Gentleman for the amendment. It has been previously considered in the House of Lords, both in Committee and on Report; we turn to it once again. I can confirm that professionals who have already had their qualifications recognised in the UK will be able to continue to rely on those recognition decisions. The revocation of the EU-derived system for recognising qualifications will not impact on the ability of professionals with existing recognition decisions to continue practising in the UK. Nothing in the Bill, nor the regulations anticipated under it, will interfere with or reverse such decisions. Professionals with recognition decisions will need to meet any ongoing practice requirements, but that is for the relevant regulator to determine, so the Bill does not make commitments in those areas.
Regulations commenced in clause 5 will include saving and transitional periods, to ensure that professionals’ existing recognition decisions continue to be valid, and applications made before revocation comes into effect through the commencement regulations will continue to be assessed under the relevant EU-derived recognition laws. It is possible to make similar provisions in regulations under clause 6, so we believe that this matter is best dealt with through the saving provisions in the secondary legislation. That is consistent with the approach that the UK Government and devolved Administrations took when amending EU legislation on recognition of professional qualifications in order to prepare for leaving the EU in the first place. As I have assured the Committee, the Bill also respects the protections in place for existing recognition decisions that are born from the UK’s international agreements. I therefore ask that the amendment be withdrawn.
Bill Esterson
There was an interesting admission from the Minister that he thought that secondary legislation could achieve what we are aiming for with the amendment. My concern is that a significant part of our professional workforce have a recognition of their qualifications in the UK. Hearing his words, I doubt that they would feel particularly confident or certain of their future, because although he may have no intention to use the lack of confirmation in the Bill, one of his successors may take a rather different view. That is why professional workers and their employers want confidence. We all know the importance of confidence and certainty for our economy, let alone for the individuals who are subject to the amendment and on whom everybody relies, which is why we will press the amendment to a vote.
Question put, That the clause be read a Second time.
Bill Esterson
I beg to move, That the clause be read a Second Time.
This new clause requires the Secretary of State to publish and maintain an up-to-date list of regulators on the Government’s website. The Financial Times reported the way in which the Government introduced this Bill as the
“chaotic handling of a post-Brexit regime for recognising the qualifications of foreign professionals”.
Remarkably, the Government admitted introducing the Bill to Parliament without knowing which professions were in scope of the legislation. Labour argued in the Lords that we had to know who and what was in the scope of the Bill. It stands to reason that the relevant regulators and professions need to be aware of these changes. Having initially listed 160 professions and 50 regulators affected by the legislation, the Government twice published a revised list, ultimately increasing the numbers to 205 professions and 80 regulators.
Chi Onwurah
As I said earlier, I am a chartered engineer with the Institution of Engineering and Technology. In order to find out whether my profession was affected by the Bill, I had to write to the Institution of Engineering and Technology. Does my hon. Friend think that is acceptable? Does it not make sense that professionals, wherever they are in the world at the time, should be able to easily find out whether their body is affected by this legislation?
Bill Esterson
I am grateful to my hon. Friend, who has explained very neatly with that example why the new clause is important. Due to the increased number of regulators in scope of the legislation, the Government also had to publish an updated impact assessment, with the total cost to regulators increasing by nearly £2 million. That is hardly the way to inspire confidence that the legislation will help businesses or skilled workers.
The Government were criticised from all sides in the Lords, including by those on their own Back Benches. Baroness Noakes said that
“it has all the hallmarks of being a Bill conceived and executed by officials with little or no ministerial policy direction or oversight...we learn that the Bill was drafted with a far-from-perfect understanding of the territory that it purports to cover. This is no way to legislate.”—[Official Report, House of Lords, 22 June 2021; Vol. 813, c. 149.]
My Labour colleague Baroness Hayter said of the list:
“I understand that it has taken BEIS a little time to get it right. I think we have had two updates of the list, with some regulators added and some gone. I see that the pig farmers have gone from the latest list and the aircraft engineers have also disappeared, as have analytical chemists. However, we have in their place chicken farmers, schoolteachers and waste managers—so it seems that the Government can turn flying pigs into chickens.”—[Official Report, House of Lords, 9 November 2021; Vol. 815, c. 1696.]
I thought that was a good line then, and I still think it is a good line today—and so do the Government!
How can regulators and regulated professionals know whether they have equivalence when the Ministers who are responsible for the Bill do not even know themselves? At Committee stage in the Lords, my Labour colleagues Baroness Hayter and Baroness Blake tabled amendments to encourage Ministers to remove any suggestion of doubt as to which professions were covered by the Bill by placing a list of such professions and their regulators in the Bill and giving Ministers the authority to amend that list as necessary. The Opposition realise that Ministers have subsequently published a full list on the gov.uk website. However, there is no duty on the Minister to regularly maintain and update that site. The new clause places an obligation on the Secretary of State and his Department to maintain the website and, as necessary, update it, giving professions and professionals the certainty they need.
Paul Scully
As I rise for the final time, I thank you for your chairmanship, Mr Pritchard. I thank the hon. Member for the new clause. The Government recognise the need for clarity on who meets the definitions in the Bill. It is for that reason that officials carried out a comprehensive exercise last year across Government, as well as with the devolved Administrations and with the regulators, to determine who the Bill applies to. That extensive engagement culminated in the list of regulators and professions affected by the Bill being published on gov.uk on 14 October 2021—officials are now maintaining that list. We spent a lot of time over that period saying that we were going to publish the list. We have had a series of webinars to which all regulators were invited, and we continue discussions.
The amendment seeks to commit the Government to maintain and publish a list of regulators. Although I understand the desire for transparency, I have reservations about enshrining a list in the Bill. A list of regulators alone does not provide clarity on which regulated professions are affected by the Bill. It might be that organisations that meet the definition of regulator for one or more regulated professions also have responsibilities and functions for professions that do not meet the definition. Listing the regulators would leave it open to interpretation whether it is all or just some of those professions that are affected. If it was some, it would be unclear which were affected.
For example, the Institute of Chartered Accountants in England and Wales regulates statutory audits and is a profession to which the Bill applies. It also regulates chartered accountants, a profession to which the Bill does not apply. The proposed amendment would not provide clarity in regard to which of the professions is a regulated profession in the Bill. As a result, publishing the list of regulators in such a way risks confusion. That is why the Government have committed instead to maintaining a list of regulated professions and regulators to which they consider the Bill applies, and to keep that list readily accessible and in the public domain. I hope hon. Members are assured that the Government are already delivering that action. It is on the record that the list of regulators and regulated professions will be maintained, so there is no need to further state it in the Bill. I hope the new clause can be withdrawn.
Finally, as well as thanking you, Mr Pritchard, I thank the officials, the Clerks, the Doorkeepers and the Whips, and indeed Opposition Members for the way that they have engaged in the process.
Bill Esterson
I am grateful to the Minister; I shall accept his assurances. And I thank you, Mr Pritchard. It is a shame that we will not get to see the other Chair in action; we have denied Ms Bardell her moment in the Chair.
I thank the officials, the Doorkeepers, and the Government Members who sat there quietly and dutifully maintaining their Trappist vows—with the exception of the hon. Member for Calder Valley, who had to be woken up earlier in the proceedings. I thank the Minister and Opposition Members for attending. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
Question proposed, That the Chair do report the Bill, as amended, to the House.
The Chair
The final Question I must put is that I do report the Bill, as amended, to the House. I thank all colleagues for turning up so early in the morning. I thank our extraordinary Clerks, Hansard, the Doorkeepers, and our hidden broadcasting team who make it all work for us and the public, who I am sure are tuning in to this rather than to GB News.
Question put and agreed to.
Bill, as amended, accordingly to be reported.
Professional Qualifications Bill [Lords]
Monday 14th March 2022
(2 years, 9 months ago)
Commons ChamberRead Full debate Professional Qualifications Act 2022 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 14 March 2022 - (14 Mar 2022)
19:07 - The House divided: - Ayes: 210 / Noes: 296 - Question accordingly negatived.
19:26 - The House divided: - Ayes: 295 / Noes: 39 - Question accordingly agreed to.
The Parliamentary Under-Secretary of State for Business, Energy and Industrial Strategy (Paul Scully)
I beg to move, That the clause be read a Second time.
Madam Deputy Speaker (Dame Eleanor Laing)
With this it will be convenient to discuss the following:
New clause 2—Authority by whom regulations may be made (No. 2)—
“(1) In this Act ‘appropriate national authority’ means as follows.
(2) Where the regulations—
(a) contain provision relating to England only,
(b) apply to the United Kingdom as a whole, or
(c) contain provision which is not within the legislative competence of Senedd Cymru, the Scottish Parliament or the Northern Ireland Assembly,
the Secretary of State or the Lord Chancellor is the appropriate national authority.
(3) The Welsh Ministers are the appropriate national authority in relation to regulations under this Act which contain only provision which would be within the legislative competence of Senedd Cymru if contained in an Act of the Senedd (ignoring any requirement for the consent of a Minister of the Crown).
(4) The Scottish Ministers are the appropriate national authority in relation to regulations under this Act which contain only provision which would be within the legislative competence of the Scottish Parliament if contained in an Act of that Parliament.
(5) A Northern Ireland department is the appropriate national authority in relation to regulations under this Act which contain only provision which, if contained in an Act of the Northern Ireland Assembly—
(a) would be within the legislative competence of the Assembly, and
(b) would not require the consent of the Secretary of State.
(6) The consent of a Minister of the Crown is required before any provision is made by the Welsh Ministers in regulations under this Act so far as that provision, if contained in an Act of Senedd Cymru, would require the consent of a Minister of the Crown.
(7) In this section ‘Minister of the Crown’ has the same meaning as in the Ministers of the Crown Act 1975.”
This new clause is intended to replace the current Clause 16. It would mean that the Secretary of State would only make regulations under this Act if they relate to England or the whole of the UK, or are outside the legislative competencies of the Devolved Administrations.
New clause 3—List of regulators and regulated professions—
“(1) The Secretary of State must publish a list of all regulators of regulated professions and the associated professions.
(2) The list must be updated on a regular basis.”
New clause 4—Guidance and assistance concerning mutual recognition—
“Upon the request of a regulator, the Secretary of State must provide guidance and all reasonable assistance on how to make the most of the provisions in the EU-UK Trade and Co-operation Agreement.”
New clause 5—Consent of the devolved authorities—
“(1) Before making regulations under this Act, the Secretary of State or the Lord Chancellor must obtain the consent of—
(a) the Senedd, to the extent that the regulations contain provision which could also be made by the Welsh Ministers by virtue of section 16(2) (ignoring any requirement for the consent of a Minister of the Crown under section 16(5));
(b) the Scottish Parliament, to the extent that the regulations contain provision which could also be made by the Scottish Ministers by virtue of section 16(3);
(c) the Northern Ireland executive, to the extent that the regulations contain provision which could also be made by a Northern Ireland department by virtue of section 16(4).”
Amendment 2, in clause 7, page 5, line 16, at end insert—
“(1A) Before making the arrangements, the Secretary of State must consult the devolved authorities on the functions and operations of the assistance centre.”
This amendment would require the Secretary of State to undertake consultation with the Devolved Authorities on the functions and operations of the Assistance Centre before it comes into being.
Amendment 3, page 5, line 16, at end insert—
“(1A) Before making the arrangements, the Secretary of State must ensure there are representatives from each of the devolved nations on the board of the assistance centre.”
This amendment would require the Secretary of State to ensure there are representatives for each of the devolved nations on the board of the Assistance Centre.
Amendment 4, page 11, line 28, leave out clause 16.
Government amendment 1.
Paul Scully
I am today proposing two amendments in relation to the devolved Administrations. New clause 1 would place a duty on the Secretary of State or Lord Chancellor to consult the devolved Administrations before making regulations under the Bill that contain provisions that could be made under the Bill by the devolved authorities themselves. The new clause would also require the Government to publish a report on the consultation. Amendment 1 seeks to amend the Government of Wales Act 2006 so that a Minister of the Crown’s consent is not needed for Senedd Cymru to remove the Secretary of State’s and the Lord Chancellor’s ability to make regulations under the Bill that are within the Senedd’s legislative competence.
I know that hon. Members across the House have shown strong interest in the issue of concurrent powers and devolved competence. To underline the Government’s commitment to a collaborative approach on this issue, I am introducing into the Bill, through the new clause, a new duty to consult devolved Administrations. The duty includes a requirement to publish a report in advance of any regulations being made by the UK Government that would be within devolved legislative competence. That report should set out the consultation process, and whether and how the representations made by the devolved Administrations during the consultation have been taken into account.
My officials and I have engaged extensively with the devolved Administrations during the passage of the Bill and, although we strained every sinew to reach agreement on securing legislative consent, it is a great regret that, unfortunately, we have exhausted all available avenues. Lord Grimstone and I have held eight meetings with our devolved Administrations’ ministerial counterparts. Baroness Bloomfield and Lord Grimstone have held nine industry roundtables, including two specifically for devolved regulators. There have also been weekly official-level meetings during the Bill’s passage and numerous exchanges of letters.
The amendments were originally offered to the devolved Administrations in December 2021, in exchange for support for legislative consent motions from their respective legislatures, but that offer was rejected. But the UK Government are committed to delivering effective policies that work for the whole of the UK, so, to underline that commitment, I am now introducing those amendments without any conditions attached. I strongly believe that, if both Government amendments are accepted, the Bill represents the best outcome for both the UK Government and the devolved Administrations, without impinging on the UK’s ability to act where necessary.
The regulation of professions often falls within devolved legislative competence. For that reason, the Bill gives powers to both UK Government Ministers and devolved Administration Ministers. Some of the powers may be exercised concurrently to allow UK Government Ministers to make UK-wide regulations where appropriate. The most likely use of concurrent powers would be to implement international agreements on professional qualifications that are negotiated on a UK-wide basis. It is vital that the UK Government are able to implement such agreements across the UK in a timely and consistent manner, as failure to do so could jeopardise the UK Government’s credibility and ability to secure ambitious provisions to support UK services exports with global trade partners.
Amendment 1 would allow for an Act of the Senedd to remove UK Ministers’ ability to use powers in the Bill to make regulations that would be within Welsh devolved legislative competence, without the need to first obtain the consent of a Minister of the Crown. The Welsh Government would still be required to consult the UK Government on the removal of powers. That was a key ask from the Welsh Government. It is in line with similar approaches taken by the Government on the Environment Act 2021, the Fisheries Act 2020 and the Agriculture Act 2020.
In introducing those amendments, I hope that Members can see the UK Government’s determination to work collaboratively and transparently with all devolved Administrations and devolved regulators on the provisions of the Bill and on wider regulated professions policy.
Mr Deputy Speaker (Mr Nigel Evans)
Does the shadow Minister want to come in straightaway or shall I go to somebody else?
Ben Lake (Ceredigion) (PC)
I do not intend to detain the House for long, but it is a pleasure to rise to speak in support of Plaid Cymru’s new clause 5, which would require the Secretary of State or the Lord Chancellor to obtain the consent of the devolved Governments when acting in areas of devolved competence. Although I will not be seeking to divide the House on that, I hope that the new clause, alongside the repeated interventions of the devolved nations, will encourage the Government to reconsider their approach.
In its current form, the Bill represents an example of the Government legislating in devolved matters without having first secured the consent of Wales’s Parliament or, indeed, consent from any of the devolved nations. It betrays a blatant disregard for the constitutional framework of the UK, and further obscures the regulatory regime for workers, businesses and professional qualification providers.
Hon. Members should not mistake these concerns as mere trivial matters; they speak to the growing chasm of distrust between the Governments of the British Isles. Indeed, just last week, the Welsh Labour Education Minister accused the UK Government of acting in a manner that breaches the Sewel convention. Let us consider, for a moment, the implications of that statement: a Government Minister from one nation is accusing the Government of another of tearing up the constitutional convention that has been so instrumental in ensuring good governance and positive intergovernmental collaboration across our isles. That is what this Government and this Prime Minister are doing to the UK and that is why this Bill needs to be amended to respect the devolution settlement.
As I said, I will not be pushing our new clause to a vote tonight, but we will be supporting amendment 3 if it is put to a Division. I hope that Opposition Members as well as Government Members will acknowledge the seriousness of these constitutional concerns and accept the amendment as a first step towards government by consent, rather than imposition.
Sarah Olney (Richmond Park) (LD)
I rise to speak to amendment 3, which stands in the name of my hon. Friend the Member for North East Fife (Wendy Chamberlain). I am sorry to say that she is ill with covid, so I am here in her place.
The Bill allows UK Government Ministers to legislate on areas that would normally be under the authority of devolved Administrations. As it stands, there is no protection in place to allow the Scottish or Welsh Governments to revoke or amend these measures if needed. The entire reason we have devolved powers is to allow Ministers to make bespoke decisions that better reflect the needs of the local people and local economies.
The Minister’s statement that the purpose of the Bill is to ensure qualified professionals within the UK can work anywhere within the four nations clearly undermines the devolution settlement. We saw that with the United Kingdom Internal Market Act 2020 and we see it again here. Without the appropriate safeguards, the Bill further erodes both the powers we have in place in Scotland and in Wales, and the trust between our Governments. On many issues, the UK has subsumed EU law into UK law with a view to gradual divergence over time. We are concerned that this Bill takes a clean slate approach and may put the UK at a disadvantage when trying to fill vacancies at a time of acute shortages in some sectors. The Bill provides inadequate detail regarding its full intentions and scope, leaving provision open to interpretation. The Government must commit to ensuring the highest standards of professional qualifications are maintained and are not bartered away as part of any trade agreement.
Clause 7 would mandate the Secretary of State to set up an assistance centre for people looking to enter a qualified profession in the UK or people with UK qualifications looking to practise overseas. Regulators would be required to provide information to the assistance centre to allow it to carry out its functions. We welcome the provisions relating to a centre to provide advice on and assistance with entry requirements for those seeking to practise a profession in the UK, or those with UK qualifications seeking to practise overseas. The obligation to make arrangements for the assistance centre lies with the Secretary of State. Amendment 3, which we will be pressing to a vote, would require the Secretary of State to ensure that there are representatives for each of the devolved nations on the centre’s board.
The Law Society of Scotland has urged the Government to seek the consent of the devolved Administrations when setting up the assistance centre. We therefore think it imperative—this reflects the acknowledgement of the role of the devolved Administrations in earlier clauses in the Bill—for them to be consulted on the arrangements for its creation, and to be represented on its board.
Owen Thompson (Midlothian) (SNP)
Thank you for calling me, Mr Deputy Speaker—rather more swiftly than I expected.
It seems as though, week in week out, Members on this side of the Chamber in particular are shouting into the wind. Whatever legislation is put before us, we suggest amendments in good faith, only to have to rinse and repeat our previous arguments when the legislation returns to us with none of our proposed changes taken into account. We are therefore used to this Government doing hee-haw, but in this case they have actually made the Bill worse than it was before, disrespecting the devolved Governments and undermining the constitution over something that should not have been controversial.
The Scottish National party fully welcomes the principles behind the Bill, which will facilitate cross-border recognition and regulation of professional qualifications. Building an integrated system of transfer of professionals from abroad is particularly significant to smaller countries such as Scotland which seek to attract the skills and expertise of their neighbours. For example, the world-leading Scottish food and drink industry, and indeed that of the whole UK, has traditionally relied heavily on the services of vets qualified in the EU. Those vets were then able to bring their skills to Scotland under the terms of the EU’s rules on mutual recognition of professional qualifications. We are all for the idea of recognising consistency in qualifications; it is not controversial. However, the Government have managed to make it controversial: in fact, they have managed to create a constitutional stooshie out of thin air.
When I last spoke on the Bill, I raised concerns about its impact on devolution. The whole Bill obviously applies to Scotland, although certain professions and qualifications are reserved to this place.
Sammy Wilson (East Antrim) (DUP)
The hon. Member is right to say that it is correct for professional qualifications to be transferable across the United Kingdom, but in the past the Scottish Government would have had no say in any of this because it all fell under the European Union. There was no concern about devolution rights in that case. Why the sudden concern about devolution rights now that it rests with this Parliament?
Owen Thompson
The right hon. Member tempts me, but, as I was about to explain, we have a number of qualification areas in which these are devolved matters and not reserved to this place. Under the United Kingdom Internal Market Act 2020, the UK Government are now overruling devolved competences that were formerly in place.
The Bill does not make separate provision for devolved and reserved professions, so it applies to all regulated professions active in Scotland, whether reserved or devolved. It follows from this that, for those aspects of the Bill that affect the devolved nations’ areas of competence, special provisions should have been made to require devolved consent, which was touched on by my hon. Friend the Member for Ceredigion (Ben Lake). It was the case then and it is still the case now.
Clause 16 ensures that any power conferred on the appropriate national authority in devolved areas can be exercised by UK Ministers. There is no requirement for UK Ministers to seek the Scottish Government’s consent when exercising such powers. A Secretary of State making regulations under those powers would therefore be subject to procedure in this place rather than the Scottish Parliament, or any of the devolved Parliaments. Here we have a Bill that alters the executive competence of Scottish Ministers by enabling the Secretary of State to act in devolved areas without having consent to do so. That is entirely unnecessary, and undermines the good faith agreement between the Scottish and UK Governments on the principles of the Bill.
I listened to the Minister, and I welcome the fact that so much engagement took place, but it is clear that, despite all that engagement, there was still a lack of any willingness to shift in any way to take account of the positions of the devolved Governments. That is why I suggested that the Government take up the Scottish Government’s proposal to introduce an amendment to clause 16 to require devolved consent before UK Ministers dabbled in devolved areas. Not only have the Government rejected that perfectly reasonable proposal; they have fabricated a convenient reason to do so, arguing that the devolved Governments
“might undermine the implementation of provisions in international agreements on recognition of professional qualifications.”
Sammy Wilson
I am not quite clear about the hon. Member’s logic. If he is saying that the Scottish Government would feel obliged to abide by any international agreements, there would not be any leeway for them to act independently anyway. What point is he trying to make? What independence is he seeking for the Scottish Government, or the Northern Ireland Assembly, or the Welsh Government?
Owen Thompson
I think the key word in that intervention is “agreements”. The Scottish Government, or within the European set-up the UK Government, would agree these frameworks with Europe. In this situation, the Scottish Government, and the Governments of Northern Ireland and Wales, have no say in what is imposed by this Westminster Government.
The truth is that there is nothing exceptional or even particularly noteworthy about a requirement for UK Ministers to seek such consent. It has been requested by the relevant Committees of the Scottish Parliament, confirmed by a vote of the Parliament as a whole, and raised multiple times in this place. It is not worth overriding the Sewel convention—something extremely serious which has happened on only four occasions, all of them directly related to major EU exit legislation. That makes one wonder if the Government are content to undermine the Sewel convention to the point at which it is no longer even a convention. Seeking consent would constitute little more than recognising devolved responsibilities and respecting the UK constitution, so the Government have some serious explaining to do to the Scottish Parliament if they go ahead with overriding Sewel yet again.
This farce has brought the Scottish Government to a point at which they simply could not recommend that the Scottish Parliament give the Bill its consent, and that should not be taken lightly. That said, I am heartened that we have a new clause before us—tabled by the hon. Member for Ceredigion, albeit not to be pressed to a Division—that could deal with the issue. It changes the consultation requirement to a consent requirement, and removes the procedure by which the Government could ignore devolved views and simply report to the House on why they did so. I sincerely hope that the Government will look at the new clause seriously. This is not political point-scoring; it is about protecting the constitution as it currently exists. That is evidenced by the fact that the Law Society of Scotland supports the argument that I am advancing today. The Government have assured us time and again that they have no intention of overriding devolution, so why not put it in writing instead of relying on a pinkie promise?
The Bill falls into a pattern of power grabs and disdain for consent, from Brexit to the United Kingdom Internal Market Act, and little wonder, because it comes from a Government led by a man who called devolution a disaster. This disdainful attitude to UK-Scottish relations damages the UK Government’s claims that they welcome early engagement on the Bill. It also severely undermines their commitments to recently agreed intergovernmental arrangements. I hope that the Minister will reflect seriously on the unnecessary damage that the Bill will do to devolution in its current form.
Stewart Hosie (Dundee East) (SNP)
On the point about the damage that the Bill could do, is there not a point of principle at stake? This Government appear to be putting administrative utility ahead of devolved democratic considerations enshrined in various bits of Scotland Act legislation that should not be overridden lightly, particularly on matters such as professional qualifications.
Owen Thompson
My right hon. Friend makes an excellent point, and I absolutely agree. Of all the things to pick an argument over, why create this situation over something on which we broadly agree and are actually on the same page? It is not too late. My right hon. Friend is not pressing his amendment to a vote, but the Government could still accept new clause 5 so that we could fix this situation and deal with it. I sincerely hope that the Minister will prove my concerns wrong.
Bill Esterson
I will speak to new clauses 3 and 4 tabled in my name, then briefly come back to the Government amendment and to amendment 3. During the progress of this Bill through the Lords, it became clear that it had been thrown together in a completely unsatisfactory way. The Financial Times described the way in which the Government introduced it as a
“chaotic handling of a post-Brexit regime for recognising the qualifications of foreign professionals”.
Remarkably, the Government admitted introducing the Bill to Parliament without knowing which professions were in scope. We argued in the Lords that we had to know who and what was in the scope of the Bill. It stands to reason that the relevant regulators and professions need to be aware of these changes. Having initially listed 160 professions and 50 regulators that would be affected by the legislation, the Government twice published a revised list, ultimately increasing the numbers to 205 professions and 80 regulators. Due to do the increased number of regulators in scope, the Government also had to publish an updated impact assessment, with the total cost to regulators increasing by almost £2 million. That is hardly the way to inspire confidence that the legislation will help businesses or skilled workers.
The Government were criticised from all sides in the Lords, including by those on their own Benches. Baroness Noakes said that the legislation had
“all the hallmarks of being a Bill conceived and executed by officials with little or no ministerial policy direction or oversight…we learn that the Bill was drafted with a far-from-perfect understanding of the territory that it purports to cover. This is no way to legislate.”—[Official Report, House of Lords, 22 June 2021; Vol. 813, c. 149.]
How can regulators and regulated professionals know where they stand when the Ministers responsible for the Bill do not even know themselves? When I raised this in Committee, the Minister responded that he had
“reservations about enshrining a list in the Bill.”
This was because of concerns about not knowing which professions were ultimately covered. He went on to say that the Government had committed to
“maintaining a list of regulated professions and regulators to which they consider the Bill applies, and to keep that list readily accessible and in the public domain.”––[Official Report, Professional Qualifications Public Bill Committee, 18 January 2022; c. 30.]
It is of course encouraging that the Minister has made such a commitment to maintaining a list. I am not asking Ministers to place a list of regulators on the face of the Bill, but for the certainty that regulators and professionals need to be able to operate with confidence, it is important that they now know whether they are within the scope or not, and that means maintaining the list that Ministers have agreed to keep in the public domain. Web pages can be deleted, links can be lost, and without an amendment requiring the maintenance of a list, there will be no legal duty on Ministers to do so. Indeed, if they decided on the day following the granting of Royal Assent to this Bill that they no longer wanted to publish the list on the gov.uk website, they could remove it. This amendment, which I will not be pressing to a vote, is a reminder that the Secretary of State and the Minister need to maintain the list in the public domain, as promised, for the benefit of the professions and professionals who need certainty. This should not be a controversial point, and I hope the Minister will confirm that that is indeed what will happen.
Turning to new clause 4, the Bill provides a framework to allow mutual recognition of professional qualifications between regulators and professional bodies in the UK and the equivalent organisations overseas. The provisions in clauses 3 and 4 will allow for the implementation of regulator-to-regulator mutual recognition agreements and of the recognition arrangements in new international trade agreements. As the Law Society tells us, the Bill will enable the mutual recognition agreement provisions in the UK-EU trade and co-operation agreement to be implemented. However, the Law Society also says that the provisions for mutual recognition agreements in the TCA are largely based on the EU-Canada comprehensive economic and trade agreement—CETA—but that in fact no mutual recognition agreements have been signed between the EU and Canada using the provisions in CETA in the three years since CETA came into force. The failure to use the provisions on which the Government are relying raises the concern that the provisions are not sufficient. To remind ourselves, this legislation, if applied effectively, might well help to address shortages in a multitude of professions, including the chronic shortage of nurses and vets.
In Committee, I asked the Minister how his Department would put in place the additional support, co-ordination and guidance needed to make the most of the provisions in the trade and co-operation agreement, especially if they are to form the benchmark for future free trade agreements. There is real concern that the model on which the provisions in the legislation are based will not deliver results. That is why I tabled new clause 4, which would oblige the Secretary of State to provide guidance to regulators on how to make the most of the provisions in the TCA.
The Minister has written to me since the Committee stage to say that BEIS has engaged with 20 regulators of professional bodies. It will be important to see that such engagement leads to the delivery of mutual recognition agreements using the template on which the Government are relying. The Minister referred in Committee to a limited pilot recognition arrangement programme. I would be grateful if he could explain how effective that pilot has been so far, and how he foresees its leading to the successful implementation of new regulations.
I shall turn now to what the Minister said about new clause 1. In Committee we tabled two amendments to address the concerns raised by the devolved Administrations. We asked for consistency from the Government in the way they approach this Bill. The consistency we asked for in one of the amendments involved a similar amendment to that included in the United Kingdom Internal Market Act 2020. I see from new clause 1, having read it a number of times, that it is consistent with what is in the internal market Act and I thank the Minister for listening to the concerns that we raised, even though the Government voted against our amendments in Committee.
The Minister has addressed the concerns about those matters on which the devolved Administrations can make recommendations. That is an improvement on the more “flexible” approach to consultation that he talked about in Committee. That informal approach would have left no formal consultation mechanism. We have heard reservations expressed by a number of hon. Members on that, and I trust that the Government will still seek consent, in the spirit of new clause 1, when applying the regulations that are relevant to the devolved Administrations.
Briefly, I can tell the hon. Member for Richmond Park (Sarah Olney) that we will be supporting amendment 3. Representation of the devolved Administrations on the board is an important principle, and something that we return to again and again in legislation. We believe that, in the interests of the devolution settlement, that is entirely appropriate.
Paul Scully
I thank the hon. Members who have taken part in this important debate. I will whip through each amendment in turn, starting with new clause 2.
I thank the hon. Member for North East Fife (Wendy Chamberlain) for tabling new clause 2, and I wish her well as she recovers from covid. I thank the hon. Member for Richmond Park (Sarah Olney) for speaking to the amendment. I remind the House that clause 16 sets out the definition of an appropriate national authority for the purposes of the Bill. It also sets out the concurrent powers for making regulations in areas of devolved competence.
These powers could be used by the Secretary of State or the Lord Chancellor if, for example, a profession falls within devolved competence but is regulated at UK level. I understand the strength of feeling about the concurrent powers in the Bill, but I have been clear that any regulation made by the UK Government that falls within devolved legislative competence will be limited in scope and will always be made in consultation with appropriate Ministers from the devolved Administrations. The Government listened carefully to the concerns raised in both Houses, undertook extensive engagement with the devolved Administrations and negotiated in good faith in relation to those concerns. I am grateful for the devolved Administrations’ constructive and well-spirited engagement.
Paul Scully
I beg to move, That the Bill be now read the Third time.
This Bill is an important piece of legislation that will change our approach to recognising professional qualifications in a way that works best for UK professions and supports our status as an independent trading nation.
It is disappointing that, despite the UK Government’s best efforts, the devolved Administrations have not felt able to recommend the granting of legislative consent to their respective legislatures. However, the UK Government remain committed to the devolution settlements, and I trust that the amendment made to require the Government to consult the devolved Administrations before they regulate in areas of devolved legislative competence underlines that commitment. The Government will continue to work closely with the devolved Administrations on this and future legislation.
It gives me great pleasure to thank everybody who has supported the Bill’s progress. I recognise the good work of Members from all parts of the House, as well as in the other place, who have engaged closely with the Bill, and the constructive way in which the Opposition have engaged with the Bill. I pay tribute to my private office, my officials and, in particular, the Bill team for their work over the past few months—I thank Matt Leech, Jamie Wasley, Jen Pattison, James Banfield, Monique Sidhu, Haddeka Taj, Jack Palmer, Nick French, Raegan Hiles, Tom Corker, Alpa Palmar, Hannah Marshall, Ben Clifford, Funmi Olasoju, Aneesa Ahmed and Tim Courtney.
I recognise the commendable work of parliamentary counsel, the House authorities, parliamentary staff, Clerks and Doorkeepers. I thank the members of the Public Bill Committee, under the excellent chairmanship of my right hon. Friend the Member for The Wrekin (Mark Pritchard), for their swift but in no way less thorough scrutiny of the Bill, which I commend to the House.
Bill Esterson
The Bill is much improved following its passage through the Lords and the scrutiny carried out in this House, not least by the addition of new clause 1, which was tabled by the Secretary of State on Report and addressed at least some of the concerns expressed about the devolution settlement.
It is vital that there is a robust regime so that our professionals can operate effectively here and overseas and we can to address shortages in many of the occupations covered by the legislation, including those of nurses and vets, as we have discussed many times throughout the Bill’s passage. I plead with the Government to give the guidance to the regulators, the professional bodies and the professionals, so that the system that the Bill sets up is effective in creating mutual recognition agreements that will make a difference to the professions, with the resultant impact on the economy. The legislation will affect 205 professions and 80 regulators. It is vital that there is certainty as to who is included and that the list of who is covered is up to date, to the benefit of professionals and the economy.
I associate myself with the Minister’s remarks about the role of all those involved in getting the Bill through both Houses. My thanks go to the Clerks and my office for their help in the construction and tabling of amendments and support in respect of my speaking notes. With that, I thank all who have taken part in our debates.
Owen Thompson
I will be brief. The comments that I made earlier still stand. We have not seen any movement at all to recognise the genuine concerns of the devolved Parliaments of these nations, without which we cannot support the Bill as it stands. Pinky promises and “We might not do this” or “We wouldn’t intend that to happen” simply are not enough. That completely undermines the devolution we have, and on that basis we will oppose the Bill.
Question put, That the Bill be now read the Third time.
Professional Qualifications Bill [HL]
Tuesday 5th April 2022
(2 years, 8 months ago)
Lords ChamberRead Full debate Professional Qualifications Act 2022 Read Hansard Text Amendment Paper: Consideration of Bill Amendments as at 14 March 2022 - (14 Mar 2022)
Baroness Bloomfield of Hinton Waldrist
That this House do agree with the Commons in their Amendments 1 to 3
“(7) In Schedule 7B to the Government of Wales Act 2006 (general restrictions on legislative competence of Senedd Cymru) in paragraph 11(6)(b)
(exceptions to restrictions relating to Ministers of the Crown)—
(a) omit the “or” at the end of paragraph (vi), and
(b) after paragraph (vii) insert “; or
(viii) the Professional Qualifications Act 2022”.”
“Consultation with devolved authorities
(1) Before making regulations under this Act, the Secretary of State or the Lord Chancellor must consult—
(a) the Welsh Ministers, to the extent that the regulations contain provision which could also be made by the Welsh Ministers by virtue of section 16(2) (ignoring any requirement for the consent of a Minister of the Crown under section 16(5));
(b) the Scottish Ministers, to the extent that the regulations contain provision which could also be made by the Scottish Ministers by virtue of section 16(3);
(c) a Northern Ireland department, to the extent that the regulations contain provision which could also be made by a Northern Ireland department by virtue of section 16(4).
(2) The Northern Ireland department which is to be consulted in accordance with subsection (1)(c) is such Northern Ireland department as the Secretary of State or (as the case may be) the Lord Chancellor considers appropriate having regard to the provision which is to be contained in the regulations concerned.
(3) Before making regulations under this Act in relation to which the Secretary of State or the Lord Chancellor has consulted a devolved authority (or more than one devolved authority) in accordance with subsection (1), the Secretary of State or (as the case may be) the Lord Chancellor must publish a report on the consultation.
(4) But the Secretary of State or (as the case may be) the Lord Chancellor may not publish the report unless either—
(a) the devolved authority concerned (or, if more than one, each of them) has agreed to the description included in the report for the purposes of subsection (5)(a), or
(b) there is no such agreement but the period of 30 days, beginning with the day on which a draft of the report was first sent to the devolved authority concerned (or, if more than one, the last of them), has expired.
(5) The report on the consultation must include—
(a) a description of—
(i) the process undertaken in order to comply with subsection (1), and
(ii) any agreement, objection or other views expressed as part of that process by the devolved authority (or devolved authorities) concerned, and
(b) an explanation of whether and how such views have been taken into account in the regulations (including, in a case where the Secretary of State or (as the case may be) the Lord Chancellor proposes to make the regulations despite an objection, an explanation of the reasons for doing so).
(6) The duty to consult in subsection (1) does not apply in relation to any revision of the regulations which arises from the consultation; and, for the purposes of subsection (4)(b), the draft report need not be identical to the published report for the period of 30 days to begin.
(7) In this section “devolved authority” means the Scottish Ministers, the Welsh Ministers or a Northern Ireland department.”
Baroness Bloomfield of Hinton Waldrist (Con)
My Lords, with the leave of the House, I beg to move that the House do agree with the Commons in their Amendments 1 to 3. In doing so, I will briefly summarise the changes which have been made to the Bill since it was last before your Lordships’ House.
As noble Lords will recall, there has been a great deal of interest in the issues of concurrent powers and devolved competence in relation to this Bill. Before the Bill left this place, my noble friend Lord Grimstone, to whom I am sure the whole House wishes a speedy recovery, committed to continue to engage with his counterparts in the devolved Administrations to persuade them of the merits of the Government’s approach and, in so doing, to try to secure support for legislative consent. Since then, my honourable friend in the other place, the Minister for Small Business, Consumers and Labour Markets, and my noble friend Lord Grimstone, have worked hard to honour that commitment. However, following extensive discussions at both ministerial and official level, it has proved impossible to secure that agreement. It is therefore with great regret that the UK Government will be legislating without the consent of the devolved legislatures.
The Government’s preferred approach throughout has always been to secure legislative consent Motions. Although the UK Government are disappointed with this outcome, we are satisfied that all avenues to secure legislative consent have been exhausted. The UK Government have been consistently clear that a consent mechanism, as requested by the devolved Administrations, is not appropriate for this Bill, but the amendments tabled unconditionally in the other place look to provide reassurances and address DA concerns.
The UK Government cannot agree to the insertion of a duty to obtain consent, as this could give rise to a risk that the UK Government would not be able to implement provisions in international agreements on recognition of professional qualifications promptly and consistently. This could jeopardise the UK Government’s credibility in securing ambitious provisions to support UK services’ exports with global trade partners.
In October of last year, my noble friend Lord Grimstone made the offer to all three DAs of a legislative commitment to consult with the devolved Administrations before the UK Government make regulations under certain powers in this Bill. That offer was made in exchange for legislative consent but was rejected. Following further discussions, the Government offered two further concessions, in December 2021.
First, we offered an enhanced statutory consultation duty for all the devolved Administrations. This duty includes a requirement to publish a report in advance of any regulations being made by the UK Government which would be within devolved legislative competence. The report should set out the consultation process and whether and how the representations made by the devolved Administrations during the consultation have been taken into account.
Secondly, we offered an amendment to carve out the Bill from the requirements of Schedule 7B of the Government of Wales Act 2006. This amendment would allow for an Act of the Senedd to remove the ability of UK Ministers to make regulations under the Bill in an area of Welsh legislative competence, without the need to first obtain the consent of a Minister of the Crown. The Welsh Government would still be required to consult the UK Government on any removal of powers. This is in line with similar approaches taken by the Government in relation to the Environment Act 2021, the Fisheries Act 2020 and the Agriculture Act 2020. These concessions were also offered to the devolved Administrations in exchange for support for legislative consent Motions from their respective legislatures. However, that offer was also rejected.
Subsequently, my noble friend Lord Grimstone wrote to the devolved Administrations confirming the Government’s intention to table both the concessions unconditionally, despite not securing legislative consent. Although the UK Government have not been able to reach agreement with the devolved Administrations, it is our strong view that this Bill will operate best and in the interests of all the nations of the UK if we work together as collaboratively and transparently as possible. These amendments demonstrate that the UK Government have kept their promise and negotiated in good faith. Moreover, we have always been clear that any regulations the UK Government made in devolved legislative competence would be limited in scope and exceptional and would always be made in consultation with the appropriate devolved Administrations, and I am happy to reiterate that now. I therefore hope your Lordships will agree to both these amendments. I reassure your Lordships that the Government look forward to continuing to work closely with the devolved Administrations across the full range of regulated professions policy and implementation.
Amendment 3 is wholly procedural and removes the privilege amendment made in your Lordships’ House, as is the procedure in these cases. I therefore hope that your Lordships will also agree to this amendment. I beg to move.
Lord Hope of Craighead (CB)
My Lords, I join the noble Baroness in expressing good wishes to the noble Lord, Lord Grimstone. I wish him a speedy recovery. It is a matter of great regret that an agreement has not been possible with the devolved Administrations. I know from having listened to the noble Lord, Lord Grimstone, previously how much effort he and his team have put into trying to obtain consent through frequent meetings in Scotland and many discussions. Of course, it turns on the essential difference between consultation and consent, as the noble Baroness explained. It is a shame, because there are aspects of this Bill which affect professional bodies in Scotland, which need to be properly regarded and protected against misadventures as a result of this legislation. I do not think that the devolved Administrations have been acting out of malice or anything like that; it is a matter of principle. That having been said, I would be grateful if the Minister would repeat the point she made that there will be continuing effort as this Bill is being put into effect and regulations are being drafted and so on to maintain contact with the devolved Administrations with all the good will possible, to try to make this legislation work as well as possible in the best interests of all the professional bodies concerned.
Lord Fox (LD)
My Lords, I think all in this House would send good wishes to the noble Lord, Lord Grimstone, and wish him a hasty return to the Front Bench opposite. The noble Baroness, Lady Bloomfield, did an excellent job in representing his interests and setting out the extent of the work that has gone on to reach across that devolution gap.
We should welcome the amendments, to some extent. The fact that they have been done unilaterally and without legislative consent is, as the noble and learned Lord, Lord Hope, said, a matter of great regret. It is also not a surprise. If the Bill had been delivered in isolation, the efforts of the noble Lord, Lord Grimstone, and the Minister in the other place might have borne more fruit, but of course it has not been in a vacuum. It has been delivered in an environment where the devolved authorities have successively found their role being usurped in Westminster. I use as examples the then Trade Bill, the then internal market Bill and the Subsidy Control Bill; all are Bills where the Government in London have sought to take over responsibilities that the devolved authorities were clear in their own minds were theirs. As long as this approach goes on, every Bill, like this one, which seeks to get resolution with the devolved authorities will find that difficult if not impossible. The level of distrust has been cranked up exponentially by each successive Bill that we have dealt with in your Lordships’ House over the last 18 months.
I welcome these amendments, but that comes with a plea, because we have to find a way to reach across that gap with the devolved authorities. If we do not achieve that, and if Westminster continues to erode the devolved settlement as it is at the moment, the union is very much under threat—and I think that most if not all of us in this House do not want that to happen. We should urge Her Majesty’s Government to take this as an example and to go back and find better ways in which to re-develop relationships that are clearly breaking down each day with the devolved authorities.
Lord Wigley (PC)
My Lords, I shall add a word, while apologising that I was unable to take part in earlier stages on this Bill because of involvement in other legislation, as a number of colleagues know. But this amendment and this debate touch on a matter central to the relationship between the devolved Administrations and the Government in Westminster, and this matter is critical to the future of relationships between the nations and these islands.
Is it not in the Government’s own interest important to find a way in which there can be a meeting of minds in matters such as this? If there is not a meeting of minds on issue after issue, we are stoking up the fires that will lead to a break-up of the United Kingdom—not just a change to the United Kingdom as we know it now. Many of us who want radical change would be able to live with a United Kingdom that has a confederal relationship, and so on, and where there is a mutual understanding. But not acknowledging the role of the Government in Scotland and Wales—and, to the extent that Northern Ireland comes into this, in Northern Ireland—is inevitably driving the relationship in that direction. I cannot see what the Government could lose by coming to a conclusion that the consent of the Governments in Cardiff and Edinburgh would be needed for some of the provisions covered by this Bill. I should have thought that it was in the Government’s own interest; it seems common sense to me. Is it too late now to act on that basis?
Baroness Blake of Leeds (Lab)
My Lords, I sincerely hope that the noble Lord, Lord Grimstone, is progressing well. He seems to have fallen to the unfortunate propensity of the BEIS team to suffer from Covid. From experience, I hope that he gets through it quickly and I pass on my best wishes. I am very sorry that he is not here for the concluding comments around the Bill. I thank the noble Baroness, Lady Bloomfield, for her introductory comments, which were delivered with clarity on the matters that we are considering.
I think many of us who have been involved in this Bill throughout its passage will recognise that it has not been the finest moment for legislation coming through the House. It was the first Bill that I was involved with, so it was quite a steep learning curve for me—but it has been described as chaotic. Indeed, it is quite extraordinary that the Bill was introduced without knowing which professions were actually in scope in the first place. Many concerns have been expressed about the Bill in its stages across the House. We note the considerable number of amendments that have gone through and gone to the other place—as the result, probably, of poor drafting in the first place. Of course, we do not wish to open the debate again on all those and other issues, but it is right to emphasise that particular concern was expressed right at the start with regard to the lateness of consultation, especially with devolved authorities. As was predicted at the time, I believe that it is that which has led to the lengthy delays and, of course, to the devolved authorities formally rejecting the Minister’s reassurances in early January.
On Report, we took a decision not to divide the House based on the assurances made by the noble Lord, Lord Grimstone, that he would continue to work on the Bill to secure support from the devolved authorities. We note the further work that has been undertaken, as outlined by the noble Baroness, Lady Bloomfield, to seek legislative consent from the devolved authorities and to overcome the impasse that still exists. As has been expressed, this is indeed regrettable.
We note the amendments tabled today and the further assurance from the Minister of the Government’s intention to work collaboratively and transparently with all the devolved authorities. We understand that the amendments are designed to introduce the enhanced consultation duty and to formalise the Government’s standard good practice in consulting devolved authorities before making regulations, as discussed on many occasions in this House.
Along with many other Members of this House, I am a passionate believer in devolution. Real devolution requires trust, transparency, honouring commitments and, above all, respect. Sadly, there are too many instances, across many policy areas, where government is falling short. I hope we can have further assurance from the Minister that timely consultation will become the norm and that any concerns arising from discussions will be dealt with transparently and in good faith. We recognise that the amendments are a step forward. With these comments, and noting our continuing interest and concerns, we recognise that the amendments will lead to the Bill moving on to be accepted.
Baroness Bloomfield of Hinton Waldrist (Con)
My Lords, I start by thanking your Lordships for the constructive approach that has been in evidence throughout the Bill’s passage. We have had robust discussion and debates, and the Bill is all the better for that. I take on the chin the comments of the noble Baroness opposite about how we may not have started in the best place with the Bill.
The UK Government have been grateful for the close engagement of colleagues in all the devolved Administrations at both ministerial and official level throughout this process. Even though we are disappointed that the devolved Administrations have not been able to support legislative consent, I know that my noble friend Lord Grimstone and Minister Scully have listened carefully to their concerns. To that end, we have heard and understood the particular concern of the Welsh Government around Schedule 7B to the Government of Wales Act 2006. In answer to the noble and learned Lord, Lord Hope, and indeed the noble Baroness, Lady Blake, I again confirm that we shall continue to work closely with all the DAs to make the Bill work for all areas of the UK.
This amendment and the consult-plus amendment underline the Government’s determination to work collaboratively and transparently with all devolved Administrations and devolved regulators under the provisions of the Bill and on wider regulated professions policy. Although it is regrettable that legislative consent Motions have not been passed for the Bill, the UK Government are fully committed to the Sewel convention and the associated practices for seeking consent, as set out in the devolution memorandum of understanding and devolution guidance notes. We will continue to seek legislative consent from the devolved legislatures when introducing Bills at Westminster which legislate within all areas of devolved competence.
In answer to the noble Lord, Lord Fox, who was asking about the BEIS Bills, these situations are clearly exceptional. BEIS has explored all avenues to secure the consent of devolved Administrations, including offering packages of concessions on these Bills and committing, importantly, to further meaningful engagement with the DAs to ensure their input in the future of these new regimes.
In answer to the noble Lord, Lord Wigley, I do not agree that there is any question that we do not recognise the role of the DAs. We have held three ministerial round tables with devolved regulators and have had regular engagement at official level. It is completely incorrect to say that the DAs have not been given enough time or information to engage with the Bill. However, I acknowledge and hope that we may all find a better way of working together and re-establishing that important trust that should exist between the four nations and their respective Governments and assemblies.
Lord Fox (LD)
To follow up on the points that the noble Lord, Lord Wigley, and I made about the relationship between Westminster and Cardiff, Edinburgh and Belfast, does the Minister agree with us that there is an issue and that relationships are breaking down? She said that she—and therefore I suppose the Government —hopes that things will improve. Perhaps she can give an undertaking to actually do things to improve the relationship rather than hope. Could she comment a little around that area?
Baroness Bloomfield of Hinton Waldrist (Con)
Yes, I think I can agree that we can do things better, and that message will have been heard loud and clear in the departments with which I am involved. To be clear, the reason that we thought that the consent mechanism would not be appropriate for this Bill is that we thought that it would give rise to a risk that the UK Government would not be able to implement trade agreements promptly and consistently. The same happened with the trade and co-operation agreement in Europe; we could not get consent for professional qualifications to be added because the European Commission was not confident of individual countries’ ability to deliver on that commitment. The same could be true of the four nations within the UK. Entering into negotiations with a weak hand, we felt, was good enough a reason to legislate without consent from the four nations.
To sum up, it gives me great pleasure on behalf of my noble friend Lord Grimstone to thank all those who have ably worked to support the Bill’s progress. I commend the good work of noble Lords from all parts of the House, as well as those in the other place, who have brought their expertise and challenge to this Bill. I know that my noble friend would wish to pay tribute to his private office, his officials and, in particular, the Bill team for their work so, on his behalf, I thank Zack Campbell, Ben Kerindi, George Whelan, Jamie Wasley, Jen Pattison, James Banfield, Monique Sidhu, Hadeeka Taj, Jerome Healy, Nick French, Raegan Hiles, Tom Corker, Alpa Palmar, Hannah Marshall, Ben Clifford, Funmi Olasoju, Aneesa Ahmed and Tim Courtney. I also personally thank them for stepping into the breach to help me to prepare for today.
This Bill will go on the statute book to end unequal EU-based recognition arrangements, while giving regulators confidence in their own autonomy. It will help to deliver a global Britain and assist professionals to enter new markets through its information-sharing provisions. On that basis, I proudly commend the Bill to the House.
Royal Assent
Thursday 28th April 2022
(2 years, 7 months ago)
Lords ChamberRead Full debate Read Hansard Text