Professional Qualifications and Services (Amendments and Miscellaneous Provisions) (EU Exit) Regulations 2020
Baroness Bloomfield of Hinton Waldrist
That the Grand Committee do consider the Professional Qualifications and Services (Amendments and Miscellaneous Provisions) (EU Exit) Regulations 2020.
Baroness Bloomfield of Hinton Waldrist (Con)
My Lords, I beg to move that the draft regulations, which were laid before the House on 6 July 2020, be approved. I will give a brief overview of the rationale behind these regulations, which relate to the recognition of professional qualifications and the provision of services. They form part of the Government’s preparations for the end of the transition period. Noble Lords will be aware that the Government have signed agreements with the EU, the three EEA EFTA states and Switzerland, which contain arrangements regarding the UK’s withdrawal from the EU. The agreements include provisions that protect the rights of EEA and Swiss nationals living and frontier-working in the UK, and vice versa. These regulations will give effect to certain provisions in the agreements relating to the recognition of the professional qualifications—or RPQ as I will now refer to it—of this group of EEA and Swiss nationals.
By doing so, the regulations will ensure that the decisions made by UK regulators to recognise the professional qualifications of EEA and Swiss nationals before the end of the transition period will be grandfathered after the period ends. These individuals will be able to continue to practise their profession in the UK. The regulations also make various changes to the domestic frameworks for RPQ and services, including in respect of regulations made in anticipation of exit, which will ensure that they function effectively after the transition period. Professionals from the EU make a significant contribution to the public and private sectors in the UK. Between 2007 and 2016, the UK gave 148,000 recognition decisions to EU professionals.
I remind noble Lords of the background to RPQ. The mutual recognition of professional qualifications system is derived from EU law. It allows UK professionals to get their qualifications recognised in the EEA and Switzerland—and vice versa—with minimal barriers. Across the whole of the EEA and Switzerland, there are approximately 570 different professions under this system. After the transition period, the EU system will cease to apply to the UK. Last year, in preparation for the UK leaving the EU, the Government made various RPQ EU exit regulations to amend the domestic law that implements the current EU system for RPQ in order to fix deficiencies caused by exit.
The existing EU exit regulations include provisions which protect recognition decisions already made; allow applications for recognition submitted before exit day to be concluded after it; allow providers of temporary and occasional services one year from exit in which to complete their service provision; and retain aspects of the recognition system to provide a route for certain EEA and Swiss qualification holders to apply for recognition of their qualifications after exit day.
I should say that this retention of part of the existing recognition system is not covered by the agreements with the EU, EEA or Switzerland, or these new regulations. However, it forms part of the Government’s plan to make sure that the UK is prepared to leave the single market. The Government have decided that this system should remain in place temporarily after the transition period in the event that there are no satisfactory arrangements from the EU free trade agreement negotiations.
I will briefly explain how these new regulations will implement the RPQ provisions of the agreements, to which I referred earlier. The agreements contain similar, but slightly different, provisions to those contained in the existing RPQ EU exit legislation. Therefore, these new regulations will make amendments to EU exit regulations laid by the Department for Business, Energy and Industrial Strategy, the Ministry of Housing, Communities and Local Government, and the Department for Environment, Food and Rural Affairs to give full effect to the RPQ terms of the agreements. The reason for this is that the agreements were finalised after the existing EU exit legislation was passed.
The provisions in these regulations relating to the agreements will protect recognition decisions made before the end of the transition period; allow applications for recognition submitted before the end of the transition period to be concluded; ensure that UK regulators co-operate with their EEA and Swiss counterparts to facilitate the completion of applications ongoing at the end of the transition period; and ensure that professionals whose professional qualifications are recognised are treated on the same basis as UK nationals.
In respect only of Switzerland, these regulations give effect to provisions in the Swiss agreement that provide for a longer transition period for certain individuals. In particular, they will allow a further four-year period for certain Swiss nationals to apply for recognition under current EU rules and allow certain Swiss service providers to continue to provide their services in accordance with their contract for up to five years after the end of the transition period.
The RPQ provisions of the agreements will be reciprocated by EU member states, the EEA EFTA states, and Switzerland respectively. I remind noble Lords that these regulations do not cover certain legal or healthcare professions, which are being covered in separate statutory instruments by the relevant departments.
To ensure that the frameworks for RPQ and services will function as intended after the transition period, these regulations will also make various other changes, which can be separated into four categories. First, retained treaty rights in respect of RPQ will be disapplied. These are overarching rights derived from the Treaty on the Functioning of the European Union and the EEA agreement in respect of free movement of workers, and retained treaty rights for RPQ derived from the Swiss free movement of persons agreements. After the transition period, the default position is that these rights will become retained EU law under the European Union (Withdrawal) Act 2018. These regulations disapply these treaty rights, in so far as they relate to RPQ, to ensure legal clarity about the post-transition period system for recognition of EEA and Swiss qualifications.
Secondly, a retained delegated regulation on ski instructor qualifications and two delegated decisions—which update annexes to the EU directive on RPQ—will have no practical effect after the transition period. These regulations will therefore revoke them to tidy up the statute book.
Thirdly, these regulations will make minor corrections to RPQ EU exit regulations and technical amendments which change references to “exit day” to “IP completion day” in the existing RPQ and services EU exit regulations. This will be done so that the regulations will function effectively after the end of the transition period.
Lastly, consequential amendments and a minor correction to a transposition error will be made to the 2015 EU RPQ regulations.
I should point out at this stage that UK regulators have been consulted on an informal basis throughout the process of developing RPQ EU exit legislation and these regulations.
To conclude, I reiterate that these regulations are vital to the Government’s preparations for the end of the transition period. It is imperative that they are made so that professionals and businesses are equipped to be ready for the end of the transition period. I commend these regulations to the Committee and look forward to hearing noble Lords’ views.
Lord Blunkett (Lab)
My Lords, I shall not detain the Grand Committee or the Minister very long. My contribution is more to probe and to query than to add anything new. I understand entirely the need for these regulations and the issue in respect of rights that were incorporated in EU legislation. I also understand the grandfathering process so that people retain their rights in respect of the qualifications they have obtained. Under the transitional provisions, in some cases that will be for one year, while in the case of Swiss nationals it will be for four or five years.
I am afraid that over the weekend I did not have the resources that I used to have or the technical ability online to be able to get to grips with what would happen after the varying transition periods were completed; in other words, whether the reciprocation agreed in implementing the grandfathered rights would continue, with mutual recognition of existing qualifications, including in respect of the provisions dealing which medical professional qualifications, two of which are to be disapplied because they are felt not to be relevant. I want to query with the Minister why they are not relevant any more. I shall not go into skiing, because I am sure other people will want to talk about reciprocal recognition there. As I am not foolish enough to go skiing at my age, it will not apply to me, but I am at a loss to see where we will be after a further, extended transition period following the end of this year and how it will operate for those who gain their qualifications after that period has finished. If that does not make sense, neither do the regulations read by an intelligent human being who does not have access, in terms of the regulations, to a range of European languages, and that includes me.
Baroness McIntosh of Pickering (Con) [V]
My Lords, I thank my noble friend for presenting the regulations to the Grand Committee. In so far as they go, I welcome them. It is good that we are holding out the hand of friendship and continuity to those with professional qualifications from the countries concerned to allow them to continue to live and work in the United Kingdom.
My question is a simple one and concerns what will happen in the event of no deal on 1 January to those with professional qualifications who currently enjoy mutual recognition in other member states and across the EEA and Switzerland. Might we have an extremely messy situation on 1 January in respect of current practitioners? They could be in some of the professions that my noble friend the Minister described; they could be lawyers, architects, dentists, doctors—the list goes on.
I declare a personal interest—I have followed this matter for some time, as my noble friend will be aware—in that I was able to avail myself of mutual recognition as a practising EU lawyer. I worked in two firms in Brussels for a period in the late 1970s and early 1980s. One has only to look at the difficulty experienced in the different professions and their branches and at how many years it took in some cases to reach the mutual recognition from which all of us have benefited in the EU, the EEA and Switzerland. In the case of architects, the directive took 21 years to agree, yet when we look at the stellar contribution made across these countries by those such as the Rogers design team, we realise that it was worth the difficulty and the time in reaching agreement.
In the event that we do not have a deal on 1 January and the position is unclear, what will the position be for those from the United Kingdom who wish to practise their profession in these countries? I would be grateful for a reply from my noble friend.
The Deputy Chairman of Committees (Lord Bates) (Con)
I now call the next speaker, the noble Lord, Lord Loomba. Lord Loomba? We will perhaps come back to the noble Lord; we are having some technical difficulties. I call the noble Lord, Lord Moynihan.
Lord Moynihan (Con)
My Lords, the Explanatory Memorandum to these regulations states at paragraph 2.9:
“This instrument is also concerned with the Delegated Regulation which establishes a common training test for ski instructors”
and then references footnote 9. Before I go into the detail of that, taken overall, as my noble friend the Minister stated, this instrument seeks to introduce into domestic law the recognition of professional qualifications, or RPQs, in the EU agreement and seeks reciprocity where it is to the benefit of both parties. The Swiss citizens’ rights agreement is a clear example of this. This instrument specifically addresses key and important questions relating to the ongoing status of ski instructors living and working in Switzerland and in wider European countries such as Spain and Andorra in the Pyrenees, as well as Alpine countries. I am unclear why the Government are not seeking to protect employment opportunities for ski instructors, given that we are a major financial contributor to the success of this sector in the Alps and the Pyrenees.
A key issue post Brexit which is worrying the ski industry is how instructors will live and work in Europe. Additionally, the industry will need to re-evaluate resourcing requirements for chalet workers, support staff, ski instructors and mountaineer support teams. We hope that change after the transition period will be handled as an administrative step which holidaymakers or Alpine workers will need to take prior to travel. However, this remains unclear and the regulations being considered today provide an opportunity to ensure that we are completely in sync with the EU on ski instructors—an objective pursued by the British Association of Snowsport Instructors, or BASI.
As I understand the position, when the right to work in the EU is rescinded, instructors will need to apply for a work visa. While it should be recognised that this is already commonplace for British instructors wishing to work in Australia, New Zealand, Canada, et cetera—though age and time restrictions apply—it is unclear what arrangements the British Government have reached in negotiation given the CTT agreement, which I hope stays in place and can be reciprocally agreed as ongoing practice between the EU and the UK.
With Switzerland being outside the EU, we have some knowledge of working across EU zone borders. Non-Swiss instructors have to apply for work permits in Switzerland as they do not have an automatic right to work there. In 2000, a common set of criteria was agreed for training and performance standards for ski instructors. This was not an EU agreement, meaning that originally it should have stood for British nationals post the transition period, but since then it has been adopted by the EU delegated regulation 2019/607.
A few years ago, the British Association of Snowsport Instructors and the International Ski Instructors Association negotiated an agreement with European Alpine nations. The group, which found considerable common ground, consisted of France, Austria, Italy and the UK. The British top qualification—level 4 ISTD—was recognised as equal to that of Austria, France and Italy. BASI has representation on the board of Interski International, the snow sports umbrella organisation, which has three specialised associations: the ISIA, the IVSI and the IVSS. Can my noble friend confirm that the United Kingdom, represented by BASI, will continue to be included in the EU Commission delegated Act, translated into our legislation, for ski instructors and the associated common training test—CTT—agreement, which I have mentioned, or is the status to be grandfathered under our legislation or removed?
Could my noble friend confirm that the top British qualification will continue to be recognised in Europe post the transition period? BASI is hopeful that, as long as it continues to comply with the rules and processes as they currently stand, there will be no change to the recognition of qualifications. However, would I be right in interpreting the agreement reached with the EU on this subject as effectively removing us from a common CTT agreement and therefore French ski schools, for example, would be able to reject British ski instructors after the transition period on grounds wholly unconnected with whether they have passed the common training test?
BASI decided to align its qualifications with the Scottish credit qualification framework several years ago, which in turn aligns with the European qualification framework. Not only did this give our European counterparts an alternative tool which they can use to recognise the level of our qualifications but it enabled our members to gain recognition for the time and effort they have put into their snow sports career if they choose to apply for jobs in completely different sectors.
There is a clear need for government to prioritise doing what they can to promote and protect the rights of UK citizens working in the mountains of Europe. Over the years, many UK workers have come up against major resort-based difficulties, being in areas where locally elected mayors turn a blind eye towards fierce national protection of work opportunities for local ski instructors despite, as I have mentioned, the huge investment made by the UK-based ski tourist industry. Would my noble friend recommend that instructors who are accepted to work in the EU ski resorts register to work in the countries that they intend to work in, anticipating that new working rights arrangements post Brexit may take some time?
In summary, the proposal in this instrument is to revoke the retained delegation regulation on ski instructors on the grounds that my noble friend said in her opening remarks: that they will have “no practical effect” in the UK after the transition period and therefore should be revoked. Does this mean that the common training test will no longer be recognised in Europe for British instructors or, indeed, in Scotland for European instructors? If not, what support and protection will British ski instructors have after 31 December?
Lord Loomba (CB) [V]
I am very sorry that my microphone was not on. This legislation is of great importance alongside measures such as the immigration Bill, which is vital to the smooth running of our country as we move to a new way of co-operating, on a new footing, with the EU and associated countries. Mutual recognition of qualifications goes to the heart of sustaining our ability to accept much-needed talent and skills into our country. It is crucial that we get it right as it will affect the functioning of the economy. More importantly, it affects peoples’ lives and livelihoods—their ability to use their skills and talents to put food on the table.
This legislation has some flaws, not least that as a statutory instrument it will become law without the proper scrutiny, evaluation and debate that our place is lauded for. That allows its passage unhindered and, in doing so, risks missing some of the detailed assessment necessary to ensure good law on working practices that is fit for purpose. For citizens to easily understand it and navigate it in their search for work, and for businesses to be able to employ staff without unnecessary hurdles or red tape hampering productivity, any legislation requires clarity accompanied by good guidance. Businesses need good, clear, effective measures in place to be able to operate effectively in what is a very competitive market at the best of times. Now, with the pandemic, businesses face even greater pressure and uncertainty. Here, I declare an interest as set out in the register as the owner of a business. I understand the difficulties many businesses face.
In understanding the complexity of this legislation, take for example, the original EU directive on which existing recognition of mutuality is based. This will cease to apply to the UK once the transition period ends. This means that some parts of the directive will be inoperable as a consequence of exit and other parts will not be appropriate to retain given they are based on reciprocal arrangements with the EU, the EEA, EFTA states and Switzerland which will no longer exist.
To go some way to resolving this issue, as we have heard, in 2018 and 2019 the Government already made several recognitions of professional qualifications in EU exit instruments. The Government have since made agreements with the EU, EEA, EFTA states and Switzerland. These include provisions on RPQ that are similar to, but slightly different from, existing provisions in RPQ EU exit legislation. These provisions require this statutory instrument to give effect to these areas. This demonstrates how much legislation will need to be navigated for businesses and individuals to understand and comply with.
Further, the statutory instrument does not require a review because its impact is deemed to be worth less than £5 million on business. It states that it does not affect small businesses and that guidance will be issued. I am not sure how something like this would not affect many small businesses, often without the wherewithal to navigate the myriad provisions, and at present, it would appear that the guidance is not available. It is vital that we get this right. Business, research and educational relationships that depend on it will be affected far into the future, and a clean sweep, with a completely new Act, would have been a better option.
Lord Bradshaw (LD) [V]
My Lords, I believe that the noble Baroness, Lady McIntosh of Pickering, has hit the nail on the head with her questions. She asked them in a very unaggressive fashion and said that what is now being faced by many businesses is the fact that we will leave the EU without a deal. What I really want to know is what will happen to mutual recognition if we leave without a deal. Mutual recognition is vitally important in a world where people go all over the place to get their qualifications and expect to be able to use them across a wide area. If the UK exits from that world and does not mutually recognise qualifications, that will be an absolute disaster.
I was going to comment on the huge amount of legal work that has gone into drafting this statutory instrument. I have read it carefully all the way through, but it is very difficult to read. Yet the Government are spending time on this when whole sectors of industry, such as financial services, have practitioners who are not qualified swindling the population out of a lot of money. I wish that the Government had attended to this instead.
Lord Stevenson of Balmacara (Lab) [V]
My Lords, I am grateful to the Minister for her introduction of the instrument. I understand a little more about it now than I did the first time I read through it, but I am rather like my noble friend Lord Blunkett, who explained in his rather self-deprecating way that he was confused until the end. The SI itself is clear, but the Explanatory Memorandum has left us all a bit flabbergasted and confused, as the noble Lord, Lord Bradshaw, just said. However, we must make progress on it because, as the Minister has said, it is an important document and vital to preparations for the post-transition period. However, I put it to her that it raises issues which are much more important for the longer term, which is what much of the debate has been about.
Before going on to that, I think we owe a vote of thanks to the noble Lord, Lord Moynihan, for his obviously hard research into the situation affecting ski instructors, which we all noted and all felt a little tentative about raising. I think he has made the argument extremely well so I am going to make a slightly separate point that here is a group for whom special arrangements had to be made and they appear to have been carved out randomly on the basis that it did not seem to matter when in fact it does. In particular, in Scotland, where I come from, there is a well-established tradition and good training is provided for people who work in difficult and often dangerous circumstances in the high mountains. How extraordinary that they are going to be cut out without much thought in terms of mutual recognition. Will the Minister explain how and on what basis this was discussed with the Scottish Government, who presumably have very strong views on this? I will be interested to know how their response was registered.
As other noble Lords have picked up, the key question was asked by the noble Baroness, Lady McIntosh, about what happens to mutual recognition immediately afterwards—it was also raised by my noble friend Lord Blunkett. It was certainly part of the earlier discussions and debates. Those of us who follow this closely will have read the exchange of correspondence between the Secondary Legislation Scrutiny Committee and the department on this in which the committee raised a question about how all this sits in the wider picture, which is what is behind a number of our comments. The response is rather confusing because it first tries to narrow it down to being a technical SI, which indeed it is at heart, tidying up a few things that need to be resolved, but it also says in response to a question about whether this issue is going to be a continuing discussion and debate that arrangements on the future recognition of professional qualifications after the transition period are being discussed as part of the EU-UK comprehensive free trade agreement and that the Government intend to include appropriate non-discrimination and equal treatment provisions in the FTA.
When one looks at it, the draft paragraphs contain a vague aspiration that in the free trade agreement there will be an appropriate way of expressing mutual concern and respect for other people’s qualifications much as we do at the moment, but they do not give any detail about where that is going or how effective it is going to be in practice. When the Minister responds, will she give us a bit more meat on the bone there? This is at the heart of many people’s concern about this SI. It is not the specific issues it raises, because when you drill down, and perhaps ignore the Explanatory Memorandum, you find that it is actually technical and relatively straightforward and affects a reasonably small area but, as was picked up, ski instructors are being given no future so far as we can see. More widely, as a pillar of the future prosperity of this country, we need that ability for our services, which are the majority of our economic activity these days, and our assets in intellectual property, which exceed our physical assets. How on earth are we going to make a go of that if we have no mutual recognition and have to start from scratch getting all the documentation required for everybody who wants to operate in order to earn for our country abroad? These matters really are important, yet they are not dealt with here. It is not the SI that does not do that, but nevertheless the questions are there and need answers. I look forward to hearing the Minster’s response.
Baroness Bloomfield of Hinton Waldrist (Con)
My Lords, I thank noble Lords for their valuable contributions to this short debate and for their broadly supportive comments on this SI. I should like to conclude by emphasising that the changes contained in these regulations are essential. The UK is committed to protecting citizens who benefit from rights under the agreements, many of whom make valuable contributions to the UK workforce. Although these regulations focus mainly on protecting existing rights and not future arrangements, it is important that they make changes to ensure that the UK’s existing EU exit regulatory frameworks for RPQ and services will function effectively at the end of the transition period.
However, it is worth noting that the continuation of a recognition system after the end of the transition period is a temporary measure. In response to the noble Lord, Lord Blunkett, who asked what will happen when the transition period is over at the end of this year and how this will operate for people who gain their qualifications after that period, all those with recognition decisions achieved before the end of the transition period are protected for life.
Certain EEA and Swiss nationals who apply for recognition after the transition period will be able to seek recognition under the previous RPQ EU exit regulations laid in 2019. Those EU exit regulations amend the system for the mutual recognition of professional qualifications to retain aspects of the recognition system after the transition period so that individuals with EEA and Swiss qualifications that are equivalent to UK standards can have their qualifications recognised in the UK.
In response to my noble friend Lady McIntosh of Pickering and others who asked why we have been unable to secure mutual recognition with the EU, I remind her that the regulations are concerned with implementing reciprocal arrangements in the withdrawal agreement, not policy for a future recognition system. With regard to negotiations on the mutual recognition of professional qualifications, we concluded the eighth round of negotiations with the EU on 11 September. Although there was little progress made, we had useful discussions, and we are still working hard to ensure that qualification recognition does not become an unnecessary barrier to trade in regulated services across the modes of supply between the UK and the EU. As negotiations are still ongoing, I cannot comment in more detail on the status of those discussions at this stage.
My noble friend also asked what will happen in the event of no deal on 1 January 2021 to those with professional qualifications across the EEA and Switzerland and what will be the position for those in the UK who want to practise in the EU, EEA and Switzerland. In terms of these future arrangements for UK nationals, it is not clear which no deal arrangements the EU will put in place. However, some member states have previously suggested that they will continue to provide recognition routes for UK nationals if an agreement is not reached. There is also the temporary system that will continue to provide a route to recognition after the end of the transition period for EEA and Swiss qualifications. I also note generally that, as I said in my opening speech, doctors and dentists are covered by separate statutory instruments laid by the DHSC and are not covered by this SI.
In response to my noble friend Lord Moynihan and the noble Lord, Lord Stevenson, who asked why we are disapplying the delegated regulation for ski instructors, the regulation establishes a common training test for ski instructors, but ski instructors are not regulated in the UK. The delegated regulation will have no practical effect in the UK after the transition period, as the UK will not be a member state, and therefore it will not apply to the UK or UK ski instructors after the end of the transition period. Disapplying it will not have an impact on the ability of UK ski instructors to work in the EU in future. This is subject to ongoing negotiations with the EU. UK ski instructors within the scope of the agreement who have already been recognised will be protected accordingly. Unfortunately, we cannot guarantee what the EU member states will put in place for ski instructors who apply for recognition in a member state after the transition period. However, the UK is seeking to negotiate an ambitious deal with the EU. The UK’s negotiating position would enable UK ski instructors to continue to seek recognition in the UK after the transition period. Even without revoking the delegated regulation, it could not be relied upon by UK ski instructors in the EU once we are no longer part of it.
In response to the noble Lord, Lord Stevenson of Balmacara, this was discussed with the Scottish Government. The devolved Governments were involved regularly throughout the process of making the regulations. They have been supportive of our approach and did not have any significant comments. The regulations have not been controversial with the devolved Administrations. The Scottish Government have consented to this SI by way of ministerial letter.
The noble Lord also asked for some more meat on the bone as to how the regulations will operate. I remind him that the regulations are concerned with implementing reciprocal arrangements in the withdrawal agreement and not policy for a future recognition system. I have answered on the recognition arrangements in the existing EU exit regulations and on the status of the negotiations. Further RPQ policy will depend on the outcome of the negotiations with the EU and the recommendations of a call for evidence being conducted by the business department. This call for evidence is looking at what our approach should be to the future recognition of professional qualifications from other countries and considering the UK’s approach to the regulation of professions more broadly.
To close, I underline once more that these regulations are a vital part of the UK Government’s preparations for the end of the transition period. I recommend the draft regulations to the Committee.
The Deputy Chairman of Committees (Lord Bates) (Con)
The Grand Committee now stands adjourned until 6.15 pm. I remind all Members present to sanitise their desks and chairs before leaving the Room.