Monday 14th June 2021
(3 years, 4 months ago)
Lords ChamberProfessional Qualifications Act 2022 View all Professional Qualifications Act 2022 Debates 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.