Professional Qualifications Bill [HL]

Baroness Hayter of Kentish Town Excerpts

Tuesday 9th November 2021 Lords Chamber

[Lord Lansley (Con)]

My Lords, I am most grateful to my noble friend for his introduction to his amendment and for speaking to this group, and for his very kind words about our very constructive discussions. I reciprocate by saying how much I have appreciated the discussions he and I have had and the support of the Bill team in bringing forward a number of amendments on Report which respond directly to the debates that we had in Committee. And government Amendment 1 is exactly such an amendment.

As my noble friend quite rightly said, we had general agreement that there was a need for the national authority, when making regulations under Clause 1, to do so in ways that enabled somebody with overseas qualifications and experience to be brought into the UK profession on the basis of those or other relevant qualifications or experience, or other factors.

The difficulty with the original Amendment 10, if colleagues can remember back to Committee, was the nature of the word “only” in that context, which ran the risk of being interpreted as meaning that it would either be on the basis of overseas qualifications and experience or on the basis of other relevant and appropriate factors. We did not want that to be the case; we wanted what my noble friend has put into Amendment 1, which says at proposed new subsections (3A)(b)(i) and (3A)(b)(ii) that it will be

“on the basis only of the overseas qualifications or overseas experience … or … on such other basis as the specified regulator considers appropriate”.

That is clarified with the words:

“(such as on the basis of the overseas qualifications or overseas experience… together with the results of any test or other assessment given by any person).”

To keep it simple, if, for example, a language requirement needed to be specified, it could be specified as an additional requirement by the regulator and then be combined with the overseas qualification or the overseas experience to give, in total, the appropriate basis on which to be admitted to the UK profession. For my part, I am very happy that the Government have brought forward the amendment in this form.

The purpose of my Amendment 2 is to make it clear that a UK regulator may have requirements for entry to a profession which extend beyond the relevant UK qualifications and experience. So while somebody from overseas might have something that is directly comparable to that qualification or experience, that is not the sum total of the professional requirements to be on many professional registers. Many regulators also examine people’s background, experience and suitability, and they look to fitness to practice requirements. We do not need to dwell on this at length, just to say that there is potentially a gap between qualifications and experience in a formal sense and fitness to practice in its total sense. If regulators need that gap to be filled, Amendment 2 says that they should be able to do so; the conditions should be specified in a way that enables that to happen.

Looking at it, I am content that, as long as the appropriate national authority consults the relevant professional regulators when making regulations, the power none the less exists in Clause 1 to make the condition one that extends beyond qualifications and experience into all the fitness to practice requirements that might be applied by a regulator in this country. That being the case—and we have the benefit of the consultation requirements that we are going to come on to later, which give us further assurance on this—I think we are in a position where the conditions in Clause 1 would be wide enough without the benefit of my Amendment 2.

In my own defence, I tabled Amendment 2 back in early July, so I am slightly defending Amendment 2 in the light of having not, at that point, seen all the amendments that are coming forward, not least from my noble friend. That being the case, I think we can be fairly confident that Clause 1 will be robust enough if need be, so I have no intention of pressing Amendment 2.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I too support Amendment 1. I pay tribute to the noble Lord, Lord Lansley, who has urged and pushed, with perhaps a little more oomph than we could have done from this side. We are very grateful for what he has been able to do there.

I think the Minister will be thanked by quite a few people in the next couple of hours, though there may still be one or two people with a “please” in there for him. He knows that, right from the introduction of the Bill, we were worried about the ability of independent regulators to decide who is fit to practice. The words that the noble Lord, Lord Lansley, used are useful ones around being fit to practice and whether the ability of regulators to decide that could be undermined by a government diktat to set up a new system to recognise overseas practitioners wanting to come here, and therefore potentially lowering standards to meet a government view that there is a homegrown shortage in the relevant profession.

That was a concern not just to us but to the users of regulated service providers. Their confidence in professionals stems very much from the high standards and, indeed, from the enforcement that our independent regulators are able to give in the interests of consumers. But the Government have heard these concerns.

When most of us were away during the summer, the Minister spent a lot of time in meetings, and that is reflected in Amendment 1, which confirms that the regulators can apply their chosen standards as to who should practice in this country. The Minister has already referred to some regulators, and we know that the Nursing and Midwifery Council, for example, and others, have signified that they are content with the amendments. It clearly has to be for a regulator both to determine standards and to make a judgment on who has actually achieved those and therefore can be let loose on consumers or users in this country. So on this amendment, it is a “thank you” from me, and it does not require a further “please”.

[Baroness Finlay of Llandaff (CB)]

My Lords, I add my thanks to the Minister for having met with me and for having, as I know, consulted extremely widely on the Bill. I seek a tad of reassurance from him on his Amendment 1, fully accepting the comments that the noble Lord, Lord Lansley, made on the issues around fitness to practise. It would be very helpful if the Minister could confirm that the ability of any regulator to determine fitness to practise and other issues will be up to that regulator, and that that consultation will extend across the four nations of the UK.

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Moved by

[Baroness Hayter of Kentish Town]

3: Clause 1, page 2, line 27, at end insert—
“(5A) Regulations under this section relating to a regulated profession may not be made unless—(a) they have been published in draft form, and(b) the relevant regulators have been consulted on them for a period of three months beginning with the day on which they are published.”

[Baroness Hayter of Kentish Town (Lab)]

My Lords, we have moved faster than I anticipated. I rise to move Amendment 3 but give notice that I will in due course want to withdraw it in favour of government Amendment 13 in the name of the noble Lord, Lord Grimstone. It is in one way so obvious that regulators must be consulted that we would have hoped not to have to write it into the Bill. However, the Bill was published without even a complete and correct list of the affected regulators, and some were, as we have already heard, very worried at the start about their position. We also know that the Government have been a little tardy in consulting with the devolved authorities. This is about consulting regulators, so it is in a sense due to the experience of a slight lack of consultation—not in the Minister’s work over the summer, it is true, but prior to that—that we felt the need to write this on to the face of the Bill.

So it is partly because of that history, but it is also good for Parliament that this consultation must take place. It means that the regulators will be doing some of our job. They will be consulted, and they can alert your Lordships’ House and, indeed, the Commons, should they see any problems arising in this regard. Since they will have to be consulted, they will in a way be our eyes and ears over the implementation of the Bill and will alert us should anything be done contrary to the great reassurances that we have had. I am sure that that will not be the case, but it gives comfort to know that this consultation will have to happen. I beg to move.

[Baroness McIntosh of Pickering (Con)]

My Lords, I congratulate the noble Baroness on her amendment and on her appointment as chair of the IAC. I too welcome and congratulate my noble friend the Minister on bringing forward his government Amendment 13. I also thank him and his officials in the Bill team for the meetings that I have had since we originally discussed this and other parts of the Bill.

I would like to put one question before we come to discuss later amendments of mine in relation to a later clause. Why have the Government limited their Amendment 13 to apply only to Clauses 1, 3 and 4 when there are other, even more—or just as—important parts of the Bill that I think would benefit from the amendment? We can come on to discuss this, but only Clauses 1, 3 and 4 will benefit from the amendment. I would be very interested to know why it has been limited to those clauses, for reasons that we will come on to discuss later.

I take this opportunity to thank the noble Lords, Lord Foulkes and Lord Bruce, for co-signing Amendment 4 and the noble and learned Lord, Lord Hope of Craighead, for his support. We are hoping to require the national authorities to consult on draft regulations under the Bill. I am sure my noble friend would agree that the measure contained in this clause is important and wide-ranging and affects a considerable number of professions—I think it is 160, as stated in the Explanatory Notes. Governments across the UK cannot be expected to have the in-depth knowledge of all these professions to enable them to legislate without pre-legislative consultation.

Let me repeat the remarks made by my noble friend the Minister in responding to a similar amendment I moved in Committee:

“I fully agree that it is important for the relevant national authority to engage with a range of stakeholders before making regulations. Because of the complexity of these matters, it would be the height of foolishness not to do that.”


I agree entirely. Does he therefore agree that in making the regulations, the range of interested parties should include the professions and others? I know that he had hoped—I think this is in connection with these amendments—that there would be agreement from the devolved Assemblies, and it would be interesting to hear why they were unable to agree legislation to put in place in this regard.

Amendment 7 is voiced in similar terms. Clause 3 grants a power to Ministers to amend legislation to put into effect provisions negotiated in free trade agreements, or other types, relating to the regulation of professions, such as the recognition of professional qualifications. We are seeking to introduce a similar requirement to consult before regulations are laid to implement international agreements under Clause 3. To quote again from my noble friend’s comments in Committee:

“In all international negotiations relating to professional qualifications, a key concern for the Government has been ensuring the autonomy of regulators and protecting UK standards, as I said earlier. In light of the Government’s concern, and the importance that we attach to this point, there are already extensive engagement mechanisms for consulting before and during these negotiations … I hope my noble friend is reassured that the Government, of necessity, would have concluded extensive engagement ahead of this point in order to actually create the free trade agreement in the first place.”


We would like an assurance from my noble friend the Minister this evening that there will be an obligation to consult, not just an intention to consult. There can be lots of good intentions, but they are never actually brought to fruition. It would also act as an aide-memoire for the Government to engage with those bodies and individuals who might be affected by the implementation of the international agreement.

Noble Lords will see that there is a theme here. Clause 5 looks at the revocation of the general EU system of recognition of overseas qualifications, and Amendment 8 seeks to pin down what will be a very wide regulation-making power. Accordingly, I ask my noble friend to agree that there will be a proper consultation. Amendment 8 introduces a requirement to consult before laying regulations that make consequential amendments following the revocation of the existing EU-derived recognition system.

In Committee, my noble friend the Minister said:

“I envisage that these enactments would be very limited in scope. They are necessary purely to tidy up the statute book after revoking the existing EU-derived system, for example by removing cross-references to the current system in other regulations. Given that these are primarily small fixes, it would be disproportionate to consult on them. The Government will, of course, work closely with interested parties to ensure that there are no unintended impacts of bringing forward these consequential amendments.”—[Official Report, 9/6/21; col. 1500.]

These amendments have come from the Law Society of Scotland, for whom I hold no brief. However, as a non-practising Scottish advocate—a non-practising member of the Faculty of Advocates—we always look to solicitors to give us instructions at the best of times.

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[Baroness Hayter of Kentish Town (Lab)]

I thank the Minister for his reply, and my noble friends Lord Foulkes and Lord Kennedy, the noble Baroness, Lady McIntosh, the noble Lords, Lord Bruce, Lord Lansley and Lord Purvis, and the noble and learned Lord, Lord Hope, for their comments. The noble Baroness, Lady McIntosh, and my noble friend Lord Foulkes both mentioned the Law Society of Scotland, and I think my noble friend mentioned Michael Clancy. Maybe those of us who know him can do a shout-out for his return to full health.

The Minister is right to say that we will discuss the main part of consultation with the devolveds in a later group, but we should point out two things. First, the government amendment will automatically mean that the relevant devolved regulators would be consulted, but also, in response to my noble friend Lord Foulkes’s comment about the Scottish Government not always being willing to consult, it will require them to consult with their relevant regulators. Maybe that is why they are withholding their consent Motion—I am not sure.

The problem I still have is why the government amendment does not cover the regulations in Clause 2—or actually Clause 10, which I had not noticed before. Clause 2 is quite important. In responding, the Minister used the words—I hope I got them down correctly—that it would be a duty to consult regulators “shaping any regulations made under this Bill.” He did not use the words “shaping regulations under certain parts of this Bill”, but “shaping any regulations made under this Bill”. However, his amendment does not do that. My concern is that, if there is no duty to consult, then there might be no consultation.

The Minister then said, “Oh, well, it doesn’t really matter because they may be very minor”—those were not quite his words; they were far more correct than that. Actually, if you read his amendment, it is a requirement only if

“the regulator is likely to be affected by the regulations”.

So if it was such a minor regulation that did not affect a regulator then it would be excluded from the duty anyway. I am slightly worried about that.

I wonder whether the Minister would agree to some further discussions about Clause 2 and why there is no consultation on it. Perhaps he might even be willing for us to bring this back at Third Reading if it looks as if it is actually an error and there is no good reason to exclude regulations made under Clause 2, which is the big one for some of the regulators—this is the one about whether there is a shortage of professionals. I do not know whether the Minister could indicate assent to some further discussions, so that we could clarify this at Third Reading.

[Lord Grimstone of Boscobel (Con)]

I believe the reason why we are not consulting on Clause 2 is that it has no regulation-making powers in it. The regulations dealing with the whole question of shortages are made under Clause 1, where there is a duty to consult. I stand ready to be corrected if anybody wants to look at the text of the Bill, but the regulations that would relate to Clause 2 are made under Clause 1, and there is a duty to consult on that clause. I hope that completely answers the noble Baroness’s question.

[Baroness Hayter of Kentish Town (Lab)]

The noble and learned Lord, Lord Hope, would be looking at me now and saying, “Any good barrister knows not to ask a question to which you do not know the answer”—I just broke that rule. In the circumstances, I beg leave to withdraw the amendment.

Amendment 3 withdrawn.

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[Lord Lansley (Con)]

This group has two amendments, which do indeed relate to Clause 2, in my name and, for Amendment 6, that of the noble Baroness, Lady Hayter of Kentish Town. I am grateful for her support.

Noble Lords who were involved in Committee will recall that this clause, as my noble friend just explained, sets out the conditions under which the power to make regulations in Clause 1 might be used. To quote subsection (2):

“The condition is that it is necessary to make the regulations for the purpose of enabling the demand for the services of the profession … to be met without unreasonable delays or charges.”


Quite understandably, the central question is: what constitutes unmet demand? The discussion in Committee was around what we mean by “unreasonable delays or charges” in this context, and how people are to have sufficient clarity about the circumstances in which the national authorities concerned would deem it necessary to make regulations.

Noble Lords will recall that some of what the Government have outlined in the policy framework that we saw early on, and which has been amplified most recently in the fact sheets issued last week, sets out in some detail the process of thinking about what constitutes unmet demand for a profession. An illustrative scenario set out in the fact sheet enables those who want to explore this to see how it might work in practice. It includes consulting with regulators. The illustrative scenario includes talking to relevant professional bodies. It includes looking at costs and, interestingly, at value for money—the implication being that unreasonable charges are ones that do not constitute value for money. It includes vacancy rates, which are mentioned in Amendment 6, workforce statistics and modelling—again mentioned in Amendment 6—and whether an occupation is on the shortage occupation list.

I take comfort from the fact that the description the Government have given of the process by which a national authority would look at whether there was unmet demand corresponds with a set of factors that we set out in Amendment 6. I am comforted and glad that is the case, because they derive from the Government’s own explanations. It is just that I am afraid that I still do not think, even today, that Clause 2 in the form it is written tells people that that is the case. The guidance, the fact sheet and the policy framework tell people how it is to be done, but it is not all set out in the clause itself. What I set out to do in Amendments 5 and 6 is take out the offending words “unreasonable delays or charges” and incorporate all these factors into Amendment 6—which is, I take it, why the noble Baroness, Lady Hayter, signed it, because she felt that it served the purpose.

How do we proceed? Do we do so simply by taking the Government’s approach? It is not for me to make their argument; they might well say that we do not need to put all this in the Bill, because when people look at what constitutes unmet demand they will be able to look at the fact sheets and the guidance, and all these factors will be there. I am looking for the Government either to say that we do need to make a change, or to be sufficiently clear about the factors that will be brought into account, that they correspond directly to what we have set down in Amendment 6, and that we and other people can rely on them in future and look to what is said today as a basis for understanding how this process is to proceed.

In passing, let us just think for a moment about resting on the question of delays and charges alone. Charges in professional services are not necessarily always the product of the availability of professionals. Sometimes it is very much to do with the scarcity of specialisation within professions. So, trying to deduce that higher charges in a profession are necessarily the consequence of a lack of overseas practitioners is a difficult judgment to make. Many of the professions we are talking about are clinical professions, conducted, in the most part, in the National Health Service, where delays are the product, as we all know, of many factors, not just the availability of professionals, and where charges are very often irrelevant—they do not exist. I am afraid the idea that one can arrive at a conclusion about the necessity to bring overseas professionals into some of these clinical professions on the basis of delays and charges in the NHS is somewhat moonshine.

We need the other factors—workforce modelling, shortages in the occupational list, vacancy rates and all these other issues—to be there. We just need to make absolutely certain that they are there, and I hope that my noble friend on the Front Bench will be able to give us the assurance that we are looking for today to enable me to withdraw Amendment 5 in due course. I beg to move.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, as the noble Lord, Lord Lansley, said, I have added my name to the second of the amendments in this group. There are two parts to the Bill, as we know. One arises from the trade talks, where the Government may want regulators to talk to their opposite numbers in relevant third countries. The other, which is what we are looking at now, is about enabling—or maybe requesting—regulators to process overseas qualified people where there is deemed to be a shortage here. Unmet “needs” is the word used. That is where I and some of the regulators have some concerns.

In many sectors, such as nursing, it already happens. Structures are in place and there is no need for the Government to intervene. The powers are there, everything is fine at the moment. However, there are two serious questions that need answering. First, is there any danger that consumer interests are at risk if underqualified people practise here because the Government say, “We have not got enough of that particular profession”? I do not need to go into why that is a risk; it is fairly obvious.

Secondly, which the noble Lord, Lord Lansley, covered, is how the shortage is to be defined. He already referred to why high fees are not always an appropriate measure. Sometimes, there are high fees because there is an international shortage; the price is set on an international market and therefore bringing in more of that profession would not solve anything. Or will it be defined by users or consumers who need those services? Amendment 6 sets out some far more objective criteria, which is why I was happy to support it.

Since we are on this bit, I should raise the other concern of the Law Society, which was not raised earlier by the noble Baroness, Lady McIntosh of Pickering. It does not expect to be covered by Clauses 1 and 2, but were they to be applied to it, and should the SRA get involved in such discussions, the Law Society wonders whether this would jeopardise the perceived independence of the legal profession as seen abroad by foreign Bars. Clearly, the consultation is very important, but—I am not saying that it said this because it was high fees—I think it would have a concern if there appeared to be any interference by the Government that would in any way question the independence of the legal regulators, which I know is so important for our international reputation in the world of law. For the moment, the main issue is the definition of where there is unmet need and whether the assurances will cover what we have set out in Amendment 6.

[Lord Purvis of Tweed (LD)]

My Lords, it is a pleasure to follow the noble Baroness and to agree very substantially with what she said and of course, the noble Lord, who made a strong case. I, too, commend the Minister because, as we have indicated in previous groups and as my noble friend said, the Bill may have had a pause, but the Minister did not. He and his officials have worked hard in engaging with us and with those who will be affected by it.