Professional Qualifications Bill [HL]

Debate between Baroness Hayter of Kentish Town and Lord Lansley

Report stage
Tuesday 9th November 2021 Lords Chamber

[Lord Lansley (Con)]

My Lords, there are three amendments in this group, characterised by the fact that they appear more or less in the same place in the Marshalled List. My Amendment 11, which leads the group, relates to the very specific point, to which we have referred on a number of occasions: whether secondary legislation, and regulations under the Act, should be able themselves to modify primary legislation. The amendment’s intention is of course to restrict that possibility and limit it to subordinate legislation and retained EU legislation. Of course, there is a separate power in relation to the very specific EU retained legislation relating to the recognition of overseas professional qualifications.

I will not make a long argument about this, because the time is late. Ministers will say that there is a lot of private legislation out there relating to these professions, but as it happens, we are amending the primary legislation relating to architects in the Bill. I am not sure to what extent, given all we know and have discovered about the processes of seeking to recognise professional qualifications from overseas, just how often they will need to amend primary legislation and whether it really is impossible to achieve it through a route that exposes the changes to primary legislation to the proper scrutiny of this House.

Because it is linked to this, I reiterate a point I made in Committee. Ministers will acquire a power under the Bill to implement international regulatory recognition agreements and these aspects of international trade agreements by secondary legislation. I hope that the Minister—I know it is his stated intention—would expect new significant trade agreements, wherever they impacted on our legislation, to be the subject of legislation brought forward for this purpose. I do not want us to find that the legislation we see in future relating to trade agreements leaves out the recognition of professional qualifications because it can be achieved through subordinate legislation and we are therefore not able to examine it in the same way as we can other issues relating to a trade agreement, through primary legislation.

I will not talk about the protection of regulator autonomy; that is very much for the noble Baroness, Lady Hayter, who raised these issues in detail in Committee, as did my noble friend Lady Noakes. I am rather grateful to my noble friend Lord Grimstone—as we are in many other respects—for bringing forward government Amendment 12, which would put a pretty cast-iron clause into the Bill to give the regulators the confidence about their future autonomy that they seek.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, like the noble Lord, Lord Lansley, I welcome Amendment 12, which the Minister will speak to shortly. As has been said, right from the start we worried about the independence of regulators and indeed, as I suggested earlier today, the Law Society still retains a slight frisson of concern there, although I note the Minister’s words. Regulators have been worried about their independent ability to decide who was fit to practise in this country and that that might be undermined by a government diktat to co-operate with another country to accept their professionals or to drop standards in order to meet a government trade objective. As the Minister mentioned earlier, given that I am now looking at trade deals, I think he realises that I will be able to keep a beady eye on that as we go forward, along with the noble Lord, Lord Lansley, who will be looking at that as well.

As I mentioned before, it was also of concern to the users of regulated services in case their trust in professionals, which stems from a regulator keeping to standards and high quality of enforcement, might be in any way in jeopardy. However, the Government have recognised these concerns and have come forward with the very welcome Amendment 12; it must be good because there is even a Lib Dem name attached to it, so we know that this government amendment is well received. Needless to say, of course I still prefer the wording of Amendment 15, which was short and to the point, but I am content not to press it in favour of the Government’s own amendment.

Professional Qualifications Bill [HL]

Debate between Baroness Hayter of Kentish Town and Lord Lansley

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”.

--- Later in debate ---

[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.