European Qualifications (Health and Social Care Professions) (Amendment etc.) (EU Exit) Regulations 2018

Baroness Thornton Excerpts

Thursday 7th March 2019 Lords Chamber

Moved by

[Baroness Thornton]

At the end insert “but that this House regrets that, in the event of a no-deal Brexit, the additional administrative burdens for many qualifications and the prohibition of European Economic Area temporary and occasional healthcare professionals that are proposed by the draft Regulations could be detrimental to the National Health Service.”

[Baroness Thornton (Lab)]

My Lords, I thank the Minister for introducing this instrument with such clarity. The reason I have tabled an amendment to the Motion is to draw attention to the serious concerns that were expressed by the Secondary Legislation Scrutiny Committee in its report in December last year. As the Minister has explained, these draft regulations laid by the Department of Health and Social Care set out the Government’s plans for recognition of EEA and Swiss professional healthcare qualifications in the event of no deal. Yet again we are spending valuable parliamentary time talking through quite large regulations that would not need to be here if the Government had ruled out no deal, to be frank. Here we go again. They need the scrutiny of your Lordships’ House because the Secondary Legislation Scrutiny Committee drew them to our attention, because of issues of public policy that we need to address.

The Government have said that they would not introduce new public policy issues into these orders and Brexit legislation, so we need to ask whether these regulations raise any of those issues. My questions will be focused on the issues that the Secondary Legislation Scrutiny Committee raised in its report.

The first question is about the regulators’ decision-making. The committee asked the DHSC how the UK regulators would make decisions. It was concerned about whether the regulators could set their own criteria for designation and the DHSC confirmed in its response to that question:

“Health and Care regulators are best placed to assess qualifications. Privy Council scrutiny ensures continuity for applicants in the short term whilst providing an inbuilt safety mechanism for removing qualifications that require further testing. The overarching principle behind the designation is the safety of the public—and we will work with regulators to ensure this”.


The question that the Minister needs to address is about ensuring a consistent and fair approach to the decisions by the different regulators, because each regulator will be responsible for the criteria for designation in its area.

That begs the question of how much work is involved and how much extra burden this will put on our regulators, given that the regulations give the UK regulators a discretion to designate EEA and Swiss qualifications as not acceptable in the UK after exit from the EU. The Minister needs to respond on what criteria regulators will apply in designating a qualification as not comparable to UK standards and what steps will be taken to ensure that regulators maintain a consistent and fair approach to their application. I welcome the clarification that there will be no change to the language testing arrangements, because your Lordships’ House has been concerned about that for many years.

The Minister needs to address what the administrative burden on regulators might be. No information on cost or impact is given in the Explanatory Memorandum other than to say that they will be negligible—I try to avoid that word—which seems unlikely. Given that this function requires assessment of where a qualification is not comparable and may impose an additional burden on UK regulators, we need to ask the Minister for assurances that UK regulators will have the administrative capacity and resources to deal with such decisions.

The Minister has addressed temporary and occasional qualifications, but given the number of EEA and Swiss professionals providing healthcare services in the UK on a temporary and occasional basis, she should assure us that there will be no detrimental effect on the NHS as a result of the removal of the right of EEA and Swiss professionals to work on such a basis.

I think that is enough questions for the time being. Other noble Lords will probably draw to the attention of the Minister the views that have been expressed to us by a range of organisations which have an interest in this matter, including the BMA and the royal colleges. I beg to move.

[Baroness Jolly (LD)]

My Lords, I think that there is agreement across this House that we should work to prepare this country as best we can for Brexit and the potential of a disastrous no deal. I welcome this morning’s response from the Home Office Minister in this House that she believes that no deal is unlikely.

A consequence of no deal will be that the UK is no longer part of the automatic electronic alert system between health regulators, which exchanges information on health professionals who are no longer allowed to practise in the country. The NHS is vital for our country and for the lives of our citizens. Our healthcare professionals are the backbone that holds in place the institution that we hold dear. It is imperative that the legislation is effective at retaining a frictionless flow of EEA and Swiss workforce, along with the care that they bring.

There are several areas of concern. I am concerned that impact assessments have not been done in all circumstances in relation to these SIs and that consultation has sometimes been rushed, or that little public consultation or sector consultation has been done. I intend to ask the Minister questions that are thematic. I do not mind if she does not have the time or the information to be able to respond to them today; I am quite happy for the answers to come in a letter, which I would like to be placed in the Library.

A no-deal Brexit would not allow temporary workers, and it is vague when it comes to permanent workers due to a lack of specific evidence about qualifications. I would like some light shed on this. Can the Minister confirm that, in the event of a no-deal Brexit, vital EEA medical workers will not be treated as international medical graduates—IMG—so that they can easily work for our NHS and will not have to endure long and arduous registration processes which in some cases have been known to take up to at least a year? When do the Government plan to provide guidance to healthcare professional regulators on the information required to obtain Privy Council consent to remove a qualification from automatic acceptance should they have patient safety concerns? It is important that this process can be invoked quickly should concerns arise.

How do the Government intend to approach the two-year review of the SI? Will they commit to reform of professional regulators’ legislation to allow the process for registering healthcare professionals who qualified outside the UK to be fair and consistent for all professionals, regardless of where they qualified?

I think the Minister is aware of issues around Spanish and Irish nurses. What conversations are we having with Spanish health services about the gradation of Spanish nurses to ensure that, as long as they stay here, their years working here count towards their time in the Spanish system? I had the privilege of meeting some Spanish nurses working in Taunton. They thoroughly enjoy working here but would be really anxious were this to go, because they would then feel that they would not be able to return home with any credit for the work they have done here. My noble friend Lady Thornton has already covered the issues that the scrutiny committee raised.

Moving away from the healthcare professions, why have the results of the consultation process relating to the Human Medicines (Amendment) regs and the other two SIs we are discussing not been released? Instead, the Government have provided a response that gives little transparency on any key concerns that were raised during the consultation process, or the specific organisations approached. The changes laid out in the SI are wide-ranging and many call for the establishment of new responsibilities, transference of powers or further discussions with EU counterparts. Is it realistic that the industry will be able to handle these changes in the short period remaining before 29 March and during the transition period afterwards? The MHRA does really good work and I assume that it will be taking on this work independently of the EMA, so will the MHRA receive additional funding to support this extra work?

Moving on to the Medicines for Human Use (Clinical Trials) (Amendment) (EU Exit) Regulations 2019, noble Lords got very exercised about this issue in the immediate aftermath of the referendum. The impact assessment says:

“Although this contingency legislation aims to help business in their preparations for a no-deal scenario, there is a risk that due to the requirements set out, businesses will not have sufficient time to prepare. In the event of no deal being agreed with the EU before 29 March 2019, the MHRA will have regulatory processes in place so that businesses will have the relevant information to prepare for this scenario”.


Are we to take it from this that if we crash out with no deal on 29 March, not having agreed this with the EU until directly before, the regulatory process will not be in place?

I thank the Minister for listening and, as I said, I am quite happy for her to write if she is not able to respond to all these questions now.

--- Later in debate ---

[Lord Deben (Con)]

My Lords, I trust that the House heard with great pleasure the Minister’s comments on how major an advantage this whole arrangement in the European Union has been to us. We should not be discussing any of these SIs without reminding people that our membership of the European Union has been a huge advantage to us, and that what we are doing at the moment is picking apart something which is to our advantage, for reasons which are increasingly difficult to understand. We should not allow any of this to go past without constantly reminding the Government that they are leading this country into a position in which it will be poorer and less advantaged than when they came to power. A historic responsibility will lie on their shoulders, and we should remind them of that constantly.

My concern in this whole debate is that we are being asked to discuss this SI under a double falsehood. The first is the argument that we need it because we might crash out of the European Union, but that we need not be too worried because we will not crash out. The second difficulty is that, if we do not crash out of the European Union, we are legislating for a series of things which will be there in the course of further negotiations. Even if what is referred to at the moment as the Prime Minister’s “deal” were to be accepted—and it is manifestly not satisfactory—it is not a deal at all. It is an agreement to go on discussing to get a deal. During that period of time, what we are discussing here will be there in the background. There have been a number of occasions on which Opposition spokesmen have rightly pointed out that the trouble with these things is that if they are in the background while we are negotiating, they have a real effect. We have to take this very seriously.

Nor should we pass over the problem we are presenting ourselves with. We are saying that, to get the best advantage out of this ludicrous foot-shooting activity, we are going to make sure that every European Union national can come to this country to do what we want them to do without there being any difficulty. Of course, we cannot do any of the things that have made that particularly valuable in addition; we are not going to share the information both ways, which is what the European Union enabled us to do. Rather like the noble Baroness, Lady Thornton, I have a real concern that the IMI system will not continue. The idea that you can happily forget about it because it happens to be convenient, and do the things you can do because they happen to be convenient, seems to me an abnegation of responsibility which I find extremely difficult to accept.

The noble Baroness, Lady Jolly, rightly referred to the additional matter of the electronic alert system. We will not be alerted to the very professionals we most want to know about, because we will have decided that, because Britain is so ultimately different from everywhere else, we will not have this association. I know it is not the fault of the Minister, who is having to defend the ridiculous situation in which we find ourselves, but it is for this House to remind people all the time of what this really means.

Then we go on to the fact that these regulations are in conformity with the withdrawal Act, which says that we are not going to use it to create any new legislation, but merely take into national legislation things that would not be in it if we left the European Union without any agreement. The trouble is that this is not actually possible, because we have to have regulators making decisions. They are now going to make decisions under a new regime—in that sense it is a new regime—and I very much want to hear the response to the noble Baroness, Lady Thornton, on how we make sure the regulators make, roughly speaking, the same decisions across the whole range, and how we make sure that those regulators do not make decisions that extend or change the position we are in now. The latter would be contrary to the undertakings given by the Government.

However, the word that I very much worried about when the Minister used it was “flexibility”. She said that no longer being in the European Union would give us a flexibility on the establishment of professional qualifications which we did not have up until now. I do not think that flexibility can possibly be accepted within this SI, because that genuinely changes the position from what it was before. It may be that it is convenient for the Government to talk about flexibility as an advantage. I find it pretty difficult to see what that advantage would be. What would be the point of being flexible in changing our arrangements in such a way that they were out of line with the arrangements of our neighbours, when we rely upon those neighbours for such a high proportion of our professionals? It seems to me that flexibility is one of those convenient words used by the Government and those who believe in Brexit to suggest that there are some advantages hidden here which we have not yet got hold of. I do not think that there are, or that it would be legal for us to use flexibility under this SI, because it is specifically not supposed to introduce into our legislation anything that we have not had up to now.

I am afraid I will move on to something that I constantly say; that there is no impact assessment here. Why is there not? This is the real reason I say to the Minister that this is unacceptable. The reason there is no impact assessment is that the Government want us to believe that there is no impact. It is very inconvenient for the Government to say that the impact is that we will no longer have the advantages we had before leaving the European Union. They ought to be listing those advantages and explaining what the impact on us will be. But they are not doing that, because that would make more and more people aware of the lunacy of the measures we are now taking, and the ridiculous position in which Brexit places us.

But then there is another question. If you do not have an impact assessment, you also do not appear to have any idea about how much it will cost. I am afraid that I am a Conservative, and I am always interested in costs—I like to know how much it costs. I know that that is a disadvantage in the whole Brexit discussion, because the one thing we never get is the cost. It is amazing, is it not? We have a Conservative Government who never talk about the costs of Brexit, which is an absolutely ludicrous position for us to be in. Let us ask ourselves—I repeat the words of the noble Baroness, Lady Thornton—“What burden? What resources? What cost?”

One of my difficulties is that I have had the misfortune to have had to sit through a large number of these SIs, and every time you ask about the cost, the Minister concerned explains—charmingly, and with considerable aplomb—that the costs are negligible.

[Baroness Thornton]

Negligible.

[Lord Deben]

I have got it right this time. That is what they say. In every individual case, negligibility may well be the truth, but what is negligible in one case, when added up with a lot of other “negligible” costs, ends up being rather expensive. I am amazed at the number of things you can do with negligible cost. We are filled with these SIs—with all the things that we can do for nothing. I ran businesses, and I have to say that I do not know anything you can do in business which does not cost you something. I would love the Government to explain to me how they are managing to move whole areas of control and regulation over to British regulators without any cost. I would be able to apply that to my businesses and it would be extremely valuable, because all I know is that the moment you change or move anything, it costs money.

I want to know not only how much it costs but whether we have the resources for it. It is also said that we have these organisations that are perfectly capable of doing all this, as if this is an easy thing to do, when in fact it is not only difficult, but if we get it wrong, we are endangering people’s lives. Clearly, we have not worked out what the cost of doing this is; I just do not understand whether we have the human resources and the trained resources to do it. After all, we have shown so far that we cannot run the National Health Service without large numbers of people coming in from outside. I would like to understand whether we can regulate all this without some additional resources, and if so, we ought to know exactly what resources we will need and how much they will cost.

I am sorry that I have to say this to the Minister with such vigour, but it needs to be said; otherwise, this House looks pretty damn stupid. We look as if we are sitting around, having a gentle argument about what is the programme for catastrophe. This is what we are talking about: how a nation decides how to put itself into a very much less favourable position than it is in at the moment. Sometimes people say, “Ah, but Britain will manage—look what it did during the war!” But we did not ask for the war; we did not say that we wanted it. It happened, and we said that we had to fight it. Here we are asking for it, and are seriously sitting around planning for it. We are asked to do that with a degree of politeness and charm, and courtesy and care, when we ought to be very angry indeed that any Government should even suggest that we need SIs like this.

--- Later in debate ---

[Baroness Blackwood of North Oxford]

I apologise to the noble Lord for missing out on my answers to his questions; that was most remiss of me. These SIs come into force only if there is a no-deal exit. Should there be an extension of Article 50, they would not come into force until or if there is a no-deal exit, which is obviously most undesirable and something the Government are seeking to avoid.

On the communication of the effect or implementation of these SIs, they have been developed in close collaboration and consultation with the regulators that would be impacted. They are well informed about their operation, and given that the effect of the SIs is to continue with business as usual as far as possible, we hope that that is the de minimis effect. I shall write to the noble Lord in response to his final question, as I am afraid I have forgotten what it was.

[Baroness Thornton]

My Lords, I thank the Minister for her extensive response and noble Lords for their interventions and questions on this SI. The indignation and anger of the noble Lord, Lord Deben, has been reflected right across the House. Noble Lords may not express it quite as well as he has, but it absolutely is there. We have just spent an hour and 10 minutes debating this issue. Then there are all the hours of preparation, the cost of civil servants, the cost of our time and, indeed, the worry that all this is causing, not only to us in the Chamber but to millions of people outside. As the noble Lord, Lord Deben, and others have said, the Minister has done the best she can with the hand she has been dealt and answered our questions to the best of her ability. However, this is not where any of us wants to be. On that basis, I shall withdraw my amendment.

Amendment to the Motion withdrawn.