Professional Qualifications Bill [HL]

Lord Hope of Craighead Excerpts

2nd reading
Tuesday 25th May 2021 Lords Chamber

[Lord Hope of Craighead (CB) [V]]

My Lords, it is a pleasure for a lawyer to follow a speech by an actuary. My concern is about the way the Bill will affect the legal profession in Scotland. I must declare an interest as I am a non-practising member of the Faculty of Advocates. At a previous stage of my career, when I was Lord President of the Court of Session, I had some responsibility for the regulation of the solicitors’ profession in Scotland and before that, when I was Dean of the Faculty of Advocates, for the regulation of members of the Scottish Bar.

The new framework which this Bill seeks to create is needed and, in principle, it is to be welcomed. The current interim system for the recognition of professional qualifications and experience from overseas derives from the UK’s membership of the EU, so what we need now is a new framework that will meet the demands for professional services within the UK in the future, which is what Clauses 5 and 6 are about. Qualifications and experience gained outside the UK need to be recognised here where there is a demand that cannot otherwise be met without unreasonable delays and charges. We must be able to implement new international agreements about the recognition of professional qualifications that will enable us to do that. The broad aim of providing regulators with a consistent set of powers that will maintain standards is to be welcomed too.

However, regulation of professions is a complex business. As many noble Lords have said, the Explanatory Notes tell us that there are more than 160 professions in the UK and that they are regulated by a network of more than 50 regulators, and there is a range of other professions that are regulated voluntarily. This is a huge canvas. The noble Lord, Lord Palmer of Childs Hill, was not overstating matters when he referred to icebergs and albatrosses. The centralised systems which this Bill seeks to create will work only if the diversity that exists across the UK is fully respected. I use the plural word “systems” because, while the regulation of architects, auditors and most health professionals, but not social work and social care, is a reserved matter under the devolution systems, the regulation of many others is devolved. The need to recognise diversity does not end there. The variety of regulatory systems across the professions within the devolved Administrations needs to be fully recognised and respected too.

I suggest that consultation with the professions will be essential before the regulation-making powers are exercised. The Bill is remarkably silent about this. There is no mention of consultation anywhere in the Bill, or in the Explanatory Notes either, so far as I can see. I hope that the Minister can explain why that is so. If consultation is expected, why does the Bill not say that consultation is required?

As regulation of the legal professions in Scotland is wholly devolved, the appropriate authority in their case will be Scottish Ministers. It will be for them to decide whether the test which Clause 2(2) sets out is met—that is, to enable demand for legal services to be met without unreasonable delay or charges. That does not seem to be the situation at present. It is difficult to know how readily that test will be met in future in the case of legal services, so we must assume that that matter will arise sooner or later. Annexe A to the Explanatory Notes tells us that a legislative consent Motion will be sought from the Scottish Parliament. I suspect that that is in the future because there has been an election and the Scottish Parliament has only recently resumed its work. So far so good, but we need to be sure how the system that is being created will work for the legal professions in Scotland before that stage is reached.

The Law Society of Scotland already has in place a system of regulations made under the Solicitors (Scotland) Act 1980 for the recognition of international candidates seeking to requalify in Scotland to practise as solicitors. It is likely that they will need some amendment if they are to give full effect to the provisions in Clause 1. The process for amending regulations made under that Act is lengthy, and it requires the concurrence of the Lord President. As I understand the definition in Clause 16, he is a regulator for the purposes of the Bill. One would want to be sure that he would at least be consulted before the power in Clause 3 to implement is exercised, in view of the overriding responsibility that he has over that branch of the legal profession and the highly sensitive nature of this clause, to which the noble Baroness, Lady Noakes, has drawn our attention. Then there is the question of who would be the specified regulator for the purposes of Clause 1. I hope that it would be the Law Society of Scotland itself, which handles the day-to-day detail, not the Lord President, as the other regulator. The provisions in Clauses 8(4) and (5) seem to support this approach. Does the Minister agree with that?

The Faculty of Advocates, to which all practising members of the Scottish Bar must belong, has a different system. Regulation of the faculty is provided for by Section 120 of the Legal Services (Scotland) Act 2010. It states that the Court of Session is responsible for prescribing the criteria for admission to the faculty but that its responsibilities are exercisable on its behalf by the Lord President or the faculty. Here, too, one would want to be sure that this rather complex system is fully respected by the Scottish Minsters before the power in Clause 3 is exercised. Consultation with the Lord President and the faculty must surely be a prerequisite, as they seem to be regulators within the meaning of Clause 16. Here, too, is the question of which of them will be the specified regulator for the purpose of Clause 1. I do not expect the Minister to provide a conclusive answer to that question, although any comment he might feel able to offer would be very welcome, but the Scottish Minsters will certainly have to answer it, and they would be wise to consult before the power is exercised.

I have one or two other short points. I welcome the provisions about the exchange of information in Clause 9, which will be of particular interest to the legal professions in the various jurisdictions in the UK, and the provisions in Clause 10. As for Clause 7, on the assistance centre, it would be helpful if the advice and assistance that is to be provided could be extended to providing information about visa and work permit requirements as well as entry requirements for the profession. Also, as this is to be a UK body, should the devolved Administrations not be consulted on the arrangements that are being made before it is set up? We must assume that at least some referrals for its help and guidance may come from the devolved nations.

Clauses 7(5), 9(4) and 10(7) state that the duty these clauses impose can be taken into account in determining whether any disclosure would breach the Data Protection Act 2018. This, as worded, does not seem to be much of a protection. Would it not be better to say that the existence of that duty is a defence?

Overall, this is a necessary Bill, but I suggest that more thought needs to be given to how it will work in practice.