Professional Qualifications Bill [HL]

Debate between Lord Hunt of Kings Heath and Lord Purvis of Tweed

Committee stage
Wednesday 9th June 2021 Lords Chamber

[Lord Hunt of Kings Heath (Lab) [V]]

My Lords, as we are at the start of the Committee stage, I declare my interest as a board member of the GMC, although I am speaking on the Bill in a personal capacity.

I support Amendment 1. We have a real problem with the skeletal nature of the Bill and the extensive use of Henry VIII clauses. It is a great pleasure to follow the noble and learned Lord, Lord Thomas of Cwmgiedd, whose powerful intervention illustrated some of the problems. The power in Clause 1 could be used to make provision about a huge range of matters relating to applications to practise a profession. Extensive powers are delegated to Ministers. As the Delegated Powers and Regulatory Reform Committee has pointed out, neither the Explanatory Memorandum nor the Explanatory Note gives adequate reasons for the extensive use of Executive power. I will come back to this during Committee, but the Minister should at least have a shot at explaining why Executive powers are needed to this extent. So far, we have not heard a reason.

The Delegated Powers Committee illustrated the example of the dentistry profession. Dentistry is one of the professions for which regulation is provided in primary legislation. The Dentists Act 1984 includes a provision to recognise overseas qualifications. Holders of overseas qualifications who wish to qualify for registration as dentists in the UK must not only have a recognised overseas diploma but, as a starting point, they must sit an examination to satisfy the regulator that they have the requisite knowledge and skill. They must also satisfy the regulator as to their identity, good character, good health and knowledge of English. The committee says that Clause 1 appears to allow such requirements and other comparable requirements in primary legislation relating to other professions to be watered down by statutory instrument, if Ministers considered this necessary to enable demand for the service of the profession in question to be met without unreasonable delay. I do not need to remind the Minister that the dentistry profession is under acute pressure.

My reading of the Minister’s amendments in Clause 1, which are welcome, is that some protection is provided, because regulations can specify additional conditions for a professional’s overseas qualifications to be met. But, of course, that depends on the Minister taking the necessary action. It also appears that Clause 3 could be used to implement an international agreement that encompassed an override in respect of the actions of a regulator. The noble Lord, Lord Fox, referred to this, and, again, we will come back to Clause 3 later today.

So there is a need to safeguard and protect the integrity of the regulators and uphold the public interest in high standards among the professions covered by the Bill. The noble Lord, Lord Fox, has attempted to draft such protection, and I hope that the Minister will be sympathetic. If not, he needs to realise that the current construct of the Bill will simply not do, and the House would be right to insist on further protections.

[Lord Purvis of Tweed (LD)]

My Lords, the noble Baroness, Lady Noakes, raised her consistent point, for which I give her respect, about declaratory statements within legislation. My noble friend Lord Fox, in bringing forward his amendment, which I had the pleasure to cosign, is justified in this instance, given what other noble Lords have said within this group. The Government have not provided the level of detail about the potential use of the extensive Henry VIII powers under this legislation in particular. Therefore, a statement that these powers should not be used to impact upon the independence of our regulators is of great importance.

That has been not endorsed but reflected in the Delegated Powers and Regulatory Reform Committee’s report. As has been my wont over many years in this place, I have taken great joy in reading Delegated Powers and Regulatory Reform Committee reports—I did not have grey hair when I came into this place. It is rare that a committee report such as this can be so clear. On the Trade Bill, the Minister was given great credit when the committee cited support of the Government and raised no issues, but in this area, it could not be clearer. So the calls of the noble Lord, Lord Hunt, and my noble friend Lord Fox for greater clarity are important.

The committee, in paragraph 8, said of the fact that no adequate explanation was given:

“This is particularly disappointing given that … as the Government have acknowledged, most of the substantive changes to the law envisaged by this Bill are to be made through delegated powers rather than the Bill itself.”


Therefore, a statement such as this amendment is clearer. So we agree with the committee that a much fuller explanation of the provision to be made in regulations under Clause 1, and the justification for that provision, is required.

The Government did not need to go down this route, as their own impact assessment indicated. The impact assessment started, under the Minister’s signature on the opening page, by giving reasons for the alternative approaches, and included:

“For recognition of overseas qualifications: a fixed (one size fits all) approach; and a risk/benefit system.”


I think there would be common ground between most of us on these Benches and the Minister on risk/benefit systems usually being best. But no, the Government have opted for “one size fits all”.

The impact assessment goes on:

“For regulators and international recognition agreements: arrangements for specific regulators.”


As we will no doubt hear in other groups, specific regulators have specific legislative underpinning for their own purpose and require scrutiny on a case by case basis. But the Government rejected it. And they rejected for information transparency a non-legislative guidance-based approach. So it is the Government’s choice to go down this route, which opens up a lot of areas where they should be much clearer in indicating the intent behind the regulation-making powers they want.

The Minister said on Second Reading that this Bill, while a framework, was the result of a considered view from reflecting and consulting with regulators as well as more widely with stakeholders. So I was frankly amazed to read that there is currently, for the healthcare professions, a live consultation on regulatory reform. It started on 24 March and closes a week today; it has not even closed yet. That consultation, Regulating Healthcare Professionals, Protecting the Public, touches on governance, the operating framework, fees, education and training, registration and fitness to practise. At paragraph 10, on the governance and operation framework, it says that the Government are

“proposing to devolve many of the decisions about day to day procedures to the regulators themselves, whilst ensuring that they continue to meet their overarching objective to protect the public.”

But this Bill provides the Government with Henry VIII powers to do exactly the opposite when they choose. So I ask the Minister: which is the Government’s intent—the one in the Bill we are scrutinising at the moment or the consultation that has not yet closed?

Paragraph 17 says that the regulators

“are accountable to the Privy Council … and the PSA provides oversight of how they carry out their regulatory functions. The Privy Council has default powers to direct most of the regulators if they fail to deliver their objectives. However, this does not apply to the GDC and GPhC. We propose that the GDC and GPhC are included within the Privy Council’s remit.”

So the Government, in their consultation, are seeking to expand the role of the Privy Council with its default powers, while this Bill is going in the opposite direction. So could the Minister explain what the relationship will be between the regulation-making powers in this Bill and the Professional Standards Authority? Can these powers be made to change the Professional Standards Authority’s legislative standing and how it provides oversight to the regulatory bodies it provides for? And what is this Bill’s relationship with the Privy Council? The Privy Council, as the Government say in their own live consultation at the moment, is the body these regulators are accountable to.

Paragraph 23 says:

“The proposals set out in this document aim to give regulators greater flexibility to determine how they set standards for, and quality assure, education and training.”


But the powers under this Bill will provide—in a way the Government have not yet provided information on—Henry VIII powers to completely determine what they are for the set purposes. So restrictions on the Government’s ability to use those powers which will impact upon this legislation are necessary.

The element of the consultation I thought was quite extraordinary is that the Government themselves say that when it comes to regulation of the medical professions they will go down a different route to change the legislation. The Government’s consultation says:

“We intend to implement … changes for each of the healthcare professional regulators through secondary legislation made under Section 60 of the Health Act 1999.”


There is no reference to any mechanisms under the Professional Qualifications Bill, so what is the Government’s intent for the Henry VIII powers under this Bill, with their already publicly stated intent to use the Health Act for medical?

Finally, the Government’s consultation closes with this:

“While we are required to hold a public consultation on all draft secondary legislation made using the Section 60 powers, we are taking this opportunity to seek views on the proposals that will, in due course, apply to all the professional regulators and all regulated healthcare professionals.”


On Second Reading, the noble Baroness, Lady Hayter, made a very valid request of the Minister, which was to see some draft regulations about the intent before we conclude our scrutiny of this Bill in this House. The Minister refused her.

The Government’s consultation says that they are

“required to hold a public consultation on all draft secondary legislation”

when they change the regulation of health professionals, so what is the Government’s position on this? The Government say, in paragraph 407 of that document:

“We also intend to commission a review of the professions that are currently regulated in the UK, to consider whether statutory regulation remains appropriate for these professions.”


Clearly that is not the case, because the Government have decided so, as I said at the start of my contribution. Can the Minister tell us what the status of this consultation is, if so many issues have been pre-decided by the Bill?