Professional Qualifications Bill [HL]

Lord Moylan Excerpts

2nd reading
Tuesday 25th May 2021 Lords Chamber

[Lord Moylan (Con)]

My Lords, it is a pleasure to speak after the noble Baroness, Lady Meacher, who makes important points about delegated legislation. No doubt we will return to them.

I declare my interest as an honorary fellow of the Royal Institute of British Architects. I assure noble Lords that this does not qualify me in any way to practise architecture—quite the reverse—but I mention it because Clause 11 of the Bill is devoted to the architectural profession. Although RIBA is not a professional regulator—noble Lords will note from the text of the Bill that this role is reserved by statute to the Architects Registration Board—none the less the clause may affect its members. In that respect, it is a matter of regret that the consultation that the Government have been undertaking on changes to the Architects Act has not been published in time for consideration in this debate. I understand that it is expected imminently. It is a pity that it is not available today, but I hope my noble friend the Minister can give some assurance that this response will be available before Committee. It is necessary, and would at least be extremely helpful in addressing Clause 11 if we could understand the context of policy in which the Government see this whole question, going forward.

I broadly welcome the Bill. In many ways I share the enthusiasm of my noble friend Lady Noakes for the scrapping of EU legislation but, like many other noble Lords, I am somewhat confused by the Bill. In some ways, this is not helped by the order in which its clauses are written. There is a degree of randomness about them. The start of the Bill is really Clause 4; that is the heart of the whole thing, and it is a permissive clause which allows the professional bodies in the scope of the Bill to enter into agreements with corresponding organisations in other countries. There cannot really be an objection to that. The only question, as hinted at by certain noble Lords, is why in a free society such permission from the Government is necessary. None the less, it cannot be objected to.

However, having addressed Clause 4, we must turn back to Clause 1, which makes a very important point. In effect, it says that there may be cases where the public interest requires the Government to intervene to ensure that those professional regulators are undertaking, or at least creating, a route by which those mutual recognitions can be put in place. The assumption is that there is a recalcitrance or a failure on the part of the professional organisations to carry out what they are permitted to do by Clause 4, and I do not object to that as such. Of course, in many cases, there may be reasons of public interest why the Government might want to act to make something happen, but it is not a very strong clause. Out of respect for the professional bodies or professional regulators, all that the clause does is require them to put in place a route whereby such applications can be processed. There is nothing in the clause mandating them to approve anybody or to ensure that something is coming through the envisaged pipeline. Therefore, it is rather weak as a measure for addressing what would have been an identified public interest.

A public interest is a very broad thing. One can imagine a public interest that covers a whole range of matters in which the Government could quite properly want to take an interest to ensure that action by the professional bodies would occur. But then we turn to Clause 2, which does something else. It says that there is only one public interest that the Government will contemplate that will allow and authorise them to take steps under Clause 1, which is a lack of supply, if noble Lords see what I mean, to meet something called demand in the domestic workforce. We are now going to say that, having taken this reasonable power—not a very strong power, but a reasonable one—to act in the public interest, the Government will limit themselves to using it only where there is a demonstrated demand.

This is the part of the Bill that causes me the most concern. Here I am repeating to some extent things that other noble Lords have said or hinted at. The first is that it seems to limit the sense of public interest unnecessarily tightly. I have made that point. The second is, as some noble Lords have indicated, that it will lead to endless debate about footling questions that are in many cases bound to end up the subject of judicial review: what is the right number of tax accountants for Wales? What is the appropriate number of lawyers or advocates in Scotland? There is no right answer to these questions, but this is the substance of a debate that the Government are inviting upon themselves every time they seek to exercise the powers. I say the Government—here, of course, I mean the national authorities, because it will not necessarily be this Government who exercise the power. Every time the national authority seeks to exercise this power, it will walk straight into this quagmire. I simply do not see any reason for it.

The third thing is that it links the Bill to immigration. A great deal of the debate we have had this afternoon has been not really about the recognition of professional qualifications but about the right to work in the United Kingdom. The Bill, although it stretches into the world of immigration, has no immigration effects. Simply having this qualification, even if there is a demand for it, does not necessarily give you the right to work here; no work permit flows from this. One is treading into the world of immigration policy without actually having an effect on it. That complicates the Bill very unnecessarily.

As background to my remarks—this will not necessarily be welcome to the many professionally qualified people who have spoken in the debate; I hasten to add, in case there was any doubt, that I have no professional qualifications at all, so I am not among them in any sense—although I do not share the caustic view of the noble Lord, Lord Sikka, of the professional bodies in his own sphere of activity, I come with a certain sort of scepticism and suspicion that professions often seek to limit entry into their profession with a view to generating a scarcity premium. Criticise me if you like, but I have to say that many regulators end up being captured by the professions they seek to regulate.

My worry about connecting this to immigration is that it puts the debate in the wrong place and gives to the regulators the notion that they are there as an arm of the immigration system, whereas we want them to carry out as objectively as possible the accreditation of foreign qualifications to the standard that the Bill requires—although that standard might change in the course of further stages. That process ought to have no consequence or connection to immigration at all. All that made me think that the Bill might be better without Clause 2 at all.

All that can be tested later and I hope I have laid out what I see to be the main issues. I must end by saying how grateful I am to my noble friend the Minister for the time he gave me to discuss these issues and explain them to me. While I feel that I understand the Bill better as a consequence, it may be that he has yet more to teach me, that I may not understand it well, and that he may win me over to his point of view entirely. We have opportunities to pursue that over the coming weeks and I look forward to them.

Corporate Insolvency and Governance Act 2020 (Coronavirus) (Extension of the Relevant Period) Regulations 2021

Lord Moylan Excerpts

Tuesday 18th May 2021 Grand Committee

[Lord Moylan (Con)]

My Lords, I support this measure. It is right that the Government should take action to protect corporates from insolvency in the current pandemic emergency situation. The Explanatory Memorandum makes it clear that the measures are designed to help UK companies and “other similar entities”, so I hope I will be forgiven for pointing out that the measures have no effect and give no relief for those running businesses as self-employed persons from the equivalent of corporate insolvency in their case, which is of course personal bankruptcy. This also applies to the directors of small companies who have been required to give personal guarantees to their creditors and landlords.

I take as an example for the benefit of the Committee a bespoke tailor of my acquaintance. Effectively, his business and the skills he has learned so hard over the years have been criminalised during the past year; it is impossible in practice to do an inside leg measurement without breaching Covid regulations. His past earnings—now very much in the past—exceed the limit for help under the self-employed income scheme that the Chancellor has made available. Of course, trading as he does from shop premises, he is protected from eviction and has had business rate relief, but he is not immune to personal bankruptcy proceedings brought by his landlord. Bankruptcy, even more than corporate insolvency, threatens one’s home, one’s family and one’s reputation in a terrible way. It is a terrible threat to live under. My example is only emblematic, of course; it applies to the self-employed as a class, especially those trading from business premises and, as I said, to directors of companies.

Short of legislation, because legislation is not the essential answer to everything, there are things that the Government could do. For example, they could prevent such claims coming before the courts for a period to come—certainly while the pandemic lasts and for a period beyond—in the same way as they have prevented actions for eviction being brought before the courts. They could even use the force of moral suasion—the bully pulpit, if you like—against unscrupulous and unforgiving landlords. There may be other things that they can do to get landlords and tenants working better and more effectively together. I hope that my noble friend will be able to offer some words of support to those in this very difficult position.

[The Deputy Chairman of Committees (Baroness Healy of Primrose Hill) (Lab)]

The noble Viscount, Lord Trenchard, has withdrawn so I call the next speaker, the noble Lord, Lord Bhatia.

United Kingdom Internal Market Bill

Lord Moylan Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Wednesday 9th December 2020 Lords Chamber

[The Deputy Speaker (Lord Russell of Liverpool) (CB)]

The following Members in the Chamber have indicated that they wish to speak: the noble Lords, Lord Moylan and Lord Naseby. I call the noble Lord, Lord Moylan.

[Lord Moylan (Con)]

My Lords, I recognise that the noble and learned Lord, Lord Hope of Craighead, and many other noble Lords who have spoken on this subject burn with a passion for their interpretation of the rule of law, but I ask them to reflect that statute needs to have more than principle; it needs to have practicality in its application as well. The effect of these clauses resubmitted in lieu would be to tie the Government’s hands completely in response to any emergency that might arise in Northern Ireland which might need to be addressed. I look in vain in these clauses for any exception that says, for example, “in an emergency”, “if the food in the supermarkets runs out” or “if there is a shortage in supply of medicines”. In such cases, those matters, as I understand these clauses, would need to be addressed through the joint committee, and if the European Union was not willing to accept them, it would need to go through a lengthy process of arbitration. I do not believe that that is acceptable.

My second point relates to devolution and democracy in Northern Ireland. The effect of these clauses is to privilege a particular interpretation of a particular international treaty, the withdrawal agreement.

[Lord Cormack (Con)]

You have got the wrong bit of the Bill.

[Lord Moylan (Con)]

This is very much how I read the clauses, but if noble Lords generally feel that I have got the wrong bit of the Bill, then I shall subside at that point.

[Lord Naseby (Con)]

My Lords, the news that my noble friend from the Front Bench gave us this afternoon is encouraging. Clearly, discussions have been taking place and issues have evolved from them. I do not think that any of us in your Lordships’ House expected every single one of the agreements necessarily to be in a state to be written in and accepted in toto. To hear that 30 agreements have been agreed in broad principle is very encouraging news.

As someone who had a commercial life before coming into the political world, I wonder sometimes whether all your Lordships really understand. A chief executive—such as I was for a division of Reckitt and Colman Group—needs to know, as a certainty, what is happening. They cannot call in the company lawyer and say, “Well, it’s no good, George, you telling me on the one hand this and on the other hand that.” They have spent 15 months producing a new product—or whatever it may be. I sat as MP for an industrial town, Northampton, and I know the industrialists there. I spoke to them on Zoom only yesterday morning, and they are deeply concerned. I then read that the reason why the Commons have disagreed with our Amendments 1, 19 and 34 is

“Because they will create legal uncertainty, which will be disruptive to business.”


I also reflect that I had the privilege—as some of my noble friends in the Chamber did—of being in the other place. They are elected by the people. They have close contact with industry and commerce. When I am told, in writing, that it will be disruptive to business and that is why these Motions A and A1 are before us, I accept it. We have done our part. We are a Chamber that asks people to reflect. We have done that bit and we have done it well. The time comes, at a certain point, when you have to decide one way or the other. In my judgment, Her Majesty’s Government have got it right at this point.

State Aid (Revocations and Amendments) (EU Exit) Regulations 2020

Lord Moylan Excerpts

Wednesday 2nd December 2020 Lords Chamber

[Lord Moylan (Con)]

My Lords, we have had so much contentious legislation in this Chamber recently, some of it causing noble Lords—including myself—genuine anguish, that my sole purpose originally in putting my name down to speak in this debate was simply to thank my noble friend for bringing forward an instrument around which I thought we would all be able to unite quite joyfully. After all, we as a country voted to leave the ambit of EU law, and noble Lords from all sides of the House have bought into that. Indeed, I recall that the noble Baroness, Lady Jones of Moulsecoomb, whom it is always a pleasure to follow, was a keen advocate of Brexit alongside us at the time. We achieved our objective.

Brexit was an inherently constitutional vote. It did not decide policy, nor what our future laws would be. It decided dramatically to change the locus of where those laws would be made, restoring that to our own democratic institutions and to the electorate on which they depend. Yet, here we are, four years later, still subject to the full panoply of EU law. So we should really be rejoicing at this statutory instrument which, for the first time, is wholly devoted to abolishing a whole range of EU laws—clause after clause. It does almost nothing else. It simply sends regulations bowling like ninepins off the statute book and out of existence.

The noble Lord, Lord Stevenson of Balmacara, seeks to persuade your Lordships to introduce a note of regret into this inherently joyful event. He is not happy for a number of reasons, principally—as far as I can make out—because he is not content to see elements of the existing regime abolished without knowing what will take their place. We might all want to know that; what will replace the Government’s state aid regime is a matter of keen interest. The Chancellor of the Duchy of Lancaster has promised us that it will be robust, and that is all we know. However, as my noble friend Lady Noakes has explained, this is almost entirely ungermane to the current instrument before us. She gave a number of reasons why it was not relevant —but there is another. It would be naive of the Government to put forward their state aid subsidy regime in the context of protracted negotiations with the European Union about our future relationship. The European Union intends to take that regime and, if it approves of it, seek to codify it in an international treaty or make it a precondition of such an international treaty. It wishes to recover its influence over our industrial subsidy strategy before it has even relinquished it—to de-democratise it and take it out of the hands of the electorate.

This seems a very strange path for a Labour Front-Bencher to pursue. The noble Lord, Lord Stevenson of Balmacara, will be well aware that, in recent years, even among the leaders of the Labour Party there has been a wide range of views as to the role of industrial subsidies. There is nothing wrong with that; in a democracy, there is bound to be a wide range of views. His Motion effectively begs a Conservative Government to take their as yet unknown policy and see it embedded in an international treaty. This would remove the opportunity for other political parties which may put themselves forward for election in future to make any meaningful change to it, which is a strange and difficult path to go down.

In the interests of our democracy and of maintaining democratic control over our policy, this amendment to the Motion should be rejected.

Product Safety and Metrology etc. (Amendment etc.) (UK (NI) Indication) (EU Exit) Regulations 2020

Lord Moylan Excerpts

Friday 27th November 2020 Lords Chamber

[Lord Moylan (Con)]

My Lords, good design and branding have been at the heart of commercial success at least since the Great Exhibition. For example, in 1913, Frank Pick, the legendary managing director of what became the London Underground, commissioned Edward Johnston to produce a typeface for that railway. That typeface is still in use to this day. It is a London icon—clean, simple, modern—and was the exclusive property of TfL until the copyright expired in 2015. It is used on signs, letterheads, the Tube map and everywhere you look.

If noble Lords turn to the sample of the form of the UKNI logo to be imposed on Northern Ireland businesses from the end of this year, they will find that it fails to meet that standard by a long way. To my mind, it is ugly, blockish and typographically illiterate, with its mixture of serif and san-serif letters, designed almost to hamper, rather than promote, the export of Northern Ireland goods and products. My question to my noble friend the Minister is who designed it. Did he have a hand in it himself, or was it produced by a committee? Was public money paid for it and, if so, can we get our money back? Is there anything that can be done, even at this late stage, to improve it?

My second question is more constitutional. Who is making this law? I understand, at a simple level, that this Parliament is clearly making this regulation, because it is in front of us for that purpose. But let us say that, a few months or some time down the road, the democratic leaders in Northern Ireland join together—as I am predicting they might—to say that this logo is not doing the job of marketing and branding, and they would like it changed. To whom would they write? Would it be to the UK Government, so that we could make that decision unfettered? Would they have to write to this strange and unaccountable joint committee that now appears to set many of the rules for the Northern Ireland protocol? Would they be reduced, as leaders in Northern Ireland—the DUP and Sinn Féin—were only a couple of weeks ago, to writing a begging letter to Brussels, in that case to ask if their supermarkets could still be supplied on the customary basis?

Given that Northern Ireland is the only part of Europe that I can think of that is, at the moment, being actively de-democratised, noble Lords would like to know the answers to those questions and have some assurance from my noble friend.

United Kingdom Internal Market Bill

Lord Moylan Excerpts

Committee stage & Committee: 5th sitting (Hansard) & Committee: 5th sitting (Hansard): House of Lords
Monday 9th November 2020 Lords Chamber

[Lord Mackay of Clashfern (Con) [V]]

My Lords, first, I want to say how sad I am at the passing of the noble Lord, Lord Sacks, who was a great member of our community in this country and a very excellent Member of our House. It is a very sad day for us. He stood up for faith and he explained faith in a way that very few were able to do.

In my view, the rule of law is a fundamental part of our constitutional arrangements; that extends to international law as well as our domestic law. During my time as Lord Chancellor, I was privileged to visit a number of countries where it was obvious that our national reputation was built on that fact to no small degree. I confess to my reaction of shock when I heard the Secretary of State for Northern Ireland intimate the proposal that is the subject of these amendments. Parliament is, of course, sovereign in domestic law. Since the House of Lords decided in Anisminic that the then common form of clause-protecting decisions from intervention by the courts protected only good decisions, such protective clauses have become rarer.

It is also of fundamental importance in the international effort to preserve peace in the world. Your Lordships will remember the heavy burden borne by the noble and learned Lord, Lord Goldsmith, in having to give advice on the relevant international law relating to Iraq. I find it poignant that we are debating this immediately after our national recognition of the tremendous cost of war inflicted on our nation. I should of course make it clear that there are lawful ways of getting out of a treaty, as provided by the Treaty of Vienna.

I do not wish to take any part in the discussions taking place tonight, including by my predecessor—whom I am glad to follow—into the situation that arises on the present discussion of the protocol. In my opinion, however, the withdrawal agreement, and the Northern Ireland protocol in particular, make it as plain as language can that its provisions are without prejudice to the provisions of the 1998 agreement in respect of the constitutional status of Northern Ireland. That principle can be used in the proper interpretation of the somewhat conflicting provisions that exist in the protocol itself, but the point is that it makes it absolutely plain that the 1998 agreement is to be respected as part of, and as a prerequisite to, the implementation of the agreement. I therefore consider it unnecessary to say, as this part does, that the Government authorise the possible breach of international law.

[Lord Moylan (Con)]

My Lords, it is daunting to speak after the noble and learned Lord, Lord Mackay of Clashfern, and to find myself disagreeing somewhat with a former Lord Chancellor. I am not a lawyer; I feel as though I have stumbled into a convention of highly distinguished lawyers. Had I stumbled into a convention of highly distinguished grocers discussing this subject, they may of course have taken a rather different tone and approach to the practicalities of the matter.

At the heart of this claim about the rule of law is a statement made by the noble and learned Lord, Lord Judge, in his speech at Second Reading, that the rule of law is indivisible. This is not a legal point but a point in the philosophy of law, and it is highly contestable. The implication is that a breach of international law, however small, will lead to, for example, a rising murder rate in Scotland or the reckless parking on double yellow lines of vehicles in Birmingham—or, indeed, that the Government of China might observe their obligations better if we did not pass this Bill.

However, people outside this House understand that that is not how law works. They understand that international law is a distinct realm in which practical relations between states are codified but do not endure if they place intolerable burdens on one party. That brings us to the substance of this part of the Bill: the intolerable demands being placed on the coherence of the United Kingdom by the manner in which the European Union is seeking to interpret and implement the Northern Ireland protocol.

Some noble Lords, in talking about this in relation to another treaty—the Good Friday/Belfast agreement—presented the alternatives as straightforward: either punctilious observation of the Northern Ireland protocol or the return of the bomber and the gunman. In fact, that was very much the gravamen of the speech made by the noble Lord, Lord Hain, at Second Reading. This is a simplistic view of the state of affairs in Ireland; it rests on the fallacy that the Good Friday agreement requires the absence of a goods border on the island of Ireland. As the noble Baroness, Lady Hoey, said, that simply is not true; the Good Friday agreement says nothing at all about goods borders on the island of Ireland. It says a great deal about the principle of consent of both communities—a principle that seems to have gone seriously astray—but about goods borders it says nothing at all.

In those circumstances, when challenged, people who take that view refer not to the text of the Good Friday agreement, where they do not find such a mention, but to its context. You cannot insist on the detailed written text of the Northern Ireland protocol while ignoring the detailed text of the Good Friday agreement and instead appealing to its context. The truth is that we have entered into a mesh of largely conflicting treaties. They do not mesh well, and the question is not whether some of those principles are going to go but which will. I noticed that, when the noble Lord, Lord Newby, spoke, he quite happily cast away the principle of unfettered access of trade between Northern Ireland and Great Britain. He does not believe that it can exist in practice, but that is because he prefers one interpretation of that complex and contradictory agreement to another.

It is an understatement to say the situation in Northern Ireland requires details and nuanced handling. An illustration of that emerged even after that debate, with the breaking news that the First Minister and Deputy First Minister of Northern Ireland, representing the DUP and Sinn Féin, had written jointly to the European Commission to object most strongly to the idea that supermarket vehicles travelling from Britain to Northern Ireland might have to be subject to border checks—but it is entirely within the Northern Ireland protocol that they should be. It is a subtle situation in Northern Ireland; if you can unite the DUP and Sinn Féin on that point, it shows that simplistic views need to be avoided.

What we face is a determination, dating back to 2016, that the EU take economic control of Northern Ireland, despite the fact that even that is contrary both to the Good Friday agreement and the EU treaties themselves, all of which recognise that Northern Ireland is fully part of the sovereign territory of the United Kingdom. I am afraid that too many Members of your Lordships’ House have adopted that view. My own view is that I do not agree with them and that it would be nice if a few more Members of the peerage of the United Kingdom actually spoke up for the United Kingdom.