Professional Qualifications Bill [HL]

Lord Purvis of Tweed Excerpts

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?

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[Lord Grimstone of Boscobel (Con)]

My Lords, if I may, because it is a point of some detail, I will write to my noble friend and place a copy of my letter in the Library.

[Lord Purvis of Tweed (LD)]

I say to the Minister respectfully: he did not assuage my fears, because he did not address them. Can he reassure me now, from the Dispatch Box, that none of the Henry VIII powers in the Bill will be used to impact the accountability of the medical professions vis-à-vis the Privy Council, or—whether in response to demand or otherwise—to impact any of the powers or the relationship between the professional standards authority and any of the regulators that it has responsibility for?

[Lord Grimstone of Boscobel (Con)]

I did not believe that my comments on this group would assuage the noble Lord’s fears, but I am sure that as we progress through the Bill my comments on this matter in later clauses will do so.

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[Lord Purvis of Tweed (LD)]

If I make a slightly longer intervention than I planned, it might allow the Minister to consult the Whips in order to respond to the noble Lord, Lord Lansley, in a constructive manner. Certainly, these Benches would appreciate it if the Minister was able not to move his amendment at this stage. Like my noble friend Lady Garden, I do not think that there is a large area of difference. I cannot speak for the Cross Benches—I see the noble Baroness, Lady Finlay—I am giving the Whip plenty of time here, I hope.

The Whip should not indicate to my noble friend Lord Fox for me to carry on speaking, because normally that is quite the reverse of what my noble friend asks me to do, which is to shut up. However, that said, I hope that the Minister will reflect on it. If he is able to respond positively with a nod, I will defer my actual comment until later on in the Bill—he is nodding enthusiastically to try to do that.

[Lord Grimstone of Boscobel (Con)]

My Lords, I apologise for the confusion. I am happy to have another look at Amendment 10 in the light of these comments. I commend Amendments 2, 3 and 6 to the Committee.

Amendment 2 agreed.

Amendment 3

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[Lord Purvis of Tweed (LD)]

I am grateful to the noble Baroness for bringing forward these amendments. She is very modest and did not tell the Committee whether they are considered opposition amendments, but, if it is not too unhelpful for her, I will say that I am very sympathetic to them. We have been considering them very carefully.

The noble Lord, Lord Lansley, quoted the interesting response from the noble Lord, Lord Grimstone. I think it was fairly clear that the Government intend to have these powers to, if they so choose, change the ability of the regulators to set fees for applicants. The Government will take those on board and then, for international trade purposes, set the fees for applicants. That changes the responsibility of the regulator quite dramatically, especially since many regulators, under law, have to seek approval from the Privy Council or the Scottish Parliament to do so.

I ask the noble Baroness, Lady Bloomfield, whether she might respond to the two times I asked the noble Lord, Lord Grimstone, about whether any of the regulations under this Bill will impact the oversight and accountability of the Privy Council regarding the setting of fees and the professional standards authority regarding its oversight. If the Government cannot, in Committee, offer reassurance on that point, then we are in a separate situation of considering the relationship of the Privy Council and Scottish Parliament.

If the Government intend to have the new powers now under the provisions of Clause 1(5)(e), which makes

“provision for fees to be paid in connection with an application”,

we have to look very closely at the impact assessment with regard to the impact of the Bill on fees. In their impact assessment, the Government have said that there is a high cost of this Bill of £42.82 million and a best estimate of £18.16 million. Let me be fair to the Government and take their best estimate of £18 million. The impact assessment says:

“These costs could be passed through in fee increases to professionals”.


I raised the staggering costs of this to professionals—the applicants—at Second Reading. The Minister responded that I should not be too concerned because this was not cost to the Government. It is not—it is to the applicants. I think the noble Baroness, Lady Noakes, and I agree; the Government do not have money—it is taxpayers’ money, as we are always told from that side of the House. The people who will be paying £18 million for this are the applicants. The Government say they want these new powers to reduce fees, but by implementing these powers the fees are going up. What is their plan, given that one completely contradicts the other?

The Minister may be able to help me out here as I do not know, but it may be that the Government are using the Home Office forecast of a 70% reduction in applicants from the EEA and Switzerland as a result of leaving the mutual recognition arrangements with the EU. Paragraph 90 of the Government’s impact assessment says that this

“may save resources by no longer assessing applications. It should be noted however that these regulators will also no longer receive the fee revenue attached to these applications.”

We could see a 70% reduction in the foreign fee applications, with an £18 million increase in this bureaucracy, which the Government say is going to be paid by British applicants.

I hope that the Committee is following me. If it is, I will refer back to the Department of Health and Social Care’s live consultation on the medical professions, which says in paragraphs 71 and 72:

“Four regulators (the GMC, GDC, GOC and the GPhC) can set registrant fees without any Parliamentary oversight. The remaining regulators can only implement fee changes with the approval of the Privy Council and, in some cases, of the Scottish Parliament ... We propose that all regulators should be able to set their fees in rules without Parliamentary oversight. This will make regulators directly accountable to registrants for the fees that they charge.”


However, this Bill will not do that; in fact, it is completely contrary to the proposals in the consultation for the medical professions to remove parliamentary oversight. The Bill is putting it in.

If that were not bad enough, the current situation for regulators setting their fees, as paragraph 73 says, is:

“Any fee changes, including those to put in place a longer-term approach, would require consultation.”


The Government are proposing—this relates to the point made by the noble Lord, Lord Lansley, about where the amendment of the noble Baroness, Lady Noakes, could fit—to put these regulations in place, with these provisions on fees and extra costs, through the negative procedure without any consultation. The Government are not only contradicting what they are saying to the medical regulators at the moment but weakening the ability of—or the requirement for—regulators to consult on who would pay these fees in the first place.

I would be grateful if the Minister could neatly wrap all this up for me because I am really struggling to work out whether BEIS or the Department of Health and Social Care is in charge of this situation. The impression I get at the moment is that no one is.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I will dwell on Amendment 18 in the name of the noble Lord, Lord Lansley. As he said, delays to services may not have anything to do with the workforce, although they may. I put my hands up: I live in a cladded building at the moment, and we feel strongly the lack of specialist fire surveyors to get things going. Therefore, one may have unmet demand for all sorts of reasons. Another one—save I would not want to say it to the ex-Secretary of State for Health—might be that the Government just do not spend enough money on the health service.

The issue that I really wanted to raise is not that one—I just cannot help teasing from time to time, as the Minister will well know—but the other point that the noble Lord, Lord Lansley, raised. In that letter sent by the noble Lord, Lord Grimstone, on 3 June to the Delegated Powers and Regulatory Reform Committee, which is in its report of Monday, the Minister said—it has already been quoted—that, in ascertaining whether there is an unmet demand for a particular profession, “delay” could be a factor. More surprising to me to hear from a Minister on that side of the House was his reference to “high charges” charged by the profession. Normally, that side of the House in particular would stray away from any government intervention in the setting of fees by professions or indeed any other service. As a consumer representative, I have often gone to the CMA or other regulators, saying, “We’re being ripped off”, and they say, “No; as long as the consumer knows what they’re paying beforehand and has the chance to take themselves out of the contract, we or the Government do not get involved in the fees charged to consumers”. As such, I find this unusual because it sounds like the Government are saying that if they felt that lawyers or surveyors, for example, were charging “high” fees—that was the word that the Minister used in the letter, not “excessive”—they could bring in regulation to open up the profession to outsiders. I hope that I have got that wrong, but it looks to me as if that is what this says, or it could be a way of defining it.

In a later group, we will come back to how we deal with skills shortages, and we will make comments at that point about the Government’s responsibility to fill any such shortages. However, at the moment, I ask for some explanation about whether it really is possible for the Government to put themselves in a position of defining whether a professional is charging excessive fees and, if so, being more sympathetic to bringing in overseas providers. Some clarity on that would be appreciated.

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[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

I have had a request to speak from the noble Lord, Lord Purvis of Tweed.

[Lord Purvis of Tweed (LD)]

Could the Minister repeat what she said at the Dispatch Box? She said that the regulators do not have parliamentary oversight in setting their fees. The Health Department’s consultation at the moment says that four do not but the remaining ones do. They have to secure the approval of the Privy Council and, in some cases, the Scottish Parliament. So which is it, and will any of these regulations have any impact on the relationship with the Privy Council and the Scottish Parliament when it comes to the fact that they have to approve changes of fees?

[Baroness Bloomfield of Hinton Waldrist (Con)]

Perhaps I can clarify what I said earlier. The Privy Council is the intermediary between independent regulators and the Government; it is essential to maintaining regulators’ independence, such that regulators are able to deliver their duties impartially. There is no relationship between the council and the Bill.

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As for Amendment 49 in the name of the noble Baroness, Lady Randerson, it is very interesting that five members of the Common Frameworks Scrutiny Committee are participating in this debate: the noble Lords, Lord Foulkes and Lord Bruce of Bennachie—who made a very important contribution to our discussion—the noble Baroness, Lady Randerson, the noble and learned Lord, Lord Thomas, and myself. The common frameworks system is not yet all that well understood in government, but the noble Lord, Lord Bruce, described it very well when he referred to it as a mechanism for co-operation and consent. It is now becoming a well-established system for involving all four parts of the United Kingdom to achieve a system—without going through the statutory routes which the noble and learned Lord, Lord Thomas, so rightly criticised—through discussion and co-operation, and ultimately with consent, which will be respected. Whether the system will be used widely across the professions with which the Bill is concerned is a matter for speculation, but it is very important that, should that system be recognised, the common frameworks should be respected and protected, as is provided for in the internal market Act as a result of amendments made in this House. There is great force in those additional amendments, and I offer my support for them and for the amendments which the noble Baroness, Lady McIntosh, has tabled.

[Lord Purvis of Tweed (LD)]

My Lords, it is a pleasure to follow the noble and learned Lord. To start where he left off, it is a disappointment that the Government chose not to have this Bill as a creature of the frameworks agreement, especially given the fact that recognition of professional qualifications was an area where there had been outstanding differences between the devolved Administrations. Indeed, many lengthy debates during the passage of the internal market Act led to some progress on the recognition of the frameworks, as the noble and learned Lord indicated.

My concern is added to by the fact that we persuaded the Government to have further exclusions—through government amendments—on the education and legal professions, with the exemptions in the internal market Act. However, it is not categorically stated within this legislation that we will not effectively see a back door. Because they are Henry VIII powers, the regulations that could be made under this Bill could be used—as the noble Baronesses, Lady Hayter and Lady Finlay of Llandaff, indicated—to implement a trade agreement which can effectively trump the internal market Act by including education and legal professions under MRA elements of trade agreements, which are excluded in the operation of the internal market Act. I would be grateful if the Minister could confirm that that will not be the case and confirm the principles established in the internal market Act for those professions which are considered very strong for public service. I understand that there are carve-outs for certain professions—which the Canadians in particular have had—in our Canada agreement. I would be very interested to know if that is the Government’s position.

The reason why I was slightly alarmed by the Minister’s response to the point I made in the previous group is that there are existing mechanisms—as she heard me say—under Section 60 of the Health Act for England and, as the noble and learned Lord indicated, there are certain areas where regulators have a statutory responsibility to seek approval from the Scottish Parliament for certain changes, including fees. Those mechanisms, certainly for Section 60, require public consultation and parliamentary procedures—approvals —in the Scottish Parliament, but the Minister said that there was no need for any consultation on an SI because the Government would publish an impact assessment on it. That is quite alarming, and not only because these provisions can apply across the UK. If the Government are not even committed to consulting the devolved Administrations, in addition to stakeholders, on some of these regulations, that would be contrary to many elements of what we have been told by the Government up until now about working closely with the devolved Administrations. It would be helpful if the Minister could confirm that that would never be the case—that regulations would never be brought forward that would impact upon the devolved Administrations without consultation. How that could apply more easily under this legislation than previous legislation was outlined clearly by my noble friend Lady Randerson and the noble Baroness, Lady Finlay.

Because of the concurrent nature of the powers under this legislation, in effect, the Government seem to suggest that the Secretary of State, the Lord Chancellor, the Welsh Ministers, the Scottish Ministers and the Northern Ireland department are all acting equally. That is not the case when it comes to UK Ministers’ determinations with regard to the impact on the other regulators. The Scottish Parliament cannot bring forward any regulations if it believes that a demand for professions could be met from other parts of the UK or abroad. The Scottish Parliament cannot bring forward regulations to make it easier to apply from other parts of the UK to Scottish regulators. But the UK Government can do that for Scotland if it was regarding England. I do not know why that is the case, because it is not reasonable. If the powers of determining demand rest with the UK Government, they should also, as the UK Government say, rest with the devolved Administrations. But of course they do not. The Secretary of State retains the power to activate this if the Welsh, Scottish or Northern Irish Ministers do not. So a concurrent power, in my mind, is always a kind of “If you don’t, we will” power, and I think it is best removed.

I speak now in support of my noble friend Lady Randerson’s amendment on the assistance centre. She and I both had difficulty finding information about the centre in the impact assessment, which goes back to the comments I made about the viability of impact assessments on consultation. But it turns out it was not there; it is in a different document, the policy paper Recognition of Professional Qualifications and Regulation of Professions: Policy Statement, coincidentally published on the same day as the Bill. The policy statement indicated a direction of travel at exactly the same time as the destination was highlighted. So we are back in the situation of there being two parallel processes.

That policy paper stated that the decision had already been made about the assistance centre, as a contract had been issued. That had not been mentioned by the Minister in his Second Reading speech, and it is not in the impact assessment. The UK Centre for Professional Qualifications, run by Ecctis Ltd, has been given the contract. I see the Minister shaking his head, but I will quote from the policy paper, if he does not mind:

“The UK has an existing contract with the UK Centre for Professional Qualifications to be the designated assistance centre.”


That is in the policy paper. If he can confirm that is not the case in his response, I would be grateful. Either the policy paper is wrong or there is not a contract. But if there is, he can make clear how much that has been issued for and provide information about that. I see the Minister nodding, so that is going to be helpful.

The final element I would like to raise—a separate concern about the necessity for consultation—is that on the medical professions consultation paper there is a clear list of 13 offences against fitness to practise. There are five Scottish offences and two Northern Irish offences and, if someone has committed or is committing one of them, they are no longer fit to practise. Because this list has the Scottish offences, but there is no reference in any of the provisions in the regulation-making powers under this Bill, I simply do not know what the interaction would be with regard to the fitness to practise offences. For example, because the Government have not made any comment about this so far, when it comes to bringing forward elements to ease applications from abroad, how do our regulators know that the applicant has not committed an equivalent offence in their jurisdiction, especially if in certain areas there are separate Scottish offences from those listed in England, Wales and Northern Ireland? I hope the Minister can give reassurance that no regulations could be made to change this that would make it harder for our regulators to find out whether those who are applying will have committed an equivalent of the listed offence. If the Minister can offer reassurance on these points, I would be grateful.

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[Lord Purvis of Tweed (LD)]

My Lords, I thank the Minister for his response to the points raised by my noble friend and myself about the assistance centre. I thought he might reply along those lines, which is why I have the EU directive with me. The directive has never stipulated that a member state has had to have one centre. I shall quote from recital (33):

“In particular, it does not prevent the designation at national level of several offices, the contact point designated within the aforementioned network being in charge of coordinating with the other offices and informing the citizen, where necessary, of the details of the relevant competent office.”


There has never been a requirement under EU law for there to be a single member state office, but I welcome the fact that the Government recognise that the small, efficient European office that he claims was in place has to be put, as the very first thing the Government are doing, on a statutory basis in the post-Brexit world. I think that it is worth saying to the Minister that there was never that requirement, so I look forward to further debates about why the Government are insisting that there should now be a statutory office as the single point of contact.

My question to the Minister is this: he did not quite give a reassurance about the professions within Scotland that have been excluded from the internal market. However, I heard what he said about the interaction with the internal market Bill. I welcome the fact that he will be writing to me, so perhaps he might add that element about the legal and education professions. Regardless of the reassurance, my reading of the Bill is that it could potentially bring into scope those professions which have been excluded from the internal market Bill.

[Lord Grimstone of Boscobel (Con)]

I thank the noble Lord for his question. As he spoke, I was reminded that I had not fully answered it and I will certainly write to him on it. I hope that he and other noble Lords will agree that having four statutory assistance centres would probably be to overegg the pudding.

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[Lord Purvis of Tweed (LD)]

My Lords, we are indebted to the noble and learned Lord for bringing Amendment 47 to us and to the noble Lord, Lord Foulkes, for his comments, and I have two questions for the Minister in regard to those. The first relates to a document which I am sure that the department for business Bill team is studying closely, which is the Department of Health and Social Care’s consultation on regulatory reform for the medical professions. Paragraph 156 has a set number of criteria of the data which the medical professions will now be required to have, which is not the same as the data within the Bill. In some areas, it includes, for example, registrants’ geographical locations and measures relating to fitness to practise, which includes former criminal records and other information that is held. Therefore, on the requirement for the information to be provided to the regulators in other parts of the UK, I am curious as to how the Bill will interact with what the Government’s intentions are for the other information which is now being proposed by the consultation on the medical professions.

It will be of importance, given that those entering the labour market who had previously been recognised—I am thinking of EEA citizens who now have settled status—are likely to be the biggest call upon this duty regarding transferring of data, because the estimates are that potentially up to 1 million people will be settled in the UK with a professional qualification recognised to carry out their work. However, because the Home Office chose not to verify their previous information in order to give them settled status, there is currently no formal record of their continued fitness to practise.

This leads to my second point. Can the Minister confirm the Government’s estimate of how many EEA professionals, who have in the past had their qualifications recognised to carry out work, as guaranteed under the withdrawal agreement, have their withdrawal agreement rights recognised? Certainly, if those who have settled status wish to move throughout the UK, that will presumably be the first call upon the Clause 9 duty, and the Home Office is not at the moment maintaining that information, as far as I understand, so it would be helpful to know this.

I also want clarification of the Government’s intentions regarding Amendment 16 and our position with the European Union. I congratulate the noble Lord, Lord Lansley, on re-entering the Government Benches, for being a loyalist now. He is not listening. Oh, he is listening. I congratulate him on being very loyal to the Government’s position regarding their intent. Clearly, he is of the view, as the Minister told us at Second Reading, that it was the Government’s intention to seek a mutual recognition agreement with the European Union covering all the countries together, and this was rejected by the European Union.

I was interested in that slightly revisionist bit of history from the Minister, so I read chapter 13 of the draft UK negotiating document, on mutual recognition of professional qualifications. I thought that I had better compare it with the European Commission negotiating mandate too, just to double-check that what we have been told is the case. It is certainly the case that the Theresa May Administration—which was before the Minister’s appointment, so I do not blame him for the situation—sought a level playing field for services, which included a reciprocal agreement between the UK regulatory bodies and the Union’s regulatory bodies with supervisory autonomy. The Boris Johnson Administration chose not to pursue that. Instead, they sought a Canada-style agreement, which we now have, because our arrangements in the TCA are the same as Canada’s.

However, the UK negotiating document, which the Minister says was a comprehensive offer that was rejected by the European Union, called for, under “Objectives and scope” in chapter 13,

“a framework to facilitate a fair, transparent and consistent regime … where … a service provider with a professional qualification obtained in the United Kingdom makes an application to a relevant authority in the Union”.

What did “relevant authority” mean? Well, the Government was very helpful in clarifying that. It meant that it was a body that authorised and recognised qualifications of a profession in a jurisdiction—that is, in each member state. The Government simply wanted a negotiated framework to facilitate an agreement in each jurisdiction. Paragraph 43 of the Commission’s negotiation mandate states that:

“The envisaged partnership should also include a framework for negotiations on the conditions for the competent domestic authorities to recognise professional qualifications”.


There is not really much difference between the two. I do not think that one is a comprehensive offer, and I do not think that the other is a rejection.

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[Lord Patel (CB) [V]]

My Lords, I will try to be very brief; I know that the hour is getting late. I will speak only to Amendments 20 and 28, both of which were brilliantly introduced by the noble Baronesses, Lady Hayter of Kentish Town and Lady Noakes.

I will address what the noble Lord, Lord Hunt of Kings Heath, raised about the report of the House of Lords inquiry that I chaired on the long-term sustainability of the NHS. He is right: the key threats to this were the strategy for long-term workforce planning and social care. Neither has been addressed yet.

On Amendment 20, the regulator has no role in terms of workforce planning. As the Minister said, the Government also do not have any role in imposing any regulations on the regulator when it comes to recognising overseas qualifications. The regulator also does not have a role in terms of recruiting professionals from overseas; that is the business of the service. However, as we all agree, the regulations that the regulator makes for assessing qualifications, experience and any other measures of competence cannot be diluted.

I support Amendment 28, tabled by the noble Baroness, Lady Noakes. If the Government were to take powers in relation to any regulations through any treaty, including trade treaties, that might dilute the regulator’s role in assessing overseas qualifications, experience and tests of competence, that would be unacceptable. That is the only time that regulators will have a role, in terms of being consulted in relation to workforce shortages.

[Lord Purvis of Tweed (LD)]

My Lords, I first endorse the remarks of the noble Baroness, Lady Noakes, whose comments in this area are very important.

I know that it is not in order in these proceedings to intervene on other Members, but I was itching to intervene on the noble Lord, Lord Lansley, because no one in this Chamber, notwithstanding the Grimstone rule holder, understands the CRaG process more. My question, which I will leave hanging—or convert into a question to the Minister—is as follows. My reading of the Bill is that it does not necessarily mean that an international recognition agreement will be considered a treaty under CRaG. A CRaG definition of “treaty” is any international agreement between member states or an international organisation. It does not include any agreement under an existing treaty—so, if we have a treaty with a country with which a mutual recognition agreement is subsequently signed, that does not necessarily need to go through the CRaG process. The international recognition agreement under this legislation does not necessarily state that that will be the case. My question was going to be on that, but the Minister can get back to me in writing at some stage; the hour is getting late, so he does need to reply today.

This may be of significance when it comes to scrutiny. To take the example of Canada, let us say that a subsequent agreement under the aegis of the Canada agreement expanding the mutual recognition elements would not be considered under CRaG but would trigger the regulation-making power in this area, which means we would still need to consider scrutiny. That is important because, when I looked at what the international recognition agreement stipulates on the activation of these powers, Clause 3(4) refers to

“the recognition of overseas qualifications or overseas experience”,

and that is it. It does not include fitness to practise and all the other areas the noble Baroness, Lady Finlay, alluded to, which are currently covered under the statutory protection for regulators to consider the fitness of someone who is applying, including their past record.

I was pleased that my noble friend Lady Randerson and the noble Baroness, Lady Finlay, raised this, because my document of choice for the day—the Department of Health’s consultation document—is quite clear on the Government’s intention to expand the role of regulators to have wider remit in considering the setting of standards and outcomes for quality assuring education and training, both pre and post-application. Indeed, the regulators would be able to have a view not just on the qualification of an applicant but on the appropriate education and training standards that the person went through to reach that qualification. In my view, that is important for the very point the noble Baroness, Lady Noakes, indicated.

Simply recognising an overseas qualification under an international agreement is way below what our current regulators look at when they take into consideration the standards of the education that led to that qualification. We have had scandals in this country, with Oxford colleges and others, which required the Government to go beyond the previous scandals that simply accepted a qualification. Now we look at the underlying quality assurance of the courses, the programmes of training and the education and training providers. Indeed, the Government say:

“We propose that all regulators should have the power to approve, refuse, re-approve, withdraw approval, monitor and quality assure courses, programmes of training, qualifications and education and training providers. Where relevant, these powers should also apply to post-registration courses, programmes of training, qualifications and post-registration education”.


If an international agreement with a country was simply about the recognition of the qualification, that is a diminution rather than a maintenance or enhancement. I think the points have been very well made, and I hope the Minister will be able to respond.

I think that the Minister said “never”. I have been in this House for seven years, and Ministers rarely use the word “never”. In fact, they never use that word, not least because they cannot bind their successor Governments. I have found that they rarely bind their successors as Ministers—but the Minister did do that. He said that it would never impact on what Governments would tell regulators about how they handled applications; they would never change the wider duties on regulators for the decisions made in an application; and they would not impact on the powers in connection with an application. If that is the case, why are those three specific provisions in Clause 1? Subsection (5)(f) means that the powers will be about a specific person, and that a regulator would

“have regard to guidance issued from time to time by a specified person”—

as in the Minister—

“when determining an application”.

Subsection (5)(g) refers to a

“provision as to the other duties of a specified regulator in connection with an application”.

Subsection (5)(h) likewise refers to a

“provision as to the powers of a specified regulator”.

So if the Minister is right that these regulations would never be used to do it, why are they in the Bill? I think that, as we heard under the previous group of amendments, they should be taken out.