Professional Qualifications Bill [HL]

Baroness Bennett of Manor Castle Excerpts

Committee stage
Wednesday 9th June 2021 Lords Chamber

I hope the Minister recognises that very serious issues are at stake here. This Bill is very broadly drawn. It applies to a huge area of really important professional standards and qualifications and absolutely requires a framework of consultation and consent to ensure that it actually works.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I put my name down to speak to this group of amendments—the first time I have participated in this Committee—because, as the noble Baroness, Lady Randerson, said, they collectively address a basic constitutional principle.

I find myself in the slightly unusual position of standing up to speak in favour of preserving current constitutional arrangements. However, I pick up on the words of the noble and learned Lord, Lord Thomas, that what is happening here is a chipping away of devolved powers. I put it to those who wish to see the union continue that squeezing more tightly—squeezing away powers—is the way to ensure that people choose to slip out of its grasp.

I suspect that we might hear the Minister, as we have heard from Ministers in so many other debates on so many different subjects, say: “Don’t worry, we don’t mean any ill, this Government do not mean the wrong thing”. This morning, I was talking about the situation and debate around the potential Australian trade deal—about hormone-laced beef and animal welfare standards—and we said in that context, as in so many others, that words are just words. We need guarantees in a Bill.

All these amendments head in the direction that I would like to see, but I highlight in particular Amendments 41, 42 and 57. The noble Lord, Lord Foulkes, said that his amendment was not absolutely revolutionary, although, as you might expect to hear from me, I rather tend towards the total peaceful revolution. The amendment says that there would have to be a delay before a devolved Administration could be overruled. I question whether there would be any circumstances in which it would be reasonable for a devolved Administration to be overruled. I therefore repeat a question I put at Second Reading, to which I did not get an answer: can the Minister give examples of circumstances in which the Government might feel it right and justified to overrule a ruling from a devolved Administration, where that Administration say “No, these regulations on professional qualifications you are trying to impose are not good enough for us and do not meet our needs”?

In looking at why there might be different rules in different places, the noble Baroness, Lady McIntosh, pointed to the differences in legal systems, which is one very obvious area—a long-running historic circumstance. But there are also practical differences.

Somebody mentioned driving instructors. Driving in the highlands of Scotland may be very different from driving in most parts of England and there may be good, practical reasons why qualifications may be different in different nations, for obvious reasons, but also, of course, we are very much talking about politics. In something of an aside, the noble Baroness, Lady Hayter, referred to Welsh language qualifications for teachers in Wales. These are issues of intense political debate and discussion; they are not merely small, technical issues that can be ironed out by dealing with a few technical measures. These are political decisions that have been made by devolved Administrations who have been given constitutional powers that are supposed to be guaranteed. So it is very clear that we need to see change to what we have currently in the Bill.

The noble Baroness, Lady Randerson, highlighted something I have been puzzling over. At Second Reading, a lot of people questioned the whole issue of the assistance centre, and it is very hard to see how this all fits together for something so complex and difficult. As many noble Lords have said thus far in Committee, this really feels like a severely undercooked Bill; a great deal of work is needed. This is one area where I really believe we have to see change, and if we do not see change from the Government when we get to Report, we will be coming back to this and very much consulting with the devolved nations. We need to see that kind of consultation and involvement, and the first place where we really should be seeing consent from the nations is in their acceptance of the form that the Bill takes.

[Baroness Finlay of Llandaff (CB)]

My Lords, like others who have spoken, I strongly support these amendments. I am most grateful for the most comprehensive speech by the noble Baroness, Lady Randerson, who laid out clearly what the issues are, both in terms of the constitutional conflict that is in the Bill at the moment, and the consequences of it, and also the consequences for services within Wales. I think these also apply to Scotland, but I should declare an interest as someone who lives and works in Wales—that is the area of my own experience. I ask the Minister to explain quite clearly why the draft of the Bill was given to the Welsh Government only a week before it was published, and why the final version was not seen before it was laid on 12 May. To me, that does not feel like consultation or like any attempt to find a consensus agreement with devolved Administrations at all.

There is a concern that the skills shortages are being linked to the trade policy agenda, and how the new obligations on regulators could be moved and adjusted because they are driven by some trade policy, rather than by the need to ensure that we have safe and effective high-standard services for people within our nation. Although Clause 14 confers regulation-making powers on the appropriate national authority, these are exercisable only concurrently with the Secretary of State and Lord Chancellor. That seems to make it possible that the Secretary of State or Lord Chancellor could legislate in devolved areas and would not be required to obtain the Minister’s consent to those regulations. I understand that the Minister stated in a letter that these powers would not normally be used, but the problem is that once this is in legislation, such assurances do not carry any weight at all, and they are not binding on this or any subsequent UK Government. So it would seem that there are really serious risks, as the noble Lord, Lord Bruce of Bennachie, outlined.

In the event that there needs to be regulatory compromise in the interests of trade—I cannot think of a specific example, but I see the confusion and conflict between these two areas—will the Minister confirm that any such regulatory compromise will be notified to Parliament, to ensure that there is parliamentary accountability for any pressure put on to compromise any standards? We have heard in this debate already about the importance of common frameworks, but I will finish by advocating that the Government look very carefully at these amendments and make sure that they do not drive a further wedge between the four nations, because the consequences really do not bear thinking about. I certainly agree with those who say that they create an additional threat to the cohesiveness of the union.

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[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

I have received a further request to speak from the noble Baroness, Lady Bennett of Manor Castle, so I will call the noble Baroness now.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I return to the question that I raised both at Second Reading and in my comments today. As the amendment seeks to address, it would appear that there is the possibility of the Government here in Westminster overruling on this. There are currently no requirements to consult or to interact with the devolved Administrations, but as I say, there is a possibility that the Government could overrule—and that indeed is referred to in the guidance for this legislation. I will ask the Minister again: under what circumstances would he imagine that the Government would overrule a devolved Administration if it objected to arrangements?

[Lord Grimstone of Boscobel (Con)]

I thank the noble Baroness for that point. Frankly, I can conceive of no circumstances in the area of professional regulation and the mutual recognition of professional qualifications where the Government would wish to overrule any devolved Administration.

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[Lord Palmer of Childs Hill (LD)]

My Lords, I apologise that what I am going to say has nothing to do with devolved Administrations, because the Bill obviously affects them greatly. The Bill is a law of unintended consequences. It has been described as having been written on the back of an envelope; that envelope has got a lot of writing all over it by now. Amendment 52, to which I have attached my name, is about how many organisations have not realised, and still do not realise, the impact of the Bill. They think: “Professional qualifications; that does not really worry us”. Many noble Lords have had consultations with large organisations, chartered organisations and the like, all of which have given us their opinion. Some have given us their opinion twice because they have changed it. However, small and medium-sized enterprises have not been consulted at all. They have probably not even known that this Bill exists and how it is going to affect them—how it is going to impact on the qualifications of their workforce and whether they are going to have problems with their workforce. When I talk about small and medium-sized enterprises, I mean those with one to 50 employees. If they have problems recruiting now, how will it be afterwards?

As the Bill seems to have been created on the hop, without thinking too much about some of the detail, we now come to trying to mop up a Bill which has not been terribly well thought out in the beginning. We have to look at how to rectify that after the Bill becomes an Act. My Amendment 52 is about the Government committing to there being a report back within 12 months of the Act being passed, particularly in relation to small and medium-sized enterprises. By then, they will have realised the impact of the Bill on the staff they have, do not have, and might have. They might then feel that they can contribute. At that stage, one year hence, perhaps we can put the then Act into a better format. At the moment, it certainly does not seem to have been thought out properly from beginning to end.

[Baroness Bennett of Manor Castle (GP)]

My Lords, it is a pleasure to follow the noble Lord, Lord Palmer, who has tabled a very useful amendment, Amendment 52, to which I was pleased to attach my name. I will speak chiefly to Amendment 55 in my name, but I will also look at the whole range of Amendments 52 to 55, which are all on variations of forms of reports. It might be useful for us to consider whether we can bring this together for Report. There is clearly a desire, coming from a number of different directions, to see a reporting and scrutiny mechanism for the Bill.

I will, however, briefly comment on and commend Amendment 19 in the name of the noble Baroness, Lady Hayter, which refers to consulting consumer interests. That is particularly interesting when we look back to the comments of the noble Lord, Lord Sikka, at Second Reading, and the concerns about the way in which many of our professional services are failing to meet the needs both of those using them and of broader society. There is something useful in the suggestion from the noble Baroness that would be interesting to take forward.

I will now address Amendments 52 to 55, on the issue of reporting back. There has been great discussion in this Committee about the complexity of the Bill, the difficulty of fully understanding its impacts and, indeed, the fact that, with its range of Henry VIII powers, much of the detail will come in later regulation of which we have very limited or no democratic oversight.

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[Lord Lansley (Con)]

My Lords, I am glad to have the opportunity to contribute to this short debate on these amendments. I will say a quick word on each, if I may.

First, on Amendment 16, I entirely support my noble friend’s wish for us to enter into mutual recognition of professional qualifications with the European Union but, as they say, it takes two to tango. We wanted to do it and our policy intention was to do it, but it was not the European Union’s intention to agree to it. I do not doubt that it would remain the Government’s intention to enter into such an agreement if it were possible to do so. I regret that putting this into the Bill does not change any of those circumstances. As it happens, I would not put it into the Bill at this place either. It is essentially contingent upon Clause 3 and our ability to negotiate an international recognition agreement with European Union countries in any case. It may be we have to do it with European Union countries individually, but I agree with the objective. It seems to me that Clause 4 allows regulators to enter into recognition agreements, and that is the mechanism. If the Law Society or anybody else wants to do it, they should seek approval from the Government to enter into such an agreement in that way.

I do not understand why we need Amendment 23 in the name of the noble Lord, Lord Foulkes. This is about international recognition agreements. It is not specifically about the European Union and it may not apply to European Union member states. It is not required to be consistent with the future relationship with the European Union. All it means is that when we allow the recognition of overseas applicants to our professions, the professional regulators may charge them fees in the way that they charge fees to UK applicants. I think that is perfectly reasonable, so I would not accept that amendment.

On Amendment 47, the noble and learned Lord, Lord Hope of Craighead, was probably not here when we discussed the Trade (Disclosure of Information) Act 2020, nor when we dealt with similar provisions in the Trade Act 2021. My noble friend on the Front Bench, the noble Lord, Lord Purvis, and I remember those discussions very well.

Supreme Court judgments have determined that where, for example, data protection legislation requires the protection of legislation—and there are specific duties relating to that—if there are other statutory gateways that might create a statutory provision permitting the disclosure of information which could contravene the data protection legislation, the position the court arrived at was that the decision-makers should end up being able to balance the statutory gateway in the additional statute with the originating data protection legislation. That is where it ended up, and that is why “taken into account” is the appropriate language. It would not be “considered a defence”, because that would conclude that it had not been weighed properly in the way that the court expected. It expected these two things to be considered alongside one another. That is where we ended up on the Trade (Disclosure of Information) Act, for reasons I understood then, and as far as I can see, this drafting is absolutely consistent with those pieces of legislation.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I am glad of the opportunity to contribute to this short debate, but I will be brief and forbear commenting on Amendments 23 and 47, as noble Lords have already covered them and I cannot really add anything. I want to speak specifically to Amendment 16 and I thank the noble Baroness, Lady McIntosh of Pickering, for tabling it.

I think there should be pressure on the appropriate national authorities in the Bill to seek reciprocal agreements. It is something that certainly needs to be discussed and pushed. Other noble Lords have spoken about the situation of established professionals and the professional bodies. I want to take a moment to think about young people recently qualified, and those young people who have been through such difficult times and who will qualify in the next year or two, for whom there should be the opportunity, as a young professional, to go out and to travel—the European Union countries being the obvious place, being relatively close to home, relatively cheap, et cetera. It is crucial to those young people to have opportunities to stretch their wings, to learn new things and to develop professionally.

We have seen a lot of problems arising as a result of Covid. Covid is being blamed for lack of progress in a great many things, but it has also suppressed demand, and we are going to see a real explosion of demand as it becomes more possible to travel and to move. I will not get started on the great loss of free movement for the people of the UK, but given that we have so curtailed the opportunities for our young people, it is crucial that we do everything possible to open up, or reopen, professional opportunities for people to grow, to develop, to travel. Of course, if the Government do not want to consider this from any other angle, it is obviously of considerable importance if those people return to the UK and work here with those skills or, indeed, if they remain overseas but keep their UK contacts, which will be very important for UK business and professionals.

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[Lord Hunt of Kings Heath [V]]

My Lords, I am glad to follow the noble Baroness, Lady Noakes—I so agree with her. At the moment, Clause 3 gives Ministers a blank sheet to do whatever they wish, and I am afraid that ministerial assurances are not sufficient. One way or another, we need to amend Clause 3.

My principal reason for speaking is to support my noble friend in her Amendments 20 and 21 on skills shortages. It is surely important that any regulatory change is only considered before consultation with the relevant regulators, in the context of how the national body is undertaking work and investment in the domestic sector in order to help alleviate those shortages.

I am particularly interested in workforce issues in the health service and social care. I remind the Minister of a report by the King’s Fund in February this year which said that NHS hospitals, mental health services and community providers were reporting a shortage of nearly 84,000 full-time equivalent staff. Key groups, such as nurses, midwives and health visitors were severely affected. General practice was under strain, with a shortage of 2,500 full-time equivalents, with projections suggesting that this could rise to 7,000 during the next five years if current trends continue.

The regulator for health and social care, the Care Quality Commission, has highlighted workforce shortages as having a direct impact on the quality of care. NHS waiting time standards have been routinely missed for a number of years, which the consequences of Covid will exacerbate.

The Health Foundation, another respected independent institute, says that the UK ranks below the average of high-income OECD countries for the number of practising nurses and the annual number of new nurse graduates relative to its population. Further, about 15% of registered nurses in the UK are trained outside the country—more than double the OECD average.

Workforce shortages are not new in the NHS. They have been a recurring and enduring feature during its 70 years or so. The reasons are complex. A historical reliance on international recruitment may be part of the story. A bias in the UK towards focusing on the Exchequer cost of training doctors and nurses—which is expensive—but not on the cost associated with the failure to train enough staff is another factor. More broadly, workforce shortages are totemic of the short-termism that dominates national policy-making under this Government.

The noble Lord, Lord Patel, will speak at the end of this debate. I hope he mentions his House of Lords committee report from 2017. It argued that the absence of any comprehensive, national, long-term strategy to secure the appropriate skilled, well-trained and committed workforce that the health and care system will need during the next 10 to 15 years represented

“the biggest internal threat to the sustainability of the NHS.”

Amendments 20 and 21 post the way for a national authority to be required to publish a report on how skill shortages are being met and how we are investing domestically to address this shortage and upskill existing staff. I hope the Minister will be sympathetic.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I shall speak chiefly to Amendments 20 and 21 in the name of the noble Baroness, Lady Hayter, to which I have attached my name. These amendments are also supported by the noble Lord, Lord Hunt, and the noble Baroness, Lady Finlay, which gives them both cross-party and non-party backing. I have mentioned that all noble Lords received a letter yesterday from the noble Lord, Lord Grimstone, and the noble Baroness, Lady Berridge, with her Department for Education hat on, about the Bill and the skills strategy. Its second paragraph says:

“Let me reassure you the Bill is not a short cut to addressing skills development for the UK.”


We can see that the Government have really understood some of the deep concerns that have been expressed by your Lordships’ House about this Bill.

The letter makes reference to the Skills and Post-16 Education Bill. I am not going to start its Second Reading now, although we have to look at whether ladening people with more debt is the answer to our skills shortage.

Another sentence in the second last substantive paragraph of this letter says:

“To meet demand across certain regulated professions, we need appropriately qualified professionals from both domestic and overseas sources.”


In relation to Amendments 20 and 21 and my earlier Amendment 25, do the Government accept that, particularly for certain key—basic, you might say—professions central to our health and well-being, such as nurses and doctors as a general category, we should be training at least enough medical professionals to meet our needs? That sentence would suggest that that is not something that the Government accept.

I come briefly to a couple of details about these amendments, particularly Amendment 21, which is quite valuable and perhaps adds more than my Amendment 51. They highlight important issues, one of which is in subsection (d), which asks for a report on the number of the professionals in the group being considered who are female and male. It is important that we highlight gender disparities. There has been a lot of discussion about medical professions, but I have interest in both the farming and the building and engineering areas, where we have huge skills shortages and there are very serious gender disparities in recruitment.

As I listened to the noble Baroness, Lady Finlay, talking about the complexities of modern medical approaches, I was thinking of some of the engineers I have been speaking to recently about the complexity of building ventilation, something that Covid-19 has very much brought into focus and which we clearly need to be thinking a great deal more about. There is a high level of complexity and a high level of skill is required; you have to understand each individual room and each individual climatic environment. It is a very complex area and requires very high levels of skills and training. I think also that when we are thinking about agriculture—we will be talking about this in the Environment Bill and in the agriculture Bill—we are talking about agri-ecological approaches and agriforestry approaches, not just one field of monoculture that you whack the plough over and you whack the sprayer over, but very complex management of ecosystems that requires a very high degree of skills that we simply do not have now. It requires training and may require people being brought in.

I also want to highlight, as the noble Baroness, Lady Hayter, did, retention rates. Of course, nursing is the obvious area, but there is also a big issue in medicine that needs to much more attention. This is a really important amendment. The support for it demonstrates that, as does the Government reaction, but I think we need a much clearer picture of what the Government’s overall approach is. Are they determined to meet the challenge of training enough people for our needs?

[Lord Lansley (Con)]

My Lords, I am pleased to follow the noble Baroness, Lady Bennett of Manor Castle, again, and to follow up the points she made about skills shortages. We spoke in an earlier debate about the formula in Clause 2 relating to the condition that there is, in effect, unmet demand. I think that at the time I expressed the view that it was unsatisfactory to define that by reference to unreasonable delay and higher charges. This gives us another opportunity to look at that. I think there is merit in the formula in Amendment 21; I just think we may need to develop it a little and make it very clear that in Clause 2—Section 2, as it will be—where a Minister or the appropriate national authority is considering regulations, the condition is that there is unmet demand in that profession. What is meant by that?

The letter that the Minister sent to the Delegated Powers Committee last week said:

“The Government plans to consider various factors in determining ‘unmet demand’, and further detail on our approach is provided in the Government’s policy statement that accompanies the Bill.”


Well, the policy statement, in a very curious paragraph, says:

“Our proposed framework is intended to enable professions to meet the demands placed on them in all parts of the UK without undue cost or delay.”


In that particular context, the cost and delay appear to relate to the cost and delay of the regulators. It is rather strange.

The policy statement goes on to say that where they make these determinations, “Considerations for” what they refer to as “priority professions”—in other words, where there is demand for skills from overseas—

“will include: whether the profession is on the shortage occupation list; vacancy levels; workforce modelling and skills forecasting; and whether there are other ways that professions might address shortages … We will allow for these determinations to evolve”.

Well, some of those factors are indeed those that the noble Baroness has included in Amendment 21—not completely, but I think we are getting there. So I suggest that the route down which we should go on Report is to amend Clause 2 to say “These are the various factors that appropriate national authorities should consider”. It would not be an exhaustive list but of course, in doing so, they should also consult the regulators and the professions in relation to this.