European Qualifications (Health and Social Care Professions) (Amendment etc.) (EU Exit) Regulations 2018

Baroness Blackwood of North Oxford Excerpts

Thursday 7th March 2019 Lords Chamber

Moved by

[Baroness Blackwood of North Oxford]

That the draft Regulations laid before the House on 20 December 2018 be approved.

Relevant document: 12th Report from the Secondary Legislation Scrutiny Committee (Sub-Committee B)

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Baroness Blackwood of North Oxford) (Con)]

My Lords, the Government recognise the important contribution made by regulated health and care professionals, including those trained in the EEA and Switzerland. This statutory instrument ensures that professionals with EEA or Swiss qualifications have a clear route to seek recognition of their qualification when the UK leaves the EU.

Following the UK’s exit from the EU, directive and treaty rights under the Treaty on the Functioning of the European Union will no longer apply to the UK in the event of no deal, save to the extent that they have been introduced by UK domestic legislation. Parts of domestic legislation implementing the directive will not operate effectively after exit day and there would be no clearly lawful route for holders of EEA and Swiss health and care qualifications to be registered to practise in the UK. This instrument amends professional legislation in the UK to ensure that a system for the recognition of professional qualifications continues and that professionals with EEA and Swiss qualifications will have a clear and lawful route to seek recognition of their qualifications after exit day.

Arrangements for the recognition of professional qualifications within the EU are provided for by the directive on the recognition of professional qualifications. If UK domestic legislation is not amended, many of the directive’s provisions will still be part of UK law after exit day. However, they will not function properly and in some cases will be inoperable. For example, regulators may lose the ability to recognise certain EEA and Swiss qualifications. This would mean, as I have said, that health and care professionals who want to work in the UK will not be able to do so. Changes to domestic legislation, which implements the directive, are therefore needed to ensure that recognition of EEA and Swiss qualifications can continue in the unlikely event of a no-deal exit.

The UK has been a major beneficiary of the arrangements that European directives have put in place on this matter. Since 1997, more than 77,000 EEA and Swiss qualifications in the automatic professions of doctors, nurses, midwives, dentists and pharmacists have been recognised in the UK. By contrast, fewer than 7,000 UK qualifications have been recognised in the EEA and Switzerland. Directives have supported the recruitment of skilled professionals to the UK’s health and care sector, so it is important that arrangements are in place to allow for the continued registration of such professionals if the UK leaves the EU in a no-deal scenario.

This instrument deals with the recognition of EEA and Swiss professional qualifications in the UK. It has three main effects. First, it puts in place arrangements for the recognition of EEA and Swiss professional qualifications that are currently automatically recognised. Secondly, it ensures that applications for recognition that are ongoing at exit day can be completed under the current legal arrangements, as far as practically possible. Finally, it removes provisions that are not possible or desirable to maintain in the event of a no-deal Brexit.

I will take some time to set out exactly what the instrument does. It puts in place new arrangements for the recognition of EEA and Swiss professional qualifications that are currently automatically recognised by UK regulators. Such qualifications will become acceptable overseas qualifications. These qualifications will continue to be recognised without additional testing, other than checks on language skills and where there are concerns about applicants’ fitness to be registered. The regulations give UK regulators a new power to stop the automatic recognition of a qualification by seeking designation of that qualification if so desired. This is not currently possible under the directive, and this important additional measure will enhance public protection. Such a designation will be subject to Privy Council consent.

The Government have been asked whether they will set out in guidance the criteria to be applied by regulators when seeking designation of a qualification. We do not intend to do so. UK health and care professional regulators currently set the standards for UK qualifications. In our view, therefore, they are best placed to identify whether there is a case for designating a qualification as not comparable to these standards on the grounds of public safety. UK regulators will be able to seek designation of any qualification that is currently automatically accepted but about which they have concerns. It will be the responsibility of the regulators to present the evidence in support of designation. The most likely basis for designation will be that a qualification does not meet the standard of the equivalent UK professional qualification. The arrangements for the continued recognition of automatic qualifications will be reviewed by the Secretary of State for Health and Social Care two years after these regulations come into force.

These regulations also enable qualifications that are not currently covered by the automatic system to be considered by the relevant UK regulator and compared with the equivalent UK standard, as is currently the case. The regulations enable applications which have been made before exit day to be concluded under the current arrangements, as far as practically possible. This instrument also enables individuals practising under temporary and occasional status, or under the European professional card, to continue to do so until such registration expires.

Concerns have been expressed that the removal of temporary and occasional registration will have a detrimental impact on the number of EEA or Swiss-trained healthcare professionals practising in the UK, but we do not think that that is a genuine problem. Just 160 professionals are registered on a temporary and occasional basis. Professionals practising on such a basis will not lose their registration on exit day; they will instead be able to practise until their registration expires, which may be for up to 18 months. At that point they will be able to seek full registration in the same way as any other holder of an EEA or Swiss qualification.

Finally, this order removes obligations and administrative arrangements that will no longer apply to the UK regulators, operate effectively or be desirable to maintain when the UK leaves the EU. These include: the removal of the requirement to share information through the European Commission’s internal market information system, IMI, to which UK regulators would no longer have access; the ending of arrangements that allow professionals to practise in the UK using an EPC, which relies on having access to IMI; and the removal of the requirement on UK regulators to set professional education and training standards that comply with standards set in the directive. This provides UK regulators with greater flexibility to set education and training standards that meet the needs of the health and care sector in the UK.

These regulations put in place a system for the recognition of EEA and Swiss professional qualifications if the UK exits the EU without a deal. It also ensures that those applications that are in process on exit day will be concluded under the current arrangements, as far as practically possible. On that basis, I beg to move.

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[Baroness Blackwood of North Oxford]

I thank your Lordships for what I think we can call a robust debate. I will start by discussing the designation criteria, which were at the core of the questions from the noble Baronesses, Lady Thornton, Lady Jolly and Lady Hayman, and the noble Lord, Lord Hunt, and are central to this SI. It is important to set out the differences between the current system and what future recognition might look like under the SI. Obviously, we understand that this would happen only in a no-deal scenario, which the Government very much wish to avoid.

To clarify, the current system is based on automatic recognition of EEA and Swiss qualifications, as listed in Annexe 5, with eligibility based primarily on an applicant’s nationality rather than where the qualification was gained. In future recognition, eligibility would be based solely on whether the individual holds a relevant EEA or Swiss qualification. UK regulators would therefore be able to apply for designation of an individual EEA/Swiss qualification as well. That is where the concept of flexibility comes from, which so upset my noble friend Lord Deben. Some aspects of the directive would no longer apply to the UK, so some of the ways in which the directive applied previously—such as on hours, which have previously been used to determine qualification—might no longer be appropriate in determining whether a qualification has been met.

This flexibility in setting standards should be welcomed. Indeed, we noted that Charlie Massey, the chief executive of the GMC, has previously raised concerns about the training of some individuals we had to accept under this automatic recognition process. For example, he raised concerns about family doctors in Italy before the Health and Social Care Select Committee. The General Dental Council has also raised concerns about the quality of some Romanian and Spanish dental qualifications. Under the new proposals, we would be able to raise such concerns through the designation process. They would go to the Privy Council because that is already the normal process through which UK regulators designate qualifications in the UK system. The process proposed under this SI is the standard UK process for establishing professional qualifications.

Moving on to how this would work, the instrument enhances the UK regulators’ powers to protect the public by designating as no longer acceptable EEA and Swiss professional qualifications that they are currently obliged to accept automatically. As I said, the grounds for designating a qualification will be determined by the UK regulator, which is best placed to make such decisions. The UK regulator will be able to seek designation of any individual professional qualification about which it has concerns. The most likely basis for such a designation will be that a qualification does not meet the standard of UK qualifications. We do not expect the approaches to designation to vary significantly between regulators as they have a shared objective of protecting, promoting and maintaining the health and safety of the public—and long experience of doing so. Therefore, the reasons for seeking designation and evidence supplied in support of designation are expected to be largely consistent. As I said, Privy Council consent must be given for a qualification to be designated. This standard system has been used previously.

The Government have been asked whether they will set out guidance on the criteria to be applied by regulators when seeking designation of a qualification. We do not intend to do so because we believe that the most likely basis for designation will be a qualification not meeting the standard of equivalent UK professional qualifications. We think that UK regulators, not the Government, are the authority on standards for healthcare professionals practising in the UK. They set the standards for UK health and care professional qualifications and are therefore best placed to understand if there is a case for designating a qualification. As I said, the Privy Council has a well-established role in overseeing the UK’s health and care professional regulators. For some regulators, including the GCC and GOsC, it approves UK qualifications and the appointment of council members. Its new role in approving applications for the designation of EEA qualifications is simply an extension of its existing role.

Costs and the impact assessment were referred to by a number of noble Lords but particularly exercised my noble friend Lord Deben. I am afraid that we have gone into the costs in some detail, despite the concerns he raised. He will know that UK regulators operate on a full-cost-recovery basis and set registration fees that meet the cost of processing applications. The cost to regulators of moving to the new system is considered negligible because it mirrors the current system, as far as possible, for at least two years—we intend to review that, once the regulations come into force. Should the regulator incur additional cost, it will be able to recoup it through fees. We estimate the total cost to regulators on the automatic system—including the NMC, the GMC, the GPhC and the GDC—to be £250,000 per year and an additional £60,000 for recruitment costs in the first year of these regulations coming into force. This could raise registration fees by an average of 27 pence per registrant per year for the regulators to recoup additional administration costs. We have costed the impact and believe the assessment to be reliable. That is why we have the GMC’s support; it believes that the impact assessment is reasonable and that it can cope with the impact.

I want to address concerns raised about temporary workers. I know that the noble Baroness, Lady Jolly, wanted to re-raise this even though I tried to address it in my opening speech, as the noble Baroness, Lady Thornton, acknowledged. As we said, we do not think that the removal of this group of registrations will cause concern as only 160 professionals are registered on a temporary and occasional basis. Professionals practising on such a basis, even in that small group, will not lose their registration on exit day; they will be able to practise until their registration expires, up to 18 months later. At that point, it will be open to them to seek full registration in the same way as any other holder of an EEA or Swiss qualification. It is important to note that the number of joiners from the EEA has remained steady at around 2,050 a year since 2016. In 2017-18, doctors joining the register from non-EEA and UK routes made up 32.4% of the total, while EEA applicants made up 16.2%. We are confident that the impact on that point will be manageable but we will keep a close eye on it and ensure that it is kept in check.

Moving on to the question about the IMI, raised by my noble friend Lord Deben and the noble Baroness, Lady Jolly, it is absolutely right that if the UK leaves the EU without a deal, we will no longer have access to EU systems, including the IMI system which gives us access to the exchange of information about healthcare professionals. The regulators are aware of this and they are preparing for it. It is important that this instrument will mean that they will not be required to put in place new procedures for the recognition of EEA qualifications and that any costs involved with the loss of the IMI system are unavoidable in the case of no deal. Such costs depend on a number of factors. While we would like to see continued access to the IMI system, it is worth bearing in mind that the registration of international health professionals takes place with non-EEA registrants without access to IMI. We have managed to ensure that that happens safely, effectively and efficiently. However, we will do our utmost to ensure that we consider other means to replace IMI that comply with the GDPR, such as standard contractual clauses. I hope that reassures noble Lords on that point.

Perhaps I may go on to answer the questions raised by the noble Lord, Lord Crisp, and the noble Baroness, Lady Jolly, on Spanish nurses and nurses from the Republic of Ireland. There is an issue on this point and I recognise the concerns that have been raised. There will be no change as a result of these regulations in the way Irish and Spanish qualifications are accepted, but at this point the Spanish regulator has said that it will not recognise the UK practice of Spanish nurses. This is a matter for the Spanish body, but we are continuing to discuss as a matter of urgency how EU regulators will recognise UK practice and qualifications, so that it does not matter which we are taking up.

As regards Ireland, the regulations ensure the continued recognition of Irish professional qualifications in Northern Ireland for at least two years after exit day and will allow professionals practising under temporary and occasional registration status to continue to do so until that registration expires. We are making sure that health and care practice across the island of Ireland is maintained smoothly and continuously. This has been a priority for the Government.

With those comments, I hope I have addressed the main concerns raised by noble Lords and given reassurance on those points. On that basis, I beg to move.

[Lord Warner]

My Lords, can the noble Baroness give me some answers to the points I raised about guidance being given in the event of no deal and exit on 29 March? First, how are the Government going to communicate that guidance to all the interested parties in the time available? Secondly, I asked about the status of these SIs in the event that the Article 50 period is extended beyond 29 March but there still being no deal. Does that mean that after that period, these SIs would come into effect when the period of exit is established post 29 March? Thirdly, what happens to these SIs if there is a deal? Does the present status carry on, with these SIs being put into limbo and therefore not introduced?

[Baroness Blackwood of North Oxford]

I apologise to the noble Lord for missing out on my answers to his questions; that was most remiss of me. These SIs come into force only if there is a no-deal exit. Should there be an extension of Article 50, they would not come into force until or if there is a no-deal exit, which is obviously most undesirable and something the Government are seeking to avoid.

On the communication of the effect or implementation of these SIs, they have been developed in close collaboration and consultation with the regulators that would be impacted. They are well informed about their operation, and given that the effect of the SIs is to continue with business as usual as far as possible, we hope that that is the de minimis effect. I shall write to the noble Lord in response to his final question, as I am afraid I have forgotten what it was.

[Baroness Thornton]

My Lords, I thank the Minister for her extensive response and noble Lords for their interventions and questions on this SI. The indignation and anger of the noble Lord, Lord Deben, has been reflected right across the House. Noble Lords may not express it quite as well as he has, but it absolutely is there. We have just spent an hour and 10 minutes debating this issue. Then there are all the hours of preparation, the cost of civil servants, the cost of our time and, indeed, the worry that all this is causing, not only to us in the Chamber but to millions of people outside. As the noble Lord, Lord Deben, and others have said, the Minister has done the best she can with the hand she has been dealt and answered our questions to the best of her ability. However, this is not where any of us wants to be. On that basis, I shall withdraw my amendment.