Professional Qualifications Bill [HL]

Baroness Finlay of Llandaff Excerpts

2nd reading
Tuesday 25th May 2021 Lords Chamber

[Baroness Finlay of Llandaff (CB) [V]]

My Lords, other noble Lords have spoken of concerns over the Bill, recognising the need for it while expressing a wide range of concerns. I will focus my remarks principally on the risks to medical registration and declare that I am registered with the General Medical Council.

For some years now, the GMC has been keen to speed up its processes and be more flexible, particularly in how it assesses the competence of international doctors when registering them. The current Department of Health and Social Care consultation, Regulating Healthcare Professionals, Protecting the Public, has wide-ranging proposals to reform professional regulation and include the regulation of physician associates and anaesthesia associates. However, the proposals in the Bill risk undermining the principles behind those reforms, so can the Minister explain how the two departments are working together? He may wish to write to me to clarify whether the proposals in the DHSC plans can be implemented via secondary legislation using Section 60 of the Health Act 1999 to modify professional regulation in the Medical Act 1983 via an Order in Council.

In the Bill, regulators will be obliged to establish a framework to recognise professional qualifications from around the world, with international agreements to ensure greater transparency of information. Yet the GMC and other health professional regulators already have powers and many years’ experience in overseas recognition and registration, making the Bill unnecessary for the health professional regulators—as the noble Lord, Lord Ribeiro, and my noble friend Lord Patel have explained.

I am relieved to hear that the Government will bring forward amendments to Clause 1. Without amendment, Clause 1(4) would inadvertently compromise patient safety and decrease workforce supply. Time spent formally assessing thousands of qualifications in great detail will not meet the policy objective of maintaining existing levels of public and consumer protection. Take the example of a trauma surgeon with 25 years’ experience in the field. The surgeon’s original medical school curriculum, surgical exams and grades provide no indication of current competence and skills. It is an up-to-date skills assessment that is crucial to safe practice, and in which the GMC has a wealth of experience.

Without the Government’s heralded amendment, Clause 1(2) would prevent the GMC from interpreting “qualifications or experience” in a way that enables using written and clinical tests of knowledge and skills to continue. Its well-established processes currently register over 10,000 doctors annually. The Bill needs amending to explicitly support assessment of appropriate knowledge and skills over and above the original qualification.

The safe registration of healthcare professionals is more complex than simplistically focusing on baseline qualifications. Every international medical graduate must have an acceptable overseas qualification and demonstrate that they have the knowledge, skills and experience to practise in the UK, usually through a test of competence with evidence of relevant clinical experience. This is far more meaningful than trying to see whether each international qualification is “substantially the same” as UK qualifications.

I hope that the Minister, in responding, will explain the policy intent behind these proposals that cover over 160 professions, and how the Bill will be amended to avoid unintended compromise of current processes that work well and will allow flexibility in the future. I know he referred to it in his opening remarks, but we are seeking more clarity.

Finally, I declare that I am president of the Chartered Society of Physiotherapy and ask the Minister to confirm that the competencies assessment will continue to apply to allow reciprocity because, for example, respiratory physiotherapy is a core skill in the UK but not taught in some other countries. Currently, the society supports physiotherapists going through the Health and Care Professions Council registration processes. Overall, can the Minister confirm that where processes are well refined they will not be compromised, as the current proposals in the Bill will increase regulators’ workload without evidence of improvement? Can he also confirm that healthcare professional regulators will not have to establish a new stage in their application procedures for international professionals to individually assess each qualification presented by an applicant, but that they can instead undertake this assessment through their existing procedures, such as tests of competence?

Professional Qualifications Bill [HL]

Baroness Finlay of Llandaff Excerpts

Committee stage
Wednesday 9th June 2021 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I declare that I am registered with the General Medical Council and I am president of the Chartered Society of Physiotherapy. Like others, I know that the GMC has welcomed these amendments from the Government. Indeed, they address many of the concerns that we raised at Second Reading. I have had some discussions too with the Health & Care Professions Council. It still has some concerns that I hope the Minister will be able to address.

Government Amendment 6 leaves in the phrase “substantially the same” at Clause 1(3)(b)(i), in respect of knowledge, experience and standards. Currently, the processes demand that registrants meet certain standards in order to practise. There is a concern that the phrase “substantially the same” in the legislation risks lowering this standard, potentially creating a two-tier system in which applicants from overseas would need to meet a lower standard than their UK counterparts.

It is, of course, most welcome that the Government have recognised that regulators currently make a holistic assessment: they look at education, training, commitment to CPD and, importantly, the level of experience of each applicant rather than just at something on paper from the institution from which they received a qualification at some time in the past. This focus on the situation of the individual, whether it is an overseas qualification or experience demonstrating an equivalent level of knowledge and skills, is crucial.

Our current workforce shortage is acute. We have a lot of vacancies across the UK and there seems no longer to be the incoming workforce that there used to be. We have people leaving as well, so the vacancy factor is becoming more acute with a workforce that is already feeling the strain and burnout following all the pressures of Covid. I hope that there will be a clear assurance from the Minister that there will be no dropping of standards in a rush to try to fill vacancies and that there will be a concerted effort to provide the education and training needed to make sure that we have the appropriate number of properly skilled people in our workforce.

The amendment proposed by the noble Lord, Lord Lansley, as discussed, seems to raise an important point. I think that the general tenor of the debate so far has been that we hope the Government will take their own amendment away and have another look at it, rather than expecting it to be put into the Bill today. It could come in on Report when it had been appropriately amended if necessary. It certainly would seem to need some more thought.

I am well aware from my own discipline of medicine that many drugs and conditions have remarkably similar names. It is extremely easy for people to become confused over which is which; that is how errors occur. Even if someone passes an English language test, it is actually their command of the language in the relevant discipline that becomes so important.

The other thing I want to ask the Minister before I sit down relates to those disciplines that are not yet on a professional register but will need to be. They include physician associates, anaesthesia associates and nursing associates in particular. I know that the General Medical Council will take on the registration of physician associates and anaesthesia associates, but I would welcome from the Minister confirmation that the same criteria will apply to them as will apply to those in professions that are already regulated by regulators to whom this Bill currently applies.

There is also a question about what will happen in future to some other groups that are not regulated, such as some of the psychological therapies that we discussed at length during the passage of previous pieces of legislation—for example, the Domestic Abuse Bill—when many Peers across the House expressed serious concerns about some of the standards of practice. We know that some of the schools of psychology have evolved in different countries around the world. It is important that we do not inadvertently create another problem by allowing people to come here and practise in an unregulated way.

That brings me to my last point, which is on cosmetic interventions. Currently, they are unregulated. I hope that we will see them regulated, but I request from the Minister confirmation that the same ability for a regulator to determine criteria will apply and that it will not be separate if it concerns a group coming into regulation that was not regulated previously. We know very well the number of damage cases that there are, particularly from inappropriate cosmetic procedures.

At this point, I seek those assurances from the Minister but reiterate that the government amendments are most welcome. They have demonstrated that they have listened to the representation, particularly from the General Medical Council but also from others.

[Baroness Noakes (Con)]

My Lords, I will be brief. I support the Government’s amendments in this group and the amendment in the name of my noble friend Lord Lansley. Initially, I thought that his amendment was attached to the word “only”, which is often misused in the English language—most often as an inappropriate or misplaced modifier. Initially I thought my noble friend was going to say that it was a misplaced modifier. However, I listened to what he said, and he raised a very substantive concern about the drafting of the clause. Like other noble Lords, I hope that my noble friend the Minister will agree to take this away and look at it and, if necessary, bring an amendment back on Report to make proper sense of his new amendments.

Of course, there is a slight problem: once we have amended a Bill, we are not supposed to go back and amend it again at later stages. However, I think that if my noble friend were clear enough from the Dispatch Box today that he will look at this, it would not cause a problem.

My noble friend Lord Lansley may well have noted that, in our Conservative notes on the amendments that we are considering today, his Amendment 11 was described as an opposition amendment. I know that my noble friend has not always toed the party line—he is not alone in that—but I have never regarded him as the Opposition. I share this with the Committee in the hope that it will improve my noble friend’s street cred.

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[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.

[Lord Hope of Craighead (CB)]

My Lords, the Minister assured the House earlier this afternoon that the autonomy of the regulators would be respected. I am sure we all take the Minister’s assurance at face value and fully understand what he is getting at, but one of the many problems that lurks within the Bill and the wide regulation-making power it creates is the risk of causing collateral damage by careless or inadvertent wording or insufficient research before the power is exercised. As I said at Second Reading, the centralised systems that the Bill seeks to create will work only if the diversity that exists across the United Kingdom is fully respected. That is especially true where the devolved Administrations are concerned.

My own experience is confined to the systems for regulation of the legal profession in Scotland, but it is a guide to how the regulatory systems among the professions may differ from each other. In my cases, they involve not just one but two regulators working together, and there are different systems for the two branches of the legal profession in Scotland. For the Law Society of Scotland, which regulates solicitors, it is the society itself, working together with the Lord President of the Court of Session. For the Faculty of Advocates, it is the Court of Session itself, whose functions are then delegated to the Lord President of the faculty. The message that these two examples conveys is that it cannot be assumed that the regulatory systems that currently exist are alike in all cases, or even in most, so great care is needed to ensure that what is being done fits the requirements and practices of the profession that is being regulated.

This brings me to Amendments 13, 24, 35 and 40, in the name of the noble Baroness, Lady McIntosh, to which I have added my name. The point that each of these amendments is making is that prior consultation with the devolved Administrations and the regulators is essential before the regulation-making powers in Clauses 1(4), 3(3) and 5(2) are exercised. I shall say a little more about each of these subsections.

Clause 1(4), which is about providing for individuals with overseas experience and qualifications to be treated as having UK qualifications, really has to be read with Clause 1(5), which sets out a list of the many provisions that may be made in the exercise of the Clause 1 power. They are very wide-ranging. Paragraphs (f) and (g) in the list are of particular concern, as they are so wide in their scope. The words “guidance” in (f) and “other duties” in (g), which are not otherwise qualified, leave a huge amount to the discretion of the national authority.

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That is why warm words in Committee or on Report will not cut the mustard; we need guarantees on the face of the Bill. Amendment 22 ensures consultation with regulators, throughout the stages of the process of what I understand is called the “Grimstone rule”. Apparently, the Grimstone rule became very famous when the Trade Bill was going through here. I think the Minister will recognise it as the process by which free trade agreements are negotiated and laid under CRaG. I am led to believe—it was confirmed by the Minister himself during the passage of the Trade Bill—that all those consultations would happen during negotiation. This is why it is aptly called the Grimstone rule. That is what we want here. If access to our professional regulators will be included in a trade deal, then those regulators must be involved throughout the negotiations. I beg to move.

[Baroness Finlay of Llandaff (CB)]

My Lords, this is a very interesting group of amendments because, as far as I can see, it is about addressing the domestic skills shortage. I do not think anyone should be under any illusion about the extent to which there now is a skills shortage. I am going to address this purely across health and social care, which is the area that I know about. I am not going to touch on law and so on.

There is a skills shortage now, particularly among clinical scientists. These are not qualified doctors; they are scientists who are now working in the clinical arena, often carrying a great deal of clinical responsibility. As medicine progresses, and as clinical sciences progress, there will be more of these people coming forward who have very narrow but highly specialised skills. I have already mentioned the physician assistants and anaesthesia assistants. Anaesthesia—and I say this having trained for a time in anaesthetics myself—is not a straightforward discipline. Things can go wrong very rapidly, and the responsibility carried by somebody with this skill set is enormous, because somebody’s life depends on it. They need to know what they are doing all the time. Currently, this group of assistants are not registered. I use that as an example because there will be others, including people working in fields such as cardiology and radiology—in all kinds of interventional areas. Then there are those working in the diagnostic fields who are clinical scientists. If they get something wrong, the diagnostic label attached to a patient will be wrong, the treatment will be wrong, and that patient’s life may be not only damaged but lost. If that original diagnostic test is not properly conducted, the mistake is repeated all down the line. I have a major concern, therefore, about the domestic shortage of clinical scientists. We used to have a good supply of people who wanted to come here from Europe. Now, those from Europe have been returning to Europe, but people from Europe no longer want to apply to come to the UK. That is aggravating the existing gaps in the service.

I have added my name to Amendments 20 and 21, and I fully support the requirement for others to be consulted. In all these fields, there is increasing interdisciplinary working. Although the registration of doctors is held separately to that of nurses, midwives, physios and so on, they must in fact work as a team and there must be cross-fertilisation of skills and competencies. We need to invest in UK training to upskill our own professionals—hence Amendment 21. Amendment 21 may lead the way to credentialling, which has been suggested as a way forward across the different healthcare disciplines, whereby people develop highly specialised skills and are credentialled in one particular area, rather than having to go back to their baseline qualification to apply for a post. I also wonder whether the Bill itself has been drafted as it has to push forward credentialling. I would be grateful if the Minister was able to clarify whether that has been behind some of the drafting, particularly in Clause 2.

Amendment 26 stresses the autonomy of the regulator. I would have thought, from the comments we have heard about the Government’s respect for the autonomy of the regulator, that they would wish to accept that amendment, although I do not have my name on it—it is in the name of other noble Lords.

On Amendment 28, again I would hope that the reciprocal arrangements between regulators would be in the Bill itself, to ensure that there is cross-disciplinary working and an interchange of standards. It would be a real mistake to have standards for a certain procedure, or way of doing things, that vary depending on the background—the initial qualification, possibly decades old—of that professional. That would mean that, if they came up through a nursing background they would somehow be expected to operate at a lower standard when they are, as a sole operator, doing a diagnostic procedure such as a gastrostomy, and that the skills and competencies required of them to do that procedure would be different from those required of someone with a medical degree. They should not be: there should be one standard for the procedure—for the patient—and, if it is complicated, it may well be that it gets handed on to the person with the medical degree.

This is, therefore, a very important set of amendments, and I am most interested to hear the Government’s response to them.

[Baroness Randerson (LD)]

My Lords, the Minister emphasised that the UK wanted to retain mutual recognition of EEA qualifications, and my noble friend Lord Purvis disputed some of that. Whatever led us to the current situation, shortages are a real problem. As the noble Baroness, Lady Finlay, just mentioned, the impact of the lack of recognition is very serious in some professions.

I shall give noble Lords an example: there are around 22,000 EEA-qualified doctors licensed to practise in the UK, although a significant number of them will have returned home, or at least left the UK, in recent months and years. Nurses, in particular, have gone home in large numbers. In contrast to those 22,000 doctors, only about 2,000 UK doctors are licensed to practise in the EEA, so the impact of that decision not to have mutual recognition falls much more heavily on the UK than on the EEA. We are one country with an impact of 22,000, versus 28 countries with an impact of only 2,000 UK-trained doctors.

However, I am pleased to have the opportunity as a result of these amendments to emphasise that the Government have to get a grip on workforce planning generally. There are amendments in this group that refer to the importance of working far beyond reliance on foreign-trained doctors and professionals generally. The Government have to fund an expansion of university and medical school places and increase the number of places on training courses in a wide range of professions where there are shortages.

Judging by statements in the impact assessment, the Government’s purposes seem to waiver. They seem not to have made up their mind about whether regulators can continue to operate independently and autonomously or should be part of a co-operative effort to address skills shortages. This will partly be addressed by international trade agreements. This group of amendments incorporates some ideas that offer the opportunity for greater clarity. Amendment 20, which I support, ensures consultation with regulators, so that it is not the job of the Government alone to decide whether there is a shortage.

One example is from the information that I received in preparation for these debates. The British Dental Association makes the point that in healthcare professions, patient protection must remain the overarching aim. It points out that the current barriers to work in the UK for overseas-qualified dentists include the need, once they are registered, to undertake up to one year of additional training in dental practices. I know this, in part, from my experience of regularly going to the trainee doing one year’s practice at my local dental practice. These opportunities are apparently very rare and difficult to obtain because they involve costs to the practice hosting the training dentist and costs to the new dentists themselves, so any supposed shortage of new dentists in this country would not be resolved by the simple measure of encouraging more registrants. That is the point of the BDA’s comments.

Professional Qualifications Bill [HL]

Baroness Finlay of Llandaff Excerpts

Committee stage
Monday 14th June 2021 Lords Chamber

[Lord Moylan (Con)]

My Lords, Amendment 55A is in my name. There are many excellent provisions in the Bill requiring regulators to share information. They are required to share information with regulators at home and abroad, and with people who wish to be qualified to practise in this country. However, there is nothing in the Bill which requires the sharing of information with people who are already practising the profession in this country. Indeed, there is nothing in the amendment spoken to by the noble Baroness, Lady Randerson, which touches on my point, although it would expand the requirement for information sharing.

It might be thought otiose to have such a requirement where a regulator is also a membership body, as it could be assumed that naturally it would communicate with its members, but a regulator is not always a membership body. I remind noble Lords that I said at Second Reading that I was an honorary fellow of the Royal Institute of British Architects, and I am grateful to RIBA for discussions about this topic. RIBA is a membership organisation representing its profession, but it does not regulate the architectural profession. As noble Lords will know from other parts of the Bill, that is a function reserved by statute to the Architects Registration Board. Experience is that stand-alone statutory regulators do what is required of them by statute, and very little else. That is why a nudge is needed, and this amendment would achieve that.

This clause would allow professional practitioners to know what agreements regulators were pursuing, what mutual recognition agreements were in the pipeline, what progress had been made and the timeline for the agreement. It would also provide a clear path for professional practitioners to have their views on how agreements should be prioritised made known to the regulator. Remarkably, without this amendment, there is no statutory obligation on a regulator to have any communication with regulated professionals at all.

Why does it matter? To take the example of architects, British architects are known to lead the world. They work on major projects throughout the world, and they often work with our world-beating civil engineers on transport, infrastructure and other major projects. They earn a great deal of export earnings for us as a country, too. When they are doing this, they need to be able to send architects to work in other parts of the world. On occasion, they also need to be able to employ in this country architects who are from countries where a pipeline of work might be developing and have specialist knowledge of regulations—be they on planning or whatever—that apply in the country where the project is being delivered. They are very commercial architects—they have to be, because they operate in a harsh commercial world—so they look ahead. They see a pipeline of activity in a particular country that might be coming forward with new projects—airports, infrastructure, or whatever it might be. They want to be able to have some influence on their regulator about how mutual recognition agreements might be prioritised to facilitate capturing that work.

I have used architects as an example, but there are other professions that might find themselves in a similar situation, which would want to have that two-way flow with their regulator and which, not being a membership organisation, would need, in my view, the help of statute to ensure that that communication took place. This is so modest and commonsensical a suggestion that I hope my noble friend will be able to rise and simply say that he accepts it.

[Baroness Finlay of Llandaff (CB)]

My Lords, I speak particularly to Amendments 31 and 32, and I commend Amendment 32, tabled by the noble Baroness, Lady Noakes, to the House. I remind the Committee that the British Dental Association said:

“We would strongly advise that any body issuing qualifications which might be recognised in the UK must be a recognised body for the purpose of issuing professional qualifications by the regulator in a given country. This is crucial to avoid situations in which a UK regulator might be asked to enter into recognition agreements with another regulator in a country where not all educational institutions might be fully accredited by that regulator.”


Unfortunately, I was too late to add my name to Amendment 32. I strongly support it and hope that the Government will take it on board. I have wondered whether it would benefit from “relevant” being inserted before “overseas”, but that would come later on. We certainly need something of that nature in the Bill.

I also speak briefly to Amendment 32A because, as the noble Baroness, Lady Randerson, outlined, it is essential that there is a degree of stability in the higher education system and with training providers. In some subject areas, there is a need for simulation suites and quite complex teaching that requires long-term investment, and, as the noble Baroness said, staff may need to be taken on. You cannot just shed staff; you cannot ask staff to start teaching something they are unfamiliar with without due warning. I am concerned that there is a danger that the Bill could inadvertently destabilise some of our own systems.

[Baroness Fraser of Craigmaddie (Con)]

My Lords, like the noble Lord, Lord Davies, I am also new to this House—in fact, I am even newer than the noble Lord. Like him, I support my noble friend Lady Noakes’ points on Amendment 32, but I actually wish to speak to Amendment 32A in the names of the noble Baronesses, Lady Randerson and Lady Garden.

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[Baroness McIntosh of Pickering (Con)]

I support the comments of the noble Lord, Lord Palmer of Childs Hill, in moving his Amendment 37 and echo many of the remarks made previously on this.

My starting point is this: we now face a potential shortage in many professions, particularly among veterinary surgeons and many categories of medical staff, including doctors, nurses and other clinicians. It therefore seems odd that we have two amendments in this small group on the need for this to be in the Bill. Can my noble friend explain, as he has said many times during the passage of this Bill, at Second Reading and in earlier debates, that the Bill is deemed to be a tool to address potential shortages in the professions, such as veterinary surgeons and medical staff at every level? If that is the case, is it his view—bearing in mind the two probing amendments in this group—that it should perhaps be explicitly stated in the Bill, for the avoidance of doubt?

[Baroness Finlay of Llandaff (CB)]

My Lords, it is a pleasure to follow all those who have spoken on the amendments in this group, because they are incredibly important. The noble Baroness, Lady Fraser of Craigmaddie, spoke about the dangers of a “whiff” of doubt; I fear that whiff is becoming a smell out there among those whom we desperately need to retain in this country to do the work. I did a different type of straw poll, in west Wales; I just asked how many of the people were immigrants from Europe. We have over 270, and they are holding up the NHS. If they leave, I am afraid we will be in a real pickle. We have a real problem recruiting new people into jobs. We have vacancies not just among front-line clinicians but, as I spoke about on day one, among clinical scientists, where a terrible shortage is affecting our diagnostic processes.

The other problem is that those in Europe do not want to come at the moment because there is an element of doubt, and they feel that they will not be welcomed. Even those who have been well trained, who might come for one or two years and bring some skills over, are not doing that. They are staying away. Although it might sound a bit far-fetched, I think the unfortunate legacy of the Windrush scandal has tainted people’s minds a little bit and tipped them over towards mistrust.

The Minister used the word “trust” earlier today in relation to this Bill. I urge the Government to make it absolutely crystal clear that the qualifications that were previously recognised will remain recognised in perpetuity for the people who hold them unless there is a major change. Something like that might happen; for example, a profession might disappear completely or change so much that ongoing training would obviously be wanted. There is a real need to emphasise that these are valid qualifications and that they are of equal status—and that the people who hold them are viewed as being of equal status, that they are welcome here and that we appreciate the work that they do.

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[Lord Fox (LD)]

My Lords, I thank the Minister for his partial answer to my point, but he will find if he goes back to the department that proof of recognition will have to be re-presented if people are moving jobs. If that is not the case, I will be happy to accept it and we can have one of his famous letters on the subject. My understanding is that this is not his department’s doing but part of the hostile environment that the Home Office still pursues; the noble Baroness, Lady Finlay, made the point about the hangover from previous incidents. My understanding is clear on this, so I would be pleased if the Minister is able to disabuse me of it.

[Baroness Finlay of Llandaff (CB)]

My Lords, to add to that, I listened carefully to the Minister when he spoke about the person holding the qualification, but my concern relates to the qualification itself. If somebody holds a qualification that was mutually recognised in the EU, has not yet come to this country but wishes to in five years’ time, will that qualification remain recognised as it would have previously or is there a possibility of additional hurdles being put in place for that person coming in? I go back to the term “grandfathering” and whether the recognition that existed will continue, or whether it continues only up to date for those people who are currently on a register in this country and possibly have settled status. That was not clear, or perhaps I did not understand it.

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

I invite the Minister to reply to both speakers.

Professional Qualifications Bill [HL]

Baroness Finlay of Llandaff Excerpts

Committee stage
Tuesday 22nd June 2021 Lords Chamber

Moved by

[Baroness Finlay of Llandaff]

56A: Clause 14, page 11, line 2, leave out subsections (5) and (6)

[Baroness Finlay of Llandaff (CB)]

My Lords, I start by apologising to the House, as I wrongly said previously that nursing associates are not regulated. Actually, the Nursing and Midwifery Council now holds the register of those who meet those criteria.

In moving Amendment 56A, I am grateful to my noble and learned friend Lord Thomas of Cwmgiedd for his support. We have already had a discussion about exactly which regulators are affected by this Bill. There are two regulating bodies based in Wales that this legislation would affect: the Education Workforce Council and Social Care Wales. There is no valid reason whatever that the Westminster Government should have a say over these bodies, as they operate in wholly devolved areas.

The letter previously referred to, which was sent by the noble Lord, Lord Grimstone, to the noble Baronesses, Lady Hayter of Kentish Town and Lady Noakes, concerning the professions and regulators within scope of the Bill, exemplifies a key concern that my amendment tries to address. The letter failed to clarify that the Education Workforce Council is a Wales-only regulator, but also failed even to mention Social Care Wales. This was clearly a mistake, as we have now heard, and I hope it has been corrected, but it also flags a wider issue: Wales and Welsh bodies are clearly an afterthought for this Government when considering this Bill.

In its current state, I fail to see how the Welsh Government would recommend that the Senedd consent to the Bill, unless a number of issues are satisfactorily resolved. Clauses 1, 3 to 6, 8 and 10 confer various regulation-making powers for different purposes on the “appropriate national authority”. Of particular and cross-cutting concern to all these clauses is the way “appropriate national authority” has been defined by Clause 14. This means that the powers of the Welsh Ministers, along with those of the other devolved Governments, are exercisable concurrently by the Secretary of State or Lord Chancellor. Hence, the Secretary of State or Lord Chancellor could make provision, through regulations, on matters that fall within devolved competence.

In addition, as we have heard, Clause 13 contains provisions that mean that the powers to make regulations, conferred by Clauses 1 to 6, include powers to modify primary legislation, such as UK Acts of Parliament and Senedd Acts, as well as secondary legislation. The combination of concurrent functions and Henry VIII powers means that the Secretary of State could exercise these regulation-making powers to amend Senedd Acts and regulations made by Welsh Ministers. While Ministers may claim they do not intend to use these concurrent powers in areas of devolved competence, the wording of the Bill does not reflect this sentiment. The Secretary of State and Lord Chancellor would be able to exercise these powers in devolved areas without requiring any consultation with, or consent from, Welsh Ministers. That is clearly unacceptable.

Clause 14(5) requires Welsh Ministers, when exercising the regulation-making powers in the Bill, to obtain the consent of a Minister of the Crown when such regulations would, if made in an Act of the Senedd, require the Minister of the Crown to consent under Schedule 7B to the Government of Wales Act 2006. This effectively imports the restrictions imposed by paragraphs 8 to 11 of Schedule 7B to the 2006 Act into the regulation-making process. This restriction is unique to Welsh Ministers’ powers; Scottish and Northern Ireland Ministers are not subject to a corresponding restriction. However, it is not without precedent—a similar restriction was imposed by the Fisheries Act 2020.

What does this mean in practice? It means that the Welsh Ministers would, when making regulations using the powers conferred by this Bill, need to obtain the consent of a Minister of the Crown in certain circumstances, including where, for example, the regulations modified or removed a function exercisable by a reserved authority. Further, the removal of this provision via a future Act of the Senedd would also engage the Minister of the Crown’s consent requirements. Again, this is not a suitable state of affairs. Therefore, I must question whether some of these powers are even necessary.

For example, the power conferred by Clause 1 enables the “appropriate national authority” to make regulations that require specified regulators to consider and assess whether qualifications and experience gained outside the UK should be treated as if they were specified UK qualifications for the purposes of practising that profession in the UK. Both the Education Workforce Council and Social Care Wales already have powers enshrined by Welsh Ministers in Welsh legislation to recognise international qualifications and determine whether they are equivalent to UK qualifications, so I ask the Minister why the Bill now gives powers to override this. The solution, I suggest, is simply to accept my amendment.

[Baroness Randerson (LD)]

My Lords, I am pleased to have the opportunity to support the amendment in the name of the noble Baroness, Lady Finlay. I shall take a moment to express my concern about the chaotic state of this Bill. I will not waste more of the time of this House by repeating what the noble Baroness said, but the omission of the social care regulator from the Minister’s letter was such an obvious error. I cannot help thinking that a lot of work still needs to be done to make this Bill ready to pass into legislation.

As the noble Baroness has said, as the Bill is drafted, the regulator confers a suite of regulation-making powers on the appropriate national authority. Welsh Ministers are that authority for the devolved professions and have a right to be fully recognised as that, not to have to ask for permission from the UK Government nor to have their existing powers overridden by this legislation. According to the Bill, those powers are to be exercised concurrently with the Secretary of State and Lord Chancellor, who could legislate in devolved areas and, as the Bill stands, would not need the consent of Welsh Ministers on those regulations.

It is worth adding that the situation in Wales is always slightly more complex, because of the nature of Welsh devolution; it started from a bad place, has moved forward significantly in gaining clarity and logic, but is not 100% there yet. There are areas where Welsh Ministers have some Executive powers that are not reflected in the legislative powers of the Senedd, and that has to be recognised.

The reassurance that we received from the noble Lord the Minister—I realise that the noble Baroness, Lady Bloomfield of Hinton Waldrist, will respond to this group of amendments—that the power to override Welsh Ministers would not normally be taken is of no great reassurance to us, because the UK Government have said that in the past and then overridden the decision of the Senedd or the wishes of Welsh government Ministers.

This is a serious issue for the Government and this Bill. I warn them that, as the Bill stands, the Government will not get consent from the devolved Administrations or the Senedd in Wales. They have to take that into account as, to get this on to the statute book, they must start by overriding Welsh Ministers and Senedd powers.

--- Later in debate ---

[Baroness Bloomfield of Hinton Waldrist (Con)]

Hoffwn ddiolch i bawb a siaradodd yn y dadl byr ond bwysig hon. I thank all noble Lords who have spoken in this short but very important debate. I thank the noble Baroness, Lady Finlay of Llandaff, for her amendment, which relates to Clause 14 and the Welsh Minister’s powers to make regulations under the Bill. I note that it is supported by the noble and learned Lord, Lord Thomas of Cwmgiedd. The amendment would remove the subsections within Clause 14 whereby a Minister of the Crown’s consent would be required before any provision is made by Welsh Ministers in regulations that would, if contained in an Act of Senedd Cymru, require such consent.

First, I reiterate that the Government fully respect the devolution settlements. Devolved matters should normally be for the devolved Administrations to legislate on. It is hard to conceive of a scenario where this would not be adhered to. I remind noble Lords that the Government are seeking legislative consent to the Bill in line with the Sewel convention. The conditions in Clause 14 that the amendment would strip out are entirely in line with the devolution settlements. To deviate from the agreed position under the Welsh devolution settlement purely for the purposes of regulations made under the Bill would be inappropriate and unnecessary.

On the concurrent powers in the Bill, some professions are regulated on a UK-wide basis, and the regulation of some professions is entirely at devolved level. The Bill will apply to the entirety of the UK and, in line with the devolution settlements, allow the devolved Administrations to make regulations within devolved competence. The inclusion of concurrent powers ensures that professions which fall within devolved competence but are regulated on a UK-wide basis can be dealt with under the Bill by the relevant appropriate national authority. Of course, we shall always consult the relevant devolved Administration before these powers are used in devolved areas.

In answer to the noble Baronesses, Lady Randerson and Lady Finlay of Llandaff, officials met the Education Workforce Council at the end of April and are meeting the social care regulators next week to discuss the Bill. Social Care Wales was on the first indicative list and came off the second one following clarification from departments. As noble Lords know, the Education Workforce Council was on both lists. Because we are meeting the regulators so shortly, I will agree to write to noble Lords and update them on the progress of those discussions when they have actually happened. To that end, I hope that I can persuade the noble Baroness to withdraw her amendment.

[Baroness Finlay of Llandaff (CB)]

My Lords, I think I should start by saying “Diolch yn fawr iawn” to the Minister for her reply.

I am most grateful to the noble Baroness, Lady Randerson, for supporting me and the noble and learned Lord, Thomas of Cwmgiedd, in this amendment. I am also grateful for the support of the noble Baroness, Lady Garden of Frognal, and for her interpretation when she described it as “any passing Minister” being able to make some power, which is how it did feel when I read this in the Bill.

As has been said, the devolution settlement is indeed very complicated, and the problem is that the Bill appears to worsen those complications. The noble Baroness, Lady Hayter of Kentish Town, really put her finger on it in explaining what is, in some ways, the delicate nature of all this. I look forward to having a written reply from the Minister, because this is very complicated indeed. I do not think that we have clarified it adequately and, following that letter, I may well want to come back to it on Report. In the meantime, I beg leave to withdraw the amendment.

Amendment 56A withdrawn.