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.