Professional Qualifications Bill [HL]

Baroness McIntosh of Pickering Excerpts

2nd reading
Tuesday 25th May 2021 Lords Chamber

[Baroness McIntosh of Pickering (Con)]

My Lords, I am grateful to my noble friend and congratulate him on so ably introducing the Bill. At the outset, I raise two points and will press him on his opening remarks. One is in relation to offering preferential treatment, which we understand is now historic, to EEA countries and Switzerland, which he said was not reciprocated by the EU and was always intended to be temporary. However, we were told that that was a matter for negotiation at various points of the legislation.

There are many quotes I could give. I asked a Written Question of the Department for Exiting the European Union, and my noble friend Lord Callanan replied on 16 March 2018 to the effect that:

“The Government is firmly committed to the agreement in December and we are working with the Commission to agree how they should be translated into legal form in the Withdrawal Agreement. We are committed to turning the Joint Report into legal text as soon as possible and it remains our shared aim to reach agreement on the entire Withdrawal Agreement by October.”


More recently, in the debate on legislation for the withdrawal agreement, again in response to a question from me, my noble friend Lord Callanan replied:

“With regard to lawyers … the existing professional qualifications were recognised as part of the withdrawal agreement for existing citizens. The future recognition of qualifications, after the end of the implementation period, is a matter for negotiation. It is in the White Paper. It is something that we want to agree and we think it mutually desirable, but it has not yet been agreed.”—[Official Report, 24/7/18; col. 1673.]


I agree that it was desirable, and it is my fervent wish that we can go on and negotiate this, albeit not with the EU collectively but with individual member states.

I take this opportunity to refer to my interests on the register. In particular, I am a graduate in Scots law, where there is a proud tradition whereby we marry aspects of Roman law, private international law and UK constitutional law. I was one of the cohort of the first ever Scottish undergraduates who undertook a six-month compulsory course on European Community law, as it then was. I am a non-practising member of the Faculty of Advocates and endorse entirely the comments made by the noble and learned Lord, Lord Hope of Craighead. I pay tribute to all his contributions, not least to those in his earlier life as dean of the Faculty of Advocates.

I speak very much from the focal point that I had as beneficiary of the free movement of lawyers and the right to establish legal services for those from this country in other European Union countries while we were members of the European Union. I accept that we are now in a different situation, but I would like to think that those up and coming advocates will benefit from similar experiences to those that I had. I press my noble friend again on the reciprocity of recognition of qualifications and the mobility for professions and the right to practise—my noble friend said “globally” but I would say perhaps a little closer to home.

The remarks of the noble Baroness, Lady Garden of Frognal, struck a chord. We are very poor in this country at speaking other languages. I am fortunate to be able to speak a number of other languages and, indeed, studied in Denmark and did some translations for the European Commission in that language. I regret that our knowledge of European languages and foreign languages generally in this country has gone down since we left the European Union.

I take this opportunity to celebrate the distinct nature of legal services across the United Kingdom and to echo the view expressed by the noble and learned Lord, Lord Hope of Craighead, that it is essential that these are recognised and respected—as they are in the Bill through the devolution aspect as regards the mutual recognition of qualifications. So too is the fact that the regulation of the legal profession, among others, is devolved.

I have a specific question for my noble friend. Can he explain how the regulations—as a framework Bill, the regulations are multiple; other noble Lords have referred to that aspect—are to be adopted under the Bill and how the distinct nature, certainly of Scots law, will be reflected in this? The helpful briefing note prepared by the House of Lords Library for today’s debate refers to the ongoing work in the common frameworks and the fact that the MRPQ and services frameworks are a matter for discussion and negotiation under the common frameworks. It would be very helpful if my noble friend could give us an update. If he is able to do so, can he also address the issue that the noble and learned Lord, Lord Hope, raised—that consultation should be with the professions as well as the regulators and the devolved assemblies?

The very helpful briefing from the Law Society of Scotland highlighted a number of clauses, in particular Clause 3 on implementation of international recognition agreements, Clause 5 on the revocation of the general EU system of recognition of overseas qualifications, and Clause 7 on the assistance centre. It is believed that the devolved Administrations should be consulted on the arrangements for the creation of the assistance centre. It would be helpful if my noble friend could set out precisely what form the consultation will take, and at what stage. The noble Baroness, Lady Blake, asked for publication of the regulations in advance; that would be very helpful indeed.

I welcome the fact that the Bill’s focus is to facilitate cross-border recognition and regulation and to ensure an integrated system of the transfer of professions, so far as the Immigration Rules will permit. Given the wide regulation-making powers under the Bill, I ask the Government to give a commitment to consult on any draft regulations, as I have addressed. I add a personal plea for an assurance that the arrangements will be reciprocal, as regards not just the mutual recognition of professional qualifications but the right to establish legal services in other countries on a similar basis.

Preparing for today, I also received a helpful briefing from the Law Society of England and Wales. On the mutual recognition of qualifications, it has asked for it to be made obviously clear that foreign lawyers can provide legal advice on home-state law and international law, as well as English and Welsh law, with the exception of the six reserved activities. The Law Society goes on to say that it believes the UK should seek to obtain equivalent rights for England and Wales solicitors operating in foreign markets—I would argue for Scots lawyers too—and that it is vital that legal and other professional services are at the forefront of the forthcoming trade negotiations, for the reason that other noble Lords have given—the economic importance of the sector. It also asks that the specificities of market access for the legal sector are recognised. MRPQ does not necessarily have the same importance for lawyers as for other regulated professions, in the sense that the difficulty for trade and legal services generally lies in behind-the-border barriers.

In his opening remarks, my noble friend referred specifically to Clause 11 and the work of architects overseas. I am slightly concerned that he is underestimating the difficulty in relation to architects, of whom I understand there is a shortage. It took 21 years for 12 EU countries to agree the mutual recognition of architects’ qualifications. I hope it will not take that long for my noble friend to be able to negotiate those agreements.

To conclude, I ask my noble friend specifically that, as the Bill proceeds through Parliament, it will recognise the distinct nature of legal services in the United Kingdom, that consultation with professions as well the devolved Administrations will be secured, and that reciprocal arrangements on the recognition of qualifications will be sought within individual countries and in the shortest timeframe possible.

I look forward to examining and scrutinising the Bill as it proceeds through its legislative stages in this House.

Professional Qualifications Bill [HL]

Baroness McIntosh of Pickering Excerpts

Committee stage
Wednesday 9th June 2021 Lords Chamber

[Baroness Garden of Frognal (LD)]

My Lords, I thank the Minister for the government amendments in this group. I want to speak in particular to Amendments 2 and 3, but having just listened to the noble Lord, Lord Lansley, I can see that Amendment 11 has an awful lot to commend it.

At Second Reading, I expressed concern that proficiency in English was not a prerequisite for individuals to be treated as having UK qualifications. I was prepared to put down an amendment to that effect, but I readily acknowledge that this is a matter much better left to the regulators than put in the Bill. The addition of the words “any other specified condition” leaves this in the hands of the regulators. It is hoped that many of them will recognise the importance that anyone working in the UK should speak and understand English. It is important not only for professional but for social reasons. We are still, alas, a hopelessly monolingual country, and any overseas worker who can speak only their language will have a difficult time both with their fellow workers and with sorting out their everyday life, however brilliantly they are qualified and however much experience they have.

Clause 1 concerns qualifications and experience, but leaves it with the regulator to consider whether experience makes up for any lack of appropriate qualifications. These amendments put the onus exactly where it should be—on the regulator. We on these Benches support the amendments.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted to speak to this group of amendments. My question for the Minister is why we need these amendments. I understand that he has brought them forward in part to satisfy concerns raised by the General Medical Council and those expressed in the report of the Delegated Powers Committee. My noble friend has had an opportunity to speak to other regulators—here I declare an interest as a non-practising member of the Faculty of Advocates—but what he is proposing in these amendments could appear to be micromanaging criteria that would best be left to the regulators.

Concern that has been expressed by the Bar Council for England and Wales that the Government are conflating two different aspects. The first is the right of the Government or the state to set out which person should have the right to enter and remain here. The second is what I believe is the right and the duty of the regulator, which is whether an individual has the right to practise a particular profession or to establish services in this country. In seeking to amend the Bill in the way the Government are doing, we are moving away from the mutual recognition basis which has served this country so well, and I do not agree with that premise. Perhaps I may repeat that I had the opportunity to practise in Brussels on European Community law on two separate occasions, so I think that the Bill before us and the regulations to which my noble friend has referred will make it much more difficult to achieve that in the future.

I refer also to a letter from my noble friend which he sent to the Delegated Powers Committee. He talks about a “generous agreement” that was sought with the European Union on professional qualifications. He goes on to state on page 12 in the third paragraph:

“However, for other trade partners, we are more likely to consider Mutual Recognition Agreement (MRA) frameworks, a more common precedent in international trade agreements.”


I confess to being slightly confused, because if we are moving away from mutual recognition of qualifications with the European Union, why are we seeking to establish them in international trade agreements? I look forward to my noble friend being able to clarify those concerns.

[Lord Patel (CB) [V]]

My Lords, I am grateful to the Minister for these amendments, as I have spoken at length about the problems that would have been created for the General Medical Council otherwise. I am also grateful that he had extensive consultation with his officials and the General Medical Council. As he said, the General Medical Council is grateful to him for bringing forward these amendments.

Having said that, I would like the Minister to confirm on the record that any determination made by a regulator on whether a professional is able to join a register can be based on an assessment of the individual’s knowledge, skills and experience rather than solely on qualifications. Can he further confirm that the regulator would be able to make such an assessment using whichever method they found appropriate, including existing tests of competence and any other test they might develop in the future when it is found necessary?

I also support the probing amendment from the noble Lord, Lord Lansley. When the General Medical Council considers qualifications and experience, it takes into account the experience that the individual may have gained in his or her own country, but it also has the power to look at the experience that the individual may have gained subsequently outside their country. The amendment sought by the noble Lord, Lord Lansley, seems appropriate and I would be interested in the Minister’s response, but, at this juncture, I thank him for his amendments, and I support them.

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Moved by

[Baroness McIntosh of Pickering]

13: Clause 1, page 2, line 8, at end insert—
“(4A) Before regulations under subsection (4) may be laid before Parliament, Senedd Cymru, the Scottish Parliament or the Northern Ireland Assembly, the appropriate national authority must undertake a formal consultation with the devolved administrations, regulators and the Lord President of the Court of Session.”

[Baroness McIntosh of Pickering (Con)]

I am delighted to move Amendment 13 and to speak to Amendments 24, 35 and 40. I thank the noble and learned Lord, Lord Hope of Craighead, for his support of these amendments. I shall speak also in support of Amendment 41, and look forward to hearing more detail and the thinking behind Amendment 42, in the name of the noble Baroness, Lady Randerson, Amendment 49, in the name of the noble Baroness, Lady Hayter, and Amendment 57, in the name of the noble Lord, Lord Purvis.

On the background to Amendments 13, 24, 35 and 40, the case was made at Second Reading, and I have now followed that up more firmly with these amendments. It is really about having regard to two distinct concepts. I come from the background of the Faculty of Advocates, albeit now as a non-practising member. There are separate jurisdictions of law in the UK, and there are sufficient differences between these legal systems to warrant an exclusion from the provisions that create greater regulatory integration of other professions between the UK’s composite parts throughout the Bill.

Secondly, as I said at the outset, it is a process of not just recognising that the distinct nature of legal services needs to be recognised and respected but also that the regulation of the legal profession, certainly as regards solicitors and advocates, is devolved. What I propose to do, and I hope that the House will support me in this regard, is to ensure that there will be a formal consultation with the relevant devolved Assemblies before any regulations are made under the provisions of the Bill as passed.

Amendment 13 relates to Clause 1, but the wording that I have used is similar in relation to Clauses 1, 3 and 5—Clause 3 relates to the “Implementation of international recognition agreements”, and Clause 5 relates to the “Revocation of general EU system of recognition of overseas qualifications”. A slightly different wording is used in Amendment 40 to reflect the fact that this relates to the setting up of an “Assistance centre”. As regards Amendment 40, I would go so far as to say that there should be a formal consultation with the devolved Administrations and regulators. I think the noble Lord, Lord Foulkes of Cumnock, and I have both been greatly assisted by the Law Society of Scotland in our preparation for this afternoon, and I thank the society most warmly for that.

The noble Lord, Lord Foulkes, goes further and goes to the question of consent—that consent be specifically given. In that regard, if that consent is not given then the understanding is that the arrangements would not proceed. I think it is extremely important, again underlining the fact that the purport of these regulations —also as regards to the assistance centre—must have regard to the nature of the devolved Administrations and regulators.

Amendment 49 in the name of the noble Baroness, Lady Hayter, and supported by the noble Baroness, Lady Randerson, looks to the common framework agreement. I have just one little question here. Is that what we understand by the common frameworks? I am following this as closely as I can, albeit living in England. Is the noble Baroness referring to the existing common frameworks, or is she proposing a separate one in that regard?

I believe that it really is essential that we adopt either Amendments 13, 24, 35 and 40 or something equivalent to them. I hope that my noble friend the Minister will look kindly on these amendments and go some way to assuaging my concerns that, without these amendments, we are not going to have a full consultation in advance of these regulations being laid.

With those few opening remarks, I look forward to hearing the rest of the debate on these amendments. I am grateful for the support of the noble and learned Lord, Lord Hope of Craighead. I have taken the precaution in Amendments 13, 24 and 35 to acknowledge the fact that the Lord President of the Court of Session has a specific role to play in regulating the legal profession in Scotland.

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[Lord Grimstone of Boscobel (Con)]

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

[Baroness McIntosh of Pickering (Con)]

My Lords, this has been an excellent debate, and I thank all noble Lords who have contributed to it, in particular the noble Lord, Lord Foulkes, and the noble and learned Lord, Lord Hope of Craighead.

I regret to say that I am not completely assuaged by the replies of my noble friend. I will take as an example the wording of Amendment 13, which seeks to ensure that there is

“a formal consultation with the devolved administrations, regulators and the Lord President of the Court of Session.”

I take the point made by the noble and learned Lord, Lord Hope, that I do not expect the Lord President to be involved in every case, but I listened carefully to what he said at Second Reading and that is why this is included.

At Second Reading, the noble and learned Lord, Lord Hope, also highlighted the fact that while consultation with professionals is essential, as I think we would all agree, there is no mention of that either in the Bill or in the Explanatory Notes. I therefore remain discontent and dissatisfied. While in his summing up, my noble friend the Minister said that a lot of consultation had taken place, he did not say what form that consultation would take.

I have a further cause for concern, referring back to what the noble Lord said yesterday. I had hoped to intervene in the debate on the trade deal with Australia, but I was told that it was heavily oversubscribed. He made the point that the Trade and Agriculture Commission will only look at future trade deals literally just before they are to be signed. As we have heard in the debate on this group of amendments—and as the practice seems to have been—any consultation seems to be left to absolutely the last minute. It concerns me greatly that that is not doing justice to the complexity of this. I will look carefully at the Minister’s response before the next stage of proceedings. For the moment, I beg leave to withdraw the amendment.

Amendment 13 withdrawn.

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[Baroness McIntosh of Pickering (Con)]

I am delighted to support many of the amendments in this group. Those in the name of the noble Lord, Lord Foulkes, are very similar to those in my name. I notice that Amendment 38 extends the proposed consultation to Clause 6. I will limit my remarks to the amendments in the name of the noble Baroness, Lady Hayter, and Amendment 52 in the name of the noble Lord, Lord Palmer of Childs Hill.

The noble Baroness, Lady Hayter, has cleverly married the concept of consultation with specifying the number of bodies that are to be consulted upon. When she comes to move Amendment 27, I would be interested to learn why she picked those specific ones. I am also interested to learn from the Minister why there is no reference in the Bill to any specific professional bodies. What was the thinking behind that?

On Amendment 52 in the name of the noble Lord, Lord Palmer of Childs Hill, obviously, a number of professional people co-operate together in partnership, but many may consider them a small firm, if you like. I see some merit to Amendment 52 in relation to what the Bill’s impact will be on small and medium-sized companies. I look forward to hearing my noble friend’s response to that request.

[Lord Fox (LD)]

My Lords, this group is perhaps the inevitable consequence of trying to reduce a highly complex system and situation, as the Minister has highlighted, into a small one-size-fits-all Bill. In other words, we have a mixed bag of amendments in this group. I will speak initially to Amendments 53 and 54 in my name and to Amendment 52 in the name of my noble friend Lord Palmer of Childs Hill.

I thank the noble Lord, Lord Patel, for his support of Amendment 53. He said that he was disappointed to be speaking before me. I have to say that I am not disappointed to be speaking after him because he gave a much better speech than I could possibly have managed myself. The noble Lord, Lord Lansley, is right, in that the innovation issue is hard to measure, but I think that the point made by the noble Lord, Lord Patel, that this is part of a cumulative effect on innovation is important.

I was hoping to probe the Minister on how the Government have joined the dots between the intention of the Bill and how it will drive the future nature of our economy. To some extent, the criticism of the noble Baroness, Lady Noakes, of these kinds of amendments as a way of trying to shoehorn in something else is true; I make no apology for that.

At the heart of the Bill, there is a central conceit. At Second Reading, the Minister said:

“The Bill will allow action to be taken in the public interest if it is judged that a shortage of professionals has arisen in a profession.”—[Official Report, 25/5/21; col. 908.]


What is a “shortage of professionals”, and what level of omniscience is required from the department in order to identify that particular need in the market for professionals?

Is there a danger that the Bill is in fact solving yesterday’s problems? That is the innovation question—because we need people to create the businesses of the future. Yet we have a Home Office that lets in only people who already have a job, and BEIS, which will measure the current need for people. The noble Lord, Lord Patel, was closer to the mark when he talked about early career researchers—I would add research technicians. Both find it extremely difficult to get Home Office visas because they are paid less than the limit for them to come in.

We are going to have a debate about the availability of people, in the group starting with Amendment 17, and I do not want to pre-empt that, but I want to hear the Minister’s playback on how the department and those drawing up the Bill drew the dots between the Bill and innovation. That is one of my objectives with this amendment.

Amendment 54 looks at a different kind of impact. In fact, in retrospect it should have been grouped with the amendment of the noble Baroness, Lady Noakes, Amendment 9, because in a sense it measures the effect that she has highlighted there. As happenstance will have it, she did not get an answer to her questions the first time around, so this gives us a chance to run through them again.

Minister, there is a strong belief that the regulators will come under great influence from the Government on the level of fees. That will either reduce their income or maintain their income at the expense of those registering. This amendment seeks to give transparency to that problem. If indeed it is not a problem, we will see that clearly. The noble Lord, Lord Lansley, gave it something of a thumbs-up, in that it is measurable—and I assume that it is data that BEIS is already collecting because, of course, it is going to create a model of the entire professional market in order to manage it on behalf of the national economy. I assume that the data is already available. Therefore, publishing it would be very helpful and perhaps give a lie to the fears or expose them, so that the Government can change things to stop them becoming an issue.

Very simply, the point from the noble Baroness, Lady Bennett, about some joined-up reporting is well made. Whether it is the whole hog or just a few key elements—and I would probably prefer the latter to the former—I think that the global south issue can be solved by having a geographic split on where people are coming from, for example, to highlight those issues.

My noble friend Lord Palmer spoke on Amendment 52 about the need for there to be a realisation within organisations of the impact of the Bill, particularly on SMEs. In the past, many SMEs have picked up employees from the European Union without having to give a moment’s thought to the accreditation of their skills. That is now changing, and I absolutely agree with my noble friend that there has been no dawning on the vast majority of Britain’s businesses of that change. I think he has a great point.

The noble Lord, Lord Foulkes, spoke strongly, as usual. I agree with him—I would like the opportunity to intervene and interrupt the noble Lord, although of course I would exercise it with great care. But in the main, I would like the Minister to push back on Amendments 53 and 54 and say how this affects innovation and whether we can see the numbers when it comes to costs and the financial effect on the regulators.

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[Lord Hunt of Kings Heath (Lab) [V]]

My Lords, it is a pleasure to follow the noble and learned Lord. I put my name to these amendments because I regard full and transparent consultation as very important. At its heart, the integrity and independence of our regulators is at stake. The problem is that the Bill gives far too many powers to Ministers. In the previous debate the Minister said that future trade agreements will not compromise standards. I wonder what our farmers and fishers think of that. We know that the Government are desperate for trade deals and that they have a track record of carelessness about their details. Clause 3 gives Ministers a completely free hand when it comes to trade agreements.

This debate is also set in the context of the independence of health regulators and fears that it may be compromised. Earlier, the noble Lord, Lord Purvis, made a cogent analysis of the interrelationship, or lack of it, between this Bill and the current extensive consultation by the Department of Health and Social Care on the reform of the health regulatory bodies. Those proposals are extensive and, as suggested by the noble Lord, Lord Purvis, give extensive powers to each regulator to streamline its own processes. I support that, because the public will benefit from more streamlined approaches to fitness to practise, which will deal with issues more quickly.

However, alongside this, it is widely expected that the forthcoming NHS Bill announced in the Queen’s Speech will contain extensive provisions on the very same regulatory bodies in health that we are talking about today. One provision will be to allow Ministers, by regulation, to abolish a regulator and establish others. I have huge reservations about this, because surely it puts their independence at risk if, on a whim, a Minister can get rid of a regulator that they do not like. When you put that prospect together with this Bill, alarm bells start to ring. Consultation is not everything, but it is a safeguard. My noble friend’s amendment would provide one such safeguard that I believe we need.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted to speak in the right place in the right order on these two amendments and I apologise for what happened earlier. I congratulate the noble Baroness, Lady Hayter, on bringing forward these two amendments. I echo the concerns expressed by my noble friend Lady Noakes as to why they are limited to certain professions and not others. I am not entirely sure that all medical professions are represented here—the noble Baroness, Lady Hayter, can confirm whether this is the case.

The noble Baroness will know that I am wedded to statutory consultation, and she has clearly set out what the specific forms of the consultation would be. With that support, I look forward to hearing my noble friend the Minister say whether he can see merit in these or whether they should be extended to other professions as well.

[The Deputy Chairman of Committees (Baroness Henig) (Lab)]

The noble Baroness, Lady Finlay, has withdrawn, so I call the noble Lord, Lord Patel.

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Moved by

[Baroness McIntosh of Pickering]

16: Clause 1, page 2, line 28, at end insert—
“(7) The appropriate national authority must seek reciprocal arrangements with other jurisdictions, including individual Member States of the European Union, for those with UK qualifications; as well as in the context of future Trade Agreements and continuing negotiations with the European Union in the context of the UK-EU Trade and Cooperation Agreement.”

[Baroness McIntosh of Pickering (Con)]

My Lords, before I speak to Amendment 16, I commend and endorse Amendments 23 and 47 in the name of the noble Lord, Lord Foulkes, supported so ably by the noble and learned Lord, Lord Hope. I shall leave them to speak to these amendments. I thank the noble and learned Lord, Lord Hope of Craighead, for lending his support and for cosigning my amendment.

I have sought to highlight that it is up to the appropriate national authority to

“seek reciprocal arrangements with other jurisdictions, including”—

as I specify—

“individual member states of the European Union, for those with UK qualifications, as well as in the context of future trade agreements and continuing negotiations with the European Union in the context of the UK-EU Trade and Co-operation Agreement.”

In his response at Second Reading, the Minister mentioned that the Government had been willing to negotiate mutual recognition of professional qualifications with our erstwhile partners in the European Union, but that they would not play ball. So will he take this opportunity to update us on the negotiations with our erstwhile partners? Is it still a matter of dialogue with them?

I understand that a specialised committee is also being set up within the context of the trade and co-operation agreement. It is a matter of great concern to those of us in this place, not least the noble Earl, Lord Kinnoull, who chairs the European Committee. There seems to be no sense of urgency. I am sure my noble friend will blame the European Union, but I would like to hear that it is a priority for this Government to set up all these specialised committees in the context of the TCA—but in particular this one.

What grieved me at the time was that when a statutory instrument was moved by our then Minister, my noble and learned friend Lord Keen of Elie, he stated that we were going to accept all those coming from the European Union and EEA countries to work here but we had not negotiated the reciprocal right for our, dare I say, lawyers—the issue of most concern to me—and practitioners in other professions. That seemed to me a very regrettable way of proceeding.

In the briefing that I received today, the Bar Council of England pointed out also that Clause 3 on international agreements has a part to play in the amendment. The council’s concern is that the clause is

“useful but limited to international agreements—that is, treaties to which the UK state is a party. The power would not be available to make or amend legislation to give effect to a mutual recognition agreement negotiated autonomously at the level of professional regulators. This is a further deficiency in the Bill.”

So I ask my noble friend to explain, where a professional body such as, for example, the Faculty of Advocates, the Bar Council or the Law Society of Scotland, has negotiated some mutual recognition, to what extent the Government would be able to support that and what the mechanism would be to do so.

My noble friend the Minister, in his letter to which I referred earlier, replied to the concerns raised by the Delegated Powers and Regulatory Reform Committee in its third report of this Session published on 7 June, in appendix 1, at the foot of page 12, where there seems to be something of a contradiction. He stated:

“The Trade Act 2021 provides for the implementation of provisions on the recognition of professional qualifications that are included in UK trade agreements with countries with which the EU had signed trade agreements as at 31 January 2020.”


At the end of the paragraph, he then stated:

“Finally, the powers provided in the Trade Act 2021 expire after five years, whereas it is anticipated that, for example, MRAs”—


mutual recognition agreements—

“formed as part of trade agreements will need to be implemented well beyond this limited period—especially in light of the lengthy timeframes MRAs typically take to finalise.”

I should be interested to know how that contradiction is going to be resolved in the context of the Bill. Are we really leaving it to regulations to resolve that timeframe? Are we going to be invited to look at these mutual recognition agreements as part of the trade agreements, because I understood my noble friend to say that we would not be going into that level of detail when we discussed other trade agreements hitherto.

So I commend this amendment to the Committee. It is appropriate that we seek reciprocal arrangements with other jurisdictions. That has served us extremely well in the past and made England, particularly London, the second centre in the world, after New York, for legal practice. We have done extremely well out of the arrangements and it is important that we continue to negotiate this, not just in future trade agreements but through the trade and co-operation agreement. In commending and moving the amendment, I hope that my noble friend will look favourably upon it and bring us up to date as to where we are.

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, Amendment 23 in my name deletes Clause 3(2)(c), which provides regulations under this clause and relates to the charging of fees. That is at odds with the terms of Section 31(4) of the European Union (Future Relationship) Act 2020, which provides that no fees should be charged. That Act does not allow for the imposition of fees in regulations designed to implement the trade and co-operation agreement. So this is a probing amendment that gives the Government the opportunity to explain why they have a completely different approach in the Professional Qualifications Bill from that in the future relationship Act. I look forward to hearing how the Minister can explain that away.

Amendment 47 has also been signed by the noble and learned Lord, Lord Hope, who will be much better at explaining it than I could ever be.

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[Lord Grimstone of Boscobel (Con)]

My Lords, I thank my noble friend Lady McIntosh of Pickering, the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Foulkes of Cumnock, for their proposed amendments. They cover reciprocal recognition arrangements, the charging of fees and information sharing between UK regulators respectively. I will discuss each amendment in turn.

The noble Lord, Lord Purvis, again raised the DHSC consultation on medical professions, and I admire his deep knowledge of this. I would like to be able to respond fully to the points he has raised, so, if I may, I will write to him and put a copy of my reply in the Library. I also noted his point about EEA citizens’ withdrawal agreement rights. I will try to obtain the number and include that in the same letter.

Let me start with the amendment to Clause 1 from my noble friend Lady McIntosh of Pickering and the noble and learned Lord, Lord Hope of Craighead. I fully recognise the benefit of reciprocal arrangements for the recognition of professional qualifications. I completely understand why my noble friend Lady McIntosh and the noble Baroness, Lady Bennett of Manor Castle, seek this. I do not think I can put it better than my noble friend Lord Lansley succinctly did, in that it takes two to tango.

We have had the benefit of the great knowledge of the noble Lord, Lord Purvis of Tweed, on the negotiating stances within the EU agreement. I was not a member of the Government at that time so I cannot comment on the detail of that. I think it is now, frankly, a matter of history. The noble Lords may frown, but I think it is a matter of history and we have gone past that. I will see if I can glean any useful information to send to the noble Lord, Lord Purvis, but I am not entirely confident I will able to.

As the Committee will know, reciprocal recognition agreements can be secured through international agreements and through agreements between regulators. The EU-UK Trade and Cooperation Agreement includes a mechanism for agreeing UK and EU-wide recognition arrangements. I say in reply to my noble friend Lady McIntosh of Pickering that the first meeting of the partnership council is taking place this very day. I believe that a number of committees will start to meet after that. My information is that one of those committees will include services within its remit.

Regulators have the option to use this process if they wish. Some have indicated they might find it rather cumbersome and so may prefer to conclude arrangements outside this framework. Clause 4 of the Bill will support that. As we know, it provides powers to enable regulators to enter recognition arrangements with their counterparts in other countries. Of course, in reply to my noble friend Lady McIntosh, I say that some already have this power and have used it, and I thoroughly welcome that. Sadly or unfortunately, others do not have the power at present or have doubts about whether they do. One reason why we are bringing forward Clause 4 is to be able to give the power to all regulators that wish to have it. If they then use that power, nobody would be happier than me.

To help them to pursue this route, we are taking action to support regulators in securing such arrangements. For example, the Government recently published guidance to support regulators in agreeing recognition arrangements, including mutual recognition agreements with their counterparts in other countries. However, these arrangements are of course completely distinct from the purposes of Clause 1. As noble Lords have heard, Clause 1 concerns enabling the demand for the services of professions in the UK to be met without undue delay or charges. Clause 1 does not relate to mutual recognition arrangements. However, there is of course nothing in Clause 1 that would act to inhibit reciprocal recognition agreements being agreed where regulators wished to do so. Moreover, recognition agreements are, frankly, demand-led processes, and it is for regulators themselves to decide whether to enter into one and to decide the terms between themselves. That is a feature of the regulators having autonomy. Requiring national authorities to seek out reciprocal arrangements for certain professions would, I suggest with the deepest respect, reduce regulators’ autonomy. I know the importance that noble Lords attach to not doing that. I agree that it is appropriate for the Bill to support regulators’ ability to enter into such recognition agreements, and I hope that noble Lords will agree this is adequately addressed elsewhere in it. No doubt we will come back to this later.

I turn to the amendment to Clause 3 tabled by the noble Lord, Lord Foulkes of Cumnock. The current provision on the charging of fees makes sure that regulators can be enabled to cover any additional cost burden from administering any systems established under international recognition agreements. Of course, this may also be necessary if an agreement references fees. This will help to make sure that regulators are no worse off due to the UK implementing international recognition arrangements. It allows them to cover costs that will arise from implementing and operating processes to recognise professional qualifications from a trade partner’s territory. Some international agreements include commitments about the charging of fees. For example, in typical language, this would be that they are reasonable or proportionate. This power is necessary to implement such measures.

On the specific question of the noble Lord, Lord Foulkes, about why Clause 3 departs from precedent on the charging of fees, I noted the Law Society briefing on this point and understand its interest in hearing us place on record the reasons for the difference between the approach taken in this Bill and that in the 2020 future relationship Act. Clause 3 is a power created with the future needs of international agreements on the recognition of professional qualifications in mind. The requirements and concerns to be considered for this clause are distinct from more general implementation powers that deal with entire free trade agreements and all their different chapters, as is the case with the powers under the future relationship Act.

Clause 3 is also designed to be flexible and to ensure that the UK Government can implement the UK’s precedent-setting policy on professional qualifications, as well as more traditional mutual recognition agreement frameworks and other provisions. If the noble Lord would find it helpful to have a further discussion with me about that, of course I would be delighted. The debate that we come to later will turn to the detail of Clauses 3 and 4 and reciprocal arrangements, so with noble Lords’ permission I shall not go further into the detail of those clauses here.

I now turn to Amendment 47, which concerns Clause 9. I thank the noble Lord, Lord Foulkes of Cumnock, and the noble and learned Lord, Lord Hope of Craighead, for their amendment. Clause 9 relates to information sharing between UK regulators. The amendment seeks to create a defence if a disclosure made under the duty in Clause 9 contravenes data protection legislation. This clause places a duty on UK regulators, where requested, to provide information to another regulator in the UK relating to individuals who are, or have been, entitled to practise the relevant profession in another part of the UK. It ensures that regulators have the information, when an individual applies for entitlement to practise, necessary to assess that individual’s entitlement to practise the profession in that part of the UK. This necessary information is limited to information held by the UK regulator about the individual.

Clause 9 also specifies how the provision interacts with the data protection legislation. Where the new duty relating to the processing of personal data applies, it does not require the making of any disclosure which would contravene data protection legislation. This approach—I think that my noble friend Lord Lansley recognised this—and similar wording has been adopted in other recent Bills, some of which are now Acts, such as the Pensions Schemes Act 2021 and the Agriculture Act 2020.

Let me provide reassurance on the concern which appears to underpin this amendment that regulators may face legal challenges in complying with Clause 9. The clause specifically requires disclosure only when it does not contravene data protection legislation. There is therefore no defence needed. I hope that that reassures the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Foulkes of Cumnock. The clause is also clear that the duty to share information can be taken into account in determining whether improper disclosure has occurred.

We will return to the important issue of data protection in our wider debate, and I look forward to continuing this discussion. I thank noble Lords for their contributions and amendments. I hope my explanation of the Government’s objectives in relation to reciprocal arrangements, my agreement to write to noble Lords and the rationale for including provisions to charge fees and consideration of how the Bill requirements interact with data protection have been helpful, and that on that basis my noble friend will withdraw her amendment.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am grateful to all who have spoken in this little debate. I hate to disappoint my noble friend Lord Lansley, but this amendment was entirely my own work—it was not from the Law Society of Scotland. I am grateful to the noble Lord, Lord Purvis, for the work that he put in to prepare for this group of amendments. To add to his comments on paragraphs 92 and 93 of the impact assessment, they do not record the loss of reciprocal rights for those lawyers who might otherwise have gone from this country, along with other professions such as dentists and doctors, to work in other European and EEA countries.

I am grateful to my noble friend the Minister for his full reply—especially the acknowledgement that the partnership council met for the first time today. For the first time, we hear that it is hoped that the committees will meet shortly after that. I believe that we should make this a priority, so that all professionals have reciprocal arrangements. I am grateful to my noble friend for spelling out the implications of Clause 4 in this regard, as well as Clause 3. I shall follow that extremely closely. I am grateful to have had the opportunity to probe this matter, and I shall continue to monitor it during the progress of the Bill. For the moment, however, I beg leave to withdraw the amendment.

Amendment 16 withdrawn.

Professional Qualifications Bill [HL]

Baroness McIntosh of Pickering Excerpts

Committee stage
Monday 14th June 2021 Lords Chamber

Finally, I am a great believer in proportionality, particularly in the proportional use of powers. Bespoke primary legislation in response to a diverse shifting skills and trade landscape may be not only disproportionate but unbelievably burdensome. As my noble friend Lord Lansley said, it would perhaps be asking too much—and not only of your Lordships’ House as legislators; in my short time here, I have already seen how hard you work, and your time is important. But it would also place a burden on regulators, for which a flexible framework approach would enable them to be nimble as to who they assess as overseas applicants and how they assess them. As we consider the skills shortages in so many of our professions, this is surely the preferable route to take.

[Baroness McIntosh of Pickering (Con)]

My Lords, I commend the noble Lord, Lord Fox, on securing this Clause 3 stand part debate. I associate myself with everything that he, my noble friend Lady Noakes and the noble Lords, Lord Davies of Brixton and Lord Hunt, said.

I repeat that I am a non-practising member of the Faculty of Advocates, and I should probably state that I am an associate fellow of the British Veterinary Association.

Many believe that, while Clause 3 is useful, it is limited to international agreements—treaties to which the UK state is a party. If this is the case, when he sums up the debate, can my noble friend confirm that the power would not be available to make or amend legislation to give effect to a mutual recognition agreement negotiated autonomously at the level of professional regulators? In the view of the British Bar Council, this is a deficiency in the Bill and another reason why Clause 3 might not fit in here.

I particularly associate myself with the comments made by the noble Lord, Lord Hunt, and others, about farmers. As my noble friend will be only too aware, I have mentioned this just about every time we have debated either the Trade Act—as it now is—or individual trade agreements: there is no parity of approach between, for example, our farmers and what they might expect to get from the Australian deal, and the Australian farmers and wine producers and what they might expect. I should be delighted if the doors to Scotch whisky were to be opened in a reciprocal arrangement, but I will not hold my breath.

Where is the symmetry in the approach adopted under Clause 3? In our approach to regulations under this recognition of professional qualifications and in individual trade deals to which I have just referred, we seem to be rushing to accommodate members of those professions who wish to come here. As others, notably the Bar Council and the Law Society of England and Wales and the Law Society of Scotland have pointed out, there does not seem to be any support for our professionals who go over there. My noble friend was very clear that there was no reciprocity of agreement with the European Union. Am I being completely ignorant? Does the agreement with the EU also cover the agreement with the EEA and Switzerland? I am at a loss to understand why we are not seeking to reach an agreement on the basis of reciprocity of professional qualifications, not just with the EU but with the EEA and Switzerland.

I would like to press my noble friend the Minister further, and more specifically for a response to the amendments I tabled on day one of this Bill. I asked specifically for provision for consultation with the devolved Administrations and the individual regulators in them. My noble friend said—I am paraphrasing—“There will be many consultations”, so what form will those consultations take? What is the specific mechanism and at what stage will they take place? I do not think it is fair that the devolved Administrations should be presented with a fait accompli; they should be consulted at the earliest possible stage. The noble Lord, Lord Foulkes, tabled an amendment that went further, saying that the consent of the devolved Administrations should be sought. That is a moot point, to which I am sure we can return at later stages.

I conclude by saying that my greatest difficulty with Clause 3 is understanding the policy that lies behind it. Doing my homework, preparing for the Bill this afternoon, I found that, for once, the Government have produced an impact assessment. I know that will please my noble friends Lady Noakes and Lady Neville-Rolfe, who is not here today, as we always look to the impact assessment. That is commendable. It is something to which we should refer frequently and in great depth.

In paragraph 36, on page 11, the impact assessment refers to:

“The preferred option, ‘Provide powers in the Bill to enable the government to implement the RPQ provisions of international agreements and support regulators in making agreements with their international counterparts on the recognition of professional qualifications,’ … These powers will enable the UK government to make regulations to achieve its policy aims, including the amendment of primary legislation where necessary.”


Slightly before that, on page 8, the policy objectives are set out. I will not read them all out, but one is to

“end the interim system which gives preference to EEA and Swiss professional qualifications.”

I hope my noble friend will put my mind at rest, but in the following policy objectives, I do not see anything about what the benefits to our professionals will be, whether they are pig farmers or advocates, when trying to ply their profession or establish their professional service in another jurisdiction. That is another reason it is extremely difficult to understand what the policy is behind Clause 3 and what reciprocal arrangements the Government are seeking. I hope my noble friend will set these out when he sums up this little debate.

[Lord Purvis of Tweed (LD) [V]]

My Lords, I am grateful to my noble friend Lord Fox for bringing this debate forward in such a cross-party manner. I was struck by the comments of the noble Baroness, Lady Noakes, who has been consistent in this area. Her argument and that of my noble friend Lord Fox has been supported by the Delegated Powers and Regulatory Reform Committee report. In paragraph 32, the committee cites the Constitution Committee, saying that both are of the view that the Government’s previous attempt at legislation in the Private International Law (Implementation of Agreements) Bill,

“which allowed Ministers to implement a category of international agreements by way of statutory instrument, represented an inappropriate delegation of power.”

I agree. In that Bill, we attempted to make the Government see sense. To some extent, they did, because the powers under it, which are drafted almost exactly like those in this Bill, had an additional clause, with a sunset. The powers under that Bill for international agreements can last for only five years after their signing. Perhaps this is the point the noble Lord, Lord Lansley, made: in recognition of that, if changes mean that agreements need to be updated or go beyond the scope of that Bill, new legislation should be brought forward. I would be interested to know from the Minister why the previous mechanisms for implementing a trade agreement on certain aspects include a sunset clause and this one does not.

Fundamentally, this is about trust. Because of the concerns of other committees and the debates we had on the Trade Bill, we consistently and repeatedly raised concerns about the use of Henry VIII powers especially but also about secondary legislation for implementing trade agreements or parts of them. The Minister and his predecessor, the noble Baroness, Lady Fairhead, tried to reassure us by repeating the statement that Liam Fox, when he was the Secretary of State for International Trade, gave in the House of Commons on 16 July 2018. When it came to scrutiny of trade agreements, he said that

“the Government will bring forward a bespoke piece of primary legislation when required for each new future trade agreement that requires changes to legislation and where there are no existing powers.”—[Official Report, Commons, 16/7/18; col. 42.]

Clause 3 and the Henry VIII powers in Clause 15 are a direct contradiction of that. This Bill seeks to use broad Henry VIII powers where regulations

“contain provision amending, repealing or revoking primary legislation”

when it comes to implementing a trade agreement. I think I can say collectively that we respect the Minister and take his word at the Dispatch Box, but why are the Government now contradicting the commitment that Dr Fox gave as Secretary of State in 2018?

I share some of the concerns of the noble Baroness, Lady Noakes, about Clause 3. It provides even broader powers than those in Clause 1. Clause 3 does not limit itself to Henry VIII powers in legislation connected with regulators. It relates to any regulations under the Henry VIII power concerning individuals

“entitled to practise a regulated profession.”

These regulations are not limited to the regulators themselves. The breadth of the powers in Clause 3 is breathtaking. In the letter the Minister sent to the noble Lord, Lord Lansley, he simply said that he would consider the need for impact assessment on regulatory independence when implementing an international recognition agreement. That is not good enough. This should be the default, and it should be the default that if there are requirements to revoke, amend or repeal legislation, it should be done in primary legislation.

I was grateful for the Minister’s letter and, like my noble friend Lord Fox, grateful for the letters he sent to us yesterday. I was grateful to the Minister for confirming what I said in the previous day of Committee—that CRaG would not necessarily be a default process for these agreements. Given that the implementing of what could be sub-agreements would not go through CRaG, this is of even more concern. The Minister said in his letter—and mentioned briefly at Second Reading—that if a mutual recognition agreement was not a treaty in its own right and did not amend the original treaty, there would be no need to go through the CRaG process. He said that this was the appropriate result, because Parliament would have had the opportunity to scrutinise the original treaty and the regulations made to implement the MRA.

The point is that these new aspects are potentially extremely wide and could impact massively on who is fit to practise in the UK. If Parliament would have no ability to extend scrutiny of the Henry VIII powers, even under the affirmative aspect—on which the noble Baroness, Lady Bloomfield, said it was not the Government’s intention to bring forward consultation, when she spoke to the noble Baroness, Lady Hayter—or have the same level of scrutiny on either an affirmative or a negative instrument, as it would under CRaG, this would not be sufficient.

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[Lord Hunt of Kings Heath (Lab)]

My Lords, I am saying that Clause 4 should not stand part of the Bill. We have now discussed Clause 4 extensively in the last three debates. I do not intend to go over the ground because that would be unnecessary. Coming to the crunch, the Minister has said that Clause 4 would be used by national authorities to encourage regulators to make mutual recognition agreements, but that they will be under no obligation to do so. Today, the noble Lord, Lord Purvis, said that he was not quite sure what “encourage” means. In a sense, one Government’s encouragement may become another’s diktat, particularly when Clause 3 is part of their armoury.

Something else the noble Lord, Lord Purvis, said, on the first day in Committee, was about the interrelationship between the Bill and what is happening with health regulators. At the moment, there is an extensive consultation on the use of Section 60 orders in relation to a whole host of health regulators. What is interesting is that in that consultation no reference is made by the Government to them upholding the independence of those regulators—something the GMC noted, I think, in its response. Put that alongside the Government’s intention to bring an NHS Bill to Parliament very shortly—it was mentioned in the Queen’s Speech, but has not yet been published, I suspect because extra clauses are being added day after day. Part of that intention is to add clauses on regulations that will give the Government the power to abolish a regulator through an order-making power and set up new regulators through an order-making power. Regrettably, that came out of a Law Commission recommendation quite some years ago. When you put this together, you have to worry about the future independence of the health regulators. It is pretty clear that, with the legislative changes, they would potentially come under more direct control from the Department of Health. One has to say, many of those regulators enjoy considerable oversight by the department already—hence, a little scepticism about the Minister saying that it is entirely up to the regulators what they do.

My principal reason for raising Clause 4 was to refer to the Delegated Powers Committee, which refers to this being a Henry VIII clause. It refers to the memorandum and accepts that it says that it is a narrow power and cannot be used to change regulators’ abilities to recognise overseas qualifications, but, as the committee says, the memorandum fails to explain this or say what effect regulations under Clause 4 should have. I wanted to raise this because the report of the Delegated Powers Committee is critical throughout of the Minister’s department, the Explanatory Memorandum it has produced and its failure to provide sufficient explanation. I put it to the Minister that when I was a Minister, we worried about the Delegated Powers Committee and, frankly, always accepted its recommendations. We seem to be developing a new convention, where Minister think this is just any old committee and can be ignored. It cannot be; it has to be taken seriously. I urge the Minister to recognise that when the Delegated Powers Committee says that there is not enough explanation, something needs to be done about it. When it says that Clause 3 will not do, it is not something you can simply ignore; you have to come back with some proposals to deal with it. That is how legislation works in your Lordships’ House. I do not really expect the Minister now to go through what Clause 4 says, because he has done it; I just wanted to draw attention to the Delegated Powers Committee’s report.

[Baroness McIntosh of Pickering (Con)]

I have two brief points. I would like to speak in support of Clause 4 standing part of the Bill, but I welcome my noble friend explaining, in response to earlier amendments, that this will be regulator-led and is permissive, not prescriptive.

First, I am slightly concerned by subsection (1), as explained in paragraph 39 of the Explanatory Notes, which then go on to say that it seems quite prescriptive. I do not know if that takes away from the permissive nature of the rest of the clause.

Secondly—and, to be honest with my noble friend and the Committee, I could not think of where else to raise this—I accept that they are not regulated bodies, but I understand that the professional drivers and attendants of pig farmers, chicken producers and livestock transporters are covered by the remit of the Bill. It is interesting to see, but I cannot understand why beef and lamb producers are not covered, because it strikes me that they might like the opportunity to make common ground with countries with which we are seeking to do deals. It may be that they are allowed to do so, but if they are, I wonder why they are excluded from the remit of the Bill.

Finally, I assume that the costs will be minor. I would like to place on record the fact that most of the bodies that have contacted me welcome the powers set out in Clause 4. I do not know whether paragraph 66 on page 18 of the impact assessment is relevant here. That refers to frameworks but I presume that also covers regulator recognition agreements. It comes up with a figure, giving a mean of £350,000 as a best estimate. On what basis has that figure been reached?

[Lord Fox (LD)]

My Lords, we are indebted to the noble Lord, Lord Hunt, for opposing that this clause stand part. The way in which he set out the issues around delegated powers was excellent. I have nothing to add, but I would like to associate myself with what he said. His point about the severity of the sanction of a DPRRC report is very well made. I have tried to make in different ways. I think we will all be waiting to see how the Government react in legislative terms.

The term “encouragement” has come up and, clearly, Clause 4 is the encouraging end of a continuum that goes through “recommendation” and ends up in “compulsion”. Here, I come back to the question that my noble friend Lord Purvis asked when we were debating Amendment 30. The Minister confirmed that Clause 4 is voluntary, which we were all grateful for, but omitted to respond to my noble friend’s question about whether Clause 3 has the power to override Clause 4 and move that encouragement further down the continuum towards compulsion. Rather than ask it that way around, let us ask it the other way around. Are there any circumstances in which Clause 3 can be used? In other words, would the Minister rule out that Clause 3 can ever be used to compel regulators to do things as a result of Clause 4?

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[Baroness Garden of Frognal (LD)]

Well, my Lords, we could all do with a little kindly looking on our amendments. I will speak to Amendment 42A in this group and, like the noble Lord, Lord Lansley, I cannot quite see how it relates to his amendment. Nevertheless, I shall plough on.

This amendment seeks to clarify the language requirements for UK workers wishing to work in another country where English is not the main language and quite possibly not even spoken. We cannot assume that English will be understood by everyone, and those working abroad should have a working knowledge of the professional terms, as well as an ability to speak socially to those with whom they work. I have mentioned before the European Union project LangCred in which I was involved, where we were attempting to create a directory of all work-based qualifications so that people could move seamlessly across the EU. We kept coming against the fact that, however professionally or vocationally qualified they were, if they could not speak the language of the country, they were going to have problems. We can no longer assume that a bunch of Geordie construction workers could make a good living in Germany while speaking only Geordie. I was never sure in the days of “Auf Wiedersehen, Pet” whether that situation was entirely realistic, but I really do not think that it would work today. I rather suspect German law would not allow it.

Years ago, I got a job as a French and English teacher in a German gymnasium—a grammar school equivalent—while speaking only French and Spanish. Herr Direktor loved French and always spoke to me in French very happily, but after a few months he called me in to tell me that Düsseldorf had dictated that they could no longer employ me unless I spoke German. My RAF husband was too young to be officially married, and we were not allowed to live in married quarters, so were living in a German flat. I was surrounded by Germans and German shops, and as a linguist of course I had picked up quite a lot of German at that stage—none of which Herr Direktor had ever heard me speak, but he assured me, in French of course, that he had told them that I was fully competent in German, so I continued in my job. He quite liked me, but I rather suspect that he could not be bothered to recruit another teacher. But these days I certainly would not have been employed.

So it is important that those wishing to work abroad are fully informed that they need to speak Portuguese, Polish, Japanese or Mandarin before they embark on a job for which they may be fully professionally qualified in Portugal, Poland, Japan or China. Our teaching and learning of modern foreign languages have declined woefully in recent years; it really is a cultural deficit in this country that our language speaking is so very poor. Perhaps there might be more enthusiasm and incentive if young people were fully informed of their inability to work abroad unless they had mastery of more languages than English, and this amendment ensures that the advice includes a language component.

[Baroness McIntosh of Pickering (Con)]

I will speak to two of the amendments in this group in the name of my noble friend Lord Lansley. My understanding is that the first, Amendment 34A, is already covered by most of the professions, which require people to take out professional indemnity and insurance before allowing them to practise. So I wonder why this amendment is required—although I understand it is a probing amendment. But there we are—I look forward to hearing what my noble friend has to say.

I have some sympathy with the amendment in the name of the noble Baroness, Lady Garden of Frognal. My understanding is that many practitioners, particularly legal practitioners, who work outside UK jurisdictions actually relate to English language clients, so the problem does not arise—but again, I look forward to hearing what my noble friend says in summing up.

My greatest concerns relate to Amendment 60A in the name of my noble friend Lord Lansley, and an incident which many in the Chamber may recall took place in the 1980s and 1990s, in which a gynaecologist, Richard Neale, was allowed to practise in this country, first in the Friarage Hospital, Northallerton, and then in other hospitals as well, even though he had been struck off the register in Canada, where his last known employment was. I took up the case with the GMC at the time and was assured that this would never happen again. But, as we have the Bill before us this afternoon, and as we have Amendment 60A as a probing amendment, I will ask the Minister: does he accept the assurance given by the GMC at that time? Can he put my mind at rest that this case could not happen again? I found it extraordinary that a gynaecologist—or indeed any medical professional—could be recruited without even a cursory phone call, ideally, or email to the last known place of work, which I think any diligent employer would undertake as minimum due diligence. Can my noble friend reassure me that there are provisions—if not in the Bill, then elsewhere—to ensure that this situation simply could not arise again?

[Baroness Noakes (Con)]

My Lords, my noble friend Lord Lansley has hit upon some important issues with his Amendments 34A and 60A. I am not 100% convinced by the drafting of either amendment, but the underlying issues are very important. On Amendment 34A, many regulated professions require indemnity insurance to be held by a professional, but I am not sure whether all regulated professions must have indemnity insurance. For example, I am not certain that farriers are required to have insurance. It is clearly sensible for any professional offering their services to have indemnity insurance, but it may not actually be required. My noble friend’s amendment rather implies that every single regulated professional has to have indemnity insurance.

Fitness to practise is rather different: it is a cornerstone of professions, in that only those of good standing are allowed to practise. Fitness to practise can be determined by a number of factors—some straightforwardly, such as criminal convictions, to which my noble friend referred in connection with the Disclosure and Barring Service. Others crucially depend on often quite subtle judgments within the context of particular professions: for example, whether an individual has the right degree of scepticism or can demonstrate that they exercise the right degree of professional care when undertaking their profession. These are really quite difficult areas of judgment. I could not see exactly how that fitted naturally into the scheme of this Bill. It would be difficult to say that there should be a condition relating to the judgment around fitness to practise. But I shall be interested in what the Minister has to say in response to these amendments.

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[Lord Hunt of Kings Heath (Lab)]

My Lords, I put my name to Amendment 60, to which my noble friend will refer in the wind-up, and will also speak in favour of Amendment 37.

Amendment 37, as we have heard, makes it explicit that qualifications recognised before the EU regulations were revoked are not affected. My noble friend Lady Blake’s Amendment 60 seeks to ensure that existing qualifications in the UK are not affected by the Bill. Rather like the noble Baroness, Lady Fraser, I assume that that is guaranteed or assuaged somewhere in the Bill, but it would be helpful to have the noble Lord’s reference point on that.

The noble Lord, Lord Palmer, made some interesting points about grandparenting, which is obviously a long and sensible tradition when making changes to a regulatory body or regulating a profession for the first time which is already in some form of voluntary accreditation. I think the HCPC will be well used to doing that. Provided that we can be assured that the people being transferred over are, in the words of noble Lords, fit to practice, it should be a fairly straightforward process.

I was struck by the suggestion of the noble Lord, Lord Palmer, that we as Members of this House would be particularly favourable towards grandparenting—I suppose that means that in any reform of the second Chamber, existing Members would transfer over. It is probably about the only way to get this place to agree to reform—but in your dreams, my Lords.

[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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Debate on whether Clause 5 should stand part of the Bill.

[Baroness McIntosh of Pickering (Con)]

I am grateful to have the opportunity to discuss more broadly the contents of Clauses 5 and 6. Clause 5 relates to the revocation of the general EU system of recognition of overseas qualifications. It revokes the European Union (Recognition of Professional Qualifications) Regulations 2015 and provides regulation-making powers to the appropriate national authority—in this case the Secretary of State, the Lord Chancellor and the devolved Administrations—to modify any legislation that it considers necessary as a consequence of this provision. The fact that this is a broad regulation-making power underlines the need that I identified earlier to consult before the power is exercised, so I again press my noble friend on that point. Clause 6 looks at the revocation of other retained EU recognition law and provides the appropriate national authority with a regulation-making power to modify other legislation for professions that are outside the scope of these regulations but still part of the broader EU-derived recognition framework.

My first question to my noble friend relates to Clause 5(1), which represents basically a cliff-edge revocation of the whole of the EU MRPQ regime in UK domestic law. If we adopt such a one-size-fits-all measure, and given the constraint placed by Clause 2 on the gap-filling power in that clause, would it not be sensible for the Bill to include a power to save, in an appropriate case, the effect of specified elements of the EU-derived MRPQ rules in relation to a particular profession or professions?

This has been put forward by the Bar Council of England, which states:

“We doubt whether Clause 5(2), even read with Clause 13(1)(c)”—


which we will discuss separately—

“provides a power to save the effect of any part of the remaining EU-derived MRPQ regime.”

My concern is that there may be parts of that regime which, for an interim period or even longer, some of the regulators or professions would wish to keep. I understand that that would not be possible. Is that something my noble friend might review for the purposes of the debate today?

I understand that Clause 5(1)

“would come into force on a day specified by the secretary of state in regulations.”


A memorandum to the Delegated Powers and Regulatory Reform Committee says:

“BEIS has said that it intends that commencement regulations would “include savings and transitional provisions relating both to qualifications that have already been recognised and to applications that are already in progress but not yet complete”.


Can my noble friend confirm how that will play in the different jurisdictions, particularly regarding the legal profession, which is dealt with separately in Scotland, England and Wales?

The Library briefing also states:

“Clause 6 would come into force on the day the bill was passed. In the context of clause 6, the Government has said not all pieces of relevant legislation will be revoked at the same time. Some arrangements may be kept for a longer period depending upon the needs of a given sector.”


My concern is that this may lead to some confusion and a lack of understanding of the legal status of the provisions. I refer again to BEIS and its memorandum to the Delegated Powers and Regulatory Reform Committee on 12 May 2021. Paragraph 50 says:

“In particular, it is expected that the healthcare sector will need a longer period of time to transition to the new system to avoid recruitment and retention issues in those sectors”,


which we have just briefly debated. It continues:

“BEIS is of the view that it is appropriate to allow for Departments and devolved authorities to revoke these measures at an appropriate time, without fixing a particular date in the bill.”


Is my understanding correct that we could be faced with different situations in the different devolved nations? Are the Government mindful of what the implications might be?

I am grateful to have had the opportunity to discuss these concerns about Clause 5. Will my noble friend consider that there may be parts of the EU system we want to keep? I accept we have taken the decision to leave it, but, for an interim period, that may be the case. The Explanatory Memorandum states:

“Following the end of the transition period, this system had been retained in the interim to provide certainty to businesses and public services by offering preferential qualification recognition to holders of EEA and Swiss qualifications. The new recognition framework, as set out in Clause 1, will be implemented alongside revoking the 2015 Regulations.”


To sum up, there could be different regimes working at the same time under Clauses 5 and 6. How does my noble friend intend that his department will manage that to the best possible effect?

[Baroness Randerson (LD)]

My Lords, I welcome these amendments. I will start with the points the noble Baroness, Lady McIntosh, was dwelling on at the end—the impact assessment gives the impression that, when this Bill becomes law, it terminates the transitional arrangements which continue to recognise EU qualifications. Indeed, most of the Bill indicates that. Clause 6 undoubtedly muddies the water somewhat. There is a need for clarification from the Minister because there is scope for a great deal of confusion.

From previous comments made by the Minister, I gather that the UK wanted to agree mutual recognition of qualifications as part of the trade agreement with the EU but the EU was not prepared to accept that. I pointed out on the first day in Committee that this is not an agreement between equals; for example, there are 22,000 EU-qualified medics working in this country but only 2,000 UK-trained medics across the countries of the EEA plus Switzerland. In short, we depend a lot more on them than they do on us. The pattern is repeated across a large number of professions. It is not uniform, but it is repeated widely.

Therefore, the Government’s decision to throw their toys out of the pram and say, “If you won’t recognise ours, we won’t recognise yours”, is, I regret to say, simply self-defeating. It also displays a seriously worrying lack of awareness of how long it takes for a regulator to go through the approvals process for each new country’s qualifications. The impact assessment refers to contacts with regulators but, as I said in a previous debate, these are very minimal, and regulators were notably sparing in their responses to government consultation. We do not have a thorough picture of how this will impact on regulators, but I can assure noble Lords that years, not months, is the norm for recognising qualifications—for going through the whole process. As a result of this Bill, there will be a gap when the old qualifications are no longer recognised and the new ones are not yet accepted. Already, we have shortages in a number of professions; we have had shortages for many years, but the Brexit situation has made them much worse. The rhetoric that went along with Brexit has made so many foreign professionals feel unwelcome, and that lack of feeling welcome has had an impact way beyond the EU immigrants; it has impacted on people across the world.

I suppose I should be reassured that the impact assessment states that, although the Bill sweeps away current EEA recognition, the regulators are able to sign recognition agreements with individual countries. However, there is an element of farce here, because dealing with that costs money and is bureaucratic and complex. It is a pity the noble Baroness, Lady Noakes, is not in her place, because she would be nodding fiercely with me on that one. But it will cost money, and that cost will fall on people working in each of the professions concerned. Also, the Minister himself told us in a letter that the old agreements were unpopular, although I have not found anyone echoing that within the sector. But the Government felt that they were unpopular and wanted to replace them.

The sensible thing would be for the Government simply to continue to accept the status quo—the EEA system—at least for a much longer interim period and perhaps review it after five years. I hope we can persuade the Minister that the pragmatic thing to do is to accept this amendment, or maybe even to commit to looking at it again and adding that the whole thing will be reviewed in five years’ time. It will take that long to re-erect a sensible, comprehensive system to replace what the Bill is sweeping away.

--- Later in debate ---

[Baroness McIntosh of Pickering (Con)]

My Lords, I am grateful to those who have spoken and to the noble Baroness, Lady Randerson, for being so supportive, for her reference to the impact assessment and for her recognition that there will be a gap as a result of the Bill, as the old qualifications will no longer be recognised nor new ones accepted. I think both she and the noble Lord, Lord Purvis of Tweed—I am also very grateful for his support and forensic analysis of the situation—said that the status quo for a limited period would be acceptable.

I am grateful to my noble friend for his response. I am not entirely clear whether he suggested that we will now have that limited reliance on the status quo, because he said in relation to Clause 5 that the commencement regulations would be brought in at the right time after the appropriate consultation. I am not sure I heard him respond to the Bar Council’s concerns that those good parts of the regulations that will be dropped when the new regulations come in might be kept in the longer term, but I commend that to my noble friend to consider.

The noble Lord, Lord Purvis, set out very pressing reasons, and went on to analyse the 70% reduction in applications that the Government have accepted there will be. He made a plea for a pause to limit the damage at this time. Concern has been expressed in the Committee, justifying this debate. I will consider whether further action is required at the appropriate stage, but for the moment I beg leave to withdraw my amendment.

Clause 5 agreed.

--- Later in debate ---

[Baroness Noakes (Con)]

My Lords, I speak on Clause 7 standing part of the Bill, rather than on the detailed amendments in this group. We had a brief discussion about the advice centre on our first Committee day, when the Minister told us that the current UK Centre for Professional Qualifications does not cost very much, although he would not tell us how much. The UK set up the Centre for Professional Qualifications because it was required to by the EU, so I do not understand why BEIS has not looked long and hard at whether it needs to carry on funding it now that we have left. Just because people have occasionally found an item useful is not a sound rationale to carry on spending money on it. There has to be a demonstrated need, and nothing in the documents on the Bill has established this.

Until I got involved in the Bill, I had not heard of the centre. I have since visited the website and am doubtless going to be included in its statistics on hits next time it reports to the Minister how successful it is. I did not find it useful at all. I first wanted to know how I could come to the UK to practise as a registered auditor, but the website gave me no information at all. It does not have a global search facility, so I could not even work out whether the information was hidden somewhere on the website. When I said that I was a UK professional accountant seeking to practise abroad, again it had absolutely nothing to tell me.

I suspect that, if the centre disappeared from the web tonight, no one—but no one—would miss it. Most of what is on the website can easily be found with a search engine and a couple of extra clicks. It is not a treasure trove of information; it is very minimalist. The best thing that could be done with it is to put it to sleep, which is why I do not believe that Clause 7 should stand part of the Bill.

[Baroness McIntosh of Pickering (Con)]

I am delighted to speak in support of Amendment 39 from the noble Lord, Lord Foulkes, and I commend the remarks of my noble friend Lady Noakes, because it takes a brave person to say what she did. I look forward to hearing my noble friend Lady Bloomfield’s response from the Front Bench. I do not know whether I have the temerity to try the same, as a non-practising advocate, but I am tempted.

Amendment 39 is particularly important given the reasons that we debated in the short debate on Clauses 5 and 6 standing part of the Bill. Those reasons were raised again by the Law Society and the noble Lord, Lord Foulkes, who so eloquently moved Amendment 39: we need a tool to remove all barriers, or any whiff of a barrier, that might be in this place. It is important to take this opportunity to do that. I hope that my noble friend enthusiastically endorses Amendment 39 as a small but essential tool to enable those who might consider applying for their chosen profession to work in the United Kingdom to do so.

Another reason for this was given by the noble Lord, Lord Purvis, in summing up the last debate, who mentioned that we now have a Canada-style agreement. The briefing I have from the Law Society of England and Wales is rather discouraging:

“This model is yet to deliver a single MRA between the EU and Canada in the three years since it came into force … We feel Government impetus is necessary to achieve MRAs.”


Clause 7 is an essential part of the Bill. It is extremely important that we have an assistance centre and I welcome the fact that it is already up and running. It is even more important that it passes the Noakes test—that it is easy to use, fit for purpose and will embrace Amendment 39.

I am not going to speak at length, but I take this opportunity to support the amendment in the names of the noble Lord, Lord Foulkes, and the noble and learned Lord, Lord Hope of Craighead, on disclosure. I look forward to my noble friend’s response on that and to Clause 7 stand part.

Professional Qualifications Bill [HL]

Baroness McIntosh of Pickering Excerpts

Committee stage
Tuesday 22nd June 2021 Lords Chamber

[Lord Davies of Brixton (Lab) [V]]

My Lords, I declare my interest as a member of a profession, as listed in the register of interests. I support Amendment 63, tabled by my noble friend Lady Hayter. It is entirely reasonable that it should be clear to which professions this legislation should apply—in addition to architects, who get their own bit in the Bill—so I commend my noble friend’s diligent work.

However, I have a question about what counts as a regulated profession. I know this issue comes up under Clause 16, but it is clearly important in the context of the amendment. Clause 16 tells us that

“‘regulated profession’ means a profession that is regulated by law in the United Kingdom”

and draws our attention to Clause 16(3), which says:

“For the purposes of this Act, a profession is regulated by law in the United Kingdom … if by reason of legislation … individuals are entitled to practise the profession in the United Kingdom … or … individuals are entitled to practise the profession in the United Kingdom, or in that part of it, only if … they have certain qualifications or experience, or … they meet an alternative condition or requirement.”


All that tells us, in effect, is that a regulated profession is a profession that is regulated by law. I find this difficult without a comprehensive index of all the legislation that might be caught by that definition, particularly given the open-ended Clause 16(3)(b)(ii) at the end about meeting

“an alternative condition or requirement”.

So this question is relevant to the amendment. Could the Minister tell us a bit more about what is envisaged might be covered by that part of the definition?

Let us start from the other end. What professions might be covered by the Bill and is there a useful definition that covers them? My noble friend Lady Hayter has helpfully provided us all with a list. The list is interesting in itself, making clear the extraordinary hodge-podge nature of the Bill. Clearly, it is not a list based on a rational assessment of the needs for legal recognition; it is probably a combination of historical accidents. My question is: how do I, other noble Lords and, most relevant, the Government really know which professions are covered by the Bill, given the breadth of the requirement to meet an “alternative condition or requirement”?

How do we know there is not buried somewhere in past legislation a condition or requirement that applies before an individual can practise their profession? I mentioned this issue at Second Reading. Here is an example: there are requirements in the legislation covering both pensions and life insurance that an actuary can sign off on certain statutory reports only if they have been approved by the relevant government Minister—invariably, the Secretary of State. Does that count as regulation? If so, should various Secretaries of State be included in the list of regulators? Perhaps the Minister could address this issue. I do not ambitiously expect an immediate response, but a considered response would be helpful.

[Baroness McIntosh of Pickering (Con)]

I support my noble friend Lady Noakes in her two amendments and the noble Baroness, Lady Hayter, in her Amendments 63 and 68. The first list that I saw was the one produced informally by my noble friend Lady Noakes, which I was delighted to see and took as gospel. Now we have had two or three iterations of it. While that may cause us some confusion and bemusement, one has to look to the professions and the regulators that are required to regulate them. I start from a simple premise: I am a non-practising member of the Faculty of Advocates. I understand what the faculty does, along with the corresponding regulator in England and the Law Society of Scotland—that is, the regulators for their respective professions.

I am delighted that the noble Lord, Lord Purvis, has leapt to the cause that I supported on the question of why pig farmers were chosen for special treatment under the Bill. If I may pause on the completeness of the list, I am not even sure that all the professions listed on pages 20 and 21 of the impact assessment—which I know the noble Lord, Lord Purvis, thinks is no longer entirely up to date—are covered in the new list. It is difficult to see whether

“Chief engineer class I fishing vessel”

and

“Deck officer class II fishing vessel”

have simply been renamed in the list that we received on Sunday afternoon or whether they are the same in the impact assessment and the latest letter. What causes me some concern and confusion, in the light of the comments by the noble Lord, Lord Purvis, is the foot- note to table 4 on page 20 of the impact assessment:

“European Commissions’ Regulated Professions Database. It should be noted that recognition decisions are captured at the generic profession level and not the specific profession level. Some generic professions listed may therefore include specific professions which do have alternate routes and/or which may be likely to be included in the new framework. This table is therefore likely to overstate the recognition decision numbers of the specific professions without alternate routes and which are not likely to be included in the new framework.”


Now I am even more confused than before.

In the light of the forensic work that the noble Lord, Lord Purvis has done in this regard, I am still not entirely convinced as to why pig farmers are included, and producers of chickens for meat production only are included. Does that mean that overseeing egg-producing chickens is not deemed to be a profession and is therefore not regulated for the purposes of the Bill? I go back to what I said when this issue was first raised on the second day of Committee: could my noble friend please state the legal basis for including pig farmers? Has it been correctly identified by the noble Lord, Lord Purvis? I would like to understand, when I meet them at Thirsk auction mart, whether they are included or not. Are egg-producing chickens included or only those for meat production? Perhaps more importantly, on what basis are beef and lamb producers and producers of chickens for other purposes not included? Is that a permanent exclusion or could it be revisited, and might they be included at a later date?

The noble and learned Lord, Lord Hope of Craighead, was being very restrained when he said that this is an unsatisfactory situation. We have to accept that the Bill before us is perhaps not fit for purpose and that we need to do other work on it. I do not think that, hand on heart, we can allow it to go forward to Report and eventually leave the House in this form, because we would not be serving well the professions or indeed their regulators if we did. So I support Amendments 45, 46, 63 and 68 and particularly the call from my noble friend Lady Noakes to pause the legislation at this stage so that we can do the work that, undoubtedly, my noble friend and his department would be delighted to do.

[Lord Fox (LD)]

My Lords, this has been an interesting debate. Before talking about the amendments specifically, I want to respond to the noble Lord, Lord Moynihan. I support his point, but the ski instructors of Great Britain are not alone in having their route to working in the EU cut off. We should look at the overall economic impact of this. Research by Make UK, which represents the UK’s manufacturing industry, shows that 61% of manufacturers regularly send their employees to the EU to follow up their manufacturing work with service work. Almost all of those have qualifications that until now have been recognised in the EU, but that is no longer the case. So this is a huge economic issue, not just for ski instructors and their families but for the entire manufacturing and indeed service sector of this country. The noble Lord has hit on a point, but it is actually a much bigger point overall.

--- Later in debate ---

Debate on whether Clause 9 should stand part of the Bill.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am delighted to have the opportunity to pose some general questions on Clause 9. Taking up my noble friend the Minister’s invitation to read the Explanatory Memorandum, I am looking at the relevant paragraphs as a starting point. Clause 9 is entitled “Duty of regulator to provide information to regulator in another part of UK”. First, how wide is this duty, and how many regulators does my noble friend believe will fall within the remit of Clause 9? Being more familiar with the law and the legal profession than any other, I am obviously aware that the legal profession has devolved regulators in other parts of the four nations, but how many professions fall into that category? My other concern is that my understanding is that surely this would be happening anyway, so is why Clause 9 needed in that regard?

If it is some consolation to the noble Baroness, Lady Hayter, I am also struggling to understand the background and the need for this Bill. Perhaps I have a different starting point to the noble Baroness: my starting point was that I was full of admiration and thought it was the right thing for the Government to recognise professional qualifications from EU countries, EEA countries and Switzerland, but I was hoping—as I have mentioned before during the passage of this Bill—that we would have reciprocal rights negotiated. I repeat my disappointment that, having shown them an open door, that was not reciprocated by the other nations to which this Bill applies.

Harking back to the last debate on the amendments in the names of my noble friend Lady Noakes and the noble Baroness, Lady Hayter, I am disappointed that my noble friend the Minister was not able to point to the Defra legislation regulating the profession of pig farming and chicken producing for the production of meat only. Given that we have left the European Union—everyone keeps telling me we have, and that we are in this brave new world where we no longer rely on it—how on earth is it that we are relying on the European Commission database in this regard? That seems completely perverse.

My noble friend referred to this as a “technical matter”, but I do not see it as just that. To me, it goes to the heart of this part of the Bill: which professions are to be regulated by law, particularly in the context of Clause 9, which causes a regulator to

“provide information to regulator in another part of UK”?

The Law Society of Scotland briefing states:

“The provisions in this clause seem reasonable for the most part. However, the terms of clause 9(3) and (4) raise some questions. Clause 9(3) provides that a disclosure of information does not breach ‘…(b) any other restriction on the disclosure of information (however imposed)’. This provision sits uneasily alongside clause 9(4).


Clause 9(4) provides that ‘Nothing in the section requires the making of a disclosure which contravenes the data protection legislation (save that the duty imposed by this section is to be taken into account in determining whether any disclosure contravenes that legislation)’.


These provisions lack clarity. The duty under clause 9 can be taken into account when considering if a disclosure contravenes data protection law. Why should it not simply be that compliance with clause 9 is a defence to an accusation that data protection law has been contravened?”


I realise that we discussed that earlier in the debate.

I will also look at the impact assessment and raise the issue of costs. Paragraph 131 of the impact assessment states:

“In total, we are aware of 32 regulators operating in different parts of the UK, which regulate 20 professions, which may be affected by the information-sharing provision upon commencement. These professions are care managers (adult care home, domiciliary, residential child-care)”


and a whole host of others. It goes on to state:

“22 of the regulators are public sector, and we”—

the Government—

“are treating the other 10 as businesses.”

It then states in table 19 that, at 2019 prices, the total annual cost to “collect & share data” is £2,380. For businesses, the

“Ongoing direct costs of collecting/sharing data to regulators treated as public sector”,


at 2019 prices, are deemed to be £4,759. However, the

“Transitional direct costs to regulators treated as public sector for collecting/sharing data”


are deemed to be £38,076, and the

“Transitional direct costs to regulators treated as businesses for collecting/sharing data”


are deemed to be £19,000-plus, at 2019 prices. Could my noble friend confirm that those figures are still correct, or will they now be revised as the indicative list keeps growing, as we have heard this afternoon?

Given those few remarks, I believe that it would be immensely helpful to take some time between the completion of Committee, which will hopefully be today, and Report, so that my noble friend the Minister can call and chair a round table—I hope that noble Lords may also find this appealing and wish to participate—with the regulators covered by Clause 9 before we reach Report. I would find it immensely helpful to know which professions we are dealing with and which will fall within the remit, and to understand entirely how they feel Clause 9 and other provisions in the Bill will relate to them.

--- Later in debate ---

[Lord Grimstone of Boscobel (Con)]

I thank the noble Lord for that question. The way I see it is that the UKIM Act introduced a principle of automatic recognition of professional qualifications gained in one part of the UK, as well as provisions for the equal treatment of individuals who obtain their qualifications in a particular UK nation and those who obtain theirs in other parts of the UK. Clause 9 merely supports professionals as they seek recognition in another part of the UK by providing a legislative underpinning to information shared by regulators with their counterparts in another part of the UK. This is entirely about information sharing. It is not about the recognition of professional qualifications.

[Baroness McIntosh of Pickering (Con)]

My Lords, I am grateful to noble Lords who have spoken at various stages of the debate. I want to clarify at the outset—and I am sorry if I was not clear—that I was in no way calling for an exclusion of the legal profession. I clearly stated that my experience is most familiar with the legal profession because I am a non-practising member of the Faculty of Advocates. I simply asked how many regulators will be covered by Clause 9, and my noble friend was kind enough to answer that he thinks 25 regulators will be covered by it. I asked for specific examples of where the Government think Clause 9 provides a solution to a particular problem.

I have to say that, from the questions raised by the noble Lords, Lord Fox and Lord Purvis, I am even more confused now than I was at the beginning of the debate as to the relationship of this clause to this Bill and the relationship of this clause to the internal market Act, which I sat through and contributed to on this specific theme. If anything, my noble friend has confirmed my understanding, and that of my noble friend Lady Noakes. I am most grateful again for her eloquence in stating her own view as to why Clause 9 is perhaps not necessary. My understanding is that the regulators are already communicating in the way that they should.

The noble Lord, Lord Hunt, made an argument as to why Clause 9 might be needed in one specific aspect, but I think that would have been covered in any event under the relevant provisions of the internal market Act.

I am grateful to have had the opportunity to debate this. I would just like to add a word of caution to my noble friend the Minister. The Explanatory Memorandum is not entirely clear in every particular. I refer to Clause 3 —not that we are debating that at the moment— and particularly paragraph 32 on page 6, which I think raises more questions than could possibly be answered.

This is something that I will keep under review for the next stage. I am not entirely convinced as to why Clause 9 is in this Bill, but, for the moment, I will not press my objection.

Clause 9 agreed.

--- Later in debate ---

[Lord Thomas of Cwmgiedd (CB) [V]]

It is a pleasure to follow the noble Lord, Lord Davies of Brixton, and his analysis of Clause 13. I do not wish to add to it, because each of the words used in that clause is deliberately used by parliamentary draftsmen for purposes that, at the moment, I do not fully understand. My objection to the clause—this is why I support the noble Lords, Lord Hunt and Lord Patel—is that this is yet another piece of framework legislation with extensive Henry VIII powers, unclear as they are, as the noble Lord, Lord Davies, pointed out. There are occasions when one can see a justification for Henry VIII clauses or wide regulatory powers, but we have to ask about the context, and the context of this Bill is the professions, however broadly we define them. It is essential that professions be regulated under a structure approved in detail by Parliament, simply because we must be certain, first, of the quality of the professions, and secondly, of the scope of the restrictions. Thirdly, we must be certain that the professions are completely independent of government interference, given the reliance the Government place on them and the need for them to be steadfast in their independence and independent advice and statements to government.

The debate earlier this afternoon on Amendment 45 showed the fallacy of trying to do what the Government propose. It is only because this Bill—framework though it is and vague though it is—has been fully subjected to parliamentary scrutiny that some of the really difficult issues and the lack of preparation have come out. I dread to think what will happen when we move to looking at the way the Bill is to operate under regulations. It is clear, then, that the regulations will not subject to detailed parliamentary scrutiny. What can be worse than passing what I regret to say, with due deference to parliamentary counsel, for whom I have the highest respect and have had the pleasure of working with on many occasions, is a wholly unsatisfactory and poorly prepared Bill? But a draftsman is not to be blamed for that. The blame lies with those who give the draftsman instructions.

This is the kind of Bill on which Parliament must now take a stand. We should not be legislating without good primary legislation that sets out the detail, so that we are sure how the regulatory powers are to be used. We should curtail the use of these powers in relation to matters of great importance to the prosperity and health of the nation, and that is the independence of the profession.

I therefore warmly support the noble Lords, Lord Hunt and Lord Patel, in this regard. I have not added to what the noble Lord, Lord Patel, said about Henry VIII powers because I do not think I could have improved upon his eloquent explanation.

[Baroness McIntosh of Pickering (Con)]

My Lords, first, it was churlish of me not to thank my noble friend the Minister for his enthusiastic embracing of the idea of a round table in connection with Clause 9; for that I am extremely grateful to him. I am also grateful that he asked us again to refer to the Explanatory Memorandum in relation to Clause 13, in addition to the remarks made by the noble Lord, Lord Hunt, in moving this amendment. The EM states that the powers under Clause 13

“may be used to modify legislation, including, where relevant, Acts of Parliament.”

Again, an Act of Parliament is being amended not by another Act, but simply by regulation.

Every Government like to govern by regulation and every Opposition would prefer things to be on the face of the Bill—that is just a fact of life to which I am becoming accustomed, having only served as a shadow Minister, not the real thing. But I would like to take this opportunity to ask my noble friend the Minister one specific question. Clause 13 as drafted is silent on any requirement to consult on these regulations. What consultation will there be, and at what stage might draft regulations be passed to the regulators as well as the relevant devolved Administrations? It is extremely important that they see them at the earliest possible stage.

Could my noble friend also put my mind at rest regarding an issue that the noble Lord, Lord Hunt, referred to in connection with Clause 9: the potential conflict between regulators of a devolved nation and regulators in another devolved nation or, indeed, the “mothership”—the English regulator? Might that situation arise under Clause 13? How would my noble friend aim to prevent that arising?

[Lord Fox (LD)]

I am grateful for the speeches we have heard so far. I am a cosignatory to this amendment and I would like to associate myself completely with the comments of the noble Lords, Lord Hunt and Lord Patel. However, if they will excuse me, I would like to single out the comments of the noble and learned Lord, Lord Thomas of Cwmgiedd, which were a clear, clarion call as to what we need to do with this clause: take it out. If we do not, we will let a Bill leave your Lordships’ House with so much power vested in the Minister and the department.

We are still struggling with what this Bill is for. If, as the Minister says, the first four clauses are its beating heart, then if things change, these issues can be picked up in primary legislation. Secretary of State Fox was very clear: trade deals will be brought to Parliament and debated as primary legislation. If and when the Government renege on that, perhaps it would be a problem of their own creating, but to leave this Henry VIII clause in the Bill is to pass too much untrammelled power going forward. I am sure that every department wants that ability not to have to worry about what Parliament says when it is making regulations and primary legislation, but your Lordships are here to stand up against things like that. We should remember the words of the noble and learned Lord, Lord Thomas, as we move forward to Report.

Professional Qualifications Bill [HL]

Baroness McIntosh of Pickering Excerpts

3rd reading
Wednesday 17th November 2021 Lords Chamber

[Lord Grimstone of Boscobel (Con)]

My Lords, I start by thanking your Lordships for the constructive approach that has been in evidence throughout this Bill. We have had robust discussions and debates and the Bill is all the better for that. In particular, I thank the noble Baronesses, Lady Hayter of Kentish Town and Lady Blake of Leeds, and the noble Lords, Lord Kennedy of Southwark, Lord Purvis of Tweed and Lord Fox, for the time—sometimes a deservedly hard time—that they have given me.

The Bill will achieve four key outcomes for the UK. First, it will end unequal EU-based arrangements for the recognition of professional qualifications. Secondly, it will help to strengthen the UK’s ability to negotiate and deliver ambitious deals on the recognition of professional qualifications with international partners. Thirdly, it will help professionals to enter new markets. Finally, it will provide smooth working arrangements for recognition of professional qualifications across all four nations of the UK.

I recognise that the Bill did not enter your Lordships’ House in the good state in which it leaves. The experience, diligence and practical knowledge of noble Lords have moulded this Bill into what it is today. Enshrining on the face of the Bill the concept of regulator autonomy in regard to preventing unfit individuals from practising is a landmark event.

I was gratified that the government amendments, the stakeholder engagements and the supporting documents prepared over the summer between Committee and Report were well received. I pay tribute to the noble Lord, Lord Hunt of Kings Heath, and my noble friends Lord Lansley and Lady Noakes for the expertise that they demonstrated throughout our discussions. I thank my noble friend Lady McIntosh of Pickering and the noble Lords, Lord Foulkes of Cumnock and Lord Bruce of Bennachie, for the constructive nature of the conversations that we have had on this legislation. I also thank my ministerial counterparts in the devolved Administrations and their predecessors, whom I have met on five occasions and written to nine times this year concerning the Bill. I remain optimistic and hope that they will give legislative consent to the Bill.

I thank all the regulators to which this Bill applies. We have engaged with them through a variety of avenues, including seven round tables that I hosted. They, other professional bodies and the government departments with which we have engaged have helped to shape and improve this legislation as it has moved through your Lordships’ House and we are extremely grateful for their constructive involvement.

My thanks also go to the officials who have worked so hard to get us to this position. I give particular thanks to the policy team, led by Tim Courtney, who not only overcame the challenge of compiling the list of regulators but, with his partner Cathy, welcomed the birth of their daughter, Penelope, just 12 days ago. On behalf of your Lordships’ House, I wish all three of them the very best. Tim was ably assisted by Hannah Riches, Nick French, and Sarah Mackintosh, while the Bill team was led superbly in shipshape fashion by Jamie Wasley and Jennifer Pattison. I would further like to thank my private secretary, Zack Campbell, for his sterling service on the Bill, and of course the office of the Leader of the House and the Whips, the Office of the Parliamentary Counsel and the clerks in this place. Last, but certainly not least, I thank my Whip, my noble friend Lady Bloomfield of Hinton Waldrist.

[Baroness McIntosh of Pickering (Con)]

My Lords, I thank my noble friend for going the extra mile to put the Bill in the state in which it is. His statement today on his continuing engagement on legislative consent with the devolved Administrations is particularly welcome. In paying tribute to him, his Bill team and my noble friend Lady Bloomfield, I urge him to ensure that we see some fruit from the common frameworks and recognise their importance in implementing what is in not just this piece of legislation but other forthcoming legislation as well. I am personally grateful to him.

I thank the Law Society of Scotland, in particular Michael Clancy, at what has been a very difficult time for him through his illness. I also thank the Faculty of Advocates, of which I am a non-practising member, for its engagement in the round table hosted by my noble friend. I warmly thank my noble friend for all that he has done and I hope that the Bill will have a safe passage through the other place.

[Baroness Blake of Leeds (Lab)]

My Lords, this has been the first Bill I have taken part in since I joined your Lordships’ House. While I originally thought that it was going to be an important, if not straightforward, Bill, the legislation has been much more of an eye-opener than I was expecting. For example, I did not expect that simply asking who the Bill related to would result in such confusion from the Government and months of delay. Securing a list of regulators and professions in scope of the legislation has been important work. I recognise the effort that the Government have put in to compile the list, although I again suggest that perhaps it could have happened before the Bill was published.

It has been fascinating and enjoyable and I am glad that my first Bill has been so important both for British citizens who want to work abroad and for workers who want to bring their expertise to the UK. Our public services would not function without them and our communities are richer when they decide to make the UK their home.

Ultimately, I have seen first-hand how this House can really scrutinise and improve legislation. I am sure that the Minister will agree, as he has stated, that this is a better Bill now than when it was first introduced to Parliament. From the start, we on these Benches said that it should not undermine the independence and autonomy of regulators due to their important function of setting standards and protecting consumers. There was widespread concern from inside and outside the House that Clause 3 in particular could force regulators to lower standards due to what Ministers had agreed in the free trade agreements.

I thank the noble Lords, Lord Lansley and Lord Fox, and the noble Baroness, Lady Noakes, for working cross-party on this important issue. That is why the Government’s amendment to protect regulatory autonomy is such a welcome addition to the Bill. This is a big change and, while not perfect, it should protect domestic standards across 205 regulated professions. I pay tribute to all the regulators which have engaged so constructively with us.

As this was a skeleton Bill, we also pushed the Government repeatedly to consult regulators and devolved authorities on regulations. The Government’s amendment making statutory provision for consultation with regulators, including departments in devolved Administrations, is a good step forward.