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.