Professional Qualifications Bill [HL]

Debate between Baroness Noakes and Lord Hunt of Kings Heath

Committee stage
Monday 14th June 2021 Lords Chamber

[Baroness Noakes (Con)]

My Lords, in last week’s Committee, we emphasised the need for the Bill, and not just the Government’s fine words, to recognise the autonomy of the regulated professions. If the Government really do intend to respect the independence of the regulated professions, it is quite difficult to see why Clause 3 is required.

If the Government sign a trade treaty that includes the recognition of qualifications, and if they do respect the autonomy of the professions, it is difficult to see why we need Clause 3 in addition to Clause 4. Many regulators already have powers to enter into recognition agreements for overseas regulated professions, and if they do not have them, Clause 4 is there to empower them to do so. As such, they either have the powers already or can acquire them by using an order under Clause 4, which seems to me to make Clause 3 redundant if—and only if—the Government do actually mean what they have been trying to tell us: that they respect the autonomy of the professions.

Put another way, there is no evidence before the House that Clause 3 is needed. When faced with an unnecessary clause, the right thing to do is remove it. The Delegated Powers and Regulatory Reform Committee, which other noble Lords have referred to, was highly critical of the Government’s taking of Henry VIII powers in the Bill, particularly in relation to Clause 3. There is very good reason for the Committee to agree with the DPRRC that Clause 3 should not stand part of the Bill.

I looked very carefully at my noble friend Lord Lansley’s Amendment 56 in this group, but I am not convinced that the existing distinction between what is in primary and what is in secondary legislation is sound. It means accepting that the EU’s use of regulations versus directives, and the use of statutory instruments to implement the EU law coming into our law as we left the EU, is a good basis going forward for determining the degree of parliamentary scrutiny that is required for any changes. Because of this, I cannot support my noble friend’s amendment.

[Lord Hunt of Kings Heath (Lab)]

As we are starting the second day of Committee, I declare my interest again as a member of the GMC board, although clearly, I am not speaking on its behalf.

I put my name to the noble Lord’s clause stand part Motion, and I was happy to do so, although I acknowledge that the noble Lord, Lord Lansley, has given a different and interesting perspective. Equally, I remind noble Lords that I have a sunset clause that we will debate next week. All of us are trying to get to grips with the same problem. The Minister brought some very welcome amendments last week and made some very welcome remarks about the Government’s wish to protect the autonomy of regulators. The issue is that, on any reading of the Bill, Clause 3 would seem to be able to override those protections. This is where we get to the heart of the Bill.

My noble friend Lord Davies was absolutely right: we have seen how the farmers are being dealt with over trade agreements, and it is pretty clear that the Government are willing to ditch a great deal in order to get a trade agreement. That is why it is no good having legislation that does not protect the professional autonomy of regulators. Does the Minister accept that, notwithstanding the warm words he has used, in the event of a trade agreement it will be perfectly possible to use this clause to override any of the protections in Clause 1?

If, as I think the Minister has to say, it will be possible, the question posed by noble Lords and the noble Baroness, Lady Noakes, then comes back: why do we have to have this clause at all? If we do have to have it, why is there not some protection within it that says that, notwithstanding the trade agreement, it cannot override the protection given in Clause 1? One way or another, before the Bill leaves your Lordships’ House, we have to tackle this head on.

Professional Qualifications Bill [HL]

Debate between Baroness Noakes and Lord Hunt of Kings Heath

Committee stage
Wednesday 9th June 2021 Lords Chamber

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

My Lords, I am using the stand part debate on Clause 1 to raise my general concern about the extensive power given to Ministers without adequate justification or explanation.

On Second Reading I referred the Minister to the recent report of the Secondary Legislation Scrutiny Committee, which during the course of the year has

“become increasingly concerned about the growing tendency for the Government to introduce skeleton bills, in which broad delegated powers are sought in lieu of policy detail”.

The committee went on to say that

“we urge the Government ‘to bring forward bills that contain clear policy intention instead of broad delegated powers’ and to ensure that ‘Departments do not use the exceptional powers given to them by Parliament as an expedient in the context of the pandemic as a cloak for effecting longer term, post-pandemic changes which would more properly be included in primary legislation’”.

Unfortunately, the Minister and the rest of the Government have chosen to totally ignore that in bringing this Bill before us. Not surprisingly, that has drawn a critical response from the Delegated Powers and Regulatory Reform Committee. A number of noble Lords have quoted extracts from the committee’s report today. It drew three powers to the attention of the House, and in relation to each it noted

“a failure to provide adequate explanation in the Memorandum. This is particularly disappointing given that (a) as the Government have acknowledged, most of the substantive changes to the law envisaged by this Bill are to be made through delegated powers rather than the Bill itself, and (b) these are Henry VIII powers”.

On Clause 1, the committee commented:

“It is a Henry VIII power, as it includes power to amend primary legislation and retained direct principal EU legislation … The power can be used to make provision about a wide range of matters”—


which we have discussed comprehensively today. As the committee says, the Explanatory Memorandum

“provides two justifications for the delegation of power. The first is that the use of the power ‘is to be demand-led’ and ‘demand will naturally change over time and so it is not possible to achieve the policy through provisions on the face of the Bill that apply to a fixed set of professions’”.

If we accepted that argument, we could justify dealing with almost every piece of legislation in that way. As the committee said,

“that does not explain why all of the changes within the scope of the power—across so many professions and including changes to primary legislation—should be a matter for secondary rather than primary legislation”.

Nor did the Government respond to concerns that Clause 1

“could allow such requirements—and other comparable requirements in primary legislation relating to other professions—to be watered down by statutory instrument if Ministers considered this to be necessary to enable demand for the services of the profession in question to be met without ‘unreasonable delays’”.

The committee continued:

“The second justification given for the delegation relates to the existing legislative provision covering a wide range of different professions and regulators: ‘the professions that are in scope of this power have pre-existing legislative frameworks governing how each is regulated. It is not feasible to provide, on the face of the Bill, for an approach that would interface with each of these various frameworks and their different approaches to the recognition of professional qualifications, or to address them individually’”.


Well, as the committee expressed itself:

“We are surprised and disappointed that neither the Memorandum nor the Explanatory Notes … give any examples of circumstances in which the power might be exercised and changes that could be made in such circumstances; or … explain why Ministers will have no duty to consult before making regulations.”


We have discussed that in some detail. This

“makes it difficult to understand how significant the changes that could be made in exercise of this power could be, particularly given the proliferation of existing legislative schemes that could be amended; and gives rise to uncertainty as to whether there may be aspects of the law relating to recognition of overseas qualifications that the Bill would allow to be provided for in regulations … but which should instead be subjected to the much greater Parliamentary scrutiny afforded to primary legislation.”

I hope the Minister will explain why the Explanatory Memorandum is so scanty on such an important matter. Will he justify the extraordinary powers he and his colleagues are taking to themselves? Does he accept that some of the mistrust he complained about two groups ago on the part of Members towards the Government perhaps rests on the cavalier approach the Government themselves have taken to this House and Parliament by the unsatisfactory nature of the drafting of this Bill? I beg to move.

[Baroness Noakes (Con)]

My Lords, on the face of it, Clause 1 does seem innocuous, but at its heart there is a power for the Government to interfere in the way that regulated professions recognise people who have qualified abroad. I am far from clear that a case has been made for government intervention. I have not seen any evidence of the regulated professions dragging their feet when it comes to recognising overseas professionals. I recognise that our country has a demand for some professionals, notably those related to healthcare, which may well outstrip the numbers who qualify here, but there is still a big step before saying our UK professions need the Government to tell them what to do.

I have no problem with giving the regulators additional powers if their current rules make it difficult to accommodate the recognition of overseas professionals and they need legislation to change that—but that is not what this clause is about. The clause covers many regulated professions that already have effective provisions for the recognition of overseas applicants, but the Government have not excluded them from the scope of Clause 1. I believe the clause would be better expressed in terms of a power to be exercised by the Government at the request of regulated professions or with their consent. The Government do not know best when it comes to the professions, but the Bill does seem to be predicated on that belief. I hope it is not too late to reshape how this Bill interacts with regulated professions.

--- Later in debate ---

[Baroness Noakes (Con)]

My Lords, I have Amendment 28 in this group, to which the noble Baroness, Lady Hayter, has added her name. I have sympathy with many of the other amendments in this group, particularly those that affect Clause 3. I think that, in one way or another, we are all struggling with how to make sense of this rather dirigiste Bill and trying to turn it into something that is oriented around the regulated professions rather than around what the Government want the professions to do.

Specifically, Amendment 28 would make it clear that Clause 3 could not be used to force a profession or its regulator to recognise overseas professionals. The power created by Clause 3(1) is very broad. The national authority can make whatever changes it likes in order to implement an international recognition agreement. I recognise that the Government have said they do not intend to use trade agreements to recognise professions directly but will work through mutual recognition processes. However, the fact remains that they could do so because, if Clause 3 becomes law, it will give them that power and nothing else in that clause or anywhere else in the Bill stops them. For example, they could agree to Indian chartered accountants being recognised as auditors in the UK even though existing recognition processes have thus far not determined that those qualifications are sufficient either for the purposes of chartered accountancy in general or for the specific purposes of the regulated audit profession. That is just not acceptable.

I said at Second Reading that this measure could drive a coach and horses through the ability of professions to guard their standards and quality. My noble friend the Minister said in response that the Government have not forced the professions to accept anything in treaty negotiations to date and that basically we could rely on the Government to do the right thing. However, giving a Government powers to do things on the basis that they will not actually use those powers is a dangerous approach to legislation, and one that the House should rightly reject.

I believe that recognition of regulator autonomy on the face of this Bill is essential, and no amount of Dispatch Box reassurance can make good the problem of giving the Government too much power.

[Lord Hunt of Kings Heath [V]]

My Lords, I am glad to follow the noble Baroness, Lady Noakes—I so agree with her. At the moment, Clause 3 gives Ministers a blank sheet to do whatever they wish, and I am afraid that ministerial assurances are not sufficient. One way or another, we need to amend Clause 3.

My principal reason for speaking is to support my noble friend in her Amendments 20 and 21 on skills shortages. It is surely important that any regulatory change is only considered before consultation with the relevant regulators, in the context of how the national body is undertaking work and investment in the domestic sector in order to help alleviate those shortages.

I am particularly interested in workforce issues in the health service and social care. I remind the Minister of a report by the King’s Fund in February this year which said that NHS hospitals, mental health services and community providers were reporting a shortage of nearly 84,000 full-time equivalent staff. Key groups, such as nurses, midwives and health visitors were severely affected. General practice was under strain, with a shortage of 2,500 full-time equivalents, with projections suggesting that this could rise to 7,000 during the next five years if current trends continue.

The regulator for health and social care, the Care Quality Commission, has highlighted workforce shortages as having a direct impact on the quality of care. NHS waiting time standards have been routinely missed for a number of years, which the consequences of Covid will exacerbate.

The Health Foundation, another respected independent institute, says that the UK ranks below the average of high-income OECD countries for the number of practising nurses and the annual number of new nurse graduates relative to its population. Further, about 15% of registered nurses in the UK are trained outside the country—more than double the OECD average.

Workforce shortages are not new in the NHS. They have been a recurring and enduring feature during its 70 years or so. The reasons are complex. A historical reliance on international recruitment may be part of the story. A bias in the UK towards focusing on the Exchequer cost of training doctors and nurses—which is expensive—but not on the cost associated with the failure to train enough staff is another factor. More broadly, workforce shortages are totemic of the short-termism that dominates national policy-making under this Government.

The noble Lord, Lord Patel, will speak at the end of this debate. I hope he mentions his House of Lords committee report from 2017. It argued that the absence of any comprehensive, national, long-term strategy to secure the appropriate skilled, well-trained and committed workforce that the health and care system will need during the next 10 to 15 years represented

“the biggest internal threat to the sustainability of the NHS.”

Amendments 20 and 21 post the way for a national authority to be required to publish a report on how skill shortages are being met and how we are investing domestically to address this shortage and upskill existing staff. I hope the Minister will be sympathetic.