Professional Qualifications Bill [HL]

Lord Davies of Brixton Excerpts

Committee stage
Monday 14th June 2021 Lords Chamber

The amendment of the noble Lord, Lord Lansley, suggests that we give Ministers the powers through this clause but reserve the removal of Clause 13 so as not to change the primary legislation. I think the two things are quite separate and, therefore, I do not support his proposal. I conclude by respectfully saying to the Minister or his officials that, for some reason, I do not receive any of his communications; I would be grateful to do so.

[Lord Davies of Brixton (Lab)]

My Lords, I declare an interest as a member of a professional organisation. We have before us the international agreements clause, as we could call it. In their response to the Delegated Powers and Regulatory Reform Committee, the Government said:

“Clause 3 is necessary to ensure that the provisions of international agreements can be implemented domestically and be given effect to by particular regulators.”


I am not sure about the use of “necessary” but that is how they have chosen to phrase it and, taken at face value, it is all well and good. It is established practice for trade agreements to cover a range of issues, including the recognition of professional qualifications—or rather, it would be acceptable if we could trust the Government. The problem, of course, is that we cannot trust this Government, particularly when they seek to assume such wide-ranging powers.

There are two levels of concern. First, and crucially, the driving principle should be the maintenance of the quality of professional standards and the service provided, not any wider considerations of economic benefit. For example, as stated by the General Medical Council:

“Patient safety is, and must remain, the principle consideration when considering whether to facilitate access to the medical register as part of an economic trade agreement.”


In other words, there must be no room for any trade-off of potential broader economic advantages at the price of weakening professional standards. One way of ensuring that the correct professional standards are maintained is the fullest, earliest possible involvement of the relevant UK regulators in the discussions that take place on the trade agreement; that is, before and during the trade discussions. The Minister has protested that it is no part of the Government’s trade policy to compromise our professional standards. It is possible that I have—again, in the Minister’s words—“a suspicious mind”, but the Government’s record suggests otherwise. This is a general issue where some reassurance would be appropriate, whoever is in government.

The second level of concern is that this is not a normal Government. The evidence we have so far is that this Government are desperate and will do almost anything to justify their decision to change our international trade arrangements to get Brexit done. More store is being placed on obtaining trading agreements for their own sake, however bad or vague they might be. The Government are desperate to present the public with so-called achievements of favourable trade agreements.

For example, we are led to believe that a trade deal with Australia will shortly be announced. It will be the first big post-Brexit trade deal that is not simply a rollover of arrangements that the UK enjoyed as an EU member. In practice, Australia is a relatively small export destination for UK goods and services, but that does not matter because it is all about the politics. There is also an ambitious Secretary of State.

How can our professional services depend on their interests being defended in any future trade deal under the terms of this legislation, any more than, for example, the hill farmers of Wales will be defended under the putative agreement with Australia? It is obvious that, whatever the terms, getting the deal is the only thing that matters to the Government.

In addressing this issue, the Government have to be honest that trade agreements are almost invariably about more than trade. It is innocent to believe otherwise. For example, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership is much more about achieving the UK’s Indo-Pacific tilt for foreign policy than an economic project. However, the UK has to accept all the CPTPP rules to become a member if it wants to achieve that strategy.

There are real concerns, which I hope the Minister will address, that professional standards risk being the sacrificial lamb, slaughtered on the altar of political ambition.

[Lord Trees (CB) [V]]

My Lords, since this is my first contribution to this Committee stage, I thank the Minister for his personal letter to me after Second Reading addressing my concerns about the Bill. He is always courteous and meticulous in responding and I sincerely appreciate that.

However, I still have certain concerns. At Second Reading, I asked two main questions. One was whether the Bill would debar relevant regulators from requiring certain applicants—where no regulator recognition agreement has been set—to sit the UK regulators’ own examination or assessment procedures. I commend the Government and thank the Minister that the Government’s own amendments, brought in with regard to Clause 1, have made it clear that this is not the case.

However, the other question and my concern relating to Clause 3 remain. Why is there a need for a clause in the Bill connecting professional recognition to trade agreements? It leads to a genuine concern that Clause 3 will pressurise regulators into relaxing standards. That concern remains, so I will consider it in some detail

A major purpose of the Bill is to give regulators powers to reach mutual recognition agreements or other methods to enable overseas professionals to register and practise in the UK. The Royal College of Veterinary Surgeons—and I declare my interest as a fellow and former president—and the healthcare professions, particularly the General Medical Council, as my noble friend Lord Patel has mentioned, already have these powers, and one wonders how many of the 50 or so other regulators in the UK do not have them. A question I raised at Second Reading still stands: why not give such regulators the powers they currently lack and leave it at that? Why link regulatory recognition to international agreements?

If we look at the precise wording of Clause 3—and I have not added any words, just subtracted some—Clause 3(1) states:

“The appropriate national authority may by regulations make … provision … for … implementing any international recognition agreement to which the United Kingdom is a party.”


Clause 3(4) continues:

“An ‘international recognition agreement’ means so much of any international agreement … for … the recognition of overseas qualifications or overseas experience for … determining whether individuals are entitled to practise in the United Kingdom”.


I am not a lawyer, but this translates to me as meaning that the Government can implement an agreement to recognise whether individuals can practise in the UK. There is no mention in Clause 3 of involvement or consultation, let alone agreement, with the relevant regulatory authority in the UK. That is my amateur interpretation but the noble Baroness, Lady Noakes—I hope I am not pre-empting her—put it more bluntly at Second Reading:

“The dodgy bit of the Bill is Clause 3, which allows the Government to override existing approaches and procedures for the recognition of non-UK qualifications if they have been covered in a trade treaty.”—[Official Report, 25/5/21; col. 931.]


However, as we have heard already from the noble Lord, Lord Fox, and others, that is not all. The Delegated Powers and Regulatory Reform Committee, in its report on the Bill, had plenty to say about Clause 3. The committee’s concerns are different from mine but are none the less serious and pertinent. Its report notes that Clause 3 gives Ministers broad powers by regulations, including Henry VIII powers to amend primary legislation, without conditions. The report considers and rejects the justifications for this in the Explanatory Memorandum of the Bill and concludes that

“clause 3 represents an inappropriate delegation of power and should be removed from the Bill.”

It seems to me that Clause 3 adds nothing to the reasonable and positive elements of the Bill to enable regulators to have greater ability to recognise, by the means they so determine, overseas applicants for registration to practise in the UK or to ensure that the regulators have such processes and that they communicate them publicly to facilitate overseas applications.

There are serious concerns about the potential that Clause 3 gives the Government to determine or influence the process of professional recognition in the UK and serious concerns from the DPRR Committee about the powers this clause gives the Government to amend primary legislation. I argue that, collectively, these facts support the view that Clause 3 should not stand part of the Bill, which I support.

--- Later in debate ---

[Lord Davies of Brixton (Lab)]

My Lords, I crave the indulgence of the House; I hide behind the excuse of being a beginner. I put my name down to this amendment because it is one of those probing amendments about which you think, “Why not? What is the possible objection?” I really have no more to add to what the noble Baroness, Lady Noakes, said in moving the amendment. There is a certain amount of pleasure in this: I suspect that I will rarely agree with the noble Baroness, but on this occasion I do, so I am more than happy to reinforce the points she made.

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

My Lords, in the Minister’s letter to the noble Baroness, Lady Hayter, yesterday—which I hope has been circulated to all those who have been participating in the Committee, as the noble Baroness, Lady Noakes, indicated—the Minister cited the reason for moving away from what he termed the “prescriptive and unpopular” EU-derived system of mutual recognition across members. The next sentence says:

“But it did at least give all regulators [Inaudible] a means to establish international recognition routes with EU member states.”


The Government say that it was “prescriptive and unpopular”, so they want to do exactly the same. However, there is not the same kind of protections on the regulators at the moment for their operational independence if they decide not to enter into an agreement. There will be substantially good reasons why they may not want to, and they were outlined by the GMC on its response to the Government’s consultation on the CPTPP.

The GMC has indicated that the approach of the UK regulators in many areas has gone beyond simply looking at the areas listed by the Government in this Bill, which we debated at our first Committee sitting. The regulators on health and certain other areas look at the broad fitness to practise, the background education and the ability to verify the educational standards in country of that applicant. Unless they are satisfied with that broad range of all the other areas, they do not wish to have mutual recognition. However, this is where the problem arises: in the future, it might be desirable that we have mutual recognition in professions with applicants from a certain country, but not yet. It should be up to the regulator and there should be independence when making the decision that a country’s standards on the education and training route for that applicant were not sufficient to meet UK standards.

At the moment, there is insufficient protection in Clause 4, because, as the Minister keeps reminding us, it is purely enabling, and could be completely undermined by Clause 3. The powers in Clause 3 can, in effect, force the regulator to move. It is not simply the slightly benign word that the Minister used in his letter— to “encourage”. Perhaps I am alone in being slightly cynical, but whenever I hear the Government say that they want to encourage someone, then that someone should be worried. It is not simply about encouragement, however. Clause 3 allows for that regulator to move to start the process of a mutual recognition agreement.

There is another reason why I think this probing amendment is justified, and I hope that the Minister can offer the reassurance that the noble Baroness seeks. The Government do not seem to know what the problem is in regard to many of the regulators yet, but they want an answer to them all under this. This comes at a great cost, because this Bill, as the impact assessment indicated, may well cost up to £42 million. These costs are passed on to the applicants. The Alice in Wonderland nature of it is that the Bill’s stated purpose is to reduce the fees for those applicants. However, it is the regulators who want to avoid a situation where they are forced through an MRA agreement to have a fee system imposed on them by the Government. That is why the justification for the voluntary nature of it is very strong. If the Minister were able to say that he would consider adding to Clause 4, which offers the kind of reassurance in statute that would be required, we would be more amenable to be assuaged.