Professional Qualifications Bill [HL]

Lord Fox Excerpts

Committee stage
Tuesday 22nd June 2021 Lords Chamber

[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.

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[Noble Lords]

Ha!

[Lord Fox (LD)]

This is not funny, because the Government are trying to micromanage the skills of this country, and it is truly absurd that we should be debating this and a shame that the Government have got themselves into this position. This letter is indicative of a failure of precision and a lack of detail. The Minister stood up and said that the Government need the Henry VIII powers because they are unable to foresee the future. They actually need these powers because they are unable to describe the present and need this to retrospectively fill in the gaps that the Bill will almost certainly leave because of that lack of precision and the failure to understand the detail.

I am sure the Minister’s ambition when he first heard about the Bill was to take it through this House as quickly as possible and get on with what he considers to be the other more important parts of his job. It is clear that the Bill came before him very late in the drafting process, by his own admission. But it is now very hard to see how anything we can do to the Bill makes it fit to leave your Lordships’ House. The comments from all Benches about having a hard, long look at this before it goes any further are very wise advice to the Minister.

[The Minister of State, Department for Business, Energy and Industrial Strategy and Department for International Trade (Lord Grimstone of Boscobel) (Con)]

My Lords, I thank noble Lords for the comments in this debate, which, as they may imagine, I have listened to with a certain lack of enjoyment. If I may, I will come back to the substance of that later.

I thank my noble friend Lady Noakes and the noble Baroness, Lady Hayter of Kentish Town, for their Amendments 45, 46, 63 and 68, which concern the regulators that the Bill applies to, as well as the duties on those regulators to publish information. I will start with Amendment 45, which concerns Clause 8 and the duty of a regulator to publish information on requirements to practise. We might remind ourselves of the purposes of this clause. Clause 8 is first and foremost about increasing transparency. It does this by requiring regulators of professions in all parts of the UK to publish information on the entry and practice requirements of professions. This is in direct response to our evidence-gathering. We found a complex regulatory landscape—I think the whole Committee would agree with that—which is difficult for professionals and aspiring professionals to navigate. Some regulators already publish the information listed in Clause 8, and those that do not should be able to prepare it within the six months of lead time set out in the commencement provisions relating to the clause.

The amendment’s explanatory statement by my noble friend Lady Noakes helpfully clarifies that “persons” means “professional bodies”, but I remind the Committee that many professional bodies regulate on a voluntary basis and not by law. The core principle of the Bill—I will come back to this again later—is that it applies to those regulators which are regulated by law in whole or part. The Bill does not apply to many of them because they regulate on a voluntary basis and so fall outside the duty to publish information under Clause 8. The amendment could create new burdens on bodies not covered by law in any other way.

Moreover, Clause 8 already makes provision, where there is more than one regulator involved in the regulation of a profession, for just one to publish the transparency information required. My noble friend Lady Noakes is seeking to provide for a similar effect with her amendment to a wider group of organisations in this space but, with all due respect, it is not necessary.

Amendment 46 concerns Clause 9 and the duty of a regulator to provide information when requested to a corresponding regulator in another part of the UK. This information helps regulators to check things like fitness to practise when a professional moves between jurisdictions within the UK. The amendment would apply these provisions to “another person or persons”—suggested in the explanatory statement to be professional bodies. Once again, this blurring of the nature of the bodies to which the Bill applies is unhelpful. Indeed, in this case it creates risks.

The clause places a specific duty on a defined regulator to make sure that important information is shared when requested. This might be critical to protect the public from harm. This amendment creates ambiguity around which body must fulfil the duty. It also introduces “must seek to ensure” into the provision. I do not believe this is enough. If there is more than one regulator or professional body involved in regulating a profession, then the law must be clear on who must provide the relevant information; it should be the regulator of the specific professional activity regulated in law. This is important to make sure necessary checks are done on professionals in a timely way. This clause is particularly important where a professional activity is regulated by different regulators in different parts of the UK. At our last count, the number of “corresponding” regulators this amendment would apply to was around 25. The provision in the clause is important, but any burden arising from it will be very limited.

I thank the noble Baroness, Lady Hayter of Kentish Town, for her Amendments 63 and 68, which seek to remove the definition of when a profession is regulated by law in Clause 16 and add a schedule listing the regulators to which the Bill applies. I think we have all learned things through the passage of this Bill. In particular, I have learned that a definition which was apparently clear-cut on when

“a profession is regulated by law”

has taken this amount of time to establish.

As the noble Baroness said, the list in the proposed schedule in her amendment is the same as the list of professions and regulators in the letter which I placed in the House of Lords Library on 24 May. Actually, I indicated at that time that this was not the final list:

“The following table is comprised of over 160 professions and more than 50 regulators that BEIS consider fall within this definition”—


the definition regulated by law—

“and is the product of engagement with other departments, regulators and external organisations. Please note that BEIS are still conducting assurance work to confirm the professions and regulators to which the Bill will apply … The list below should be considered indicative only.”

I think that was the appropriate health warning to put on that letter. A very detailed exercise has been going on across Whitehall to confirm who is covered by law, which, as I said earlier, one would have thought it would be straightforward to find out. A very detailed exercise has been going on to update that letter, which was indicative, and to make the letter I have now sent as accurate as possible—although even that letter may still need some updating around the margin going forward.

In order to achieve this list, we have had to work with a large number of government departments and the regulators. This thorough mapping of the landscape of regulated professions has not been done properly, I have written down here, “for far too long”. I wonder whether it has ever been done properly at all before now. Yet this list of regulators regulated by law was the list to which the European Union regulations applied. What has come to light, frankly, during this process, is that not all regulators have a copy of the list of the professions which they regulate. The list of professions attached to this list has come from the regulators and, quite rightly and properly, the GMC drew attention to the fact that some extra medical professions needed to be included in the list. Furthermore, not all departments had full visibility of which regulators that fell under their purview were covered by law.

I accept, without reservation, that it is not good enough that these lists have been incomplete and that noble Lords must have felt they were playing a game of blind man’s buff in trying to see who the Bill applies to. Of course, as a Minister on the Front Bench, it has been uncomfortable to sit here and listen to the quite reasonable points made by my noble friend Lady Noakes, the noble Baroness, Lady Hayter of Kentish Town, the noble Lord, Lord Purvis of Tweed, and others.

This list must be put into good shape. By the mere act of our working through this Bill and unearthing these matters—in the way that our House is here to do—we are doing a good job. The landscape is complex, but by the time we have finished the Bill, I believe we will have learned all there is to learn about regulated activities, and this rather technical matter about which regulators and professions are covered by law.

Since the first letter, there have been, as I have mentioned, some changes to the indicative list, with some more regulators coming on to it. We have now identified close to 60 regulators—I think it is 55 or 56 —and more than 190 professions as falling within the ambit of the Bill. I placed an updated list in the House of Lords Library yesterday. I thought noble Lords would congratulate me on working at the weekend on a Bill as important as this; I now have almost perfect knowledge of when noble Lords eat their lunch on a Sunday. I have asked my officials to keep the list under review as they continue their work with national authorities and regulators. Certainly, I would not want to be the Minister who took this Bill forward without knowing to whom it applied. I will, of course, inform noble Lords if further updates are made.

Actually, the vast majority of the professions and regulators contained in the indicative letter I shared on 20 June are the same as those I shared in the indicative letter of 23 May. As I said, we have done further work with departments to assess where existing legislation will mean that the Bill applies to certain professions and to determine the relevant regulators. This is detailed work that has drawn on expertise from many departments.

In answer to the point of my noble friend Lady McIntosh about animals—the virtual zoo to which she referred—whether or not an animal or a farmer falls under regulations that are governed by law is a matter for legislation that is owned by Defra, which at certain times in the past must have considered it appropriate to put an animal or an activity into its statutes. It is not something that I or my department have taken a value judgment on in relation to the list that should be included in the Bill.

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[Lord Grimstone of Boscobel (Con)]

I thank the noble Lord for his question. Again, I repeat that I am very happy to hold round tables on this, as necessary.

On the noble Lord’s particular point, if a new separate regulator was set up that fell within the definition of a corresponding regulator for the purposes of this Bill, Clause 9 would automatically apply to it and the information sharing would happen in that way.

[Lord Fox (LD)]

My Lords, I am getting more confused; I am Confused of Wherever. When we set out on our journey on this Bill, the Minister was clear that this was about the mutual recognition of qualifications between different regulatory countries and repealing certain aspects as a result of Brexit. Since then, in the debate on a previous group, the Minister talked about recruiting people into skills, which was not in the initial remit, and now we seem to have strayed firmly into the territory of the internal market Act. Most of the people in this Chamber sat through the happy hours of the then internal market Bill, which was there to do the things that the Minister has just talked about. It seems to me that we are conflating lots of different objectives, the reason being that, once again, if you read the title of the Bill, it can be almost anything you want, and, because of the Henry VIII powers, you can do almost anything you want. Things keep changing. The furniture keeps getting moved. So can the Minister please reassert the focus of this Bill so that I can perhaps knuckle down under his iron will and we can get through it?

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[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.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, my noble friend Lord Hunt referred to “unease” about the Bill. I would put it slightly stronger: the “worry” about the Bill is threefold. First, as we have been hearing, it is badly thought out, badly drafted and not subject to proper consultation. Secondly, it is powerful: it allows statutory bodies—ones we thought autonomous —to have their roles, structures and working practices altered, not at their request to a Minister but to comply with government policy. Thirdly, as we have just been hearing, these changes to statutory bodies will be imposed by secondary legislation.

Hence, it is entirely legitimate to ask questions about Clause 13. Again, it is about whether there are two parts to the Bill. I have been focused on the idea that the Bill is about recognising international qualifications, but we are hearing from the various trade talks that the Government will indeed want to add professional services into the mix. As we have said before, this will often be really welcome and will be prioritised, I hope, in some of the trade talks—but only where it is judged good for our professions and not where it is imposed in a deal for something else.

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[Lord Fox (LD)]

Once again, my Lords, I find myself following the wise words of the noble Lords, Lord Hunt and Lord Patel. In his speech, the noble Lord, Lord Hunt, referenced the Trade Act. Students of the Trade Act will have heard me make a speech about secondary legislation on at least two occasions and I am not going to repeat it, but—spoiler alert—it was very similar to the speech the noble Lord, Lord Hunt, gave. The key element both of us brought out was the complete lack of government jeopardy when it comes to secondary legislation. In other words: it is essentially a bet that cannot be lost. What they are betting with is the right governance of a very important thing.

After several trailers from the noble Lord, Lord Hunt, we come to this amendment. He has trailed this several times and the sunset clause is one way of putting some insurance into this Bill. What we would really like is for the Bill to leave this House not needing a sunset clause; that has to be the objective. This is very much a second-order or third-order solution to something sub-optimal. In that respect, I am not enthusiastic; I am somewhat reluctantly drawn to supporting this clause because we have to put in some element of insurance if we cannot get this right. I hope that, by hook or by crook, we can get the Bill right and perhaps not need a sunset clause, but in the meantime, we should keep that option open.

[Baroness Blake of Leeds (Lab)]

I thank my noble friend Lord Hunt and the noble Lord, Lord Patel, for tabling Amendment 59. A four-year sunset clause is an interesting proposal, given the wider concerns that keep coming up throughout these debates: how quickly the Bill has been put together, the lack of thinking through of all the elements, and the concerns just raised by the noble Lord, Lord Fox.

Have the Government considered a mechanism for reviewing the Act’s effectiveness and, if so, what sort of review is the Minister proposing? I hope he will acknowledge the lack of confidence that has been expressed from all sides of this Chamber. I finish by asking the Minister to explain why the Bill’s provisions should last longer than four years, without a review mechanism.

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[Lord Fox (LD)]

My Lords, I have gone through the entire Committee session in complete agreement with the noble Baroness, Lady Noakes. Not a scintilla of difference has come between us all day. The fact that this amendment is signed by such a broad group of people indicates two things. One is that there is broad hope that we can get a Bill out of this process that we can live with. Also, this is the essential building block that has to start the process of creating a Bill that this House is much more comfortable with. As we have heard, the Minister has spoken time after time about the autonomy of the regulator. He cannot be faulted in the number of times he has said it. However, at no point is that autonomy echoed in the words of the Bill. That is what this amendment, very simply, seeks to do. As the noble Baroness, Lady Hayter, put it, it is to take the Minister’s words and to put them into the Bill. Without that insurance, as my noble friend Lord Purvis explained, that are plenty of ways that autonomy can be eroded and, indeed, set to one side.

My noble friend Lady Randerson, speaking to a previous group, explained that mutual recognition of qualifications takes years. It does not take years if it rides in on the back of a free trade agreement and overrides the rights and autonomy of our regulators. That is the fear that runs through all the people trying to correct this Bill. This amendment, or something that the Government pick up and make their own, is one way of starting the process of having the dialogue that will help the Bill make further progress.

[Lord Grimstone of Boscobel (Con)]

My Lords, I thank the noble Baroness, Lady Hayter of Kentish Town, for her amendment, which sets out the autonomy of regulators to act in the interests of their profession. I note that the amendment is supported by my noble friend Lady Noakes and others. Of course, I commend their commitment to upholding regulator autonomy, and it will come as no surprise that I support their intent here. I was told before I joined your Lordships’ House that understanding the mood of the House was an important requisite if a Minister was to have a chance of even modest success in his role. I do not think that anybody who has listened to our debates on this matter could be in any doubt about the mood of the Committee on this topic.

I spoke at length on regulator autonomy on days one and two of Committee, saying, in particular, that regulatory autonomy is, and has always been, a priority in this Bill. Throughout the Bill’s development and following its introduction, the Government have engaged closely with a wide range of regulators—even the newly discovered ones—to make sure that their autonomy is upheld throughout the Bill. We will of course continue to do so, not just during the Bill’s passage but in its implementation. Subject to the usual channels, I believe that we may now have time available to us before the Bill moves to Report stage to make sure that process is fully and conclusively completed.

This is why of course we listened even before the Bill started its passage through the House, and tabled our amendments to Clause 1: to ensure, in that case, regulatory autonomy over decisions about who practises a profession and flexibility in assessment practices, in line with the rigorous standards set by regulators. I think noble Lords will recognise now that the overall effect of Clause 1, as amended, will be to ensure that regulators can use a full range of approaches to make their determinations about knowledge and skills, and it preserves their ability to set further conditions, such as those set out in the amendment. I am pleased that, through discussion, we were able to get both the General Medical Council and the Nursing and Midwifery Council to welcome this. The proposed new clause would also specify that regulators are able to determine whether to make a regulator recognition agreement. Perhaps I may humbly say that Clause 4 is already the means of achieving this.

Clause 3 ensures that, where the UK has international agreements on the recognition of professional qualifications, these can be implemented. The principle of autonomy will be a key priority in reaching these agreements. Of course, I understand the point made by the noble Lord, Lord Purvis of Tweed, that there will be a number of future free trade agreements that will require primary legislation to implement them. Equally, there may be some, for example the Swiss mobility agreement—not a full free trade agreement but one that acts within the spirit of the Bill—which may not need primary legislation. That is why it has been important to have this flexibility.

Agreements under Clause 4 are entirely regulator-led. The appropriate national authority may grant regulators the power only to enter into agreements, not to dictate what agreements to enter into. It is for the regulator to decide whether it wishes to enter into a recognition agreement with its counterparts overseas, and the terms of any agreement. I hope that I have conveyed through this, and my previous comments, that the Bill protects and values the autonomy of regulators. But of course, I go back to my earlier comments: the strength of feeling expressed by Members of this House has not gone unheard. I have listened carefully to the points made and I will continue to consider the importance of regulatory autonomy and to ensure that this is respected.

I would still highlight that the Bill, as drafted and amended by the Government, does give powers to regulators where they need them. If the Bill can be improved through scrutiny, who would not want it to be? However, the Bill is already consistent with the intended effects of the amendment, so I suggest that there is no need for an additional clause. I therefore ask that this amendment be withdrawn.