Professional Qualifications Bill [HL]

Lord Hunt of Kings Heath Excerpts

2nd reading
Tuesday 25th May 2021 Lords Chamber

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

My Lords, I thank the Minister. I declare an interest as a member of the GMC board, although I will be speaking in a personal capacity on the Bill. I welcome my noble friend Lady Blake to the Front Bench and congratulate her on an excellent opening speech.

There are three points that I want to make about the Bill. First, I want to ask the Minister about its core purpose. We have been told that the Bill

“creates a new framework for the recognition of professional qualifications and experience gained overseas and takes steps to reform regulators’ practice. It will revoke and replace the interim system for professional qualifications that derives from the UK’s membership of the EU.”

We have also been told that the Bill

“is part of the Government’s plans to exercise the UK’s new regulatory flexibility”.

What is less clear is how is it to be done. We are in the dark, as my noble friend Lady Blake said.

The Minister also said that we need to remove outdated legislation. Is it the Government’s intention to streamline the approval process for professional qualifications? How does this fit with immigration law and the remit of the Home Office? The noble Lord, Lord Purvis, made some very interesting points about this and the perversity of Her Majesty’s Government’s position in relation to skill shortages.

The Bill aims to ensure the safety of service provision, provide consumer confidence and help maintain professional standards, but if they are to be maintained in the post-EU world is there a trade-off between these different objectives? In the closing remarks of his introduction to the Bill, the Minister referred to the determination of the Government to allow the autonomy of regulators to continue. That is very welcome, but how does that stand beside the Government’s wish to reform regulators’ practice? Will the Minister clear up that point?

My second point concerns the use of secondary legislation in the Bill. This is a very small Bill of 14 pages and 19 clauses, and it is littered with regulation-making powers. The core of the Bill is contained in Clauses 1 3, 4, 5 and 6, which relate to the “Power to provide for individuals to be treated as having UK qualifications”, the “Implementation of international recognition agreements”, the “Authorisation to enter into regulator recognition agreements” and the “Revocation of general EU system of recognition of overseas qualifications”. All these clauses are subject to a series of regulation-making powers. Then there is Clause 13, which is a Henry VIII clause par excellence. It essentially gives Ministers power to modify through regulations any piece of primary legislation. This has not been justified by the Government. All we have been told is that it is necessary because

“Changes would need to be integrated into the existing legislative scheme for given profession because a single approach covering all affected professions would not be ‘practicable’.”


That is not good enough.

I refer the Minister to the recent report of the Secondary Legislation Scrutiny Committee, which during the course of the past year has become increasingly concerned about the growing tendency of the Government to introduce skeleton Bills in which broad delegated powers are sought in lieu of policy detail. As a result, in September, the Secondary Legislation Scrutiny Committee, the Constitution Committee and the Delegated Powers and Regulatory Reform Committee wrote to Michael Gove and Mr Rees-Mogg raising their concerns. The committees said that, even taking into account the exceptional circumstances of withdrawal from the EU and the pandemic,

“the bills which have been introduced into Parliament in response to them have been extraordinary in terms of the extent to which they have permitted a shift of power from the legislature to the executive. … It is a constitutionally fundamental issue, not only in terms of the relationship between Parliament and the executive but also more widely in terms of the relationship of trust between government and the public at large. Without substantive provision on the face of the Bill, Parliament is being asked to pass legislation without knowing how the powers conferred may be exercised by ministers and so without knowing what impact the legislation may have on members of the public affected by it.”

Mr Rees-Mogg acknowledged that, “as these are exceptional times”, such Bills,

“do not necessarily provide a model example of how Parliament would like to see legislation brought forward”

and that

“Bills with substantial powers, though sometimes essential, should not be a tool to cover imperfect policy development.”

The implication of the use of skeleton legislation is that the instruments made under it may contain substantial policy changes which would be more appropriately subject to the greater scrutiny afforded to primary legislation.

Reflecting the conclusions of its correspondence with Mr Rees-Mogg, the scrutiny committee urged 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.’ ”

Quite. It will be interesting to see what the Delegated Powers and Regulatory Reform Committee has to say about the Bill when it reports shortly. In advance of its forthcoming report, I suggest to the Minister that either the Government flesh out the policy details in the Bill or the case for a sunset clause becomes very clear. I support my noble friend Lady Blake’s argument for draft statutory instruments to be published before Report.

I now turn to my third point, which is of specific concern to the GMC and other health regulators. Clause 1 gives power to the appropriate national authority—in this case, the Secretary of State for Health and Social Care—to draft regulations and introduce a process that would require the GMC and other regulators to assess whether someone has a particular overseas qualification that is “substantially the same” as a UK qualification. In the case of the GMC, a person so deemed would then be eligible to practise as a doctor in the UK. This is because the GMC does not require those with UK qualifications to do anything further to demonstrate that they have the necessary knowledge and skills for registration. This could give automatic entitlement to practise to international medical graduates on the same basis as UK graduates.

Currently, the GMC has a very rigorous process for assessing whether international medical graduates are safe and fit to practise in the UK. Under this Bill, that rigorous assessment could be completely lost. It would be very difficult for an agency such as the GMC, given that it has more than 10,000 international medical graduates applying for registration each year, and it would be impossible to assess the number of qualifications from countries as diverse as India, Pakistan, Nigeria, UAE et cetera and their many medical schools. This could also affect postgraduate qualifications and the potential for those qualifications to be captured by the Bill and subsequent regulations. There is concern that the Bill as drafted could force health professional regulators to accept professionals into UK practice in a way that compromises patient safety and could have an impact on workforce supply by requiring them formally to assess thousands of qualifications in detail in order to allow professionals to practise in the UK.

The Minister said the Bill does not restrict the autonomy of regulators, although, as I have already pointed out, in the documentation accompanying the Bill the Government say it

“takes steps to reform regulators’ practices”.

We need to know what exactly the Government mean when they say that the autonomy of regulators will not be impacted. Today, the Minister said he would table an amendment before Committee to deal with this. That is welcome and I look forward to seeing that amendment, but I hope that the Minister will be able to answer on some of the more substantive issues in relation to the Bill.

Professional Qualifications Bill [HL]

Lord Hunt of Kings Heath Excerpts

Committee stage
Wednesday 9th June 2021 Lords Chamber

The second point concerns the UK legal services market. As this House knows well, this is very valuable to the UK economy, particularly because of the international work it services, both in the UK and by those qualified as English lawyers in overseas countries. It is often important for people to be qualified as English lawyers, given the prevalence of English law in international agreements and standard form contracts. Thus the position of the legal profession, particularly under the Legal Services Act, gives the regulators wide and extensive powers, leaving them to balance the necessary interest involved, particularly the consideration of reciprocal arrangements. It is important that none of these powers is constrained. Can the Minister clarify why recognition of overseas legal qualifications cannot be left to the regulators without the need for the extensive powers in this Bill? If they are needed, they should be very narrowly confined by primary legislation and not left to these sweeping Henry VIII powers.

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

My Lords, as we are at the start of the Committee stage, I declare my interest as a board member of the GMC, although I am speaking on the Bill in a personal capacity.

I support Amendment 1. We have a real problem with the skeletal nature of the Bill and the extensive use of Henry VIII clauses. It is a great pleasure to follow the noble and learned Lord, Lord Thomas of Cwmgiedd, whose powerful intervention illustrated some of the problems. The power in Clause 1 could be used to make provision about a huge range of matters relating to applications to practise a profession. Extensive powers are delegated to Ministers. As the Delegated Powers and Regulatory Reform Committee has pointed out, neither the Explanatory Memorandum nor the Explanatory Note gives adequate reasons for the extensive use of Executive power. I will come back to this during Committee, but the Minister should at least have a shot at explaining why Executive powers are needed to this extent. So far, we have not heard a reason.

The Delegated Powers Committee illustrated the example of the dentistry profession. Dentistry is one of the professions for which regulation is provided in primary legislation. The Dentists Act 1984 includes a provision to recognise overseas qualifications. Holders of overseas qualifications who wish to qualify for registration as dentists in the UK must not only have a recognised overseas diploma but, as a starting point, they must sit an examination to satisfy the regulator that they have the requisite knowledge and skill. They must also satisfy the regulator as to their identity, good character, good health and knowledge of English. The committee says that Clause 1 appears to 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 necessary to enable demand for the service of the profession in question to be met without unreasonable delay. I do not need to remind the Minister that the dentistry profession is under acute pressure.

My reading of the Minister’s amendments in Clause 1, which are welcome, is that some protection is provided, because regulations can specify additional conditions for a professional’s overseas qualifications to be met. But, of course, that depends on the Minister taking the necessary action. It also appears that Clause 3 could be used to implement an international agreement that encompassed an override in respect of the actions of a regulator. The noble Lord, Lord Fox, referred to this, and, again, we will come back to Clause 3 later today.

So there is a need to safeguard and protect the integrity of the regulators and uphold the public interest in high standards among the professions covered by the Bill. The noble Lord, Lord Fox, has attempted to draft such protection, and I hope that the Minister will be sympathetic. If not, he needs to realise that the current construct of the Bill will simply not do, and the House would be right to insist on further protections.

[Lord Purvis of Tweed (LD)]

My Lords, the noble Baroness, Lady Noakes, raised her consistent point, for which I give her respect, about declaratory statements within legislation. My noble friend Lord Fox, in bringing forward his amendment, which I had the pleasure to cosign, is justified in this instance, given what other noble Lords have said within this group. The Government have not provided the level of detail about the potential use of the extensive Henry VIII powers under this legislation in particular. Therefore, a statement that these powers should not be used to impact upon the independence of our regulators is of great importance.

That has been not endorsed but reflected in the Delegated Powers and Regulatory Reform Committee’s report. As has been my wont over many years in this place, I have taken great joy in reading Delegated Powers and Regulatory Reform Committee reports—I did not have grey hair when I came into this place. It is rare that a committee report such as this can be so clear. On the Trade Bill, the Minister was given great credit when the committee cited support of the Government and raised no issues, but in this area, it could not be clearer. So the calls of the noble Lord, Lord Hunt, and my noble friend Lord Fox for greater clarity are important.

The committee, in paragraph 8, said of the fact that no adequate explanation was given:

“This is particularly disappointing given that … 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.”


Therefore, a statement such as this amendment is clearer. So we agree with the committee that a much fuller explanation of the provision to be made in regulations under Clause 1, and the justification for that provision, is required.

The Government did not need to go down this route, as their own impact assessment indicated. The impact assessment started, under the Minister’s signature on the opening page, by giving reasons for the alternative approaches, and included:

“For recognition of overseas qualifications: a fixed (one size fits all) approach; and a risk/benefit system.”


I think there would be common ground between most of us on these Benches and the Minister on risk/benefit systems usually being best. But no, the Government have opted for “one size fits all”.

The impact assessment goes on:

“For regulators and international recognition agreements: arrangements for specific regulators.”


As we will no doubt hear in other groups, specific regulators have specific legislative underpinning for their own purpose and require scrutiny on a case by case basis. But the Government rejected it. And they rejected for information transparency a non-legislative guidance-based approach. So it is the Government’s choice to go down this route, which opens up a lot of areas where they should be much clearer in indicating the intent behind the regulation-making powers they want.

The Minister said on Second Reading that this Bill, while a framework, was the result of a considered view from reflecting and consulting with regulators as well as more widely with stakeholders. So I was frankly amazed to read that there is currently, for the healthcare professions, a live consultation on regulatory reform. It started on 24 March and closes a week today; it has not even closed yet. That consultation, Regulating Healthcare Professionals, Protecting the Public, touches on governance, the operating framework, fees, education and training, registration and fitness to practise. At paragraph 10, on the governance and operation framework, it says that the Government are

“proposing to devolve many of the decisions about day to day procedures to the regulators themselves, whilst ensuring that they continue to meet their overarching objective to protect the public.”

But this Bill provides the Government with Henry VIII powers to do exactly the opposite when they choose. So I ask the Minister: which is the Government’s intent—the one in the Bill we are scrutinising at the moment or the consultation that has not yet closed?

Paragraph 17 says that the regulators

“are accountable to the Privy Council … and the PSA provides oversight of how they carry out their regulatory functions. The Privy Council has default powers to direct most of the regulators if they fail to deliver their objectives. However, this does not apply to the GDC and GPhC. We propose that the GDC and GPhC are included within the Privy Council’s remit.”

So the Government, in their consultation, are seeking to expand the role of the Privy Council with its default powers, while this Bill is going in the opposite direction. So could the Minister explain what the relationship will be between the regulation-making powers in this Bill and the Professional Standards Authority? Can these powers be made to change the Professional Standards Authority’s legislative standing and how it provides oversight to the regulatory bodies it provides for? And what is this Bill’s relationship with the Privy Council? The Privy Council, as the Government say in their own live consultation at the moment, is the body these regulators are accountable to.

Paragraph 23 says:

“The proposals set out in this document aim to give regulators greater flexibility to determine how they set standards for, and quality assure, education and training.”


But the powers under this Bill will provide—in a way the Government have not yet provided information on—Henry VIII powers to completely determine what they are for the set purposes. So restrictions on the Government’s ability to use those powers which will impact upon this legislation are necessary.

The element of the consultation I thought was quite extraordinary is that the Government themselves say that when it comes to regulation of the medical professions they will go down a different route to change the legislation. The Government’s consultation says:

“We intend to implement … changes for each of the healthcare professional regulators through secondary legislation made under Section 60 of the Health Act 1999.”


There is no reference to any mechanisms under the Professional Qualifications Bill, so what is the Government’s intent for the Henry VIII powers under this Bill, with their already publicly stated intent to use the Health Act for medical?

Finally, the Government’s consultation closes with this:

“While we are required to hold a public consultation on all draft secondary legislation made using the Section 60 powers, we are taking this opportunity to seek views on the proposals that will, in due course, apply to all the professional regulators and all regulated healthcare professionals.”


On Second Reading, the noble Baroness, Lady Hayter, made a very valid request of the Minister, which was to see some draft regulations about the intent before we conclude our scrutiny of this Bill in this House. The Minister refused her.

The Government’s consultation says that they are

“required to hold a public consultation on all draft secondary legislation”

when they change the regulation of health professionals, so what is the Government’s position on this? The Government say, in paragraph 407 of that document:

“We also intend to commission a review of the professions that are currently regulated in the UK, to consider whether statutory regulation remains appropriate for these professions.”


Clearly that is not the case, because the Government have decided so, as I said at the start of my contribution. Can the Minister tell us what the status of this consultation is, if so many issues have been pre-decided by the Bill?

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[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.

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

My Lords, I refer to my interest as a member of the GMC board for the sake of this group of amendments. Like the noble Lord, Lord Patel, I welcome the government amendments and thank the Minister for his discussions with the regulator. I listened with great interest to the comments and queries of the noble Baroness, Lady McIntosh, about the amendments. In a sense, they reflect the generic and skeletal nature of this Bill, which means that each clause has to relate to many different professions. Frankly, I think it argues for a more detailed Bill, which would meet her issues as well as mine.

The argument that the GMC and others have put is very simple. Clause 1 currently gives power to the appropriate national authority—in the case of health regulators, the Secretary of State for Health and Social Care—to draft regulations to introduce a process that will require them to assess whether someone has a particular overseas qualification that is substantially the same as a UK qualification. In the case of the GMC, a person so deemed would then be eligible to practise as a doctor in the UK. That is because the GMC does not require those with UK qualifications to do anything further to demonstrate that they have the necessary knowledge and skills for registration. This could give an automatic entitlement to practise, under the current provision of Clause 1, for international medical graduates on the same basis as UK graduates. Currently, GMC has a very rigorous process for assessing whether the international medical graduate is safe and fit to practise. Without these amendments, it would be almost impossible for the GMC to manage operationally, with 10,000 international medical graduates applying for registration each year. It would be virtually impossible to assess this number of qualifications from countries as diverse as India, Pakistan, Nigeria, UAE and many others, with hundreds of different medical schools. The concern was that the Bill as drafted could force health profession regulators to accept professionals into UK practice in a way that compromised patient safety.

The Minister was sympathetic, and I am very grateful to him. However, there remains the issue of the relationship of Clause 3 to Clause 1, which we will come on to debate. In relation to the amendment from the noble Lord, Lord Lansley, he clearly has a point. I hope the Minister might take this away and give it further thought.

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[Lord Hope of Craighead (CB)]

My Lords, I have added my name to Amendment 27, which is principally in the name of the noble Baroness, Lady Hayter of Kentish Town. There is a lot to be said in this particularly obscure Bill for the publication of regulations in advance of their being made, so that people can see them in draft and consider them before they take effect. Regulators themselves would of course be consulted if this amendment is passed, but publication gives the opportunity for the wider public to scrutinise them, and no doubt inform this House and the other place, before the crucial point comes when the regulations are made. So I support this particular amendment.

There is a lot of force in the point just made by the noble Baroness, Lady Noakes, that to confine this provision to the priority professions perhaps misses the point. Perhaps there should be a requirement across the board. There are other important professions that are not in this list. I am not claiming this particularly for the legal profession, as there are certainly other professions that are absent from this list, given the enormously long list of people who are within the purview of this Bill. The amendment may be a starting point but, for what it is worth, I support it.

[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.

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Debate on whether Clause 1, as amended, should stand part of the Bill.

[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.

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I hope my explanation has provided noble Lords with further clarity as to why this approach is necessary and proportionate. I live in hope that I will be able to convince the House of this as we move forward. Of course I will be happy to follow up on any additional points. I commend this clause, as amended in my name, to stand part of the Bill.

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

My Lords, this has been an interesting debate and I am grateful to the Minister. At heart, he is saying that the Bill is proportionate, but the speeches from the noble Baroness, Lady Noakes, the noble Lord, Lord Fox, and my noble friend Lady Hayter have undermined that point. It is clear that many of the current regulators already have the necessary powers, so the question must be: if the powers are required only for a limited number of regulators, why has a catch-all approach in the legislation been chosen by the Government? This gives us a clue to the kind of amendments that we will need to push on Report.

The Minister is grateful for the scrutiny the Bill has been given by the Delegated Powers Committee. I must say that, in my ministerial experience, it is not a committee whose recommendations are to be dismissed lightly. He has dismissed all of them in respect of the use of Henry VIII clauses and has given no explanation of why the Explanatory Memorandum is so inadequate. As for the offer of affirmative regulations in relation to the use of Henry VIII clauses, fewer than 10 defeats of secondary legislation have ever taken place in your Lordships’ House, as the noble Lord, Lord Fox, said. It makes not a jot of difference whether the procedure is affirmative or negative, because we can debate every negative SI. This is an alarming use of Henry VIII clauses.

I hope firmly that, on Report, we will amend the Bill to make it proportionate in the way that it needs to be. I am grateful to all noble Lords.

Clause 1, as amended, agreed.

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[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.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I shall speak chiefly to Amendments 20 and 21 in the name of the noble Baroness, Lady Hayter, to which I have attached my name. These amendments are also supported by the noble Lord, Lord Hunt, and the noble Baroness, Lady Finlay, which gives them both cross-party and non-party backing. I have mentioned that all noble Lords received a letter yesterday from the noble Lord, Lord Grimstone, and the noble Baroness, Lady Berridge, with her Department for Education hat on, about the Bill and the skills strategy. Its second paragraph says:

“Let me reassure you the Bill is not a short cut to addressing skills development for the UK.”


We can see that the Government have really understood some of the deep concerns that have been expressed by your Lordships’ House about this Bill.

The letter makes reference to the Skills and Post-16 Education Bill. I am not going to start its Second Reading now, although we have to look at whether ladening people with more debt is the answer to our skills shortage.

Another sentence in the second last substantive paragraph of this letter says:

“To meet demand across certain regulated professions, we need appropriately qualified professionals from both domestic and overseas sources.”


In relation to Amendments 20 and 21 and my earlier Amendment 25, do the Government accept that, particularly for certain key—basic, you might say—professions central to our health and well-being, such as nurses and doctors as a general category, we should be training at least enough medical professionals to meet our needs? That sentence would suggest that that is not something that the Government accept.

I come briefly to a couple of details about these amendments, particularly Amendment 21, which is quite valuable and perhaps adds more than my Amendment 51. They highlight important issues, one of which is in subsection (d), which asks for a report on the number of the professionals in the group being considered who are female and male. It is important that we highlight gender disparities. There has been a lot of discussion about medical professions, but I have interest in both the farming and the building and engineering areas, where we have huge skills shortages and there are very serious gender disparities in recruitment.

As I listened to the noble Baroness, Lady Finlay, talking about the complexities of modern medical approaches, I was thinking of some of the engineers I have been speaking to recently about the complexity of building ventilation, something that Covid-19 has very much brought into focus and which we clearly need to be thinking a great deal more about. There is a high level of complexity and a high level of skill is required; you have to understand each individual room and each individual climatic environment. It is a very complex area and requires very high levels of skills and training. I think also that when we are thinking about agriculture—we will be talking about this in the Environment Bill and in the agriculture Bill—we are talking about agri-ecological approaches and agriforestry approaches, not just one field of monoculture that you whack the plough over and you whack the sprayer over, but very complex management of ecosystems that requires a very high degree of skills that we simply do not have now. It requires training and may require people being brought in.

I also want to highlight, as the noble Baroness, Lady Hayter, did, retention rates. Of course, nursing is the obvious area, but there is also a big issue in medicine that needs to much more attention. This is a really important amendment. The support for it demonstrates that, as does the Government reaction, but I think we need a much clearer picture of what the Government’s overall approach is. Are they determined to meet the challenge of training enough people for our needs?

Professional Qualifications Bill [HL]

Lord Hunt of Kings Heath Excerpts

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.

[Baroness Fraser of Craigmaddie (Con)]

My Lords, I come to this with a slightly different perspective. Many Members of this House have contributed to the Committee stage of the debate from a ministerial, government or legislative perspective, but I would like to look at it from what my noble friend Lady Noakes might say is the consumer or regulator perspective.

In the debates on the Bill, many noble Lords have acknowledged that we are dealing with a particularly complex landscape. We have had contributions from specialist clinicians, accountants and others, but we have not heard from airline pilots, driving instructors, slaughterers or pig farmers, who are included in this legislation. The list of professions is a given. As the noble Lord, Lord Fox, acknowledged, Clause 3 deals with hypotheticals—with future agreements about which we do not yet know, and on the terms of which we can only hypothesise. My noble friend Lord Lansley pointed out how important the mobility of professionals is and will increasingly become in this complex landscape. Many of the regulators of these numerous and diverse professions are governed by pre-existing legislative frameworks. I cannot see how it would be possible to deliver in the Bill the necessary future changes which all these individual professions might desire.

At every opportunity, my noble friend the Minister has rightly stressed the autonomy and independence of the regulators. Indeed, he has described this as running,

“like a golden thread throughout the whole Bill.”—[Official Report, 9/6/21; col. 1453.]

I do not believe that Clause 3 alters this in any way. Many regulators already have robust processes for overseas applicants who wish to join the UK register. They are able to judge the equivalence of qualifications and have already built up considerable experience and relationships with overseas regulators. These regulators would be in an excellent position to advise the Government if and when they felt it necessary to bring forward further secondary legislation. I have spoken to the Health and Care Professions Council, which feels that it is one that could help the Government to shape and hone this secondary legislation to ensure that it met its intended purpose and did not conflict with existing standards, but enhanced, protected and maintained patient safety priorities. It would be reassuring if the Minister could set out how he envisages that a formal process of consultation and engagement would work.

Last week, when he was talking about powers under Clause 3, the Minister referenced European trade forums and ad hoc consultations with interested parties. BEIS also organises regulator forums which provide updates on the negotiations and terms of trade deals. Some regulators—the Health and Care Professions Council is one, and there may be others; I am afraid that I do not know—are not members of either the ETAG or the BEIS regulator forum. There may be others of which I am not aware. Can the Minister give regulators such as these some confidence as to how these powers could be used in future by successive Governments?

Specifically, I understand that the power in Clause 3 is limited to the professional qualification elements of international agreements. In his response to the Delegated Powers and Regulatory Reform Committee’s third report, the Minister gave the example of the UK’s original offer to the EU as the furthest the Government would or could go to require regulators

“to put in place processes to consider applications … from professionals in the EU.”

This is key. Clause 3 ensures that processes are put in place. There should be a clearly outlined route to registration. I cannot find any obligation for a regulator to recognise overseas professionals if they are not satisfied that all their own independently set and required standards have been met. However, as I have already said, experts and regulators are keen to help and work with the Government to provide the necessary expertise and to advise on all aspects of professional regulation equivalence of overseas qualifications which may be required in preparation for and during trade negotiations.

Some have therefore expressed concerns—which have been shared by other Members of this House—that Clause 3 could lead to a situation in which this expertise would be bypassed. Can the Minister enable us to understand further the impact which the provisions in Clause 3 are likely to have? Can he offer any further reassurances as to the context in which these Clause 3 provisions would be used and how the Government intend to work with regulators to inform these trade negotiations on recognition of qualifications?

--- Later in debate ---

[Lord Grimstone of Boscobel (Con)]

I thank my noble friend for those two comments and the spirit in which they are offered. I realise that my point about trust is not a personal matter in relation to me but the more general point my noble friend makes. On letters—I will not dwell on this too long—I think the short gap between the two stages of this Committee, and this Committee being on a Monday, was a particularly difficult practical point. The officials have literally been working day and night on this; that is why not all the letters were available until the end of Sunday. We copied all of them to Front-Bench spokesmen, but I take my noble friend’s point that in future, as well as putting them in the Library, it would be convenient for noble Lords if letters were copied to them—albeit sometimes, when there is such a restricted period between the two days of Committee, they may arrive later than any of us would wish.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am grateful to the Minister for his response. He said he would consider this between now and Report, which I am very grateful for. He then referred to Clause 4, making the point that it will be useful in encouraging regulators to make mutual recognition agreements, but that there will be no obligation and it will be up to the regulators to agree. However, we are debating Clause 3, and our problem is its open-ended nature, which on my reading means that Ministers can simply, through regulations, tell regulators what to do. I will not go into the issue of trust again, but does the Minister recognise that there is a problem with Clause 3? Is he prepared to look at its wording to make it clear that it cannot be used to override the protections he has already put into the Bill through Clause 1?

[Lord Grimstone of Boscobel (Con)]

I thank the noble Lord for that point. Of course, anyone who listened to this debate could not but hear what noble Lords have said on this. As I said, I will reflect on this matter.

--- Later in debate ---

Debate on whether Clause 4 should stand part of the Bill.

[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?

--- Later in debate ---

[Lord Grimstone of Boscobel (Con)]

The noble Lord’s colleague the noble Lord, Lord Purvis, cautioned me on the previous day of Committee never to use “never” at the Dispatch Box, and I am trying to remember his strictures on that. The reason I did not answer the question directly is that I am not going to do so unless I am completely sure of my facts on this. I do not believe that it is possible for Clause 3 to creep its way into Clause 4 but, so that I can give the noble Lord, Lord Fox, a completely definitive answer, I will write to him, and I will copy that letter to all other noble Lords. Indeed, I will hand deliver it to noble Lords who wish to get it particularly expeditiously.

[Lord Hunt of Kings Heath (Lab)]

I suspect that we should be wary of what we wish for, and that the Minister is now going to take his revenge in the number of letters that we will receive over what I hope will be a very pleasant weekend. I do not think we can take this any further because he has said that he will respond to the noble Lord, Lord Fox, whose question, alongside that of the noble Baroness, Lady Hayter, seems to me the core of the argument. The only other question is about pig farmers as opposed to beef farmers; the Minister said that at some point pig farmers were covered by the legislation but beef farmers were not. I suggest to the noble Baroness that we leave as an eternal mystery why that should be.

Clause 4 agreed.

--- Later in debate ---

[Baroness Fraser of Craigmaddie (Con)]

My Lords, I rather hope that the Minister will—to use the word of the Bill—assuage my fears that these amendments are not required. If noble Lords will bear with me, I must say I really struggled to understand, when reading these amendments and looking at the Bill, how it could possibly be that we would put any barriers, hurdles or anything in the way of people whose qualifications have been recognised under previous EU regulations. It is really concerning to me.

To turn to my regulator of choice, the Health and Care Professions Council registered 551 new registrants from the EEA and Switzerland last year—the year of Covid—and 951 the year before. That is around 22% and 26%, respectively, of the total number of new registrants each year. It would be a tragedy if there were any barriers to those who have been registered as fit to practice and they were not able to do so.

Let us not kid ourselves that it is a simple path to registration for professionals from the EEA and Switzerland even with the previous EU regulations in place. These professionals have already experienced uncertainty in their status due to the UK’s exit from the EU. Hopefully, most will have applied for settled status, but let us, as I say, not put any more barriers in their way. Even a whiff that their qualifications might no longer be recognised or that they may have to go through other processes could be enough to send these valued people back to their own countries.

I am also not clear whether it is proposed that there will be a transitional period between the existing and the proposed routes to registration for overseas registrants. If so, can further light be shone on this? I plead that any transition from one system to the other is as smooth and painless for professionals and regulators as possible. I look forward to being assuaged.

[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?

Professional Qualifications Bill [HL]

Lord Hunt of Kings Heath Excerpts

Committee stage
Tuesday 22nd June 2021 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

I think I am in even greater despair now than I was before the Minister responded. Is this a “better regulation” Bill or is it about recognising incoming professionals from other countries, who can then have the right to practise here?

I find some of the Minister’s words extraordinary: he said that he felt uncomfortable, that he has apologised and that he has eaten humble pie. I thought he was leading up to saying, “And therefore we will, if you don’t mind, put your amendments to one side and come up with our own words”. I thought he was leading up to saying, “Actually, you’ve got it right”. Because he also said that—I am not very good at writing quickly, so I may not have got it quite right—as a Minister, he needs to know to whom the Bill applies. But so do the professions: the farriers, the pig farmers and the chicken farmers, abroad or here, need to know, because this is all about bringing people here from another country. It is not about our sixth-formers wanting to know, if they want to become a professional, whether they should do an apprenticeship, go to university or go to a college of further education. It is not about that.

I think it was this Government who set up the Better Regulation Task Force, or maybe it was ours. Perhaps my noble friend Lord Hunt will help me.

[Lord Hunt of Kings Heath (Lab)]

We definitely had one of those.

[Baroness Hayter of Kentish Town (Lab)]

I am assured that we had one of those, so I cannot even blame this Government. But we do have a Better Regulation Task Force, so if there is no list of regulators at the moment, what on earth has that task force been doing in all the time that it existed under a Labour Government and for the 11 years that it has existed under a Conservative Government? That is exactly the sort of job it should be doing.

If we really need a list of regulators, so that young people can know whether to go to an apprenticeship or get their articles—that is what they used to be called, but I do not think they do those any more; the noble Lord, Lord Palmer would remember—I would understand that. But that is not what this Bill is about. It is about giving powers to a Minister to say to a regulator: “You will do something to accept people coming from another country to use the qualifications they have obtained”—whether by apprenticeship or by degree, or by sitting next to Harry or whatever—“to come here”, either because we have a skills shortage or because we are signing a deal with Australia, or wherever. That is what the Bill is about. It is not about helping our sixth-formers know where to get a job.

--- Later in debate ---

[Lord Hunt of Kings Heath (Lab)]

My Lords, I support the noble Baroness, Lady McIntosh, in her request for a round table with regulators between Committee and Report. That would be very helpful indeed.

I just want to ask the Minister about Clause 9. I remind the House of my membership of the GMC board. The Minister will know that, particularly in the health sector, there are regulators that currently regulate for the whole of the United Kingdom, but the devolved Administrations could decide to take over regulatory authority if they wished under the legislation that led to the devolved Administrations; that is particularly the case in relation to Scotland. That being so, will this clause apply to the interrelationship between the regulators in both countries? If the answer is yes, that makes the case for this clause because, clearly, one of the issues relates particularly to the National Health Service. Although it is run by four different government departments, none the less it has some UK-wide characteristics. The key one I believe is an ethos, but secondly there is the ability of staff in the NHS from the different countries to cross the border without any problem in relation to qualifications.

[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.

--- Later in debate ---

Debate on whether Clause 13 should stand part of the Bill.

[Lord Hunt of Kings Heath (Lab)]

My Lords, in introducing this debate, I would like to apologise to my noble friend. I do not think that I was a member of the Better Regulation Task Force. I was the deregulation Minister in the Department of Health for a glorious period of four years, during which time we got rid of a few regulations—but I put through four major Bills to make up for that. Having done that, I was promoted, and I became a Better Regulation Minister in the DWP, the MoJ, Defra and finally DECC, where we were regularly hauled across to Downing Street to be given an absolute bollocking by the Prime Minister for why we were not doing enough to deregulate. Of course, for the other three months, we were called across and asked why we were not doing more to legislate to deal with a specific concern of Downing Street. Life does not change much. This Government talk a lot about deregulation but, my goodness me, they do not half like regulations when it comes to giving Ministers powers. That is really what I would like to explore in this stand part debate.

Clearly, we have had a very illuminating debate this afternoon. Despite the best intentions of the Minister, there is a sense of unease about the Bill, its rationale, the professions to be covered and its drafting. I say to the Minister that I would particularly note the comments from the noble and learned Lord, Lord Hope, when he talked about the unsatisfactory nature of the Bill. Coming from him, those were very telling comments indeed.

My own concern, as I have said, is about the extensive powers being given to Ministers throughout this Bill, and Clause 13 is an example. Clause 13(1)(a), taken together with the definition of legislation in Clause 16(1), means that the powers to which the Delegated Powers Committee has drawn the attention of the House in its report are Henry VIII powers. The powers conferred by Clause 5(2), Clause 6(1) and Clause 10(4) are also Henry VIII powers.

This is just one example of the increasing trend for Ministers to take powers unto themselves without adequate justification or explanation. I know that the Minister has sent a supplementary memorandum to the Delegated Powers Committee, and that we have had amendments to Clause 1, which have been very welcome. But it is noticeable that the Delegated Powers Committee, having considered that, says in its follow-up report that it none the less wishes to continue

“to press the Minister to provide … a much fuller explanation about the provision that could be made in regulations under clause 1; and”—

here it seems to me is the nub—

“full justification for all such provision—including that which amends primary legislation—being made by statutory instrument instead of by primary legislation with its attendant scrutiny.”

I do not want to repeat what I said at Second Reading or in our earlier debates, but the report of the Secondary Legislation Scrutiny Committee must be seen in parallel with the reports of the Delegated Powers Committee. It complains about the number of pieces of legislation that have been introduced, partly in response to the pandemic but partly because of our withdrawal from the EU, which are extraordinary in the powers they give to Ministers. In this Bill so far, the Minister has very courteously defended the use of these Henry VIII powers on what I would call technocratic grounds—in other words, “We need the powers because they are demand-led, and demand will change over time.”

As we have heard today, it is not possible at this moment for the Government to state explicitly where these powers will be used or what organisations or qualifications they will apply to. The Minister has explained the process he is still going through, but you could make the same arguments for any piece of legislation. The question I put to him is this: are we not seeing a general trend towards continuously bringing skeletal Bills in which extensive powers are given to Ministers and of which Parliament has very little opportunity to really go into the details?

The Minister has relied on the need for this Bill in relation to the specific needs of the different regulators, but he has not responded to the constitutional issues raised by it. I have instituted this debate to allow him to do so.

[Lord Patel (CB) [V]]

My Lords, to add to what my friend, the noble Lord, Lord Hunt of Kings Heath, has said, I will concentrate mainly on Henry VIII powers, which apply to other clauses in the Bill, not just Clause 13.

Henry VIII clauses allow Ministers to amend or repeal provisions in an Act of Parliament using secondary legislation. I tried to look up what the laws might say about Henry VIII powers being adopted. For those not familiar with them, Halsbury’s Laws of England provides the following description:

“As a general rule, primary legislation amends other primary legislation but leaves subordinate legislation to amend itself; subordinate legislation frequently amends other subordinate legislation, but mostly does not amend primary legislation.


Powers conferred by statute cannot be assigned without statutory authority, and whether they can be delegated depends on the construction of the statute. It will be assumed by the courts that Parliament does not delegate legislative or other power unless it does so by express provision or unavoidable implication; and provisions conferring power will be construed strictly against the person on whom the power is conferred.


An Act of Parliament may contain a power to make subordinate legislation which in turn can amend the enabling Act or another piece of primary legislation. The clause of the Bill containing such a provision allowing primary legislation to be amended by secondary legislation is commonly termed a ‘Henry VIII clause’ and the power itself is likewise called a ‘Henry VIII power’”—


terms familiar to us all. It goes on:

“The normal principles of statutory construction apply to Henry VIII powers but the courts will apply a restrictive interpretation if there is any doubt as to the scope of the power.”


The noble and learned Lord, Lord Thomas, who is speaking on this group, may wish to comment on that.

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[Lord Grimstone of Boscobel (Con)]

I thank my noble friend for that comment. As we know, these questions are difficult to answer in the abstract. What I can say is that, where primary legislation is needed, it will be used. I do not think that it is reasonable to ask me to define which aspects will be covered by primary legislation at this stage for agreements that have not yet been finalised.

[Lord Hunt of Kings Heath (Lab)]

My Lords, this has proven to be a very interesting debate, and it has moved us on a little. The noble Lord, Lord Patel, was very clear about why we are concerned about the use of Henry VIII clauses. He should take the noble and learned Lord, Lord Thomas, saying that he could not better his words as a pretty good compliment.

It seems to me that there are two things here. The first is the actual wording of Clause 13. My noble friend Lord Davies did a great service when he went through it. I reread it and, frankly, found it very hard to understand. When the noble and learned Lord, Lord Thomas, also says that he does not fully understand Clause 13, I suspect that that means that no one does, except perhaps one parliamentary counsel and possibly an official in the noble Lord’s department who issued the instructions. The fact is that this is poor legislation if it is almost impossible to work through what this clause actually means.

At heart, this is not just an academic debate. The noble and learned Lord, Lord Thomas, put his finger on it when he said that at the heart of this is the independence of our professions. One of the great successes that we in the UK enjoy, both in terms of prestige and financially, is the way in which many of our senior professions are viewed globally. The independence of those professions is one reason why that is so. That is what makes the Bill so important and why we are all rather worried about the current situation with it.

My noble friend Lady Hayter said that, if we leave it as it is, we are leaving any changes in the future without sufficient parliamentary scrutiny. The noble Baroness, Lady McIntosh, asked for draft regulations; I do not think that she received an answer to that, but it was a very important point.

The Minister has promised a full explanation on Report, which we will now get earlier, but he needs to come forward with changes to the Bill because it will clearly not get through after its current process through your Lordships’ House. There is a question for noble Lords generally about what to do with it.

The noble Lord, Lord Lansley, asked a pertinent question in relation to trade deals and the Government’s preference for primary or secondary legislation. The Minister answered him very carefully by saying that there would be primary legislation when needed, which is not quite the answer that I think the noble Lord was seeking. Of course, he had an earlier amendment that seeks to deal with this in one way; I have a sunset clause, which is another way of dealing with the problems in the Bill. There may be other approaches, but, between now and Report, we have to do something to protect the independence of our professions and Parliament’s role in scrutinising the provisions in the Bill.

Clause 13 agreed.

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Moved by

[Lord Hunt of Kings Heath]

59: After Clause 15, insert the following new Clause—
“Expiry
(1) The appropriate national authority may not make regulations under this Act after a period of four years beginning with the day on which this Act is passed.(2) Any regulations made under this Act expire on the day after that period.”

[Lord Hunt of Kings Heath (Lab)]

My Lords, I will carry on with the theme of the previous debate, which was very interesting in relation to statutory instruments and how far they afford us an opportunity to scrutinise provisions in the Bill.

I believe one solution to the challenges facing the Bill is to sunset the whole Bill. I am putting this forward as a proposition for discussion now between Committee and Report. It is not the only solution. The noble Lord, Lord Lansley, also had an interesting amendment earlier which seeks to deal with the issue in a slightly different way, but nonetheless is worthy of consideration.

The Government’s defence, if you like, of parliamentary scrutiny is that the orders that come as a result of the use of the Act, when enacted, will come before Parliament in the form of statutory instruments, and most of them will be affirmative. The noble Baroness, Lady Randerson, asked what that means in practice. Since the Second World War, five statutory instruments have been defeated in your Lordships’ House. We also had the debate on tax credits in 2015 where we agreed two amendments to the Motion to approve the tax credit regulations. They sought essentially to delay consideration of the regulations until certain conditions were met. The Government were very cross about that, but the fact is that they decided not to proceed and one can say that the Lords defeated that statutory instrument, so six since the Second World War.

The Minister says, “Ah, but Parliament can debate them and scrutinise them in relation to an affirmative instrument”, and I accept that most will be affirmative, it means nothing. All we get is an hour’s debate, at most. We can put a regret Motion down, but what does that mean? Ministers take no account of regret Motions. It makes us feel better because we have a vote and defeat the Government, but it is meaningless.

This is the whole problem with the parliamentary appraisal of secondary legislation. It was not really considered when the Parliament Act was first introduced. We have an absolute veto, but because it is an absolute veto we feel very reluctant to use it. In effect we have no leverage whatsoever. As the noble Baroness said, apart from the imaginative use of the 2015 regulations, we cannot amend statutory instruments either. My suggestion is that the only way to deal with this, if the whole of the Bill needs to go forward, is a sunset clause.

Sunset clauses, as the noble Lord, Lord Purvis, reminded us on the second day in Committee, are not unknown to the Minister, who has just taken through the Trade Act, which has sunset provisions. The power there, I gather, is for five years, with an option for another five years through regulation. It simply ensures that if changes are made in that period, Parliament has the opportunity to scrutinise them again through debating further primary legislation. The noble Lord, Lord Purvis, asked for some form of comparable treatment in this Bill, and the Minister said that there is a difference, in that the trade agreements in the Trade Act are rollover agreements, many of which will be replaced in due course by other agreements. He argued that what we are talking about in this Bill are mutual recognition agreements rather than rollover agreements, and that there is a distinct difference. Up to a point, Minister, up to a point. It strikes me that there are some parallels. We currently have a status quo in relation to the existing regulation of professional qualifications. In time, we can expect more mutual recognition agreements to come forward and, as with the Trade Act, surely it is not unreasonable for Parliament to be able to scrutinise them properly and in primary legislation after a period of years.

Sunset clauses provide an expiry date for legislation and are used in circumstances where it is felt that Parliament should be given time to decide on its merits —again, after a fixed period. This is certainly one avenue we need to explore if the Bill is to be taken any further. I beg to move.

[Lord Patel (CB) [V]]

My Lords, I support the amendment of the noble Lord, Lord Hunt of Kings Heath, which would insert a sunset clause into the Bill. Why do I say that? Because many of its clauses, as we have already discussed, take Henry VIII powers and the intent of those clauses is not quite clear. The sunset clause overview states that a such a clause provides an expiry date for legislation:

“Sunset clauses are included in legislation when it is felt that Parliament should have the chance to decide on its merits again after a fixed period.”


Sunset clauses let Parliament reassess the legislation at a later date, once it is clear how it has been used in practice and how suitable it is to the policy challenge at hand.

The introduction of a sunset clause is also a useful method of reaching political compromise. It is clear from our discussions that we do not quite agree with a lot of the clauses. Reaching political compromise in the case of a controversial or sensitive provision allows the Government to make the provision they need for the time being, while building in a statutory guarantee of review of and parliamentary control over the Bill. In that respect, it is also good for the Government: they get their Bill through but it includes a sunset clause to allow Parliament greater scrutiny.

I was interested to see the guidance on the use of sunset clauses. The Government published guidance, through BEIS, on the better regulation framework in March 2020. This was written for government departments and explains how the better regulation system should operate. Section 1.5 of the guidance provides the following information on the use of review and sunset clauses:

“At an early stage in policy development,


government departments

“will need to consider whether either a statutory review clause is required or a sunset clause is appropriate … Sunset clauses are not a requirement, but a tool for policy makers to use where they are deemed appropriate and impose an automatic expiry of the measure on a specified date … and ensure scrutiny of the decision on whether or not to renew the regulation.”

On that basis, a sunset clause is the ideal way to deal with this Bill and the powers it takes through its different clauses, and I therefore support it.

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[Lord Grimstone of Boscobel (Con)]

My Lords, I thank the noble Lord, Lord Hunt of Kings Heath, for his amendment and the noble Lord, Lord Patel, for the views he expressed.

The amendment would impose a time limit of four years on appropriate national authorities making regulations under this Bill, once enacted, and regulations already made under the powers in the Bill would expire the day after that four-year period is completed. Of course, this is familiar to many as a sunset clause. However, sunset clauses are typically insurance policies against powers that, at some point in the future, may be no longer suitable to deliver the policy aims which required the legislation to be made.

The Trade Act, which we have heard referred to by a number of noble Lords, with its rollover of international agreements to be replaced in due course, is an example of legislation in which a sunset clause that can be renewed by Parliament is appropriate. However, this Bill and the delegated powers within it are drafted deliberately to endure, futureproof the legislation and provide flexibility to make necessary changes over time. I even like to think of the Bill as having a sunrise —not sunset—effect because it is intended to help our professionals enter new markets and deliver a global Britain, having ended the one-sided, EU-derived temporary arrangements. I therefore feel that a sunset provision is at odds with the purpose of the Bill.

Returning to debate a new professional qualifications Bill in four years’ time because this Bill no longer provides for that flexibility, would, I respectfully suggest, not be the best use of the expertise of this House. Of course, I have nothing against such clauses where they are appropriately used, but inclusion here would undermine the ability of the UK Government and devolved Administrations to respond swiftly to changing demands for services. It would potentially thwart the implementation of future regulator recognition agreements, which, as we know, may not in reality be implemented for some years after a free trade agreement is agreed.

There is also a risk that in providing for the expiry of regulations made under Clause 3 to implement international agreements, the UK may be left without provision upholding the commitments that we have made under those agreements, thereby placing us in breach of their terms. As I remarked to the noble Lord, Lord Purvis of Tweed, on day two in Committee, I believe that sunset clauses would not be appropriate in these circumstances. By sunsetting, we limit the opportunity for service trade and constrain regulators’ abilities to exploit opportunities with their international counterparts, for example through Clause 4.

The powers in the Bill are designed to support a flexible response as the regulatory landscape evolves over time. Curtailing the ability to do that through a time limit would put us into regulatory limbo rather than preparing us for the future. We know that the Bill will allow the UK to replace the interim system of recognition currently in operation. Stripping away regulation that the Bill creates to replace the EU system would only create a new gap.

Finally, if the intent behind this amendment is indeed to mitigate any potential misuse of powers, I reiterate that the powers detailed in the Bill are carefully tailored to its requirements; they are focused on a specific purpose. I believe that the reason why some noble Lords are arguing for a sunset clause is that they think it is a rotten Bill: “If we are not able to kill it off now, why not do so in four years’ time?” I prefer to share the ambition of the noble Lord, Lord Fox—I was pleased to hear him state it so clearly—that the Bill should leave our House in good shape, do what it is intended to do and be fit for purpose. On that basis, I hope that the noble Lord, Lord Hunt, will agree that a sunset clause is not appropriate and will consider withdrawing his amendment.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am grateful to the Minister and to noble Lords who have taken part in this debate. The Minister is an eternal optimist and I liked his description of the Bill as a sunrise Bill. I say at once that I agree with the noble Lord, Lord Fox, that a sunset clause is not to be desired. The aim is to reach some consensus on the way forward. My reading is that the Minister is not going to get the Bill through at the moment, as it will be heavily amended on Report. This is a House of Lords starter Bill so the Parliament Act does not apply, and—

[Baroness Hayter of Kentish Town (Lab)]

What?

[Lord Hunt of Kings Heath (Lab)]

No, I do not think that it applies to Lords starters; it applies to Commons starters.

Rather than just repeating the reasons why the Government need the clauses as they are, I hope they will start to negotiate because that is the way to get through this. There are ways in which the Bill can be amended to modify the executive provisions, but the Government have to be prepared to move. I thought the noble Lord, Lord Patel, was very wise in repeating to the Minister the wise words of his own better regulation advice on where sunset clauses can be appropriate. My noble friend Lady Blake asked where there will be a review mechanism at all if there is no sunset point.

Ultimately, it seems that we have reached a crunch position where the House is unhappy and will vote to take chunks out of the Bill, one way or another, unless we can reach a satisfactory solution. Clearly, the Bill is a Lords starter for one reason: it is a Bill on which we should be able to come together because at heart we all want to see professional qualifications in this country maintaining independence, a very high standard and interchangeability with other countries, where that is appropriate. Although noble Lords may have some doubts about this Bill, I do not think there is any argument about the intent of where the Government seek to go. We now need to see movement from the Government. Having said that, I beg leave to withdraw my amendment.

Amendment 59 withdrawn.