Professional Qualifications Bill [HL]

Lord Lansley Excerpts

Committee stage
Wednesday 9th June 2021 Lords Chamber

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I have requests to speak after the Minister from the noble Lords, Lord Lansley and Lord Purvis of Tweed. I call the noble Lord, Lord Lansley.

[Lord Lansley (Con)]

My Lords, not having participated in this group, I am prompted by the remarks of the noble Lord, Lord Purvis of Tweed, on the regulation of healthcare professionals, to which I do not think my noble friend responded. I have here the Law Commission report of April 2014—my noble friend will be aware of it—on the issues referred to by the noble Lord, which included the recommendation that Section 60 of the Health Act 1999, and indeed the powers of the Privy Council, should be substantially removed from the regulation of healthcare professions. What is the Government’s intention on the regulation of healthcare professionals? Do they intend to implement the Law Commission report seven years later, or do they now intend to proceed without any reference to it?

[Lord Grimstone of Boscobel (Con)]

My Lords, if I may, because it is a point of some detail, I will write to my noble friend and place a copy of my letter in the Library.

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[Lord Lansley (Con)]

My Lords, I apologise that I was not able to be present at Second Reading, so I will not detain noble Lords with my views about the Bill in general terms. However, I hope that I will be forgiven if I have not been able to say those things previously.

Amendment 11 in my name seeks to amend government Amendment 10. My noble friend the Minister has explained helpfully and clearly how the Government have brought forward amendments even before the Committee stage to points made at Second Reading and by the regulators. That is extremely helpful, and I agree with them. There was always a risk that if there was a generic recognition of overseas qualifications or experience, an individual would be deemed to have met the required standard in the United Kingdom, but not necessarily by that individual’s experience, qualifications or other factors. My noble friend referred to things such as language assessment. When I was Secretary of State for Health, we were closely engaged in our dealings on this with other countries in the European Union. It is simply not the case that because someone undertakes qualifications that are deemed to be the equivalent of those in the United Kingdom, people are able to practise here in a way that is not impaired. We set about trying to remedy that and we need to make sure that we do not introduce legislation which would reintroduce the same kind of problem.

I encourage noble Lords to look at government Amendment 10. I understand what is intended, but I think that there is a drafting problem. The determinations set out in proposed subsections (3A) (b) (i) and (ii) state that the qualifications and experience are substantially the same or may fall short. Those determinations are to be made

“(i) only on the basis of the overseas qualifications or overseas experience concerned, or (ii) on such other basis”.

The inclusion of the word “only” means either qualifications and experience on the one hand or on another basis on the other hand, but it cannot be both. I do not see why that is the case. To me, it is transparent that we may be looking for an individual to have overseas qualifications and experience, but the regulator should have the flexibility to look at other assessments or experience. For example, I can think of someone I met while I was in hospital not so long ago who looked after me. He was a medically qualified practitioner from overseas, but he was working as a technician in the NHS because his qualification was not recognised for our purposes. However, his experience here in the United Kingdom treating patients should have been taken into account in assessing, for example, his linguistic competence and other experience.

If, for example, a regulator wanted to look at overseas qualifications and experience, as well as UK experience, why should it not be able to do that? The inclusion of the word “only” precludes such a combination on its plain meaning. That may not be the Government’s intention, and obviously I will not press this amendment, but I hope that, at the very least, my noble friend will undertake to look at this and say that leaving out the word “only” might enable this amendment to the Bill to do what he wishes it to do.

[Baroness Garden of Frognal (LD)]

My Lords, I thank the Minister for the government amendments in this group. I want to speak in particular to Amendments 2 and 3, but having just listened to the noble Lord, Lord Lansley, I can see that Amendment 11 has an awful lot to commend it.

At Second Reading, I expressed concern that proficiency in English was not a prerequisite for individuals to be treated as having UK qualifications. I was prepared to put down an amendment to that effect, but I readily acknowledge that this is a matter much better left to the regulators than put in the Bill. The addition of the words “any other specified condition” leaves this in the hands of the regulators. It is hoped that many of them will recognise the importance that anyone working in the UK should speak and understand English. It is important not only for professional but for social reasons. We are still, alas, a hopelessly monolingual country, and any overseas worker who can speak only their language will have a difficult time both with their fellow workers and with sorting out their everyday life, however brilliantly they are qualified and however much experience they have.

Clause 1 concerns qualifications and experience, but leaves it with the regulator to consider whether experience makes up for any lack of appropriate qualifications. These amendments put the onus exactly where it should be—on the regulator. We on these Benches support the amendments.

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[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

I call the noble Lord, Lansley, and then I shall call the noble Lord, Lord Purvis, who has requested to speak after the Minister.

[Lord Lansley (Con)]

My Lords, I am grateful to all noble Lords who have kindly approved of the argument made in Amendment 11 and to my noble friend for saying that he and colleagues will look at it again. I think that what they suggest is not the case. As it stands, Amendment 10 allows regulators to make a determination based on overseas qualifications and experience alone, but it runs the risk, which is a different risk, of preventing them combining that with other factors and assessments and bringing them together in the determination. That is the point. The removal of the word “only” would not, in my view, prevent a regulator making a determination based solely on overseas qualifications and experience.

I am grateful to the noble Baroness, Lady Hayter. If the Minister is willing not to move Amendment 10 today and to look at it again and bring it back on Report, I think that would be the best way to proceed. I think we all know what we want to achieve, which is to give the regulators flexibility. It is purely a drafting issue, and I am sure we will not need to be detained at length on Report if the draftsman, is, in the event, clear that the effect is as the Minister wishes it to be. He has not moved Amendment 10 yet, and I hope he will not move it when we reach it.

[Lord Grimstone of Boscobel (Con)]

I think I have in fact moved Amendment 10. I commended amendments to the House and begged to move.

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[Baroness Noakes (Con)]

My Lords, the noble Lord, Lord Palmer of Childs Hill, who is no longer in his place, explained the concerns which underpinned his Amendment 12, debated earlier this afternoon: namely that regulations could impose unreasonable burdens on a regulated profession to remedy a lack of appropriate qualification or experience in overseas professionals. My amendment has the same core concern. It was drafted after reading similar concerns expressed by the British Dental Association, which highlighted the burdens that could be imposed on regulators if they are required to assess professionals or overseas qualifications, or to develop new recognition agreements, to comply with regulations under Clause 1.

Even if regulators have autonomy over individuals who can practice, the regulations under Clause 1 could well impose burdens and costs in making the regulators set up operating processes to carry out the assessments to make the decisions, including having to assess the suitability of overseas awarding institutions, as well as the nature of practical experience that comes with individuals who wish to practice. In addition, it was noted that the costs which were incurred in any such new activity are likely to end up being borne by existing members. Regulators get the majority of their income from membership fees, and asking existing members to shoulder the costs of funding a problem of having too few professionals—which is what Clause 1 is said to be for—is, at the very least, unfair. That is why my amendment refers to the impact on existing members of the profession.

Amendment 9 would add a new determination that the regulated profession must make: that the additional processes of making good any deficiency in an overseas qualification

“can be met without … unreasonable costs or other burdens on”

the regulated profession or the existing members of that profession. I have expressed this in terms of costs or burdens because a regulated profession might, for example, have a shortage of suitable individuals who could carry out the processes and who therefore could not be obtained at any cost. It would actually be imposing an unreasonable burden for the regulated profession to bear. Importantly, my amendment places the judgment in the hands of the regulated profession.

Clause 2 refers to “unreasonable delays or charges”. These are words that my noble friend Lord Lansley wishes to delete with his Amendment 18, which is also in this group. But from my perspective, it should always be the regulated profession, and not the Secretary of State or other national authority, who should make that judgment. I look forward to hearing what my noble friend has to say about his Amendment 18, but I see the place for assessing burdens and costs, and that that assessment should be made by the regulated profession. I beg to move.

[Lord Lansley (Con)]

My Lords, I am very glad to speak to my Amendment 18 in this group.

In relation to Amendment 9, moved by my noble friend Lady Noakes, I think she has a point. Somewhere, we should be taking account of the costs that are imposed on regulators, and by extension as they are imposed on the professionals who are themselves regulated. In the previous group, the noble Baroness, Lady Randerson, referred to the material in the impact assessment on that point. Personally, I do not think Amendment 9 puts it in the right place, with great respect to my noble friend. There is a good point for putting it perhaps slightly later in Clause 1, and we may come back to this on Report. It seems that it certainly should be taken into account in the making of regulations under Clause 1; it just is not, at the moment. For example, there are things as to fees being paid in connection with an application but nothing to do with the regulations taking account of the costs on those regulated, including those who are currently regulated in that profession.

Why have I brought forward Amendment 18? The reason is that it relates to the inclusion of

“without unreasonable delays or charges”

at the end of Clause 2(2). What does that do? It is trying to define the circumstances where demand for a professional service is not being met. My fundamental problem with it is that it illustrates this by reference to unreasonable delays or charges. The implication is that this is the criterion by which one measures whether professional services are in sufficient supply.

For example, in relation to the health service, it is very hard to measure why there are delays for treatment. Sometimes they occur because of lack of workforce and sometimes for completely different reasons. It may be incredibly difficult to ascribe delays to simply having insufficient overseas applicants for a particular profession in the health service. Charges will be even more difficult since we do not charge. It may be possible to do this for dentistry but not for most other healthcare professions, since we do not charge consumers for access to services.

Interestingly, my noble friend Lord Grimstone wrote a letter to the Delegated Powers Committee—I think last Thursday—which is in its latest report, published on Monday. There is a paragraph which comes exactly to this point, in which he says:

“The Committee sought further clarification on the point that this demand needs to be met without unreasonable delays or charges. Those words make it clear that regulations can be made where the demand for the services of the profession is, strictly speaking, being met but the consumers of those services are experiencing unreasonable delays or having to pay high charges.”


Demand for those services under those circumstances is not, “strictly speaking, being met”; it is not being met. We do not need to write “unreasonable delays or charges” into the Bill for it to be evident that, in circumstances where insufficient members of a profession are providing services, there are delays in accessing those services; that is plainly the case.

As the end of the same paragraph, the Minister says, rather tellingly, that unreasonable charges and delays

“are illustrative of the considerations that the appropriate national authority would make in relation to this condition.”

“Illustrative” is not what the Bill says. It does not say “for example”, which it might well say. It says

“met without unreasonable delays or charges.”

It specifies those factors, so I think we should take them out. If unreasonable delays or high charges to consumers result from a lack of professional supply and that can be remedied by overseas applications, the appropriate national authority can make such a determination. It does not need the Bill to reference “unreasonable delays or charges” for that to happen.

I hope my noble friend will recognise that, in this respect, I am not trying to argue that delays or extra charges are not important; they are very important and may well be the principle determination one looks for in some professions. In others, one looks for other things. We should simply take those words out when the time comes—I hope we will—and the appropriate national authority will, if necessary, properly consult on what the demand for a professional service may be and the circumstances in which it is not being met.

[Lord Bhatia (Non-Afl) [V]]

My Lords, the Explanatory Notes state about Clause 9 that

“a regulator in one part of the UK could ask an equivalent regulator in another part of the UK for information relating to an individual’s fitness to practise and, where applicable, any instances of professional sanctions. This provision ensures that regulators in all parts of the UK have access to information that helps them fulfil their obligations.”

Does the Minister agree that, in view of the duty of all regulators to co-operate with each other, it should be mandatory for all four nations to allow any professions to practise in all four nations without any hindrance?

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[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

Before inviting the Committee to consider the withdrawal of the amendment, I call the noble Lord, Lord Lansley, who was attempting to come in after the Minister.

[Lord Lansley (Con)]

I am grateful. I just wanted to make a point after the Minister because I think she made a fundamental error in suggesting that if we were to take out the words

“without unreasonable delays or charges”

from this subsection unreasonable delays or high charges would not be able to be considered as factors in determining whether demand is met. On the contrary, they will be considered with other factors. They would not be excluded.

We will clearly come back to this again on Report because the reply to the debate was not satisfactory, and we will have to write these things out in more detail. Will my noble friend at least just agree that removing those words does not mean that those factors are not taken into account?

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We think about what has been happening in our medical services through necessity throughout the pandemic. A great deal of medical consultations are now being conducted online. There is no requirement for the person doing that; they can be literally anywhere in the world. If we start to think about what has happened to so many professionals in the UK who have seen their employment conditions subjected to casualisation and zero hours contracts—I am thinking here of a lot of university lecturers—we see that how professionals are employed has changed enormously. I suggest to your Lordships that we need to think about how that is going to play out differently in the context of this Bill.

[Lord Lansley (Con)]

My Lords, I am glad to have the opportunity to follow the noble Baroness, Lady Bennett of Manor Castle. She was right to say that we will probably need to think a little further about the subsequent scrutiny arrangements for the operation of this legislation. I fear that the amendments we have at the moment probably do not do it.

Perhaps with the exception of Amendment 54, they all suffer from the difficulty of proposing subsequent scrutiny of the impact of this legislation on issues which will themselves be impacted by a wide range of other legislation, administration and circumstances. It is difficult to isolate the impact of this legislation in particular. When we re-examine it we should, if not legislating, certainly be looking to Ministers to say that we should focus on understanding how it is working after a suitable period. One of the conventional processes would be five-year, post-legislative scrutiny. That would probably be the appropriate route down which to go.

I want to say a word about the issue of consultation, which came up under the previous group. There are a number of amendments in this group, but I am pretty sure that the proposers of Amendments 25 and 29 will recognise that they do not provide appropriate consultation opportunities. If there is a mutual recognition agreement in an international agreement with another country, it will have been subject to its own consultation arrangements. To have another consultation on the regulations to implement it would be inappropriate. It is also inappropriate and unnecessary to consult on regulations simply to get rid of the existing EU directives or retained EU legislation.

Turning to Amendments 14 and 19, in both instances there is a good case for consultation. I am not sure whether it needs to be legislated for in statute, but we too often assume that there is a public law duty to consult when there is not. It may be better to have a statutory duty to consult even if it is framed, pretty much as these provisions are, in broad and general terms, just to ensure that Ministers go through the appropriate processes at the right time. I am quite supportive of Amendments 14 and 19 for these purposes, particularly Amendment 19.

We had a previous discussion about demand. You cannot look at demand for professional services without actually asking consumers, so making sure that consumers are consulted in the process would be a good approach. I hope that Ministers will at least look at whether there is a place for a statutory duty to consult on regulations under Clause 1, and on the question of demand for professional services being met.

[Lord Patel (CB) [V]]

My Lords, I will speak mainly to Amendment 53 in the name of the noble Lord, Lord Fox. I had hoped that he would speak before me, so I could hear his views on the amendment, but I support its intent. I might have some reservations regarding whether a report should be made within 12 months or a longer period, as others have mentioned. I also agree with the noble Lord, Lord Lansley, that it is not a question of the impact on innovations of this Bill alone, but the cumulative impact of other Bills, to which this one might add. That is the issue I wish to explore.

The United Kingdom has a big ambition to be a science superpower, as has been said many times by our Prime Minister. In fact, he is the second Prime Minister, including Harold Wilson, to have mentioned science as a driving force for the United Kingdom and the UK’s leading in science. So, we have a great ambition: we are going to invest 2.4% of GDP by 2027 and, depending on the spending settlement to be announced shortly, it looks as though there will be £22 billion for R&D leading up to 2024. A significant amount of resources is being put in. So, what drives innovation? The drivers of innovation are research infrastructure; funding; importantly, career development opportunities for early-career researchers—I emphasise early-career; and collaboration and knowledge exchange through institutions in different countries working together.

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I hope the Minister will think again about this and clarify the provision because it is extremely important in dealing with matters that may lead to criminal penalties to know exactly where one stands. The rule of law requires clarity, and the lack of clarity is the subject of the amendment in the name of the noble Lord, Lord Foulkes, which I support.

[Lord Lansley (Con)]

My Lords, I am glad to have the opportunity to contribute to this short debate on these amendments. I will say a quick word on each, if I may.

First, on Amendment 16, I entirely support my noble friend’s wish for us to enter into mutual recognition of professional qualifications with the European Union but, as they say, it takes two to tango. We wanted to do it and our policy intention was to do it, but it was not the European Union’s intention to agree to it. I do not doubt that it would remain the Government’s intention to enter into such an agreement if it were possible to do so. I regret that putting this into the Bill does not change any of those circumstances. As it happens, I would not put it into the Bill at this place either. It is essentially contingent upon Clause 3 and our ability to negotiate an international recognition agreement with European Union countries in any case. It may be we have to do it with European Union countries individually, but I agree with the objective. It seems to me that Clause 4 allows regulators to enter into recognition agreements, and that is the mechanism. If the Law Society or anybody else wants to do it, they should seek approval from the Government to enter into such an agreement in that way.

I do not understand why we need Amendment 23 in the name of the noble Lord, Lord Foulkes. This is about international recognition agreements. It is not specifically about the European Union and it may not apply to European Union member states. It is not required to be consistent with the future relationship with the European Union. All it means is that when we allow the recognition of overseas applicants to our professions, the professional regulators may charge them fees in the way that they charge fees to UK applicants. I think that is perfectly reasonable, so I would not accept that amendment.

On Amendment 47, the noble and learned Lord, Lord Hope of Craighead, was probably not here when we discussed the Trade (Disclosure of Information) Act 2020, nor when we dealt with similar provisions in the Trade Act 2021. My noble friend on the Front Bench, the noble Lord, Lord Purvis, and I remember those discussions very well.

Supreme Court judgments have determined that where, for example, data protection legislation requires the protection of legislation—and there are specific duties relating to that—if there are other statutory gateways that might create a statutory provision permitting the disclosure of information which could contravene the data protection legislation, the position the court arrived at was that the decision-makers should end up being able to balance the statutory gateway in the additional statute with the originating data protection legislation. That is where it ended up, and that is why “taken into account” is the appropriate language. It would not be “considered a defence”, because that would conclude that it had not been weighed properly in the way that the court expected. It expected these two things to be considered alongside one another. That is where we ended up on the Trade (Disclosure of Information) Act, for reasons I understood then, and as far as I can see, this drafting is absolutely consistent with those pieces of legislation.

[Baroness Bennett of Manor Castle (GP)]

My Lords, I am glad of the opportunity to contribute to this short debate, but I will be brief and forbear commenting on Amendments 23 and 47, as noble Lords have already covered them and I cannot really add anything. I want to speak specifically to Amendment 16 and I thank the noble Baroness, Lady McIntosh of Pickering, for tabling it.

I think there should be pressure on the appropriate national authorities in the Bill to seek reciprocal agreements. It is something that certainly needs to be discussed and pushed. Other noble Lords have spoken about the situation of established professionals and the professional bodies. I want to take a moment to think about young people recently qualified, and those young people who have been through such difficult times and who will qualify in the next year or two, for whom there should be the opportunity, as a young professional, to go out and to travel—the European Union countries being the obvious place, being relatively close to home, relatively cheap, et cetera. It is crucial to those young people to have opportunities to stretch their wings, to learn new things and to develop professionally.

We have seen a lot of problems arising as a result of Covid. Covid is being blamed for lack of progress in a great many things, but it has also suppressed demand, and we are going to see a real explosion of demand as it becomes more possible to travel and to move. I will not get started on the great loss of free movement for the people of the UK, but given that we have so curtailed the opportunities for our young people, it is crucial that we do everything possible to open up, or reopen, professional opportunities for people to grow, to develop, to travel. Of course, if the Government do not want to consider this from any other angle, it is obviously of considerable importance if those people return to the UK and work here with those skills or, indeed, if they remain overseas but keep their UK contacts, which will be very important for UK business and professionals.

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[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?

[Lord Lansley (Con)]

My Lords, I am pleased to follow the noble Baroness, Lady Bennett of Manor Castle, again, and to follow up the points she made about skills shortages. We spoke in an earlier debate about the formula in Clause 2 relating to the condition that there is, in effect, unmet demand. I think that at the time I expressed the view that it was unsatisfactory to define that by reference to unreasonable delay and higher charges. This gives us another opportunity to look at that. I think there is merit in the formula in Amendment 21; I just think we may need to develop it a little and make it very clear that in Clause 2—Section 2, as it will be—where a Minister or the appropriate national authority is considering regulations, the condition is that there is unmet demand in that profession. What is meant by that?

The letter that the Minister sent to the Delegated Powers Committee last week said:

“The Government plans to consider various factors in determining ‘unmet demand’, and further detail on our approach is provided in the Government’s policy statement that accompanies the Bill.”


Well, the policy statement, in a very curious paragraph, says:

“Our proposed framework is intended to enable professions to meet the demands placed on them in all parts of the UK without undue cost or delay.”


In that particular context, the cost and delay appear to relate to the cost and delay of the regulators. It is rather strange.

The policy statement goes on to say that where they make these determinations, “Considerations for” what they refer to as “priority professions”—in other words, where there is demand for skills from overseas—

“will include: whether the profession is on the shortage occupation list; vacancy levels; workforce modelling and skills forecasting; and whether there are other ways that professions might address shortages … We will allow for these determinations to evolve”.

Well, some of those factors are indeed those that the noble Baroness has included in Amendment 21—not completely, but I think we are getting there. So I suggest that the route down which we should go on Report is to amend Clause 2 to say “These are the various factors that appropriate national authorities should consider”. It would not be an exhaustive list but of course, in doing so, they should also consult the regulators and the professions in relation to this.

Professional Qualifications Bill [HL]

Lord Lansley Excerpts

Committee stage
Monday 14th June 2021 Lords Chamber

[Lord Fox (LD)]

My Lords, I rise to oppose Clause 3 standing part of the Bill. Judging from the range of people who have co-signed this amendment and those who would have signed it had there been space, this issue is not confined to one set of Benches. I thank the noble Lords, Lord Trees and Lord Hunt of Kings Heath, and the noble Baroness, Lady Noakes, for signing it. I also acknowledge the craft of the noble Lord, Lord Lansley, in drafting Amendment 56; I will obviously allow him to speak for himself, but it may well be another way of thinking about the clause. We have already heard about some of the issues in Clause 3, as your Lordships have sought to make amendments. Of course, we are in Henry VIII territory again, but there are particular concerns about this clause, which I will highlight.

The Minister told us at Second Reading:

“Clause 3 will enable UK Ministers and devolved Administrations to implement the recognition of professional qualifications elements of international agreements.”


He said:

“To be frank, we acknowledge that these powers are broad”.—[Official Report, 25/5/21; col. 910.]


Broad is a good word. In one of his many letters—for which I thank the Minister, as they arrived at five o’clock yesterday evening—he again confirms the importance of the autonomy of regulators, which he has returned to on many occasions.

However, this clause essentially gives the Government of the day the ability to make whatever provision is required to implement any international recognition agreement to which the UK becomes a party. It includes the power to amend primary legislation and retained EU legislation. If regulators were indeed autonomous, what exactly would this clause be implementing? To date, I am aware of no indications from the Minister or his department as to the nature of what changes might be necessary to implement such international agreements. Perhaps he can give us some examples but, in the meantime, we have to assume that nothing is off the table and that the autonomy of the regulators would not be protected in any way if this Bill were passed with this clause in it.

When I first read the Bill, I was already more than somewhat disquieted by this clause but when I read the Delegated Powers Committee report my fears were amplified. I cannot match its authority, but its damning condemnation of the scale of the powers in this clause are really quite important and should be taken into consideration. As the committee said:

“Implementation of such agreements in UK domestic law could raise matters of considerable public interest (for example, were such agreements to give preference to professional qualifications issued in particular countries—perhaps linked to trade deals).”


In the letter to the noble Lord, Lord Lansley, the Minister confirms that the clause will ensure that the Government can meet their international commitments. Would I be right in assuming that this would include mobility frameworks in free trade agreements?

The DPRRC report goes on to highlight the lack of clarity in changes that secondary legislation would make in domestic law, or the scale of change this law might exert on the 160 or so professions in question by international regulation agreements that the committee implicitly linked to trade deals. It then explains that the justification for this delegation is the fact that the nature of future international agreements cannot be known, which we will come back to. Additionally, the DPRRC notes that the Government fail to try to explain why these

“‘necessary changes’ should …be made by Ministerial regulations rather than by Act of Parliament.”

I expect the Minister to respond to this debate by saying that this clause is vital to Her Majesty’s Government’s plans to implement international trade agreements. But this is true only if the Government refuse to bring these agreements to Parliament for approval. How does he justify the taking of power for the Minister and not leaving it to a future Act of Parliament? How does he respond to the DPRRC’s telling conclusion that

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

[Lord Lansley (Con)]

My Lords, I am very glad to follow the noble Lord, Lord Fox. Like him, I was moved to draft Amendment 56 not least by the report of the Delegated Powers and Regulatory Reform Committee, which at the end of its consideration of Clause 3 said that it

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

The noble Lord was not proceeding entirely on his own initiative, and I entirely recognise where he is coming from.

I am coming from this as a Member of the International Agreements Committee. We are looking at many of the negotiations taking place between ourselves—now as an independent trading state—and other countries in creating international agreements. I do not personally see the world as divided into trade agreements and other agreements. We are increasingly entering into economic partnership agreements where, to be frank, the issue of services and the mobility of professionals should rightly play an increasing part in the economic partnerships that we forge with other countries. I want to see us enter into frameworks with other countries whereby our professionals can work there, and their professionals can work here. That will be, as trade often is, to the benefit of all parties.

On that basis, I considered whether this may be like the Trade Bill, in which we effectively gave Ministers the regulatory power to amend legislation and bring it in line with the continuity agreements we enter into. The conclusion I reached is that it is not like that; these are new agreements, not continuations of old ones. From our point of view, as a committee charged under CRaG with the scrutiny of new agreements, we are only too aware that this House has no capacity to block such a treaty, and no capacity to amend it.

Where secondary legislation is concerned, the House may have the power to stop statutory instruments, but in this territory, frankly, we would enter very difficult terrain. We would end up with our Government having signed an agreement with another country, intending to be bound by it under international law—indeed, it may have come into force—and, at that point, this House would have to consider its implementation in legislation. It seems to me, therefore, that the remedy of deleting Clause 3—and so requiring that every time Ministers want to implement an international recognition agreement in legislation, they have to do it in new primary legislation—is asking too much. As time goes on, there will clearly be framework international recognition agreements under which Ministers will regularly, or maybe frequently, need to change the secondary legislation affecting a range of professions and regulators.

My thinking was that we should—as we often do—allow Ministers the power to change the statutory instruments and secondary legislation relating to new international recognition agreements, but not the power to change primary legislation. That is why, instead of changing Clause 3 itself, Amendment 56 amends the regulation clause at the end, Clause 13, and would provide that the power in Clause 3 to implement international recognition agreements is a power to modify subordinate legislation but not primary legislation; that would be the effect of Amendment 56. Noble Lords may support the noble Lord, Lord Fox, and others in opposing Clause 3, but—if they share my belief that we will often be in this this territory, with Ministers having to change secondary legislation and much less frequently primary legislation, and that, when they do, they should secure the consent of the House, with our ability, as ever, to insert amendments, conditions and caveats, as well as sunshine clauses and so on—then they should in due course consider an amendment on the lines of Amendment 56 to strike a better balance, giving Ministers power but not a Henry VIII power.

[Lord Patel (CB) [V]]

My Lords, to start, I do not agree with the amendment tabled by the noble Lord, Lord Lansley. I clearly understand the point that he is trying to make; in fact, I have my name down with others to strike Clause 13 from the Bill, but we will come to that.

I will say in a minute why I do not agree with the noble Lord’s proposition but I do agree with that of the noble Lord, Lord Fox, and, absolutely, with his argument. It was clear from the comments of the Delegated Powers Committee that it considered this clause unnecessary. I personally think this is the key clause of the whole Bill; all the other clauses revolve around it.

--- Later in debate ---

[Lord Grimstone of Boscobel (Con)]

I thank the noble Lord for that comment. My belief is that this Bill applies only to our famous 50 regulators and the 160 professions, and that it is those regulators that are governed by law, but I will write to the noble Lord and send a copy to all Members of the Committee to confirm this.

On the point about sunset clauses, the trade agreements covered in the Trade Act were all rollover agreements, many of which will be replaced in due course by other agreements. The noble Lord will know that some of that process has started already and that what we are talking about here is mutual recognition agreements rather than rollover agreements in their entirety.

[Lord Lansley (Con)]

My Lords, I am grateful to my noble friend the Minister for his response to my Amendment 56. If I understand it correctly, he attributes to the professions legislation considerable complexity; for example, the supplementary delegated powers memorandum that the department submitted referenced the Dentists Act—a mix of primary legislation and secondary legislation. If this House accepted that there are practical reasons for providing a power of this kind to enable the amendment of both primary and secondary legislation, will my noble friend say that the Government will not use it as a precedent in relation to future legislation or future arrangements for the approval of trade agreements and other international agreements? There is a principle here: in future, as these trade agreements come through, where they impact on primary legislation, they should be implemented through primary legislation. Does my noble friend accept that this will not be cited as a precedent?

[Lord Grimstone of Boscobel (Con)]

That is certainly a helpful suggestion put forward by my noble friend. I will reflect on it.

--- Later in debate ---

Moved by

[Lord Lansley]

34A: After Clause 4, insert the following new Clause—
“Indemnity and insurance
In exercising functions under section 1 or 4, or under any regulations made under section 3, a regulator of a regulated profession must ensure that an individual is properly indemnified or insured against liabilities that may be incurred in the course of practising the profession.”

--- Later in debate ---

[Lord Lansley (Con)]

My Lords, this group has three amendments in it, two of which are in my name. The other amendment, in the name of the noble Baroness, Lady Garden of Frognal, strictly speaking, is not really related. Her amendment makes a perfectly good point, it seems to me; I will not dwell on it, as I am sure she will introduce it very effectively. It simply asks for language requirements to be something that the assistance centre provides information and assistance on, so it sounds perfectly reasonable.

Amendment 34A in my name is somewhat prompted by the Government’s amendments to Clause 1 that we debated last Wednesday. If noble Lords will recall, those looked at the risk that the Government acknowledged in their supplementary memorandum to the Delegated Powers and Regulatory Reform Committee. In paragraph 6, they said their amendments were

“to avoid the risk that clause 1 could allow an overseas-qualified individual to circumvent additional requirements that other legislation imposes, or allows a regulator to impose, on overseas-qualified individuals.”

That is, indeed, exactly the risk that was referred to, quite properly, at Second Reading and to which the Government responded.

What was added into Clause 1 was “and any other specified condition”. In its response to the supplementary memorandum, the Delegated Powers and Regulatory Reform said that, while it welcomed the amendment since it was intended to mitigate that risk, the appropriate conditions that were going to be added in were not specified. In part, Amendment 34A is part of a process of trying to tease out from my noble friend what is going to be in those conditions under Clause 1 that are in addition to the requirement for an overseas qualification or overseas experience to be substantially the same as UK qualifications and experience.

One of the things that I felt it was helpful to illustrate that is the question of indemnity insurance. That is what Amendment 34A relates to. For a number of regulators—especially of course, those that I am aware of, in the medical professions—there is a requirement on practitioners as part of their professional standards to have professional indemnity. Would this, for example, be one of the conditions that my noble friend would anticipate would be specified under Clause 1? That is by way of probing that situation.

Amendment 60A, however, is both to probe this issue rather more but also perhaps to make a suggestion to my noble friend when they are considering what might give further reassurance. Given the debates we have had last week and today, time and again noble Lords are saying that they remain concerned, notwithstanding the Government’s intentions and statements, that regulators will find that a consequence of the regulations under Clause 1 or as a consequence of Clause 3, which we have just been talking about, will be that they cannot impose or exercise the same control on overseas applicants to practise in the United Kingdom as would be the case for a UK applicant.

--- Later in debate ---

[Lord Lansley (Con)]

My Lords, I am grateful to all noble Lords who have participated in this short debate. I particularly thank the noble Lord, Lord Purvis of Tweed, and the noble Baroness, Lady Hayter of Kentish Town, for their support for the purposes of Amendment 60A. If we all agree that, when the time comes, the Government will specify all the necessary conditions under Clause 1 to ensure that, under all circumstances, regulators can make whatever judgments, impose whatever requirements, and seek whatever evidence they require for a fitness to practise decision, then Amendment 60A is not required. The difficulty is that, as the Delegated Powers and Regulatory Reform Committee said, we do not know the appropriate conditions that will be specified in Clause 1. Clause 3 powers could technically override them. We just know it is not the Government’s intention to do so, and they have provided assurances.

After Second Reading, my noble friend acted swiftly to amend Clause 1. That has provided substantial reassurance, but not quite enough. One route we might look at on Report is to see whether “any other specified condition” referred to in Clause 1(1) as amended might be further defined to make it absolutely clear that everything that contributes to professional standards and fitness to practise determinations and judgments by professional regulators should be encompassed within those conditions. The question is how to draft it without having to reproduce everything. This is the territory we are in, otherwise that is not the assurance that is in the Bill. We are simply living with a statement that has no definition within it.

I hope to engage my noble friend and other noble Lords further in discussion about how we might achieve the purposes that I think we all seek. As my noble friend said, we are in agreement about the intent; the question is whether the Bill provides not only the powers but the assurances necessary for regulators in future and clarity within the Bill. Insurance is a similar argument. Pending further discussions, I beg leave to withdraw the amendment.

Amendment 34A withdrawn.

Professional Qualifications Bill [HL]

Lord Lansley Excerpts

Committee stage
Tuesday 22nd June 2021 Lords Chamber

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

I have received one further request to speak after the Minister, from the noble Lord, Lord Lansley.

[Lord Lansley (Con)]

My Lords, I welcome what my noble friend had to say about returning to this issue on Report. When we do, given that, as the noble Lord, Lord Fox, said, it is our anticipation that future free trade agreements will be implemented in primary legislation, would my noble friend at that time also give us a guarantee that, where there is a choice between using primary legislation to make the necessary legislative changes to implement an international recognition agreement and using a power under this Bill, the Government will use the former to allow this House to scrutinise it in more detail?

[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.

Professional Qualifications Bill [HL]

Lord Lansley Excerpts

Report stage
Tuesday 9th November 2021 Lords Chamber

Moved by

[Lord Lansley]

11: Clause 13, page 10, line 20, after “modify” insert “subordinate or EU retained”

[Lord Lansley (Con)]

My Lords, there are three amendments in this group, characterised by the fact that they appear more or less in the same place in the Marshalled List. My Amendment 11, which leads the group, relates to the very specific point, to which we have referred on a number of occasions: whether secondary legislation, and regulations under the Act, should be able themselves to modify primary legislation. The amendment’s intention is of course to restrict that possibility and limit it to subordinate legislation and retained EU legislation. Of course, there is a separate power in relation to the very specific EU retained legislation relating to the recognition of overseas professional qualifications.

I will not make a long argument about this, because the time is late. Ministers will say that there is a lot of private legislation out there relating to these professions, but as it happens, we are amending the primary legislation relating to architects in the Bill. I am not sure to what extent, given all we know and have discovered about the processes of seeking to recognise professional qualifications from overseas, just how often they will need to amend primary legislation and whether it really is impossible to achieve it through a route that exposes the changes to primary legislation to the proper scrutiny of this House.

Because it is linked to this, I reiterate a point I made in Committee. Ministers will acquire a power under the Bill to implement international regulatory recognition agreements and these aspects of international trade agreements by secondary legislation. I hope that the Minister—I know it is his stated intention—would expect new significant trade agreements, wherever they impacted on our legislation, to be the subject of legislation brought forward for this purpose. I do not want us to find that the legislation we see in future relating to trade agreements leaves out the recognition of professional qualifications because it can be achieved through subordinate legislation and we are therefore not able to examine it in the same way as we can other issues relating to a trade agreement, through primary legislation.

I will not talk about the protection of regulator autonomy; that is very much for the noble Baroness, Lady Hayter, who raised these issues in detail in Committee, as did my noble friend Lady Noakes. I am rather grateful to my noble friend Lord Grimstone—as we are in many other respects—for bringing forward government Amendment 12, which would put a pretty cast-iron clause into the Bill to give the regulators the confidence about their future autonomy that they seek.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, like the noble Lord, Lord Lansley, I welcome Amendment 12, which the Minister will speak to shortly. As has been said, right from the start we worried about the independence of regulators and indeed, as I suggested earlier today, the Law Society still retains a slight frisson of concern there, although I note the Minister’s words. Regulators have been worried about their independent ability to decide who was fit to practise in this country and that that might be undermined by a government diktat to co-operate with another country to accept their professionals or to drop standards in order to meet a government trade objective. As the Minister mentioned earlier, given that I am now looking at trade deals, I think he realises that I will be able to keep a beady eye on that as we go forward, along with the noble Lord, Lord Lansley, who will be looking at that as well.

As I mentioned before, it was also of concern to the users of regulated services in case their trust in professionals, which stems from a regulator keeping to standards and high quality of enforcement, might be in any way in jeopardy. However, the Government have recognised these concerns and have come forward with the very welcome Amendment 12; it must be good because there is even a Lib Dem name attached to it, so we know that this government amendment is well received. Needless to say, of course I still prefer the wording of Amendment 15, which was short and to the point, but I am content not to press it in favour of the Government’s own amendment.

--- Later in debate ---

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

My Lords, I will speak first to the amendment in my name on regulator autonomy and then respond to my noble friend Lord Lansley’s amendment and that of the noble Baroness, Lady Hayter of Kentish Town.

As your Lordships know, I am a great advocate of the autonomy of our regulators. I have no doubt that regulators are best placed to determine who is fit to practise in their professions. The consequence is that to interfere with this could undermine public confidence in those who provide important services.

The Bill absolutely will not undercut regulators’ ability to make determinations about individuals with qualifications, experience or skills from overseas. I have previously given this assurance to your Lordships. However, picking up the point from the noble Lord, Lord Kennedy, I began to realise that the mood of the House was not to rely on assurances in this area. No matter how eloquently I argued the case for assurances, it would not cut the mustard. I absolutely recognise the continued strength of feeling on this issue. That is why I am proposing to make the protection of regulator autonomy clear in the Bill, and to do so specifically for Clauses 1, 3 and 4.

Protecting the autonomy of regulators is particularly relevant to these clauses, because this is where regulations made under the Bill will most directly intersect with regulators’ existing powers. This could be through empowering regulators to assess individuals with overseas qualifications, enabling them to enter into recognition agreements or placing substantive obligations on them.

These clauses also attracted particular interest from the DPRRC, and your Lordships rightly asked for more assurances. The amendment in my name places two conditions on regulations made under Clauses 1, 3 and 4. The first condition is that the regulations cannot remove regulators’ ability to prevent unfit individuals practising a profession. The second is that the regulations cannot have a material adverse effect on the knowledge, skills or experience of individuals practising a regulated profession. To put it simply, regulations cannot lower the required standards for an individual to practise a profession in the UK or, importantly, part of the UK. Taken together, these two conditions will make sure, enshrined in statute, that regulators will retain the final say over who practises in their profession and that the standards of individuals practising professions are maintained.

I also reassure your Lordships that this does not ask regulators to change expectations where they differ between different parts of the UK with good reason. In the case of devolved regulators, such as the General Teaching Council for Scotland, this would mean the requirements of a regulator for part of the UK.

As I said, in framing this amendment I have drawn inspiration from contributions made in this House and from discussions with regulators. Indeed, I am particularly pleased that it has been recognised by the noble Lord, Lord Fox, who has chosen to put his name to this amendment. I hope that this will be the first of many amendments that I bring forward at the Dispatch Box that the noble Lord, Lord Fox, will feels able to do that to going forward.

I turn now to Amendment 11. Of course, I recognise that my noble friend wants safeguards around how powers that could modify primary legislation are used. That is entirely reasonable. But I hope that my explanation of the regulator autonomy amendment in my name provides reassurance that the Government have listened to both noble Lords’ and the DPRRC’s concerns that regulations made under the Bill will be an appropriate use of the powers in Clauses 1, 3 and 4.

In particular, I know that some noble Lords have questioned how regulator autonomy will be safeguarded in trade deals. First, I repeat what I have said previously: in all negotiations, a key concern for the Government is ensuring the autonomy of UK regulators and protecting UK standards. Now, of course, the regulator autonomy amendment in my name ensures, in statute, that this concern is reflected in any regulations made under Clause 3.

I come to the point that my noble friend Lord Lansley made in asking for an assurance that primary legislation will be used to implement any consequences of free trade agreements that affect professional qualifications. I am not able to give that assurance because, by this Bill making it statutory that we cannot undercut the autonomy of UK regulators and diminish UK standards, it is appropriate that secondary legislation will be used to implement those aspects of future trade deals.

This new clause that I am putting forward means that Clause 3 cannot be used, for example, to require the automatic recognition of overseas qualifications—it would not be possible to do that. Before regulations are made, the Government will engage extensively with regulators on trade negotiations. Earlier today, I spoke about how I have formalised that in the new regulated professions advisory forum, which provides regulators with a mechanism to inform UK objectives for trade negotiations and the implementation of commitments that we make in them. If I have learned anything from the Bill, it is that regulators will not shy away from telling the Government when they have concerns about their autonomy.

Should any of your Lordships remain in doubt about whether powers in the Bill should be used to modify primary legislation, I remind the House that the relevant sector-specific legislation can be primary or subordinate legislation. Why we have these differences is lost in the mystery of time, but there is no consistency at all between professions in this matter. For example, the qualification and experience requirements to be a doctor or vet are set out in primary legislation. By contrast, the requirements for pharmacists or social workers are set out in subordinate legislation. That is why regulations made under the Bill may need to amend both primary and subordinate legislation in order to work for all regulated professions.

To give a further example, Clause 4 ensures that regulators can be authorised to enter into regulator recognition agreements with overseas counterparts. Many regulators already have this power; however, not all do. The Architects Registration Board and the General Dental Council are examples of regulators which do not have this power and may therefore benefit from Clause 4. But their powers are set out in primary legislation, so my noble friend’s amendment would prevent them being authorised to enter these agreements under Clause 4 if necessary. To give a further assurance, of course the Government envisage that regulations made under Clause 4 would be made at the request of the regulator. It would seem unfair to prevent them entering into recognition agreements simply because their powers are set out in one type of legislation rather than another. There frankly is no rationale or sensible reason for this difference. I hope that I have provided the House with the necessary reassurance that we have taken seriously the concerns about the use of delegated powers. For this reason, I ask for the amendment to be withdrawn.

I thank the noble Lord, Lord Kennedy, for speaking to Amendment 15, and the noble Baroness, Lady Hayter, for her contribution. My amendment addresses the same core concerns as Amendment 15. Both amendments —I understand that the noble Baroness’s amendment was very well intentioned—ensure that the Bill does not require regulators to allow those whom they determine to be unfit to practise and that the Bill cannot lower professional standards. Amendment 15, however, would further specify the protection of regulators’ autonomy regarding flexibility in assessment practice. The ability of regulators to make assessments as is most appropriate is already accommodated in the amendment in my name to Clause 1.

Finally, Amendment 15 also seeks to prevent anything in the Bill affecting a regulator’s ability to determine to make a regulator recognition agreement. This point is unnecessary. FTAs—such as the UK’s current deal with Canada—often contain frameworks for agreeing regulator recognition agreements. However, there is no obligation on regulators to enter into these agreements in any deal the UK has entered into. I am concerned that specifying this in legislation could unhelpfully suggest that the Government are unsupportive of such agreements. The Government are keen to support regulators agreeing them, where they wish to do so. In view of my own amendment, I formally ask the noble Baroness not to press her own.

[Lord Lansley (Con)]

My Lords, I thought that my noble friend gave an extremely helpful response to the debate and explanation of the relationship between the Government’s new clause in government Amendment 12 and Clauses 1, 3 and 4. Regulators in particular looking at this debate will, I hope, look at subsections (2) and (3) of the Government’s proposed new clause and share their view with us. If that holds, it provides a central piece of protection for regulators in future, in relation to all the substantive powers made available through the Bill. I am grateful for what the Minister has brought forward, and what he has said this evening. I beg leave to withdraw Amendment 11.

Amendment 11 withdrawn.