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.

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[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.

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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.”

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[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.

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[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.