Professional Qualifications Bill [HL]

Lord Lansley Excerpts

Tuesday 9th November 2021 Lords Chamber

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

My Lords, it is a pleasure to be back debating the Professional Qualifications Bill on Report. I thank noble Lords for continuing to meet my officials and me over the Summer Recess, and I think we shall see the fruits of those meetings as we progress through this stage of the Bill today.

May I also take this moment to wish many happy returns to the noble Lord, Lord Kennedy, who I understand is celebrating his birthday today? We all find our pleasures in different ways, but I can think of no better way to celebrate one’s birthday than on Report on this Bill.

I thank noble Lords for their careful consideration of this Bill and for the positive reception accorded to the previous iteration of this amendment in Committee. In particular, I thank my noble friend Lord Lansley for his careful and helpful consideration of the government amendment in Committee. I also thank him for his own amendment to Clause 1.

As I have said on a number of occasions, regulator autonomy is crucial to maintaining our world-class professional standards and high-quality services, and the public’s confidence in them. This includes, of course, making sure that regulators can take into account all relevant factors when considering applications for recognition. Since Committee, my officials and I have engaged extensively with regulators and have taken legal advice on how to best articulate this in Clause 1. There was consensus from Peers in Committee, and regulators throughout our engagement, that the amendment I previously proposed was helpful. However, there was recognition—and I am happy to acknowledge this—that we could make it yet clearer. I am therefore presenting a new amendment that provides three important clarifications.

First, the amendment would add to Clause 1 a new subsection (3A)(a) stating that other conditions, which could, for example, include regulatory criteria required to practise, can be specified in regulations under Clause 1(1). This is regardless of whether those criteria are connected to the specified UK qualifications or experience. These criteria must be satisfied before an individual is treated as if they had the specified UK qualification or experience.

Secondly, the amendment would add to Clause 1 new subsection (3A)(b). This changes how the conditions in Clauses 1(2) and 1(3) are interpreted. It provides legislative assurance that when regulators are obligated to put in place a process to assess individuals under Clause 1, they can assess applicants’ knowledge and skills on whatever basis they consider appropriate.

Thirdly, the new placement of the word “only” in new subsection (3A)(b)(i) makes it clear that a regulator can consider only overseas qualifications or experience, or—this is important—on any other basis it considers appropriate. This could, for example, include both overseas qualifications and experience, and the results of any test or assessment carried out in the UK. To avoid ambiguity in how this amendment is read, an illustrative example is also now included in brackets in proposed new subsection (3A)(b)(ii).

As I set out in Committee, regulators, including the General Medical Council and the Nursing and Midwifery Council, welcomed the previous clarificatory amendment to Clause 1 tabled in my name. I have continued these discussions in recent months and tested this revised amendment with them. They appreciated the clarifications that this amendment provides.

I have also carried out extensive engagement with other regulators. For example, I met with the Bar Council to discuss Clauses 1 and 2. I am happy to reiterate that the power in Clause 1, taken alongside the condition in Clause 2, does not act so as to remove powers from regulators where they already have them. I also met with representatives from the Education Workforce Council to discuss the Bill. I would like to reassure them that it is highly unlikely that the council would be specified in regulations under Clause 1. This is because, quite simply, as I understand it, they already have a global route in place to recognise overseas qualified teachers, underpinned by express legal powers in Welsh legislation, to help meet the demand for the services of their profession.

Clauses 1 and 2 are not intended to affect the existence or scope of any existing powers of a regulator in relation to recognition of overseas qualifications or experience. They are not intended to, and do not, constrain in any way a regulator’s ability to recognise overseas qualifications or experience derived from any other legal source.

Taken as a whole, this means that the amendment provides legislative assurance that the Bill will equip regulators with the tools that they need to make a thorough and rounded assessment and that, in so doing, the UK’s world-class professional standards will be maintained. I thank my noble friend Lord Lansley for his input, and I beg to move.

[Lord Lansley (Con)]

My Lords, I am most grateful to my noble friend for his introduction to his amendment and for speaking to this group, and for his very kind words about our very constructive discussions. I reciprocate by saying how much I have appreciated the discussions he and I have had and the support of the Bill team in bringing forward a number of amendments on Report which respond directly to the debates that we had in Committee. And government Amendment 1 is exactly such an amendment.

As my noble friend quite rightly said, we had general agreement that there was a need for the national authority, when making regulations under Clause 1, to do so in ways that enabled somebody with overseas qualifications and experience to be brought into the UK profession on the basis of those or other relevant qualifications or experience, or other factors.

The difficulty with the original Amendment 10, if colleagues can remember back to Committee, was the nature of the word “only” in that context, which ran the risk of being interpreted as meaning that it would either be on the basis of overseas qualifications and experience or on the basis of other relevant and appropriate factors. We did not want that to be the case; we wanted what my noble friend has put into Amendment 1, which says at proposed new subsections (3A)(b)(i) and (3A)(b)(ii) that it will be

“on the basis only of the overseas qualifications or overseas experience … or … on such other basis as the specified regulator considers appropriate”.

That is clarified with the words:

“(such as on the basis of the overseas qualifications or overseas experience… together with the results of any test or other assessment given by any person).”

To keep it simple, if, for example, a language requirement needed to be specified, it could be specified as an additional requirement by the regulator and then be combined with the overseas qualification or the overseas experience to give, in total, the appropriate basis on which to be admitted to the UK profession. For my part, I am very happy that the Government have brought forward the amendment in this form.

The purpose of my Amendment 2 is to make it clear that a UK regulator may have requirements for entry to a profession which extend beyond the relevant UK qualifications and experience. So while somebody from overseas might have something that is directly comparable to that qualification or experience, that is not the sum total of the professional requirements to be on many professional registers. Many regulators also examine people’s background, experience and suitability, and they look to fitness to practice requirements. We do not need to dwell on this at length, just to say that there is potentially a gap between qualifications and experience in a formal sense and fitness to practice in its total sense. If regulators need that gap to be filled, Amendment 2 says that they should be able to do so; the conditions should be specified in a way that enables that to happen.

Looking at it, I am content that, as long as the appropriate national authority consults the relevant professional regulators when making regulations, the power none the less exists in Clause 1 to make the condition one that extends beyond qualifications and experience into all the fitness to practice requirements that might be applied by a regulator in this country. That being the case—and we have the benefit of the consultation requirements that we are going to come on to later, which give us further assurance on this—I think we are in a position where the conditions in Clause 1 would be wide enough without the benefit of my Amendment 2.

In my own defence, I tabled Amendment 2 back in early July, so I am slightly defending Amendment 2 in the light of having not, at that point, seen all the amendments that are coming forward, not least from my noble friend. That being the case, I think we can be fairly confident that Clause 1 will be robust enough if need be, so I have no intention of pressing Amendment 2.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I too support Amendment 1. I pay tribute to the noble Lord, Lord Lansley, who has urged and pushed, with perhaps a little more oomph than we could have done from this side. We are very grateful for what he has been able to do there.

I think the Minister will be thanked by quite a few people in the next couple of hours, though there may still be one or two people with a “please” in there for him. He knows that, right from the introduction of the Bill, we were worried about the ability of independent regulators to decide who is fit to practice. The words that the noble Lord, Lord Lansley, used are useful ones around being fit to practice and whether the ability of regulators to decide that could be undermined by a government diktat to set up a new system to recognise overseas practitioners wanting to come here, and therefore potentially lowering standards to meet a government view that there is a homegrown shortage in the relevant profession.

That was a concern not just to us but to the users of regulated service providers. Their confidence in professionals stems very much from the high standards and, indeed, from the enforcement that our independent regulators are able to give in the interests of consumers. But the Government have heard these concerns.

When most of us were away during the summer, the Minister spent a lot of time in meetings, and that is reflected in Amendment 1, which confirms that the regulators can apply their chosen standards as to who should practice in this country. The Minister has already referred to some regulators, and we know that the Nursing and Midwifery Council, for example, and others, have signified that they are content with the amendments. It clearly has to be for a regulator both to determine standards and to make a judgment on who has actually achieved those and therefore can be let loose on consumers or users in this country. So on this amendment, it is a “thank you” from me, and it does not require a further “please”.

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[Lord Hope of Craighead (CB)]

My Lords, the noble Lord, Lord Foulkes, has drawn attention to the fact that I have not put my name to these amendments, although I have done so to Amendment 10. It was an accident; it was just that at the last moment we were trying to gather together who was to sign up to what. I fully support these amendments, just as I do Amendment 10. In some respects, the case for consultation is stronger in the case of these amendments because they are talking about regulations, not just advice, which is what Amendment 10 is talking about. It is particularly important when one is drafting regulations that complete information is obtained before regulations are finalised.

To pick up a point made by the noble Lord, Lord Bruce of Bennachie, I want to mention that Craighead lies north-east of Cumnock and is a convenient way to get to Bennachie, so we are all part of the same bit of geography.

The noble Lord made the point about Scots law being different from English law, which of course it is. There are two important aspects of Scots law that are very different from English law, apart from land law, and are much more frequently encountered: family law, which is entirely different, and criminal law, the procedures and much of the substance of which are very different too. That is just a reinforcement of the point that the noble Lord was making about appreciating and understanding the differences before the regulations are finalised.

I support entirely the points made by the noble Baroness, Lady McIntosh, in introducing this group. She mentioned a point that I want to pursue, which is the question of whether the Welsh and Scottish Administrations were willing to support a consent Motion. I am a member of the Constitution Committee, and one of the advantages that I have had of doing that—I am waiting for the Minister to listen to this because it is rather important—is that we took the opportunity to go to Wales to meet members of the equivalent committee in the Senedd and to Scotland to meet members of the committee in the Scottish Parliament. One point that came across in both meetings was grave disquiet about the way that the legislative consent process is being handled.

The worst example that was quoted frequently is what happened in the case of the United Kingdom Internal Market Act. I would be grateful if the Minister would say a bit more about the process with which he was involved in consulting with the Welsh and the Scots with a view to obtaining consent to this measure. Among the points made was that they were consulted too late, they were not given enough information to be able to form a view and, when changes were made to the Bill, they were not fully informed about what those changes were in time for them to rethink and reconsider.

I know I am pressing the Minister to a point that he may not be fully prepared for and, if so, perhaps he would be kind enough to write to me to explain what went on. I am speaking on behalf of the Constitution Committee when I say that we would be very interested to know from the perspective of the UK Government about how the process was handled. Did they give the Government enough reasons for not wanting to give consent? Was there enough of a dialogue to enable the disagreement to be flushed out and see whether it could be resolved? These are very important issues that extend well beyond this Bill, and any help that the Minister can give about how the process was handled would be extremely helpful.

[Lord Lansley (Con)]

My Lords, I hope noble Lords will forgive me, but I want to intervene briefly in the debate. I am Lord Lansley, of Orwell, which is nowhere on the route that has been mentioned; it is not even between the locations in Scotland and Boscobel. You could not even go via Orwell to get to Boscobel, which is where I hope we are going to end up.

I shall say just a couple of things. First, I was interested in what the noble and learned Lord was saying about the Constitution Committee and the legislative consent Motion process, but I have to say, in relation to this Bill, that we completed Committee stage at the end of June and I tabled my amendments in the early part of July. We are now in November. There has been no lack of opportunity for the devolved Administrations to see precisely what the Bill is intended to do, what the remaining issues of controversy might be and what the intended outcome looks like. Frankly, they have had every opportunity to consider a legislative consent Motion and to have passed one, so if they do not then I do not know why not.

Secondly, I am grateful to my noble friend Lady McIntosh. She was looking at why we are consulting with regulators over the powers to make regulations in Clauses 1, 3 and 4—that is in Amendment 13, which I support—but not other clauses. As it happens, I agree with my noble friend, or at least I hope I do, that Clauses 5 and 6, in so far as they are about tidying up the statute book, are not really appropriate for consultation processes; they are essentially just working out the legal statute-book consequences of the Bill.

However, I suddenly realised that there is a regulation-making power in Clause 10 that the Government are not intending to consult upon. I thought, “Hang on a minute, I thought I agreed with the Government because I tabled an amendment at the beginning of July to press the Government on the question of consultation with regulators”, so I looked back at it. Of course I subsequently withdrew it when the Minister tabled his own amendment, but when I looked at it I realised that what I said originally was, and I quote myself:

“Prior to making regulations under this Act, other than those made under sections 5, 6 and 18”—


that is, Clauses 5 and 6 relating to retained EU law and Clause 18 on commencement—

“the appropriate national authority must consult such regulators of regulated professions as appear to the authority to be likely to be affected by the regulations.”

So my amendment would have included consultation on the regulation-making power in Clause 10, which relates to the duty to make information available to overseas regulators. I freely confess that I had not noticed the difference and that gap. While I very much support what the Minister has tabled in Amendment 13—I very much endorse it because it largely achieves what I was hoping for in the amendment that I tabled way back in July—I ask him to explain the process of thinking by which Clause 10 has been left out.

[Lord Purvis of Tweed (LD)]

My Lords, I support my noble friend Lord Bruce in his questions. As other noble Lords have indicated, this is an opportunity for the Minister to give a clear position on the situation regarding legislative consent Motions. If the Government are not able to provide an assurance that there will be LCMs during the passage of the Bill, we will be in the uncomfortable position of now having a number of Acts where there have been no LCMs and the Government will have considerable regulation-making power over devolved regulators if the Westminster Government believe that the devolved Government are not acting. This could create those sensitive areas where there are devolved regulators which will then be instructed under regulations to change their procedures for areas where the UK Government will have considered that there is unmet demand but the devolved Administration may not, and there is no vice versa equivalent. Therefore, if there is no LCM process, and the Government will be acting over the top of the devolved Administrations, this will be a potentially problematic area, not least in those professions that are not likely to be exempted under these areas. So transparency will be helpful, if the Minister could give that indication.

Regarding consultation, this will be a consistent theme that the House will return to time and time again. We did so on the Internal Market Bill, and here, and, until the common frameworks are in a state of readiness—and I understand that they are quite far away from such a state—we will have to press the Government on how operations will cover the whole of the UK. Could the Minister give clarity on that?

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Moved by

[Lord Lansley]

5: Clause 2, page 2, line 39, leave out “without unreasonable delays or charges”

[Lord Lansley (Con)]

This group has two amendments, which do indeed relate to Clause 2, in my name and, for Amendment 6, that of the noble Baroness, Lady Hayter of Kentish Town. I am grateful for her support.

Noble Lords who were involved in Committee will recall that this clause, as my noble friend just explained, sets out the conditions under which the power to make regulations in Clause 1 might be used. To quote subsection (2):

“The condition is that it is necessary to make the regulations for the purpose of enabling the demand for the services of the profession … to be met without unreasonable delays or charges.”


Quite understandably, the central question is: what constitutes unmet demand? The discussion in Committee was around what we mean by “unreasonable delays or charges” in this context, and how people are to have sufficient clarity about the circumstances in which the national authorities concerned would deem it necessary to make regulations.

Noble Lords will recall that some of what the Government have outlined in the policy framework that we saw early on, and which has been amplified most recently in the fact sheets issued last week, sets out in some detail the process of thinking about what constitutes unmet demand for a profession. An illustrative scenario set out in the fact sheet enables those who want to explore this to see how it might work in practice. It includes consulting with regulators. The illustrative scenario includes talking to relevant professional bodies. It includes looking at costs and, interestingly, at value for money—the implication being that unreasonable charges are ones that do not constitute value for money. It includes vacancy rates, which are mentioned in Amendment 6, workforce statistics and modelling—again mentioned in Amendment 6—and whether an occupation is on the shortage occupation list.

I take comfort from the fact that the description the Government have given of the process by which a national authority would look at whether there was unmet demand corresponds with a set of factors that we set out in Amendment 6. I am comforted and glad that is the case, because they derive from the Government’s own explanations. It is just that I am afraid that I still do not think, even today, that Clause 2 in the form it is written tells people that that is the case. The guidance, the fact sheet and the policy framework tell people how it is to be done, but it is not all set out in the clause itself. What I set out to do in Amendments 5 and 6 is take out the offending words “unreasonable delays or charges” and incorporate all these factors into Amendment 6—which is, I take it, why the noble Baroness, Lady Hayter, signed it, because she felt that it served the purpose.

How do we proceed? Do we do so simply by taking the Government’s approach? It is not for me to make their argument; they might well say that we do not need to put all this in the Bill, because when people look at what constitutes unmet demand they will be able to look at the fact sheets and the guidance, and all these factors will be there. I am looking for the Government either to say that we do need to make a change, or to be sufficiently clear about the factors that will be brought into account, that they correspond directly to what we have set down in Amendment 6, and that we and other people can rely on them in future and look to what is said today as a basis for understanding how this process is to proceed.

In passing, let us just think for a moment about resting on the question of delays and charges alone. Charges in professional services are not necessarily always the product of the availability of professionals. Sometimes it is very much to do with the scarcity of specialisation within professions. So, trying to deduce that higher charges in a profession are necessarily the consequence of a lack of overseas practitioners is a difficult judgment to make. Many of the professions we are talking about are clinical professions, conducted, in the most part, in the National Health Service, where delays are the product, as we all know, of many factors, not just the availability of professionals, and where charges are very often irrelevant—they do not exist. I am afraid the idea that one can arrive at a conclusion about the necessity to bring overseas professionals into some of these clinical professions on the basis of delays and charges in the NHS is somewhat moonshine.

We need the other factors—workforce modelling, shortages in the occupational list, vacancy rates and all these other issues—to be there. We just need to make absolutely certain that they are there, and I hope that my noble friend on the Front Bench will be able to give us the assurance that we are looking for today to enable me to withdraw Amendment 5 in due course. I beg to move.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, as the noble Lord, Lord Lansley, said, I have added my name to the second of the amendments in this group. There are two parts to the Bill, as we know. One arises from the trade talks, where the Government may want regulators to talk to their opposite numbers in relevant third countries. The other, which is what we are looking at now, is about enabling—or maybe requesting—regulators to process overseas qualified people where there is deemed to be a shortage here. Unmet “needs” is the word used. That is where I and some of the regulators have some concerns.

In many sectors, such as nursing, it already happens. Structures are in place and there is no need for the Government to intervene. The powers are there, everything is fine at the moment. However, there are two serious questions that need answering. First, is there any danger that consumer interests are at risk if underqualified people practise here because the Government say, “We have not got enough of that particular profession”? I do not need to go into why that is a risk; it is fairly obvious.

Secondly, which the noble Lord, Lord Lansley, covered, is how the shortage is to be defined. He already referred to why high fees are not always an appropriate measure. Sometimes, there are high fees because there is an international shortage; the price is set on an international market and therefore bringing in more of that profession would not solve anything. Or will it be defined by users or consumers who need those services? Amendment 6 sets out some far more objective criteria, which is why I was happy to support it.

Since we are on this bit, I should raise the other concern of the Law Society, which was not raised earlier by the noble Baroness, Lady McIntosh of Pickering. It does not expect to be covered by Clauses 1 and 2, but were they to be applied to it, and should the SRA get involved in such discussions, the Law Society wonders whether this would jeopardise the perceived independence of the legal profession as seen abroad by foreign Bars. Clearly, the consultation is very important, but—I am not saying that it said this because it was high fees—I think it would have a concern if there appeared to be any interference by the Government that would in any way question the independence of the legal regulators, which I know is so important for our international reputation in the world of law. For the moment, the main issue is the definition of where there is unmet need and whether the assurances will cover what we have set out in Amendment 6.

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[Lord Grimstone of Boscobel (Con)]

I think, on immigration matters, the Home Office is the primary decision-maker.

I believe that including these factors in the guidance will improve the clarity of decision-making by appropriate national authorities that my noble friend’s amendment seeks to achieve. I am grateful for the considerable thought that he has put into this.

Finally, my noble friend has questioned whether it is appropriate for a national authority to consider whether delays and charges are unreasonable. After consideration over the summer, and I have thought about it a lot, I believe that this is a useful qualifier. Retaining “unreasonable delays or charges” in the unmet demand condition ensures that a national authority considers whether there is consumer detriment—this was a matter that the noble Baroness, Lady Hayter, was concerned about—as a result of the delays and charges to access a profession’s services. I hope that your Lordships can agree that while there is merit in the factors set out in the amendment, it is not desirable to fetter, in a statutory sense, appropriate national authorities’ discretion by enshrining these in the Bill. As I have said, these are sensible factors to take into account, but it is more appropriate to include them in guidance, and I commit to do this. As such, I ask for the amendment to be withdrawn.

[Lord Lansley (Con)]

My Lords, I am most grateful to my noble friend and to the noble Baroness, Lady Hayter, and other colleagues who participated in this short debate. We do not necessarily need to change the legislation for people to be able to look at our debates and what my noble friend has been able to say from the Dispatch Box by way of clarification and, in due course, to look at the guidance to understand the nature of decisions being made. I hope it will be clear to people in future that delays and charges are an important factor but not the only factor; other things may go to help construct it. If we were starting the drafting process again, we might draft it slightly differently but, given that we are where we are and with the assurances that my noble friend has been able to give, I certainly beg leave to withdraw the amendment.

Amendment 5 withdrawn.