Professional Qualifications Bill [HL]

Lord Moynihan Excerpts

2nd reading
Tuesday 25th May 2021 Lords Chamber

[Lord Moynihan (Con)]

My Lords, I declare my interests in sport, as set out in the register. I thank my noble friend the Minister and his officials for their respective briefings. The Bill, in particular Clause 7(1)(b)(i), is important to the sporting community and the future contribution that British ski instructors and mountaineers will make internationally, not least in the alpine ski resorts of France, Italy, Austria and Switzerland, to name just some of the key historic markets in which the UK has played a prominent role in the development of the ski industry and the present high-level qualifications of the ski instructor community.

At the heart of this is the importance of ensuring that our qualifications are aligned worldwide, and that acceptance of our professional qualification recognition can be applied in all markets. It is an essential step towards labour mobility and permit-free seasonal work. In the United Kingdom, the British Association of Snowsport Instructors—BASI—continues to take the lead through its recent work. In its alignment with the International Ski Instructors Association—ISIA—the world body for the protection and promotion of the interests of professional ski instructors, BASI’s qualifications are globally recognised. BASI, with ISIA, has been an active contributor to the agreement and development of international quality standards across national associations, rather than working rights—although some countries such as Japan choose to link ISIA-aligned qualifications with protecting working rights.

The current position is bleak for our ski instructors. Qualification recognition is complex. In some countries, the profession of snowsports instruction is regulated by law—but not in others. In the EU, there are regions within countries where this also varies, bringing yet greater complexity. Austria, France and Italy, for example, are currently not members of ISIA. Because ISIA has no legal powers to enforce its quality standards and because the trade and co-operation agreement between the UK and the EU allows member states to pursue their discretion as to whether they recognise third countries’ qualifications, it is essential and urgent that the Government ensure that there is ongoing recognition of BASI qualifications which, prior to the lost Covid season, historically led British ski instructors to play an important supportive role in, for example, the French Ecole du Ski.

The British ski industry has funded the growth and success of many ski resorts across the Alps, yet there are those who would ignore this contribution and fail to link it to allow qualified British ski instructors the opportunity to join their French counterparts who seek employment in the sector. Ski tourism from the UK involves 1.76 million holidaymakers, producing a total spend of £2.9 billion in ski holidays alone over the course of a full season. However, instead of embracing this spend, the reality is different. There are more closed shops in the mountain resorts of France, where numerous parochial mayors are only too ready to take the British spend and then exercise their authority and ban or do their utmost to discourage the French ski school under their influence and power from hiring outstanding British ski instructors, many of whom have provided significant added value to the profession and are there to satisfy the choice of British ski holidaymakers—especially those families with young children in the mountains who are more comfortable with their children being taught by a fluent English speaker. At the same time, the British Mountain Guides association is butting up against those delivering services in EU countries to be established as workers in those nations.

Remedying that market distortion will require strong commitment from the Government to stand full square behind our ski instructors and assist BASI with bilateral and multilateral negotiations to deliver continued opportunities. It is perhaps unrealistic to think that professional bodies such as BASI, the BMC or BMG are sufficiently resourced to manage negotiating with their counterparts in all 27 EU states, let alone to address any protectionist working-rights policies that might exist at either a federal or regional level. Whether skiing from Zermatt in Switzerland to Cervinia in Italy, or from Ischgl in Austria across to Samnaun in Switzerland, or traversing the 400-mile Portes du Soleil ski domain, which spans 13 resorts in France and Switzerland, British ski instructors now face a plethora of employment hurdles and obstructionist tactics to deter them.

Today, in the Swiss canton of Valais, which includes the resorts of Crans-Montana, Saas Fee, Verbier and Zermatt, a letter has been sent to the directors of ski schools setting out ways in which hurdles must now be put in the way of hiring British ski instructors by linking the recent decision with the UK’s departure from the EU and placing a raft of bureaucratic protectionist hurdles in the way of highly qualified British ski instructors who seek ongoing employment. There is now, for example, a requirement that federal government acts as an appellate body and local ski schools sign off the ski instructors they employ as qualified “teachers” without defining the Swiss qualifications required for such teachers as opposed to “ski instructors”. Much urgently remains to be done on that. Negotiations are essential to address the mutual recognition of professional qualifications, which in this case are regulated by law in the alpine countries and, of course, add to the work permit issues and growing barriers of entry in the world of ski protectionism, which equally need to be addressed.

We conceded the widespread advantages of EU membership during the exit negotiations. If one is a British citizen, regardless of what association one is a member of, one is not permitted to enter the common training test, formerly known as Eurotest. A BASI member with an EU passport is also not permitted to enter the CTT.

Sadly, the news for snowboarding is even worse. In 2006, BASI negotiated a bilateral agreement with France—the Satolas protocol—over the recognition of snowboard instructor qualifications. As a French snowboarder, if one wants to teach snowboarding, one must complete the Diplôme d’Etat de Ski moniteur national de skialpin qualification with ENSA, meaning that one needs to be both a top-level alpine skier as well as a top-level snowboarder in order to be able to teach snowboarding. The UK has been told by the French that they will no longer recognise the BASI snowboard level 4 ISTD qualification.

My noble friend the Minister might be tempted to take this opportunity to intervene, if that were permitted in this House at the moment, and say that this Bill is only framework legislation and that ski instructors are not regulated by law, unlike many of their international counterparts, and that this is a narrow Bill confined to the 160 professions that are regulated by law in this country. However, as my noble friend will know, Clause 7 does not restrict support to regulated professions but covers the work of the UK Centre for Professional Qualifications, the existing assistance centre, which is open to all British professionals, including ski instructors. It is here in Clause 7 where the Government could provide a public-facing service for advice and assistance to professionals on the application of their professional qualifications overseas.

After all, the BEIS-regulated professions team leads on the international-facing elements of the recognition of professional qualifications policy, which includes our ongoing work on the EU-UK Trade and Cooperation Agreement, working with the DIT on the RPQ elements of FTA negotiations and the Government’s work to support regulators—and, I assume, UK unregulated but internationally regulated professional bodies such as BASI—to agree recognition arrangements with their overseas counterparts. That supports UK-qualified professionals seeking to practise overseas and UK professionals intending to work in other countries. The contracted-out UK CPQ can provide guidance, officials have informed me, on how professionals can gain recognition of their qualifications by overseas regulators and professional bodies. That is an excellent initiative and the envy of many countries, and I welcome it being included in the Bill as a legally binding requirement.

I therefore ask my noble friend to confirm that the Government will first assist with bilateral negotiations for international recognition of BASI standards through the UK CPQ, while simultaneously working on a master agreement. The UK CPQ can help CTT-qualified British ski instructors work abroad and navigate the systems with other countries through mapping qualifications and providing support on the ground. Within the department, the assistance centre and the recognition arrangement team will, I hope, help BASI with its overseas counterparts on both bilateral and multilateral deals to protect British ski instructors. That should see bilateral progress made at the same time as preparing for an application for an EU 27-wide mutual recognition agreement, deliverable with Foreign Office backing, to cover British mountain guides and snowsport instructors. I hope that it can be negotiated and one day annexed to the free trade agreement.

I hope the scope for taking forward these negotiations can be agreed with BASI and with government support. We may need to seek to strengthen the Bill to ensure that the future of British instructors is not to be a bleak one and that a legally binding commitment on the Government to report back to Parliament on work under Clause 7 is considered in Committee, covering negotiations of mutual agreements and replacement of the scheme under which the highest-level British qualifications—BASI level 4 for snowsports instructors—is recognised throughout the EU and beyond. Such mutual recognition should include access to the CTT, enabling ski instructors and mountaineers to apply for jobs in alpine countries, with pre-agreed high-standard professional qualifications as well as advice and help to navigate restrictions on the freedom to work, the need for work permits and movement within Europe. I fully agree with the strong representations of my noble friend Lady Fraser. This falls within Clause 7 and is not excluded as a consequence of ski instructors and mountain guides not being regulated by law in this country. In general, save for the extensive Henry VIII powers in the Bill, I fully support the measure.

Professional Qualifications Bill [HL]

Lord Moynihan Excerpts

Committee stage
Tuesday 22nd June 2021 Lords Chamber

My final point is that this list gives myself and my noble friends even greater concern about the interaction with the UK Internal Market Act. We have sought assurance that the carve-outs in that Act relating to the legal and teaching professions would be respected. It looks as though under this list they will not be. As we will be discussing later, when you add that to the Government’s position on the Australian trade deal, which includes automatic recognition of, for example, all Australian lawyers to practise anywhere in the United Kingdom, this is a direct override of the UK Internal Market Act. So, while the Government have more work to do, this should not be on the hoof, or while the Bill is going through Parliament. So I agree with the noble Baroness that this now needs to be paused.

[Lord Moynihan (Con)]

My Lords, I will speak to Amendment 45 in the name of my noble friend Lady Noakes, which makes provision for a regulator that does not regulate the profession directly but oversees the regulation carried out by other professional bodies. This refers precisely to the British Association of Snowsport Instructors, to which I referred at length at Second Reading. I too congratulate the noble Baroness, Lady Hayter of Kentish Town, on her excellent Amendment 63. I will speak in favour of it because it recognises:

“The appropriate national authority or the Secretary of State may by regulations amend”


the schedule,

“so as to insert additional regulators.”

These will not necessarily be regulators of regulated professionals by statute but may be regulators such as the British Association of Snowsport Instructors.

I highlight this case because I have received a letter, distributed in May by the department of the economy in the Canton du Valais in Switzerland. That canton has more mountainous regions than any other in the Alps, including many famous ski resorts such as Crans-Montana, Zermatt and Morzine-Avoriaz, to name but a few. The letter, sent by the department to ski instructors in Switzerland, said:

“The enforcement of Brexit on 1 January 2021 will mean major changes in the hiring of British nationals. We would like to inform you of the following changes to your sector of activity. As of 1 January 2021, British nationals can no longer avail themselves of the agreement on the free movement of persons. They are therefore subject to the foreign nationals and integration Act (AIA), its ordinance (AOA) and its directives (AIA directives). This implies that the employment of British nationals is strictly reserved for highly qualified persons and must meet the strict conditions of the applicable law. Thus, according to the LEI guidelines, the hiring of snow sports teachers can only be done for qualified teachers, provided that there is an exchange agreement between a partner in the country of origin and a Swiss institution. In addition, the teachers must come from non-EU EFTA countries where there is a long tradition of the activity in question. Therefore, it will not be possible to hire British nationals as ski instructors. The recruitment of ski instructors will have to be done at Swiss level, or within the European Union countries. The Foreign Labour Section team is at your disposal for any further information. Please take note of the above. Our best regards”.


That is a massive blow, announced in May, for all British ski instructors who have done so much over many generations to develop the sport of skiing, both in Switzerland and in Europe. It is also wrong. It says that the ski instructors should come

“from countries where there is a long tradition of the activity in question”—

but, of course, the country with the longest tradition of activity in Swiss-based skiing is the United Kingdom. It was Sir Arthur Conan Doyle who introduced skiing to Switzerland after returning from one of his skiing trips in Norway. He brought with him some skis, and he felt that Switzerland was the perfect terrain for such activity.

This is extremely serious for the future of not just British ski instructors but all those who support them. Seasonal businesses and the travel industry have argued the case very strongly that most people who go skiing in the Alps are supported. When they go on holiday, they tend to book through a British company, to be met at the resort by a British representative and, often, to be looked after by British staff—cooks, cleaners and ski instructors, as well as water sports instructors elsewhere in Europe and bar staff. This is all at risk. So the UK outbound tourism industry is facing a crisis in this sector post Covid. Thousands of young people—some 25,000 UK young people support outbound tourism—are also at risk.

It is exceptionally important to cover the second point, but I appreciate that it is the first point, on the British Association of Ski Instructors, that is most pertinent to this set of amendments. Not only does it effectively regulate all ski instructors in the United Kingdom but, through its hard work and diligence with international regulators—many of whom are supported in law in their respective countries—it is in a position whereby, as a result of the situation in which we currently find ourselves, it is not given the support by government that is absolutely necessary to remedy this.

Of course, when we were looking at the previous clause, Clause 7, on the assistance centre, there was an opportunity to put a great deal of effort, time and commitment behind securing the interests of those people as we go forward. I would argue that it is very urgent. If that sort of letter is circulating within the Alps, we need to act now.

I very much hope that one of two things might happen. The Minister is a Whitgift-educated man, and Whitgift is an outstanding centre of sporting excellence. I am sure that he wants to go back there with his head held high, having defended the interests of ski instructors in this country. Either he can use his extraordinary powers of negotiating skill to return pretty swiftly to Brussels to sort out this problem—and, in the case of Switzerland, negotiate with his counterparts there—or he can give a commitment that he will strengthen the assistance centre to make sure that this is a priority for the help given by the assistance centre. There was much debate and uncertainty about whether the resources behind the assistance centre would be adequate when the Committee looked into that in detail. Alternatively, he can accept the amendments in the names of the noble Baroness, Lady Hayter, and my noble friend Lady Noakes. Those are the three options.

I very much hope that the Minister will recognise the importance of this issue, which is now critical and urgent, and in so doing be able to give a very clear commitment to the Committee today that he intends to take this forward. I hope that he will underline the urgency in the same way that I have tried to do for the Committee this afternoon.

--- Later in debate ---

[Baroness Randerson (LD)]

My Lords, I will speak to Amendment 58 in my name and that of the noble Baroness, Lady Bennett. This is about as modest an amendment as one could possibly imagine. It simply requires that all regulations that flow from the Bill are made by the affirmative procedure. The Government have acknowledged that most of the substantive changes to the law envisaged by the Bill are to be made by delegated powers.

The Delegated Powers and Regulatory Reform Committee has drawn our attention to what it sees as significant problems with the Bill in respect of the constitutional principles involved. The noble Lord, Lord Patel, drew our attention to this issue earlier in our debates this afternoon. For instance, the DPRRC draws attention to the Henry VIII power in Clause 1, which gives the Government power to amend primary legislation to make provision about a wide range of issues, including details of the approach to assessing applications from overseas applicants, guidance to regulators on how to assess them, fees to be paid and appeals.

The Government’s excuse is that these changes are to be demand-led, but the DPRRC does not regard that as a justification for Henry VIII powers. Paragraph 20 of its report points out that when those powers will be executed by affirmative procedure, that in itself will provide minimal scrutiny. Paragraph 23 points out that

“Ministers will have no duty to consult before making regulations.”

Clause 3 of the Bill gives Ministers powers to make regulations in connection with the implementation of international recognition agreements—another Henry VIII power and, this time, not subject to any conditions. We can already see the reality of this principle with the very broad agreement made between the UK and Australia in the recent trade deal, which specifies mutual recognition of professional qualifications in some detail.

The Constitution Committee makes the point that there is a long-standing constitutional convention that international agreements that change UK law require an Act of Parliament, so the DPRRC considers that Clause 3 should be removed from the Bill. Clause 4 also contains a Henry VIII power on authorising a regulator to recognise an overseas regulator. I go through this because I am pointing out that, in the face of this barrage of criticism from those in this House whose job is to safeguard the constitutional integrity of the UK, it is a very small request in this amendment that the blizzard of regulations that we can expect to flow from this Bill should be made by the affirmative procedure.

[Lord Moynihan (Con)]

My Lords, I declare my interest, having in prior years been a long-standing member of the Delegated Powers and Regulatory Reform Committee. I echo the comments of the noble Baroness, Lady Randerson, that its report on the Bill and the use of secondary legislation makes telling and worrying reading. Before I cover that, I place on record my thanks to my noble friend Lord Grimstone for his response to my speech earlier and the constructive way in which he handled that. Also, it is important for the Committee to place on record that he has sought to catch the mood of the House rather than to counter it by speaking “note rote”. That is a notable parliamentary and diplomatic skill, and he has done it more capably than many Ministers that I have heard in nearly 40 years in both Houses. However, as he knows, that does not negate the challenges that the Government face with this Bill on its passage through the House.

Most of the substantive changes to this Bill are envisaged to be undertaken by the Executive. As the noble Lord, Lord Hunt, has said, there is a creeping growth of secondary legislation. Some of it is understood in the context of the huge number of statutory instruments following Brexit, but both Houses need to review and reverse that process, otherwise we will be in a situation where the balance of power between the Executive and the legislature is out of kilter. Parliament must be consulted. My noble friend Lord Grimstone said that many of the Bill’s aspects would be under rigorous scrutiny with interested parties; it is even more important that they are under rigorous scrutiny with Parliament.

The noble Lords, Lord Hunt of Kings Heath and Lord Patel, when talking about Henry VIII powers, and the noble and learned Lord, Lord Thomas of Cwmgiedd, on the lack of detailed parliamentary scrutiny, made eloquent contributions to what is relevant not only to the very light-touch but important amendment in the name of my noble friend Lady Sanderson but to the wider use of secondary legislation, because there is a significant difference between negative and affirmative resolution. With negative, there is no requirement to approve the SIs for them to become law, and with the affirmative, there is a far higher degree of scrutiny sought, with the three forms of high and appropriate scrutiny that are well known to every Member of the House. That is why, wherever possible, Parliament should insist that as much as possible is on the face of the Bill, and why resorting to secondary legislation should be kept to an absolute minimum. It is with those comments in mind and made that I believe, not only in the context of Amendment 58 but throughout the Bill, that we need to return on Report to make sure that there is appropriate parliamentary scrutiny throughout.

[Lord Purvis of Tweed (LD)]

My Lords, I support Amendment 60 in my noble friend’s name, and I will speak to Amendments 65,66 and 67 in my name and that of my noble friend Lord Fox. This is a very short debate which in many respects reinforces points made in other groups, but it can be divided into two areas: first, the necessity of avoiding, where at all possible, using secondary legislation to amend primary legislation, as the previous group have indicated; and, secondly, to have an argument about pausing not just the Bill but the implementation of an Act before the Government have their policy ducks in a row.

Professional Qualifications Bill [HL]

Lord Moynihan Excerpts

3rd reading
Wednesday 17th November 2021 Lords Chamber

[Baroness Noakes (Con)]

My Lords, while it is undeniably true that this is a better Bill leaving the House than when it arrived, in particular because of the addition of Clauses 14 and 15, it was never clear to me what problem the Bill was seeking to address and whether indeed it was necessary. My noble friend claimed that four benefits would flow from the Bill. If ever there was a case for post-legislative scrutiny to see whether those benefits in fact accrue, this is one of them, because I am less than clear that the considerable effort that my noble friend has had to put in to turning the ragbag of a Bill that arrived here into something that resembles a meaningful contribution to the area of professions was a good use of his time and that of his officials. As I say, I am quite clear that it is a better Bill, but whether the Bill was ever necessary is an open question.

[Lord Moynihan (Con)]

My Lords, on behalf of the British Association of Snowsport Instructors and all the winter sports organisations, which have taken a very active role and interest in the passage of this Bill, I thank the Minister for his consistent, collaborative and close support for the British winter sports federations, particularly with the newly-formed contacts in UK embassies, addressing issues such as work permits, local regulations and overt protectionism. We have taken one step forward as a result of the Bill being before this House, but that one step has been very much as a result of the efforts of my noble friend, for which many thanks.

[Lord Fox (LD)]

On the assumption that there are no more professions that would wish to thank the Minister, I shall do so. I am pleased that he is continuing to work on legislative consent, which is important. Too many Bills are starting to come through your Lordships’ House where legislative consent is not given. Given the nature of this Bill, it is important that the devolved authorities are working with it 100%, so I thank the Minister for his statement and associate myself with the comments of the noble Baroness, Lady McIntosh, about the role of frameworks.

It is something of a cliché to say, “The Bill leaves this place a better Bill”, but in this case the cliché is true. The Minister set out his view on that and other noble Lords have been more specific about its shortcomings. I will not go into them, but I thank the noble Lord, Lord Grimstone, who has had an ear to this issue from the beginning and took the very worthy decision to put the Bill on holiday over the Recess and come back with something that we were all better able to support, with some reservations from the noble Baroness, Lady Noakes. I also thank the noble Baroness, Lady Bloomfield, whose whiply eye stared across at us when she thought we had talked for too long.

The Bill team has had a particularly rough ride on this, and I thank it for its work, as I thank the wider community that has fed into the Bill. I thank the ever-changing Opposition Front Bench for its engagement and work. Finally, I thank my colleagues, my noble friends Lady Randerson, Lady Garden, Lord Palmer of Childs Hill and Lord Purvis, as well, of course, and without whom we could not have survived, Sarah Pughe, our legislation administrator who drove us through all of this.

The Bill has a lot to achieve in that it needs to set out a structure for how the Government engage with the professions in future. It was quite clear that that engagement had not existed in the past, and perhaps this can be a stepping stone to a wider engagement between the Government and these regulatory authorities.