Professional Qualifications Bill [HL]

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Wednesday 9th June 2021 Lords Chamber

[Baroness Noakes (Con)]

My Lords, I asked the Government Whips’ Office to order the speakers as is normal in the Chamber when we do not have lists—that is to say, those who have tabled amendments are allowed to speak before those who simply wish to comment on them. I was advised that the list was issued late this morning.

The noble Lord, Lord Fox, may recall that I do not like purpose clauses. I believe that a Bill should be written in clear language and that its scope and impact should be readily understandable on its own terms. This Bill fails to meet that test, but I do not think that a purpose clause is the answer. Instead, we should focus on making sure that the Bill itself is fit for purpose. We have tabled a number of amendments aimed at doing this.

I also have a minor quibble with the drafting of Amendment 1. Subsection (2) refers to

“the independent process of defining the accreditation processes of the regulators.”

I believe that the independent processes which this Bill should protect go beyond mere definition of accreditation processes. We do not want any form of interference in the independent processes of regulators. This should be an enabling Bill which should unblock legal impediments to the recognition of overseas qualifications. It must steer clear of all the processes operated by regulators, not just of those defining accreditation.

I put my name down to speak because I recognised the Institute of Chartered Accountants’ provenance of Amendment 12 in the name of the noble Lord, Lord Palmer of Childs Hill. That is why I was keen for him to speak first. Amendment 9 in my name, in a later group, is slightly simpler, but on the same basic point. I realised a little too late that perhaps I should have asked to add my amendment to this group. The essence of Amendment 12 is to ensure that inappropriate burdens are not placed on regulators, as the noble Lord, Lord Palmer, has explained. I will not repeat those arguments. I will explain my own amendment when we reach it later.

This is a very real issue. The Government need to look at it again to ensure that their approach is reasonable in the context of what regulators could be compelled to do by the provisions of this Bill. As far as we can, we should seek to avoid any possibility that they could be compelled to do anything unreasonable, burdensome or otherwise inappropriate to their profession.

[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, I shall speak briefly in support of Amendment 1. Subject to the clear statement of the noble Baroness, Lady Noakes, it would be desirable to try to focus much more of this wide-ranging Bill. If that is not done, a provision to make clear that the independence of regulators is not in any way affected is of vital concern. The regulation of professions should be set by the structure ordained by Parliament—not by the Executive and then left to the regulators. If more precise provisions cannot be incorporated, Amendment 1 would have this vital effect of making clear the independence of the regulators.

In the case of the legal profession, it is convenient at this stage to raise two points about independence. First, the independence of the courts depends on the independence of lawyers, with their ability to challenge the powerful, particularly the Government. This can only be safeguarded by independent regulation within a structure set by Parliament. Given the position of the Executive in relation to the courts and the legal profession, it should not be the Lord Chancellor’s role to be involved in this in any shape or form. It is difficult to see, given the scope of the Legal Services Act, why these wide-ranging powers need to be given to the Lord Chancellor.

--- Later in debate ---

Amendment 57 is long and complex. It may need some tightening up on Report. I am pleased that the noble and learned Lord, Lord Thomas of Cwmgiedd, is following me. He might well be able to explain in further detail how he thinks it could be improved. There are other issues to be discussed because the Senedd’s legislative competence does not always coincide with the executive powers of Ministers, which are sometimes wider. Importantly, if the Secretary of State is legislating on a UK-wide basis on an issue that involves devolved competence, there should be provision in the Bill for a requirement to obtain the consent of the devolved Administrations first. I hope that the Minister will agree that there needs to be discussion across the House and with the devolved Administrations to make substantial improvements on these issues before Report.

[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, I shall speak to all the amendments in this group. I do not wish to say anything further about the amendments proposed by the noble Baroness, Lady McIntosh of Pickering, and the noble and learned Lord, Lord Hope of Craighead, save to say that I warmly support them, as I do the amendment in the name of the noble Lord, Lord Foulkes.

I come to the principal issue on which I wish to speak. Amendment 57 and Clause 14 demonstrate that there are two significant issues before this Parliament. The first is the extent to which we have framework legislation with Henry VIII powers—and with a vague statement that these are needed—while knowing that there is no opportunity for proper scrutiny and amendment of the powers that will be exercised in subsequent regulation. The second problem is what I would describe as the chipping away—because this is what it is becoming—of the devolution arrangements. This is being done without the consent of the devolved Governments and without putting in place a proper framework for joint agreement on how to move forward where there is a necessity for a UK solution. I fear that these issues will bedevil this Session of Parliament. They come to a head in Clause 14.

Clause 14 gives the Lord Chancellor and the Secretary of State power to make regulations in devolved areas. It is immensely concerning that Henry VIII powers are being used without any indication as to precisely how this is to be done and no real argument as to why they are necessary. It is difficult to understand why this area needs to be chipped away. What is the benefit for the future of the union? It would be useful if the Minister could say what he sees as the benefits and acknowledge the costs of the damage to the union.

I warmly support Amendment 57, subject to one matter I shall mention later. It is difficult to see why this problem cannot be dealt with by Amendment 57. This would leave the devolved Ministers to make decisions within their areas of devolved competence. Something like a common framework or some structure for common policy-making could then be used to resolve the differences. Using the twin devices of framework legislation and Henry VIII powers is quite the wrong way to go about our constitutional arrangements. I hope the Minister will be prepared to discuss these issues in much greater detail.

The noble Baroness, Lady Randerson, has already touched on the point I wish to make about Amendment 57. Its proposed new subsection (5) is taken from Clause 14 of the Bill as it stands, and seems a wholly unnecessary irritant. It is not constitutionally necessary. I do not understand why this Government wish to irritate people by further constraining the powers of the Welsh Ministers in a way that is wholly unnecessary. Again, a cost-benefit analysis, thinking what we are doing this for, would be a great step forward.

I hope that the difficulties inherent in the combination of the Henry VIII powers and the chipping away of devolution can be seriously discussed between those in the devolved Administrations, together with this House and the Government. I would welcome such discussions before Report to avoid what it seems is a further significant strengthening of those who wish to oppose the union for very little benefit in return.

[Lord Bruce of Bennachie (LD) [V]]

My Lords, I support all the amendments in this group, particularly Amendments 13, 41, 42 and 57, which look to formal consultation with the devolved Administrations and, in the case of Amendment 41, the consent—under certain conditions—of the devolved Administrations to any regulations made under this section.

As all speakers on this group and in the debates on previous amendments have said, the Bill involves wide-ranging powers and Henry VIII clauses. These are apparently justified on the grounds that what may be required cannot be anticipated, and therefore cannot be legislated for in advance. This seems a dangerous and spurious catch-all which, of itself, is sufficient justification for requiring formal consultation with the devolved Administrations.

This all relates to trade deals yet to be negotiated. It will hinge on areas of skills shortages across and within the UK, as well as the opportunity for UK professionals to practise abroad. Professional regulation must surely be founded on ensuring that any professional is safely and properly qualified and experienced to practise in all or part of the UK. Yet this Bill and the powers within it are specifically linked to trade deals, and there is a risk that deals involving reciprocity could lead to standards being compromised. This concern has been identified by the report of the Delegated Powers and Regulatory Reform Committee of this House.

Also, given that skills shortages vary across the UK, and by time and sector, if a devolved Administration identify a skill shortage, will the Immigration Rules also be taken into account, not just the professional qualifications regulations? Clearly, that will be necessary.

The Government have stated that they would,

“not normally make regulations under these powers in devolved areas without the agreement of the relevant devolved authority”.

Right from the very beginning of the Brexit debate, however, we have debated what “normally” means. As the noble and learned Lord, Lord Thomas, has pointed out, it looks like a shifting definition, and one that is not to the benefit of the devolved Administrations—or indeed to the professions in the devolved areas.

In this context we should also consider the role of the assistance centre, whose staff should surely all be thoroughly conversant with all regulators, including in the devolved Administrations. The amendment from the noble Baroness, Lady Randerson, would be a helpful contribution to that, because the assistance centre is a welcome recommendation, but only if it is properly qualified and its staff fully appreciate what goes on across all aspects of the UK. In areas as complex and specific as professional qualifications, that is a big ask, which must be answered. The scale and diversity of the professions that we are discussing, and the regulators that engage with them, absolutely require that any changes should be carried out only after consultation and, wherever possible, consent.

As an example of this, Scotland has long had an all-graduate teaching profession. It is sad that Scotland’s education performance has fallen down the international scale; however, that is not the fault of the teaching profession but of a curriculum and examinations set-up that is simply not fit for purpose, yet whose reform is not being tackled. We are not short of qualified teachers. Many are unable to find permanent employment, which in itself is a scandal. We certainly need to tackle education reform in Scotland. In that context there may be a role for teachers from other countries to make a contribution, but it would be regrettable if standards were compromised in a trade deal, and if those teachers were recruited while well-qualified teachers in Scotland were unable to get employment in the profession, which is where we are currently.

The UK Government say that they are working with the devolved authorities on a number of common frameworks. I also have the T-shirt as a member of the Common Frameworks Scrutiny Committee, as do five noble Lords contributing to this group of amendments. The Government say that they are working on common frameworks to help co-ordinate policy development between UK nations where powers have returned from the EU and intersect with devolved competencies. This includes the mutual recognition of professional qualifications: the MRPQ framework.

In an update covering 26 September to December 2020, the Cabinet Office said that discussions on the framework made progress during that period but that development timelines should be extended. It went on:

“Agreement was reached between the UK Government and the devolved administrations that both MRPQ and Services should be developed over extended timelines to allow for more work to be done. All administrations remain committed to working to develop and agree these frameworks.”


That is all welcome, but I hope the Minister will agree that, as I have pointed out, the range and complexity of the regulation of professional qualifications, and uncertainty over the changes that may be needed, require formal consultation to be carried out and consent secured. How will this happen if we are operating on different timelines? The Government may be out there desperately trying to negotiate trade deals while all these procedures are in the process of a long, drawn-out common frameworks negotiation. As we know, the common frameworks are well behind the schedule originally hoped for and planned.

They have clearly set out the mechanism and an arrangement—which those of us on the committee feel has much to commend it—that seeks the maximum amount of co-operation and consent, looks to have fair and balanced dispute resolution mechanisms and ought to be the model for how the interconnection and co-operation between the UK Government and the devolved Administrations is carried through going forward. It would be good if Ministers acknowledged that so much has been learned in this process that it should be applied not just to those areas that were historically part of the transition out of the EU but to all future ways of working, and the principles on which the common frameworks have been founded and developed.

Professional Qualifications Bill [HL]

Lord Thomas of Cwmgiedd Excerpts

Committee stage
Tuesday 22nd June 2021 Lords Chamber

[Lord Davies of Brixton (Lab) [V]]

My Lords, I fully support my noble friend Lord Hunt and the remarks of the noble Lord, Lord Patel. I will look at the wording of the clause; I might be slightly more inclined to consider giving the Government these powers if I understood better what the clause is getting at. I admire and sympathise with the parliamentary draftsperson; I understand that there is a massive amount of custom and practice, but what does the wording of this clause actually provide? We know what the Government are trying to do—take all the power—but we should at least try to provide something vaguely comprehensible.

Let us look at the wording. Subsection (1)(a) says that you cannot modify the legislation; under subsection (1)(b) you can

“make different provision for different purposes”;

and under subsection (1)(c) you can

“make supplementary, incidental, consequential, transitional, transitory or saving provision.”

That is just a word salad. I assume that there are good definitions of all these words, which make them distinct, but I struggle to understand what they are.

Subsection (2) says that, under Section 8, there is no power to modify legislation. Does that mean that you can still make different provisions for different purposes under Section 8, or does the word “modify” encompass everything in one? Subsection (3) gives us even more words: “amend, repeal or revoke”.

I really hope we can get an understanding of what the real powers that can be exercised under this clause mean and what the distinctions are between all these different ways of expressing what to me—a lay person—seem essentially to be the same objectives.

[Lord Thomas of Cwmgiedd (CB) [V]]

It is a pleasure to follow the noble Lord, Lord Davies of Brixton, and his analysis of Clause 13. I do not wish to add to it, because each of the words used in that clause is deliberately used by parliamentary draftsmen for purposes that, at the moment, I do not fully understand. My objection to the clause—this is why I support the noble Lords, Lord Hunt and Lord Patel—is that this is yet another piece of framework legislation with extensive Henry VIII powers, unclear as they are, as the noble Lord, Lord Davies, pointed out. There are occasions when one can see a justification for Henry VIII clauses or wide regulatory powers, but we have to ask about the context, and the context of this Bill is the professions, however broadly we define them. It is essential that professions be regulated under a structure approved in detail by Parliament, simply because we must be certain, first, of the quality of the professions, and secondly, of the scope of the restrictions. Thirdly, we must be certain that the professions are completely independent of government interference, given the reliance the Government place on them and the need for them to be steadfast in their independence and independent advice and statements to government.

The debate earlier this afternoon on Amendment 45 showed the fallacy of trying to do what the Government propose. It is only because this Bill—framework though it is and vague though it is—has been fully subjected to parliamentary scrutiny that some of the really difficult issues and the lack of preparation have come out. I dread to think what will happen when we move to looking at the way the Bill is to operate under regulations. It is clear, then, that the regulations will not subject to detailed parliamentary scrutiny. What can be worse than passing what I regret to say, with due deference to parliamentary counsel, for whom I have the highest respect and have had the pleasure of working with on many occasions, is a wholly unsatisfactory and poorly prepared Bill? But a draftsman is not to be blamed for that. The blame lies with those who give the draftsman instructions.

This is the kind of Bill on which Parliament must now take a stand. We should not be legislating without good primary legislation that sets out the detail, so that we are sure how the regulatory powers are to be used. We should curtail the use of these powers in relation to matters of great importance to the prosperity and health of the nation, and that is the independence of the profession.

I therefore warmly support the noble Lords, Lord Hunt and Lord Patel, in this regard. I have not added to what the noble Lord, Lord Patel, said about Henry VIII powers because I do not think I could have improved upon his eloquent explanation.

[Baroness McIntosh of Pickering (Con)]

My Lords, first, it was churlish of me not to thank my noble friend the Minister for his enthusiastic embracing of the idea of a round table in connection with Clause 9; for that I am extremely grateful to him. I am also grateful that he asked us again to refer to the Explanatory Memorandum in relation to Clause 13, in addition to the remarks made by the noble Lord, Lord Hunt, in moving this amendment. The EM states that the powers under Clause 13

“may be used to modify legislation, including, where relevant, Acts of Parliament.”

Again, an Act of Parliament is being amended not by another Act, but simply by regulation.

Every Government like to govern by regulation and every Opposition would prefer things to be on the face of the Bill—that is just a fact of life to which I am becoming accustomed, having only served as a shadow Minister, not the real thing. But I would like to take this opportunity to ask my noble friend the Minister one specific question. Clause 13 as drafted is silent on any requirement to consult on these regulations. What consultation will there be, and at what stage might draft regulations be passed to the regulators as well as the relevant devolved Administrations? It is extremely important that they see them at the earliest possible stage.

Could my noble friend also put my mind at rest regarding an issue that the noble Lord, Lord Hunt, referred to in connection with Clause 9: the potential conflict between regulators of a devolved nation and regulators in another devolved nation or, indeed, the “mothership”—the English regulator? Might that situation arise under Clause 13? How would my noble friend aim to prevent that arising?

--- Later in debate ---

[Baroness Randerson (LD)]

My Lords, I am pleased to have the opportunity to support the amendment in the name of the noble Baroness, Lady Finlay. I shall take a moment to express my concern about the chaotic state of this Bill. I will not waste more of the time of this House by repeating what the noble Baroness said, but the omission of the social care regulator from the Minister’s letter was such an obvious error. I cannot help thinking that a lot of work still needs to be done to make this Bill ready to pass into legislation.

As the noble Baroness has said, as the Bill is drafted, the regulator confers a suite of regulation-making powers on the appropriate national authority. Welsh Ministers are that authority for the devolved professions and have a right to be fully recognised as that, not to have to ask for permission from the UK Government nor to have their existing powers overridden by this legislation. According to the Bill, those powers are to be exercised concurrently with the Secretary of State and Lord Chancellor, who could legislate in devolved areas and, as the Bill stands, would not need the consent of Welsh Ministers on those regulations.

It is worth adding that the situation in Wales is always slightly more complex, because of the nature of Welsh devolution; it started from a bad place, has moved forward significantly in gaining clarity and logic, but is not 100% there yet. There are areas where Welsh Ministers have some Executive powers that are not reflected in the legislative powers of the Senedd, and that has to be recognised.

The reassurance that we received from the noble Lord the Minister—I realise that the noble Baroness, Lady Bloomfield of Hinton Waldrist, will respond to this group of amendments—that the power to override Welsh Ministers would not normally be taken is of no great reassurance to us, because the UK Government have said that in the past and then overridden the decision of the Senedd or the wishes of Welsh government Ministers.

This is a serious issue for the Government and this Bill. I warn them that, as the Bill stands, the Government will not get consent from the devolved Administrations or the Senedd in Wales. They have to take that into account as, to get this on to the statute book, they must start by overriding Welsh Ministers and Senedd powers.

[Lord Thomas of Cwmgiedd (CB) [V]]

My Lords, the issue on which I speak will be brief and parallels what I said earlier on Clause 13. It is important to keep this Bill as defined as possible. This amendment tries to do that by forcing the Government to explain why the relatively simple issues on Wales cannot be dealt with in the Bill. If there is a real need for the consent of Ministers of the Crown for Welsh Ministers to exercise powers, can a reason be given?

As the Minister knows from her own experience, the Welsh devolution settlement is extremely complicated, and all this part of the Bill does is make it even more complicated again. I can see no reason why the consent of Ministers of the Crown is required for just two regulators in Wales. Therefore, if there is no real need for these powers, this clause should not be in the Bill. Otherwise, I entirely agree with what has been said by the noble Baroness, Lady Randerson, and my noble friend Lady Finlay of Llandaff. I hope the Government can explain why this clause is needed and, if there is no satisfactory explanation, remove it.

[Baroness Garden of Frognal (LD)]

My Lords, in the face of such Welsh expertise, I rise apprehensively as an Englishwoman to add my support to the noble Baroness, Lady Finlay, the noble and learned Lord, Lord Thomas, and my noble friend Lady Randerson, and to support Wales and the Welsh Assembly. We all recognise that the Scottish Parliament, the Northern Ireland Assembly and the Welsh Assembly have different powers, remits and terms of reference. However, it seems strange that the Welsh Assembly is the only one to require the consent of a Minister of the Crown before being able to act, whereas the others do not. If devolution is truly to mean that the different nations have mastery over their countries, this surely cannot be necessary. The noble Baroness has already pointed out that Wales has prestigious bodies which could undertake these tasks.