Professional Qualifications Bill [Lords]

Owen Thompson Excerpts

2nd reading
Wednesday 15th December 2021 Commons Chamber

[Owen Thompson (Midlothian) (SNP)]

May I start by outlining that although the Scottish National party is not against the principles of the Bill, we cannot support it as it stands? I am not looking to divide the House at this stage, because I hear from the Secretary of State that constructive engagement is taking place. We will be happy to look at what we can agree as the Bill progresses through Committee and its remaining stages, but it is certainly worth putting it on the record that there are concerns in the Scottish Government and in elements of Scottish civil society—I do not think that anyone is in any doubt about that.

The Bill’s intention is to facilitate the cross-border recognition and regulation of professional qualifications so that we can ensure an integrated system for the transfer of professionals. It is certainly welcome that the Government are addressing the issue; the regulation and recognition of qualifications from abroad is particularly significant to smaller countries such as Scotland that seek to attract incredible skills and expertise from our neighbours. As an example, the world-leading Scottish food and drink industry, and indeed that of the whole UK, has traditionally been very heavily reliant on the services of EU-qualified vets, who were able to bring their skills to Scotland under the terms of EU rules on the mutual recognition of professional qualifications.

We owe a huge debt of gratitude to those who bring their qualifications and skills to contribute to our industries, which is precisely why it is so crucial to recognise consistency in qualifications to support working across countries. SNP Members’ preferred solution, of course, would be to recognise Scotland’s democratic vote in 2016 and rejoin the European Union, but it might be pushing it a bit to persuade Government Members to do that. In the meantime, it is important that we have legislation in place to ensure that skills and experience are not lost in any steps that we take.

The SNP supports the key principles that the Bill seeks to address, but there are technicalities. Technicalities often matter a great deal more than principle, and unfortunately the Bill is another example of the Government using technicalities to undermine devolution and hoping that no one will notice. I will come back to that point shortly, but it is worth running through some of the Bill’s devolved implications more generally.

The whole Bill applies to Scotland. Certain professions and qualifications are reserved to this place, but plenty are not, including teaching, the legal profession and some social care professions. The Bill does not make separate provision for devolved and reserved professions; it applies to all regulated professions active in Scotland, whether they are reserved or devolved. I appreciate that the Government recognise that point to a degree and are seeking legislative consent from the devolved legislatures to clauses 1 to 10 and 15, as they should. However, there are other clauses that evidently fall within devolved competence but for which the Government are not seeking permission from the devolved Administrations.

Clause 13(1) provides that a power to make regulations under the Bill

“includes power…to make consequential…or saving provision.”

That the UK Government can consider a clause relating to consequentials as outwith the Scottish Parliament’s competence is a bit surprising, to say the least.

Clause 16 is really the devolution buster. When the Bill was originally introduced, it defined “appropriate national authority” as

“the Secretary of State or the Lord Chancellor”,

forgetting that Ministers of a devolved Government are also appropriate national authorities for provisions that fall within devolved competence. As the Law Society of Scotland notes:

“The Scottish Ministers are also an ‘appropriate national authority’ in relation to regulations under the bill which contain only provision which are within the legislative competence of the Scottish Parliament.”

Clause 16(3) helpfully remembers that Scottish Ministers are also a relevant authority. That is encouraging—it is progress—but there is still no provision requiring consent from a UK Minister to act in those areas.

In practice that means that any power conferred on the appropriate national authority in devolved areas can be exercised by UK Ministers. There is no requirement for UK Ministers to seek consent from the Scottish or Welsh Governments when exercising those powers. When the Secretary of State makes regulations under those powers, they would be subject to procedures in this place instead of the Scottish Parliament. The Bill alters the Executive competence of Scottish Ministers by enabling the Secretary of State to act in devolved areas without the requirement for consent. It is not the first time that that has happened, and for as long as Scotland remains part of the Union, I am sure it will not be the last.

The United Kingdom Internal Market Act 2020, which was passed in this place despite the Scottish Parliament and Welsh Senedd’s refusal of consent, treats devolution as an inconvenience to get around, rather than as a backbone of our constitution. Through that Act, the Government have given themselves power to subject

“healthcare services provided in hospitals”

in Scotland to market access principles, without needing the Scottish Parliament’s consent. It creates an external Westminster body that is responsible for testing whether a Bill in Holyrood would affect the UK internal market. Power has been taken from Scotland’s elected Parliament and placed in the hands of unelected bureaucrats—I am sure that sounds familiar from somewhere.

The Bill falls into a pattern of power grabs. As I say, we do not seek to oppose it at this stage, but I urge the Minister and the Secretary of State to take those points on board. When the devolved nations raise concerns about consent being ignored or not required, the response we have tended to get time and again from the UK Government is that they do not intend to use those powers without consent. However, we need more than pinky promises when it comes to what does or does not require consent. In that way, the Government avoid clashing with the devolved nations and are forced to keep their promises. Indeed, the only possible reason they would not do it is that they do in fact intend to meddle with devolution without consent. If that is not the case, I look forward to amendments being tabled to make that case solidly, and I say to the Government: prove me wrong.

In conclusion, I urge the Government to take these simple steps. Our asks on the Bill are relatively straightforward. The Scottish Government are currently recommending that the Scottish Parliament does not give its consent to the Bill. Its provisions are only required because we are leaving the EU—something Scotland voted against—and it adds insult to injury by trampling on devolution, which Scotland overwhelmingly did vote for. The Government do not have to be hellbent on making the Bill controversial and unconstitutional, and I urge the Minister and the Secretary of State to table amendments to bring it into line with devolution.

Professional Qualifications Bill [Lords]

Owen Thompson Excerpts

Report stage
Monday 14th March 2022 Commons Chamber

[Sarah Olney (Richmond Park) (LD)]

I rise to speak to amendment 3, which stands in the name of my hon. Friend the Member for North East Fife (Wendy Chamberlain). I am sorry to say that she is ill with covid, so I am here in her place.

The Bill allows UK Government Ministers to legislate on areas that would normally be under the authority of devolved Administrations. As it stands, there is no protection in place to allow the Scottish or Welsh Governments to revoke or amend these measures if needed. The entire reason we have devolved powers is to allow Ministers to make bespoke decisions that better reflect the needs of the local people and local economies.

The Minister’s statement that the purpose of the Bill is to ensure qualified professionals within the UK can work anywhere within the four nations clearly undermines the devolution settlement. We saw that with the United Kingdom Internal Market Act 2020 and we see it again here. Without the appropriate safeguards, the Bill further erodes both the powers we have in place in Scotland and in Wales, and the trust between our Governments. On many issues, the UK has subsumed EU law into UK law with a view to gradual divergence over time. We are concerned that this Bill takes a clean slate approach and may put the UK at a disadvantage when trying to fill vacancies at a time of acute shortages in some sectors. The Bill provides inadequate detail regarding its full intentions and scope, leaving provision open to interpretation. The Government must commit to ensuring the highest standards of professional qualifications are maintained and are not bartered away as part of any trade agreement.

Clause 7 would mandate the Secretary of State to set up an assistance centre for people looking to enter a qualified profession in the UK or people with UK qualifications looking to practise overseas. Regulators would be required to provide information to the assistance centre to allow it to carry out its functions. We welcome the provisions relating to a centre to provide advice on and assistance with entry requirements for those seeking to practise a profession in the UK, or those with UK qualifications seeking to practise overseas. The obligation to make arrangements for the assistance centre lies with the Secretary of State. Amendment 3, which we will be pressing to a vote, would require the Secretary of State to ensure that there are representatives for each of the devolved nations on the centre’s board.

The Law Society of Scotland has urged the Government to seek the consent of the devolved Administrations when setting up the assistance centre. We therefore think it imperative—this reflects the acknowledgement of the role of the devolved Administrations in earlier clauses in the Bill—for them to be consulted on the arrangements for its creation, and to be represented on its board.

[Owen Thompson (Midlothian) (SNP)]

Thank you for calling me, Mr Deputy Speaker—rather more swiftly than I expected.

It seems as though, week in week out, Members on this side of the Chamber in particular are shouting into the wind. Whatever legislation is put before us, we suggest amendments in good faith, only to have to rinse and repeat our previous arguments when the legislation returns to us with none of our proposed changes taken into account. We are therefore used to this Government doing hee-haw, but in this case they have actually made the Bill worse than it was before, disrespecting the devolved Governments and undermining the constitution over something that should not have been controversial.

The Scottish National party fully welcomes the principles behind the Bill, which will facilitate cross-border recognition and regulation of professional qualifications. Building an integrated system of transfer of professionals from abroad is particularly significant to smaller countries such as Scotland which seek to attract the skills and expertise of their neighbours. For example, the world-leading Scottish food and drink industry, and indeed that of the whole UK, has traditionally relied heavily on the services of vets qualified in the EU. Those vets were then able to bring their skills to Scotland under the terms of the EU’s rules on mutual recognition of professional qualifications. We are all for the idea of recognising consistency in qualifications; it is not controversial. However, the Government have managed to make it controversial: in fact, they have managed to create a constitutional stooshie out of thin air.

When I last spoke on the Bill, I raised concerns about its impact on devolution. The whole Bill obviously applies to Scotland, although certain professions and qualifications are reserved to this place.

[Sammy Wilson (East Antrim) (DUP)]

The hon. Member is right to say that it is correct for professional qualifications to be transferable across the United Kingdom, but in the past the Scottish Government would have had no say in any of this because it all fell under the European Union. There was no concern about devolution rights in that case. Why the sudden concern about devolution rights now that it rests with this Parliament?

[Owen Thompson]

The right hon. Member tempts me, but, as I was about to explain, we have a number of qualification areas in which these are devolved matters and not reserved to this place. Under the United Kingdom Internal Market Act 2020, the UK Government are now overruling devolved competences that were formerly in place.

The Bill does not make separate provision for devolved and reserved professions, so it applies to all regulated professions active in Scotland, whether reserved or devolved. It follows from this that, for those aspects of the Bill that affect the devolved nations’ areas of competence, special provisions should have been made to require devolved consent, which was touched on by my hon. Friend the Member for Ceredigion (Ben Lake). It was the case then and it is still the case now.

Clause 16 ensures that any power conferred on the appropriate national authority in devolved areas can be exercised by UK Ministers. There is no requirement for UK Ministers to seek the Scottish Government’s consent when exercising such powers. A Secretary of State making regulations under those powers would therefore be subject to procedure in this place rather than the Scottish Parliament, or any of the devolved Parliaments. Here we have a Bill that alters the executive competence of Scottish Ministers by enabling the Secretary of State to act in devolved areas without having consent to do so. That is entirely unnecessary, and undermines the good faith agreement between the Scottish and UK Governments on the principles of the Bill.

I listened to the Minister, and I welcome the fact that so much engagement took place, but it is clear that, despite all that engagement, there was still a lack of any willingness to shift in any way to take account of the positions of the devolved Governments. That is why I suggested that the Government take up the Scottish Government’s proposal to introduce an amendment to clause 16 to require devolved consent before UK Ministers dabbled in devolved areas. Not only have the Government rejected that perfectly reasonable proposal; they have fabricated a convenient reason to do so, arguing that the devolved Governments

“might undermine the implementation of provisions in international agreements on recognition of professional qualifications.”

--- Later in debate ---

[Sammy Wilson]

I am not quite clear about the hon. Member’s logic. If he is saying that the Scottish Government would feel obliged to abide by any international agreements, there would not be any leeway for them to act independently anyway. What point is he trying to make? What independence is he seeking for the Scottish Government, or the Northern Ireland Assembly, or the Welsh Government?

[Owen Thompson]

I think the key word in that intervention is “agreements”. The Scottish Government, or within the European set-up the UK Government, would agree these frameworks with Europe. In this situation, the Scottish Government, and the Governments of Northern Ireland and Wales, have no say in what is imposed by this Westminster Government.

The truth is that there is nothing exceptional or even particularly noteworthy about a requirement for UK Ministers to seek such consent. It has been requested by the relevant Committees of the Scottish Parliament, confirmed by a vote of the Parliament as a whole, and raised multiple times in this place. It is not worth overriding the Sewel convention—something extremely serious which has happened on only four occasions, all of them directly related to major EU exit legislation. That makes one wonder if the Government are content to undermine the Sewel convention to the point at which it is no longer even a convention. Seeking consent would constitute little more than recognising devolved responsibilities and respecting the UK constitution, so the Government have some serious explaining to do to the Scottish Parliament if they go ahead with overriding Sewel yet again.

This farce has brought the Scottish Government to a point at which they simply could not recommend that the Scottish Parliament give the Bill its consent, and that should not be taken lightly. That said, I am heartened that we have a new clause before us—tabled by the hon. Member for Ceredigion, albeit not to be pressed to a Division—that could deal with the issue. It changes the consultation requirement to a consent requirement, and removes the procedure by which the Government could ignore devolved views and simply report to the House on why they did so. I sincerely hope that the Government will look at the new clause seriously. This is not political point-scoring; it is about protecting the constitution as it currently exists. That is evidenced by the fact that the Law Society of Scotland supports the argument that I am advancing today. The Government have assured us time and again that they have no intention of overriding devolution, so why not put it in writing instead of relying on a pinkie promise?

The Bill falls into a pattern of power grabs and disdain for consent, from Brexit to the United Kingdom Internal Market Act, and little wonder, because it comes from a Government led by a man who called devolution a disaster. This disdainful attitude to UK-Scottish relations damages the UK Government’s claims that they welcome early engagement on the Bill. It also severely undermines their commitments to recently agreed intergovernmental arrangements. I hope that the Minister will reflect seriously on the unnecessary damage that the Bill will do to devolution in its current form.

[Stewart Hosie (Dundee East) (SNP)]

On the point about the damage that the Bill could do, is there not a point of principle at stake? This Government appear to be putting administrative utility ahead of devolved democratic considerations enshrined in various bits of Scotland Act legislation that should not be overridden lightly, particularly on matters such as professional qualifications.

[Owen Thompson]

My right hon. Friend makes an excellent point, and I absolutely agree. Of all the things to pick an argument over, why create this situation over something on which we broadly agree and are actually on the same page? It is not too late. My right hon. Friend is not pressing his amendment to a vote, but the Government could still accept new clause 5 so that we could fix this situation and deal with it. I sincerely hope that the Minister will prove my concerns wrong.

[Bill Esterson]

I will speak to new clauses 3 and 4 tabled in my name, then briefly come back to the Government amendment and to amendment 3. During the progress of this Bill through the Lords, it became clear that it had been thrown together in a completely unsatisfactory way. The Financial Times described the way in which the Government introduced it as a

“chaotic handling of a post-Brexit regime for recognising the qualifications of foreign professionals”.

Remarkably, the Government admitted introducing the Bill to Parliament without knowing which professions were in scope. We argued in the Lords that we had to know who and what was in the scope of the Bill. It stands to reason that the relevant regulators and professions need to be aware of these changes. Having initially listed 160 professions and 50 regulators that would be affected by the legislation, the Government twice published a revised list, ultimately increasing the numbers to 205 professions and 80 regulators. Due to do the increased number of regulators in scope, the Government also had to publish an updated impact assessment, with the total cost to regulators increasing by almost £2 million. That is hardly the way to inspire confidence that the legislation will help businesses or skilled workers.

The Government were criticised from all sides in the Lords, including by those on their own Benches. Baroness Noakes said that the legislation had

“all the hallmarks of being a Bill conceived and executed by officials with little or no ministerial policy direction or oversight…we learn that the Bill was drafted with a far-from-perfect understanding of the territory that it purports to cover. This is no way to legislate.”—[Official Report, House of Lords, 22 June 2021; Vol. 813, c. 149.]

How can regulators and regulated professionals know where they stand when the Ministers responsible for the Bill do not even know themselves? When I raised this in Committee, the Minister responded that he had

“reservations about enshrining a list in the Bill.”

This was because of concerns about not knowing which professions were ultimately covered. He went on to say that the Government had committed to

“maintaining a list of regulated professions and regulators to which they consider the Bill applies, and to keep that list readily accessible and in the public domain.”––[Official Report, Professional Qualifications Public Bill Committee, 18 January 2022; c. 30.]

It is of course encouraging that the Minister has made such a commitment to maintaining a list. I am not asking Ministers to place a list of regulators on the face of the Bill, but for the certainty that regulators and professionals need to be able to operate with confidence, it is important that they now know whether they are within the scope or not, and that means maintaining the list that Ministers have agreed to keep in the public domain. Web pages can be deleted, links can be lost, and without an amendment requiring the maintenance of a list, there will be no legal duty on Ministers to do so. Indeed, if they decided on the day following the granting of Royal Assent to this Bill that they no longer wanted to publish the list on the gov.uk website, they could remove it. This amendment, which I will not be pressing to a vote, is a reminder that the Secretary of State and the Minister need to maintain the list in the public domain, as promised, for the benefit of the professions and professionals who need certainty. This should not be a controversial point, and I hope the Minister will confirm that that is indeed what will happen.

Turning to new clause 4, the Bill provides a framework to allow mutual recognition of professional qualifications between regulators and professional bodies in the UK and the equivalent organisations overseas. The provisions in clauses 3 and 4 will allow for the implementation of regulator-to-regulator mutual recognition agreements and of the recognition arrangements in new international trade agreements. As the Law Society tells us, the Bill will enable the mutual recognition agreement provisions in the UK-EU trade and co-operation agreement to be implemented. However, the Law Society also says that the provisions for mutual recognition agreements in the TCA are largely based on the EU-Canada comprehensive economic and trade agreement—CETA—but that in fact no mutual recognition agreements have been signed between the EU and Canada using the provisions in CETA in the three years since CETA came into force. The failure to use the provisions on which the Government are relying raises the concern that the provisions are not sufficient. To remind ourselves, this legislation, if applied effectively, might well help to address shortages in a multitude of professions, including the chronic shortage of nurses and vets.

In Committee, I asked the Minister how his Department would put in place the additional support, co-ordination and guidance needed to make the most of the provisions in the trade and co-operation agreement, especially if they are to form the benchmark for future free trade agreements. There is real concern that the model on which the provisions in the legislation are based will not deliver results. That is why I tabled new clause 4, which would oblige the Secretary of State to provide guidance to regulators on how to make the most of the provisions in the TCA.

The Minister has written to me since the Committee stage to say that BEIS has engaged with 20 regulators of professional bodies. It will be important to see that such engagement leads to the delivery of mutual recognition agreements using the template on which the Government are relying. The Minister referred in Committee to a limited pilot recognition arrangement programme. I would be grateful if he could explain how effective that pilot has been so far, and how he foresees its leading to the successful implementation of new regulations.

I shall turn now to what the Minister said about new clause 1. In Committee we tabled two amendments to address the concerns raised by the devolved Administrations. We asked for consistency from the Government in the way they approach this Bill. The consistency we asked for in one of the amendments involved a similar amendment to that included in the United Kingdom Internal Market Act 2020. I see from new clause 1, having read it a number of times, that it is consistent with what is in the internal market Act and I thank the Minister for listening to the concerns that we raised, even though the Government voted against our amendments in Committee.

The Minister has addressed the concerns about those matters on which the devolved Administrations can make recommendations. That is an improvement on the more “flexible” approach to consultation that he talked about in Committee. That informal approach would have left no formal consultation mechanism. We have heard reservations expressed by a number of hon. Members on that, and I trust that the Government will still seek consent, in the spirit of new clause 1, when applying the regulations that are relevant to the devolved Administrations.

Briefly, I can tell the hon. Member for Richmond Park (Sarah Olney) that we will be supporting amendment 3. Representation of the devolved Administrations on the board is an important principle, and something that we return to again and again in legislation. We believe that, in the interests of the devolution settlement, that is entirely appropriate.

--- Later in debate ---

[Owen Thompson]

I will be brief. The comments that I made earlier still stand. We have not seen any movement at all to recognise the genuine concerns of the devolved Parliaments of these nations, without which we cannot support the Bill as it stands. Pinky promises and “We might not do this” or “We wouldn’t intend that to happen” simply are not enough. That completely undermines the devolution we have, and on that basis we will oppose the Bill.

Question put, That the Bill be now read the Third time.