Professional Qualifications Bill [HL]
Report
17:15:00
Clause 1: Power to provide for individuals to be treated as
having UK qualifications
Amendment 1
Moved by
1: Clause 1, page 2, line 9, at end insert—
“(3A) For the purposes of subsections (1) to (3)—(a) a condition
may be specified under subsection (1) whether or not it is
connected to the specified UK qualification or specified UK
experience concerned, and(b) a determination mentioned in
subsection (2)(b) or (3)(b)(i) may be made—(i) on the basis only
of the overseas qualifications or overseas experience concerned,
or(ii) on such other basis as the specified regulator considers
appropriate (such as on the basis of the overseas qualifications
or overseas experience concerned together with the results of any
test or other assessment given by any person).”Member’s
explanatory statement
This amendment makes provision about the additional conditions
that may be specified in regulations under subsection (1) of the
Clause and makes provision about the basis on which a
determination mentioned in subsection (2)(b) or (3)(b)(i) of the
Clause may be made.
The Minister of State, Department for Business, Energy and
Industrial Strategy and Department for International Trade
() (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 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 for his input, and I beg to
move.
(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.
(Lab)
My Lords, I too support Amendment 1. I pay tribute to the noble
Lord, , 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, , 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”.
(CB)
My Lords, I add my thanks to the Minister for having met with me
and for having, as I know, consulted extremely widely on the
Bill. I seek a tad of reassurance from him on his Amendment 1,
fully accepting the comments that the noble Lord, , made on the issues around
fitness to practise. It would be very helpful if the Minister
could confirm that the ability of any regulator to determine
fitness to practise and other issues will be up to that
regulator, and that that consultation will extend across the four
nations of the UK.
17:30:00
There may be differences with some disciplines—a classic is the
use of the Welsh language—but that could be taken account of in
regulation and would not be overridden by this amendment. So I
personally would like some reassurance on this in his summing up.
But I would like to thank him and I recognise that my own
regulator—I should have declared at the beginning that I am
registered with the General Medical Council and so have a vested
interest—is much happier than it was when the Bill first came to
us.
(LD)
My Lords, I first apologise for arriving a tad late; I was at the
Economic Affairs Select Committee and had to sprint down the
Committee Corridor when I saw the Bill coming up.
When this Bill went on its holiday in July, after Committee, I
think we were all pleased that there would be a moment of
reflection—and it has come back a much-refreshed Bill. The
Minister did not go on holiday but worked with us across the
Floor to help the refreshing process. We see evidence of that in
both this and later amendments. At the beginning, we on these
Benches shared the same suspicion that the noble Baroness, Lady
Hayter, had: Clauses 1 and 2 looked as though they might have
been Trojan horses for something far more dangerous to the system
than the Minister wanted us to believe. This amendment works very
well in dispelling that suspicion, so we are very supportive of
it.
Briefly, on Amendment 2 in the name of the noble Lord, , I agree with him that the
combination of government Amendments 1 and 12, which will come
later, do a good job in handing over the role that he envisaged
to the regulatory authorities. In that respect, we believe that
it is no longer necessary. So we welcome government Amendment 1
and look forward to rest of this debate, in which we will
continue to make a few comments on outstanding issues.
(Lab Co-op)
My Lords, I first thank the Minister for his kind wishes on my
birthday. Where else would I want to be but at the Dispatch Box
responding to the debate? This will be my only appearance on the
Bill today. I did think when I became Opposition Chief Whip on 1
June that the House had earned a rest from listening to me speak
at the Dispatch Box. People will have had views as to whether
that was a good or bad thing, but it does not seem to have worked
out that way; I am still here.
I feel at a bit of a disadvantage, having looked back at the
debates and seen the quality of the contributions of Members who
have spoken with vastly more experience than I have on these
matters. At this point, I particularly want to pay tribute to my
noble—but also dear and good—friend Lady Hayter of Kentish Town
for all her work for the Opposition on this Bill and as Deputy
Leader of the Labour Lords. We have been involved in several
battles over the years—always on the same side, I am pleased to
say—and I look forward to her work in her new role as chair of
the International Agreements Committee.
Government Amendment 1 seeks, as we have heard, to address the
concerns that we raised in earlier debates and which, as the
noble Lord, , said, he put into his
amendment. In that sense, we as the Opposition are very happy
with what has been proposed by the Government and we look forward
to the next steps. In particular, I saw the point he made about
the need to address those important clarifications—to ensure that
we give legislative assurance to regulators that they will have
the tools they need to ensure that overseas qualifications are
effective, recognised and appropriate for the work that people do
in our jurisdiction. I will leave it there, and I look forward to
the Minister’s response.
(Con)
My Lords, it is even more of a pleasure to do this Report with
the debate having started in such a positive way. I thank noble
Lords for that and say unreservedly that the scrutiny and
discussions that I have had with noble Lords over the last few
months have improved the Bill to the point that it has reached
today.
It is a great pleasure to welcome the noble Lord, Lord Kennedy,
back to the Front Bench, perhaps for the last time, and, of
course, I have not seen the last of the noble Baroness, Lady
Hayter of Kentish Town; I look forward to dealing with her in her
role as chair of the IAC. If I may say so, I have never seen the
noble Baroness lacking oomph in any way whatever, and I am sure
that will be the case in her new role. I thank, in particular, my
noble friend for his input into this
amendment. The eagle-eyed scrutiny that my noble friend gives to
the legislation in front of this House always ends with
improvements being brought forward.
I can completely reassure the noble Baroness, Lady Finlay of
Llandaff, that fitness to practise sits absolutely with the
regulators—we will be reaffirming this perhaps even more strongly
when we discuss regulatory autonomy later on—and that all four
nations will of course be considered on their merits. There is no
desire whatever to impose any form of uniformity where it does
not exist. With that, I thank noble Lords for the comments that
have been made and beg to move my amendment.
Amendment 1 agreed.
Amendment 2 not moved.
Amendment 3
Moved by
3: Clause 1, page 2, line 27, at end insert—
“(5A) Regulations under this section relating to a regulated
profession may not be made unless—(a) they have been published in
draft form, and(b) the relevant regulators have been consulted on
them for a period of three months beginning with the day on which
they are published.”
(Lab)
My Lords, we have moved faster than I anticipated. I rise to move
Amendment 3 but give notice that I will in due course want to
withdraw it in favour of government Amendment 13 in the name of
the noble Lord, Lord Grimstone. It is in one way so obvious that
regulators must be consulted that we would have hoped not to have
to write it into the Bill. However, the Bill was published
without even a complete and correct list of the affected
regulators, and some were, as we have already heard, very worried
at the start about their position. We also know that the
Government have been a little tardy in consulting with the
devolved authorities. This is about consulting regulators, so it
is in a sense due to the experience of a slight lack of
consultation—not in the Minister’s work over the summer, it is
true, but prior to that—that we felt the need to write this on to
the face of the Bill.
So it is partly because of that history, but it is also good for
Parliament that this consultation must take place. It means that
the regulators will be doing some of our job. They will be
consulted, and they can alert your Lordships’ House and, indeed,
the Commons, should they see any problems arising in this regard.
Since they will have to be consulted, they will in a way be our
eyes and ears over the implementation of the Bill and will alert
us should anything be done contrary to the great reassurances
that we have had. I am sure that that will not be the case, but
it gives comfort to know that this consultation will have to
happen. I beg to move.
(Con)
My Lords, I congratulate the noble Baroness on her amendment and
on her appointment as chair of the IAC. I too welcome and
congratulate my noble friend the Minister on bringing forward his
government Amendment 13. I also thank him and his officials in
the Bill team for the meetings that I have had since we
originally discussed this and other parts of the Bill.
I would like to put one question before we come to discuss later
amendments of mine in relation to a later clause. Why have the
Government limited their Amendment 13 to apply only to Clauses 1,
3 and 4 when there are other, even more—or just as—important
parts of the Bill that I think would benefit from the amendment?
We can come on to discuss this, but only Clauses 1, 3 and 4 will
benefit from the amendment. I would be very interested to know
why it has been limited to those clauses, for reasons that we
will come on to discuss later.
I take this opportunity to thank the noble Lords, Lord Foulkes
and Lord Bruce, for co-signing Amendment 4 and the noble and
learned Lord, of Craighead, for his support. We
are hoping to require the national authorities to consult on
draft regulations under the Bill. I am sure my noble friend would
agree that the measure contained in this clause is important and
wide-ranging and affects a considerable number of professions—I
think it is 160, as stated in the Explanatory Notes. Governments
across the UK cannot be expected to have the in-depth knowledge
of all these professions to enable them to legislate without
pre-legislative consultation.
Let me repeat the remarks made by my noble friend the Minister in
responding to a similar amendment I moved in Committee:
“I fully agree that it is important for the relevant national
authority to engage with a range of stakeholders before making
regulations. Because of the complexity of these matters, it would
be the height of foolishness not to do that.”
I agree entirely. Does he therefore agree that in making the
regulations, the range of interested parties should include the
professions and others? I know that he had hoped—I think this is
in connection with these amendments—that there would be agreement
from the devolved Assemblies, and it would be interesting to hear
why they were unable to agree legislation to put in place in this
regard.
Amendment 7 is voiced in similar terms. Clause 3 grants a power
to Ministers to amend legislation to put into effect provisions
negotiated in free trade agreements, or other types, relating to
the regulation of professions, such as the recognition of
professional qualifications. We are seeking to introduce a
similar requirement to consult before regulations are laid to
implement international agreements under Clause 3. To quote again
from my noble friend’s comments in Committee:
“In all international negotiations relating to professional
qualifications, a key concern for the Government has been
ensuring the autonomy of regulators and protecting UK standards,
as I said earlier. In light of the Government’s concern, and the
importance that we attach to this point, there are already
extensive engagement mechanisms for consulting before and during
these negotiations … I hope my noble friend is reassured that the
Government, of necessity, would have concluded extensive
engagement ahead of this point in order to actually create the
free trade agreement in the first place.”
We would like an assurance from my noble friend the Minister this
evening that there will be an obligation to consult, not just an
intention to consult. There can be lots of good intentions, but
they are never actually brought to fruition. It would also act as
an aide-memoire for the Government to engage with those bodies
and individuals who might be affected by the implementation of
the international agreement.
Noble Lords will see that there is a theme here. Clause 5 looks
at the revocation of the general EU system of recognition of
overseas qualifications, and Amendment 8 seeks to pin down what
will be a very wide regulation-making power. Accordingly, I ask
my noble friend to agree that there will be a proper
consultation. Amendment 8 introduces a requirement to consult
before laying regulations that make consequential amendments
following the revocation of the existing EU-derived recognition
system.
In Committee, my noble friend the Minister said:
“I envisage that these enactments would be very limited in scope.
They are necessary purely to tidy up the statute book after
revoking the existing EU-derived system, for example by removing
cross-references to the current system in other regulations.
Given that these are primarily small fixes, it would be
disproportionate to consult on them. The Government will, of
course, work closely with interested parties to ensure that there
are no unintended impacts of bringing forward these consequential
amendments.”—[Official Report, 9/6/21; col. 1500.]
These amendments have come from the Law Society of Scotland, for
whom I hold no brief. However, as a non-practising Scottish
advocate—a non-practising member of the Faculty of Advocates—we
always look to solicitors to give us instructions at the best of
times.
17:45:00
Amendment 8 looks at the revocation of the bulk of retained EU
law. Is my noble friend the Minister really saying that, when the
noble Lord, , has undertaken to commit a full
revocation of retained EU law, there are no circumstances
whatever in which he would envisage that there would be a
consultation, not just of the professions but of the devolved
Administrations? Amendment 9 is in the same vein, looking at
Clause 6 on the revocation of other retained EU recognition
law.
I accept that my noble friend has come forward with a form of
words in Amendment 13 that goes so far; it is great so far as it
goes, but I would like to understand the background of why we
have fallen short of a full consultation with the devolved
Assemblies. This is really just following up the conversation
that we had, and I pay tribute to my noble friend for all the
contacts he has had. But perhaps he could put a little bit of
flesh on the bones this evening as to why the devolved
Administrations felt they were unable to come forward with a
legislative consent Motion in this regard.
I would like to raise a couple of concerns from the Law Society
of England in connection with this group of amendments. I think
that it very much approves of what the Government have achieved
through the EU-UK Trade and Cooperation Agreement and hopes that
this will form the benchmark for future FTAs. However, I would
like to quote from one part of its brief:
“We are concerned that legal services asks can too easily be
dropped from current and future negotiations, especially if the
going gets tough. Legal services are central to the export and
investment agenda, as an enabling sector supporting their clients
in their international strategy. If we cannot be there to support
our clients, they will find it more difficult to realise the
opportunities of the government’s work on international
trade.”
There is a very real concern among the professions that, like we
have lost free movement, we are not going to enjoy the mutual
recognition and the right to practise that we had in the past. I
state for the record that I have been very privileged to have
worked in two law firms in Brussels some years ago, so I
benefited from free movement and the right to establish myself
and practise law in another jurisdiction.
I think my noble friend has to have regard to the well-documented
importance of legal services to the whole of the United Kingdom,
and I hope he will give me an assurance this evening that we can
also look forward to making sure that this is the case in future
trade agreements and co-operation agreements. Perhaps he can give
us a concrete indication of how the legal service provisions will
play out in those agreements that have been agreed, for example
with Australia and New Zealand.
With those remarks, I ask my noble friend to look favourably on
these amendments. Even if, at the end of the day, we prefer the
contents of government Amendment 13 this evening, I have severe
reservations as to why we are not in a position to consult with
the devolved Administrations in the clauses to which the
amendments I have just spoken to refer.
(LD)
My Lords, I am pleased to follow the noble Baroness, Lady
McIntosh, having co-signed three—and I probably should have
co-signed four—of the amendments she has tabled. I will not
repeat what she has said but I hope the Minister will answer her
questions about why his amendment does not cover all the sections
and exactly why the devolved Administrations are hesitant at this
stage. However, I see from the report in the Scottish Parliament
that it has acknowledged that amendments not yet passed might
alter the position. Does the Minister have any intelligence as to
whether the Scottish and, indeed, the Welsh authorities might be
a little more inclined to recognise it? He acknowledged in
Committee that consultation was effectively necessary, so it
needs to be in the Bill.
There are one or two Scottish aspects where the professional
standards are distinctively different, particularly in relation
to teaching and, obviously, to law. It is probably worth
commenting on the very disappointing decline in standards of
education, particularly Scottish secondary education, in recent
years. That is in no way attributable to the quality of training
or the performance of the teachers, but because of the
dysfunctionality of the curriculum and its failure to interact
effectively with the exam authority, which of course is in the
process of being abolished because of its proven long-term
incompetence that has done so much damage to Scottish
education.
This is not a question of pretentiousness or exceptionalism and
saying that somehow Scotland has got it right. It is about
recognising that Scotland is proud of the fact that it has
pioneered an all-graduate teaching profession and certainly would
not wish it to be eroded. It is also true that Scotland has had
rather variable performance in recruitment and retention of
teachers. Some years it has trained too many and not been able to
absorb them, and in other years not as many have come out as are
needed and it has had to recruit from Ireland and Canada. There
is no suggestion that there is not scope for importing a
professional qualification but there is a perfectly legitimate
reason to say that, if the UK Government were minded to allow for
them, they should take full account of Scottish circumstances and
allow the Scottish authority to be consulted and indeed to
comment on and shape things.
Similarly, Scots law—criminal law, land law and other aspects—is
distinctively different. The noble and learned Lord, , will know much more than I do
about that. There are areas of law that are similar and areas
that are clearly different. I would find it bizarre if a
Secretary of State who is effectively in an English department
felt able to pass legislation that affected practising law in
Scotland without consulting the relevant body. The question quite
simply is: would it not be better to make it clear on the face of
the Bill that consultation would be a statutory practice, rather
than something that is there for a matter of good will?
The noble Baroness, Lady McIntosh, also mentioned European
qualifications. There was an aspect of the trade agreement—the
Brexit agreement—where it appeared that the potential for
professional qualifications to be better recognised in future
than they have been in the past was in the offing. It may still
be in the offing. However, for that to be secured, it clearly
requires a highly delicate determination of professional
qualifications in the context of the single market and other
aspects of trade negotiations that the Government will be
pursuing.
I finally say to the Minister that it would be good to have
reassurance that, in pursuit of these amendments, the Government
will recognise that they have to take account of all aspects of
professional qualification recognition both with the EU that we
have left and with the other countries with which we are trying
to engage, and not trade the one off against the other.
Professional bodies that represent these qualifications in the UK
need to be consulted in advance of that, rather than being
presented with a fait accompli that may damage both the ability
to recruit people to meet the UK’s needs and UK-qualified people
having the opportunity to practise abroad. If we lose one because
it is traded off against the other, that is not a win-win; it is
a lose-lose.
(Lab Co-op)
My Lords, it is a great pleasure to follow the noble Lord, Lord
Bruce of Bennachie—if I have got the pronunciation right.
Bennachie is a wonderful part of Scotland but he reminds me that
maybe I should declare an interest. I am a proud father in that
my daughter is a teacher and therefore registered with the
General Teaching Council. I am just as proud that my
granddaughter is training to be a nurse so she will come into one
of these categories as well. I am not sure that I really have to
declare that interest, but it is nice to say that anyway, is it
not?
I am also pleased to be one of the three signatories to some of
the amendments; in other cases, I am one of four signatories,
with the noble and learned Lord, . That makes for all-party support
for the amendments, most of which are the brainchild of our
mutual friend Michael Clancy of the Law Society of Scotland, for
whom we have to give many thanks and wish him well, at the moment
particularly. I was thinking that not only is it an all-party
amendment, but that the route from Pickering to Bennachie via
Cumnock would be a wonderful trip for Susan Calman. I hope you
all watch that wonderful programme where she drives a little
campervan called Helen, named after Helen Mirren. I am not sure
if that is a compliment or not, but it is certainly a very good
programme. I am probably running off the topic a little.
Fortunately, the Chair does not have the same powers here as I
used to suffer from in the other place when I was drawn to—
(Con)
I do.
(Lab Co-op)
Oh! I will see the noble Baroness later; I thank her for drawing
my attention to that.
I wholly support what the noble Baroness, Lady McIntosh, has put
forward. This is the only speech I am going to make today
although I support a number of other amendments. I want to make
two points. I take every appropriate opportunity to criticise the
UK Government. I did so earlier today at Question Time, so no one
can accuse me of not being critical when it is appropriate.
However, today I join in with what others have said to the
Minister. From all that I have heard from the noble Baronesses,
Lady McIntosh and Lady Hayter, and from a number of others, the
Minister has been really helpful in taking account during the
summer of all the representations, and all credit to him for
that.
My second point is that sometimes I feel in some areas—not in
all—the UK Government are a bit better than the Scottish
Government. The Scottish Government are not good at consulting.
They do not consult local authorities. They do not devolve powers
in the way that they should in Scotland. Scotland is a third of
the land area of the United Kingdom. It is a big country.
Scotland is not a unified, homogenous country. It is a very
diverse country. The highlands are very different from Glasgow,
which is different again from the borders, which are different
again from Edinburgh and different again from Dundee. They are
very different and I am afraid that the current Scottish
Government do not seem to fully recognise those differences and
take account of them from time to time. I am very pleased that we
are suggesting two things today. One is that they should consult
all the appropriate regulatory bodies; I agree with that. That is
what we are talking about today in these amendments; I am in
order now. Also, later we should consult with the devolved
authorities in areas where they have competence and an interest.
It is right to do that.
Sometimes we talk about treating them as equals; I have heard the
noble and learned Lord, , and others do so. I do not want
to disagree with those noble Lords, but they are not equal. We
should treat them with total respect, but they are not equal to
the UK Government. The UK Government are the sovereign Government
of the UK, and devolved authorities are devolved. There is a big
difference between devolution and separation. The SNP tries to
forget about that and elide the two, pretending that one just
moves into the other, but it does not. Devolution is power
devolved from the UK Government. There ought to be more power
devolved in England; that is where the democratic deficit is.
18:00:00
So we should make sure that the Scottish and Welsh Governments
and the Northern Ireland Executive are consulted appropriately,
but we should not say that they are exactly the same. The word
“equal” can be misconstrued. We should treat them with total
respect; we should respect them in relation to all the devolved
powers, give them control and indeed encourage them to take
control over those. In fact, I wish they would do that more
often; sometimes in Scotland they want to pass powers back to the
UK because they are not able to exercise them properly.
As I say, this is the only time that I am going to speak, and I
am grateful to the Whips for allowing me to wander over the topic
a bit. I support the noble Baroness, Lady McIntosh, and the work
that she has done on these amendments and on the others, which I
fully support.
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, , 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.
(Con)
My Lords, I hope noble Lords will forgive me, but I want to
intervene briefly in the debate. I am , 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.
(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?
(Lab Co-op)
My Lords, the Opposition have been clear through the passage of
the Bill that regulators need statutory protections to ensure
that they are consulted on the regulations made under it. That is
why my noble friend Lady Hayter of Kentish Town tabled Amendment
3. Other amendments in this group, Amendments 4, 7, 8 and 9, seek
to achieve the same thing. I had a very positive meeting with the
noble Lord, Lord Grimstone, a couple of weeks ago, and was happy
to see a copy of his Amendment 13, which we support. It is
welcome. The Government have listened, as the amendment requires
the appropriate national authority to consult the regulator of a
regulated profession before making regulations under Clauses 1, 3
and 4. We are happy to accept that, and my noble friend has no
intention to divide the House on her Amendment 3.
The noble Baroness, Lady McIntosh of Pickering, made some very
important points on consultation with the devolved
Administrations. I very much agreed with those, and with the
comments of my noble friend that we must always
treat the devolved Administrations with respect for their mandate
and the work they do. Equally, the United Kingdom Government is
on a different level, and we are all proud citizens of the United
Kingdom. I support the comments he made, and of course enjoyed
his speech very much. I hope on his trip he will pop down to the
London Borough of Southwark, a wonderful borough with historical
connections to Geoffrey Chaucer, William Shakespeare, Charles
Dickens, Michael Faraday, John Ruskin and many others.
(Lab Co-op)
South of the river?
(Lab Co-op)
Yes, absolutely. But if he cannot, I know that he knows it is a
wonderful place and I enjoyed his speech very much. I also agree
with the key points made by the noble Lord, Lord Bruce, that it
is different in Scotland. We recognise that. So I am very pleased
with the amendment from the Government Front Bench and I look
forward to the Minister’s response.
(Con)
My Lords, I will speak first to the amendment in my name on
consulting with regulators, and then respond to the other
amendments in this group. A later group deals specifically with
consulting the devolved Administrations, and I will leave the
points raised by noble Lords in relation to that and to LCMs
until then, which is the appropriate place. That would include
the points made by the noble and learned Lord, of Craighead, who spoke from the
perspective of the Constitution Committee. I will write to him as
he requested, but I do not recognise at all the description he
gave of the process I have undertaken with the devolved
Administrations. I will come back to this, but nobody could have
reached out more than I did, or held more meetings with my
counterparts in the devolved Administrations. The schedule of the
meetings that my officials have held with the devolved
Administrations runs to several pages, and I will make sure that
I give that information to the noble and learned Lord when I
write to him.
18:15:00
I am proposing an amendment to place a duty on appropriate
national authorities to ensure that regulators are consulted
before certain delegated powers in the Bill are used. This was a
matter we dealt with extensively in Committee. I listened
carefully and I am pleased that the amendment I put forward today
seems to cut the mustard. I thank your Lordships, who over the
course of these debates have highlighted the need for
transparency and scrutiny, and the importance of regulators being
involved in shaping any regulations made under this Bill.
Noble Lords have also challenged the Government on the use of
delegated powers in this Bill, particularly in Clauses 1, 3 and
4. In reply to my noble friend Lady McIntosh as to why these
three clauses were chosen, it is very much that they are the guts
of the Bill which either will most affect regulators by placing
substantive obligations on them regarding recognition, or for
which there has been clear challenge in this House about the use
of delegated powers.
Others in this Bill, such as regulations under Clauses 8 or 10,
are highly unlikely to do so, as they would result in minor
updates only. Regulations under these clauses would place only a
very limited burden on regulators, as set out in the impact
assessment. Indeed, consulting could place more burden on
regulators to respond to the consultation on those clauses than
the regulations themselves. It would be disproportionate to
attach a duty to consult on them—but that is not to say for one
moment that we will not keep closely in touch with regulators as
the Bill is implemented, as I hope it will be in due course, and
of course we will listen to regulators when we have those
consultations with them. But I draw a distinction between the
statutory duty to consult and the consultation that we always do
in the normal course of business with regulators.
I appreciated during our debates in Committee that noble Lords
were raising valid concerns. While I have repeated at the
Dispatch Box my commitment to ensuring that appropriate
consultation takes place, I understand that this House requires
greater certainty. That is why I am introducing this new clause,
which places a duty on the appropriate national authority to
consult with regulators prior to making regulations under Clauses
1, 3 and 4. I have described why those clauses have been chosen.
Regulations made under these clauses will interact very directly
with regulators and their powers, for example through empowering
regulators to assess overseas qualifications under Clause 1,
placing obligations on them under Clause 3, or enabling them to
put in place recognition agreements under Clause 4. These clauses
also attracted particular interest from the DPRRC. We have
therefore listened and responded with this amendment, and I will
be talking later to my amendment about regulators’ autonomy,
which will further reinforce this point.
As noble Lords have heard, my officials and I have engaged
extensively with regulators over the summer, and I am pleased to
say that they have consistently welcomed the inclusion of a
provision of the sort I have tabled. Of course, as I said
earlier, the inclusion of a statutory provision does not mean
that the department’s regular and existing engagement with
regulators will stop.
My amendment includes provision for consultation on regulations
made under Clause 3, used to implement international agreements.
I emphasise that I understand the importance of engaging with
regulators on the negotiation of those agreements before such
regulations are made. The noble Lord, , and I share
exactly the same sentiments on this. That is why I have also
established the new regulated professions advisory forum, a
dedicated forum for the Government to discuss with regulators the
negotiation and implementation of provisions in trade deals and
for regulators to advise on their priorities in relation to these
agreements. I chaired this forum’s first meeting in September and
look forward to continuing to engage with its members and
chairing future meetings as and when appropriate.
I hope this amendment will give the House the reassurance it
needs about the scrutiny of any material actions following the
Bill that would affect regulators. Regulators support the
amendment, and I hope your Lordships will too.
I turn now to the amendment in the name of the noble Baroness,
Lady Hayter of Kentish Town. I recognise the strength of feeling
in this House in relation to the need for appropriate scrutiny of
regulations made under the Bill. I am grateful to the noble
Baroness for recognising that my amendment will ensure that where
a regulator might be affected by regulations, there will be
appropriate consultation. I consider that this more than meets
the breadth of consultation set out in the noble Baroness’s
proposed amendment.
I gave careful consideration to the point in the amendment about
a three-month period of consultation ahead of regulations being
made, but the amendment tabled in my name ensures that
consultation periods can be flexible, rather than requiring a
specified time period. Consultation will naturally take into
account the nature and impact of the proposed regulations and
will therefore be proportionate to the regulations being made. I
therefore believe there is no need to specify a fixed time for
consultation. It risks forcing a consultation exercise that may
be inappropriate to the regulations in question. For example, it
could drag out consultations where the regulations have been
drafted in collaboration with the regulator prior to the formal
consultation. Equally, it could inappropriately cap the time
needed for consultations on regulations that are complex and may
require longer than three months to complete.
I believe that the best way forward is to adopt a broad and
appropriately flexible duty to consult, as set out in the
amendment tabled in my name. I am grateful for the noble Baroness
indicating that she may withdraw her amendment.
I turn now to the amendments tabled by my noble friend Lady
McIntosh of Pickering and supported today by the noble Lords,
and Lord Foulkes of
Cumnock—I am very much joining him on his journey and would
welcome his daughter coming with us, if he felt it appropriate.
These amendments seek to introduce a duty on the appropriate
national authority to consult such persons as it deems
appropriate before introducing regulations under Clauses 1, 3, 5
and 6.
I stress again that the amendment tabled in my name requires the
appropriate national authority to consult affected regulators and
any other appropriate regulators before making regulations under
Clauses 1, 3 and 4. I believe that this is a stronger commitment
in relation to the consultation of regulators than the one
suggested by my noble friend in her amendments. Referring
explicitly to regulators “affected by” regulations, as well as
those the national authority considers appropriate, ensures that
consultation is targeted to those impacted or likely to be
impacted by proposed regulations, while still providing the
ability to consult other regulators.
Regulations laid under Clauses 1, 3 and 4 are those most likely
to directly affect regulators, and that is why my amendment
applies to them. I understand, though, that the amendments being
discussed now are designed to cover a broader range of interested
parties and apply to a different set of clauses than the
amendment in my name. I assure your Lordships again that while my
amendment specifies consultation with regulators, the Government
will continue to work closely with all other interested
parties.
I turn to the final two clauses that these amendments would
introduce a duty to consult on, Clauses 5 and 6. I do not believe
that adding a duty to consult to these clauses is appropriate.
They revoke the interim measures put in place to retain elements
of EU law beyond the end of the transition period, which was
always intended to be temporary. I can assure the House that
legislation would not be revoked or modified under Clauses 5 or 6
until any necessary new regulations were made under Clause 1, and
that those regulations would be subject to consultation under the
government amendment tabled in my name. I also note that the
DPRRC reported that the delegated powers for Clauses 5 and 6, and
the procedure chosen to use them, were satisfactorily set out in
the memorandum for the Bill. Indeed, the need for regulations
under these clauses is already agreed, and I believe the House
has noted the vital purpose of this part of the Bill.
The Bill provides an opportunity for Parliament to revoke and
modify retained EU recognition law and to scrutinise the
Government’s plans regarding a domestic regime for the assessment
of individuals with qualifications and experience obtained
overseas. I listened carefully to the arguments put by my noble
friend Lady McIntosh, but I believe this is no longer a matter
for consultation; I really think it is a matter for action.
I hope that my noble friend and the noble Lords, and , who supported
these amendments, agree that the amendment I am proposing for a
duty to consult ensures that regulators’ voices will be heard
under relevant clauses in the Bill.
My noble friend asked about the read-over of this to some matters
in the Australia and New Zealand free trade agreements. With
great respect, I suggest that the time to debate that will be
when the full texts of those agreements are available to the
House, as they will be in due course.
Having listened carefully to the points made today, I ask my
noble friend and the noble Baroness not to press their
amendments.
(Con)
Before my noble friend sits down, will he permit me to pursue the
issue raised in a more general regard by the Law Society of
England? It is concerned that legal services can be dropped too
easily from current and future negotiations. I used Australia and
New Zealand as a model, but can he give us an assurance that, in
his view, that will not happen?
(Con)
My Lords, I am absolutely happy to give that assurance to my
noble friend. Legal services are a very valuable part of the
export of services from the UK. This is something we absolutely
seek to protect and extend in free trade agreements, rather than
in any way seeking to curb. I am very happy to give my noble
friend that complete assurance.
18:30:00
(Lab)
I thank the Minister for his reply, and my noble friends Lord
Foulkes and Lord Kennedy, the noble Baroness, Lady McIntosh, the
noble Lords, Lord Bruce, and Lord Purvis, and the noble
and learned Lord, , for their comments. The noble
Baroness, Lady McIntosh, and my noble friend Lord Foulkes both
mentioned the Law Society of Scotland, and I think my noble
friend mentioned Michael Clancy. Maybe those of us who know him
can do a shout-out for his return to full health.
The Minister is right to say that we will discuss the main part
of consultation with the devolveds in a later group, but we
should point out two things. First, the government amendment will
automatically mean that the relevant devolved regulators would be
consulted, but also, in response to my noble friend Lord
Foulkes’s comment about the Scottish Government not always being
willing to consult, it will require them to consult with their
relevant regulators. Maybe that is why they are withholding their
consent Motion—I am not sure.
The problem I still have is why the government amendment does not
cover the regulations in Clause 2—or actually Clause 10, which I
had not noticed before. Clause 2 is quite important. In
responding, the Minister used the words—I hope I got them down
correctly—that it would be a duty to consult regulators “shaping
any regulations made under this Bill.” He did not use the words
“shaping regulations under certain parts of this Bill”, but
“shaping any regulations made under this Bill”. However, his
amendment does not do that. My concern is that, if there is no
duty to consult, then there might be no consultation.
The Minister then said, “Oh, well, it doesn’t really matter
because they may be very minor”—those were not quite his words;
they were far more correct than that. Actually, if you read his
amendment, it is a requirement only if
“the regulator is likely to be affected by the regulations”.
So if it was such a minor regulation that did not affect a
regulator then it would be excluded from the duty anyway. I am
slightly worried about that.
I wonder whether the Minister would agree to some further
discussions about Clause 2 and why there is no consultation on
it. Perhaps he might even be willing for us to bring this back at
Third Reading if it looks as if it is actually an error and there
is no good reason to exclude regulations made under Clause 2,
which is the big one for some of the regulators—this is the one
about whether there is a shortage of professionals. I do not know
whether the Minister could indicate assent to some further
discussions, so that we could clarify this at Third Reading.
(Con)
I believe the reason why we are not consulting on Clause 2 is
that it has no regulation-making powers in it. The regulations
dealing with the whole question of shortages are made under
Clause 1, where there is a duty to consult. I stand ready to be
corrected if anybody wants to look at the text of the Bill, but
the regulations that would relate to Clause 2 are made under
Clause 1, and there is a duty to consult on that clause. I hope
that completely answers the noble Baroness’s question.
(Lab)
The noble and learned Lord, , would be looking at me now and
saying, “Any good barrister knows not to ask a question to which
you do not know the answer”—I just broke that rule. In the
circumstances, I beg leave to withdraw the amendment.
Amendment 3 withdrawn.
Amendment 4 not moved.
Clause 2: Power conferred by section 1 exercisable only if
necessary to meet demand
Amendment 5
Moved by
5: Clause 2, page 2, line 39, leave out “without unreasonable
delays or charges”
(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.
(Lab)
My Lords, as the noble Lord, , 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, , 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.
(LD)
My Lords, it is a pleasure to follow the noble Baroness and to
agree very substantially with what she said and of course, the
noble Lord, who made a strong case. I, too, commend the Minister
because, as we have indicated in previous groups and as my noble
friend said, the Bill may have had a pause, but the Minister did
not. He and his officials have worked hard in engaging with us
and with those who will be affected by it.
18:45:00
Therefore, government Amendment 13, which we will debate soon,
which guarantees the autonomy of regulators, has alleviated some
of the concern when it comes to regulations being put forward for
the regulators when there has a been a determination of unmet
demand. However, there is still an area of uncertainty about how
the Government will make the determination that there is unmet
demand.
In October, when I was watching the Prime Minister on the telly,
he said that the solution to labour shortages in this country is
not to pull a lever to bring people from overseas into this
country. We then got fact sheets from the department which said,
“Let’s pull the lever to make it easier for foreign workers who
we don’t have a mutual recognition agreement with to fill unmet
demand.” Somewhere, both must be right, and this Minister has a
much more nuanced position and his department has a greater view
of reality that where there is demand for services part of the
solution for that will be from those who have the same
qualifications from overseas.
So, I agree with him, and it will be helpful, because every time
that I am told that I am a remoaner who wants to open the
floodgates, I will simply refer to the Professional
Qualifications Bill and the methods within it. However, there is
still an area of dissonance between what the Bill indicates and
what the Home Office will be indicating for the shortage
occupation list and the visas that will come with that. In the
government fact sheet, which I commend the Minister for bringing
forward, as he said he would, there is still no reference to the
visa regime or the other elements that could be taken into
consideration for determining unmet demand.
For example, and these may be two extreme cases, I had a look at
the shortage list and there is an unmet demand for Gaelic
teachers—the noble Lord, Lord Foulkes, is not in his place—we do
not necessarily need to take a day trip into the Highlands, but
there is unmet demand for Gaelic teachers. I am not necessarily
saying that that will be filled by those coming from afar, but,
more tellingly, there is also an unmet demand for paramedics
across all of the UK, and paramedics are on one of the shortage
lists. Certainly, where I live, north of the border, the lack of
paramedics is a critical issue at the moment. It is literally a
life and death situation in Scotland.
I cannot understand why the Government cannot have a
straightforward situation so that professions under a legal
regulator can be consistent with the shortage occupation list as
far as visas are concerned. Unless the Government and the
Minister are willing to say that they are going to bring this
together, one part of the Government is saying, “We will put you
on a shortage list to allow you to get an emergency or a specific
visa to come and work here, but you are not necessarily on the
list that says that we will recognise your professional
qualification”, and vice versa. In many cases, it would just make
absolute common sense if one part of the Government says that
there is unmet demand.
Of course, there are other elements, as the noble Lord, , and the noble Baroness
indicated, such as geographical factors and market conditions, as
far as demand is concerned, and it would help if the Government
were able to indicate what they may be. It is not too late for
the Government to do so, and it would be very helpful because
this inevitably will be a high-profile and potentially
controversial area when it comes to regulations being brought
forward to allow those from overseas to work in the domestic
market.
When the factsheet on unmet demand says that
“there is insufficient provision of the services of a regulated
profession and consumers have to wait longer or pay more for
those services”
without there being any clear definition, many consumers will say
that pretty much all their services at the moment fit into those
categories. If you are a consumer having to wait longer for your
energy provider, or any others, and are having to pay more for
those services without there being baseline information or a
proper market assessment, ultimately the free hand of government
to make the decisions about what is unmet in that consideration
is very broad. The case for these amendments, which on one hand
remove some of the specificity, in that of the noble Lord, , but also add a degree of
clarity, in the second amendment, have merit. I hope that, at
this late stage in the Bill, the Minister is able to give more
clarity from the Dispatch Box.
(Lab Co-op)
My Lords, I am conscious of the time, so I will not speak for
long. A number of important points were raised in this short
debate. The noble Lord, , made a clear and compelling
case for his amendment and I hope that the Minister takes up his
challenge and sets out very carefully and clearly the reasons why
it will not be necessary to test the opinion of the House.
Amendment 6, in the names of the noble Lord and my noble friend
Lady Hayter of Kentish Town, sets out, in proposed new paragraphs
(a) to (f), points that are absolutely right and need to be taken
into account. I will leave my remarks there, and I hope the
Minister will respond carefully so that the noble Lord will not
need to test the opinion of the House.
(Con)
My Lords, I thank my noble friend for his amendments, which
would alter the unmet demand condition in Clause 2(2). First, I
give a complete reassurance to the noble Baroness, Lady Hayter of
Kentish Town, that the amendment I will bring forward later about
regulator autonomy absolutely preserves the independence of the
legal profession and prevents any dilution of standards. That
amendment, if accepted by the House, completely puts the
determination of standards in the hands of regulators and is not
something the Government can override in any way.
My noble friend’s amendments require the appropriate national
authority to consider a specific set of factors to determine
whether the unmet demand condition is met. I completely agree
that the appropriate national authority should be transparent
when determining whether the unmet demand condition is met. I
find it hard to disagree with the factors set out in the
amendments, because they are likely to form part of a sensible
basis for making this determination for many professions. Your
Lordships will have seen the recent publication referred to by
the noble Lord, , explaining how the
unmet demand condition might be determined. That factsheet sets
out that this assessment should be tailored to the circumstances
and context of each profession.
Appropriate national authorities are best placed to determine
which factors to consider, according to the individual
circumstances of a profession. For example, a devolved
Administration will be best placed to determine the factors
relevant to assessing whether there is unmet demand for a
profession in an area of devolved competence, and it is important
that they are able to decide how best to make such determinations
and form their own views on which factors are most relevant to
their own situation. Indeed, I absolutely agree that some of the
factors proposed by my noble friend are good practice, although
they may not be essential in every case to understanding unmet
demand. For example, the views of professional bodies and
workforce modelling may or may not be relevant, but it should
absolutely be for the appropriate national authority to take
those matters into account if it so determines. Having to work
through, in a statutory sense, every factor on this list could
cause delays and unnecessary administrative burden when there is
an urgent need for regulations and the condition, as drafted, is
clearly met.
However, I hope that it gives my noble friend complete
reassurance when I say that the Government plan to publish
guidance to support appropriate national authorities in their
determination of unmet demand, and I undertake that the factors
in his amendment will be included and explained in any such
guidance. That answers, at least in part, the point made by the
noble Lord, . I note that one of
the factors listed by my noble friend includes whether the
profession is on the occupation shortage list; that will be
covered in the guidance.
Immigration is a different matter from the recognition of
professional qualifications. The Government have introduced a new
skills-based immigration system which treats people from every
part of the world equally. I hope that a skills-based immigration
system would properly recognise the quality of professionals
seeking to practise their profession, but it is outside my remit
to go further into the immigration system, as I hope the noble
Lord appreciates.
(LD)
On that last point, I am interested to know, if the appropriate
national authority has determined that there is a shortage but
that profession is not on the Home Office’s list, which trumps
which?
(Con)
I think these are both looked at from different perspectives, so
I do not think it is a question of which trumps which; the
question is “What is the appropriate decision to come to?”,
looking at it from the perspective either of immigration or of
considering professions or occupations where there are
shortages.
(LD)
Who makes the decision?
(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.
(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.
Amendment 6 not moved.
19:00:00
Clause 3: Implementation of international recognition
agreements
Amendment 7 not moved.
Clause 5: Revocation of general EU system of recognition of
overseas qualifications
Amendment 8 not moved.
Clause 6: Revocation of other retained EU recognition law
Amendment 9 not moved.
Clause 7: Assistance centre
Amendment 10
Moved by
10: Clause 7, page 5, line 1, at end insert—
“(1A) Before making arrangements under subsection (1), the
Secretary of State must—(i) consult such persons as the Secretary
of State considers appropriate, and(ii) following that
consultation, seek the consent of the Scottish Ministers, the
Welsh Ministers and a Northern Ireland Department.(1B) If consent
to the arrangements is not given by any of those authorities
within the period of one month beginning with the day on which it
is sought from that authority, the Secretary of State may make
the arrangements without that consent.(1C) If arrangements are
made in reliance on subsection (1B), the Secretary of State must
publish a statement explaining why the Secretary of State decided
to make the arrangements without the consent of the relevant
authority.”Member’s explanatory statement
This amendment requires the Secretary of State to consult such
persons as the Secretary of State considers appropriate and seek
the consent of the devolved administrations prior to making
arrangements for the assistance centre.
(Con)
My Lords, in a brief meeting with my noble friend Lord Grimstone
earlier this week, he made a very good point, which was
elaborated on by the noble and learned Lord, of Craighead, a moment ago. My
noble friend had met the devolved Administrations and had some
success with the Northern Irish devolved Assembly, but was
disappointed that the Welsh and Scottish devolved Governments
were not prepared to agree to a legislative consent Motion. Now
that we have come to what I think is the appropriate moment, I
should be very interested to understand a little more about why
that is the case.
In this little group, Amendment 10 is grouped with Amendments 10A
and 14, which I will leave the noble Baroness, Lady Blake, to
speak to. I am very grateful to the noble Lords, and , and the noble and
learned Lord, of Craighead, for lending their
support to my amendment, and apologise if I was precipitate in
attributing support from the noble and learned Lord for my
earlier amendments, for which I apologise. I hope that the noble
Lord, Lord Foulkes, has not started the road trip without us;
perhaps he has just gone to make it warm, comfortable and
hospitable for our arrival.
It may be asked why I am pushing Amendment 10 in connection with
Clause 7, which relates specifically to the assistance centre.
The reason I think that is appropriate is that, in the fact sheet
that was issued recently, the Government labour the importance of
the assistance centre to encourage foreign professionals to come
and practise their profession here and our home professionals to
go and practise their professions elsewhere. That makes the case
for me why I am introducing Amendment 10. It requires the
Secretary of State to seek the consent of the devolved
Administrations prior to making arrangements for the assistance
centre—which is in place, but which, I understand operates under
a different name.
Like the noble Baroness, Lady Hayter, and the noble Lord, , I would like to
namecheck Michael Clancy for his help in preparing this and my
other amendments this evening, and we indeed wish him well and a
return to his normal good health. He has been enormously helpful
in many Bills, not least the internal market Bill and this
one.
The Law Society of Scotland welcomes
“the provisions regarding the assistance centre to provide advice
and assistance about entry requirements to those seeking to
practise a profession in the UK or to those with UK
qualifications seeking to practise overseas.”
It further notes
“the obligation on regulators contained in subsection (2) to
provide the designated assistance centre with any information it
may need to carry out its functions.”
I argue that that is entirely appropriate in the
circumstances.
Why am I asking for consent to be given? Because the obligation
to make arrangements for the assistance centre lies on the
Secretary of State. However, the assistance centre will provide
advice and assistance covering the whole UK. It is entirely
appropriate, and important, that the Secretary of State should
consult such persons as he considers appropriate before making
the arrangements and, having consulted, seek the consent of the
devolved Administrations. This last approach reflects that
contained in Sections 6, 8, 10, 18, 21 of, and Schedule 3 to, the
United Kingdom Internal Market Act. I further argue that
consulting appropriate persons and seeking the consent of the
devolved Administrations is important where the assistance centre
may be providing advice relating to professions which are within
the devolved sphere, and reflects the acknowledgement of the role
of the devolved Administrations in earlier clauses in the
Bill.
If the consent of the devolved Administrations is not provided
within one month of being requested, the Secretary of State can
proceed to make the arrangements without that consent. That
addresses the specific point raised on amendments we debated
earlier this evening tabled by my noble friend . We should hear from my noble
friend Lord Grimstone in response to the point made by the noble
and learned Lord, of Craighead, as to why the
devolved Administrations—in particular, in this case, the
Scottish and the Welsh—have not come forward with a legislative
consent Motion. I have regard to the concerns raised by the noble
Lord, Lord Purvis, in relation to an earlier group of amendments
about how regrettable a position it would be if legislative
consent Motions were withheld.
For all the reasons that my noble friend and the Government have
set out in the fact sheet for the specific importance of the role
of the assistance centre, and because I am mindful that my own
profession of law is so different in Scotland from England, it is
very appropriate that they consult and seek the consent of
Scottish and Welsh Ministers and the Northern Ireland department
in this regard.
I hope that my noble friend will take this opportunity to set out
in more detail why Amendment 13 does not apply to Clause 7, which
I argue it should, and why, in his view, an LCM has not been
forthcoming from the Welsh or Scottish Ministers. I echo the
remarks made by the noble and learned Lord, of Craighead. It is incumbent on
the Government to be very clear and as helpful as possible in the
spirit of co-operation with the devolved Administrations and
Governments. The noble Lord, , hit the nail on
the head: we in this place are the sovereign Parliament of the
United Kingdom. The devolved Administrations are very conscious
that they are devolved, but they hope to have as much advance
notice of any changes to legislation in draft as possible, so
that they can prepare their views.
I look forward with great interest to hearing the comments of the
noble Baroness, Lady Blake, when she moves her amendment relating
to common framework agreements, which have already been alluded
to this evening but, with those few remarks, I look forward to
hearing from the Minister and I beg to move.
(LD)
My Lords, I wish to intervene, as I am sure the noble and learned
Lord, , will, and he may be able to
comment on what I am about to say.
The noble Baroness has explained quite clearly what the purpose
of the amendment is, and I do not need to repeat that, but we are
engaged with the interaction between the Bill and the internal
market Act. That is the nub of where the suspicion has arisen. I
take account of the fact that the Minister has explained the
consultations that have taken place, but they did not take place
for the internal market Act, and that has led to a legacy of
suspicion which has not gone away. This is where the problem
arises. The Minister will clearly want to say that things have
moved on, but he needs to reassure the devolved Administrations
that that is genuinely the case if we are to secure their
consent, unless there are other valid reasons that we have not
heard about.
In answer to an intervention by the noble Lord, Lord Purvis, the
Minister previously said that immigration is one thing and
professional qualifications are something else—but they all
impinge on each other. We all know that the Government are out in
the world looking for all kinds of agreements, post Brexit, which
they feel will liberate the UK and create huge opportunities,
whether it is exporting skills or importing skills. Yet
professional bodies are saying, “Is this going to threaten our
standards?”, and the devolved Administrations are saying, “Are
our specific circumstances going to be overridden by those
priorities?” I contend that that is the nub of the problem.
I have signed this amendment, as have others, because I believe
it is trying to put in the Bill a requirement that would
categorically state that the concerns of the devolved
Administrations and their politicians would not be justified if
the consultation was statutorily required and the particular
safeguards were in there. That still allows, of course, for the
Secretary of State to override the devolved Administrations, but
not without going through a clear, spelled-out process of both
consultation and explanation, as and when and if an override is
likely to be applied.
I am not sure I need to say more, other than that I think the
Minister has acknowledged that he is suffering from a legacy that
was not of his making. But it is there and, if it is not
addressed, it will poison the Bill.
of Craighead (CB)
My Lords, I put my name to this amendment because it is crucial
that the arrangements that are made under Clause 7 are designed
to give accurate and complete advice and assistance. The people
who are seeking that advice and assistance are of course coming
with at least a rather imperfect knowledge of the systems and the
professions which they are seeking to engage with, and it is
crucial that the advice and the assistance is well founded. I am
quite sure that that is what the purpose of Clause 7 is, but this
amendment is intended to reinforce that.
I hope that what I said in the earlier group, about the way in
which the legislative consent process was handled by the
Minister, was not thought to imply a criticism of him or the way
in which he was handling it. If there was any such implication, I
absolutely withdraw it. I am quite certain that he handled the
discussions with the care which has characterised his handling of
the Bill, at all stages in this House. We have appreciated
greatly the depth of knowledge which he has brought to bear and
the care and consideration which he has given to every issue that
has been raised. I am certain that the discussions will have been
conducted with the same courtesy as we have enjoyed in this
House. It was not meant to be a criticism of the noble Lord at
all.
I was searching for information; it is very unusual for us to be
able to refer to the absence of a legislative consent Motion
while we are in the course of a debate during the passage of a
Bill. That is perhaps one of the shortcomings of our procedures;
we do not know what is going on, and the Constitution Committee
is in ignorance of what is going on. The purpose of my
intervention on this point was to seek information to balance out
the rather depressing impression we have been given by the
devolved Administrations—including Northern Ireland, I should
have said. If there is a balance to be struck, the information
that the noble Lord will give me in the letter will be important.
I hope he will allow me to share his letter with the Constitution
Committee, because it would be extremely interested to know what
he has to say.
19:15:00
While I am on my feet, I offer my support for Amendment 10A. It
is important that the common framework on professional
qualifications, if there is one, is not in any way impeded by
other legislation, to any degree at all. These frameworks are
operating independently, and the system which is operated for the
discussion of frameworks could be rather distorted if there was
to be any such interference. The amendment in the name of the
noble Baroness is very well placed.
Before I sit down, I add my own words of good will towards
Michael Clancy, in his present situation, that he may be restored
to good health. I also thank him for the work he has done on the
Bill, as he has done on so many others, to inform our
discussions.
(Con)
My Lords, I do not normally intervene where devolved matters are
concerned but I was so surprised to see the amendments tabled in
this group that I felt I had to make some observations.
To start with Amendment 10 and Clause 7, I was very critical of
Clause 7 in Committee, in that it was setting up an advice centre
which I could not see the real need for. Nevertheless, if one is
going to have one, it should be complete and accurate; the noble
and learned Lord, of Craighead, has referred to
that. The existing advice centre under EU law, which will be
migrated into the one under this Bill, is certainly not complete
and is therefore not accurate.
While I believe that the arrangements being made would benefit
from scrutiny, I am not sure what the purpose of adding on a
consent mechanism would be. The arrangements should be between
BEIS and whoever is providing this advice centre to have complete
and accurate information, and I do not think anybody needs to
consent to that at all, because that is perfectly obvious. While
I do not see any need to have that additional mechanism, it is
good to have scrutiny on the centre’s input, but that can be done
by informal means; it does not need the seeking and giving of
consent.
Similarly, in the case of Amendment 10A in the name of the noble
Baroness, Lady Blake, I could not see anything in Clause 9 which
could possibly be incompatible with a common framework agreement
for professional services, if and when one emerged. All it says
is that if somebody in one part of the United Kingdom wishes to
practice in another part of the United Kingdom, the regulators in
the two parts have to give each other information about that
individual. It seems that there would never be any circumstances,
under any form of common framework, where that would not be an
essential part of it.
Lastly, on Clause 14 and Amendment 14, I was also mystified,
because Clause 14 seems to respect the devolution settlements. It
specifically creates the national authority’s powers in relation
to things that are within the devolution settlements, so I could
not see what would be added by the arrangements that Amendment 14
seeks. I could not think of any tangible, practical reason for
the devolved Administrations to want to get involved in those
areas in the way in which this is drafted. For me, this is
something of a mystification. It may be partly explained by the
bad feeling left by the internal market Act, but I genuinely do
not see an issue of substance here that noble Lords should be
getting excited about.
(LD)
My Lords, the noble Baroness put her finger on it when she
referred to the bad feeling engendered by the internal market
Act. That has undermined confidence between the devolved
Administrations and the UK Government. But there are also good,
practical reasons why they need to be consulted. I support these
amendments because it is absolutely crucial that, at the centre
of this, the assistance centre truly represents the whole of the
UK and can provide accurate information.
The history of this Bill is that the whole thing is a lot more
complex than the UK Government originally thought. I think that
the Minister would acknowledge that. The noble Baroness has
played her part in pointing that out to the Government. It is not
just a courtesy to seek consent. Things are different in
different parts of the UK. I speak in this debate from the
perspective of Wales, where our difference is partly underlined
by language issues of significance. If you are looking at the
clinical professions, or teaching, language is important in the
delivery of those qualifications.
However, there is a key issue here in the interaction between
this Bill and the United Kingdom Internal Market Act, which was
designed to undercut devolved powers and which, despite some
amendments, still has the power to do so. The UK Government deal
internationally with what I am sure they see as the interests of
the whole of the UK but, to give one example, the international
trade deal with New Zealand provoked dismay in Wales because of
the impact that it will have on Welsh sheep farmers. That may not
be of direct relevance to this Bill, but it underlines the fact
that, just because the UK Government are intending that it should
benefit the UK, that does not mean that it will actually benefit
the whole of the UK. The same applies with professional
qualifications and the terms in which there could be an impact
from an international trade deal on those qualifications.
The lack of legislative consent Motions is a symptom of the
problem. Common frameworks are there and should be there to
ensure harmonious working, but those of us speaking in this
debate who are members of the Common Frameworks Scrutiny
Committee—the noble and learned Lord, , my noble friend Lord Bruce and
the noble Lord, Lord Foulkes, who was here earlier—know that
common frameworks have been applied so far in a fairly haphazard
manner in some situations, and therefore we cannot entirely rely
on them yet. I am very pleased to see the amendments that relate
to them, because that reinforces their importance in improving
relationships between the Governments within the United Kingdom.
Therefore, I support these amendments.
(Lab)
My Lords, I start by saying a personal thank you to my noble
friend Lady Hayter for her wonderful support over the past few
months. We go back many years and we have worked on some very
difficult issues, so it has been a great pleasure. I thank my
noble friend Lord Kennedy for stepping in as a result of the very
positive news of my noble friend Lady Hayter moving on to
pastures new. I know that she will continue to bring all her
enormous knowledge to bear.
I also thank the Minister for his unfailing patience and his
recognition of the complexities of this Bill that were not fully
appreciated when it first came forward for our consideration.
There have been some extraordinary contributions from all sides
of the House that exposed the original drafting, which have been
incredibly important.
Her Majesty’s Opposition believe that a role for the devolved
authorities has been overlooked in the drafting of this Bill and
recognise that there is strong concern from them, as we have
heard in this debate, about the legislation. Perhaps it is not an
enormous surprise, given the Government’s track record, because
the experience of the devolved Administrations is that they have
been excluded too many times, going right back to the Brexit
negotiations, as we have heard, and the United Kingdom Internal
Market Bill, with UK powers imposed over devolved competences.
The noble Lord, Lord Bruce, said very clearly something which
struck home very forcefully: there is a legacy of suspicion. We
would all do very well to remember that.
We also remember when it came to light that the devolved
authorities only saw this Bill a week before it was published.
Either the Government forgot about them or something else was
happening, but again that growing suspicion has permeated the
discussions that we have had throughout.
The importance of their engagement was underlined in the
Government’s factsheets on the Bill, which were published at the
end of last week and stated that professional qualifications and
experience can vary across the four nations—surely in itself a
reason for this concern. As we have heard, the concern is shared
across the House, as demonstrated by Amendment 10, tabled by the
noble Baroness, Lady McIntosh, the noble and learned Lord, , and the noble Lords, Lord
Foulkes and Lord Bruce, which we strongly support.
This was the formula for the engagement of the devolved
authorities, which the Government accepted with the United
Kingdom Internal Market Bill. It would oblige the Minister to
seek the consent of the devolved authorities but would allow them
to proceed, albeit with a published explanation if no consent is
received within a month. It is not an absolute veto, but it
starts on the assumption of working towards consent. Her
Majesty’s Opposition recognise the strength of feeling from the
devolved authorities and, again, as has been so eloquently
expressed by the noble Baroness, Lady Randerson, that is why we
have tabled Amendment 14, which would apply this consult, seek
and UK Government backstop formula to all regulation-making
powers in the Bill.
Why are the Government against taking this approach with this
Bill, which they accepted in the United Kingdom Internal Market
Bill less than a year ago? Surely at the very least we need some
consistency across post-Brexit legislation. Amendment 10A also
seeks to ensure that the Bill does not impact on the development
of a common framework on this issue. Can the Minister confirm
that this will be established and in operation by the end of the
year? As I understand it, there is still some confusion about
departmental responsibilities on common frameworks post
reshuffle, so can he also confirm which Minister and department
are now responsible for them? We accept that the mood of the
House has, with some exceptions, coalesced around Amendment 10,
and we strongly support it, as I have said.
I would like to hear clear commitments from the Minister that the
Government remain committed, first, to continuing engagement with
the devolved authorities to find a way through on this issue,
and, secondly, to amending the Bill as appropriate to reflect the
devolved authorities’ concerns. As the Bill starts here in the
Lords, the Government have ample time to bring forward amendments
in the other place. If the Minister is not able to say this
today, I will seek to test the opinion of the House on Amendment
14. I will be listening very closely to his reply.
19:30:00
(Con)
My Lords, before I start, I will thank the noble and learned
Lord, of Craighead, for the courtesy of
his comments. I assure him that I took no offence at the words
that he used in the earlier group. I thank the noble Baroness,
Lady Blake of Leeds, for her Amendment 14, which I will address
first. I unreservedly agree with the noble Baroness that the Bill
has been greatly improved during its passage through the House,
and I commend and thank noble Lords from all sides of the House
for the work that they have done.
This amendment from the noble Baroness provides for the Secretary
of State to consult appropriate persons. It then requires the
Secretary of State to seek, on a time-limited basis, the consent
of all the devolved Administrations before making regulations
under powers in the Bill. If that consent were not forthcoming
within one month, the UK Government could proceed to make the
regulations without it, but would be obliged to publish a
statement setting out why they had proceeded without consent.
I appreciate that this amendment recognises that there are
occasions when the Government may need to make regulations
without consent. It is a best-efforts approach, which requires
the Government to evidence that they have made these efforts.
However, as I have set out previously, it is absolutely not the
Government’s intention to make regulations in relation to matters
on which the devolved Governments could legislate without seeking
their views. I have put this assurance on record many times,
including in correspondence with my ministerial counterparts in
the devolved nations. Perhaps because I am relatively new to the
House, I was not tarnished by some of the discussions on the
internal market, and I think I have maintained good and
constructive relations with my counterparts in the devolved
Administrations.
I am not convinced that the proposed amendment is preferable to
the Government’s own, more flexible, proposals. However, I agree
that working with the devolved Administrations is the way to make
this Bill operate best for all our UK nations. That is why I
wrote to my devolved Administration ministerial counterparts
ahead of Report, offering to put a duty to consult with devolved
Administrations on the face of the Bill. The offer was made to
them and it also included a commitment to publish a statement
setting out whether and how the regulations take account of any
representations made in response to the consultation. I can give
the House an assurance that we will continue to engage with the
DAs, and if securing the LCMs, which is something that I would
very much like and feel committed to do, means that we need to
amend the Bill, this is something that we could consider. I am
happy to give that assurance to the House.
Noble Lords will also be aware that the amendment tabled in my
name on a duty to consult with regulators extends to regulators
in the devolved nations; so, in addition to the consultation we
would normally expect to undertake with the devolved
Administrations, whenever appropriate we will be engaging
directly with those in the devolved Administrations who are
closest to the issues before making regulations.
I will continue to engage with my counterparts in the devolved
Administrations to persuade them of the merits of the
Government’s approach. If noble Lords from all sides of the House
wish to join me in trying to convince them of this, I would very
much welcome that. A Bill such as this, which provides benefit
throughout all four nations of the United Kingdom, would be best
dealt with on a consensual basis between the devolved
Administrations.
(LD)
I am very interested in what the Minister said, and the House
will welcome his initiative. In order to help that process, would
the Minister consider placing his letter to the devolved
Administrations in the Library, along with any reply that comes?
Then we would at least know what the current situation is—but I
welcome the Minister’s initiative.
(Con)
I thank the noble Lord for his welcome. Let me consider that: I
am not prepared to agree to that right away, because these
letters, of course, contain a number of matters that are the
stuff of correspondence between one part of the United Kingdom
and another. There is nothing suspicious about my saying that,
but, if I may, I will just review the letters to make sure that I
am not breaking any confidences with the devolved Administrations
before agreeing to do that. I repeat, however, that I will
continue to engage with my counterparts in the devolved
Administrations to persuade them of the merits of the
Government’s approach.
I turn now to the next amendment, tabled by my noble friend Lady
McIntosh of Pickering, the noble Lords, and , and the noble and
learned Lord, of Craighead. This seeks to place
a requirement to consult relevant persons and then seek the
consent of the devolved Administrations before making
arrangements for the assistance centre. With all respect, I
believe that this is taking a sledgehammer to crack a nut. The
Government will, of course, ensure that provisions for the future
assistance-centre service work for all four nations of the UK,
and the service will be designed to complement the roles of
regulators and professional bodies. No issues have arisen from
the approach taken by the UK Government in providing a single
centre operating across the whole of the UK to date. This centre
has been in operation for well over a decade, and these issues
have never arisen during the course of the last 10 years. Of
course, it would not be in line with normal practice—it would not
be expected—for the UK Government to seek the consent of the
devolved Administrations before tendering for, or launching, a
support service. The Government regularly consult devolved
Administrations on these things in the course of business, but I
fear that introducing this as a statutory requirement here would
create a significant and frankly unnecessary precedent.
Much interest was shown in the assistance centre in Committee. I
have often felt at times that the interest shown in the
assistance centre was out of kilter with the actual, rather
restricted body that it is. As I have said previously, it will
offer a very modest, targeted service, similar to that already
provided by the UK Centre for Professional Qualifications. A
heavy-handed consent requirement therefore feels disproportionate
for this. Many regulators and professional bodies already have
productive working relationships with the current assistance
centre and have welcomed its continuation in the Bill.
I turn now to the amendment tabled by the noble Baroness, Lady
Blake of Leeds, on common frameworks. This amendment seeks to
ensure that nothing in the information-sharing requirements under
Clause 9 will prevent the establishment or operation of a common
framework agreement relating to professional qualifications.
Noble Lords will recall that this issue was raised in Committee.
Again, I say without reservation that I share the House’s firm
commitment to effective common frameworks.
I previously explained that there had been a hiatus in the
development of the recognition of professional qualifications
common framework while work paused during the election period in
Wales and Scotland, but I am very pleased now to be able inform
the House that, since Committee, officials across all four UK
nations have made very good progress on a common framework on the
regulation of professional qualifications to ensure a
collaborative approach on powers that have returned following our
exit from the European Union and that intersect with devolved
competences. This has included two workshops and correspondence
that focused on co-design, with officials from all the devolved
Administrations, following which my officials continue to drive
development of the framework, in line with these discussions.
In addition to co-operation in relation to returning EU powers,
the Government have offered, if the devolved Administrations
would find it helpful, to include proposals on consultation and
collaboration on the operation of the Professional Qualifications
Bill, once enacted, in that framework. Let me be clear, in answer
to the noble Baroness’s concerns and those expressed by the noble
Baroness, Lady Randerson, that the provisions of the Bill in no
way cut across the establishment or operation of a common
framework. This is a separate process. As the common framework
will be non-legislative in nature—a proper consensus developed
with the devolved Administrations—I worry that referencing the
common framework in the Bill may be confusing and could hinder
rather than help the development of the common framework.
The development of the common framework is a collaborative
process, not one that the Government can or should impose.
However, as I have outlined, this process is now reinvigorated,
and I am confident that the professional qualifications common
framework can be agreed in provisional form by the end of this
year. I will of course keep noble Lords in touch with this to
make sure that those who have spoken in the debate in relation to
this are kept properly informed of its progress. I hope that I
have been able to address the concerns of this House in relation
to this, and I ask that this amendment is withdrawn.
(Con)
I am grateful to my noble friend for his response and to all
those who have spoken. I am a little concerned, because we have
not really got to the nub—unless I have missed it—of why there is
no legislative consent Motion from the devolved Administrations,
so that is still a source of concern. It leaves open the question
whether, if my noble friend was minded to bring forward a
government amendment in connection with Amendment 14 in this
group, the Government would be minded to do that in the other
place after the Bill has left this House. That would be a
concern.
I am a little disappointed that the Minister said that it would
set an “unnecessary precedent” to consider accepting Amendment 10
in my name and those of others. I argue that it would not set an
unnecessary precedent, and it is certainly not seeking to
introduce a layer of complexity or bureaucracy. The Government’s
fact sheet says:
“Professionals and businesses can find it difficult to navigate
the UK’s regulatory landscape. They need clear and accessible
information about how professional qualifications can be
recognised. Improved transparency and information-sharing between
regulatory counterparts, where appropriate, will support better
decision-making and more informed use of the framework.”
That is precisely why I argue that Amendment 10 is needed in this
regard, because if you are not going to consult and seek consent
from the devolved Administrations, at which point will the
regulatory counterparts and the devolved Administrations have the
right to make their case?
I listened very carefully to what my noble friend Lady Noakes
said about her hesitation over the assistance centre. The
Minister, my noble friend Lord Grimstone, went on to say that it
has been in existence for 10 years. In that time, it was probably
not needed, because if I was able to find out how to practise in
another European country, many of my kinsfolk—Scottish advocates,
Scottish lawyers, English lawyers, English nurses or
whatever—were probably likeminded to do so too. But we have now
left the European Union and are no longer covered by that
umbrella of free movement.
So I will not press my amendment this evening for the simple
reason that, if the House is going to take a decision on an
amendment, the amendment in the name of the noble Baroness, Lady
Blake, may well cover the same clause that I seek to cover
because it would cover all clauses for which regulations are
required. So, at this stage, I thank my noble friend for the
reassurances that he has given. I hope that he commits to
bringing forward a government amendment, and I beg leave to
withdraw my Amendment 10.
19:45:00
(Con)
My Lords, I beg leave to answer one of the points made by my
noble friend Lady McIntosh. If she wishes to find out why LCMs
have not been granted, I suggest that she addresses that question
to the devolved Administrations, because I have been trying. I
repeat what I said earlier: we will continue to engage with the
DAs, and if securing the LCMs means that we need to amend the
Bill, this is something that we could consider.
Amendment 10 withdrawn.
Clause 9: Duty of regulator to provide information to regulator
in another part of UK
Amendment 10A not moved.
Amendment 11
Moved by
11: Clause 13, page 10, line 20, after “modify” insert
“subordinate or EU retained”
(Con)
My Lords, there are three amendments in this group, characterised
by the fact that they appear more or less in the same place in
the Marshalled List. My Amendment 11, which leads the group,
relates to the very specific point, to which we have referred on
a number of occasions: whether secondary legislation, and
regulations under the Act, should be able themselves to modify
primary legislation. The amendment’s intention is of course to
restrict that possibility and limit it to subordinate legislation
and retained EU legislation. Of course, there is a separate power
in relation to the very specific EU retained legislation relating
to the recognition of overseas professional qualifications.
I will not make a long argument about this, because the time is
late. Ministers will say that there is a lot of private
legislation out there relating to these professions, but as it
happens, we are amending the primary legislation relating to
architects in the Bill. I am not sure to what extent, given all
we know and have discovered about the processes of seeking to
recognise professional qualifications from overseas, just how
often they will need to amend primary legislation and whether it
really is impossible to achieve it through a route that exposes
the changes to primary legislation to the proper scrutiny of this
House.
Because it is linked to this, I reiterate a point I made in
Committee. Ministers will acquire a power under the Bill to
implement international regulatory recognition agreements and
these aspects of international trade agreements by secondary
legislation. I hope that the Minister—I know it is his stated
intention—would expect new significant trade agreements, wherever
they impacted on our legislation, to be the subject of
legislation brought forward for this purpose. I do not want us to
find that the legislation we see in future relating to trade
agreements leaves out the recognition of professional
qualifications because it can be achieved through subordinate
legislation and we are therefore not able to examine it in the
same way as we can other issues relating to a trade agreement,
through primary legislation.
I will not talk about the protection of regulator autonomy; that
is very much for the noble Baroness, Lady Hayter, who raised
these issues in detail in Committee, as did my noble friend Lady
Noakes. I am rather grateful to my noble friend Lord Grimstone—as
we are in many other respects—for bringing forward government
Amendment 12, which would put a pretty cast-iron clause into the
Bill to give the regulators the confidence about their future
autonomy that they seek.
(Lab)
My Lords, like the noble Lord, , I welcome Amendment 12, which
the Minister will speak to shortly. As has been said, right from
the start we worried about the independence of regulators and
indeed, as I suggested earlier today, the Law Society still
retains a slight frisson of concern there, although I note the
Minister’s words. Regulators have been worried about their
independent ability to decide who was fit to practise in this
country and that that might be undermined by a government diktat
to co-operate with another country to accept their professionals
or to drop standards in order to meet a government trade
objective. As the Minister mentioned earlier, given that I am now
looking at trade deals, I think he realises that I will be able
to keep a beady eye on that as we go forward, along with the
noble Lord, , who will be looking at that
as well.
As I mentioned before, it was also of concern to the users of
regulated services in case their trust in professionals, which
stems from a regulator keeping to standards and high quality of
enforcement, might be in any way in jeopardy. However, the
Government have recognised these concerns and have come forward
with the very welcome Amendment 12; it must be good because there
is even a Lib Dem name attached to it, so we know that this
government amendment is well received. Needless to say, of course
I still prefer the wording of Amendment 15, which was short and
to the point, but I am content not to press it in favour of the
Government’s own amendment.
(LD)
On the subject of Amendment 11, I have full sympathy with the
point made by the noble Lord, . If my noble friend Lord
Purvis were to speak, he would remind the Committee that at the
outset we were promised primary legislation for trade deals, and
I am gratified that at least two noble Lords will be keeping an
eye on the overall process.
In Committee, back in July, the very first amendment that we
discussed, in my name and that of my noble friend Lord Purvis,
was very similar to Amendment 15. Its purpose from the outset was
to protect the autonomy of the regulators. In that respect we are
both delighted that the Minister has listened and, through the
process of discussion, has come up with Amendment 12. It does a
lot of the heavy lifting in dealing with what I referred to
earlier as the Trojan horse of suspicion.
In protecting regulatory authorities from Clauses 1, 3 and 4, the
amendment very much creates a situation where they are allowed to
go about their business in the way that we want. It is for that
reason that I took the unusual step—at least, unusual for me—of
countersigning the Government’s amendment, which clearly
indicates our support from these Benches for what we see as a
welcome and important addition to the Bill.
(Con)
My Lords, throughout our consideration of the Bill I have been
critical of my noble friend the Minister and the Government for
riding roughshod over regulatory autonomy, so I very much welcome
Amendment 12 in his name and that of the noble Lord, .
I have a residual concern. While this protects the autonomy of
regulators over whom they may admit to practise in their
profession, there may still be a concern that significant costs
will be loaded on to regulators from having to comply with the
obligation to consider individuals or institutions overseas,
because that is what has been negotiated as part of a trade
treaty, which would result in a considerable cost for the
predictable outcome of not approving those individuals or
institutions, and those costs would inevitably be borne by UK
professionals because there is nowhere else for costs to go. To
some extent, therefore, I was unhappy with the formulation of
Amendment 12. However, taking it in combination with the
amendment that we have already considered relating to
consultation with regulators, I have to hope that the Government
would never proceed with regulations that imposed unreasonable
burdens on UK-regulated professionals in the pursuit of something
that would not be achievable, in terms of the recognition of
individuals within an overseas profession. I think that taken
together those amendments are okay, but I have a residual concern
that burdens might end up on professionals.
(Lab Co-op)
My Lords, from the outset of the consideration of the Bill, the
Opposition have been clear that this legislation must not
undermine regulators’ independence and that the Government cannot
force them to accept professional qualifications. The public
rightly expect that high standards of health, public safety and
consumer protection will be maintained through the process of
recognising overseas qualifications. This was repeated to us time
and again in the meetings that my noble friends had with
regulators and organisations across different sectors and
professions.
My noble friend Lady Hayter of Kentish Town spoke in Committee
about
“the Bill’s potential to undermine the independent
standard-setting and public interest duties of what we have seen
as autonomous regulators.”—[Official Report, 22/6/21; col.
201.]
A Bill compelling regulators either to enter negotiations with an
overseas regulator or to put in place a process for recognising
the qualification of applicants trained abroad, in order to
fulfil a promise made by the Government in a trade deal or to fix
a skills shortage as defined by the Minister, would not be
compatible with the regulators’ independence. That concern was
shared widely across the House during debates.
From looking through Hansard, I think it was the noble Baroness,
Lady Noakes, who said that regulator autonomy needs to be in the
Bill to recognise its importance. It was clear to many noble
Lords that this could impact on our current domestic standards,
with regulators perhaps being forced to accept lower levels of
training requirements or changes to fit in with practice in the
UK.
21:15:00
Amendment 15 in the name of my noble friend Lady Hayter reflects
what the Minister promised on this issue from the Dispatch Box.
It is the same amendment that was tabled in Committee. We have
simply brought the commitments together to demonstrate the
Government’s position.
We are very pleased with the amendment that the Government have
brought forward. As other noble Lords have said, it is not
perfect but it goes a long way to alleviating our concerns and
those of other noble Lords. It prevents the appropriate national
authority making regulations under Clauses 1, 3 or 4 unless
regulatory autonomy is protected. It is a welcome development to
ensure that our domestic standards across the now 205 regulated
professions in the scope of the legislation are protected. You
can see a clear crossover between Amendment 12 from the
Government and Amendment 15, which my noble friend tabled.
I believe the Minister’s intention on this, and I am very
pleased. We also had a welcome meeting a few weeks ago. He has
understood the mood of the House and the concerns raised by noble
Lords across all sides of the House, and has come back with an
amendment that I think we can all get behind. My noble friend
Lady Hayter will not test the opinion of the House on Amendment
15.
The Minister of State, Department for Business, Energy and
Industrial Strategy and Department for International Trade
() (Con)
My Lords, I will speak first to the amendment in my name on
regulator autonomy and then respond to my noble friend Lord
Lansley’s amendment and that of the noble Baroness, Lady Hayter
of Kentish Town.
As your Lordships know, I am a great advocate of the autonomy of
our regulators. I have no doubt that regulators are best placed
to determine who is fit to practise in their professions. The
consequence is that to interfere with this could undermine public
confidence in those who provide important services.
The Bill absolutely will not undercut regulators’ ability to make
determinations about individuals with qualifications, experience
or skills from overseas. I have previously given this assurance
to your Lordships. However, picking up the point from the noble
Lord, Lord Kennedy, I began to realise that the mood of the House
was not to rely on assurances in this area. No matter how
eloquently I argued the case for assurances, it would not cut the
mustard. I absolutely recognise the continued strength of feeling
on this issue. That is why I am proposing to make the protection
of regulator autonomy clear in the Bill, and to do so
specifically for Clauses 1, 3 and 4.
Protecting the autonomy of regulators is particularly relevant to
these clauses, because this is where regulations made under the
Bill will most directly intersect with regulators’ existing
powers. This could be through empowering regulators to assess
individuals with overseas qualifications, enabling them to enter
into recognition agreements or placing substantive obligations on
them.
These clauses also attracted particular interest from the DPRRC,
and your Lordships rightly asked for more assurances. The
amendment in my name places two conditions on regulations made
under Clauses 1, 3 and 4. The first condition is that the
regulations cannot remove regulators’ ability to prevent unfit
individuals practising a profession. The second is that the
regulations cannot have a material adverse effect on the
knowledge, skills or experience of individuals practising a
regulated profession. To put it simply, regulations cannot lower
the required standards for an individual to practise a profession
in the UK or, importantly, part of the UK. Taken together, these
two conditions will make sure, enshrined in statute, that
regulators will retain the final say over who practises in their
profession and that the standards of individuals practising
professions are maintained.
I also reassure your Lordships that this does not ask regulators
to change expectations where they differ between different parts
of the UK with good reason. In the case of devolved regulators,
such as the General Teaching Council for Scotland, this would
mean the requirements of a regulator for part of the UK.
As I said, in framing this amendment I have drawn inspiration
from contributions made in this House and from discussions with
regulators. Indeed, I am particularly pleased that it has been
recognised by the noble Lord, , who has chosen to put his name
to this amendment. I hope that this will be the first of many
amendments that I bring forward at the Dispatch Box that the
noble Lord, , will feels able to do that to
going forward.
I turn now to Amendment 11. Of course, I recognise that my noble
friend wants safeguards around how powers that could modify
primary legislation are used. That is entirely reasonable. But I
hope that my explanation of the regulator autonomy amendment in
my name provides reassurance that the Government have listened to
both noble Lords’ and the DPRRC’s concerns that regulations made
under the Bill will be an appropriate use of the powers in
Clauses 1, 3 and 4.
In particular, I know that some noble Lords have questioned how
regulator autonomy will be safeguarded in trade deals. First, I
repeat what I have said previously: in all negotiations, a key
concern for the Government is ensuring the autonomy of UK
regulators and protecting UK standards. Now, of course, the
regulator autonomy amendment in my name ensures, in statute, that
this concern is reflected in any regulations made under Clause
3.
I come to the point that my noble friend made in asking for an
assurance that primary legislation will be used to implement any
consequences of free trade agreements that affect professional
qualifications. I am not able to give that assurance because, by
this Bill making it statutory that we cannot undercut the
autonomy of UK regulators and diminish UK standards, it is
appropriate that secondary legislation will be used to implement
those aspects of future trade deals.
This new clause that I am putting forward means that Clause 3
cannot be used, for example, to require the automatic recognition
of overseas qualifications—it would not be possible to do that.
Before regulations are made, the Government will engage
extensively with regulators on trade negotiations. Earlier today,
I spoke about how I have formalised that in the new regulated
professions advisory forum, which provides regulators with a
mechanism to inform UK objectives for trade negotiations and the
implementation of commitments that we make in them. If I have
learned anything from the Bill, it is that regulators will not
shy away from telling the Government when they have concerns
about their autonomy.
Should any of your Lordships remain in doubt about whether powers
in the Bill should be used to modify primary legislation, I
remind the House that the relevant sector-specific legislation
can be primary or subordinate legislation. Why we have these
differences is lost in the mystery of time, but there is no
consistency at all between professions in this matter. For
example, the qualification and experience requirements to be a
doctor or vet are set out in primary legislation. By contrast,
the requirements for pharmacists or social workers are set out in
subordinate legislation. That is why regulations made under the
Bill may need to amend both primary and subordinate legislation
in order to work for all regulated professions.
To give a further example, Clause 4 ensures that regulators can
be authorised to enter into regulator recognition agreements with
overseas counterparts. Many regulators already have this power;
however, not all do. The Architects Registration Board and the
General Dental Council are examples of regulators which do not
have this power and may therefore benefit from Clause 4. But
their powers are set out in primary legislation, so my noble
friend’s amendment would prevent them being authorised to enter
these agreements under Clause 4 if necessary. To give a further
assurance, of course the Government envisage that regulations
made under Clause 4 would be made at the request of the
regulator. It would seem unfair to prevent them entering into
recognition agreements simply because their powers are set out in
one type of legislation rather than another. There frankly is no
rationale or sensible reason for this difference. I hope that I
have provided the House with the necessary reassurance that we
have taken seriously the concerns about the use of delegated
powers. For this reason, I ask for the amendment to be
withdrawn.
I thank the noble Lord, Lord Kennedy, for speaking to Amendment
15, and the noble Baroness, Lady Hayter, for her contribution. My
amendment addresses the same core concerns as Amendment 15. Both
amendments —I understand that the noble Baroness’s amendment was
very well intentioned—ensure that the Bill does not require
regulators to allow those whom they determine to be unfit to
practise and that the Bill cannot lower professional standards.
Amendment 15, however, would further specify the protection of
regulators’ autonomy regarding flexibility in assessment
practice. The ability of regulators to make assessments as is
most appropriate is already accommodated in the amendment in my
name to Clause 1.
Finally, Amendment 15 also seeks to prevent anything in the Bill
affecting a regulator’s ability to determine to make a regulator
recognition agreement. This point is unnecessary. FTAs—such as
the UK’s current deal with Canada—often contain frameworks for
agreeing regulator recognition agreements. However, there is no
obligation on regulators to enter into these agreements in any
deal the UK has entered into. I am concerned that specifying this
in legislation could unhelpfully suggest that the Government are
unsupportive of such agreements. The Government are keen to
support regulators agreeing them, where they wish to do so. In
view of my own amendment, I formally ask the noble Baroness not
to press her own.
(Con)
My Lords, I thought that my noble friend gave an extremely
helpful response to the debate and explanation of the
relationship between the Government’s new clause in government
Amendment 12 and Clauses 1, 3 and 4. Regulators in particular
looking at this debate will, I hope, look at subsections (2) and
(3) of the Government’s proposed new clause and share their view
with us. If that holds, it provides a central piece of protection
for regulators in future, in relation to all the substantive
powers made available through the Bill. I am grateful for what
the Minister has brought forward, and what he has said this
evening. I beg leave to withdraw Amendment 11.
Amendment 11 withdrawn.
Amendments 12 and 13
Moved by
12: After Clause 13, insert the following new Clause—
“Regulations: protection of regulator autonomy
(1) The appropriate national authority may make regulations under
section 1, 3 or 4 only if satisfied that the conditions in
subsections (2) and (3) are met. (2) The condition in this
subsection is that the regulations do not remove the ability of
any regulator of a regulated profession to prevent individuals
who are unfit to practise the profession from doing so.(3) The
condition in this subsection is that the regulations will not
have a material adverse effect on any regulated profession in
terms of the knowledge, skills or experience of the individuals
practising it.(4) The reference in subsection (2) to individuals
who are unfit to practise the profession is a reference to
individuals who are unfit to practise the profession by reason of
their character, a lack of knowledge, skills or experience or
otherwise.(5) A reference in this section to practising a
profession includes a reference to undertaking activities that
comprise the practise of the profession or using a title
associated with the practise of the profession.”Member’s
explanatory statement
This amendment prevents the appropriate national authority making
regulations under section 1, 3 or 4 unless satisfied that the
conditions in subsections (2) and (3) of the new Clause are
met.
13: After Clause 13, insert the following new Clause—
“Regulations: consultation with regulators
Before making regulations under section 1, 3 or 4, the
appropriate national authority must consult a regulator of a
regulated profession if the authority considers that—(a) the
regulator is likely to be affected by the regulations, or(b) it
is otherwise appropriate to consult the regulator.”Member’s
explanatory statement
This amendment requires the appropriate national authority to
consult a regulator of a regulated profession before making
regulations under Clause 1, 3 or 4 if the authority considers
that the regulator is likely to be affected by the regulations or
it is otherwise appropriate to consult the regulator.
Amendments 12 and 13 agreed.
Clause 14: Authority by whom regulations may be made
Amendment 14 not moved.
Clause 15: Parliamentary procedure for making regulations
Amendment 15 not moved.
21:30:00
Amendment 16
Moved by
16: After Clause 15, insert the following new Clause—
“Protection for existing recognised qualifications
Nothing in this Act prevents, qualifies or otherwise affects the
ability of those with existing recognised qualifications to
continue practising the profession to which the qualifications
relate in the United Kingdom or any part of the United
Kingdom.”
(Lab)
My Lords, as I said in Committee, there is a clear need to give
those who already have their professional qualifications
recognised in the UK certainty and confidence that this
legislation will not affect them negatively, especially because,
in many cases, the professionals and people working in these
areas already live in our communities, have decided to call the
UK their home and are people on whom all of us so often rely,
particularly for our vital public services. Amendment 16 seeks
only to enshrine the Government’s own central promise from the
Explanatory Notes that
“nothing in the Bill prevents, qualifies or otherwise impacts the
ability of those with existing recognised qualifications from
continuing their areas of practice in the UK”.
The Minister said in Committee says that he completely agrees
with
“ensuring that professionals who have already had their
qualifications recognised in the UK should be able to continue to
rely on those recognition decisions.”
Then why not put it in the Bill? Without this simple amendment,
how can the Minister provide the reassurance that these workers
so desperately need? He also stated in Committee:
“The regulations which commence Clause 5(1) will include saving
and transitional provisions”
to
“ensure that professionals whose qualifications were recognised
from the end of the transition period to the point when the 2015
regulations are revoked are unaffected”,
and to
“support a smooth transition to the new framework for recognising
overseas qualifications.”—[Official Report, 14/6/21; cols.
1734-35.]
When will we see these regulations, and what does “a smooth
transition” actually mean? Will it ensure that no one with
qualifications recognised today will lose out on job prospects
tomorrow?
We feel strongly about this issue, and I look forward to hearing
unequivocal and clear commitments from the Minister tonight
(LD)
My Lords, an issue raised in Committee that it would be helpful
for the Minister to provide an update on—in writing would be
satisfactory to me—concerns those European Union workers who had
been providing services, with their qualifications recognised,
and had applied for settled status but on the fast-track element,
which did not ask them to provide any more information about the
qualifications recognition. With Clauses 5 and 6 revoking the
previous EU scheme and the move towards the domestic schemes,
there is still potentially a grey area for those workers who will
have to provide proof of their qualifications recognition if they
change employer, or indeed if they seek new rental or property
agreements, et cetera.
Previously, the noble Lord, Lord Grimstone, indicated that the
Government were aware of this, and he provided assurances. It
would be very helpful if the Government could say how many of
these workers could be in this position. It emphasises the point
made by the noble Baroness, which I agree with, that, even if
there are unintended consequences of putting at risk some of
these workers, we can ill afford it.
The second element is that it would be helpful to know the
Government’s intentions for the timing of the revocation of the
EU scheme. Previously, the Minister indicated that it would be
when the Government were ready to do so but that they were not in
any rush to do it. It will be helpful to know what timeframe we
are looking at, because the noble Lord, , in a Statement he provided to
the House in September, said that the Government were now
carrying out a substantial review of previous European
legislation and retained EU law. Are professional qualifications
separate from that review or will they be considered as part of
it? If the Minister could give some reassurance on that, I would
be grateful.
Finally, because this will probably be my last comment on the
Bill in this House—which I am sure the noble Baroness, Lady
Bloomfield, will be pleased to hear—I want to put on record how
she and the noble Lord, Lord Grimstone, have engaged in this
process. I have been in this House a number of years, and we hear
at the Dispatch Box fairly frequently that the Government value
the input and scrutiny from this House and take on board whenever
we amend legislation, and we always welcome that. But our
amendments quite frequently get buried in the dust in the other
House, when all our great counsel and wisdom is turned back.
The benefit of the noble Baroness and the noble Lord listening
and then acting by tabling the government amendments is that this
is now government policy, and the Bill is now substantially
changed. If I understand it correctly, this will be the first
time that the autonomy of regulators will be respected in primary
legislation. That is a considerable achievement for the
parliamentary process of a Bill of which we had been not only
sceptical but critical at the early stages, but which we now
support. Therefore, I commend both Ministers and their teams for
the work they have done. Personally speaking, I think the Bill is
in a much better position. For the benefit of our regulators and
those who receive services that the professions operate, it is a
better Bill as a result.
(Con)
I thank the noble Lord, Lord Purvis, for his kind words; I will
certainly try to continue to do my best at the Dispatch Box. I
also thank the noble Baroness, Lady Blake of Leeds, for her
amendment. In Committee, the House sought confirmation that
professionals who have already had their qualifications
recognised in the UK will be able to continue to rely on those
recognition decisions. Indeed, those professionals will be able
to continue to do so, provided of course that they meet any
ongoing practice requirements. Nothing in the Bill, nor the
regulations anticipated under it, will interfere with or reverse
such decisions.
Regulations commencing Clause 5 will include saving and
transitional provisions to ensure that professionals’ existing
recognition will continue to be valid, and applications made
before revocation comes into effect by the commencement
regulations will continue to be assessed under the relevant
retained EU recognition law. It is possible to make similar
provisions in regulations under Clause 6.
The noble Baroness, Lady Blake, asked what a smooth transition
would look like. It will include regulations which ensure that
the UK meets its international obligations under the EU-UK
withdrawal agreement, EEA EFTA separation agreement and the UK
Swiss citizens’ rights agreement. It includes saving and
transitional provisions to ensure that professionals’ existing
recognition will continue to be valid, and applications made
before revocation has commenced will be assessed under the EU
system. Commencement of Clause 5(1) is timed to avoid burdening
regulators or creating gaps in their ability to recognise
overseas qualifications. The Government took a similar approach
when amending retained EU recognition law in 2019 to ensure a
smooth transition for businesses and professionals following the
UK’s withdrawal from the EU.
The noble Baroness also asked why, if we are so committed to
protecting the ability of those with existing recognised
qualifications to continue practising, we are not putting this on
the face of the Bill. We believe that this matter is best dealt
with through saving and transitional provisions in secondary
legislation. The UK Government and devolved Administrations took
this approach when amending EU legislation on recognition of
professional qualifications to prepare for leaving the EU. We see
no reason to depart from this approach and enshrine this
commitment in the Bill.
The revocation of the general EU-derived system will not impact
the ability of professionals with recognition decisions awarded
under that system to continue practising in the UK. This applies
even where a professional takes a career break and chooses to
return to a profession in which they were awarded recognition.
The noble Lord, , asked about the
fast-tracked settled status of EU citizens. We are unable to
provide the House with the precise timetable at present, but we
will engage with stakeholders as we go forward.
Professionals who do take a career break should check with their
regulator to establish what, if anything, they will need to do to
continue practising or to return to practice. This will of course
vary between professions. If a profession has a continuing
practice requirement, that will also apply for individuals
currently practising. For example, where a registered medical
professional has a licence to practise, they must revalidate
their registration every five years. Similarly, when a
professional returns to the UK, their first port of call would be
to the relevant regulator in the UK to ascertain requirements for
recognition.
The Bill does not make commitments in these areas, because that
would be interfering with regulators’ ability to regulate. The
main reason that this amendment has been proposed is to protect
those with recognition decisions, but there is no threat from
this Bill to those decisions. The Professional Qualifications
Bill respects existing recognition decisions and any ability a
regulator has to set professional standards. I therefore ask the
noble Baroness to withdraw this amendment, if I have provided
sufficient reassurance.
(Lab)
I thank the Minister for her response, and the noble Lord, Lord
Purvis, for his comments.
I think I can honestly say that there is still concern. I have
heard it particularly from those professionals who are not
practising at the moment—so there is a continual need for
reassurance. However, I thank the Minister for her comments and
beg leave to withdraw the amendment.
Amendment 16 withdrawn.
The Deputy Speaker () (CB)
We now come to the group beginning with Amendment 17. I remind
the House that if Amendment 17 is agreed to, it will pre-empt
Amendment 18.
Clause 16: Interpretation
Amendment 17
Moved by
17: Clause 16, page 13, line 16, leave out subsection (3) and
insert—
“(3) For the purposes of this Act, a regulator is a regulator of
a regulated profession if it is listed in Schedule (Regulators of
regulated professions).(3A) The appropriate national authority or
the Secretary of State may by regulations amend Schedule
(Regulators of regulated professions) so as to insert additional
regulators.”
(Lab)
My Lords, I will move Amendment 17 and speak to its associated
Amendment 20, which would place the list of regulators covered by
the Bill into a schedule.
I know that the Minister is familiar with this because we argued
it in Committee, but, interestingly, in asking a rather simple
question—“Which regulators are covered by the Bill?”—we
discovered that not only did the Minister not know but nor did
the officials and indeed some of the very regulators covered. At
the time, as we rather playfully looked through the list, we
discovered that one of the regulators on the Minister’s list was
the body regulating bouncers—which were hardly the professionals
we quite had in mind on a trade deal, nor where we thought there
was likely to be an unmet need. But there we are. We also found
that others on the list already had the powers to authorise
incoming professionals, so it did not actually require an ability
for Ministers to make that possible if their own statute did
not.
At the time, we noticed that the Minister was slightly
uncomfortable with the absence of a comprehensive list and he
very graciously said:
“I accept, without reservation, that it is not good enough that
these lists have been incomplete and that noble Lords must have
felt they were playing a game of blind man’s buff in trying to
see who the Bill applies to.”—[Official Report, 22/6/21; col.
161.]
I confess that I was never very good at sticking the tail to the
right end of the wretched donkey and I understand that it has
taken BEIS a little time to get it right. I think we have had two
updates of the list, with some regulators added and some gone. I
see that the pig farmers have gone from the latest list and the
aircraft engineers have also disappeared, as have analytical
chemists. However, we have in their place chicken farmers,
schoolteachers and waste managers—so it seems that the Government
can turn flying pigs into chickens.
21:45:00
It may seem a bit of a joke, but the Bill is about giving
Ministers quite a strong power to ask independent regulators to
do something they would not otherwise do—because if they are
already doing it, we do not need the Bill. So being absolutely
clear to whom the Government can apply these powers is an
important consideration. Therefore, it is vital that we in
Parliament and, even more, the regulators concerned, know that
they are caught by the Act and therefore liable to be caught by
its provisions. I still maintain that the best way of ensuring
that is to have the list on the face of the Bill.
One part of the purpose of our original amendment has in a sense
been achieved, in that the Government have worked hard—I know
that the Minister has worked across all departments and an
enormous amount has been done—to get that list right and finesse
it so that those covered by the Bill now know that they are
covered. I also know that the Minister has given an undertaking
to publish that list and keep it updated. The Government have
also established what I think is called a professional
regulators’ forum, and I assume that all the regulators on the
current list would be included as members of that forum. So,
while I accept that the list will change from time to time, I ask
the Minister to confirm that everyone on it—all those
organisations—will be included in the forum.
I am not asking for a promise or anything. I know that the list
is on a website, but we do not all look at a website very often.
If the list—or maybe just a link—could be included on the agenda
for those meetings of the regulators’ forum, it would be really
helpful. It would make sure that we knew on behalf of Parliament
that someone was looking over the Government’s shoulder at the
list; apart from anything else, it would save us from having to
check that it had been updated.
I still think my schedule should be on the Bill, as it would be
the best way of keeping it up to date, but I can tell the
Minister that I will not push this to a vote. I will be asking at
the end for permission to withdraw my amendment, so he need not
go into great depths about why it is absolutely not necessary.
However, I do ask for assurances that the list will be not only
published but included as an agenda item for meetings of the
forum and, importantly, that every organisation on that list will
be invited to his forum. That would be a way of holding a grip
over the list. I beg to move.
(Con)
My Lords, I think I was in the briefing before Second Reading
that I first asked which regulators were covered by the Bill—one
of those naive questions where you are often surprised by the
answer that you get. My noble friend the Minister said he would
write to me, which he duly did, and it was a surprise to other
members of the committee when we got the letter—and things sort
of went downhill after that. We had another version of the list,
with more regulators on, and then a more definitive version that
appeared more recently and is on the website.
For me, this struck at the competence with which the Bill was put
together, and nothing that has happened has made me change my
view that it was not put together in a competent way. But I am
satisfied that the Government have done a very considerable
amount of work to try to establish the scope of the Bill and to
whom it applies, and are committed to keeping an updated list on
the website. So I am happy with where we have ended up—but, my
goodness, it has been an extraordinary journey.
(Lab)
I think we can all congratulate Members on their persistence on
this issue and I have to tell noble Lords that my vocabulary has
expanded at an enormous rate by being involved in the Bill. I
have never heard the expression, “I am not assuaged” quite so
often, but it clearly shows that we are moving in the right
direction. As we have heard, there are still concerns and, given
the lateness of the hour, I just want to add that with Amendment
18 we really feel that we would like to see statutory protection
to ensure that the list is regularly maintained and updated. That
is the question we have: we have achieved so much through the
debate here, but how can we be reassured that the list will be
kept updated and maintained, and how often will it happen?
Because of our experience, we need a reassurance that the list
will not be removed once the Bill has received Royal Assent. I
will listen very carefully to the Minister’s reply.
(LD)
My Lords, I think no one has had a bigger headache on this list
than the Minister himself and the department, but it was a
headache, frankly, of their own making.
I am with the noble Baroness, Lady Hayter, on this: I think it
should be a separate schedule. We proposed a mechanism in
Amendment 19 by which this schedule might be created and
maintained. The noble Baroness, Lady Blake, talked about keeping
it updated: if it had not been for the scrutiny of your Lordships
and the constant harrying of the Ministers, this list would not
have been nearly right now. I suspect there are still amendments
to go into it. For that reason, we think Parliament should hold
on to a regulatory process and, through a statutory instrument,
that schedule can be updated.
What we have sought to do in Amendment 19 is not to second-guess
where the list is now—because, as the noble Baroness, Lady
Hayter, pointed out, that is like catching a knife—but to give
the Government a process by which a definitive list may be
created, put in a schedule and updated easily and, I would say,
flexibly through a statutory instrument. Why? Because this is not
just a list of organisations on a website: there are rights and
responsibilities that come with being on this list and, indeed,
not being on this list. Which professions are going to be
scrutinised to see whether demand is met or unmet? This is a
really important issue that Parliament should continue to
maintain scrutiny over.
The noble Baroness, Lady Hayter, talked about the
responsibilities of those organisations, but also the
rights—which ones have the autonomy that the Minister’s amendment
has granted and which are not part of this list? Furthermore,
when the conversations are being had with the devolved
authorities, a list gives weight to those discussions and gives a
very clear indication of which professions are in and which are
not. So, one way or another, putting it in the schedule is really
important, as is a way in which that can be flexibly maintained,
whereby Parliament maintains its ability to scrutinise that
process; because without that scrutiny, where would we be
now?
(Con)
My Lords, I thank the noble Baronesses, Lady Blake of Leeds and
Lady Hayter of Kentish Town, and the noble Lords, Lord Purvis and
, for their amendments. These
amendments return to the debate about the regulators and
professions to which the Bill applies, a topic which has covered
me in embarrassment at various stages during the Bill’s passage.
I admit that it was not our finest hour. Noble Lords rightly
asked that the Government fully and precisely articulate who
meets the definitions in the Bill.
The Government too, of course, and the regulators want to be
clear about who the Bill applies to. It was for this reason that
I asked my officials to carry out a comprehensive exercise to
determine all those regulators and professions that meet the
definitions in the Bill. My officials worked closely throughout
the summer with other government departments, devolved
Administrations and regulators. I am grateful to all those who
contributed. Every regulator that meets the definitions in the
Bill has been directly contacted by my officials, and is aware
that the Bill applies to them. My officials have also contacted
those regulators that we no longer consider the Bill applies to.
I have written to my counterparts in the devolved Administrations
to confirm the professions and regulators that operate in those
parts of the UK. I am pleased to report that they have fully
co-operated in this exercise. This extensive engagement
culminated in the drawing up of a list of regulators and
professions affected by the Bill, which we published on GOV.UK on
14 October. This exercise has provided the additional clarity
rightly demanded by this House. The Government remain absolutely
committed to regularly updating a list of professions and
regulators to which they consider the Bill applies, and to
keeping that list in the public domain.
I have also asked my officials to ensure that the assistance
centre will also publish the list and will signpost professionals
to all the professions and regulators identified on it. This will
be part of our future service requirements and our contractual
requirements for the assistance centre. Building on our work with
regulators to prepare the list, my officials will continue
engaging with this network of regulators through a variety of
avenues to ensure they are kept updated on our work in this area.
In answer to the noble Baroness, Lady Hayter of Kentish Town, I
say that it would not be sensible to use the new forum that we
are setting up as a means for doing this. The forum would be so
large that we would probably have to go to Rome to use the forum
there for its meetings, and it would frankly be unwieldly to have
a forum of that size. That forum is going to have a cross-section
of all the regulators on it. We will refresh that cross-section
from time to time to make sure that all regulators from all parts
of the UK have a chance to put their views. Of course, we will
have other networks where we will engage through a variety of
avenues to ensure that regulators are kept updated on our work in
this area.
Perhaps picking up a point made by the noble Lord, , I say that the regulators will
of course want to know that they are on this list, because a
regulator who is covered by the definition gets the benefit of
regulatory autonomy. There is therefore a positive reason for a
regulator wanting to be included.
(LD)
On that note, in the event that I happened to be the chief
executive of a regulator that was not on that list, it would help
to know what the process was by which one sought to join the list
or, indeed, to be taken off it. If we are not going to have a
schedule as we discussed, the process by which a regulator puts
itself in the frame or seeks to put itself in the frame would be
really important, as well as publishing the list. Discussing that
process would be useful.
(Con)
Of course, the interesting thing is that this process derives
entirely from the legal definition of a regulator that is
governed in law. It is not a matter of grace and favour to say
whether a regulator is included or not; it is a matter of fact as
to whether the regulator statutes make it a regulator engaged in
law.
(LD)
It is more about having to draw attention to the fact that they
believe that they are within the law. I cannot imagine that the
department will have enough resources to continually trawl the
horizon and find them, so individual organisations may find
themselves asking how they go about getting on the list.
(Con)
I think the simple answer is that they should write either to the
Minister responsible, whoever that is—if it is me, of course, I
will attend to that—or to the senior officials within the
department or within the devolved Administrations. This will
obviously be something that officials will monitor and keep up to
date.
22:00:00
Amendments 17 and 20 proposed by the noble Baroness, Lady Hayter
of Kentish Town, would enshrine a list of regulators as a
schedule to the Bill, while also maintaining a definition of a
regulator. I have some major reservations about this approach. A
schedule to the Bill listing regulators, while there is also a
definition of the regulators that the Bill applies to,
immediately creates a conflict. Which one is correct? Is it the
regulators in the schedule, or the regulators that a court
considers to meet the definition?
This would also result in a conflict if a “regulated profession”
could continue to be defined. A profession could meet the
definition but its regulator be not listed in the schedule. Would
that profession and regulator be covered by the Bill or not?
Definitions and a schedule cannot coexist in the Bill; it would
be legally inoperable. Therefore, if there is to be a schedule to
the Bill, the definitions would have to be removed and it would
be as if they were never there. As a result, such a schedule
would have no statutory hook and would simply be an arbitrary
list of regulators.
My clear preference is to retain the definitions in the Bill—and
let me set out why. The professions regulated by law in the UK
and their associated regulators will change; legislation will
change; names of regulators will change; and administrative
arrangements between regulators will change. With a schedule
instead of the definitions, there would be no statutory reason to
update who the Bill applies to.
We could intend to maintain the proposed new schedule in line
with the definitions currently established in the Bill, but there
would be nothing to oblige the Government, nor future
Governments, to do that. As a result, I believe this risks a more
arbitrary determination about who is a regulator under the Bill.
We have to root the definition of who is covered by this Bill in
a straightforward legal definition. Decisions regarding who is
covered by the Bill should be made based on clear criteria—which
are the definitions established in the Bill.
It is for the same concern over arbitrary determinations that I
have reservations about the approach proposed in Amendments 18
and 19. First, let me say that, in considering the merits of
Amendment 19, I have assumed that the noble Lords’ intention was
to oblige the Government to publish in regulations a list of
regulated professions, rather than “a list of regulators”, as the
amendment says. These amendments would mean that a profession
could meet the existing definitions of a regulated profession, as
set out in Clause 16, but if that profession is not on the
government website or listed in regulations, the Bill and any
subsequent regulations made under it would not apply to the
profession.
It should not be the Secretary of State who has the final say
over who this Bill applies to. It should not be for this
Government, nor future ones, to remove or add professions to the
Bill arbitrarily—a risk that these amendments introduce. I hope
that, with that further explanation, noble Lords fully understand
the merits of a definitional approach.
So, while I of course recognise the good intention of noble Lords
to bring greater clarity, the Government have already responded
to that. The combination of scrutiny by regulators, the fact that
this list will be easily accessible on GOV.UK and the fact that
it will be a requirement for the assistance centre also to
publish this list and keep it up to date will provide the
confidence that the House is looking for—whereas these
amendments, by contrast, risk greater ambiguity. For these
reasons, I ask for the amendment to be withdrawn.
(Lab)
I start with an apology to the noble Baroness, Lady Noakes: of
course it was her. In fact, I have just seen in my files the
letter where it was shared with her and then, afterwards, with
us. I apologise for that oversight.
Something that the Minister said has caused me great concern. I
was suggesting that, as a way of having someone overlooking the
list on GOV.UK, it be linked to in the agendas or whatever for
the forum. The Minister then seemed to suggest that it would be
an enormous collection, but his own policy statement says that
there are about 50 regulators, and around 45 went to the first
meeting that he held, so there is not a great number. We are
talking not about hundreds of regulators but about what has
sometimes been 61. The most it has ever been was 80, and we are
down to 70 at the moment, I think—I am sorry, but I do not have
the absolutely up-to-date figure in front of me. My concern is
that those are not all invited to the forum, which the Minister
has given me to understand that he will, on the whole, chair—he
may not always be able to, but that would give it a certain
kudos. I am not saying that every regulator would want to turn
up, but I would find it a bit surprising if he is setting up a
regulator forum but not inviting all the regulators covered by
the Bill to it.
I am not expecting him to pop up now and give me that assurance,
but it may be that an exchange of letters afterwards could do
so—because the regulators’ forum was seen by a number of us as
something that is very important. But I hope that it will not
just be a hand-picked selection of the 50 or 60 regulators that
are covered. Having said that, as I said at the beginning, I will
not test the opinion of the House on this. I still think that I
am right and he is wrong, but there you are—it happens. I beg
leave to withdraw the amendment.
Amendment 17 withdrawn.
Amendments 18 to 20 not moved.
