Professional Qualifications Bill [HL]

Debate between Lord Hunt of Kings Heath and Lord Grimstone of Boscobel

Committee stage
Tuesday 22nd June 2021 Lords Chamber

[Lord Hunt of Kings Heath (Lab)]

My Lords, I support the noble Baroness, Lady McIntosh, in her request for a round table with regulators between Committee and Report. That would be very helpful indeed.

I just want to ask the Minister about Clause 9. I remind the House of my membership of the GMC board. The Minister will know that, particularly in the health sector, there are regulators that currently regulate for the whole of the United Kingdom, but the devolved Administrations could decide to take over regulatory authority if they wished under the legislation that led to the devolved Administrations; that is particularly the case in relation to Scotland. That being so, will this clause apply to the interrelationship between the regulators in both countries? If the answer is yes, that makes the case for this clause because, clearly, one of the issues relates particularly to the National Health Service. Although it is run by four different government departments, none the less it has some UK-wide characteristics. The key one I believe is an ethos, but secondly there is the ability of staff in the NHS from the different countries to cross the border without any problem in relation to qualifications.

[Lord Grimstone of Boscobel (Con)]

I thank the noble Lord for his question. Again, I repeat that I am very happy to hold round tables on this, as necessary.

On the noble Lord’s particular point, if a new separate regulator was set up that fell within the definition of a corresponding regulator for the purposes of this Bill, Clause 9 would automatically apply to it and the information sharing would happen in that way.

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[Lord Grimstone of Boscobel (Con)]

I thank my noble friend for that comment. As we know, these questions are difficult to answer in the abstract. What I can say is that, where primary legislation is needed, it will be used. I do not think that it is reasonable to ask me to define which aspects will be covered by primary legislation at this stage for agreements that have not yet been finalised.

[Lord Hunt of Kings Heath (Lab)]

My Lords, this has proven to be a very interesting debate, and it has moved us on a little. The noble Lord, Lord Patel, was very clear about why we are concerned about the use of Henry VIII clauses. He should take the noble and learned Lord, Lord Thomas, saying that he could not better his words as a pretty good compliment.

It seems to me that there are two things here. The first is the actual wording of Clause 13. My noble friend Lord Davies did a great service when he went through it. I reread it and, frankly, found it very hard to understand. When the noble and learned Lord, Lord Thomas, also says that he does not fully understand Clause 13, I suspect that that means that no one does, except perhaps one parliamentary counsel and possibly an official in the noble Lord’s department who issued the instructions. The fact is that this is poor legislation if it is almost impossible to work through what this clause actually means.

At heart, this is not just an academic debate. The noble and learned Lord, Lord Thomas, put his finger on it when he said that at the heart of this is the independence of our professions. One of the great successes that we in the UK enjoy, both in terms of prestige and financially, is the way in which many of our senior professions are viewed globally. The independence of those professions is one reason why that is so. That is what makes the Bill so important and why we are all rather worried about the current situation with it.

My noble friend Lady Hayter said that, if we leave it as it is, we are leaving any changes in the future without sufficient parliamentary scrutiny. The noble Baroness, Lady McIntosh, asked for draft regulations; I do not think that she received an answer to that, but it was a very important point.

The Minister has promised a full explanation on Report, which we will now get earlier, but he needs to come forward with changes to the Bill because it will clearly not get through after its current process through your Lordships’ House. There is a question for noble Lords generally about what to do with it.

The noble Lord, Lord Lansley, asked a pertinent question in relation to trade deals and the Government’s preference for primary or secondary legislation. The Minister answered him very carefully by saying that there would be primary legislation when needed, which is not quite the answer that I think the noble Lord was seeking. Of course, he had an earlier amendment that seeks to deal with this in one way; I have a sunset clause, which is another way of dealing with the problems in the Bill. There may be other approaches, but, between now and Report, we have to do something to protect the independence of our professions and Parliament’s role in scrutinising the provisions in the Bill.

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[Lord Grimstone of Boscobel (Con)]

My Lords, I thank the noble Lord, Lord Hunt of Kings Heath, for his amendment and the noble Lord, Lord Patel, for the views he expressed.

The amendment would impose a time limit of four years on appropriate national authorities making regulations under this Bill, once enacted, and regulations already made under the powers in the Bill would expire the day after that four-year period is completed. Of course, this is familiar to many as a sunset clause. However, sunset clauses are typically insurance policies against powers that, at some point in the future, may be no longer suitable to deliver the policy aims which required the legislation to be made.

The Trade Act, which we have heard referred to by a number of noble Lords, with its rollover of international agreements to be replaced in due course, is an example of legislation in which a sunset clause that can be renewed by Parliament is appropriate. However, this Bill and the delegated powers within it are drafted deliberately to endure, futureproof the legislation and provide flexibility to make necessary changes over time. I even like to think of the Bill as having a sunrise —not sunset—effect because it is intended to help our professionals enter new markets and deliver a global Britain, having ended the one-sided, EU-derived temporary arrangements. I therefore feel that a sunset provision is at odds with the purpose of the Bill.

Returning to debate a new professional qualifications Bill in four years’ time because this Bill no longer provides for that flexibility, would, I respectfully suggest, not be the best use of the expertise of this House. Of course, I have nothing against such clauses where they are appropriately used, but inclusion here would undermine the ability of the UK Government and devolved Administrations to respond swiftly to changing demands for services. It would potentially thwart the implementation of future regulator recognition agreements, which, as we know, may not in reality be implemented for some years after a free trade agreement is agreed.

There is also a risk that in providing for the expiry of regulations made under Clause 3 to implement international agreements, the UK may be left without provision upholding the commitments that we have made under those agreements, thereby placing us in breach of their terms. As I remarked to the noble Lord, Lord Purvis of Tweed, on day two in Committee, I believe that sunset clauses would not be appropriate in these circumstances. By sunsetting, we limit the opportunity for service trade and constrain regulators’ abilities to exploit opportunities with their international counterparts, for example through Clause 4.

The powers in the Bill are designed to support a flexible response as the regulatory landscape evolves over time. Curtailing the ability to do that through a time limit would put us into regulatory limbo rather than preparing us for the future. We know that the Bill will allow the UK to replace the interim system of recognition currently in operation. Stripping away regulation that the Bill creates to replace the EU system would only create a new gap.

Finally, if the intent behind this amendment is indeed to mitigate any potential misuse of powers, I reiterate that the powers detailed in the Bill are carefully tailored to its requirements; they are focused on a specific purpose. I believe that the reason why some noble Lords are arguing for a sunset clause is that they think it is a rotten Bill: “If we are not able to kill it off now, why not do so in four years’ time?” I prefer to share the ambition of the noble Lord, Lord Fox—I was pleased to hear him state it so clearly—that the Bill should leave our House in good shape, do what it is intended to do and be fit for purpose. On that basis, I hope that the noble Lord, Lord Hunt, will agree that a sunset clause is not appropriate and will consider withdrawing his amendment.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am grateful to the Minister and to noble Lords who have taken part in this debate. The Minister is an eternal optimist and I liked his description of the Bill as a sunrise Bill. I say at once that I agree with the noble Lord, Lord Fox, that a sunset clause is not to be desired. The aim is to reach some consensus on the way forward. My reading is that the Minister is not going to get the Bill through at the moment, as it will be heavily amended on Report. This is a House of Lords starter Bill so the Parliament Act does not apply, and—

Professional Qualifications Bill [HL]

Debate between Lord Hunt of Kings Heath and Lord Grimstone of Boscobel

Committee stage
Monday 14th June 2021 Lords Chamber

[Lord Grimstone of Boscobel (Con)]

I thank my noble friend for those two comments and the spirit in which they are offered. I realise that my point about trust is not a personal matter in relation to me but the more general point my noble friend makes. On letters—I will not dwell on this too long—I think the short gap between the two stages of this Committee, and this Committee being on a Monday, was a particularly difficult practical point. The officials have literally been working day and night on this; that is why not all the letters were available until the end of Sunday. We copied all of them to Front-Bench spokesmen, but I take my noble friend’s point that in future, as well as putting them in the Library, it would be convenient for noble Lords if letters were copied to them—albeit sometimes, when there is such a restricted period between the two days of Committee, they may arrive later than any of us would wish.

[Lord Hunt of Kings Heath (Lab)]

My Lords, I am grateful to the Minister for his response. He said he would consider this between now and Report, which I am very grateful for. He then referred to Clause 4, making the point that it will be useful in encouraging regulators to make mutual recognition agreements, but that there will be no obligation and it will be up to the regulators to agree. However, we are debating Clause 3, and our problem is its open-ended nature, which on my reading means that Ministers can simply, through regulations, tell regulators what to do. I will not go into the issue of trust again, but does the Minister recognise that there is a problem with Clause 3? Is he prepared to look at its wording to make it clear that it cannot be used to override the protections he has already put into the Bill through Clause 1?

[Lord Grimstone of Boscobel (Con)]

I thank the noble Lord for that point. Of course, anyone who listened to this debate could not but hear what noble Lords have said on this. As I said, I will reflect on this matter.

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[Lord Grimstone of Boscobel (Con)]

The noble Lord’s colleague the noble Lord, Lord Purvis, cautioned me on the previous day of Committee never to use “never” at the Dispatch Box, and I am trying to remember his strictures on that. The reason I did not answer the question directly is that I am not going to do so unless I am completely sure of my facts on this. I do not believe that it is possible for Clause 3 to creep its way into Clause 4 but, so that I can give the noble Lord, Lord Fox, a completely definitive answer, I will write to him, and I will copy that letter to all other noble Lords. Indeed, I will hand deliver it to noble Lords who wish to get it particularly expeditiously.

[Lord Hunt of Kings Heath (Lab)]

I suspect that we should be wary of what we wish for, and that the Minister is now going to take his revenge in the number of letters that we will receive over what I hope will be a very pleasant weekend. I do not think we can take this any further because he has said that he will respond to the noble Lord, Lord Fox, whose question, alongside that of the noble Baroness, Lady Hayter, seems to me the core of the argument. The only other question is about pig farmers as opposed to beef farmers; the Minister said that at some point pig farmers were covered by the legislation but beef farmers were not. I suggest to the noble Baroness that we leave as an eternal mystery why that should be.