Professional Qualifications Bill [HL]

Baroness Randerson Excerpts

2nd reading
Tuesday 25th May 2021 Lords Chamber

[Baroness Randerson (LD)]

My Lords, I declare an interest as chancellor of Cardiff University. Like other universities, Cardiff trains and educates a large number of the professionals to whom this Bill applies. I also have an interest in the subject in general, having spent decades of my professional life working within further education and trying to understand international qualifications and advise students on that basis.

I recognise the need for this Bill in the new post-Brexit situation in which we find ourselves, but I join in the general thumbs-down that speakers so far have given it, because I have some serious concerns and specific questions about how the system will operate and the basis of government policy. It is a deceptively slim Bill—which means, of course, that it is simply a shell and an avalanche of regulations will follow in due course. The circumstances differ considerably from one profession to another and, indeed, across the four nations of the UK, so it is essential that, when these regulations come to us, they are subject to the full and automatic scrutiny of this House specifically to allow practitioners in each of the professions to have their concerns heard in this place.

The Government’s policy is deceptively simple too: to allow and encourage regulators to assess qualifications available in other countries, to establish equivalence, to recognise those qualifications and, hence, to address shortages. In practice, those shortages have got decidedly worse in many professions because EU citizens have gone home in considerable numbers. There is concern that the Government’s starting point in this process is to dismantle the existing legislation based on the EU system of equivalence.

In most matters, across the board, the UK has subsumed EU law into UK law, with a view to gradual divergence as and when we feel we need it. For professional qualifications, however, this is not to be. The Government are instead taking the clean slate approach, apparently because of the apparent preference given to EU citizens and EEA nationals if we keep the current basis. We are putting ourselves at a huge disadvantage in this regard. There will be a gap, because the process is very lengthy, as the EU discovered when it set out on it. There will be a huge gap when we are trying to fill vacancies in Britain; and, of course, we want our professionals and companies to be able to go and work in the maximum possible number of countries in the world. So, why we are pulling out the rug from under the current system, I am not clear.

Because the Bill is a shell, it gives no glimpse into the huge complexity of this issue. Many noble Lords sitting here will be too young to be aware of the years of tortuous negotiation that lay behind the EU system. My noble friend Lady Garden gave us a glimpse into it. The single market, we thought, would open up the gates and people would be able to go freely from one country to another. It took years to sort it out. As I said, I was a lecturer in further education at the time. I taught a subject called European business and foolishly set my students a case study to follow—the development of the single market in relation to qualifications. It went way beyond the available timescale—and, indeed, their concentration spans.

Many noble Lords will also be unaware of the lack of confidence in foreign qualifications that existed before the EU system was established. Such lack of confidence upsets public trust in professions. Why is it all so complex? You start with the building blocks. For example, you might have a BSc in biology, but one BSc in biology is very different from another, and the whole approach to qualifications is different in some other countries. In the UK we emphasise underpinning skills and knowledge, whereas in Germany, for example, it is all task-centred. That makes equivalence difficult to evaluate.

The Bill applies to 60 regulators and 150 professions, but not all regulators are equal. They are not all equally well resourced or experienced in what they have to do. I am concerned about the ability of some of them to withstand government pressure to establish equivalence in order to follow on from a trade deal. In the EU, the organisation that delights in the name of CEDEFOP—the European Centre for the Development of Vocational Training—brings together policy-makers, employers, trade unions, training institutions, trainers and learners. This Bill does not do that; it takes an ad hoc, piecemeal approach. Admittedly, BEIS is working on a common framework, but there is also a role here for the United Kingdom Internal Market Act, and complex issues may emerge from that.

So, what is driving all this? The Government want to address shortages but there is also specific mention of government direction to regulators as a result of trade deals; I share other noble Lords’ concerns about this. I also have real concerns that trade deals could force the recognition of equivalence from the top down where, in reality, that equivalence does not exist. There are real dangers in reciprocity. I am concerned that recognition is to be driven specifically by shortages. What about individuals applying to work in the UK who need their qualifications to be recognised? Perhaps a university wishes to employ an eminent medical practitioner from a country where the qualifications have not yet been recognised. How will individuals be dealt with?

I am also very concerned about the total lack of reference to higher education institutions. They are the suppliers of so much of the training and are, therefore, essential partners, producing teachers, doctors, architects, social workers and so on. Where is the co-ordination to make sure that regulators’ decisions are made on a firm ground of knowledge about the background of qualifications that people have in their field? What requirements will there be to co-ordinate, and how will this ad hoc approach ensure that that co-ordination takes place? Have higher education institutions even been consulted on this? I share concerns about the lack of reference to English language. Excellent professional skills do not necessarily mean excellent English skills. Universities require a certain level of English. That is essential for trust. How will that be dealt with?

I emphasise that this is a dynamic process. Qualifications change over time, and they do so very rapidly in the modern world. What is equivalent this year may not be next year. We have a topdown approach, driven by shortages and government trade deals. How will they recognise changes in the actual qualifications?

The devolved Administrations have a great deal of power in this field and in the large majority of professions. In many cases, they have their own regulators, with distinctly different requirements. Clearly, they have to be part of this and not subject to last-minute requests for legislative consent Motions—that will not work. Given that this is driven by UK Government trade deals, how will they be brought into a true partnership on this issue and not just consulted as an afterthought?

Finally, a shortage in one country is not necessarily a shortage in another. This will require the Government to look across borders and recognise the needs of different countries. At the same time, if you come to the UK as an immigrant, your profession may not be recognised.

The Bill will challenge us and certainly the Government, and it will establish issues and problems for the future. I recognise the need for it, but the Government have probably underestimated the problems and challenges that they face.

Professional Qualifications Bill [HL]

Baroness Randerson Excerpts

Committee stage
Wednesday 9th June 2021 Lords Chamber

[Baroness Garden of Frognal (LD)]

My Lords, I wondered if I had drawn the short straw for this set of amendments. It always feels slightly lonely when yours is the only name on an amendment, but I assure noble Lords that I have the support of all my Lib Dem colleagues. I beg to move Amendment 4 and speak to Amendments 5, 7, 8 and 33—there may be more to come later; I hope that this is not a spoiler alert—to remove “substantially” from the relevant clauses. It appears so often that it is obviously a favourite word of the Bill drafters, but it expresses a qualification, uncertainty and lack of conviction which we wish to challenge, and it surely threatens to undermine the authority of the regulators. If I were having an operation, or water were flooding through my roof, I am not sure that I would be reassured to know that the surgeon or the plumber had substantially the same knowledge and skills as those required by a UK surgeon or plumber, or substantially corresponded to the practice of a profession. Surely in legislation we need to be more assured. If we are genuinely looking at a level playing field between UK and overseas professionals, let us have the courage of our convictions and assure our citizens that they are in safe hands because the regulators have done their professional job and checked that qualifications and experience match across the countries, not just substantially but in their entirety.

[Baroness Randerson (LD)]

My Lords, I support these amendments. As my noble friend has excellently explained, we are probing the use of “substantially” and highlighting what we see as its inadequacy. The Minister’s own amendments start to tackle this problem. Both the British Dental Association and the British Medical Association have concerns that the proposals focus too heavily on simple qualifications and do not adequately recognise the importance of skills and experience, as well as the vital requirement to be of good character and to put patient safety first. This is fundamental in healthcare and being of good character is of course important in teaching-related professions.

The noble Baroness, Lady Finlay, earlier outlined the concerns of the Health and Care Professions Council. The Minister may argue that the BMA, the BDA and so on are not regulators, but they represent their profession. They have a stake in the respect in which that profession is held, and they pay substantial annual fees for the recognition of their qualifications. The impact assessment makes it clear that the proposals in the Bill will be likely to increase those fees.

In some measure, the amendment encapsulates the fundamental problem with the Bill. It tries to impose a simplistic solution on an endlessly complex and dynamic situation. The Government have grossly underestimated how long it will take to replace the current structure with an adequate and comprehensive alternative. The interim recognition of qualifications is swept away on enactment of the Bill, on the grounds that it gives preference to EEA and Swiss nationals before a replacement is necessarily ready. What will it be replaced with? Another set of recognition for qualifications from countries which will then be given preference as a result of international trade arrangements.

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[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

Just for clarification, if a Member wishes to speak after the Minister and is in the Chamber, they can message the clerk; if they are online, they can email the clerk. But all requests must come through the clerk to the Chair. I call the noble Baroness, Lady Randerson.

[Baroness Randerson (LD)]

My Lords, I wish to speak specifically to Amendments 42, 49 and 57, which I have co-signed. They all address issues related to the interaction of UK Government powers with those of the devolved Administrations and each of the three relates to different aspects of that issue.

Amendment 42 relates to the national assistance centre. The impact assessment makes it clear that this will be a centralised facility under the control of the Secretary of State, but it will also provide information and assistance in relation to devolved regulators and where the professional qualifications are different in the devolved nations. In preparation for this debate, I went online and explored the websites of a range of regulators. They all seem to provide comprehensive advice and information services, so I am puzzled as to what the problem is. Why is it necessary for the Government to overlay the well-established structure of regulators with this additional bureaucracy with—of course—its accompanying additional cost?

Because I am of a suspicious nature, I feel that the real purpose of the assistance centre is to enable to the UK Government to override the differences between the nations of the UK and, when making trade agreements, to take the opportunity to iron out those annoying differences in qualifications in one part of the UK and another. Hence my amendment, which simply requires consultation with the devolved Administrations on the function and operation of the assistance centre before it is established.

It should not be necessary to state this basic constitutional principle in terms of an amendment to a Bill, but the Government’s approach to this Bill has been woeful so far. It has been developed at speed—the noble Baroness, Lady Hayter, suggested it was on the back of an envelope—at a time when elections meant that there have been none of the usual opportunities to consult the devolved Administrations. In Wales, officials did not even see a draft of the Bill until the week before its introduction. They did not see the final version until we all saw it, when it was laid.

As drafted, this Bill confers a suite of regulation-making powers on the appropriate national authority. In Wales, the Welsh Ministers are that authority for the devolved areas, but the powers conferred on them are exercisable concurrently with the Secretary of State and the Lord Chancellor—hence the Secretary of State and Lord Chancellor could legislate in devolved areas and would not need to obtain Welsh Ministers’ consent.

As things stand, all the devolved Administrations appear to be opposed to this Bill in its current form. In Amendment 42, I offer just a modest solution to a very small part of the problem that the Government face. I would be grateful if the Minister could explain exactly how he sees the assistance centre working, how large it will be, what it will actually do and the estimated cost.

Amendment 49 relates to the interaction of this Bill with common frameworks, an issue that was raised by the noble Baroness, Lady McIntosh. Several noble Lords can boast that they have the T-shirt in relation to common frameworks and their interaction with government attempts to regain devolved powers. We fought several rounds with the Government on this issue during the passage of the internal market Bill. It is not at all clear how this Professional Qualifications Bill interacts with the well-established common frameworks programme.

There is a recognition of professional qualifications framework in preparation by BEIS, but it seems to have been delayed and there has been no explanation for that delay. Is this Bill designed to replace that common framework? If so, the Government need to tell the devolved Administrations, because they would much rather go ahead on the basis of a framework that involves non-legislative co-operation and a lot of working by consensus. This amendment is designed to ensure that the common framework on professional qualifications is not undermined or overtaken by any provisions in this Bill.

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[The Deputy Chairman of Committees (Baroness Fookes) (Con)]

My Lords, I have received requests to speak after the Minister from the noble Baroness, Lady Randerson, and the noble Lords, Lord Foulkes of Cumnock and Lord Purvis of Tweed. We will start with the noble Baroness.

[Baroness Randerson (LD)]

I thank the Minister for his response to several of the issues that I have raised. I welcome his assurances on the common framework on this issue and I look forward, along with colleagues across the Committee, to scrutinising it in due course. I also welcome the information that he has provided on the assistance centre. That is helpful, but it would have been even more helpful if it had been included in the impact assessment so that we would not have had to waste time today seeking that information.

Finally, I want to make an important point. To me, it sounds as if the Minister has been really surprised by this Bill and therefore it should not be unexpected that the devolved Administrations have been surprised by it too. Since the vast majority of the Bill touches on devolved powers, why were not the officials of the devolved Administrations, if not the Ministers, involved at an earlier stage in the development of this policy? That would have improved trust if that had happened. Perhaps I may urge the Minister to make up for lost time by having some fairly intensive discussions with the devolved Administrations over the coming days.

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[Baroness Randerson (LD)]

My Lords, I am very pleased to have the opportunity to speak on this group of amendments, and to reflect on the comments of the noble Lord, Lord Patel. He has reminded us of the complexity and sensitivity of these issues, with his example of medical practice in America. It is a country— the richest in the world— with the very highest medical standards, but it does not have the guarantees of high standards, perhaps, that we rightly want to take for granted in this country. I think he has pinpointed an important sensitivity on this issue.

I welcome these amendments, especially the emphasis on consultation, since I am very worried about the lack of awareness of this Bill beyond this Chamber. I think it is right to say that some of us in this Chamber have woken up only gradually to the huge complexity of the Bill. The Minister himself expressed some surprise at it, and the more that can be done to raise awareness among regulators and among the professions affected the better.

I have one very specific comment: I was struck, on reading the impact assessment, on how narrow the Government’s consultations with regulators were prior to the laying of this Bill. Out of 150 professions and 60 regulators, only a dozen were involved in some of the consultation. They were asked questions about the costs and, in one case, there were replies from only three of them. The costings we have been given on an expensive new policy are based, in some aspects, on replies from three regulators, and they could hardly be regarded as a representative cross-section. There is a real worry for us about a lack of understanding of the complexity of the Government’s policy.

[Lord Grimstone of Boscobel (Con)]

My Lords, I thank the noble Baroness, Lady Hayter of Kentish Town, for her amendments and I note that the noble Lords, Lord Patel and Lord Hunt of Kings Heath, and the noble and learned Lord, Lord Hope of Craighead, are supporting them. These amendments introduce a duty to publish, in draft form, any proposed regulations where they relate to the professions listed, and to consult on these regulations before they can be made under Clauses 1 and 3—the powers to provide for individuals to be treated as having UK qualifications and the implementation of international agreements respectively. I have spoken at some length about the commitment to engagement on both clauses but let me provide some further reassurance specific to these amendments.

First, and perhaps most importantly, the Government, through this Bill, will not and cannot bring forward regulations that affect the autonomy of regulators or the standards that they set. With the greatest of respect to noble Lords, I sometimes feel that they think there is more to this Bill than meets the eye. There is not. This is a Bill which, at its heart, is about the mutual recognition of professional qualifications. It is not, and could not be, a Trojan horse for the Government to somehow choose to undermine the autonomy or the standards of regulators. It would be the height of foolishness for any Government, not just mine, to do so. I suggest that a little injection of reality about what this Bill is about should creep into some of our debates, and I say that with the greatest respect to noble Lords.

I turn first to Amendment 15 to Clause 1, which would mean that, if one of the listed professions were deemed to meet the demand condition in Clause 2, and regulations under Clause 1 were justified, there would be a three-month period of consultation with their regulators before regulations relating to those professions could be made.

I recognise that the professions and regulators specified by the noble Baroness are primarily those supporting our important public services. It is of course essential that any regulations made under the Bill support the delivery of public services and complement regulators’ existing practices. However, there seems little merit in listing, in primary legislation, a set of priority professions —my noble friend Lady Noakes put this very succinctly —which would be subject to change as demand changed. To do so could unduly restrict the ability of the Government, or the other national authorities, to respond quickly and efficiently to the needs of the professions on the list when they were deemed to have unmet demand.

Moreover, let us remind ourselves of what Clause 1 does. It requires regulators to have a route to consider applications from these people. It does not tell them that they have to accept these people or that there has to be a diminution of standards in relation to them; it requires regulators to have a route to consider them. This in no way undermines the carefully constructed architecture that our regulators have put in place to protect patients, consumers and other users of regulated services. Decisions under the Bill will be informed by careful engagement with professions and their regulators, and not introduced without warning. I agree that regulators will need to be involved from the outset, and have time to prepare for changes.

Amendment 27, which relates to Clause 3, seeks to make a similar requirement to publish and consult on draft regulations, with the same regulators and professions, in relation to implementing parts of international agreements on the recognition of professional qualifications. As I have explained previously—and will no doubt have to continue to do—a key concern for the Government in all negotiations is ensuring that the autonomy of regulators within these trade agreements protects UK standards. That applies to all regulators and professional bodies which may be within the scope of an international agreement, not just the ones specified in this amendment.

Through the Department for International Trade the Government engage with a range of stakeholders, including regulators, to understand their priorities and inform the UK’s approach to trade with future trade agreement partners. We have several forums to inform these negotiations, including the trade advisory groups, which hold strategic discussions to help shape our future trade policy and secure opportunities in every corner of the UK. We also hold many ad hoc consultations with interested parties. BEIS also organises regulator forums that provide updates on the negotiations and the terms of trade deals.

In addition, to consult before making regulations at the point at which the international agreement being implemented has already concluded would, frankly, be too late to meaningfully impact the substance of the agreement. That is why in May this year we launched a public call for input as we prepared for trade negotiations with India, Canada and Mexico. I encourage all those with an interest, and of course that includes all regulators and professions, to respond. Why would we not want to know what people think before we embark on the negotiations? To think that we should consult them after the agreement has been effectively finalised, when it is being prepared for parliamentary scrutiny, seems, with great respect, to be shutting the stable door after the horse has bolted.

On Clause 3, it is important for the UK Government to be able to meet our international obligations on professional qualifications, to support UK professionals and trade in professional services, and to do so in a timely fashion. I know that on a later group of amendments we will come back to further examination of this clause.

I trust that this gives reassurance to noble Lords on the engagement of professions, including the professions cited in the amendments but of course all others, before any changes are enacted through regulations through Clauses 1 and 3. I ask that the amendment be withdrawn.

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[Baroness Finlay of Llandaff (CB)]

My Lords, this is a very interesting group of amendments because, as far as I can see, it is about addressing the domestic skills shortage. I do not think anyone should be under any illusion about the extent to which there now is a skills shortage. I am going to address this purely across health and social care, which is the area that I know about. I am not going to touch on law and so on.

There is a skills shortage now, particularly among clinical scientists. These are not qualified doctors; they are scientists who are now working in the clinical arena, often carrying a great deal of clinical responsibility. As medicine progresses, and as clinical sciences progress, there will be more of these people coming forward who have very narrow but highly specialised skills. I have already mentioned the physician assistants and anaesthesia assistants. Anaesthesia—and I say this having trained for a time in anaesthetics myself—is not a straightforward discipline. Things can go wrong very rapidly, and the responsibility carried by somebody with this skill set is enormous, because somebody’s life depends on it. They need to know what they are doing all the time. Currently, this group of assistants are not registered. I use that as an example because there will be others, including people working in fields such as cardiology and radiology—in all kinds of interventional areas. Then there are those working in the diagnostic fields who are clinical scientists. If they get something wrong, the diagnostic label attached to a patient will be wrong, the treatment will be wrong, and that patient’s life may be not only damaged but lost. If that original diagnostic test is not properly conducted, the mistake is repeated all down the line. I have a major concern, therefore, about the domestic shortage of clinical scientists. We used to have a good supply of people who wanted to come here from Europe. Now, those from Europe have been returning to Europe, but people from Europe no longer want to apply to come to the UK. That is aggravating the existing gaps in the service.

I have added my name to Amendments 20 and 21, and I fully support the requirement for others to be consulted. In all these fields, there is increasing interdisciplinary working. Although the registration of doctors is held separately to that of nurses, midwives, physios and so on, they must in fact work as a team and there must be cross-fertilisation of skills and competencies. We need to invest in UK training to upskill our own professionals—hence Amendment 21. Amendment 21 may lead the way to credentialling, which has been suggested as a way forward across the different healthcare disciplines, whereby people develop highly specialised skills and are credentialled in one particular area, rather than having to go back to their baseline qualification to apply for a post. I also wonder whether the Bill itself has been drafted as it has to push forward credentialling. I would be grateful if the Minister was able to clarify whether that has been behind some of the drafting, particularly in Clause 2.

Amendment 26 stresses the autonomy of the regulator. I would have thought, from the comments we have heard about the Government’s respect for the autonomy of the regulator, that they would wish to accept that amendment, although I do not have my name on it—it is in the name of other noble Lords.

On Amendment 28, again I would hope that the reciprocal arrangements between regulators would be in the Bill itself, to ensure that there is cross-disciplinary working and an interchange of standards. It would be a real mistake to have standards for a certain procedure, or way of doing things, that vary depending on the background—the initial qualification, possibly decades old—of that professional. That would mean that, if they came up through a nursing background they would somehow be expected to operate at a lower standard when they are, as a sole operator, doing a diagnostic procedure such as a gastrostomy, and that the skills and competencies required of them to do that procedure would be different from those required of someone with a medical degree. They should not be: there should be one standard for the procedure—for the patient—and, if it is complicated, it may well be that it gets handed on to the person with the medical degree.

This is, therefore, a very important set of amendments, and I am most interested to hear the Government’s response to them.

[Baroness Randerson (LD)]

My Lords, the Minister emphasised that the UK wanted to retain mutual recognition of EEA qualifications, and my noble friend Lord Purvis disputed some of that. Whatever led us to the current situation, shortages are a real problem. As the noble Baroness, Lady Finlay, just mentioned, the impact of the lack of recognition is very serious in some professions.

I shall give noble Lords an example: there are around 22,000 EEA-qualified doctors licensed to practise in the UK, although a significant number of them will have returned home, or at least left the UK, in recent months and years. Nurses, in particular, have gone home in large numbers. In contrast to those 22,000 doctors, only about 2,000 UK doctors are licensed to practise in the EEA, so the impact of that decision not to have mutual recognition falls much more heavily on the UK than on the EEA. We are one country with an impact of 22,000, versus 28 countries with an impact of only 2,000 UK-trained doctors.

However, I am pleased to have the opportunity as a result of these amendments to emphasise that the Government have to get a grip on workforce planning generally. There are amendments in this group that refer to the importance of working far beyond reliance on foreign-trained doctors and professionals generally. The Government have to fund an expansion of university and medical school places and increase the number of places on training courses in a wide range of professions where there are shortages.

Judging by statements in the impact assessment, the Government’s purposes seem to waiver. They seem not to have made up their mind about whether regulators can continue to operate independently and autonomously or should be part of a co-operative effort to address skills shortages. This will partly be addressed by international trade agreements. This group of amendments incorporates some ideas that offer the opportunity for greater clarity. Amendment 20, which I support, ensures consultation with regulators, so that it is not the job of the Government alone to decide whether there is a shortage.

One example is from the information that I received in preparation for these debates. The British Dental Association makes the point that in healthcare professions, patient protection must remain the overarching aim. It points out that the current barriers to work in the UK for overseas-qualified dentists include the need, once they are registered, to undertake up to one year of additional training in dental practices. I know this, in part, from my experience of regularly going to the trainee doing one year’s practice at my local dental practice. These opportunities are apparently very rare and difficult to obtain because they involve costs to the practice hosting the training dentist and costs to the new dentists themselves, so any supposed shortage of new dentists in this country would not be resolved by the simple measure of encouraging more registrants. That is the point of the BDA’s comments.

Professional Qualifications Bill [HL]

Baroness Randerson Excerpts

Committee stage
Monday 14th June 2021 Lords Chamber

[Baroness Noakes (Con)]

My Lords, Amendment 30 is a probing amendment on the abiding theme in our debates on this Bill, namely regulator autonomy.

Clause 4(1) says that regulations can be made

“for the purpose of, or in connection with, authorising a regulator … to enter into regulator recognition agreements.”

That seems pretty straightforward. Authorising a regulator to enter into a recognition agreement should not involve any element of compulsion, but I have learned to be wary of wide regulation-making powers.

My Amendment 30 seeks to make it clear that Clause 4 cannot be used to compel regulators to enter into recognition agreements. With this probing amendment, I am asking one simple question: are there any circumstances in which the power in Clause 4 could be used to force a regulator to enter into any recognition agreements?

Since tabling my amendment, I have seen the Government’s response of 3 June to the Delegated Powers and Regulatory Reform Committee, where they state that the power cannot

“be used to provide regulators with the ability to enter into regulator recognition agreements where they lack sufficient abilities”.

If my noble friend the Minister confirms today from the Dispatch Box that nothing in Clause 4 could compel a regulator to do anything it does not want to do, we will be able to dispense with my amendment fairly straightforwardly.

[Baroness Randerson (LD)]

My Lords, I am very pleased to speak in support of this amendment in the name of the noble Baroness, Lady Noakes. This issue is the crux of the independence of regulators. The situation is that not all regulators are equal: they do not all have the same legal powers; they do not all have the same clout; they do not all have the same capacity. For example, in the years between 2007 and 2016, the Nursing and Midwifery Council issued 46,257 decisions on international regulation, whereas the General Chiropractic Council issued 29. We are obviously not talking about a group of organisations that are equal in terms of their ability to withstand not just the letter of the law, but the thrust of government policy. Pressure from the Government can be a very powerful thing for an organisation. We also have to take into account the fact that some of the countries with which these international trade agreements will be signed will have regulators that are only now properly developing. Not only are all our regulators not equal, but in other countries, not all regulators are equal.

I draw the Minister’s attention to a set of statements in the impact assessment. He has often emphasised the independence of regulators, so can he therefore explain the contrast between two of its paragraphs? Paragraph 111 of the impact assessment says:

“The Bill contains a power to enable regulators to negotiate and agree Recognition Arrangements (RAs) with their overseas counterparts. The Bill does not require the negotiation of RAs”.


In paragraph 118, however, it says:

“The Bill contains a power to make regulations to implement the recognition of professional qualifications (RPQ) components of international agreements. These regulations could include the ability to bind regulators to implement the RPQ chapters of IAs as appropriate.”


Paragraph 111 says that they cannot be bound, whereas Paragraph 118 says, just as the noble Baroness, Lady Noakes, suggested, that regulations might trespass on the independence of regulators. I simply ask the Minister for clarification.

In his letter to me this weekend which, in the spirit of proceedings here, I read just after midnight, the Minister said that MRAs

“would not place obligations on regulators and instead encourage them to develop MRAs.”

Which is it? Are regulators to be truly and, in a wholesale way, independent and not subject to pressure, either direct or indirect, or are they to have their wings clipped potentially by regulations?

This amendment clarifies beyond doubt what I believe, from the Minister’s previous statements, is his favoured interpretation: that regulators would always be independent.

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[Baroness Noakes (Con)]

My Lords, I am glad to have heard the noble Baroness, Lady Hayter, introduce her amendment. We both tabled our amendments in light of the British Dental Association’s comments, but we ended up drafting them rather differently. I thought that the noble Baroness, Lady Hayter, was drafting hers so that it would have to be approved by the UK regulator, rather than by the overseas regulator. I think that we are on the same page, and that my drafting is probably slightly more accurate, but let us not go there. It so confused those in the Public Bill Office that they tried to claim that there was a conflict between our amendments, and that we had to invoke something in the Standing Orders. I said that no, they were not in conflict, and could exist side by side perfectly well, but I now see that they are trying to address exactly the same issue.

The noble Baroness is right that a number of countries have a multitude of individual qualifications, some of which are good for the purposes of the regulated profession, and some which are not. There is a good example in this country: lots of bodies recognise accountants, but not all of them can be recognised as registered auditors; and there will be lots of examples beyond that. It is that point which we are trying to ensure is properly identified when dealing with Clause 4 and the position of the overseas regulation in relation to particular qualifications, and I hope that my noble friend the Minister will look on one or both of these amendments favourably.

[Baroness Randerson (LD)]

My Lords, Amendment 32A, in my name and that of my noble friend Lady Garden, would require the appropriate national authority to consult with higher education institutions and other training providers before making regulations under this clause. I declare an interest as chancellor of Cardiff University.

I asked a Written Question, answered by the noble Lord, Lord Callanan, in which I asked Her Majesty’s Government

“why higher education institutions and other providers of training for professional qualifications are not listed as stakeholders affected in the impact assessment for the Professional Qualifications Bill; whether higher education institutions or others …were consulted on the proposals in that Bill, and … what plans they have to consult such providers in the future.”

The Answer stated:

“The proposals in the Bill do not affect the UK qualifications or experience required to practise a profession. The Government ran a Call for Evidence on the recognition of professional qualifications … between August 2020 and October 2020, which was open to anyone with an interest in professional qualifications”,


and that there were, among others,

“26 responses from educators who provide training and higher education institutions.”

The Answer continued:

“Officials have met representatives from Universities UK to discuss proposals in the Professional Qualifications Bill and will continue to pursue an active programme of stakeholder engagement.”


So, having told me in the Answer that this Bill has no impact on HEIs and other trainers, the Government went on to say that the HEIs and trainers identified themselves in the public consultation as being concerned by, or interested in, this Bill. Following that, the Government have been in discussion with Universities UK at least. Will the Minister clarify whether the Government have also spoken to other training providers, not just the representatives of universities?

I have had correspondence from Universities UK, which says that, although its contact with the Government has been fairly constructive so far, it would be helpful to require the Government to consult with higher education providers as they strike regulator recognition agreements, given the importance of these agreements to certain sections of higher education. The potential impact on onshore recruitment of EU students on relevant courses should be monitored. Clearly, that is of importance because if you are doing away with the EU-established system, there will be an impact on the number of EU students coming to this country, potentially some of them afresh as they will want to get their qualifications here, but also on the top-up courses that our HEIs provide. It also says that it would be helpful to have frequent consultation and analysis-sharing between the Government and higher education providers to help ensure that the Bill benefits the range of bilateral agreements that could increase recruitment to higher education, rather than have a detrimental effect.

It is not the case that this Bill does not affect HEIs. It affects the number of foreign students applying to the UK on top-up courses, and, crucially, what the HEIs and other training providers teach. Depending on what they teach, it affects who they employ and how many of them they employ, so this has a deep impact on them. I urge the Minister to consider this very reasonable amendment. The Government have recognised the legitimate role of higher education—I hope they have consulted other trainers as well—so what reason could they have for rejecting such a sensible and modest amendment?

[Lord Moylan (Con)]

My Lords, Amendment 55A is in my name. There are many excellent provisions in the Bill requiring regulators to share information. They are required to share information with regulators at home and abroad, and with people who wish to be qualified to practise in this country. However, there is nothing in the Bill which requires the sharing of information with people who are already practising the profession in this country. Indeed, there is nothing in the amendment spoken to by the noble Baroness, Lady Randerson, which touches on my point, although it would expand the requirement for information sharing.

It might be thought otiose to have such a requirement where a regulator is also a membership body, as it could be assumed that naturally it would communicate with its members, but a regulator is not always a membership body. I remind noble Lords that I said at Second Reading that I was an honorary fellow of the Royal Institute of British Architects, and I am grateful to RIBA for discussions about this topic. RIBA is a membership organisation representing its profession, but it does not regulate the architectural profession. As noble Lords will know from other parts of the Bill, that is a function reserved by statute to the Architects Registration Board. Experience is that stand-alone statutory regulators do what is required of them by statute, and very little else. That is why a nudge is needed, and this amendment would achieve that.

This clause would allow professional practitioners to know what agreements regulators were pursuing, what mutual recognition agreements were in the pipeline, what progress had been made and the timeline for the agreement. It would also provide a clear path for professional practitioners to have their views on how agreements should be prioritised made known to the regulator. Remarkably, without this amendment, there is no statutory obligation on a regulator to have any communication with regulated professionals at all.

Why does it matter? To take the example of architects, British architects are known to lead the world. They work on major projects throughout the world, and they often work with our world-beating civil engineers on transport, infrastructure and other major projects. They earn a great deal of export earnings for us as a country, too. When they are doing this, they need to be able to send architects to work in other parts of the world. On occasion, they also need to be able to employ in this country architects who are from countries where a pipeline of work might be developing and have specialist knowledge of regulations—be they on planning or whatever—that apply in the country where the project is being delivered. They are very commercial architects—they have to be, because they operate in a harsh commercial world—so they look ahead. They see a pipeline of activity in a particular country that might be coming forward with new projects—airports, infrastructure, or whatever it might be. They want to be able to have some influence on their regulator about how mutual recognition agreements might be prioritised to facilitate capturing that work.

I have used architects as an example, but there are other professions that might find themselves in a similar situation, which would want to have that two-way flow with their regulator and which, not being a membership organisation, would need, in my view, the help of statute to ensure that that communication took place. This is so modest and commonsensical a suggestion that I hope my noble friend will be able to rise and simply say that he accepts it.

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[Baroness McIntosh of Pickering (Con)]

I am grateful to have the opportunity to discuss more broadly the contents of Clauses 5 and 6. Clause 5 relates to the revocation of the general EU system of recognition of overseas qualifications. It revokes the European Union (Recognition of Professional Qualifications) Regulations 2015 and provides regulation-making powers to the appropriate national authority—in this case the Secretary of State, the Lord Chancellor and the devolved Administrations—to modify any legislation that it considers necessary as a consequence of this provision. The fact that this is a broad regulation-making power underlines the need that I identified earlier to consult before the power is exercised, so I again press my noble friend on that point. Clause 6 looks at the revocation of other retained EU recognition law and provides the appropriate national authority with a regulation-making power to modify other legislation for professions that are outside the scope of these regulations but still part of the broader EU-derived recognition framework.

My first question to my noble friend relates to Clause 5(1), which represents basically a cliff-edge revocation of the whole of the EU MRPQ regime in UK domestic law. If we adopt such a one-size-fits-all measure, and given the constraint placed by Clause 2 on the gap-filling power in that clause, would it not be sensible for the Bill to include a power to save, in an appropriate case, the effect of specified elements of the EU-derived MRPQ rules in relation to a particular profession or professions?

This has been put forward by the Bar Council of England, which states:

“We doubt whether Clause 5(2), even read with Clause 13(1)(c)”—


which we will discuss separately—

“provides a power to save the effect of any part of the remaining EU-derived MRPQ regime.”

My concern is that there may be parts of that regime which, for an interim period or even longer, some of the regulators or professions would wish to keep. I understand that that would not be possible. Is that something my noble friend might review for the purposes of the debate today?

I understand that Clause 5(1)

“would come into force on a day specified by the secretary of state in regulations.”


A memorandum to the Delegated Powers and Regulatory Reform Committee says:

“BEIS has said that it intends that commencement regulations would “include savings and transitional provisions relating both to qualifications that have already been recognised and to applications that are already in progress but not yet complete”.


Can my noble friend confirm how that will play in the different jurisdictions, particularly regarding the legal profession, which is dealt with separately in Scotland, England and Wales?

The Library briefing also states:

“Clause 6 would come into force on the day the bill was passed. In the context of clause 6, the Government has said not all pieces of relevant legislation will be revoked at the same time. Some arrangements may be kept for a longer period depending upon the needs of a given sector.”


My concern is that this may lead to some confusion and a lack of understanding of the legal status of the provisions. I refer again to BEIS and its memorandum to the Delegated Powers and Regulatory Reform Committee on 12 May 2021. Paragraph 50 says:

“In particular, it is expected that the healthcare sector will need a longer period of time to transition to the new system to avoid recruitment and retention issues in those sectors”,


which we have just briefly debated. It continues:

“BEIS is of the view that it is appropriate to allow for Departments and devolved authorities to revoke these measures at an appropriate time, without fixing a particular date in the bill.”


Is my understanding correct that we could be faced with different situations in the different devolved nations? Are the Government mindful of what the implications might be?

I am grateful to have had the opportunity to discuss these concerns about Clause 5. Will my noble friend consider that there may be parts of the EU system we want to keep? I accept we have taken the decision to leave it, but, for an interim period, that may be the case. The Explanatory Memorandum states:

“Following the end of the transition period, this system had been retained in the interim to provide certainty to businesses and public services by offering preferential qualification recognition to holders of EEA and Swiss qualifications. The new recognition framework, as set out in Clause 1, will be implemented alongside revoking the 2015 Regulations.”


To sum up, there could be different regimes working at the same time under Clauses 5 and 6. How does my noble friend intend that his department will manage that to the best possible effect?

[Baroness Randerson (LD)]

My Lords, I welcome these amendments. I will start with the points the noble Baroness, Lady McIntosh, was dwelling on at the end—the impact assessment gives the impression that, when this Bill becomes law, it terminates the transitional arrangements which continue to recognise EU qualifications. Indeed, most of the Bill indicates that. Clause 6 undoubtedly muddies the water somewhat. There is a need for clarification from the Minister because there is scope for a great deal of confusion.

From previous comments made by the Minister, I gather that the UK wanted to agree mutual recognition of qualifications as part of the trade agreement with the EU but the EU was not prepared to accept that. I pointed out on the first day in Committee that this is not an agreement between equals; for example, there are 22,000 EU-qualified medics working in this country but only 2,000 UK-trained medics across the countries of the EEA plus Switzerland. In short, we depend a lot more on them than they do on us. The pattern is repeated across a large number of professions. It is not uniform, but it is repeated widely.

Therefore, the Government’s decision to throw their toys out of the pram and say, “If you won’t recognise ours, we won’t recognise yours”, is, I regret to say, simply self-defeating. It also displays a seriously worrying lack of awareness of how long it takes for a regulator to go through the approvals process for each new country’s qualifications. The impact assessment refers to contacts with regulators but, as I said in a previous debate, these are very minimal, and regulators were notably sparing in their responses to government consultation. We do not have a thorough picture of how this will impact on regulators, but I can assure noble Lords that years, not months, is the norm for recognising qualifications—for going through the whole process. As a result of this Bill, there will be a gap when the old qualifications are no longer recognised and the new ones are not yet accepted. Already, we have shortages in a number of professions; we have had shortages for many years, but the Brexit situation has made them much worse. The rhetoric that went along with Brexit has made so many foreign professionals feel unwelcome, and that lack of feeling welcome has had an impact way beyond the EU immigrants; it has impacted on people across the world.

I suppose I should be reassured that the impact assessment states that, although the Bill sweeps away current EEA recognition, the regulators are able to sign recognition agreements with individual countries. However, there is an element of farce here, because dealing with that costs money and is bureaucratic and complex. It is a pity the noble Baroness, Lady Noakes, is not in her place, because she would be nodding fiercely with me on that one. But it will cost money, and that cost will fall on people working in each of the professions concerned. Also, the Minister himself told us in a letter that the old agreements were unpopular, although I have not found anyone echoing that within the sector. But the Government felt that they were unpopular and wanted to replace them.

The sensible thing would be for the Government simply to continue to accept the status quo—the EEA system—at least for a much longer interim period and perhaps review it after five years. I hope we can persuade the Minister that the pragmatic thing to do is to accept this amendment, or maybe even to commit to looking at it again and adding that the whole thing will be reviewed in five years’ time. It will take that long to re-erect a sensible, comprehensive system to replace what the Bill is sweeping away.

--- Later in debate ---

[Baroness Randerson (LD)]

My Lords, my noble friend Lady Garden has wisely pointed out the poor grammar in the Bill. I hope that note will be taken of that. The really significant question here is what the assistance centre is for. It is built on—and the Minister went out of his way last time to point this out—the modest size and the modest number of inquiries that the current assistance centre has dealt with. It is a creation of the UK Government as a result of a non-legal requirement from the EU—a suggestion from the EU. It is not a legislative requirement by the EU. The UK Government decided to make the requirement in law, but the EU situation does not make it a requirement.

We therefore have this organisation that has clearly, in the past, had a small, modest but useful function, but the world has moved on. If you search for anything online these days, there is a wealth of information. Even if you have a limited level of experience in a particular field, you rapidly discover what information is reliable and what is not. What is proposed here is a much bigger organisation—a much more grandiose and legally established organisation with scope for further growth. The Minister told me not to be suspicious, but I remain suspicious. In my view, the UK Government see this organisation as an opportunity for them to take a centralising, co-ordinating role which will nudge the devolved Administrations out of the way in fields where the vast majority of activity is devolved, such as health, teaching and social work. The day-to-day activity in the health service, the teaching profession and social work is done and controlled by the devolved Administrations, even if there are not always separate regulators.

We have raised previously the concurrency of powers of the devolved Administrations and the UK Government. This is an attempt by the UK Government to bring what they see as order and an element of control to the situation. If the assistance centre had a purpose, modern search facilities online have now made it redundant. I agree with the noble Baroness, Lady Noakes, that it is better to put it to sleep—put it out of its misery.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, while I absolutely agree with my noble friend Lord Foulkes that any advice would be better if it was comprehensive and included all the things that everyone would want to know if they were applying either to move here or to go away, the more fundamental question, which I and the noble Baroness, Lady Noakes, asked, is whether we need Clause 7 at all. As she and others have said, it is not clear why it is necessary to establish a statutory advice centre simply to handle information and provide advice and assistance. It will not make any decisions. It will not have the authority to chide regulators for not doing something; it does not have any authority over them. The statutory requirement is actually on regulators to provide advice to the centre—there is no statutory requirement on the centre to fine them if they do not do it or anything else like that—although, as has been said, there are already other ways of getting that information. In addition, only the UK Government, not the other Governments in the Bill, interestingly enough, are able to enforce this requirement. I do not know whether that is an oversight but, given that there is more than one national authority in the Bill, it would be interesting to know why the requirement on regulators is laid down only by the UK Government.

This is all very strange. It is a very clunky and convoluted way of simply asking statutory regulators to tell a Minister such information as is needed to provide advice to potential applicants on how they go about getting their qualifications recognised here. They have been doing that for years. We heard earlier about a number of regulators, particularly in the health service, veterinary science and other areas, that have been doing this for years without any statutory requirement to provide the advice, so it is unclear why the new law is needed. As has already been said, we know that the assistance centre is already in operation. But I think none of us knows why we need a specific underpinning now, and what it is that could not be done by a couple of civil servants within BEIS.

The Minister said last Wednesday that “new legislative cover” is required, but he did not spell out what it was required to do—why this could not be done on a voluntary basis. We have lots of other advice centres which do not have to have statutory underpinning, so why is legislation needed? He said, as the noble Lord, Lord Fox, just quoted, that the centre

“is basically a focal point—a signposting mechanism that tells people where to go to get more information about professions”

and that

“it employs either two or three people.”

It must be tiny; I was going to say that it received 1,600 queries in a year, but it has now received 1,601—I think our little website here gets far more hits than that. As the Minister had the honesty to confess:

“These queries can be as simple as saying, ‘What is the address of the place I have to write to, to find out how I become a nurse in Great Britain?’”—[Official Report, 9/6/21; col. 1501.]


If you google “nurse vacancies”, you might just find it. The idea that we are employing anybody and paying them money to tell people about the address they need to write to to find out how to become a nurse in Great Britain makes me worried, and why on earth does it have to be a statutory body if it is just signposting?

The impact assessment says that

“the Secretary of State can (through contractual arrangements) require the national assistance centre to support professionals”—

it is unclear what “support” means—

“in getting their UK qualifications recognised overseas by providing reasonable information to their overseas counterparts.”

Again, surely the regulator can do that. If a doctor wants to apply to be a doctor in New Zealand, for example, surely their regulator can supply that information. If it is to be done by the advice centre and by contract, it is really hard to think why, again, it needs two bodies or persons to be statutory if they are simply setting up contracts to be able to exchange information—because it is not a decision-making body.

It is unclear what the relationship will be between the centre and overseas regulators. If it is by contracts, how much will they be bound by data protection to ensure that the overseas regulators will look after people’s data according to normal laws? That is easier in a regulator-to-regulator agreement—we have talked about these elsewhere, so why not here?

I am completely mystified as to why Clause 7 is in the Bill. Perhaps we can just take it out, and then we can all go home.

Professional Qualifications Bill [HL]

Baroness Randerson Excerpts

Committee stage
Tuesday 22nd June 2021 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I start by apologising to the House, as I wrongly said previously that nursing associates are not regulated. Actually, the Nursing and Midwifery Council now holds the register of those who meet those criteria.

In moving Amendment 56A, I am grateful to my noble and learned friend Lord Thomas of Cwmgiedd for his support. We have already had a discussion about exactly which regulators are affected by this Bill. There are two regulating bodies based in Wales that this legislation would affect: the Education Workforce Council and Social Care Wales. There is no valid reason whatever that the Westminster Government should have a say over these bodies, as they operate in wholly devolved areas.

The letter previously referred to, which was sent by the noble Lord, Lord Grimstone, to the noble Baronesses, Lady Hayter of Kentish Town and Lady Noakes, concerning the professions and regulators within scope of the Bill, exemplifies a key concern that my amendment tries to address. The letter failed to clarify that the Education Workforce Council is a Wales-only regulator, but also failed even to mention Social Care Wales. This was clearly a mistake, as we have now heard, and I hope it has been corrected, but it also flags a wider issue: Wales and Welsh bodies are clearly an afterthought for this Government when considering this Bill.

In its current state, I fail to see how the Welsh Government would recommend that the Senedd consent to the Bill, unless a number of issues are satisfactorily resolved. Clauses 1, 3 to 6, 8 and 10 confer various regulation-making powers for different purposes on the “appropriate national authority”. Of particular and cross-cutting concern to all these clauses is the way “appropriate national authority” has been defined by Clause 14. This means that the powers of the Welsh Ministers, along with those of the other devolved Governments, are exercisable concurrently by the Secretary of State or Lord Chancellor. Hence, the Secretary of State or Lord Chancellor could make provision, through regulations, on matters that fall within devolved competence.

In addition, as we have heard, Clause 13 contains provisions that mean that the powers to make regulations, conferred by Clauses 1 to 6, include powers to modify primary legislation, such as UK Acts of Parliament and Senedd Acts, as well as secondary legislation. The combination of concurrent functions and Henry VIII powers means that the Secretary of State could exercise these regulation-making powers to amend Senedd Acts and regulations made by Welsh Ministers. While Ministers may claim they do not intend to use these concurrent powers in areas of devolved competence, the wording of the Bill does not reflect this sentiment. The Secretary of State and Lord Chancellor would be able to exercise these powers in devolved areas without requiring any consultation with, or consent from, Welsh Ministers. That is clearly unacceptable.

Clause 14(5) requires Welsh Ministers, when exercising the regulation-making powers in the Bill, to obtain the consent of a Minister of the Crown when such regulations would, if made in an Act of the Senedd, require the Minister of the Crown to consent under Schedule 7B to the Government of Wales Act 2006. This effectively imports the restrictions imposed by paragraphs 8 to 11 of Schedule 7B to the 2006 Act into the regulation-making process. This restriction is unique to Welsh Ministers’ powers; Scottish and Northern Ireland Ministers are not subject to a corresponding restriction. However, it is not without precedent—a similar restriction was imposed by the Fisheries Act 2020.

What does this mean in practice? It means that the Welsh Ministers would, when making regulations using the powers conferred by this Bill, need to obtain the consent of a Minister of the Crown in certain circumstances, including where, for example, the regulations modified or removed a function exercisable by a reserved authority. Further, the removal of this provision via a future Act of the Senedd would also engage the Minister of the Crown’s consent requirements. Again, this is not a suitable state of affairs. Therefore, I must question whether some of these powers are even necessary.

For example, the power conferred by Clause 1 enables the “appropriate national authority” to make regulations that require specified regulators to consider and assess whether qualifications and experience gained outside the UK should be treated as if they were specified UK qualifications for the purposes of practising that profession in the UK. Both the Education Workforce Council and Social Care Wales already have powers enshrined by Welsh Ministers in Welsh legislation to recognise international qualifications and determine whether they are equivalent to UK qualifications, so I ask the Minister why the Bill now gives powers to override this. The solution, I suggest, is simply to accept my amendment.

[Baroness Randerson (LD)]

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

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

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

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

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

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

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

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

--- Later in debate ---

Moved by

[Baroness Randerson]

58: Clause 15, page 11, leave out lines 10 to 13
Member’s explanatory statement
This amendment would mean all regulations made under the Act are subject to the affirmative procedure.

[Baroness Randerson (LD)]

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

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

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

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

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

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

[Lord Moynihan (Con)]

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

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

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

--- Later in debate ---

[Baroness Randerson (LD)]

I thank all noble Lords who spoke in this short debate. To sum up the situation on the affirmative versus the negative procedure, the reality is that negative instruments slip through this House almost unnoticed. The occasional one might catch the eye of an eagle-eyed Peer who might raise it and turn it into an affirmative procedure, but the vast majority slip through. The procedure is intended for routine things such as renewals year on year, not the kind of procedure envisaged in this legislation. At least we get the opportunity to debate affirmative instruments, although that is done on an “accept it or reject it” basis. We cannot amend them, and it is therefore a pretty blunt instrument. Noble Lords know that the number of affirmative instruments rejected by this House is extremely small.

I join the noble Lord, Lord Moynihan, in thanking the noble Lord, Lord Grimstone, for his acceptance that he has to provide greater clarity in response to our criticisms. The noble Baroness, Lady Bloomfield, also indicated that she will write in response to the specific questions from the noble Baroness, Lady Blake. My noble friend Lord Purvis pointed out a lack of clarity about how and why this legislation will operate.

I noted the Minister’s comments about the Australian trade deal. The announcement sets out in detail the issues that will be covered, but not exactly how they will be covered. I read it with great interest. The two Prime Ministers stood there in person and announced it proudly. Is the Minister now saying that this is just a rough sketch of what might be and that we should not rely on this as the brave new future announced to us only a week or so ago?

I conclude by saying that the Bill has come to us far too soon. That view is probably shared by many noble Lords across the Committee. There has been a lack of consultation with the devolved Administrations and the regulators and a lack of research. It shows. The Bill was conceived with absolutely no understanding of the complexity of this process. Going back to Second Reading, my noble friend Lady Garden and I warned that the process of agreeing the mutual recognition of qualifications will take years. We have been arguing about how we set up a system to do that. It has nothing to do with the process of making the agreement on mutual recognition. We are in the calm before the storm on this.

We have a situation where there is uncertainty about who the regulators actually are and there is no recognition of how long it takes to agree the qualifications. This is a truly terrible Bill. I do not say that because I disagree with the principle behind the need for mutual recognition of qualifications. We need to have it, but we have a Bill that has not decided what it is about, how it will do it and why it will have to do it. The noble Baroness, Lady Noakes, said that it is bordering on the absurd, so I urge Ministers to go back to their department to have a long and honest conversation and then either withdraw the Bill and put it out of its misery or at the very least have a delay before Report to give them the opportunity to recharge their batteries and consider what they really want from the Bill. In the meantime, I beg leave to withdraw my amendment.

Amendment 58 withdrawn.