Moved by Lord Fox
102A: Before Clause 22, insert the following new Clause—“Purpose of Part 3This Part consolidates existing law relating to the mutual recognition of professional qualifications within the United Kingdom.”Member’s explanatory statementThis amendment is to probe the legal basis for introducing the provisions in this part, and whether they are covered in existing UK law.
My Lords, Amendment 102A is a probing amendment to probe the legal basis for the introduction of the provisions in this part and whether they are covered by existing law.
It is a human trait to disregard history that happened before we were born. Most of what we have been describing as previous law and previous regulation has centred on EU law and devolution settlements. However, in their Command Paper, the Government hark back much further than that to the 1700s and the Act of Union. In their July paper, the Government stated that
“the Internal Market has been enshrined in British law for over three centuries” on the basis of the Acts of Union. I will spare noble Lords the lengthy history lesson, but within this document it says:
The reason we were talking about the General Teaching Council for Scotland regulating Scottish teachers was because that Act of Union specifically carved out education as a Scottish prerogative. That particular activity of regulating Scottish teachers is a direct result of the Act of Union. It has nothing to do with devolution and nothing to do with the European Union.
Quite simply, I am asking for clarification: where does the Act of Union sit within this scheme of things? And where does previous law, made as a result of that Act of Union over the centuries that have followed, but before all these other bits of history we have been talking about, sit? It is not a philosophical question; it is real, because the example I have just given is real. I am sure there are many others for clever people to uncover.
Therefore, I would like to have some sense of the Government’s position, which appears somewhat ambivalent towards the Act of Union. They mention it in the Command Paper but, in a sense, disregard it thereafter. With that in mind, I beg to move Amendment 102A.
My Lords, Amendment 104 is almost identical to Amendment 6, which we debated on Monday, and Amendment 69, which I moved only a few hours ago. Those two amendments related, respectively, to goods in Part 1 and services in Part 2. This amendment, in the case of “recognition of professional qualifications”, seeks to make the application of the market access principles subordinate to the common frameworks process. In other words, the market access principles can be applied to professional qualifications only in the event that it proves impossible, by consensus, for the four Governments to agree a common framework.
Amendment 105 is consequential, simply moving the time point at which the mutual recognition principle would start to apply. While Part 3 is arguably more niche and therefore less damaging than the two parts that precede it, it is even more complex. I do not understand the exceptions that it suggests or the manner in which these could legitimately be handled.
Clause 24, for example, provides that the automatic mutual recognition of qualifications does not apply where a process of individual assessment is available but only in so far as the process conforms to four different principles. This includes the following principle in subsection (4)(c):
“to the extent that the applicant cannot, on application of the principles set out in paragraphs (a) and (b), demonstrate the necessary knowledge and skills to the satisfaction of the regulatory body, the applicant should (subject to subsection (5)) have an opportunity to do so by way of a test or assessment the demands of which are proportionate to the deficiency”.
However, this is subject to a further condition:
“The process may, without contravening the principle set out in subsection (4)(c), allow the regulatory body in a case to which this subsection applies to decline the application without the applicant first being offered a test or assessment as described in that principle.”
I am not a lawyer, and I will happily defer to any noble and learned Member who can enlighten me, but this appears to me to say that you have to give an individual the opportunity to prove that they possess the attributes necessary to do the job through a process of individual assessment, but you are nevertheless allowed to decline an application without first offering the individual a test.
Although I am not a lawyer, I am assured by those who are that this whole part is, to put it crudely, somewhat of a licence for the legal profession to print money and tie up regulators in litigation that could last years. Perhaps unsurprisingly, only one of the professions that is specifically exempted from this whole part is the legal profession. I am sorry; I know that sounds cynical, but I do find this very difficult to understand. I genuinely believe that, in trying to ensure that the mutual access principles can apply only to the recognition of qualifications when it is truly needed, I am trying to rescue the Government from themselves.
I shall give some examples of where this part of the Bill could prove damaging to the rights of devolved Governments, or indeed to those of the UK Government. Let us suppose that a more enlightened Westminster Government want to make a level 3 qualification in nutrition a requirement of registration as a nursery nurse in an effort to reduce childhood obesity. Presumably a qualified nursery nurse from Northern Ireland, where such a course was not a requirement, would still be able to apply for registration in England. Would this be automatic? Would they have to undertake a test? Could they be refused even without being given the right to take a test, as Clause 22(5) seems to permit? I would really appreciate some clarification.
Or let us say that the Welsh Government decided that social workers working with elderly people needed to speak the Welsh language in order to cope with those with dementia who revert to their mother tongue as their memory fades. Would it be legitimate for Social Care Wales to refuse to register a social worker who had qualified in Scotland but did not speak Welsh?
I am sure that the Minister will try to assure me that these examples would not be “caught”. That seems to be the standard response to real-world examples of how the Bill, if enacted, might be applied. I hope that I have demonstrated my point and I look forward to the Minister’s reply.
My Lords, I happen to have spent 10 years of my life working on the mutual recognition of qualifications in Europe. I left that role and, 20 years after that, it was applied to about only four or five professions across Europe. Trying to understand where people are able to employ the appropriate skills, knowledge, understanding and practice in another surrounding is an amazingly complex area. That surrounding might have a different framework of regulation and perhaps a different framework of operation.
The intention to have mutual recognition of qualifications is fine, but the timing for putting it in place is not fine, because the Government want it to happen very rapidly. It seems to me that the most sensible way of doing this would be to try to work through the professions in relation to their activities, trying to make sure that, where there are barriers, those are reduced, or where there are barriers that are appropriate, they are not legislated for by accident in advance.
The noble Baroness, Lady Finlay, has already talked about the Welsh language. There is a very interesting debate to be had about professions that can or cannot operate through the medium of Welsh. It depends on the services being provided and on the context of where those services are provided. A profession operating in a context that is different in different parts of the United Kingdom will have different requirements because of the geography, culture or operation of the services that are to be provided. Therefore, my request to the Government is that they step back a little, take some time, concentrate on trying to fix the things that they can fix and, for goodness’ sake, allow this thing to mature properly before going in with legislation that will be doomed to failure in the end.
My Lords, on the next group I will explain that the drafting of some clauses of Part 3 is complex and not as straightforward as it could be. One way or another, it would be useful to have a statement clarifying whether the end result is the status quo, either as a general objective or for certain circumstances.
However, as the hour is late, and as I will elaborate a specific instance on Monday, I do not need to say any more, other than to support what has been said by my noble friends Lord Fox and Lord German. This appears to be a rather complex topic. Maybe taking time to sort it out and make sure that the drafting is as clear as possible would be a good exercise.
My Lords, as we grope our way through the Bill and get to what seem even more complex and difficult to understand parts of it, we seem to reach a point where the Bill either does not add anything or is currently so badly drafted that it might destroy what we currently have. I may be being harsh, and I realise that I am asking quite a lot of the Minister, who has probably not been directly involved in any of these parts of the Bill, or concerned with some of the issues we had to deal with earlier this evening, but it seems to me that with every group, and every minute we spend on the Bill, there is a growing understanding that, as the noble Lord, Lord German, said, the Government are trying to push ahead with something that does not take the trick, as far as we are concerned, in relation to the issues before us.
The Government need to step back, take their time, concentrate on the things that they and only they can do, and encourage those who have other responsibilities that bear on what we are talking about to develop them, and out of the gloom will emerge—because they are the answer—the common frameworks. Why do the Government not realise that that is where we are heading? Why do they not get it into their heads that we need to stop being so concerned about the possibilities—the far ranges and the sunny uplands—that may be available in some nirvana they have yet to describe accurately, and work from where we are to try to get somewhere sensible in the time we have?
My Lords, I do not intend to have a debate on the union tonight, but I am sure it will come up later in the Bill. However, I reiterate to the noble Lord, Lord Fox, what I said on, I think, the group before last: the General Teaching Council for Scotland will still be able to set the standards in Scotland, as it does now, and will control who can teach in Scotland. That goes back to Scotland having control over its own education system. Similarly, the noble Lord, Lord German, brought up the Welsh language. If Welsh language requirements were introduced in respect of a profession in any other way—for example, by bringing in requirements for ongoing training—it could come under the equal treatment provisions of the Bill. As such, it would be possible for the regulator to impose Welsh language requirements on professionals qualified outside Wales if equally required of professionals qualifying in Wales. So there is an equality here.
I turn to the amendments in the group, which test and attempt to change the way in which professions would be in scope of Part 3. The purpose of the professional qualification provisions in the internal market Bill is to ensure that professionals can, in most cases, access their profession in all parts of the UK, by ensuring that there is an overarching system for recognition. It is important to ensure that, regardless of future policy changes, UK-qualified professionals will be able to practise across the whole of the UK. Divergence in professional regulation between the four nations of the UK should not increase barriers for professionals living and working in different parts of the UK.
The noble Lord, Lord Fox, has sought, with his Amendment 102A, to understand whether these provisions are covered in existing UK law. Currently, while recognition of professional qualifications between the four nations can and does occur, there is no overarching framework that ensures that it happens consistently. The Bill will create this overarching framework to guarantee that recognition of qualifications between the four nations of the UK will be possible, and that barriers to access will be minimised, so that professionals are not unduly limited in where they may work.
To that end, I must oppose the process that Amendments 104 and 105 seek to establish for bringing professions within scope of the internal market provisions. The Government’s approach ensures that nearly all professions are in scope and that barriers do not emerge. In contrast with the Government’s proposals, Amendment 104 lays out a bureaucratic process for adding professions. Amendment 105 builds on Amendment 104 and seeks to ensure that only professions that are specified in regulations are caught by automatic recognition. Ultimately, these amendments would result in delays and uncertainty, preventing barriers in the internal market being addressed. This would be to the detriment of all UK professionals.
I assure noble Lords that the Government acknowledge the importance of working with each devolved authority on the implementation of this Bill and will continue to do so, as they have done throughout this process. Clause 25 already ensures that existing divergence in professional qualification requirements across the UK is outside the scope of automatic recognition, until further changes are made. This means that there are no immediate changes for relevant authorities to make in respect of access to professions.
We must ensure the smooth functioning of the internal market for professionals. I therefore hope that the noble Lord will withdraw his amendment.
I thank the noble Baroness for her answer. I heard the answer she gave two groups ago, which is why I did not repeat the question; I actually asked a different question, about the status of the Act of Union. It was not I who brought it up, but the Government in their Command Paper. It having been brought up, it would be quite helpful to understand how the Government see it fitting into all this. It is a perfectly reasonable question and I hope that, perhaps in writing, I could have a perfectly reasonable answer.
The market the noble Baroness described in the Government’s eyes appears to need fixing. What is broken in professional services that this Bill is seeking to mend? If this Government had a reputation for overwhelming competence, and an ability to really get hold of things and make them better, perhaps I might understand what it is about. There are many things that this Government could focus their laser attention on; mending something that is not broken is not one of them. That said, I beg leave to withdraw the amendment.
Amendment 102A withdrawn.
Clause 22 agreed.
Clause 23: Meaning of “qualified” UK resident
Amendment 103 not moved.
Clause 23 agreed.
Amendment 104 not moved.
Clause 24 agreed.
Clause 25: Other exceptions from section 22
Amendments 105 and 106 not moved.
House adjourned at 11.44 pm.