Amendment 16

Professional Qualifications Bill [HL] - Committee (1st Day) – in the House of Lords at 7:45 pm on 9th June 2021.

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Baroness McIntosh of Pickering:

Moved by Baroness McIntosh of Pickering

16: Clause 1, page 2, line 28, at end insert—“(7) The appropriate national authority must seek reciprocal arrangements with other jurisdictions, including individual Member States of the European Union, for those with UK qualifications; as well as in the context of future Trade Agreements and continuing negotiations with the European Union in the context of the UK-EU Trade and Cooperation Agreement.”

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative

My Lords, before I speak to Amendment 16, I commend and endorse Amendments 23 and 47 in the name of the noble Lord, Lord Foulkes, supported so ably by the noble and learned Lord, Lord Hope. I shall leave them to speak to these amendments. I thank the noble and learned Lord, Lord Hope of Craighead, for lending his support and for cosigning my amendment.

I have sought to highlight that it is up to the appropriate national authority to

“seek reciprocal arrangements with other jurisdictions, including”— as I specify—

“individual member states of the European Union, for those with UK qualifications, as well as in the context of future trade agreements and continuing negotiations with the European Union in the context of the UK-EU Trade and Co-operation Agreement.”

In his response at Second Reading, the Minister mentioned that the Government had been willing to negotiate mutual recognition of professional qualifications with our erstwhile partners in the European Union, but that they would not play ball. So will he take this opportunity to update us on the negotiations with our erstwhile partners? Is it still a matter of dialogue with them?

I understand that a specialised committee is also being set up within the context of the trade and co-operation agreement. It is a matter of great concern to those of us in this place, not least the noble Earl, Lord Kinnoull, who chairs the European Committee. There seems to be no sense of urgency. I am sure my noble friend will blame the European Union, but I would like to hear that it is a priority for this Government to set up all these specialised committees in the context of the TCA—but in particular this one.

What grieved me at the time was that when a statutory instrument was moved by our then Minister, my noble and learned friend Lord Keen of Elie, he stated that we were going to accept all those coming from the European Union and EEA countries to work here but we had not negotiated the reciprocal right for our, dare I say, lawyers—the issue of most concern to me—and practitioners in other professions. That seemed to me a very regrettable way of proceeding.

In the briefing that I received today, the Bar Council of England pointed out also that Clause 3 on international agreements has a part to play in the amendment. The council’s concern is that the clause is

“useful but limited to international agreements—that is, treaties to which the UK state is a party. The power would not be available to make or amend legislation to give effect to a mutual recognition agreement negotiated autonomously at the level of professional regulators. This is a further deficiency in the Bill.”

So I ask my noble friend to explain, where a professional body such as, for example, the Faculty of Advocates, the Bar Council or the Law Society of Scotland, has negotiated some mutual recognition, to what extent the Government would be able to support that and what the mechanism would be to do so.

My noble friend the Minister, in his letter to which I referred earlier, replied to the concerns raised by the Delegated Powers and Regulatory Reform Committee in its third report of this Session published on 7 June, in appendix 1, at the foot of page 12, where there seems to be something of a contradiction. He stated:

“The Trade Act 2021 provides for the implementation of provisions on the recognition of professional qualifications that are included in UK trade agreements with countries with which the EU had signed trade agreements as at 31 January 2020.”

At the end of the paragraph, he then stated:

“Finally, the powers provided in the Trade Act 2021 expire after five years, whereas it is anticipated that, for example, MRAs”— mutual recognition agreements—

“formed as part of trade agreements will need to be implemented well beyond this limited period—especially in light of the lengthy timeframes MRAs typically take to finalise.”

I should be interested to know how that contradiction is going to be resolved in the context of the Bill. Are we really leaving it to regulations to resolve that timeframe? Are we going to be invited to look at these mutual recognition agreements as part of the trade agreements, because I understood my noble friend to say that we would not be going into that level of detail when we discussed other trade agreements hitherto.

So I commend this amendment to the Committee. It is appropriate that we seek reciprocal arrangements with other jurisdictions. That has served us extremely well in the past and made England, particularly London, the second centre in the world, after New York, for legal practice. We have done extremely well out of the arrangements and it is important that we continue to negotiate this, not just in future trade agreements but through the trade and co-operation agreement. In commending and moving the amendment, I hope that my noble friend will look favourably upon it and bring us up to date as to where we are.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

My Lords, Amendment 23 in my name deletes Clause 3(2)(c), which provides regulations under this clause and relates to the charging of fees. That is at odds with the terms of Section 31(4) of the European Union (Future Relationship) Act 2020, which provides that no fees should be charged. That Act does not allow for the imposition of fees in regulations designed to implement the trade and co-operation agreement. So this is a probing amendment that gives the Government the opportunity to explain why they have a completely different approach in the Professional Qualifications Bill from that in the future relationship Act. I look forward to hearing how the Minister can explain that away.

Amendment 47 has also been signed by the noble and learned Lord, Lord Hope, who will be much better at explaining it than I could ever be.

Photo of Lord Hope of Craighead Lord Hope of Craighead Chair, High Speed Rail (West Midlands - Crewe) Bill Select Committee (Lords), Chair, High Speed Rail (West Midlands - Crewe) Bill Select Committee (Lords)

I am very grateful for that invitation but before I get to the amendment tabled by the noble Lord, Lord Foulkes, I support what the noble Baroness, Lady McIntosh, has said in support of Amendment 16 about the need for

“reciprocal arrangements with other jurisdictions, including individual Member States of the European Union, for those with UK qualifications”.

This amendment is of particular interest to the legal professions in this country, in view of the achievements that were made right across the board in all three jurisdictions—Northern Ireland, Scotland and England and Wales—in that respect while we were in the EU.

I am quite sure that the professions do not want to lose the benefit which those arrangements were able to achieve. There is a gap here that the trade and co-operation agreement with the EU has left unfilled. Amendment 16 goes some way to addressing and filling the gap in the interests of those who would like to benefit from the kind of arrangements we previously had under the European Union.

Coming to Amendment 47 in the name of noble Lord, Lord Foulkes, it seeks to clarify the provision in Clause 9(4) about the risk that the duty of a regulator to provide information may contravene the data protection legislation. The same point arises in Clause 10(7), which is the subject of another amendment by the noble Lord, Amendment 50. Unfortunately, it is not in this group but will arise later on. Perhaps one is addressing the same point this evening. It also arises in regard to Clause 7(5), which raises exactly the same point. The Minister will appreciate that one is dealing here with a duty to disclose information. It begs the questions: first, does it breach any restriction under rules or contract, for example, or, secondly, does it breach the data protection legislation?

Concentrating on Clause 9, its structure is really quite interesting because it provides the duty in its subsection (2). It is a duty to provide

“any information … that is held by the first regulator … that relates to the individual” and

“that … is requested by the second regulator.”

Then we come to its subsection (3), which says:

“A disclosure of information under this section does not breach … any obligation of confidence owed by the first regulator, or … any other restriction on the disclosure of information (however imposed).”

Those words are perfectly clear. They provide a complete answer—a complete defence—to a claim for breach of contract or a claim that the rules have been breached. For example, if I objected to the information being released by the first regulator that related to me on the ground that I had entered into a contract preventing the release of that information, I would simply be deprived of my contractual right to complain, because that is exactly what subsection (3) says.

The problem is subsection (4) which says:

“Nothing in this section requires the making of a disclosure which contravenes the data protection legislation”.

If that subsection had said that no disclosure which contravenes the data protection legislation shall be made, or words to the same effect, it would mean that, despite the firm duty in the earlier part of the clause, one was simply not required to disclose anything which would breach the data protection legislation. However, it does not say that; it just says that nothing requires you to do it.

Then goes on, in the part in brackets, to say that

“(save that the duty imposed by this section”— note “duty”—

“is to be taken into account in determining whether any disclosure contravenes that legislation.)”

I do not understand what the part in parentheses really means. When it says “taken into account”, does it mean that it will provide me with a defence to a prosecution under the Data Protection Act, or is it to be taken into account in assessing the penalty which would follow if I was to be convicted of having breached data protection legislation? The wording does not make that point clear. It is very important that it is clear because we are dealing with a provision which could lead to a prosecution, and everybody needs to know the meaning of this subsection.

The words “taken into account” are often used by judges when they impose a sentence after a conviction. They say that they take into account various factors which may either mitigate a sentence or increase it because it enhances the severity of the crime. So, prima facie, “taken into account” is dealing with the penalty aspect of a breach of the data protection legislation, but I am not sure that is really what the Government are saying. Are they really saying that you have a complete answer to this if a duty led to the breach? In other words, it does not require you to do that, but it may nevertheless have that effect, and if it does have that effect, then you have an answer, just as you do for a breach of contract. I think that is what the amendment designed by the noble Lord, Lord Foulkes, is seeking to do, and I am grateful to him for doing that.

I hope the Minister will think again about this and clarify the provision because it is extremely important in dealing with matters that may lead to criminal penalties to know exactly where one stands. The rule of law requires clarity, and the lack of clarity is the subject of the amendment in the name of the noble Lord, Lord Foulkes, which I support.

Photo of Lord Lansley Lord Lansley Conservative 8:00 pm, 9th June 2021

My Lords, I am glad to have the opportunity to contribute to this short debate on these amendments. I will say a quick word on each, if I may.

First, on Amendment 16, I entirely support my noble friend’s wish for us to enter into mutual recognition of professional qualifications with the European Union but, as they say, it takes two to tango. We wanted to do it and our policy intention was to do it, but it was not the European Union’s intention to agree to it. I do not doubt that it would remain the Government’s intention to enter into such an agreement if it were possible to do so. I regret that putting this into the Bill does not change any of those circumstances. As it happens, I would not put it into the Bill at this place either. It is essentially contingent upon Clause 3 and our ability to negotiate an international recognition agreement with European Union countries in any case. It may be we have to do it with European Union countries individually, but I agree with the objective. It seems to me that Clause 4 allows regulators to enter into recognition agreements, and that is the mechanism. If the Law Society or anybody else wants to do it, they should seek approval from the Government to enter into such an agreement in that way.

I do not understand why we need Amendment 23 in the name of the noble Lord, Lord Foulkes. This is about international recognition agreements. It is not specifically about the European Union and it may not apply to European Union member states. It is not required to be consistent with the future relationship with the European Union. All it means is that when we allow the recognition of overseas applicants to our professions, the professional regulators may charge them fees in the way that they charge fees to UK applicants. I think that is perfectly reasonable, so I would not accept that amendment.

On Amendment 47, the noble and learned Lord, Lord Hope of Craighead, was probably not here when we discussed the Trade (Disclosure of Information) Act 2020, nor when we dealt with similar provisions in the Trade Act 2021. My noble friend on the Front Bench, the noble Lord, Lord Purvis, and I remember those discussions very well.

Supreme Court judgments have determined that where, for example, data protection legislation requires the protection of legislation—and there are specific duties relating to that—if there are other statutory gateways that might create a statutory provision permitting the disclosure of information which could contravene the data protection legislation, the position the court arrived at was that the decision-makers should end up being able to balance the statutory gateway in the additional statute with the originating data protection legislation. That is where it ended up, and that is why “taken into account” is the appropriate language. It would not be “considered a defence”, because that would conclude that it had not been weighed properly in the way that the court expected. It expected these two things to be considered alongside one another. That is where we ended up on the Trade (Disclosure of Information) Act, for reasons I understood then, and as far as I can see, this drafting is absolutely consistent with those pieces of legislation.

Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green

My Lords, I am glad of the opportunity to contribute to this short debate, but I will be brief and forbear commenting on Amendments 23 and 47, as noble Lords have already covered them and I cannot really add anything. I want to speak specifically to Amendment 16 and I thank the noble Baroness, Lady McIntosh of Pickering, for tabling it.

I think there should be pressure on the appropriate national authorities in the Bill to seek reciprocal agreements. It is something that certainly needs to be discussed and pushed. Other noble Lords have spoken about the situation of established professionals and the professional bodies. I want to take a moment to think about young people recently qualified, and those young people who have been through such difficult times and who will qualify in the next year or two, for whom there should be the opportunity, as a young professional, to go out and to travel—the European Union countries being the obvious place, being relatively close to home, relatively cheap, et cetera. It is crucial to those young people to have opportunities to stretch their wings, to learn new things and to develop professionally.

We have seen a lot of problems arising as a result of Covid. Covid is being blamed for lack of progress in a great many things, but it has also suppressed demand, and we are going to see a real explosion of demand as it becomes more possible to travel and to move. I will not get started on the great loss of free movement for the people of the UK, but given that we have so curtailed the opportunities for our young people, it is crucial that we do everything possible to open up, or reopen, professional opportunities for people to grow, to develop, to travel. Of course, if the Government do not want to consider this from any other angle, it is obviously of considerable importance if those people return to the UK and work here with those skills or, indeed, if they remain overseas but keep their UK contacts, which will be very important for UK business and professionals.

Photo of Lord Purvis of Tweed Lord Purvis of Tweed Liberal Democrat Lords Spokesperson (International Trade), Liberal Democrat Lords Spokesperson (International Development)

My Lords, we are indebted to the noble and learned Lord for bringing Amendment 47 to us and to the noble Lord, Lord Foulkes, for his comments, and I have two questions for the Minister in regard to those. The first relates to a document which I am sure that the department for business Bill team is studying closely, which is the Department of Health and Social Care’s consultation on regulatory reform for the medical professions. Paragraph 156 has a set number of criteria of the data which the medical professions will now be required to have, which is not the same as the data within the Bill. In some areas, it includes, for example, registrants’ geographical locations and measures relating to fitness to practise, which includes former criminal records and other information that is held. Therefore, on the requirement for the information to be provided to the regulators in other parts of the UK, I am curious as to how the Bill will interact with what the Government’s intentions are for the other information which is now being proposed by the consultation on the medical professions.

It will be of importance, given that those entering the labour market who had previously been recognised—I am thinking of EEA citizens who now have settled status—are likely to be the biggest call upon this duty regarding transferring of data, because the estimates are that potentially up to 1 million people will be settled in the UK with a professional qualification recognised to carry out their work. However, because the Home Office chose not to verify their previous information in order to give them settled status, there is currently no formal record of their continued fitness to practise.

This leads to my second point. Can the Minister confirm the Government’s estimate of how many EEA professionals, who have in the past had their qualifications recognised to carry out work, as guaranteed under the withdrawal agreement, have their withdrawal agreement rights recognised? Certainly, if those who have settled status wish to move throughout the UK, that will presumably be the first call upon the Clause 9 duty, and the Home Office is not at the moment maintaining that information, as far as I understand, so it would be helpful to know this.

I also want clarification of the Government’s intentions regarding Amendment 16 and our position with the European Union. I congratulate the noble Lord, Lord Lansley, on re-entering the Government Benches, for being a loyalist now. He is not listening. Oh, he is listening. I congratulate him on being very loyal to the Government’s position regarding their intent. Clearly, he is of the view, as the Minister told us at Second Reading, that it was the Government’s intention to seek a mutual recognition agreement with the European Union covering all the countries together, and this was rejected by the European Union.

I was interested in that slightly revisionist bit of history from the Minister, so I read chapter 13 of the draft UK negotiating document, on mutual recognition of professional qualifications. I thought that I had better compare it with the European Commission negotiating mandate too, just to double-check that what we have been told is the case. It is certainly the case that the Theresa May Administration—which was before the Minister’s appointment, so I do not blame him for the situation—sought a level playing field for services, which included a reciprocal agreement between the UK regulatory bodies and the Union’s regulatory bodies with supervisory autonomy. The Boris Johnson Administration chose not to pursue that. Instead, they sought a Canada-style agreement, which we now have, because our arrangements in the TCA are the same as Canada’s.

However, the UK negotiating document, which the Minister says was a comprehensive offer that was rejected by the European Union, called for, under “Objectives and scope” in chapter 13,

“a framework to facilitate a fair, transparent and consistent regime … where … a service provider with a professional qualification obtained in the United Kingdom makes an application to a relevant authority in the Union”.

What did “relevant authority” mean? Well, the Government was very helpful in clarifying that. It meant that it was a body that authorised and recognised qualifications of a profession in a jurisdiction—that is, in each member state. The Government simply wanted a negotiated framework to facilitate an agreement in each jurisdiction. Paragraph 43 of the Commission’s negotiation mandate states that:

“The envisaged partnership should also include a framework for negotiations on the conditions for the competent domestic authorities to recognise professional qualifications”.

There is not really much difference between the two. I do not think that one is a comprehensive offer, and I do not think that the other is a rejection.

I am keen to know, as the noble Baroness asked, whether it is the Government’s intention to use the committee and the mechanism agreed in the TCA to ask for a Union-wide agreement? What is the Government’s current position? Paragraph 92 of the impact assessment for the Bill states:

“By ending unilateral recognition for certain professions, UK regulators may be in a better position to negotiate mutually beneficial and reciprocal recognition arrangements with our EU counterparts.”

Paragraph 93 says:

“A reduction in the recruitment of EEA and Swiss-qualified professionals could reduce competition in the market for services, to the benefit of UK-qualified professionals in the UK. EEA firms may be less able to provide services involving regulated professions to UK customers, which may benefit UK businesses.”

I do not know what the Government’s view is. Is it to have a European-wide system of agreements or is it, as this Bill says, to have economic value from not having that? Which is it?

Photo of Lord Russell of Liverpool Lord Russell of Liverpool Deputy Chairman of Committees 8:15 pm, 9th June 2021

The noble Baroness, Lady Hayter, has withdrawn from this group of amendments, so I call the Minister, the noble Lord, Lord Grimstone.

Photo of Lord Grimstone of Boscobel Lord Grimstone of Boscobel The Minister of State, Department for International Trade, The Minister of State, Department for Business, Energy and Industrial Strategy

My Lords, I thank my noble friend Lady McIntosh of Pickering, the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Foulkes of Cumnock, for their proposed amendments. They cover reciprocal recognition arrangements, the charging of fees and information sharing between UK regulators respectively. I will discuss each amendment in turn.

The noble Lord, Lord Purvis, again raised the DHSC consultation on medical professions, and I admire his deep knowledge of this. I would like to be able to respond fully to the points he has raised, so, if I may, I will write to him and put a copy of my reply in the Library. I also noted his point about EEA citizens’ withdrawal agreement rights. I will try to obtain the number and include that in the same letter.

Let me start with the amendment to Clause 1 from my noble friend Lady McIntosh of Pickering and the noble and learned Lord, Lord Hope of Craighead. I fully recognise the benefit of reciprocal arrangements for the recognition of professional qualifications. I completely understand why my noble friend Lady McIntosh and the noble Baroness, Lady Bennett of Manor Castle, seek this. I do not think I can put it better than my noble friend Lord Lansley succinctly did, in that it takes two to tango.

We have had the benefit of the great knowledge of the noble Lord, Lord Purvis of Tweed, on the negotiating stances within the EU agreement. I was not a member of the Government at that time so I cannot comment on the detail of that. I think it is now, frankly, a matter of history. The noble Lords may frown, but I think it is a matter of history and we have gone past that. I will see if I can glean any useful information to send to the noble Lord, Lord Purvis, but I am not entirely confident I will able to.

As the Committee will know, reciprocal recognition agreements can be secured through international agreements and through agreements between regulators. The EU-UK Trade and Cooperation Agreement includes a mechanism for agreeing UK and EU-wide recognition arrangements. I say in reply to my noble friend Lady McIntosh of Pickering that the first meeting of the partnership council is taking place this very day. I believe that a number of committees will start to meet after that. My information is that one of those committees will include services within its remit.

Regulators have the option to use this process if they wish. Some have indicated they might find it rather cumbersome and so may prefer to conclude arrangements outside this framework. Clause 4 of the Bill will support that. As we know, it provides powers to enable regulators to enter recognition arrangements with their counterparts in other countries. Of course, in reply to my noble friend Lady McIntosh, I say that some already have this power and have used it, and I thoroughly welcome that. Sadly or unfortunately, others do not have the power at present or have doubts about whether they do. One reason why we are bringing forward Clause 4 is to be able to give the power to all regulators that wish to have it. If they then use that power, nobody would be happier than me.

To help them to pursue this route, we are taking action to support regulators in securing such arrangements. For example, the Government recently published guidance to support regulators in agreeing recognition arrangements, including mutual recognition agreements with their counterparts in other countries. However, these arrangements are of course completely distinct from the purposes of Clause 1. As noble Lords have heard, Clause 1 concerns enabling the demand for the services of professions in the UK to be met without undue delay or charges. Clause 1 does not relate to mutual recognition arrangements. However, there is of course nothing in Clause 1 that would act to inhibit reciprocal recognition agreements being agreed where regulators wished to do so. Moreover, recognition agreements are, frankly, demand-led processes, and it is for regulators themselves to decide whether to enter into one and to decide the terms between themselves. That is a feature of the regulators having autonomy. Requiring national authorities to seek out reciprocal arrangements for certain professions would, I suggest with the deepest respect, reduce regulators’ autonomy. I know the importance that noble Lords attach to not doing that. I agree that it is appropriate for the Bill to support regulators’ ability to enter into such recognition agreements, and I hope that noble Lords will agree this is adequately addressed elsewhere in it. No doubt we will come back to this later.

I turn to the amendment to Clause 3 tabled by the noble Lord, Lord Foulkes of Cumnock. The current provision on the charging of fees makes sure that regulators can be enabled to cover any additional cost burden from administering any systems established under international recognition agreements. Of course, this may also be necessary if an agreement references fees. This will help to make sure that regulators are no worse off due to the UK implementing international recognition arrangements. It allows them to cover costs that will arise from implementing and operating processes to recognise professional qualifications from a trade partner’s territory. Some international agreements include commitments about the charging of fees. For example, in typical language, this would be that they are reasonable or proportionate. This power is necessary to implement such measures.

On the specific question of the noble Lord, Lord Foulkes, about why Clause 3 departs from precedent on the charging of fees, I noted the Law Society briefing on this point and understand its interest in hearing us place on record the reasons for the difference between the approach taken in this Bill and that in the 2020 future relationship Act. Clause 3 is a power created with the future needs of international agreements on the recognition of professional qualifications in mind. The requirements and concerns to be considered for this clause are distinct from more general implementation powers that deal with entire free trade agreements and all their different chapters, as is the case with the powers under the future relationship Act.

Clause 3 is also designed to be flexible and to ensure that the UK Government can implement the UK’s precedent-setting policy on professional qualifications, as well as more traditional mutual recognition agreement frameworks and other provisions. If the noble Lord would find it helpful to have a further discussion with me about that, of course I would be delighted. The debate that we come to later will turn to the detail of Clauses 3 and 4 and reciprocal arrangements, so with noble Lords’ permission I shall not go further into the detail of those clauses here.

I now turn to Amendment 47, which concerns Clause 9. I thank the noble Lord, Lord Foulkes of Cumnock, and the noble and learned Lord, Lord Hope of Craighead, for their amendment. Clause 9 relates to information sharing between UK regulators. The amendment seeks to create a defence if a disclosure made under the duty in Clause 9 contravenes data protection legislation. This clause places a duty on UK regulators, where requested, to provide information to another regulator in the UK relating to individuals who are, or have been, entitled to practise the relevant profession in another part of the UK. It ensures that regulators have the information, when an individual applies for entitlement to practise, necessary to assess that individual’s entitlement to practise the profession in that part of the UK. This necessary information is limited to information held by the UK regulator about the individual.

Clause 9 also specifies how the provision interacts with the data protection legislation. Where the new duty relating to the processing of personal data applies, it does not require the making of any disclosure which would contravene data protection legislation. This approach—I think that my noble friend Lord Lansley recognised this—and similar wording has been adopted in other recent Bills, some of which are now Acts, such as the Pensions Schemes Act 2021 and the Agriculture Act 2020.

Let me provide reassurance on the concern which appears to underpin this amendment that regulators may face legal challenges in complying with Clause 9. The clause specifically requires disclosure only when it does not contravene data protection legislation. There is therefore no defence needed. I hope that that reassures the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord Foulkes of Cumnock. The clause is also clear that the duty to share information can be taken into account in determining whether improper disclosure has occurred.

We will return to the important issue of data protection in our wider debate, and I look forward to continuing this discussion. I thank noble Lords for their contributions and amendments. I hope my explanation of the Government’s objectives in relation to reciprocal arrangements, my agreement to write to noble Lords and the rationale for including provisions to charge fees and consideration of how the Bill requirements interact with data protection have been helpful, and that on that basis my noble friend will withdraw her amendment.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative

My Lords, I am grateful to all who have spoken in this little debate. I hate to disappoint my noble friend Lord Lansley, but this amendment was entirely my own work—it was not from the Law Society of Scotland. I am grateful to the noble Lord, Lord Purvis, for the work that he put in to prepare for this group of amendments. To add to his comments on paragraphs 92 and 93 of the impact assessment, they do not record the loss of reciprocal rights for those lawyers who might otherwise have gone from this country, along with other professions such as dentists and doctors, to work in other European and EEA countries.

I am grateful to my noble friend the Minister for his full reply—especially the acknowledgement that the partnership council met for the first time today. For the first time, we hear that it is hoped that the committees will meet shortly after that. I believe that we should make this a priority, so that all professionals have reciprocal arrangements. I am grateful to my noble friend for spelling out the implications of Clause 4 in this regard, as well as Clause 3. I shall follow that extremely closely. I am grateful to have had the opportunity to probe this matter, and I shall continue to monitor it during the progress of the Bill. For the moment, however, I beg leave to withdraw the amendment.

Amendment 16 withdrawn.

Debate on whether Clause 1, as amended, should stand part of the Bill.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Labour 8:30 pm, 9th June 2021

My Lords, I am using the stand part debate on Clause 1 to raise my general concern about the extensive power given to Ministers without adequate justification or explanation.

On Second Reading I referred the Minister to the recent report of the Secondary Legislation Scrutiny Committee, which during the course of the year has

“become increasingly concerned about the growing tendency for the Government to introduce skeleton bills, in which broad delegated powers are sought in lieu of policy detail”.

The committee went on to say that

“we urge the Government ‘to bring forward bills that contain clear policy intention instead of broad delegated powers’ and to ensure that ‘Departments do not use the exceptional powers given to them by Parliament as an expedient in the context of the pandemic as a cloak for effecting longer term, post-pandemic changes which would more properly be included in primary legislation’”.

Unfortunately, the Minister and the rest of the Government have chosen to totally ignore that in bringing this Bill before us. Not surprisingly, that has drawn a critical response from the Delegated Powers and Regulatory Reform Committee. A number of noble Lords have quoted extracts from the committee’s report today. It drew three powers to the attention of the House, and in relation to each it noted

“a failure to provide adequate explanation in the Memorandum. This is particularly disappointing given that (a) as the Government have acknowledged, most of the substantive changes to the law envisaged by this Bill are to be made through delegated powers rather than the Bill itself, and (b) these are Henry VIII powers”.

On Clause 1, the committee commented:

“It is a Henry VIII power, as it includes power to amend primary legislation and retained direct principal EU legislation … The power can be used to make provision about a wide range of matters”— which we have discussed comprehensively today. As the committee says, the Explanatory Memorandum

“provides two justifications for the delegation of power. The first is that the use of the power ‘is to be demand-led’ and ‘demand will naturally change over time and so it is not possible to achieve the policy through provisions on the face of the Bill that apply to a fixed set of professions’”.

If we accepted that argument, we could justify dealing with almost every piece of legislation in that way. As the committee said,

“that does not explain why all of the changes within the scope of the power—across so many professions and including changes to primary legislation—should be a matter for secondary rather than primary legislation”.

Nor did the Government respond to concerns that Clause 1

“could allow such requirements—and other comparable requirements in primary legislation relating to other professions—to be watered down by statutory instrument if Ministers considered this to be necessary to enable demand for the services of the profession in question to be met without ‘unreasonable delays’”.

The committee continued:

“The second justification given for the delegation relates to the existing legislative provision covering a wide range of different professions and regulators: ‘the professions that are in scope of this power have pre-existing legislative frameworks governing how each is regulated. It is not feasible to provide, on the face of the Bill, for an approach that would interface with each of these various frameworks and their different approaches to the recognition of professional qualifications, or to address them individually’”.

Well, as the committee expressed itself:

“We are surprised and disappointed that neither the Memorandum nor the Explanatory Notes … give any examples of circumstances in which the power might be exercised and changes that could be made in such circumstances; or … explain why Ministers will have no duty to consult before making regulations.”

We have discussed that in some detail. This

“makes it difficult to understand how significant the changes that could be made in exercise of this power could be, particularly given the proliferation of existing legislative schemes that could be amended; and gives rise to uncertainty as to whether there may be aspects of the law relating to recognition of overseas qualifications that the Bill would allow to be provided for in regulations … but which should instead be subjected to the much greater Parliamentary scrutiny afforded to primary legislation.”

I hope the Minister will explain why the Explanatory Memorandum is so scanty on such an important matter. Will he justify the extraordinary powers he and his colleagues are taking to themselves? Does he accept that some of the mistrust he complained about two groups ago on the part of Members towards the Government perhaps rests on the cavalier approach the Government themselves have taken to this House and Parliament by the unsatisfactory nature of the drafting of this Bill? I beg to move.

Photo of Baroness Noakes Baroness Noakes Conservative

My Lords, on the face of it, Clause 1 does seem innocuous, but at its heart there is a power for the Government to interfere in the way that regulated professions recognise people who have qualified abroad. I am far from clear that a case has been made for government intervention. I have not seen any evidence of the regulated professions dragging their feet when it comes to recognising overseas professionals. I recognise that our country has a demand for some professionals, notably those related to healthcare, which may well outstrip the numbers who qualify here, but there is still a big step before saying our UK professions need the Government to tell them what to do.

I have no problem with giving the regulators additional powers if their current rules make it difficult to accommodate the recognition of overseas professionals and they need legislation to change that—but that is not what this clause is about. The clause covers many regulated professions that already have effective provisions for the recognition of overseas applicants, but the Government have not excluded them from the scope of Clause 1. I believe the clause would be better expressed in terms of a power to be exercised by the Government at the request of regulated professions or with their consent. The Government do not know best when it comes to the professions, but the Bill does seem to be predicated on that belief. I hope it is not too late to reshape how this Bill interacts with regulated professions.

Photo of Lord Russell of Liverpool Lord Russell of Liverpool Deputy Chairman of Committees

The noble Baroness, Lady Bennett of Manor Castle, has withdrawn from this group, so I call the noble Lord, Lord Fox.

Photo of Lord Fox Lord Fox Liberal Democrat Lords Spokesperson (Business, Energy and Industrial Strategy)

My Lords, I thank the noble Lord, Lord Hunt, for putting this amendment forward, and I commend him on the forcefulness of his speech. I am not going to repeat things he said, but I agree with his points. During the opening group, I touched on this issue and outlined the powers that are being taken into this clause, to which the noble Baroness, Lady Noakes, referred just now. I am still trying to understand what the Government think they are going to improve by doing this.

In essence, because of Brexit, the simple reality is that we are losing access to a considerable source of professionals. That is a problem, or potentially a problem. There is absolutely no certainty that we can replace them in another way, but there is also no certainty—indeed, possibly the opposite—that these clauses are going to help that to happen. So the idea that “We are from the Government and we are here to help you recruit people” seems to be unfounded.

There are two problems with Clause 1. One is that it seems to be a misguided effort. The other, which was front and centre of the points the noble Lord, Lord Hunt, made, is that this is the Government overstretching themselves in taking powers upon themselves and grabbing secondary legislation opportunities. We know that there is virtually no chance to amend—there have been very few examples in my lifetime where secondary legislation has actually been turned down. So it is with that that we on these Benches are supporting this amendment, and, of course, similar arguments will be put forward later on in the evening.

Photo of Baroness Hayter of Kentish Town Baroness Hayter of Kentish Town Shadow Spokesperson (Cabinet Office), Shadow Deputy Leader of the House of Lords, Shadow Minister (Business, Energy and Industrial Strategy) (Labour), Shadow Spokesperson (Cabinet Office, Constitutional and Devolved issues)

My Lords, Clause 1 enables regulations to be made—as we have heard, they are never overturned—to require a specific regulator to put in place a procedure for assessing whether to treat overseas qualifications as if they were UK ones. However, we still do not know how many of the 60 actually lack such a power. The Minister wants this Bill; he says that it is necessary. Could he please list those regulators which, if circumstances required extra skilled professionals, could find that their statutes were insufficient and thus that they would need to be mandated, by law, to introduce a new process? Because, frankly, if there are no regulators that need this power, we do not need a law to give it to them.

If the regulator wanted to introduce such a process, and had the statute, why would it have to be mandated to do it? If the regulator does not want to introduce such a process, how autonomous is a regulator if it can then be told by a Government that it must do so with the force of law? It may, as the Minister has said, be just a process that they have to introduce, but we are, nevertheless, talking about the Government mandating a regulator to do something that it does not want to do—because if it does want to do it, it will just do it.

So the Minister needs to list the regulators who do not already have the power to adopt such a process. I understand that there may well be some, but it would be nice to know which ones they are. If the regulator has such a power, but does not want to introduce a process to assess whether somebody’s qualifications should be agreed, how does he justify mandating the regulator by law to do that?

Photo of Lord Grimstone of Boscobel Lord Grimstone of Boscobel The Minister of State, Department for International Trade, The Minister of State, Department for Business, Energy and Industrial Strategy

My Lords, I have previously set out the need for a framework for the recognition of overseas professional qualifications. The Government are proposing one that focuses on addressing unmet demand for professional services in the UK. The intention of Clause 1 is to bring in that framework. It means that regulations can be made which require regulators to have a route in place to determine whether or not to recognise overseas qualified professionals from around the world. The framework that the Bill introduces will replace the interim system for the recognition of professional qualifications that was put in place as the UK left the EU.

Clause 1 sets out the substance of the new recognition framework. I stress that these conditions cannot be amended by regulations under the Bill. Where regulations are made under this clause, they would require a regulator to make a determination as to whether an individual with overseas qualifications or experience has substantially the same knowledge and skills, to substantially the same standard, as the UK qualification or experience. As I have said previously, these regulations would not alter the standards required to practise professions in the UK. They could not alter such standards, and regulators would still decide who can practise. No regulator would be forced or pressured into accepting qualifications that did not reach UK standards. Any other appropriate regulatory criteria, such as language proficiency or criminal records checks, must also continue to be met before a regulator may give access to a profession.

I have been clear since introducing the Bill that we must protect the autonomy of regulators. This includes autonomy over decisions about who practises a profession and flexibility in assessment practices, in line with regulators’ rigorous standards.

Noble Lords have made some interesting points about the use of delegated powers under this clause. I am grateful for the scrutiny of the Bill by the Delegated Powers and Regulatory Reform Committee, which has now produced two reports on it. I have of course carefully considered the committee’s recommendations.

Regulations under Clause 1 would be made by an appropriate national authority—the Secretary of State, the Lord Chancellor, or the devolved Administrations where the matter is within devolved competence. I reassure noble Lords that where Clause 1 is not exercised, regulators will be free to continue recognising qualifications from overseas in line with their existing powers and any reciprocal agreements that are in place.

In reply to my noble friend Lady Noakes, I say: why would we want to give regulators these powers if they already have them and routes are in place? The noble Baroness, Lady Hayter, asked a completely reasonable question as to whether it is possible to quantify this. I will take that away and do what I can to answer it. My argument is that Clause 1 is needed because not all regulators currently have these powers. I completely understand that it would be helpful for my argument if I could demonstrate that to the Committee. Our analysis shows that a number of professions would be at relative risk of unmet demand for professional services if the Government did not introduce this new recognition framework, and the onus is on me to demonstrate that to the Committee.

Clause 1 provides the appropriate means to ensure that regulators are able to recognise, where required, qualifications and experience from around the world. The Bill has provisions in place to ensure that Clause 1 is not misused. Clause 2—it is important to read the two clauses together—limits the use of the power to make regulations in Clause 1 to where it is necessary to enable the demand for the service of a profession to be met without unreasonable delay or charges to the consumers of those services. There are therefore only certain circumstances that meet the condition under which a Secretary of State, the Lord Chancellor or a devolved Administration would be able to make regulations under Clause 1. We are not giving them a free gift. Action can be taken only when there is a clear public interest to do so, in this case a demand for services.

The Bill also sets out that any such resulting regulations would be secondary legislation, tailored to the profession. They would therefore be subject to appropriate parliamentary scrutiny. Where those regulations amended primary legislation, they would be subject to the affirmative procedure.

I hope my explanation has provided noble Lords with further clarity as to why this approach is necessary and proportionate. I live in hope that I will be able to convince the House of this as we move forward. Of course I will be happy to follow up on any additional points. I commend this clause, as amended in my name, to stand part of the Bill.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Labour 8:45 pm, 9th June 2021

My Lords, this has been an interesting debate and I am grateful to the Minister. At heart, he is saying that the Bill is proportionate, but the speeches from the noble Baroness, Lady Noakes, the noble Lord, Lord Fox, and my noble friend Lady Hayter have undermined that point. It is clear that many of the current regulators already have the necessary powers, so the question must be: if the powers are required only for a limited number of regulators, why has a catch-all approach in the legislation been chosen by the Government? This gives us a clue to the kind of amendments that we will need to push on Report.

The Minister is grateful for the scrutiny the Bill has been given by the Delegated Powers Committee. I must say that, in my ministerial experience, it is not a committee whose recommendations are to be dismissed lightly. He has dismissed all of them in respect of the use of Henry VIII clauses and has given no explanation of why the Explanatory Memorandum is so inadequate. As for the offer of affirmative regulations in relation to the use of Henry VIII clauses, fewer than 10 defeats of secondary legislation have ever taken place in your Lordships’ House, as the noble Lord, Lord Fox, said. It makes not a jot of difference whether the procedure is affirmative or negative, because we can debate every negative SI. This is an alarming use of Henry VIII clauses.

I hope firmly that, on Report, we will amend the Bill to make it proportionate in the way that it needs to be. I am grateful to all noble Lords.

Clause 1, as amended, agreed.

Photo of Lord Russell of Liverpool Lord Russell of Liverpool Deputy Chairman of Committees

My Lords, we now come to the group beginning with Amendment 17. Anyone who wishes to press this or anything else in the group to a Division must make that clear in the debate.

Clause 2: Power conferred by section 1 exercisable only if necessary to meet demand