Amendment 17

Professional Qualifications Bill [HL] - Committee (1st Day) – in the House of Lords at 8:45 pm on 9th June 2021.

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Baroness Hayter of Kentish Town:

Moved by Baroness Hayter of Kentish Town

17: Clause 2, page 2, leave out line 34 and insert “fulfilling a domestic skills shortage in the profession or implementing any international recognition agreement,”

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, in moving Amendment 17, I shall speak to the other amendments in the group. They make up two distinct elements which, as we have heard, lie at the heart of the Bill. The purpose of the Bill is to authorise statutory regulators, where their powers are not available, to be able to put in place a process that would recognise overseas professionals either to fill a skills shortage or to assist in implementing a new trade agreement where the agreement includes a professional skills recognition clause.

However, because of the two possibilities, as we have heard, a third issue arises, which is that of the absolute guarantee of the independence of regulators and the need to ensure that they are never mandated to recognise particular qualifications or experience. This third issue of independence is covered in Amendment 26 in my name and in Amendment 28 tabled by the noble Baroness, Lady Noakes, to which I have added my name. The amendments say quite simply that no regulation under a trade agreement provision can undermine the independence and autonomy of a regulator, and that any such regulation may permit but not require a regulator to recognise an overseas qualification in allowing someone to practise here. These are the very least that must be guaranteed in the Bill and I am sure that it is something we will want to return to on Report.

I turn to the first issue of a skills shortage. It is not clear whether this means that the whole of a profession such as medicine, or only one specialism such as geriatric care or trauma surgery, would be dealt with in a regulation to require a process to be in place. It may well be that we need one, but not the other. My guess is that trauma surgery is quite popular and geriatric medicine perhaps less so. It would be interesting to know how granular the regulations would be when we ask a regulator to put a particular process in place. More than this, of course, is how the relevant Government, be they the UK Government or a devolved one, would decide that there is such a skills shortage. What role will service providers or the relevant regulator play in that decision?

Amendments 20 and 21 in my name and those of my noble friend Lord Hunt and the noble Baronesses, Lady Finlay and Lady Bennett, would therefore require sufficient consultation with the regulator. The Government must also produce a report, not only on the findings of their consultation but on the data and the modelling used to come to the conclusion that there is a skills shortage. This is crucial to what was said earlier by my noble friend Lord Sikka and, I think, by the noble Baroness, Lady Bennett: the Government must also indicate what they have meanwhile been doing to fill the skills shortage, by way of training our own workforce rather than pinching from other—sometimes very much worse off and more needy—countries, and what they are doing to retain the workforce that we have.

I hear from my consultant stepson that retaining existing medical staff is one of the biggest challenges. It is no good keeping on bringing people over and recruiting them to the health service—or indeed anywhere else—if our retention is so low that we are losing people elsewhere. Continuing to hire in when we cannot keep those whom we have does not sound like brilliant workforce planning. Indeed, the Minister might like to explain how, after a decade of Conservative Government, we still lack over 100,000 social workers, 3,000 teachers and 84,000 NHS staff in England. The Royal College of Nursing estimated that, before the pandemic, we were 50,000 nurses short, and the Royal College of Psychiatrists has described lack of staff as one of the biggest causes of workforce burnout in mental health. If he has a moment, he might just reflect on how 10 years of Conservative Government has left us in the position where he now tells us that we need the Bill to fill gaps in our skill base.

I should add that the Bar Council is concerned about the restriction in Clause 2 of the Clause 1 power to situations of unmet need for particular professional services. The Bar Council feels that the Government have offered insufficient justification for this measure which could, it says, negatively affect professional autonomy through an unintended effect of the scope of pre-existing regulatory powers to recognise overseas qualifications. It sounds as if the consultation that we heard has taken place was perhaps not all that thorough. Rather than respond to that today, could the Minister undertake to meet the Bar Council before Report to see whether he can better understand and meet its concerns or find some arrangements to allay its fears? Given how much consultation we have heard has happened, that last-minute plea—it arrived in my in-tray today—suggests that the consultation has perhaps not been all that deep.

I turn to the second arm of the Bill: its potential power to require a regulator to set up a process for foreign accreditation. We again ask, as before—the Minister agreed to it—that he let us know which regulators lack that power. If there are such regulators, Amendment 26 in my name and that of the noble Lord, Lord Trees, again demands that any such regulation to implement an international recognition agreement does not undermine the independence and autonomy of a regulator. The noble Lord is unfortunately unable to speak because his name is not on the speakers’ list, but he obviously knows the Royal College of Veterinary Surgeons very well. It already has all these powers and frequently recognises professionals from other non-EU countries.

Crucially, we worry that the Government, in their haste—for political or even economic reasons—to sign a new trade agreement, might throw in a promise to encourage or facilitate professional recognition, where this is not the desire of the regulated profession nor perhaps in the interest of its clients, users or consumers. Amendment 22, also in my name and that of the noble Lord, Lord Trees, calls on the Government to discuss their negotiating mandate—I touched on this earlier—with the regulator of any profession concerned, and publish the negotiation mandate, so anyone else can know they may be caught by it, and to continue to consult the regulator throughout the negotiations. There will be many professionals who are very excited about the possibility of mutual recognition of qualifications. The Minister may have heard today of others that may have concerns, but there are undoubtedly some that will be eager to see this in a deal, albeit with standards well protected. However, there may be others with greater concerns, whose responsibility for standards and the public interest must not be traded for some other exports of unrelated goods. Transparency and consultation are vital, and, sadly, we cannot trust the Government until it is written into the Bill that this consultation will take place.

I will give an example, which will be very familiar to the Minister. Time and again, the Minister said that the new Trade and Agriculture Commission would be able to assess the impact of our new trade deals on our farming industry. However, we learnt, I think just yesterday, that actually the new Trade and Agriculture Commission is only going to look at the text of an FTA to see whether the bits about trade in agriculture have implications for maintaining our protections of

“animal and plant health, animal welfare and the environment.”

It is very welcome that the commission should look at that, but that is not what was promised earlier. It was promised that it would look at the impact of a trade deal on our own farming industry in this country. We welcome the fact that the commission will be able to look at standards, but it is not going to be able to look at what imports might do to our domestic agricultural industry. We know of the concern of farmers about that.

That is why warm words in Committee or on Report will not cut the mustard; we need guarantees on the face of the Bill. Amendment 22 ensures consultation with regulators, throughout the stages of the process of what I understand is called the “Grimstone rule”. Apparently, the Grimstone rule became very famous when the Trade Bill was going through here. I think the Minister will recognise it as the process by which free trade agreements are negotiated and laid under CRaG. I am led to believe—it was confirmed by the Minister himself during the passage of the Trade Bill—that all those consultations would happen during negotiation. This is why it is aptly called the Grimstone rule. That is what we want here. If access to our professional regulators will be included in a trade deal, then those regulators must be involved throughout the negotiations. I beg to move.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Deputy Chairman of Committees, Deputy Speaker (Lords) 9:00 pm, 9th June 2021

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.

Photo of Baroness Randerson Baroness Randerson Liberal Democrat Lords Spokesperson (Transport)

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.

Amendment 26 would mean that regulations made under Clause 3 could not implement any internationally recognised agreement that undermined the independence and autonomy of a regulator. This would provide a very welcome additional reassurance of the independent status of regulators, which the Minister assures us is the Government’s intention. However, I draw attention to paragraph 32 of the report by the DPRRC, which makes the point that a basic principle of the UK constitution is that international agreements that impact on UK law require an Act of Parliament, and in the committee’s view Clause 3 of the Bill departs from that basic principle. I would welcome the Minister’s response to that particular point.

Photo of Baroness Noakes Baroness Noakes Conservative 9:15 pm, 9th June 2021

My Lords, I have Amendment 28 in this group, to which the noble Baroness, Lady Hayter, has added her name. I have sympathy with many of the other amendments in this group, particularly those that affect Clause 3. I think that, in one way or another, we are all struggling with how to make sense of this rather dirigiste Bill and trying to turn it into something that is oriented around the regulated professions rather than around what the Government want the professions to do.

Specifically, Amendment 28 would make it clear that Clause 3 could not be used to force a profession or its regulator to recognise overseas professionals. The power created by Clause 3(1) is very broad. The national authority can make whatever changes it likes in order to implement an international recognition agreement. I recognise that the Government have said they do not intend to use trade agreements to recognise professions directly but will work through mutual recognition processes. However, the fact remains that they could do so because, if Clause 3 becomes law, it will give them that power and nothing else in that clause or anywhere else in the Bill stops them. For example, they could agree to Indian chartered accountants being recognised as auditors in the UK even though existing recognition processes have thus far not determined that those qualifications are sufficient either for the purposes of chartered accountancy in general or for the specific purposes of the regulated audit profession. That is just not acceptable.

I said at Second Reading that this measure could drive a coach and horses through the ability of professions to guard their standards and quality. My noble friend the Minister said in response that the Government have not forced the professions to accept anything in treaty negotiations to date and that basically we could rely on the Government to do the right thing. However, giving a Government powers to do things on the basis that they will not actually use those powers is a dangerous approach to legislation, and one that the House should rightly reject.

I believe that recognition of regulator autonomy on the face of this Bill is essential, and no amount of Dispatch Box reassurance can make good the problem of giving the Government too much power.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Labour

My Lords, I am glad to follow the noble Baroness, Lady Noakes—I so agree with her. At the moment, Clause 3 gives Ministers a blank sheet to do whatever they wish, and I am afraid that ministerial assurances are not sufficient. One way or another, we need to amend Clause 3.

My principal reason for speaking is to support my noble friend in her Amendments 20 and 21 on skills shortages. It is surely important that any regulatory change is only considered before consultation with the relevant regulators, in the context of how the national body is undertaking work and investment in the domestic sector in order to help alleviate those shortages.

I am particularly interested in workforce issues in the health service and social care. I remind the Minister of a report by the King’s Fund in February this year which said that NHS hospitals, mental health services and community providers were reporting a shortage of nearly 84,000 full-time equivalent staff. Key groups, such as nurses, midwives and health visitors were severely affected. General practice was under strain, with a shortage of 2,500 full-time equivalents, with projections suggesting that this could rise to 7,000 during the next five years if current trends continue.

The regulator for health and social care, the Care Quality Commission, has highlighted workforce shortages as having a direct impact on the quality of care. NHS waiting time standards have been routinely missed for a number of years, which the consequences of Covid will exacerbate.

The Health Foundation, another respected independent institute, says that the UK ranks below the average of high-income OECD countries for the number of practising nurses and the annual number of new nurse graduates relative to its population. Further, about 15% of registered nurses in the UK are trained outside the country—more than double the OECD average.

Workforce shortages are not new in the NHS. They have been a recurring and enduring feature during its 70 years or so. The reasons are complex. A historical reliance on international recruitment may be part of the story. A bias in the UK towards focusing on the Exchequer cost of training doctors and nurses—which is expensive—but not on the cost associated with the failure to train enough staff is another factor. More broadly, workforce shortages are totemic of the short-termism that dominates national policy-making under this Government.

The noble Lord, Lord Patel, will speak at the end of this debate. I hope he mentions his House of Lords committee report from 2017. It argued that the absence of any comprehensive, national, long-term strategy to secure the appropriate skilled, well-trained and committed workforce that the health and care system will need during the next 10 to 15 years represented

“the biggest internal threat to the sustainability of the NHS.”

Amendments 20 and 21 post the way for a national authority to be required to publish a report on how skill shortages are being met and how we are investing domestically to address this shortage and upskill existing staff. I hope the Minister will be sympathetic.

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

My Lords, I shall speak chiefly to Amendments 20 and 21 in the name of the noble Baroness, Lady Hayter, to which I have attached my name. These amendments are also supported by the noble Lord, Lord Hunt, and the noble Baroness, Lady Finlay, which gives them both cross-party and non-party backing. I have mentioned that all noble Lords received a letter yesterday from the noble Lord, Lord Grimstone, and the noble Baroness, Lady Berridge, with her Department for Education hat on, about the Bill and the skills strategy. Its second paragraph says:

“Let me reassure you the Bill is not a short cut to addressing skills development for the UK.”

We can see that the Government have really understood some of the deep concerns that have been expressed by your Lordships’ House about this Bill.

The letter makes reference to the Skills and Post-16 Education Bill. I am not going to start its Second Reading now, although we have to look at whether ladening people with more debt is the answer to our skills shortage.

Another sentence in the second last substantive paragraph of this letter says:

“To meet demand across certain regulated professions, we need appropriately qualified professionals from both domestic and overseas sources.”

In relation to Amendments 20 and 21 and my earlier Amendment 25, do the Government accept that, particularly for certain key—basic, you might say—professions central to our health and well-being, such as nurses and doctors as a general category, we should be training at least enough medical professionals to meet our needs? That sentence would suggest that that is not something that the Government accept.

I come briefly to a couple of details about these amendments, particularly Amendment 21, which is quite valuable and perhaps adds more than my Amendment 51. They highlight important issues, one of which is in subsection (d), which asks for a report on the number of the professionals in the group being considered who are female and male. It is important that we highlight gender disparities. There has been a lot of discussion about medical professions, but I have interest in both the farming and the building and engineering areas, where we have huge skills shortages and there are very serious gender disparities in recruitment.

As I listened to the noble Baroness, Lady Finlay, talking about the complexities of modern medical approaches, I was thinking of some of the engineers I have been speaking to recently about the complexity of building ventilation, something that Covid-19 has very much brought into focus and which we clearly need to be thinking a great deal more about. There is a high level of complexity and a high level of skill is required; you have to understand each individual room and each individual climatic environment. It is a very complex area and requires very high levels of skills and training. I think also that when we are thinking about agriculture—we will be talking about this in the Environment Bill and in the agriculture Bill—we are talking about agri-ecological approaches and agriforestry approaches, not just one field of monoculture that you whack the plough over and you whack the sprayer over, but very complex management of ecosystems that requires a very high degree of skills that we simply do not have now. It requires training and may require people being brought in.

I also want to highlight, as the noble Baroness, Lady Hayter, did, retention rates. Of course, nursing is the obvious area, but there is also a big issue in medicine that needs to much more attention. This is a really important amendment. The support for it demonstrates that, as does the Government reaction, but I think we need a much clearer picture of what the Government’s overall approach is. Are they determined to meet the challenge of training enough people for our needs?

Photo of Lord Lansley Lord Lansley Conservative

My Lords, I am pleased to follow the noble Baroness, Lady Bennett of Manor Castle, again, and to follow up the points she made about skills shortages. We spoke in an earlier debate about the formula in Clause 2 relating to the condition that there is, in effect, unmet demand. I think that at the time I expressed the view that it was unsatisfactory to define that by reference to unreasonable delay and higher charges. This gives us another opportunity to look at that. I think there is merit in the formula in Amendment 21; I just think we may need to develop it a little and make it very clear that in Clause 2—Section 2, as it will be—where a Minister or the appropriate national authority is considering regulations, the condition is that there is unmet demand in that profession. What is meant by that?

The letter that the Minister sent to the Delegated Powers Committee last week said:

“The Government plans to consider various factors in determining ‘unmet demand’, and further detail on our approach is provided in the Government’s policy statement that accompanies the Bill.”

Well, the policy statement, in a very curious paragraph, says:

“Our proposed framework is intended to enable professions to meet the demands placed on them in all parts of the UK without undue cost or delay.”

In that particular context, the cost and delay appear to relate to the cost and delay of the regulators. It is rather strange.

The policy statement goes on to say that where they make these determinations, “Considerations for” what they refer to as “priority professions”—in other words, where there is demand for skills from overseas—

“will include: whether the profession is on the shortage occupation list; vacancy levels; workforce modelling and skills forecasting; and whether there are other ways that professions might address shortages … We will allow for these determinations to evolve”.

Well, some of those factors are indeed those that the noble Baroness has included in Amendment 21—not completely, but I think we are getting there. So I suggest that the route down which we should go on Report is to amend Clause 2 to say “These are the various factors that appropriate national authorities should consider”. It would not be an exhaustive list but of course, in doing so, they should also consult the regulators and the professions in relation to this.

I say in passing that I wish my late father had been able to listen to the noble Baroness, Lady Finlay of Llandaff, discussing the benefits of the mutual recognition of qualifications for clinical scientists in the European Union, because when he was chairman of the Institute of Medical Laboratory Sciences back in the early 1970s, he spent about three years negotiating mutual recognition of qualifications for laboratory and clinical science between ourselves and the other then European Community member states. I know he would have been very unhappy that we have forgone that benefit.

Where skills shortages are concerned, we are finding our way to a solution. In my experience, the Minister is always receptive to the developing argument. In this instance an amendment on Report, when we get to it, should be one that would give Ministers the flexibility they need when determining what is a shortage profession. They certainly will not define it solely by reference to delay and cost. They will take other factors into account—and should do—including the shortage occupation list, which is of course of their own devising.

I also wanted to speak to Amendment 22, which also has some merit. As the noble Baroness, Lady Hayter, said, we have the benefit of the Grimstone rule, which applies to negotiating objectives. Since the passage of the Trade Bill through this House, that was further reinforced by the Secretary of State for International Trade reiterating and extending it to the International Trade Committee in the other place—so it is firmly entrenched. In so far as international recognition agreements have negotiating objectives, it will clearly apply in the same way.

I want to focus now on what is in subsection (5) of the proposed new clause about publishing an impact assessment on “regulatory independence”. Perhaps I might suggest that all this should form part of the Explanatory Memorandum which accompanies any international agreement laid under the Constitutional Reform and Governance Act. I hope the Minister might confirm that that issue will be included in the Explanatory Memorandum when we get to it. I would also emphasise that the Explanatory Memorandum should be very clear about how the international recognition agreements are to be implemented in legislation.

In his letter last week to the Delegated Powers Committee, my noble friend the Minister said that

“all treaties agreed by the UK will be subject to the procedure set out” in CRaG. He continued:

“It is only after that procedure, and the requisite parliamentary processes have been completed, that this power would be used”.

Now once an international recognition agreement has been laid under CRaG, it will be reported to this House, or the other place, and it may be the subject of debate in these Houses.

At that point, it seems really important that in the report of an international recognition agreement it is clear how it is to be implemented in legislation, even if the necessary statutory instruments have not yet been drafted. We need to be very clear about how it is going to work. If it requires primary legislation—or changes to primary legislation—that should be set out very clearly, because it is at that point that the House should take a view as to whether the treaty, or the international recognition agreement, is something that the House would support.

If the House is not going to support it in legislation, it should not agree that it should be ratified. We cannot stop ratification—the other place can—but, certainly, at that stage, Ministers should not proceed with ratification in anticipation of the legislation being enacted if there are likely to be any subsequent parliamentary objections to that. This sequencing is rather important, and I hope that my noble friend will agree that it should mean that CRaG should be very clear about the implementation of legislation, which should proceed after CRaG scrutiny but before ratification. I am sure that we will come back to that at a later stage. Subject to that, I think that there is merit in Amendments 21 and 22.

Photo of Lord Lexden Lord Lexden Deputy Chairman of Committees, Deputy Speaker (Lords) 9:30 pm, 9th June 2021

The noble Baroness, Lady Garden of Frognal, whose name is next on the list, has withdrawn from the debate, so I call the noble Lord, Lord Patel.

Photo of Lord Patel Lord Patel Chair, Science and Technology Committee (Lords), Chair, Science and Technology Committee (Lords)

My Lords, I will try to be very brief; I know that the hour is getting late. I will speak only to Amendments 20 and 28, both of which were brilliantly introduced by the noble Baronesses, Lady Hayter of Kentish Town and Lady Noakes.

I will address what the noble Lord, Lord Hunt of Kings Heath, raised about the report of the House of Lords inquiry that I chaired on the long-term sustainability of the NHS. He is right: the key threats to this were the strategy for long-term workforce planning and social care. Neither has been addressed yet.

On Amendment 20, the regulator has no role in terms of workforce planning. As the Minister said, the Government also do not have any role in imposing any regulations on the regulator when it comes to recognising overseas qualifications. The regulator also does not have a role in terms of recruiting professionals from overseas; that is the business of the service. However, as we all agree, the regulations that the regulator makes for assessing qualifications, experience and any other measures of competence cannot be diluted.

I support Amendment 28, tabled by the noble Baroness, Lady Noakes. If the Government were to take powers in relation to any regulations through any treaty, including trade treaties, that might dilute the regulator’s role in assessing overseas qualifications, experience and tests of competence, that would be unacceptable. That is the only time that regulators will have a role, in terms of being consulted in relation to workforce shortages.

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

My Lords, I first endorse the remarks of the noble Baroness, Lady Noakes, whose comments in this area are very important.

I know that it is not in order in these proceedings to intervene on other Members, but I was itching to intervene on the noble Lord, Lord Lansley, because no one in this Chamber, notwithstanding the Grimstone rule holder, understands the CRaG process more. My question, which I will leave hanging—or convert into a question to the Minister—is as follows. My reading of the Bill is that it does not necessarily mean that an international recognition agreement will be considered a treaty under CRaG. A CRaG definition of “treaty” is any international agreement between member states or an international organisation. It does not include any agreement under an existing treaty—so, if we have a treaty with a country with which a mutual recognition agreement is subsequently signed, that does not necessarily need to go through the CRaG process. The international recognition agreement under this legislation does not necessarily state that that will be the case. My question was going to be on that, but the Minister can get back to me in writing at some stage; the hour is getting late, so he does need to reply today.

This may be of significance when it comes to scrutiny. To take the example of Canada, let us say that a subsequent agreement under the aegis of the Canada agreement expanding the mutual recognition elements would not be considered under CRaG but would trigger the regulation-making power in this area, which means we would still need to consider scrutiny. That is important because, when I looked at what the international recognition agreement stipulates on the activation of these powers, Clause 3(4) refers to

“the recognition of overseas qualifications or overseas experience”, and that is it. It does not include fitness to practise and all the other areas the noble Baroness, Lady Finlay, alluded to, which are currently covered under the statutory protection for regulators to consider the fitness of someone who is applying, including their past record.

I was pleased that my noble friend Lady Randerson and the noble Baroness, Lady Finlay, raised this, because my document of choice for the day—the Department of Health’s consultation document—is quite clear on the Government’s intention to expand the role of regulators to have wider remit in considering the setting of standards and outcomes for quality assuring education and training, both pre and post-application. Indeed, the regulators would be able to have a view not just on the qualification of an applicant but on the appropriate education and training standards that the person went through to reach that qualification. In my view, that is important for the very point the noble Baroness, Lady Noakes, indicated.

Simply recognising an overseas qualification under an international agreement is way below what our current regulators look at when they take into consideration the standards of the education that led to that qualification. We have had scandals in this country, with Oxford colleges and others, which required the Government to go beyond the previous scandals that simply accepted a qualification. Now we look at the underlying quality assurance of the courses, the programmes of training and the education and training providers. Indeed, the Government say:

“We propose that all regulators should have the power to approve, refuse, re-approve, withdraw approval, monitor and quality assure courses, programmes of training, qualifications and education and training providers. Where relevant, these powers should also apply to post-registration courses, programmes of training, qualifications and post-registration education”.

If an international agreement with a country was simply about the recognition of the qualification, that is a diminution rather than a maintenance or enhancement. I think the points have been very well made, and I hope the Minister will be able to respond.

I think that the Minister said “never”. I have been in this House for seven years, and Ministers rarely use the word “never”. In fact, they never use that word, not least because they cannot bind their successor Governments. I have found that they rarely bind their successors as Ministers—but the Minister did do that. He said that it would never impact on what Governments would tell regulators about how they handled applications; they would never change the wider duties on regulators for the decisions made in an application; and they would not impact on the powers in connection with an application. If that is the case, why are those three specific provisions in Clause 1? Subsection (5)(f) means that the powers will be about a specific person, and that a regulator would

“have regard to guidance issued from time to time by a specified person”— as in the Minister—

“when determining an application”.

Subsection (5)(g) refers to a

“provision as to the other duties of a specified regulator in connection with an application”.

Subsection (5)(h) likewise refers to a

“provision as to the powers of a specified regulator”.

So if the Minister is right that these regulations would never be used to do it, why are they in the Bill? I think that, as we heard under the previous group of amendments, they should be taken out.

I wanted to raise something with regard to the points raised by the noble Baroness, Lady Hayter. She made the case very well with regard to the Government really now needing to provide the list of the regulators that the powers will be used for for the restrictions. The Government either know and are not telling us or, if they do not know, how are they planning to meet the demand that they say is there?

At Second Reading, my noble friend quoted a former US Defence Secretary saying that there are known knowns and known unknowns. But through the Government’s scheme we have the shortage of occupations list, and we have the Government indicating in their policy statement how they are going to move towards defining need. Page 9 of the policy statement, in the section “Meeting skills demands”—and in my mind this is a bit of a giveaway—says:

“There are several professions which have high demand for labour supply, and which require professionals from overseas to deliver important domestic services.”

That is the reality of what the Government are wanting to use this for and, therefore, this is in their policy statement. We know that in the impact assessment the Government are forecasting through the Home Office—because it is from the Government—a 70% reduction in EEA applications. That is through the new skilled worker visa system from the Home Office. So it is not just the case, as my noble friend indicated, that we are likely to see a reduction in those existing workers carrying on working; the Government themselves have deliberately got a new system to reduce those applications coming in. As we know, that will create a very considerable problem.

But it is even worse than that, because the impact assessment says:

“There are over 90 regulators which regulate over 140 professions not likely to be included in the new framework”.

So we have the entire list of the shortage and the expanded use of defining what the demand is going to be but, as the Government say, there are 90 regulators of 140 professions that will not be covered in the framework. I do not know how the Government intend to meet the demand in those areas. If you add the combination of the new restrictive measures of the Home Office for EEA staff, plus the fact that 90 of those are not going to be in the framework, can the Minister confirm how we are going to meet the demand?

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 9:45 pm, 9th June 2021

My Lords, I start by thanking the noble Baronesses, Lady Hayter of Kentish Town and Lady Finlay of Llandaff, the noble Lord, Lord Hunt of Kings Heath, the noble Baroness, Lady Bennett of Manor Castle, and others—and my noble friend Lady Noakes, of course, for tabling these amendments.

I am very conscious that noble Lords have dug very deep in this debate and that my answers, particularly at this time of the evening, will not necessarily do justice to the questions that they have asked. Where that is the case, I shall be writing to noble Lords as soon as possible after this debate.

I particularly thank the noble Lord, Lord Purvis, for reminding me that “never” should never be used by a Minister. I have learnt in my time in your Lordships’ House that it is always wise to take the advice of the noble Lord—so I will do so and, with permission, substitute “hardly ever” for “never” in that instance. I am particularly indebted to him for having invented the “Grimstone rule” in our many debates on the Trade Bill.

Amendment 17 seeks to change the condition set out by Clause 2. Noble Lords do not need me to repeat yet again the purpose of the clause. Demand for the services of a profession includes, but is not necessarily synonymous with, a skill shortage. For example, it could allow consideration of whether consumers can access a service without a long wait or having to pay unreasonably high fees. I completely and utterly endorse the idea that the Bill is not a shortcut to addressing skills development for the UK and does not replace work to boost domestic skills. I endorse the importance that the noble Baroness, Lady Bennett of Manor Castle, attaches to that. The Government have published a Skills for Jobs White Paper and introduced the Skills and Post-16 Education Bill to provide the legislative underpinning to those reforms. Alongside those reforms, it is appropriate that Clause 2 uses a broader condition. The amendment also relates to the implementation of international agreements. However, those powers are already provided by Clause 3. I fear that a reference to them in Clause 2 risks conflating two different issues: trade and skills shortages.

The noble Baroness, Lady Hayter of Kentish Town, has set out the purpose of the report proposed in Amendment 21. In determining whether Clause 2’s condition is met, decisions will be informed by much of the information suggested in that amendment, where available. There is a requirement in Clause 8 of the Bill for regulators to publish information, including the number of individuals who have become entitled to practise the profession. I hope that this satisfies the need to have such information on record. While I value the outcomes that these amendments seek to deliver, they are not necessary. Therefore, I would ask that they be withdrawn or not moved.

I turn to Amendment 20, which the noble Baroness, Lady Hayter of Kentish Town, has explained fully, and I will not repeat that here for brevity. As I have said in relation to earlier questions from noble Lords, I am committed to ensuring that regulators and other interested parties are fully engaged on any regulations brought forward as a consequence of the Bill. I recognise and support the objectives of the amendment. However, there is already engagement planned in determining which professions meet the condition set out in Clause 2. In answer to the specific question the noble Baroness asked, I have already met the Bar Council once, but I am happy to do so again following this debate. I can also confirm to her that the shortage test is granular and is therefore at the level of the speciality, as opposed to some kind of overall definition of medical professions.

Amendment 22, tabled by the noble Baroness, Lady Hayter of Kentish Town, would place requirements on the Government around consultation on international agreements that involve provisions on professional qualifications. These include publishing negotiating objectives, consulting regulators, and reporting and producing impact statements on the professional qualifications provisions and their effects at certain stages. In all negotiations, a key concern for the Government is ensuring the autonomy of regulators within those international agreements and protecting UK standards. I have already spoken about my commitment to engagement, so let me put on record some examples. The Government have recently launched public calls for input on trade negotiations with India, Canada and Mexico; and they engage widely through the trade advisory groups and the BEIS-organised regulator forums.

The Government are committed to a transparent and inclusive trade policy. This includes through consultations on proposed new FTAs. Before negotiations commence, the Government publish economic scoping assessments on the impacts of FTAs. Indeed, we recently published pre-negotiation information notes on India, Mexico and Canada. Before any final deal, impact assessments considering the impact on different sectors and bodies will be published and laid before Parliament prior to ratification, as with the UK-Japan agreement.

In answer to the noble Baroness, Lady Randerson, I say that the Trade Act 2021 provides for the implementation of provisions for the recognition of professional qualifications included in UK trade agreements with countries with which the UK signed agreements as of 31 January 2020. However, it provides for the ability to amend primary legislation in respect of these agreements only if it is retained EU law. Additionally, those powers may expire after five years, whereas it is anticipated that, for example, MRAs formed as part of trade agreements may need to be implemented well beyond this limited period—especially in light of the lengthy timeframes that MRAs typically take to finalise.

In response to my noble friend Lord Lansley’s point about how scrutiny processes should work in relation to these agreements, I have to say that he and I generally see eye to eye on the sequences of these scrutiny arrangements and how they should operate. I understand the interesting point that the noble Lord, Lord Purvis, makes about CRaG coverage. I will look into that and write to him. I believe that the additional requirements set out in this amendment are disproportionate, as their objectives are being delivered already. I therefore hope that the noble Baroness will not press her amendment.

Finally, I turn to Amendments 26 and 28 tabled by the noble Baroness, Lady Hayter of Kentish Town, and my noble friend Lady Noakes. As I have mentioned previously, I strongly support regulator autonomy. However, ensuring the preservation of that regulator autonomy to determine who should practise is best achieved through the agreements themselves. Clause 3 will simply implement those agreements. The limit of the Government’s ambitions on professional qualifications is well illustrated in the recent agreement with the EEA EFTA states. Although ambitious, it respects the key priority of regulatory autonomy to assess applicants and determine who should practise. Under that agreement, the autonomy of regulators and national authorities to set standards and reject applicants who do not meet them is maintained.

For most trade partners, we are more likely to agree mutual recognition agreement frameworks. I am concerned that these amendments could create issues if a regulator wishes to enter into a binding recognition agreement that, for example, required the contracting regulators to recognise specified qualifications. In this circumstance, the amendment tabled by my noble friend Lady Noakes, although no doubt well intentioned, would render implementation through regulations made under Clause 3 impossible. Meanwhile, the amendment tabled by the noble Baroness, Lady Hayter, would result in uncertainty on this point, depending on whether this was construed as undermining regulator independence or autonomy. These amendments could therefore undermine regulator autonomy, rather than preserve it, by restricting what agreements reached by regulators could be implemented under Clause 3. On that basis, and in conclusion, I ask the noble Baronesses not to press their amendments.

Photo of Lord Lexden Lord Lexden Deputy Chairman of Committees, Deputy Speaker (Lords)

I have received one request to speak after the Minister. I call the noble Lord, Lord Fox.

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

I will be very brief. In his response, the Minister said that the calculation for shortages would be granular. Whether it is because it is late or because I am stupid, I do not really understand what that means. Perhaps he can add it to his correspondence list. In that regard, it will help greatly if the letters that the Minister has promised can come before the next day in Committee, where possible, because it will certainly lubricate the process.

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 10:00 pm, 9th June 2021

I thank the noble Lord for that point. I think that I can answer the first point immediately because it comes back to the question asked by the noble Baroness, Lady Hayter. She wondered whether it would be at the level of, say, the medical profession rather than at the level of a specialty within that profession, such as anaesthesia. On letters, we will do our best to get them out quickly. It is slightly irritating that we have our next day in Committee as quickly as next Monday, but we will certainly do our best.

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)

I thank the Minister for that. On letters, I know that he is backed by many civil servants and colleagues. He is looking at the whole of my office at the moment—me—so could he not expect us to go to the Library and find things? When he is writing to one person who has asked a question, can he automatically circulate the letter to us because I am afraid otherwise we have no way of seeing it? That would be very kind.

I thank everyone who has contributed to this debate, which I have found really useful. The Minister is not going to like what I say, but there you are. The comments made by the noble Lord, Lord Lansley, and the noble Baroness, Lady Noakes, will help in the redrafting, but I think it is only fair to say to the Minister, nice try, but he can be fairly sure that three groups will be brought back on Report. One will be about the autonomy of regulators. They should not be forced to something. It has to be said somewhere that no trade agreement can underpin them. We can take advice on where it goes.

On the second one on skills, we will want some assurances that other things are going to be done and this will not be the immediate device for filling skills. I think that is in Amendments 20 and 21. We definitely want to look at this again. On skills, I very much welcome the clarification about granular. If I understood what the noble Lord, Lord Patel, said earlier, specialists —be they specialist registrars or consultants or members or fellows of the royal colleges—are awarded the specialisms by the medical royal colleges. I get a nod from across the Committee. The colleges are not the regulator, that is the GMC. I am going to keep out of that and leave it for the specialists. I am sure the Minister will need to discuss that with the medics. It is welcome that he says it will be granular, but then it will not be a regulator which is able to do that because, I think I am right in saying, the medical royal colleges are not regulators in this sense.

The third element was international agreement, which was covered by Amendment 22. Although we may want to look at the detail of that, I think that putting the Grimstone rules into this piece of legislation will be important. For the moment though, having said thank you for the answers but we will be still back, I beg leave to withdraw the amendment.

Amendment 17 withdrawn.

Amendments 18 to 21 not moved.

Clause 2 agreed.

Amendment 22 not moved.

Clause 3: Implementation of international recognition agreements

Amendments 23 to 28 not moved.

House resumed.

House adjourned at 10.04 pm.