Professional Qualifications Bill [HL] - Committee (2nd Day)

– in the House of Lords at 2:30 pm on 14th June 2021.

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Relevant documents: 2nd and 3rd Reports from the Delegated Powers Committee

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

My Lords, the Hybrid Sitting of the House will now resume. I ask all Members to respect social distancing. I will call Members to speak in the order listed. During the debate on each group I invite Members, including Members in the Chamber, to email the clerk if they wish to speak after the Minister. I will call Members to speak in order of request. The groupings are binding. A participant who might wish to press an amendment other than the lead amendment in a group to a Division must give notice in debate or by emailing the clerk. Leave should be given to withdraw amendments. When putting the Question, I will collect voices in the Chamber only. If a Member taking part remotely wants their voice accounted for if the Question is put, they must make this clear when speaking on the group. We will now begin.

Clause 3: Implementation of international recognition agreements

Debate on whether Clause 3 should stand part of the Bill.

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

My Lords, I rise to oppose Clause 3 standing part of the Bill. Judging from the range of people who have co-signed this amendment and those who would have signed it had there been space, this issue is not confined to one set of Benches. I thank the noble Lords, Lord Trees and Lord Hunt of Kings Heath, and the noble Baroness, Lady Noakes, for signing it. I also acknowledge the craft of the noble Lord, Lord Lansley, in drafting Amendment 56; I will obviously allow him to speak for himself, but it may well be another way of thinking about the clause. We have already heard about some of the issues in Clause 3, as your Lordships have sought to make amendments. Of course, we are in Henry VIII territory again, but there are particular concerns about this clause, which I will highlight.

The Minister told us at Second Reading:

“Clause 3 will enable UK Ministers and devolved Administrations to implement the recognition of professional qualifications elements of international agreements.”

He said:

“To be frank, we acknowledge that these powers are broad”.—[Official Report, 25/5/21; col. 910.]

Broad is a good word. In one of his many letters—for which I thank the Minister, as they arrived at five o’clock yesterday evening—he again confirms the importance of the autonomy of regulators, which he has returned to on many occasions.

However, this clause essentially gives the Government of the day the ability to make whatever provision is required to implement any international recognition agreement to which the UK becomes a party. It includes the power to amend primary legislation and retained EU legislation. If regulators were indeed autonomous, what exactly would this clause be implementing? To date, I am aware of no indications from the Minister or his department as to the nature of what changes might be necessary to implement such international agreements. Perhaps he can give us some examples but, in the meantime, we have to assume that nothing is off the table and that the autonomy of the regulators would not be protected in any way if this Bill were passed with this clause in it.

When I first read the Bill, I was already more than somewhat disquieted by this clause but when I read the Delegated Powers Committee report my fears were amplified. I cannot match its authority, but its damning condemnation of the scale of the powers in this clause are really quite important and should be taken into consideration. As the committee said:

“Implementation of such agreements in UK domestic law could raise matters of considerable public interest (for example, were such agreements to give preference to professional qualifications issued in particular countries—perhaps linked to trade deals).”

In the letter to the noble Lord, Lord Lansley, the Minister confirms that the clause will ensure that the Government can meet their international commitments. Would I be right in assuming that this would include mobility frameworks in free trade agreements?

The DPRRC report goes on to highlight the lack of clarity in changes that secondary legislation would make in domestic law, or the scale of change this law might exert on the 160 or so professions in question by international regulation agreements that the committee implicitly linked to trade deals. It then explains that the justification for this delegation is the fact that the nature of future international agreements cannot be known, which we will come back to. Additionally, the DPRRC notes that the Government fail to try to explain why these

“‘necessary changes’ should …be made by Ministerial regulations rather than by Act of Parliament.”

I expect the Minister to respond to this debate by saying that this clause is vital to Her Majesty’s Government’s plans to implement international trade agreements. But this is true only if the Government refuse to bring these agreements to Parliament for approval. How does he justify the taking of power for the Minister and not leaving it to a future Act of Parliament? How does he respond to the DPRRC’s telling conclusion that

“clause 3 represents an inappropriate delegation of power and should be removed from the Bill”?

Photo of Lord Lansley Lord Lansley Conservative

My Lords, I am very glad to follow the noble Lord, Lord Fox. Like him, I was moved to draft Amendment 56 not least by the report of the Delegated Powers and Regulatory Reform Committee, which at the end of its consideration of Clause 3 said that it

“represents an inappropriate delegation of power and should be removed from the Bill.”

The noble Lord was not proceeding entirely on his own initiative, and I entirely recognise where he is coming from.

I am coming from this as a Member of the International Agreements Committee. We are looking at many of the negotiations taking place between ourselves—now as an independent trading state—and other countries in creating international agreements. I do not personally see the world as divided into trade agreements and other agreements. We are increasingly entering into economic partnership agreements where, to be frank, the issue of services and the mobility of professionals should rightly play an increasing part in the economic partnerships that we forge with other countries. I want to see us enter into frameworks with other countries whereby our professionals can work there, and their professionals can work here. That will be, as trade often is, to the benefit of all parties.

On that basis, I considered whether this may be like the Trade Bill, in which we effectively gave Ministers the regulatory power to amend legislation and bring it in line with the continuity agreements we enter into. The conclusion I reached is that it is not like that; these are new agreements, not continuations of old ones. From our point of view, as a committee charged under CRaG with the scrutiny of new agreements, we are only too aware that this House has no capacity to block such a treaty, and no capacity to amend it.

Where secondary legislation is concerned, the House may have the power to stop statutory instruments, but in this territory, frankly, we would enter very difficult terrain. We would end up with our Government having signed an agreement with another country, intending to be bound by it under international law—indeed, it may have come into force—and, at that point, this House would have to consider its implementation in legislation. It seems to me, therefore, that the remedy of deleting Clause 3—and so requiring that every time Ministers want to implement an international recognition agreement in legislation, they have to do it in new primary legislation—is asking too much. As time goes on, there will clearly be framework international recognition agreements under which Ministers will regularly, or maybe frequently, need to change the secondary legislation affecting a range of professions and regulators.

My thinking was that we should—as we often do—allow Ministers the power to change the statutory instruments and secondary legislation relating to new international recognition agreements, but not the power to change primary legislation. That is why, instead of changing Clause 3 itself, Amendment 56 amends the regulation clause at the end, Clause 13, and would provide that the power in Clause 3 to implement international recognition agreements is a power to modify subordinate legislation but not primary legislation; that would be the effect of Amendment 56. Noble Lords may support the noble Lord, Lord Fox, and others in opposing Clause 3, but—if they share my belief that we will often be in this this territory, with Ministers having to change secondary legislation and much less frequently primary legislation, and that, when they do, they should secure the consent of the House, with our ability, as ever, to insert amendments, conditions and caveats, as well as sunshine clauses and so on—then they should in due course consider an amendment on the lines of Amendment 56 to strike a better balance, giving Ministers power but not a Henry VIII power.

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

My Lords, to start, I do not agree with the amendment tabled by the noble Lord, Lord Lansley. I clearly understand the point that he is trying to make; in fact, I have my name down with others to strike Clause 13 from the Bill, but we will come to that.

I will say in a minute why I do not agree with the noble Lord’s proposition but I do agree with that of the noble Lord, Lord Fox, and, absolutely, with his argument. It was clear from the comments of the Delegated Powers Committee that it considered this clause unnecessary. I personally think this is the key clause of the whole Bill; all the other clauses revolve around it.

As I have said, for some professions, such as those in healthcare and, in particular, medicine, the whole Bill is irrelevant because the powers that it gives the Government are already there for the regulator. Including Clause 3 would allow the Government, when making agreements—trade or otherwise—to recognise, for instance, medical qualifications from around the world, without the regulator having any say. I have heard the Minister say many times—and I believe him—that the Government have no intention of going down that path without consulting the regulator. However, one cannot tell from the Bill what form that consultation will take, or whether the Government are obliged to accept what the regulator may say.

In medicine, the regulator currently has power to check the validity of the certification from the university that awarded a doctor’s primary qualification. When I was chairman of the specialist training authority, we found many times that such documents were forged and we had to go to great lengths to make sure that they were authentic. Experience, too, is often found not be correct, so the regulator has to go through lengthy processes. I hope it will not be acceptable just to recognise professional qualifications through an agreement, whether a trade agreement or otherwise, without the regulator having the full powers. For no other reason than that, I support the amendment from the noble Lord, Lord Fox.

The amendment of the noble Lord, Lord Lansley, suggests that we give Ministers the powers through this clause but reserve the removal of Clause 13 so as not to change the primary legislation. I think the two things are quite separate and, therefore, I do not support his proposal. I conclude by respectfully saying to the Minister or his officials that, for some reason, I do not receive any of his communications; I would be grateful to do so.

Photo of Lord Davies of Brixton Lord Davies of Brixton Labour 2:45 pm, 14th June 2021

My Lords, I declare an interest as a member of a professional organisation. We have before us the international agreements clause, as we could call it. In their response to the Delegated Powers and Regulatory Reform Committee, the Government said:

“Clause 3 is necessary to ensure that the provisions of international agreements can be implemented domestically and be given effect to by particular regulators.”

I am not sure about the use of “necessary” but that is how they have chosen to phrase it and, taken at face value, it is all well and good. It is established practice for trade agreements to cover a range of issues, including the recognition of professional qualifications—or rather, it would be acceptable if we could trust the Government. The problem, of course, is that we cannot trust this Government, particularly when they seek to assume such wide-ranging powers.

There are two levels of concern. First, and crucially, the driving principle should be the maintenance of the quality of professional standards and the service provided, not any wider considerations of economic benefit. For example, as stated by the General Medical Council:

“Patient safety is, and must remain, the principle consideration when considering whether to facilitate access to the medical register as part of an economic trade agreement.”

In other words, there must be no room for any trade-off of potential broader economic advantages at the price of weakening professional standards. One way of ensuring that the correct professional standards are maintained is the fullest, earliest possible involvement of the relevant UK regulators in the discussions that take place on the trade agreement; that is, before and during the trade discussions. The Minister has protested that it is no part of the Government’s trade policy to compromise our professional standards. It is possible that I have—again, in the Minister’s words—“a suspicious mind”, but the Government’s record suggests otherwise. This is a general issue where some reassurance would be appropriate, whoever is in government.

The second level of concern is that this is not a normal Government. The evidence we have so far is that this Government are desperate and will do almost anything to justify their decision to change our international trade arrangements to get Brexit done. More store is being placed on obtaining trading agreements for their own sake, however bad or vague they might be. The Government are desperate to present the public with so-called achievements of favourable trade agreements.

For example, we are led to believe that a trade deal with Australia will shortly be announced. It will be the first big post-Brexit trade deal that is not simply a rollover of arrangements that the UK enjoyed as an EU member. In practice, Australia is a relatively small export destination for UK goods and services, but that does not matter because it is all about the politics. There is also an ambitious Secretary of State.

How can our professional services depend on their interests being defended in any future trade deal under the terms of this legislation, any more than, for example, the hill farmers of Wales will be defended under the putative agreement with Australia? It is obvious that, whatever the terms, getting the deal is the only thing that matters to the Government.

In addressing this issue, the Government have to be honest that trade agreements are almost invariably about more than trade. It is innocent to believe otherwise. For example, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership is much more about achieving the UK’s Indo-Pacific tilt for foreign policy than an economic project. However, the UK has to accept all the CPTPP rules to become a member if it wants to achieve that strategy.

There are real concerns, which I hope the Minister will address, that professional standards risk being the sacrificial lamb, slaughtered on the altar of political ambition.

Photo of Lord Trees Lord Trees Crossbench

My Lords, since this is my first contribution to this Committee stage, I thank the Minister for his personal letter to me after Second Reading addressing my concerns about the Bill. He is always courteous and meticulous in responding and I sincerely appreciate that.

However, I still have certain concerns. At Second Reading, I asked two main questions. One was whether the Bill would debar relevant regulators from requiring certain applicants—where no regulator recognition agreement has been set—to sit the UK regulators’ own examination or assessment procedures. I commend the Government and thank the Minister that the Government’s own amendments, brought in with regard to Clause 1, have made it clear that this is not the case.

However, the other question and my concern relating to Clause 3 remain. Why is there a need for a clause in the Bill connecting professional recognition to trade agreements? It leads to a genuine concern that Clause 3 will pressurise regulators into relaxing standards. That concern remains, so I will consider it in some detail

A major purpose of the Bill is to give regulators powers to reach mutual recognition agreements or other methods to enable overseas professionals to register and practise in the UK. The Royal College of Veterinary Surgeons—and I declare my interest as a fellow and former president—and the healthcare professions, particularly the General Medical Council, as my noble friend Lord Patel has mentioned, already have these powers, and one wonders how many of the 50 or so other regulators in the UK do not have them. A question I raised at Second Reading still stands: why not give such regulators the powers they currently lack and leave it at that? Why link regulatory recognition to international agreements?

If we look at the precise wording of Clause 3—and I have not added any words, just subtracted some—Clause 3(1) states:

“The appropriate national authority may by regulations make … provision … for … implementing any international recognition agreement to which the United Kingdom is a party.”

Clause 3(4) continues:

“An ‘international recognition agreement’ means so much of any international agreement … for … the recognition of overseas qualifications or overseas experience for … determining whether individuals are entitled to practise in the United Kingdom”.

I am not a lawyer, but this translates to me as meaning that the Government can implement an agreement to recognise whether individuals can practise in the UK. There is no mention in Clause 3 of involvement or consultation, let alone agreement, with the relevant regulatory authority in the UK. That is my amateur interpretation but the noble Baroness, Lady Noakes—I hope I am not pre-empting her—put it more bluntly at Second Reading:

“The dodgy bit of the Bill is Clause 3, which allows the Government to override existing approaches and procedures for the recognition of non-UK qualifications if they have been covered in a trade treaty.”—[Official Report, 25/5/21; col. 931.]

However, as we have heard already from the noble Lord, Lord Fox, and others, that is not all. The Delegated Powers and Regulatory Reform Committee, in its report on the Bill, had plenty to say about Clause 3. The committee’s concerns are different from mine but are none the less serious and pertinent. Its report notes that Clause 3 gives Ministers broad powers by regulations, including Henry VIII powers to amend primary legislation, without conditions. The report considers and rejects the justifications for this in the Explanatory Memorandum of the Bill and concludes that

“clause 3 represents an inappropriate delegation of power and should be removed from the Bill.”

It seems to me that Clause 3 adds nothing to the reasonable and positive elements of the Bill to enable regulators to have greater ability to recognise, by the means they so determine, overseas applicants for registration to practise in the UK or to ensure that the regulators have such processes and that they communicate them publicly to facilitate overseas applications.

There are serious concerns about the potential that Clause 3 gives the Government to determine or influence the process of professional recognition in the UK and serious concerns from the DPRR Committee about the powers this clause gives the Government to amend primary legislation. I argue that, collectively, these facts support the view that Clause 3 should not stand part of the Bill, which I support.

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

My Lords, I want to put myself on the record as one of those who would have signed the noble Lord’s amendment, had there been space. I again draw attention to the way in which our systems, with the limit of four signatures, no longer allow a full representation of the range of views in your Lordships’ House. I say to the noble Lord, Lord Fox, that should we get to a vote at a later stage, he has the support of the Green group in this matter of Clause 3.

This morning, in my continuing efforts to spread news about what happens in your Lordships’ House to the general public, I wrote what I believe is the first non-specialist press article on the Professional Qualifications Bill, in the Yorkshire Bylines. In it, I described the Bill collectively as a “massive power grab” by the Government, and I believe that Clause 3 is the key part of that power grab, as a number of noble Lords have already indicated.

It is interesting that a number of noble Lords speaking before me have declared their professional affiliations, coming from a wide range of professional areas. They were mostly addressing Clause 3(2)(a), which is about provisions

“conferring functions on any person”.

I will look at Clause 3(2)(c) in particular—the

“provision for the charging of fees.”

There is also real potential for great mischief and great impacts in this element.

I will refer specifically to an ongoing issue around UK visa fees for citizens of 26 European countries. This relates back to when the UK signed the 1961 European Social Charter, as part of our membership of the Council of Europe—so this is not EU or Brexit-related. This arrangement sees a £55 reduction in the cost of UK work visas for people from 22 EU states and Iceland, North Macedonia, Norway and Turkey. This, for example, reduces a seasonal worker visa charge from £244 to £189. That perhaps does not sound like a lot of money to your Lordships, but I point out that we are talking about people who also face an immigration health surcharge of £624.

We are talking about playing around with people’s lives and possibilities. We are not just talking about people coming to the UK because, in many cases, we are talking about something reciprocal. We are playing around with people’s possibilities and freedoms and what is available to them. In the context of Brexit, that is the practical reality: lots of people are seeing their lives disrupted and possibilities previously available to them not being available in the future. However, there should at least be democratic scrutiny and oversight of how that is done through the parliamentary process.

I will pick up on what the noble Lord, Lord Davies of Brixton, said about this being an issue of trust, and how it seems clear that so many of the Government’s decisions are about the politics rather the economics or the impacts on people’s lives. Coming back to Clause 3(2)(a), let us imagine that the Government are negotiating an international recognition agreement and they really want to get the City of London very lucrative access to a national market. There are some nations in the world that train more medical personnel, say, and essentially regard them as an export. They might say, “We want you to reduce the rules to allow our medical professionals into your market, your working environment, and the trade-off is that your City can make a lot of money”. Just think about what that picture looks like and is. That is the practical reality of what I and many others have identified as a massive power grab by the Government.

We are talking about people’s lives and safety and the quality of our professional services, and I urge your Lordships’ House to back the call that Clause 3 not stand part of the Bill.

Photo of Baroness Noakes Baroness Noakes Conservative 3:00 pm, 14th June 2021

My Lords, in last week’s Committee, we emphasised the need for the Bill, and not just the Government’s fine words, to recognise the autonomy of the regulated professions. If the Government really do intend to respect the independence of the regulated professions, it is quite difficult to see why Clause 3 is required.

If the Government sign a trade treaty that includes the recognition of qualifications, and if they do respect the autonomy of the professions, it is difficult to see why we need Clause 3 in addition to Clause 4. Many regulators already have powers to enter into recognition agreements for overseas regulated professions, and if they do not have them, Clause 4 is there to empower them to do so. As such, they either have the powers already or can acquire them by using an order under Clause 4, which seems to me to make Clause 3 redundant if—and only if—the Government do actually mean what they have been trying to tell us: that they respect the autonomy of the professions.

Put another way, there is no evidence before the House that Clause 3 is needed. When faced with an unnecessary clause, the right thing to do is remove it. The Delegated Powers and Regulatory Reform Committee, which other noble Lords have referred to, was highly critical of the Government’s taking of Henry VIII powers in the Bill, particularly in relation to Clause 3. There is very good reason for the Committee to agree with the DPRRC that Clause 3 should not stand part of the Bill.

I looked very carefully at my noble friend Lord Lansley’s Amendment 56 in this group, but I am not convinced that the existing distinction between what is in primary and what is in secondary legislation is sound. It means accepting that the EU’s use of regulations versus directives, and the use of statutory instruments to implement the EU law coming into our law as we left the EU, is a good basis going forward for determining the degree of parliamentary scrutiny that is required for any changes. Because of this, I cannot support my noble friend’s amendment.

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

As we are starting the second day of Committee, I declare my interest again as a member of the GMC board, although clearly, I am not speaking on its behalf.

I put my name to the noble Lord’s clause stand part Motion, and I was happy to do so, although I acknowledge that the noble Lord, Lord Lansley, has given a different and interesting perspective. Equally, I remind noble Lords that I have a sunset clause that we will debate next week. All of us are trying to get to grips with the same problem. The Minister brought some very welcome amendments last week and made some very welcome remarks about the Government’s wish to protect the autonomy of regulators. The issue is that, on any reading of the Bill, Clause 3 would seem to be able to override those protections. This is where we get to the heart of the Bill.

My noble friend Lord Davies was absolutely right: we have seen how the farmers are being dealt with over trade agreements, and it is pretty clear that the Government are willing to ditch a great deal in order to get a trade agreement. That is why it is no good having legislation that does not protect the professional autonomy of regulators. Does the Minister accept that, notwithstanding the warm words he has used, in the event of a trade agreement it will be perfectly possible to use this clause to override any of the protections in Clause 1?

If, as I think the Minister has to say, it will be possible, the question posed by noble Lords and the noble Baroness, Lady Noakes, then comes back: why do we have to have this clause at all? If we do have to have it, why is there not some protection within it that says that, notwithstanding the trade agreement, it cannot override the protection given in Clause 1? One way or another, before the Bill leaves your Lordships’ House, we have to tackle this head on.

Photo of Baroness Fraser of Craigmaddie Baroness Fraser of Craigmaddie Conservative

My Lords, I come to this with a slightly different perspective. Many Members of this House have contributed to the Committee stage of the debate from a ministerial, government or legislative perspective, but I would like to look at it from what my noble friend Lady Noakes might say is the consumer or regulator perspective.

In the debates on the Bill, many noble Lords have acknowledged that we are dealing with a particularly complex landscape. We have had contributions from specialist clinicians, accountants and others, but we have not heard from airline pilots, driving instructors, slaughterers or pig farmers, who are included in this legislation. The list of professions is a given. As the noble Lord, Lord Fox, acknowledged, Clause 3 deals with hypotheticals—with future agreements about which we do not yet know, and on the terms of which we can only hypothesise. My noble friend Lord Lansley pointed out how important the mobility of professionals is and will increasingly become in this complex landscape. Many of the regulators of these numerous and diverse professions are governed by pre-existing legislative frameworks. I cannot see how it would be possible to deliver in the Bill the necessary future changes which all these individual professions might desire.

At every opportunity, my noble friend the Minister has rightly stressed the autonomy and independence of the regulators. Indeed, he has described this as running,

“like a golden thread throughout the whole Bill.”—[Official Report, 9/6/21; col. 1453.]

I do not believe that Clause 3 alters this in any way. Many regulators already have robust processes for overseas applicants who wish to join the UK register. They are able to judge the equivalence of qualifications and have already built up considerable experience and relationships with overseas regulators. These regulators would be in an excellent position to advise the Government if and when they felt it necessary to bring forward further secondary legislation. I have spoken to the Health and Care Professions Council, which feels that it is one that could help the Government to shape and hone this secondary legislation to ensure that it met its intended purpose and did not conflict with existing standards, but enhanced, protected and maintained patient safety priorities. It would be reassuring if the Minister could set out how he envisages that a formal process of consultation and engagement would work.

Last week, when he was talking about powers under Clause 3, the Minister referenced European trade forums and ad hoc consultations with interested parties. BEIS also organises regulator forums which provide updates on the negotiations and terms of trade deals. Some regulators—the Health and Care Professions Council is one, and there may be others; I am afraid that I do not know—are not members of either the ETAG or the BEIS regulator forum. There may be others of which I am not aware. Can the Minister give regulators such as these some confidence as to how these powers could be used in future by successive Governments?

Specifically, I understand that the power in Clause 3 is limited to the professional qualification elements of international agreements. In his response to the Delegated Powers and Regulatory Reform Committee’s third report, the Minister gave the example of the UK’s original offer to the EU as the furthest the Government would or could go to require regulators

“to put in place processes to consider applications … from professionals in the EU.”

This is key. Clause 3 ensures that processes are put in place. There should be a clearly outlined route to registration. I cannot find any obligation for a regulator to recognise overseas professionals if they are not satisfied that all their own independently set and required standards have been met. However, as I have already said, experts and regulators are keen to help and work with the Government to provide the necessary expertise and to advise on all aspects of professional regulation equivalence of overseas qualifications which may be required in preparation for and during trade negotiations.

Some have therefore expressed concerns—which have been shared by other Members of this House—that Clause 3 could lead to a situation in which this expertise would be bypassed. Can the Minister enable us to understand further the impact which the provisions in Clause 3 are likely to have? Can he offer any further reassurances as to the context in which these Clause 3 provisions would be used and how the Government intend to work with regulators to inform these trade negotiations on recognition of qualifications?

I appreciate the views of many noble Lords who have expressed concerns about the wide-ranging powers and Henry VIII clauses in this Bill. I am on a steep learning curve where these are concerned. I also noted last week that the noble Lord, Lord Bruce of Bennachie, raised a concern about how the Government would ensure that the devolved Administrations would properly and sufficiently be consulted. I hope that in the implementation of Clause 3 in relation to international agreements, for example, the Minister might give some comfort and say how he envisages that this might work practically in this context, as it will hinge on areas of skills shortages all across the UK.

Finally, I am a great believer in proportionality, particularly in the proportional use of powers. Bespoke primary legislation in response to a diverse shifting skills and trade landscape may be not only disproportionate but unbelievably burdensome. As my noble friend Lord Lansley said, it would perhaps be asking too much—and not only of your Lordships’ House as legislators; in my short time here, I have already seen how hard you work, and your time is important. But it would also place a burden on regulators, for which a flexible framework approach would enable them to be nimble as to who they assess as overseas applicants and how they assess them. As we consider the skills shortages in so many of our professions, this is surely the preferable route to take.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative 3:15 pm, 14th June 2021

My Lords, I commend the noble Lord, Lord Fox, on securing this Clause 3 stand part debate. I associate myself with everything that he, my noble friend Lady Noakes and the noble Lords, Lord Davies of Brixton and Lord Hunt, said.

I repeat that I am a non-practising member of the Faculty of Advocates, and I should probably state that I am an associate fellow of the British Veterinary Association.

Many believe that, while Clause 3 is useful, it is limited to international agreements—treaties to which the UK state is a party. If this is the case, when he sums up the debate, can my noble friend confirm that 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? In the view of the British Bar Council, this is a deficiency in the Bill and another reason why Clause 3 might not fit in here.

I particularly associate myself with the comments made by the noble Lord, Lord Hunt, and others, about farmers. As my noble friend will be only too aware, I have mentioned this just about every time we have debated either the Trade Act—as it now is—or individual trade agreements: there is no parity of approach between, for example, our farmers and what they might expect to get from the Australian deal, and the Australian farmers and wine producers and what they might expect. I should be delighted if the doors to Scotch whisky were to be opened in a reciprocal arrangement, but I will not hold my breath.

Where is the symmetry in the approach adopted under Clause 3? In our approach to regulations under this recognition of professional qualifications and in individual trade deals to which I have just referred, we seem to be rushing to accommodate members of those professions who wish to come here. As others, notably the Bar Council and the Law Society of England and Wales and the Law Society of Scotland have pointed out, there does not seem to be any support for our professionals who go over there. My noble friend was very clear that there was no reciprocity of agreement with the European Union. Am I being completely ignorant? Does the agreement with the EU also cover the agreement with the EEA and Switzerland? I am at a loss to understand why we are not seeking to reach an agreement on the basis of reciprocity of professional qualifications, not just with the EU but with the EEA and Switzerland.

I would like to press my noble friend the Minister further, and more specifically for a response to the amendments I tabled on day one of this Bill. I asked specifically for provision for consultation with the devolved Administrations and the individual regulators in them. My noble friend said—I am paraphrasing—“There will be many consultations”, so what form will those consultations take? What is the specific mechanism and at what stage will they take place? I do not think it is fair that the devolved Administrations should be presented with a fait accompli; they should be consulted at the earliest possible stage. The noble Lord, Lord Foulkes, tabled an amendment that went further, saying that the consent of the devolved Administrations should be sought. That is a moot point, to which I am sure we can return at later stages.

I conclude by saying that my greatest difficulty with Clause 3 is understanding the policy that lies behind it. Doing my homework, preparing for the Bill this afternoon, I found that, for once, the Government have produced an impact assessment. I know that will please my noble friends Lady Noakes and Lady Neville-Rolfe, who is not here today, as we always look to the impact assessment. That is commendable. It is something to which we should refer frequently and in great depth.

In paragraph 36, on page 11, the impact assessment refers to:

“The preferred option, ‘Provide powers in the Bill to enable the government to implement the RPQ provisions of international agreements and support regulators in making agreements with their international counterparts on the recognition of professional qualifications,’ … These powers will enable the UK government to make regulations to achieve its policy aims, including the amendment of primary legislation where necessary.”

Slightly before that, on page 8, the policy objectives are set out. I will not read them all out, but one is to

“end the interim system which gives preference to EEA and Swiss professional qualifications.”

I hope my noble friend will put my mind at rest, but in the following policy objectives, I do not see anything about what the benefits to our professionals will be, whether they are pig farmers or advocates, when trying to ply their profession or establish their professional service in another jurisdiction. That is another reason it is extremely difficult to understand what the policy is behind Clause 3 and what reciprocal arrangements the Government are seeking. I hope my noble friend will set these out when he sums up this little debate.

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 am grateful to my noble friend Lord Fox for bringing this debate forward in such a cross-party manner. I was struck by the comments of the noble Baroness, Lady Noakes, who has been consistent in this area. Her argument and that of my noble friend Lord Fox has been supported by the Delegated Powers and Regulatory Reform Committee report. In paragraph 32, the committee cites the Constitution Committee, saying that both are of the view that the Government’s previous attempt at legislation in the Private International Law (Implementation of Agreements) Bill,

“which allowed Ministers to implement a category of international agreements by way of statutory instrument, represented an inappropriate delegation of power.”

I agree. In that Bill, we attempted to make the Government see sense. To some extent, they did, because the powers under it, which are drafted almost exactly like those in this Bill, had an additional clause, with a sunset. The powers under that Bill for international agreements can last for only five years after their signing. Perhaps this is the point the noble Lord, Lord Lansley, made: in recognition of that, if changes mean that agreements need to be updated or go beyond the scope of that Bill, new legislation should be brought forward. I would be interested to know from the Minister why the previous mechanisms for implementing a trade agreement on certain aspects include a sunset clause and this one does not.

Fundamentally, this is about trust. Because of the concerns of other committees and the debates we had on the Trade Bill, we consistently and repeatedly raised concerns about the use of Henry VIII powers especially but also about secondary legislation for implementing trade agreements or parts of them. The Minister and his predecessor, the noble Baroness, Lady Fairhead, tried to reassure us by repeating the statement that Liam Fox, when he was the Secretary of State for International Trade, gave in the House of Commons on 16 July 2018. When it came to scrutiny of trade agreements, he said that

“the Government will bring forward a bespoke piece of primary legislation when required for each new future trade agreement that requires changes to legislation and where there are no existing powers.”—[Official Report, Commons, 16/7/18; col. 42.]

Clause 3 and the Henry VIII powers in Clause 15 are a direct contradiction of that. This Bill seeks to use broad Henry VIII powers where regulations

“contain provision amending, repealing or revoking primary legislation” when it comes to implementing a trade agreement. I think I can say collectively that we respect the Minister and take his word at the Dispatch Box, but why are the Government now contradicting the commitment that Dr Fox gave as Secretary of State in 2018?

I share some of the concerns of the noble Baroness, Lady Noakes, about Clause 3. It provides even broader powers than those in Clause 1. Clause 3 does not limit itself to Henry VIII powers in legislation connected with regulators. It relates to any regulations under the Henry VIII power concerning individuals

“entitled to practise a regulated profession.”

These regulations are not limited to the regulators themselves. The breadth of the powers in Clause 3 is breathtaking. In the letter the Minister sent to the noble Lord, Lord Lansley, he simply said that he would consider the need for impact assessment on regulatory independence when implementing an international recognition agreement. That is not good enough. This should be the default, and it should be the default that if there are requirements to revoke, amend or repeal legislation, it should be done in primary legislation.

I was grateful for the Minister’s letter and, like my noble friend Lord Fox, grateful for the letters he sent to us yesterday. I was grateful to the Minister for confirming what I said in the previous day of Committee—that CRaG would not necessarily be a default process for these agreements. Given that the implementing of what could be sub-agreements would not go through CRaG, this is of even more concern. The Minister said in his letter—and mentioned briefly at Second Reading—that if a mutual recognition agreement was not a treaty in its own right and did not amend the original treaty, there would be no need to go through the CRaG process. He said that this was the appropriate result, because Parliament would have had the opportunity to scrutinise the original treaty and the regulations made to implement the MRA.

The point is that these new aspects are potentially extremely wide and could impact massively on who is fit to practise in the UK. If Parliament would have no ability to extend scrutiny of the Henry VIII powers, even under the affirmative aspect—on which the noble Baroness, Lady Bloomfield, said it was not the Government’s intention to bring forward consultation, when she spoke to the noble Baroness, Lady Hayter—or have the same level of scrutiny on either an affirmative or a negative instrument, as it would under CRaG, this would not be sufficient.

Part of the argument which the noble Lord, Lord Lansley made—and normally I would by default agree with some of his amendments on trade Bills and other legislation—convinces me less. Where there is no legislation requiring implementing legislation, rather than amending it, the default position should not be to use Henry VIII powers. It should be new primary legislation. If we are seeing regulations which could amend regulators’ processes, we must ask what purpose that primary legislation served for those regulators. It is essentially there to provide statutory underpinning for the regulator’s functions for public safety—the safety of those who are licensed and who would be considered fit to practice in the UK. There is no limit on the regulatory powers under Clause 3, and there is no link to fitness to practise or standards. There is purely a secondary Henry VIII route through which a Government could drastically change the existing statutory underpinning for public safety.

I wonder why the noble Lord, Lord Lansley, feels that amending secondary legislation is necessary. If there is no existing statutory legislation that is the parent Act of the subordinate legislation for these regulators, then we should not be creating that legislation by secondary legislation. We should look at the original Act, and not simply support regulation-amending provisions. Fundamentally, while we can have many concerns about the operation of these regulations, their breadth, the impact they could have on the regulators and those who are applying to them, this is about honouring a commitment given by this Government during the passage of the Trade Bill. It is stated on the record in Hansard, and I hope the Minister will reaffirm that, and have discussions about removing this clause.

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) 3:30 pm, 14th June 2021

My Lords, as we have heard, Clause 3 gives powers to Ministers to do all sorts of things, but particularly over professional regulators to implement what the Government have negotiated with a third country as part of a trade deal. We are not talking about participation in negotiations on a trade deal, but when a trade deal is done, Clause 3 would give Ministers powers to make such provision as they think necessary to implement any international recognition agreement.

Basically, it states that, where the Government have agreed that opening up a particular UK profession to people qualified in that third country, Ministers can tell a supposedly independent regulator—if I understood what the Minister said earlier—simply to put in place a process for assessing any applicants. However, it goes much further than that, as the noble Lord, Lord Purvis, and others have said. It could even be to accept such applications, not simply to have process by which they would consider applications. Why is this power needed? Either the regulator already has the power to have such a process to consider applications so that it can judge the qualifications, experience, fitness to practice and general bone fides of applicants, in which case this power is not needed, or it lacks the power and does not want it because if it wanted such a process, it would have put it in place.

Not everyone opened their emails at 5 pm yesterday, but I did, and I had a letter from the Minister. One of the questions we have been asking—and which he helpfully promised to answer—was how many regulators are we discussing anyway, under the 60 regulators who do not already have the powers to accept or consider applicants from third countries to practice here. He named three, meaning that we may be doing this for just three regulators. One is the Health and Safety Executive, another the Teaching Regulation Authority, and the third is the Security Industry Authority, which I think regulates bouncers. Someone who knows about this can tell me if I got that right—I see that the Minister confirms it. So this Bill will enable a regulator which regulates our bouncers to take applicants from third countries with which we have done a trade deal, so that their bouncers can come and operate at our nightclubs, which are closed at the moment because of Covid. I thought I should share with colleagues that we are possibly talking about three regulators who do not have the power, and that one probably does not want it anyway. If they can already consider applicants, then this seems to go further than saying that you need a process in place, and seems possibly to say, “You will accept these applicants,” whom I am sure were already regulated in their own countries. Nevertheless, it seems to require regulators to accept them, not just to put a process in place.

My noble friend Lord Hunt asked why should a Minister be able to override what a statutory regulator—a supposedly autonomous regulator set up in law to protect the public and maintain standards—and establish a new route against its wishes? If the regulator is happy, everything is hunky-dory, and we do not need this power anyway. The Government have said that Clause 3 is a more proportionate method to implement mutual recognition agreements, but they have failed to tell us which trade deals being considered will have a mutual recognition agreement and why regulator-to-regulator side agreements are not satisfactory. The Minister’s letter—for those of your Lordships who did not open their emails at 5 pm yesterday, and incidentally I am impressed that the Minister was there to press send at that time—to the noble Baroness, Lady Randerson, says that if an MRA is agreed and approved by the trade agreement,

“it may need to be implemented in law”.

However, the Minister in that letter gave no example of why it would need to be implemented in law, or what type of MRA that is. Perhaps he can now spell out the circumstances in which an MRA would need to be implemented in law in the way envisaged in Clause 3.

I am anyway still bemused about why—given that the Government have said that, in their negotiations with other countries, it is for the autonomous regulator to determine who practises a profession—a Minister might need to instruct a regulator in law to set up a route for negotiations and recognition.

As the noble Baroness, Lady Noakes, and others said, and as the Delegated Powers Committee wrote, the Government have failed to satisfy us that Clause 3 is needed at all, and—as Amendment 56 tabled by the noble Lord, Lord Lansley, emphasises—have failed to explain why, should something along these lines even be needed, it should enable primary legislation to be implemented by statutory instrument. Clause 3 states that the Government—or any of the devolved Governments—can use regulations to implement any international recognition agreement, which means that they could use it, as others have said, to authorise Brazilian vets, Japanese bouncers or Australian teachers to work here without our regulators being the ones to decide that. It certainly seems to go beyond simply having a process in place, which is the point on which I wish to press the Minister. Earlier he said that it was all about making sure there is a process in place. If I have not understood correctly, I am looking forward to the Minister’s explanation of why this is needed.

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 Lord Lansley for his amendment to Clause 13, which limits the regulation-making power of Clause 3, and I note that the noble Lord, Lord Hunt of Kings Heath, intends to oppose Clause 13 standing part of the Bill and that the noble Lords, Lord Fox, Lord Trees and Lord Hunt of Kings Heath, and my noble friend Lady Noakes intend to oppose that Clause 3 stand part of the Bill. I hope to provide noble Lords with the assurances they are seeking, but I have listened carefully to the points made during the debate and know that I may have an uphill task ahead of me on some of these matters. I will of course be reflecting on that after this debate.

Before I turn to my noble friend Lord Lansley’s amendments to Clause 13, it would be helpful to consider them in the context of Clause 3. I will therefore outline the rationale for Clause 3. Before I do that, I apologise to the noble Lord, Lord Patel, if letters to him have been misdirected—although he may be grateful not to have received them at 5 o’clock yesterday afternoon—and I will of course ensure that that does not happen again. In answer to the noble Lord, Lord Purvis of Tweed, I will of course research what previous Trade Secretaries have said on matters germane to the Bill.

Let me again outline the rationale for Clause 3. I think it is common ground that international agreements on professional qualifications can be beneficial in reducing non-tariff barriers to trade by supporting UK trade in services and helping professionals to provide services abroad. I still believe that Clause 3 is important to ensure that the UK can meet its international obligations by allowing national authorities to implement those parts of international agreements that relate to professional qualifications.

As I have described before, what is implemented under this power will be subject to the outcome of negotiations. It is the case that for many trade partners, we are likely to agree the standard model of recognition of professional qualifications: a mutual recognition agreement framework. Perhaps in answer to my noble friend Lady McIntosh’s fears about reciprocity, I think the clue is in the name: these are mutual recognition agreements. Under these frameworks, the parties to the deal encourage their regulators to negotiate and agree recognition arrangements, but—and this is the key point—with no obligation that they do. It is up to the regulators to decide whether to agree a recognition agreement and to propose its terms. This takes time. Sometimes, once a mutual recognition agreement is agreed and approved under the FTA’s governance processes, it can be annexed to the FTA itself, and then it may require implementation by the Government, often—this is the reality—years after the FTA was actually agreed. That is one of the answers to the noble Lord, Lord Purvis of Tweed, as to why sunset clauses do not really work in those circumstances.

With other select trade partners, the Government may look to agree more ambitious provisions for the recognition of professional qualifications. An example of this is the excellent deal recently agreed with the EEA EFTA states, Norway, Iceland and Liechtenstein, and I am happy to use it as an example, as requested the noble Lord, Lord Fox. This agreement includes a framework that ensures that there will be a route to recognition for UK professional qualifications in the EEA EFTA states and vice versa, but, as I have stressed previously, this is a route to recognition, it is not an obligation to recognise and it does not affect the ability of national authorities or regulators to set and maintain professional standards.

Without Clause 3 or bringing in primary legislation—I hope noble Lords will appreciate that it is not always satisfactory to bring in primary legislation: parliamentary time may not be available, et cetera—we risk limiting our ability to implement ambitious deals on professional qualifications such as the EEA EFTA agreement. I have to say that I have heard no noble Lord speak out against such agreements, or against that agreement in particular. We would also limit our ability to make future international agreements that concern only the recognition of professional qualifications. For example, in the December 2020 services mobility agreement, the UK committed to future negotiation with Switzerland on a comprehensive agreement on the recognition of professional qualifications, and we may well need Clause 3 to implement that agreement and, over time, others.

Before and during such negotiations, I can assure noble Lords that intense engagement would take place with regulators and other interested parties. Given that we always intend to do that, and in response to the real concerns expressed by my noble friends Lady McIntosh and Lady Fraser and the noble Lords, Lord Trees and Lord Davies of Brixton, I will consider whether I can give further assurances on this, because we will be consulting regulators. Again, it is one of these matters of trust, in respect of which I do not think I have yet quite been able to convince your Lordships.

I would say the same thing, perhaps, about my statement that regulator autonomy has always been a red line for us and always will be. This point is so important because it strikes at the heart not just of the trust of this House in the Bill but the trust of professionals and others in it. It concerns me that this has become a matter of trust for noble Lords. I will reflect on that and your Lordships’ seeming inability to take my words at face value.

In summary, international agreements on the recognition of professional qualifications can be part of FTAs, they can be agreed as frameworks in FTAs but then in detail for specific professions much later, or completely stand alone. Clause 3 is broad because we need it to account for those many permutations. It is that complexity of the landscape which has driven this Bill to being a framework piece of legislation. I hope that noble Lords agree, having listened to what I have said, on the importance of international agreements on professional qualifications and will in due course support this clause standing part of the Bill.

I now turn to my noble friend Lord Lansley’s amendment. This amendment to Clause 13 would limit the regulation-making power in Clause 3 so that regulations made under it could amend only secondary legislation. However, many professions in the UK are subject to existing legislative frameworks that include both primary and secondary legislation. I understand the points made by my noble friend and the distinction he has drawn between primary and secondary legislation. The challenge is that there is often no rhyme or reason, when you survey the landscape of 50 regulators and 160 professions, as to what is in primary and what is in secondary legislation. With all due respect to canine animals, it is a dog’s breakfast, so being able to bring these agreements into effect may require amendments to primary or secondary legislation.

We have set up the framework so that we can reflect the terms of international agreements on professional qualifications, or adaptation, so that they function correctly alongside any international obligations. There is no reason more or less than that as to why this is a framework Bill. The fact is that existing powers may not provide for the full implementation of international agreements on professional qualifications, especially where primary legislation needs to be amended. This is why Clause 3 is so important.

I am grateful to the noble Baroness, Lady Hayter, for letting the Committee know the three professions we have identified so far; I think there are many others, and we will carry on researching this to find out where regulators themselves—this is not coming from us—either do not have the powers or have indicated they do not believe their powers are sufficient for the job in hand.

As I have mentioned previously, 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 of 31 January 2020. However, the primary legislation can be amended under it only if it is retained EU law. Those powers may expire after five years—another weakness of the sunset clause.

Therefore, even where the UK has mutual recognition agreement frameworks in place with other countries, such as Canada, by virtue of their inclusion in rolled-over EU trade deals, we might not be able to implement MRAs under them beyond this limited period if primary legislation cannot be amended by Clause 3. Further, even within this five-year window, the power in Clause 3 will be necessary in circumstances where the primary legislation that needs to be amended is not retained EU law.

I suggest, with all humility, that to potentially introduce bespoke primary legislation for individual MRAs agreed under these FTAs would be disproportionate and burdensome. It could also undermine the ability of our regulators to reach such agreements in the first place, given the preciousness of parliamentary time, and, frankly, our negotiators could well lack credibility. The rationale for Clause 3 is that it provides a more proportionate means to implement such agreements.

Of course, we all recognise that all treaties agreed by the UK will be subject to the procedure set out in the CRaG Act. Furthermore, any amendments to primary legislation using regulations made under Clause 3 will be subject to the affirmative procedure, ensuring appropriate parliamentary scrutiny at that point. A number of the arrangements requiring Clause 3 might have been instigated by the regulators in the first place, and they should know what they are talking about.

I ask my noble friend Lord Lansley to withdraw his amendment to Clause 13, and I commend that Clause 3 stand part of the Bill.

Photo of Lord Lexden Lord Lexden Deputy Chairman of Committees, Deputy Speaker (Lords) 3:45 pm, 14th June 2021

My Lords, I have received requests to speak after the Minister from the noble Baroness, Lady Noakes, and the noble Lords, Lord Hunt of Kings Heath, Lord Purvis of Tweed and Lord Lansley.

Photo of Baroness Noakes Baroness Noakes Conservative

I will raise just two topics. The first is trust; the Minister regretted that the Committee did not trust the Government on this. We have to remember that when very wide legislation is placed on the statute book, it can be used by a later Government to its full extent, whatever the current Government intend—in this instance, in relation to regulator autonomy. We have plenty of examples of that; the most glaring at the moment is the legislation being used to cover the hundreds of statutory instruments on coronavirus restrictions. Very clear statements were made to both Houses of Parliament when that legislation went through about the circumstances in which it would be used. That has been completely ignored to cover the biggest deprivation of civil liberties in peacetime, for circumstances that the legislation was never intended to be used. The Committee is entitled to be entirely sceptical about very broad expressions in statute.

My second point relates to letters. I received one letter, yesterday at 5 pm, so I have not seen many of the letters which have been referred to. It is extremely difficult, when letters come out at 5 pm on a Sunday and we start the next Committee day the following working day, to have any chance of tracking down whether any letters have been issued. As far as I understand it, the Library does not operate in real time and there is no real-time way to interrogate how things are laid there—even if these letters were laid in the Library, which I have no idea about.

The reason Ministers write letters in Committee is that they have failed adequately to deal with an issue at that stage. When the Minister handled the last group of amendments last Wednesday, he said that he would answer it very briefly, as it was getting late, and would write. Whomever he addresses the letter to, when he writes, he is writing to the whole Committee, and it is only right and proper—and this always used to be the case—that all other Members taking part in the Committee get a copy of it. It is additionally laid in the Library so that the rest of the House has access to it.

We have lost sight of how to conduct our business properly—partly because hybrid proceedings make it more difficult for us to run things down completely in Committee, but there are always cases where you cannot run things down in Committee and have to rely on subsequent correspondence. The way the Minister’s civil servants are operating this letter-writing procedure is depriving the Committee of its ability to operate effectively.

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

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

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

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

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

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

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 am grateful for the Minister’s reply to the noble Lord, Lord Hunt, which I will come to in a moment. He was extremely dismissive of legislative powers to implement international trade agreements having sunset clauses. He has just taken through the Trade Act, which has exactly those clauses in it. The power there is a five-year sunset, and a regulation can extend it to no more than a further five years. This is to protect exactly that kind of scrutiny of these changing agreements, so that Parliament, if there are changes in that period, has an opportunity to scrutinise them again. All I was asking for was some form of comparable treatment in this Bill, which he is taking through, to the one he has just taken through on the rollover agreements. I cannot for the life of me think why he championed them in the latter and now dismisses them in the former.

On the breadth of the Clause 3 powers, on my reading and having listened to the Minister’s speech, I would be grateful if he could indicate whether I am wrong that, while 50 regulators and 160 professions regulated by law are covered by Clause 1, the other 90 regulators of the 140 professions cited under the impact assessment—not the legal framework—could now be within the scope of powers of duties imposed on them by Clause 3. Without there being any restrictions in Clause 3 on the duties of or obligations on all regulated professions, statutory or otherwise—these could include new duties on current non-legislative regulators—and without there being protections regarding their independence in Clause 3, are they all now potentially within the scope of these powers?

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 4:00 pm, 14th June 2021

I thank the noble Lord for that comment. My belief is that this Bill applies only to our famous 50 regulators and the 160 professions, and that it is those regulators that are governed by law, but I will write to the noble Lord and send a copy to all Members of the Committee to confirm this.

On the point about sunset clauses, the trade agreements covered in the Trade Act were all rollover agreements, many of which will be replaced in due course by other agreements. The noble Lord will know that some of that process has started already and that what we are talking about here is mutual recognition agreements rather than rollover agreements in their entirety.

Photo of Lord Lansley Lord Lansley Conservative

My Lords, I am grateful to my noble friend the Minister for his response to my Amendment 56. If I understand it correctly, he attributes to the professions legislation considerable complexity; for example, the supplementary delegated powers memorandum that the department submitted referenced the Dentists Act—a mix of primary legislation and secondary legislation. If this House accepted that there are practical reasons for providing a power of this kind to enable the amendment of both primary and secondary legislation, will my noble friend say that the Government will not use it as a precedent in relation to future legislation or future arrangements for the approval of trade agreements and other international agreements? There is a principle here: in future, as these trade agreements come through, where they impact on primary legislation, they should be implemented through primary legislation. Does my noble friend accept that this will not be cited as a precedent?

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

My Lords, this has been a very good debate—the Minister has clearly listened and responded strongly. We have certainly listened to his response.

First, I take issue with the noble Baroness, Lady Hayter, who appears to have redefined the phrase “being bounced by the Government”. She was looking at me when she referred to door security, at which I take umbrage.

On the subject of letters—we already have more in the post—I point out that the timetable is the Government’s timetable. If it is short, it is clearly the Whips with whom the Minister needs to have a word rather than us suffering. I support the point made by the noble Baroness, Lady Noakes, about making this available to all of us.

The notion that we all want to see people able to work in different territories as a result of this is absolutely true. The Minister will know that I have spent a great deal of my time proposing amendments to various Bills in order to put back mobility frameworks that were being removed in another way, so my support is there. What we have heard in this debate is a compelling argument about Clause 3. The noble Lord, Lord Patel, was right that this is the key clause of the Bill.

The noble Lord, Lord Trees, asked the right question: why is there a need for Clause 3? The Minister attempted to answer that and, in doing so, used the example of the EFTA agreement. In that agreement, as he said, it is agreed to have a route to recognition. This confirms the suspicion of the noble Baroness, Lady Fraser, whom I congratulate on making the only case for supporting the Government that we have heard so far—although even that contained some pretty hard questions, which I hope the Minister will be able to answer, probably in another letter.

The point is that the powers in Clause 3 are constrained by the wording of the FTA. We do not know what the next FTA or the FTA after that will say, but the only constraint comes from the words in that FTA. The powers in the clause are in effect unlimited, as the noble Lord, Lord Hunt, pointed out. That is the concern. Before we talk about Amendment 56 and the like, we must establish the answer to the question asked by the noble Lord, Lord Trees: why do we need this clause. What is it that we need? Frankly, it is a nice-to-have power for this Government but, as the noble Baroness, Lady Noakes, pointed out, it could very well become a nasty-to-have power in future when other people may take it and use it in different ways.

The Minister is right to identify that there is more work to be done. He reflected that it is an uphill task. Well, there is often more than one way to get to the summit. Straight up, rather than taking a more considered and circuitous path, may be the best way to get the elements of Clause 3 that the Minister considers essential there. At the moment, the sledgehammer of this clause, as we have seen, will not be acceptable.

Clause 3 agreed.

Clause 4: Authorisation to enter into regulator recognition agreements

Amendment 29 not moved.

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

My Lords, we now come to the group consisting of Amendment 30. Anyone wishing to press this amendment to a Division must make that clear in debate.