Amendment 45

Professional Qualifications Bill [HL] - Committee (3rd Day) – in the House of Lords at 1:42 pm on 22nd June 2021.

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Baroness Noakes:

Moved by Baroness Noakes

45: Clause 8, page 5, line 35, at end insert—“(1A) Subsection (1) does not apply to a regulator of a regulated profession if—(a) the regulator oversees the regulation of a regulated profession carried out by another person or persons,(b) the regulator is satisfied that the information required by this section is available on the website of that other person or persons, and(c) the regulator’s website states where the information may be found.”Member’s explanatory statementThis makes provision for a regulator which does not regulate a profession directly but oversees the regulation carried out by other professional bodies.

Photo of Baroness Noakes Baroness Noakes Conservative

My Lords, in moving Amendment 45 I will speak also to Amendment 46 in my name. I shall also speak to Amendments 63 and 68 in this group, in the name of the noble Baroness, Lady Hayter of Kentish Town, to which I have added my name.

Amendments 45 and 46 both deal with the position of regulators that oversee the regulation of a regulated profession but do not carry out that regulation themselves. This typically arises where a regulator oversees a number of professional bodies, each of which provides qualifications for, and regulate those who practise, the profession. An example of this is the Financial Reporting Council, which oversees regulated auditors, but wholly or partly through the work done by several professional accountancy bodies. Those professional bodies qualify and regulate the accountants within their membership, not all of whom are regulated auditors. I will not attempt a technical description of the medical and dental professions, but the General Medical Council and the General Dental Council sit over the top of various other bodies and medical colleges to which individuals belong, and I suspect that similar issues arise.

Clause 8 requires the regulator to publish information on requirements to practise. My Amendment 45 is intended to ensure that, if the information is displayed on another website, the regulator need not gather and load up that information on its own website but can signpost where to find it. For example, the FRC could signpost information on the websites of the Institute of Chartered Accountants in England and Wales and the corresponding bodies in Ireland and Scotland, as well as the other bodies which have recognised audit qualifications. Anything else is just bureaucracy for the sake of it and is inefficient.

Clause 9 places a duty on a regulator to provide information to a regulator in another part of the UK. My Amendment 46 says that if someone else holds the information, they should seek to get the information provided by that other person. A regulator may have information about individuals in relation to the particular regulated profession but may not have information relating to the broader context of an individual’s membership of a professional body—for example, a full disciplinary or complaint record. Gathering information only for the purpose of sharing it with another UK regulator would again be duplicative and inefficient.

Since the amendments in this group were tabled, the noble Baroness, Lady Hayter, and I have received an extraordinary letter from the Minister that is relevant to all the amendments in this group. This was one of my noble friend’s Sunday missives, which we have all learned to love during the passage of this Bill. Noble Lords may recall that I initially asked for a list of the bodies covered by the Bill. I received a letter, dated 23 March, listing 160 regulated professions. The Minister said at the time that this was a list of the regulated professions that BEIS considered fell within the Bill’s definition. Last Sunday’s letter claimed that the earlier list was “indicative”—although he did not say that at the time—and a new list was attached. The new list has over 250 professions and nearly 60 regulators.

The letter clarified the position of statutory auditors, which I have been banging on about, and recognised that, while the FRC remains a regulator within the terms of the Bill, the bodies that actually regulate audit as recognised supervisory bodies—the chartered accounting bodies—are also now within the terms of the Bill. This does not alter the need for my Amendments 45 and 46. Indeed, it strengthens the case, because asking the FRC to duplicate information held by the chartered bodies or handle information requests when the correct information is held by the chartered bodies would be unnecessary—and, as I said, I am sure that this issue is wider than just audit.

More broadly, this latest letter has shaken what little faith I had in BEIS in relation to the Bill. I have never really understood the rationale for the sweeping powers in this Bill and it has all the hallmarks of being a Bill conceived and executed by officials with little or no ministerial policy direction or oversight. My noble friend the Minister has been unable to justify the Bill other than in the most general terms, and last week we learned that one of the clauses was likely to apply to only four bodies. Now we learn that the Bill was drafted with a far-from-perfect understanding of the territory that it purports to cover. This is no way to legislate. The Government would be well advised to pause the Bill, once we complete Committee today, and to think long and hard about whether and to what extent it is appropriate to legislate in this Bill.

In the light of these latest developments it is absolutely clear that Amendments 63 and 68, tabled by the noble Baroness, Lady Hayter, are necessary in principle. The content is of course already out of date, and I note from the Minister’s letter that there is no claim that the latest list is definitive—because apparently it is still being tested. We will need a final list on the face of this Bill before it leaves your Lordships’ House, because it is simply unacceptable for legislation to be uncertain as to who or what is within its scope. I beg to move.

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) 1:45 pm, 22nd June 2021

My Lords, it is nice to follow the noble Baroness, Lady Noakes. Clearly, she and I were doing the same thing on Sunday afternoon; when everyone else was out enjoying the rain, we were sitting at our computers waiting for letters from the Minister. When I have finished speaking to Amendments 63 and 68, I am sure that, if he were to indicate the Government’s willingness in principle to accept them, the House would give him leave to give such an indication and save us from having to go through the whole group.

In respect of Amendments 45 and 46, respectively moved and tabled by the noble Baroness, Lady Noakes, it is clearly right that an arm’s-length regulator, which now also includes the Legal Services Board, should not have the same legal requirements to provide regulators’ information to the assistance centre, and nor should it be caught by the other requirements that apply to front- line regulators.

As we have heard, 160 professions were originally caught by this legislation; as late as the Minister’s letter to me of 18 June, it was still 160 professions. The first time round, of course, it was the 57 varieties in the letter to the noble Baronesses, Lady Noakes and Lady Garden, on 24 May. As the noble Baroness, Lady Noakes, said, even the new list is “indicative”, although we were not told that the first list was indicative. I received the Minister’s letter at 2.16 pm on Sunday afternoon with some amusement because, as the noble Baroness said, we now have 60 regulators and about 200 professions. As I think she indicated, you really could not make it up.

Legislation has been drafted without the department even knowing which bodies are covered. It has then had to correct or revise it quickly afterwards to add, for example, recognised supervisory bodies, because it has just realised that the Companies Act and the Statutory Auditors and Third Country Auditors Regulations include them. As we heard, the Institute of Chartered Accountants in England and Wales has been added. We had specifically been told on 5 June, and again as late as 18 June, that the ICAEW was not included; we now find that it is. As the Minister’s letter was not private, I shared a copy of it with the ICAEW. It emailed to say that

“it feels like government seem to be rushing through this legislation without having thought through the detail of the Bill and its consequences, and parliamentarians”—

I think that means us—

“are now having to try and fix this. For the list of regulators and professions affected by this Bill to have changed so substantially while the legislation is being scrutinised … does not help give certainty on such an important and wide-ranging legislative measure—a point hopefully the Minister would recognise.”

I mentioned the Legal Services Board, which is now included in the list when it was not before, but the list still lists the Law Society of England and Wales as the regulator of solicitors. I would have thought that it would be more appropriate for the Solicitors Regulation Authority to be listed. The SRA has written to me, to say:

“We would support the SRA being named on the face of the bill”.

It is rather surprised that the Law Society is mentioned. That was undoubtedly correct under the Legal Services Act 2007, but it should now be the SRA because it has recently been established as a legal entity. Clearly, even what we had on Sunday still needs correcting, and it needs correcting now, rather than at some point in the future.

As the noble Baroness, Lady Noakes, said, the Minister’s letter says that the Government are still testing the list, and will make it public only after that. That really is not sufficient. The Government should not only know which bodies will be covered but have consulted them prior to drafting the Bill. It is no good finding out now that new regulators have not had the chance to put their pennyworth in, and that their specific remit, structure and the way they work clearly cannot have been considered because they have not been consulted.

I think that the noble Baroness and I both agree that it is also not adequate, even when the list is finalised, simply to have it available somewhere in the ether once the Bill is enacted. How are professions regulated by these bodies, or indeed foreign professionals who might want to be authorised here, to know whether the Bill covers them and whether it covers a list of regulators? Saying that there is a list on GOV.UK is insufficient, because who would know to look there to see whether there was a list of regulators covered by the Bill?

This is a powerful Bill. It will enable a Minister to mandate a supposedly independent regulator to put certain processes in place—our Delegated Powers Committee calls it a Henry VIII power. These professions are regulated in law but supposedly with an arm’s-length approach, up till now, as to how they gain and retain their professional standing. A new law would give powers to Ministers over these professional regulators. How can it be possible that those regulators are not listed in the Bill? Of course it must be possible to add or subtract regulators as they change their titles or merge—the sort of thing that happens over time—but it cannot be right to add in a new regulator at the whim of a Minister with no by your leave from Parliament and no mention in legislation.

Amendment 63 would therefore add in a reference to a schedule listing the regulators covered by the Bill, and Amendment 68 comprises that proposed new schedule. As the noble Baroness, Lady Noakes, suggested, given that it was a copy-and-paste, it is not now as accurate as I thought it was when I tabled the amendment. That is not my fault; the list was from the Minister’s original letter. Unless the Minister will now accept the amendment in principle, the amendment I will table on Report will be the corrected version. Perhaps by then the Minister will have been able to confirm that all statutory bodies covered by the Bill have been identified and consulted, and to provide us with a list of which of those 60 regulators do not already have the power to recognise overseas qualifications and therefore might not even need the Minister’s authorisation, as allowed for in the Bill. As I said, if the Minister will indicate now that he accepts this in principle, then I am sure that we can shortcut this.

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 have been a Member of a Parliament—either the Scottish Parliament or this Parliament—for nearly 18 years now. I cannot remember a government proposal for legislation that is so catch-all and which would have powers to amend primary legislation with whatever it wants, by whoever it wants, whenever it sees fit. For the Government not to know who the Bill will apply to while it goes through Parliament is unacceptable. Therefore, although I support all the amendments in the group, I also support the call for the Government to take their foot off the accelerator and pause, so that not just Parliament but the Government themselves can properly scrutinise who will be impacted by the Bill.

In many respects we have an indicative Bill, not an indicative list of bodies. We should not have indicative Bills presented to us. If the Government want to do this properly, there are well-established measures for presenting draft Bills. A draft Bill would probably have fleshed out all these aspects, and allowed those groups to indicate whether or not they will be part of the framework, whether they want to be part of it, or whether they desperately do not want to be. At least we would have known. When I say “we”, I want to be all-inclusive, and I include the Minister—he would have known as well.

It is not just a question of whether the Government know which regulators and regulated professions will be in the framework. The impact assessment also includes a number of those that will not be in the framework, which is equally important. Do the Government also know this list? Otherwise, there might be some horrible kind of purgatory, where some of these bodies do not know whether they are on the way to legislation, and so are in a holding pattern, or whether they will not be part of it.

The impact assessment says there are 90 regulators and over 140 professions not likely to be included. Does that mean that when the list in the letter to the noble Baroness, Lady Hayter, goes up, that list goes down? Or do the Government not actually know how many regulators or regulated professions there are in the first place? If that is the case, I wish them luck in defining demand in those professions that they do not know exist. The impact assessment is therefore no longer valid. The Government need to withdraw version 1 and give us another version. This is not just something to be amused about—were it not for the talk about a new royal yacht, this might be the funniest thing I have heard today. Rather, it is the fact that this could cost up to £42 million, which is a burden on the bodies that will come into this framework.

The noble Baroness, Lady Noakes, is absolutely right that bureaucracy costs. At a time when we are asking all our regulatory bodies and professions to work as efficiently and effectively as possible, this is an extra layer of bureaucracy and burden upon them. Many who may be listening to this debate could be part of that. Both noble Baronesses are absolutely right. It was breath-taking to read—I think they were to a degree trying to reassure us—that the Government are continuing to test, with interested parties and the devolved Administrations, which bodies should be included.

I think I have got to the bottom of why the Government are in a bit of a pickle. When I looked at the list, I was slightly surprised to find that pig farmers were exclusively singled out. Having represented a number of pig farmers in my former constituency, I was not sure why the Government felt that they, uniquely among all livestock farmers, should be part of the framework under this legislation on professional qualifications. This was raised previously by the noble Baroness, Lady McIntosh of Pickering, and the letter may confirm her doubts about how robust the Government’s position is. I looked this up and—thinking, “Surely this cannot be the case” —phoned a friend who is a pig farmer. I think I have got to the bottom of it: this is a cut and paste job. The noble Baroness is right; it is a cut and paste job from the European Union, because this is the database that was used by the European Union for professional qualifications.

I wondered why pig farmers, uniquely across all of the United Kingdom, would be regulated by Defra, which, for this purpose, is the English department. So it was a surprise to find that my Scottish pig farmer friend had his non-existent professional qualifications regulated by the English department. I looked into the European database and, lo and behold, the contact for the UK, as a member state, was Defra. The regulations that are linked to it are, of course, Scottish, and there are separate ones for Northern Ireland. So I ask the Minister: will the third iteration be robust before we get to Report? I do not think so, because there are other professions where the UK Government as a ministry, or body, are put down as the regulator, but they are not—that is just the contact for the European Union; the regulations and standards are devolved.

My final point is that this list gives myself and my noble friends even greater concern about the interaction with the UK Internal Market Act. We have sought assurance that the carve-outs in that Act relating to the legal and teaching professions would be respected. It looks as though under this list they will not be. As we will be discussing later, when you add that to the Government’s position on the Australian trade deal, which includes automatic recognition of, for example, all Australian lawyers to practise anywhere in the United Kingdom, this is a direct override of the UK Internal Market Act. So, while the Government have more work to do, this should not be on the hoof, or while the Bill is going through Parliament. So I agree with the noble Baroness that this now needs to be paused.

Photo of Lord Moynihan Lord Moynihan Conservative 2:00 pm, 22nd June 2021

My Lords, I will speak to Amendment 45 in the name of my noble friend Lady Noakes, which makes provision for a regulator that does not regulate the profession directly but oversees the regulation carried out by other professional bodies. This refers precisely to the British Association of Snowsport Instructors, to which I referred at length at Second Reading. I too congratulate the noble Baroness, Lady Hayter of Kentish Town, on her excellent Amendment 63. I will speak in favour of it because it recognises:

“The appropriate national authority or the Secretary of State may by regulations amend” the schedule,

“so as to insert additional regulators.”

These will not necessarily be regulators of regulated professionals by statute but may be regulators such as the British Association of Snowsport Instructors.

I highlight this case because I have received a letter, distributed in May by the department of the economy in the Canton du Valais in Switzerland. That canton has more mountainous regions than any other in the Alps, including many famous ski resorts such as Crans-Montana, Zermatt and Morzine-Avoriaz, to name but a few. The letter, sent by the department to ski instructors in Switzerland, said:

“The enforcement of Brexit on 1 January 2021 will mean major changes in the hiring of British nationals. We would like to inform you of the following changes to your sector of activity. As of 1 January 2021, British nationals can no longer avail themselves of the agreement on the free movement of persons. They are therefore subject to the foreign nationals and integration Act (AIA), its ordinance (AOA) and its directives (AIA directives). This implies that the employment of British nationals is strictly reserved for highly qualified persons and must meet the strict conditions of the applicable law. Thus, according to the LEI guidelines, the hiring of snow sports teachers can only be done for qualified teachers, provided that there is an exchange agreement between a partner in the country of origin and a Swiss institution. In addition, the teachers must come from non-EU EFTA countries where there is a long tradition of the activity in question. Therefore, it will not be possible to hire British nationals as ski instructors. The recruitment of ski instructors will have to be done at Swiss level, or within the European Union countries. The Foreign Labour Section team is at your disposal for any further information. Please take note of the above. Our best regards”.

That is a massive blow, announced in May, for all British ski instructors who have done so much over many generations to develop the sport of skiing, both in Switzerland and in Europe. It is also wrong. It says that the ski instructors should come

“from countries where there is a long tradition of the activity in question”— but, of course, the country with the longest tradition of activity in Swiss-based skiing is the United Kingdom. It was Sir Arthur Conan Doyle who introduced skiing to Switzerland after returning from one of his skiing trips in Norway. He brought with him some skis, and he felt that Switzerland was the perfect terrain for such activity.

This is extremely serious for the future of not just British ski instructors but all those who support them. Seasonal businesses and the travel industry have argued the case very strongly that most people who go skiing in the Alps are supported. When they go on holiday, they tend to book through a British company, to be met at the resort by a British representative and, often, to be looked after by British staff—cooks, cleaners and ski instructors, as well as water sports instructors elsewhere in Europe and bar staff. This is all at risk. So the UK outbound tourism industry is facing a crisis in this sector post Covid. Thousands of young people—some 25,000 UK young people support outbound tourism—are also at risk.

It is exceptionally important to cover the second point, but I appreciate that it is the first point, on the British Association of Ski Instructors, that is most pertinent to this set of amendments. Not only does it effectively regulate all ski instructors in the United Kingdom but, through its hard work and diligence with international regulators—many of whom are supported in law in their respective countries—it is in a position whereby, as a result of the situation in which we currently find ourselves, it is not given the support by government that is absolutely necessary to remedy this.

Of course, when we were looking at the previous clause, Clause 7, on the assistance centre, there was an opportunity to put a great deal of effort, time and commitment behind securing the interests of those people as we go forward. I would argue that it is very urgent. If that sort of letter is circulating within the Alps, we need to act now.

I very much hope that one of two things might happen. The Minister is a Whitgift-educated man, and Whitgift is an outstanding centre of sporting excellence. I am sure that he wants to go back there with his head held high, having defended the interests of ski instructors in this country. Either he can use his extraordinary powers of negotiating skill to return pretty swiftly to Brussels to sort out this problem—and, in the case of Switzerland, negotiate with his counterparts there—or he can give a commitment that he will strengthen the assistance centre to make sure that this is a priority for the help given by the assistance centre. There was much debate and uncertainty about whether the resources behind the assistance centre would be adequate when the Committee looked into that in detail. Alternatively, he can accept the amendments in the names of the noble Baroness, Lady Hayter, and my noble friend Lady Noakes. Those are the three options.

I very much hope that the Minister will recognise the importance of this issue, which is now critical and urgent, and in so doing be able to give a very clear commitment to the Committee today that he intends to take this forward. I hope that he will underline the urgency in the same way that I have tried to do for the Committee this afternoon.

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

My Lords, I shall speak briefly to Amendments 45 and 46, but I support all of the amendments in this group. Before I do so, I thank the Minister for the correspondence that I received like everyone else—I made a lot of fuss about it in the previous Committee meeting, and I am grateful now that I am receiving this correspondence.

I shall speak mainly about the medical profession, because I know that best. Although the regulator, which is the General Medical Council, is responsible for all areas of training and certification, the GMC delegates quite a lot of its responsibilities to other bodies. Therefore, information about the different aspects and different levels of training is available from the bodies that deliver the education and training. For instance, it is mostly the universities that deliver undergraduate training. They all follow a core curriculum set by the General Medical Council, but in addition most universities also provide some medical training that will be different from other universities. For instance, my university, the University of Dundee, puts more emphasis on primary care, as well as meeting all the requirements of the core training set by the General Medical Council. The regulator has the information about core training and also publishes information on the universities, but it is the individual universities that will have the information about their particular training in medicine.

For specialist training, again the regulator is the General Medical Council, but all specialist training is delivered by colleges and faculties—I declare an interest as a fellow of several colleges. It is the colleges that write the curriculum and the training, which is approved by the General Medical Council, and they make sure that the training is conducted according to the agreement. At the completion of specialist training, which may take several years, it is the General Medical Council that issues a certificate of completion of training and puts the doctor on the specialist register.

Some doctors may take higher degrees, such as a doctorate in medicine or a PhD; these are totally controlled by the universities that issue those degrees. The regulator has no role there, although in 99% of cases the degrees will relate to some aspect of medicine, whether that be research or clinical science. Following the completion of all this training, it is the regulator, the GMC, that is responsible for the revalidation that every doctor has to undergo every five years. That, too, is delivered and checked by professional bodies such as the colleges, but it is the regulator, the GMC, that is responsible for making sure that it approves the revalidation certificate.

What this shows is that lots of other organisations and bodies are involved. The information will be held by these bodies, although there is a common regulator in the General Medical Council. In that respect, therefore, I support in particular Amendment 45, which is on the responsibility for where this information should be held.

I will not comment further on the list issue, because a lot has already been said very competently by other speakers, particularly by the noble Baronesses, Lady Noakes and Lady Hayter, and the noble Lord, Lord Purvis. I will not add to that, but there is a problem, which we may discuss in a later amendment about the list.

Photo of Lord Hope of Craighead Lord Hope of Craighead Chair, High Speed Rail (West Midlands - Crewe) Bill Select Committee (Lords), Chair, High Speed Rail (West Midlands - Crewe) Bill Select Committee (Lords) 2:15 pm, 22nd June 2021

My Lords, it is a pleasure to follow my noble friend Lord Patel. I too wish to support all the amendments in this group, but I shall particularly mention Amendments 45 and 46, in the name of the noble Baroness, Lady Noakes. I like these amendments because they are directed precisely to an issue which affects two of the regulatory functions that I had when I was Lord President of the Court of Session in Scotland, as I mentioned at Second Reading.

The word “regulator” is defined in Clause 16 as meaning a

“a person having functions under legislation that relate to the regulation of the profession in the United Kingdom”— a broad definition. The Lord President is such a person. But he does not exercise those functions on his own. His function, in essence, is to supervise or oversee the other regulator which in each case is the professional body itself. The definition does not draw that distinction, but it is relevant to what Clauses 8 and 9 require the regulators to do. The information to which Clause 8 refers is held by the professional bodies, not by the Lord President.

Amendment 45 addresses itself exactly to the function that the Lord President can perform, which is to ensure that the professional body does what Clause 8 requires. That makes very good sense. There is no need for him to duplicate what the professional bodies are asked to do—which, if the Bill remains as it is, would be its effect. All that is needed is to identify what the Lord President should do as overseer to ensure that the information is made available. The same is true as regards Clause 9. Here too duplication of what the professional body is being asked to do is unnecessary. What Amendment 46 requires of the Lord President is just the kind of thing that he does frequently throughout the year to ensure that the professional body is doing what it is required to do.

For these reasons, I am grateful—indeed very grateful —to the noble Baroness for bringing these amendments forward. I do not need to comment, for the reasons that the noble Lord, Lord Patel, gave, on Amendments 63 and 68. I hope that the Minister will recognise that the amendments to which I have been speaking make very good sense and will improve the Bill, which in its present form is, for reasons I have hinted at, highly unsatisfactory. I hope that he will feel able to accept them.

Photo of Lord Davies of Brixton Lord Davies of Brixton Labour

My Lords, I declare my interest as a member of a profession, as listed in the register of interests. I support Amendment 63, tabled by my noble friend Lady Hayter. It is entirely reasonable that it should be clear to which professions this legislation should apply—in addition to architects, who get their own bit in the Bill—so I commend my noble friend’s diligent work.

However, I have a question about what counts as a regulated profession. I know this issue comes up under Clause 16, but it is clearly important in the context of the amendment. Clause 16 tells us that

“‘regulated profession’ means a profession that is regulated by law in the United Kingdom” and draws our attention to Clause 16(3), which says:

“For the purposes of this Act, a profession is regulated by law in the United Kingdom … if by reason of legislation … individuals are entitled to practise the profession in the United Kingdom … or … individuals are entitled to practise the profession in the United Kingdom, or in that part of it, only if … they have certain qualifications or experience, or … they meet an alternative condition or requirement.”

All that tells us, in effect, is that a regulated profession is a profession that is regulated by law. I find this difficult without a comprehensive index of all the legislation that might be caught by that definition, particularly given the open-ended Clause 16(3)(b)(ii) at the end about meeting

“an alternative condition or requirement”.

So this question is relevant to the amendment. Could the Minister tell us a bit more about what is envisaged might be covered by that part of the definition?

Let us start from the other end. What professions might be covered by the Bill and is there a useful definition that covers them? My noble friend Lady Hayter has helpfully provided us all with a list. The list is interesting in itself, making clear the extraordinary hodge-podge nature of the Bill. Clearly, it is not a list based on a rational assessment of the needs for legal recognition; it is probably a combination of historical accidents. My question is: how do I, other noble Lords and, most relevant, the Government really know which professions are covered by the Bill, given the breadth of the requirement to meet an “alternative condition or requirement”?

How do we know there is not buried somewhere in past legislation a condition or requirement that applies before an individual can practise their profession? I mentioned this issue at Second Reading. Here is an example: there are requirements in the legislation covering both pensions and life insurance that an actuary can sign off on certain statutory reports only if they have been approved by the relevant government Minister—invariably, the Secretary of State. Does that count as regulation? If so, should various Secretaries of State be included in the list of regulators? Perhaps the Minister could address this issue. I do not ambitiously expect an immediate response, but a considered response would be helpful.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative

I support my noble friend Lady Noakes in her two amendments and the noble Baroness, Lady Hayter, in her Amendments 63 and 68. The first list that I saw was the one produced informally by my noble friend Lady Noakes, which I was delighted to see and took as gospel. Now we have had two or three iterations of it. While that may cause us some confusion and bemusement, one has to look to the professions and the regulators that are required to regulate them. I start from a simple premise: I am a non-practising member of the Faculty of Advocates. I understand what the faculty does, along with the corresponding regulator in England and the Law Society of Scotland—that is, the regulators for their respective professions.

I am delighted that the noble Lord, Lord Purvis, has leapt to the cause that I supported on the question of why pig farmers were chosen for special treatment under the Bill. If I may pause on the completeness of the list, I am not even sure that all the professions listed on pages 20 and 21 of the impact assessment—which I know the noble Lord, Lord Purvis, thinks is no longer entirely up to date—are covered in the new list. It is difficult to see whether

“Chief engineer class I fishing vessel” and

“Deck officer class II fishing vessel” have simply been renamed in the list that we received on Sunday afternoon or whether they are the same in the impact assessment and the latest letter. What causes me some concern and confusion, in the light of the comments by the noble Lord, Lord Purvis, is the foot- note to table 4 on page 20 of the impact assessment:

“European Commissions’ Regulated Professions Database. It should be noted that recognition decisions are captured at the generic profession level and not the specific profession level. Some generic professions listed may therefore include specific professions which do have alternate routes and/or which may be likely to be included in the new framework. This table is therefore likely to overstate the recognition decision numbers of the specific professions without alternate routes and which are not likely to be included in the new framework.”

Now I am even more confused than before.

In the light of the forensic work that the noble Lord, Lord Purvis has done in this regard, I am still not entirely convinced as to why pig farmers are included, and producers of chickens for meat production only are included. Does that mean that overseeing egg-producing chickens is not deemed to be a profession and is therefore not regulated for the purposes of the Bill? I go back to what I said when this issue was first raised on the second day of Committee: could my noble friend please state the legal basis for including pig farmers? Has it been correctly identified by the noble Lord, Lord Purvis? I would like to understand, when I meet them at Thirsk auction mart, whether they are included or not. Are egg-producing chickens included or only those for meat production? Perhaps more importantly, on what basis are beef and lamb producers and producers of chickens for other purposes not included? Is that a permanent exclusion or could it be revisited, and might they be included at a later date?

The noble and learned Lord, Lord Hope of Craighead, was being very restrained when he said that this is an unsatisfactory situation. We have to accept that the Bill before us is perhaps not fit for purpose and that we need to do other work on it. I do not think that, hand on heart, we can allow it to go forward to Report and eventually leave the House in this form, because we would not be serving well the professions or indeed their regulators if we did. So I support Amendments 45, 46, 63 and 68 and particularly the call from my noble friend Lady Noakes to pause the legislation at this stage so that we can do the work that, undoubtedly, my noble friend and his department would be delighted to do.

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

My Lords, this has been an interesting debate. Before talking about the amendments specifically, I want to respond to the noble Lord, Lord Moynihan. I support his point, but the ski instructors of Great Britain are not alone in having their route to working in the EU cut off. We should look at the overall economic impact of this. Research by Make UK, which represents the UK’s manufacturing industry, shows that 61% of manufacturers regularly send their employees to the EU to follow up their manufacturing work with service work. Almost all of those have qualifications that until now have been recognised in the EU, but that is no longer the case. So this is a huge economic issue, not just for ski instructors and their families but for the entire manufacturing and indeed service sector of this country. The noble Lord has hit on a point, but it is actually a much bigger point overall.

The Minister is in danger of establishing a tradition. We are sitting down to our Sunday lunch—whether it is a well-regulated piece of pork or an unregulated leg of lamb we do not know—when one of his letters arrives. This letter was timely, but only because the noble Baronesses, Lady Hayter and Lady Noakes, insisted that we have it. It is quite clear that the Government’s intent was that we should go all the way through the Bill without knowing the contents of this list. It is also quite clear now that the department and the Government are going all the way through the Bill without knowing the content because, as was so elegantly pointed out by Members of the Committee on all Benches, this is what might best be described as a work in progress.

That brings up another point touched on by my noble friend Lord Purvis, which is, if the department is having problems simply drawing up a list of which professions are included, how is it going to manage a process of demand management? It does not even know who the people are. For example, we have notaries here, so perhaps the Minister can explain how demand management of notaries might be achieved. Is it how long you wait, or how many there are? Is there a quota per town of notaries? I do not know. Then we have banner-towing pilots. How do we know when we have a shortage? Are there too few banners?

Noble Lords:

Ha!

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

This is not funny, because the Government are trying to micromanage the skills of this country, and it is truly absurd that we should be debating this and a shame that the Government have got themselves into this position. This letter is indicative of a failure of precision and a lack of detail. The Minister stood up and said that the Government need the Henry VIII powers because they are unable to foresee the future. They actually need these powers because they are unable to describe the present and need this to retrospectively fill in the gaps that the Bill will almost certainly leave because of that lack of precision and the failure to understand the detail.

I am sure the Minister’s ambition when he first heard about the Bill was to take it through this House as quickly as possible and get on with what he considers to be the other more important parts of his job. It is clear that the Bill came before him very late in the drafting process, by his own admission. But it is now very hard to see how anything we can do to the Bill makes it fit to leave your Lordships’ House. The comments from all Benches about having a hard, long look at this before it goes any further are very wise advice to the Minister.

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 noble Lords for the comments in this debate, which, as they may imagine, I have listened to with a certain lack of enjoyment. If I may, I will come back to the substance of that later.

I thank my noble friend Lady Noakes and the noble Baroness, Lady Hayter of Kentish Town, for their Amendments 45, 46, 63 and 68, which concern the regulators that the Bill applies to, as well as the duties on those regulators to publish information. I will start with Amendment 45, which concerns Clause 8 and the duty of a regulator to publish information on requirements to practise. We might remind ourselves of the purposes of this clause. Clause 8 is first and foremost about increasing transparency. It does this by requiring regulators of professions in all parts of the UK to publish information on the entry and practice requirements of professions. This is in direct response to our evidence-gathering. We found a complex regulatory landscape—I think the whole Committee would agree with that—which is difficult for professionals and aspiring professionals to navigate. Some regulators already publish the information listed in Clause 8, and those that do not should be able to prepare it within the six months of lead time set out in the commencement provisions relating to the clause.

The amendment’s explanatory statement by my noble friend Lady Noakes helpfully clarifies that “persons” means “professional bodies”, but I remind the Committee that many professional bodies regulate on a voluntary basis and not by law. The core principle of the Bill—I will come back to this again later—is that it applies to those regulators which are regulated by law in whole or part. The Bill does not apply to many of them because they regulate on a voluntary basis and so fall outside the duty to publish information under Clause 8. The amendment could create new burdens on bodies not covered by law in any other way.

Moreover, Clause 8 already makes provision, where there is more than one regulator involved in the regulation of a profession, for just one to publish the transparency information required. My noble friend Lady Noakes is seeking to provide for a similar effect with her amendment to a wider group of organisations in this space but, with all due respect, it is not necessary.

Amendment 46 concerns Clause 9 and the duty of a regulator to provide information when requested to a corresponding regulator in another part of the UK. This information helps regulators to check things like fitness to practise when a professional moves between jurisdictions within the UK. The amendment would apply these provisions to “another person or persons”—suggested in the explanatory statement to be professional bodies. Once again, this blurring of the nature of the bodies to which the Bill applies is unhelpful. Indeed, in this case it creates risks.

The clause places a specific duty on a defined regulator to make sure that important information is shared when requested. This might be critical to protect the public from harm. This amendment creates ambiguity around which body must fulfil the duty. It also introduces “must seek to ensure” into the provision. I do not believe this is enough. If there is more than one regulator or professional body involved in regulating a profession, then the law must be clear on who must provide the relevant information; it should be the regulator of the specific professional activity regulated in law. This is important to make sure necessary checks are done on professionals in a timely way. This clause is particularly important where a professional activity is regulated by different regulators in different parts of the UK. At our last count, the number of “corresponding” regulators this amendment would apply to was around 25. The provision in the clause is important, but any burden arising from it will be very limited.

I thank the noble Baroness, Lady Hayter of Kentish Town, for her Amendments 63 and 68, which seek to remove the definition of when a profession is regulated by law in Clause 16 and add a schedule listing the regulators to which the Bill applies. I think we have all learned things through the passage of this Bill. In particular, I have learned that a definition which was apparently clear-cut on when

“a profession is regulated by law” has taken this amount of time to establish.

As the noble Baroness said, the list in the proposed schedule in her amendment is the same as the list of professions and regulators in the letter which I placed in the House of Lords Library on 24 May. Actually, I indicated at that time that this was not the final list:

“The following table is comprised of over 160 professions and more than 50 regulators that BEIS consider fall within this definition”— the definition regulated by law—

“and is the product of engagement with other departments, regulators and external organisations. Please note that BEIS are still conducting assurance work to confirm the professions and regulators to which the Bill will apply … The list below should be considered indicative only.”

I think that was the appropriate health warning to put on that letter. A very detailed exercise has been going on across Whitehall to confirm who is covered by law, which, as I said earlier, one would have thought it would be straightforward to find out. A very detailed exercise has been going on to update that letter, which was indicative, and to make the letter I have now sent as accurate as possible—although even that letter may still need some updating around the margin going forward.

In order to achieve this list, we have had to work with a large number of government departments and the regulators. This thorough mapping of the landscape of regulated professions has not been done properly, I have written down here, “for far too long”. I wonder whether it has ever been done properly at all before now. Yet this list of regulators regulated by law was the list to which the European Union regulations applied. What has come to light, frankly, during this process, is that not all regulators have a copy of the list of the professions which they regulate. The list of professions attached to this list has come from the regulators and, quite rightly and properly, the GMC drew attention to the fact that some extra medical professions needed to be included in the list. Furthermore, not all departments had full visibility of which regulators that fell under their purview were covered by law.

I accept, without reservation, that it is not good enough that these lists have been incomplete and that noble Lords must have felt they were playing a game of blind man’s buff in trying to see who the Bill applies to. Of course, as a Minister on the Front Bench, it has been uncomfortable to sit here and listen to the quite reasonable points made by my noble friend Lady Noakes, the noble Baroness, Lady Hayter of Kentish Town, the noble Lord, Lord Purvis of Tweed, and others.

This list must be put into good shape. By the mere act of our working through this Bill and unearthing these matters—in the way that our House is here to do—we are doing a good job. The landscape is complex, but by the time we have finished the Bill, I believe we will have learned all there is to learn about regulated activities, and this rather technical matter about which regulators and professions are covered by law.

Since the first letter, there have been, as I have mentioned, some changes to the indicative list, with some more regulators coming on to it. We have now identified close to 60 regulators—I think it is 55 or 56 —and more than 190 professions as falling within the ambit of the Bill. I placed an updated list in the House of Lords Library yesterday. I thought noble Lords would congratulate me on working at the weekend on a Bill as important as this; I now have almost perfect knowledge of when noble Lords eat their lunch on a Sunday. I have asked my officials to keep the list under review as they continue their work with national authorities and regulators. Certainly, I would not want to be the Minister who took this Bill forward without knowing to whom it applied. I will, of course, inform noble Lords if further updates are made.

Actually, the vast majority of the professions and regulators contained in the indicative letter I shared on 20 June are the same as those I shared in the indicative letter of 23 May. As I said, we have done further work with departments to assess where existing legislation will mean that the Bill applies to certain professions and to determine the relevant regulators. This is detailed work that has drawn on expertise from many departments.

In answer to the point of my noble friend Lady McIntosh about animals—the virtual zoo to which she referred—whether or not an animal or a farmer falls under regulations that are governed by law is a matter for legislation that is owned by Defra, which at certain times in the past must have considered it appropriate to put an animal or an activity into its statutes. It is not something that I or my department have taken a value judgment on in relation to the list that should be included in the Bill.

I reassure noble Lords that my officials have already been in discussion with the small number of regulators that came to light to make sure they understand the implications of the Bill. As I say, the vast majority of professional activities and regulators on the list have not changed. I asked officials to review whether the small number of changes have significantly affected the costs and benefits of the impact assessment. We believe that the transitional costs of revoking the current arrangements and the costs of the transparency requirements and information-sharing requirements may increase slightly, but by a very small percentage. Many of the costs will be unchanged.

Having given some explanation of where we are and how uncomfortable I have felt about this, I turn now to the detail of the amendments. I have concerns about the proposed approach. Inadequate though it must seem to noble Lords, having listened to us get to this point, I have to say that I still prefer the definition-based approach—a regulator which is regulated in law—because it ensures that no provision is overlooked. This means that national authorities and regulators will have to consider carefully, as they should, whether each professional activity for which they are responsible meets the definition of regulated professions set out in the Bill. The question I would ask is not why the Bill has brought this to light, but why have not national authorities, professions and regulators had these facts at their fingertips before now.

We will absolutely continue the detailed mapping of the landscape and support national authorities and regulators to deepen their understanding of their responsibilities. I believe that this definition-based approach, regulated in law, is future-proof. If and when a new professional activity is regulated or even deregulated, or its name changes, the Bill will not need to be amended. There will be no need to pass regulations to amend a schedule for what might be quite trivial reasons. Having said that, I completely and utterly accept that it must be reasonable for there to be easily accessible and in the public domain an overview of which professional activities and regulators the Bill applies to. I will think further about whether it is best done through GOV.UK or through the assistance centre, which I know some noble Lords have mixed feelings about, but it must be done somewhere where it is completely visible, can be updated easily and can sit alongside other information and guidance about professional qualifications.

I believe that we should stick with the definition-based approach. I should publish an updated live list and do all that can be humanly done to make sure that it is complete, but I believe that it is unnecessary, and indeed would be unhelpful in terms of keeping that list up to date, for it to be put into law. What should be in law is the definition of a profession that is regulated by law, and the consequences of what is in law should be available publicly.

Before I close, I turn to the powerful points made by my noble friend Lord Moynihan in relation to ski instructors and some ancillary points made by the noble Lord, Lord Fox. I understand, of course, the concern that my noble friend feels. I have had a number of letters about this myself and will ensure that we look at it again properly. I will consult our posts in the countries concerned and look at whether there is anything else we can do. I will report back in writing and copy that to other Peers who have spoken on this topic.

Again, I apologise to the House that the initial list was indicative. I hope that noble Lords know that I have eaten a fair amount of humble pie in trying to explain why we have got to where we are.

I can answer the noble Lord, Lord Purvis of Tweed, quickly on his point about lawyers and the Australian free trade agreement. I am told that the agreement we have reached is so far only an agreement in principle. It will contain provisions on legal services, as we have heard, but it will not confer the automatic ability for Australian lawyers to practise law in the UK. We will have to wait for publication of the text to have the fine detail but, coming back to our favourite word, I hope I can assuage the noble Lord’s mind on that.

I hope that my explanation in relation to Amendments 45, 46, 63 and 68 has been helpful. I ask that my noble friend Lady Noakes and the noble Baroness, Lady Hayter of Kentish Town, withdraw and do not press their amendments.

Photo of Lord Duncan of Springbank Lord Duncan of Springbank Deputy Chairman of Committees 2:45 pm, 22nd June 2021

My Lords, I have received two requests to speak after the Minister, from the noble Lord, Lord Purvis of Tweed, and the noble Baroness, Lady Hayter of Kentish Town. I will call them in that order.

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

My Lords, on the Australian point, I think the Statement on the Australian agreement will be repeated in this House, and I will pursue that aspect with the Minister there; so he has advance notice. What he just said at the Dispatch Box does not tally with what he sent me in letters, with accompanying documentation, about services and the recognition of professional qualifications. My questions to the Minister are on the back of this.

This place will scrutinise legislation but also the Government’s proposals. We have no proposals from the Government to scrutinise because they have not brought forward proposals on what they want to do with some of these powers, so we are struggling. On the specific point of the list, it is not just the regulator bodies that should be on a list. The list is meaningful if we know what the bodies are with regards to the professional qualifications.

On the regulated professions database, the entry for pig farmers shows that they are regulated by legislation. No one has ever denied that is the case because anybody involved in livestock maintenance or husbandry in this country operates under the welfare of farmed animals regulations. On the database, there are the Welfare of Farmed Animals (England) Regulations, the Welfare of Farmed Animals (Scotland) Regulations—there is no reference to any for Scotland on the list—the Welfare of Farmed Animals (Wales) Regulations, and the Welfare of Farmed Animals Regulations (Northern Ireland). Further down it has a box:

“Qualification level: NA—Not applicable”.

If the Bill is about recognising professional qualifications for someone wanting to become a pig farmer in any component part of the United Kingdom, and there are no applicable qualifications for it, why is it on this list? We know that a farmer is regulated by laws, and lots of them, but that is irrelevant for the purposes of the Bill. It is of concern because, if it is in the Bill, it will fall foul of all the different requirements under the Bill.

I want to ask a second question with regard to the list and say why it has to be meaningful. Incidentally, we have raised farriers previously; the noble Baroness, Lady Hayter, did so. Farriers remain on the list, so I looked up the Farriers Registration Council. It says that the route to be a farrier is through an apprenticeship; there is no qualification route as an automatic mechanism which can be recognised by someone else. All the professions under the list which have apprenticeship routes are not covered by Clause 1, so where would they be covered? That is the concern that this list generates. It is not just about what is or is not on it; what does it mean by being on it?

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. Surely this is why we are going to have the assistance centre and why we are going to require regulators to publish on their websites what it takes to become a member of their profession. I say to the noble Lord that an apprenticeship is a qualification, and if the requirement to become a farrier is that you have to be an apprentice, it is quite right that the farriers should put that on their website. It should say how one goes about being an apprentice; it should not be something known only to a favoured few. Boys or girls who wish to become a farrier should have a place to go and find out how to do it.

The Bill will open up, for the first time, for this list of professions—which nobody has pulled together and done the work on—whether you have to have qualifications or apprenticeships to do them. It will make that publicly accessible, and that will be a good thing in encouraging our people—young, middle-aged and old—to a route if they want to qualify and join these professions.

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 think I am in even greater despair now than I was before the Minister responded. Is this a “better regulation” Bill or is it about recognising incoming professionals from other countries, who can then have the right to practise here?

I find some of the Minister’s words extraordinary: he said that he felt uncomfortable, that he has apologised and that he has eaten humble pie. I thought he was leading up to saying, “And therefore we will, if you don’t mind, put your amendments to one side and come up with our own words”. I thought he was leading up to saying, “Actually, you’ve got it right”. Because he also said that—I am not very good at writing quickly, so I may not have got it quite right—as a Minister, he needs to know to whom the Bill applies. But so do the professions: the farriers, the pig farmers and the chicken farmers, abroad or here, need to know, because this is all about bringing people here from another country. It is not about our sixth-formers wanting to know, if they want to become a professional, whether they should do an apprenticeship, go to university or go to a college of further education. It is not about that.

I think it was this Government who set up the Better Regulation Task Force, or maybe it was ours. Perhaps my noble friend Lord Hunt will help me.

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

We definitely had one of those.

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 am assured that we had one of those, so I cannot even blame this Government. But we do have a Better Regulation Task Force, so if there is no list of regulators at the moment, what on earth has that task force been doing in all the time that it existed under a Labour Government and for the 11 years that it has existed under a Conservative Government? That is exactly the sort of job it should be doing.

If we really need a list of regulators, so that young people can know whether to go to an apprenticeship or get their articles—that is what they used to be called, but I do not think they do those any more; the noble Lord, Lord Palmer would remember—I would understand that. But that is not what this Bill is about. It is about giving powers to a Minister to say to a regulator: “You will do something to accept people coming from another country to use the qualifications they have obtained”—whether by apprenticeship or by degree, or by sitting next to Harry or whatever—“to come here”, either because we have a skills shortage or because we are signing a deal with Australia, or wherever. That is what the Bill is about. It is not about helping our sixth-formers know where to get a job.

The problem is that if the Minister says that he needs to know to whom this Bill applies, so does everyone else. The regulators need to know and the professions need to know. If he cannot answer, and if his department, after all the weeks working on this, cannot answer, then relying on the idea that two gentlemen—there might be a lady, but I think there are two men in the assistance centre at the moment—are going to be able to define whether a profession or a regulator are covered shows that we are really in a very sorry position. The Minister’s answer makes the idea of a schedule even more important—he can have a definition as well, if he wants—so that the matter is clear. I only ask him to agree to go away and think about what we said about that.

The specific question I want to ask the Minister is this. He said that his colleagues have now contacted, or been in touch with, all the new regulators whose names appeared in the new list. Perhaps he could feed back to us, either in a letter or in some other way, what the responses were from those regulators—who were contacted only late in the day—and whether they were content to be there. I really urge him to think very hard about putting a very powerful Bill on the statute book without even his advisers, let alone us, knowing who is covered.

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 3:00 pm, 22nd June 2021

I thank the noble Baroness for her comments. Of course, it goes without saying that I always listen to the noble Baroness’s comments very carefully and take them away for consideration. The best advice I can give her about what this Bill is about and what is covered is to refer her to the Explanatory Memorandum on the Bill.

Photo of Baroness Noakes Baroness Noakes Conservative

Well, my Lords, that rather took my breath away—and doubtless the breath of everyone else involved in this Committee. I am sure that my noble friend the Minister will want to reconsider his advice to the noble Baroness, Lady Hayter, on that point and perhaps write to her.

I certainly want to thank all noble Lords who have taken part in this debate, which has been an extremely important one. I pay tribute to my noble friend Lord Moynihan for his ingenuity in bringing forward the very real issues related to British ski instructors under BASI, but I do not think that they quite fit in this group of amendments. Nevertheless, it was good to have those issues raised again.

I will deal with my two amendments first. My noble friend said that the amendments were not necessary. I do not think he was listening to what I said about the accountancy, auditing and other related professions such as insolvency practitioners, what the noble Lord, Lord Patel, said about the medical profession, or what the noble and learned Lord, Lord Hope of Craighead, said about the legal profession in Scotland. People who understand about professions think that this is important.

My noble friend said that this is not necessary. Of course, it is not necessary: the burden of my argument was not that this is necessary but that it is not desirable to require regulators who do not, by the nature of what they are doing, hold lots of information, to duplicate that information within their systems and on their websites. I hope that my noble friend will look carefully at what other noble Lords have said. I am happy if he ignores me, but if he would listen to what other noble Lords have said on these issues, he will see that there are some very real problems in there. The fact that a regulator might need to point to what is on a professional regulator’s website or to information that a professional body has, rather than the regulator, does not seem to me to be an impediment, nor does it muddy up his precious concept that this Bill applies only to professions regulated by law. I therefore hope he will think about that again before we get to Report, because otherwise I think I shall probably bring these back at that stage.

We obviously had a lot of discussion on the list, and it is clear that it is still very much a work in progress, as my noble friend the Minister has said. I was really quite surprised to find the concept of some form of regulation being equal to professional qualifications. I never thought that this Bill was about an activity being regulated, but that now seems to have come within the purview of this Bill. It has changed for me the concept of what this Bill is supposed to be about.

I do not think the list is complete. For example, under “Professional business services and administrators of oaths” the only regulator that is cited is the Institute of Chartered Accountants in England and Wales. Actually, I did not know that chartered accountants were administrators of oaths, but I will bet you a penny to a pound that there are many other professional bodies that are regulated for the administration of oaths and it is not just the ICAEW. So we might say that even this latest list is perhaps not worth the paper that I have printed it out on.

It is not just about the completeness of the list; it actually goes to the heart of this Bill. BEIS did not consult on this Bill or any policy proposals. All it did was issue a rather strange call for evidence, some of the replies to which were really rather thin, and it then worked out its own policy and put out a statement of policy at the same time that it published the Bill. We have been aware for some time that a number of the professional bodies have been behind the pace on whether they are covered by the Bill and how it will affect them. Some are not even particularly well aware of it. My noble friend said that his officials were now reaching out to all these other bodies that they are now starting to bring within the net of the Bill, but that does not take the place of proper consultation on what is in this Bill, how it applies to a number of professional activities and whether we actually have a solution that is robust and deals with all the practical issues that arise with respect to professional bodies. As we have heard, each of the major professions has its own set of idiosyncrasies, and that is quite likely to continue.

My own view, and I think that of the noble Baroness, Lady Hayter, is that we will need a list on the face of the Bill for all the reasons that she said a few minutes ago. It is not enough to have a definition-based approach, and I was glad that my noble friend said that he would consider that further. We will return to all of these issues again at Report, but for now, I beg leave to withdraw the amendment.

Amendment 45 withdrawn.

Clause 8 agreed.

Clause 9: Duty of regulator to provide information to regulator in another part of UK

Amendments 46 to 49 not moved.

Photo of Baroness Fookes Baroness Fookes Deputy Chairman of Committees, Deputy Speaker (Lords)

We now come to the group consisting of the question whether Clause 9 should stand part of the Bill. Anyone wishing to press this to a Division must make that clear in the debate.

Debate on whether Clause 9 should stand part of the Bill.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative

My Lords, I am delighted to have the opportunity to pose some general questions on Clause 9. Taking up my noble friend the Minister’s invitation to read the Explanatory Memorandum, I am looking at the relevant paragraphs as a starting point. Clause 9 is entitled “Duty of regulator to provide information to regulator in another part of UK”. First, how wide is this duty, and how many regulators does my noble friend believe will fall within the remit of Clause 9? Being more familiar with the law and the legal profession than any other, I am obviously aware that the legal profession has devolved regulators in other parts of the four nations, but how many professions fall into that category? My other concern is that my understanding is that surely this would be happening anyway, so is why Clause 9 needed in that regard?

If it is some consolation to the noble Baroness, Lady Hayter, I am also struggling to understand the background and the need for this Bill. Perhaps I have a different starting point to the noble Baroness: my starting point was that I was full of admiration and thought it was the right thing for the Government to recognise professional qualifications from EU countries, EEA countries and Switzerland, but I was hoping—as I have mentioned before during the passage of this Bill—that we would have reciprocal rights negotiated. I repeat my disappointment that, having shown them an open door, that was not reciprocated by the other nations to which this Bill applies.

Harking back to the last debate on the amendments in the names of my noble friend Lady Noakes and the noble Baroness, Lady Hayter, I am disappointed that my noble friend the Minister was not able to point to the Defra legislation regulating the profession of pig farming and chicken producing for the production of meat only. Given that we have left the European Union—everyone keeps telling me we have, and that we are in this brave new world where we no longer rely on it—how on earth is it that we are relying on the European Commission database in this regard? That seems completely perverse.

My noble friend referred to this as a “technical matter”, but I do not see it as just that. To me, it goes to the heart of this part of the Bill: which professions are to be regulated by law, particularly in the context of Clause 9, which causes a regulator to

“provide information to regulator in another part of UK”?

The Law Society of Scotland briefing states:

“The provisions in this clause seem reasonable for the most part. However, the terms of clause 9(3) and (4) raise some questions. Clause 9(3) provides that a disclosure of information does not breach ‘…(b) any other restriction on the disclosure of information (however imposed)’. This provision sits uneasily alongside clause 9(4).

Clause 9(4) provides that ‘Nothing in the section requires the making of a disclosure which contravenes the data protection legislation (save that the duty imposed by this section is to be taken into account in determining whether any disclosure contravenes that legislation)’.

These provisions lack clarity. The duty under clause 9 can be taken into account when considering if a disclosure contravenes data protection law. Why should it not simply be that compliance with clause 9 is a defence to an accusation that data protection law has been contravened?”

I realise that we discussed that earlier in the debate.

I will also look at the impact assessment and raise the issue of costs. Paragraph 131 of the impact assessment states:

“In total, we are aware of 32 regulators operating in different parts of the UK, which regulate 20 professions, which may be affected by the information-sharing provision upon commencement. These professions are care managers (adult care home, domiciliary, residential child-care)” and a whole host of others. It goes on to state:

“22 of the regulators are public sector, and we”— the Government—

“are treating the other 10 as businesses.”

It then states in table 19 that, at 2019 prices, the total annual cost to “collect & share data” is £2,380. For businesses, the

“Ongoing direct costs of collecting/sharing data to regulators treated as public sector”,

at 2019 prices, are deemed to be £4,759. However, the

“Transitional direct costs to regulators treated as public sector for collecting/sharing data” are deemed to be £38,076, and the

“Transitional direct costs to regulators treated as businesses for collecting/sharing data” are deemed to be £19,000-plus, at 2019 prices. Could my noble friend confirm that those figures are still correct, or will they now be revised as the indicative list keeps growing, as we have heard this afternoon?

Given those few remarks, I believe that it would be immensely helpful to take some time between the completion of Committee, which will hopefully be today, and Report, so that my noble friend the Minister can call and chair a round table—I hope that noble Lords may also find this appealing and wish to participate—with the regulators covered by Clause 9 before we reach Report. I would find it immensely helpful to know which professions we are dealing with and which will fall within the remit, and to understand entirely how they feel Clause 9 and other provisions in the Bill will relate to them.

Along with the other questions I have posed, I ask my noble friend to look favourably on the suggestion that we all have an opportunity to meet face to face under his chairmanship with the regulators in question, in order to have an idea of where we are heading with Clause 9 and how it relates to the rest of the Bill.

Photo of Baroness Noakes Baroness Noakes Conservative 3:15 pm, 22nd June 2021

My Lords, while I sought to amend Clause 9 in the last group of amendments to avoid unnecessary burdens resulting from it, I could not work out why it was needed. When I searched the documents accompanying the Bill, I could not find an explanation of why it is needed. It has not been needed, to date, for people who practise within the United Kingdom and I cannot conceive of the circumstances in which it would be needed going forward.

I ask my noble friend the Minister to explain specifically why Clause 9 is needed, rather than making generalisations such as, “If a regulator needs to have information, this facilitates the sharing of it”. What problem is Clause 9 trying to solve? That is what I am trying to get to the bottom of.

The impact statement relating to Clause 9 is pretty unsatisfactory. It seems to be based on one regulator alone answering a question, with some costs and benefits then being extrapolated from three or four regulators that answered a completely different question. This borders on the absurd, and I do not know how my noble friend the Minister managed to pluck up the courage to put his signature on the front page. If he can help me by explaining how he acquired the courage to sign off on the costs and benefits that accompany Clause 9, I am sure that that would be of value to the Committee.

Photo of Baroness Fookes Baroness Fookes Deputy Chairman of Committees, Deputy Speaker (Lords)

The noble Baroness, Lady Blake of Leeds, has been forced to withdraw, owing to a connection problem—I am sure that we can all sympathise with that—so I call the Minister to reply.

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 noble Lords for their contributions on Clause 9. In answer to my noble friend Lady McIntosh of Pickering, we are not relying on EU data to work out the coverage. As we discussed at length earlier, the EU data is incomplete, which is why it has been necessary to go back to departments and source regulators to try to complete it. On her point about round tables, I would be more than happy to do that, and I will ask officials to work out with me what series of round tables would be useful and whom they would involve.

In answer to my noble friend Lady Noakes, I will have another look at the impact assessment to make sure that it still fully represents the situation, and I will write to her and other noble Lords if I feel that it does not.

Several noble Lords have previously commented positively on the commitment to ensuring the sharing of information between equivalent regulators in the UK. Of course, I am in complete agreement with that; that is why I believe that this clause is so important. My noble friend Lady McIntosh of Pickering has indicated that she intends to oppose this clause, but I hope to convince her to support its inclusion in the Bill.

Let us remind ourselves that the clause’s purpose is to ensure that regulators in one part of the UK provide relevant information about individuals who have been recognised in that part of the UK to regulators of a corresponding regulated profession in another part of the UK, where required. This is important. Although existing voluntary arrangements work well in certain cases, in answer to the point made by my noble friend Lady Noakes, they do not always work well, I am told, and this Bill’s provisions will ensure consistency. They will give greater confidence to regulators that they can access necessary information where required and pass it on to the corresponding regulator to ensure that a professional is qualified to practise in that part of the UK. I do not think that the fact that it may work smoothly now with some regulators takes away the need for it to be made to work smoothly with all regulators.

To put a little more context around the discussion, noble Lords have spoken a number of times during debates on the Bill about certain professions falling within devolved competence. Some of the professions have different regulators in different parts of the UK, of course. If a professional whose qualifications are recognised in one part of the UK wishes to practise in another, and his profession is one of those that falls within devolved competence, it follows that the regulator in the second part of the UK will need to consider whether that professional is rightly qualified to practise in their jurisdiction. To that end, the regulator will need to access information about the individual’s qualifications, experience, fitness to practise and, if applicable, any evidence of malpractice. This is why, during the application process for recognition but also beyond—such as if a malpractice case comes to light following recognition—these regulators find themselves needing to share information.

As I have said, I understand and acknowledge that, in several cases, this kind of information sharing already takes place, such as in the teaching profession, where the General Teaching Council for Scotland, the General Teaching Council for Northern Ireland, the Education Workforce Council and the Teaching Regulation Agency all share information with each other. However, although there are existing sharing obligations in some sector-specific legislation, this differs between professions. It can even vary within professions. So, again in answer to my noble friend, this clause therefore brings consistency.

Let me be clear also that I do not believe that this is unnecessary red tape. It does not put an unreasonable duty on regulators. The information required to be shared in this clause is limited to information held by the regulator about the individual and would not require a regulator to procure information it does not already hold. The information sharing that this clause requires of regulators delivers many of the purposes of regulation that your Lordships’ House has highlighted during these debates, such as protecting consumers and public health, by making known to regulators those individuals who have not upheld our high regulatory standards.

My noble friend Lady McIntosh of Pickering brought to the attention of the House that legal services and systems of course have distinct natures in the different parts of the UK. She suggested that

“there are sufficient differences between these legal systems to warrant an exclusion from the provisions that create greater regulatory integration of other professions between the UK’s composite parts”.—[Official Report, 9/6/21; col. 1481.]

I want to be clear that this clause already recognises that professions are regulated differently in different parts of the UK. Indeed, its very purpose is not to undermine this but to ensure that information flows effectively when there is a need to do this. To exclude legal professions would not only confuse the scope of the Bill but exclude from this clause the range of legal regulators that for the most part regulate separately across the UK and will therefore require information on professionals whom they do not regulate.

I hope that I can assure noble Lords completely that legal regulators will still operate completely autonomously to make decisions about who practises within their jurisdiction. My officials have engaged closely with legal regulators and the Ministry of Justice in developing these proposals. The Bar Standards Board, the Solicitors Regulation Authority and the Chartered Institute of Legal Executives were content to be included in this clause specifically.

As my noble friend acknowledged, the Law Society of Scotland described the provisions in it as

“reasonable for the most part.”

Its specific concerns were around data protection—my noble friend Lady McIntosh reiterated that today—which we fully considered in an amendment that we debated on day 2, to the satisfaction of the House. The clause is explicit that the information required to be shared does not require any disclosures that would contravene data protection legislation. This should help the Law Society of Scotland in that regard.

The provision in the clause is required for the good reasons I have set out here, but the extent of concern around its potential impact is perhaps not. As I noted in my comments on Amendment 46—this is in direct response to my noble friend Lady McIntosh—we estimate that the number of corresponding regulators covered by this amendment is around 25.

Clause 9 will facilitate and support greater co-operation across the union and give confidence to regulators, professionals and consumers that professions are regulated appropriately and effectively across our United Kingdom. It gives a legal underpinning to co-operation that already works well in some cases but at the moment ultimately relies on good will. I hope that my noble friend will feel able to withdraw her opposition to this clause standing part of the Bill.

Photo of Baroness Fookes Baroness Fookes Deputy Chairman of Committees, Deputy Speaker (Lords)

I have received requests to speak from the noble Lord, Lord Hunt of Kings Heath, the noble Lord, Lord Fox, and the noble Lord, Lord Purvis of Tweed. I first call the noble Lord, Lord Hunt.

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

My Lords, I support the noble Baroness, Lady McIntosh, in her request for a round table with regulators between Committee and Report. That would be very helpful indeed.

I just want to ask the Minister about Clause 9. I remind the House of my membership of the GMC board. The Minister will know that, particularly in the health sector, there are regulators that currently regulate for the whole of the United Kingdom, but the devolved Administrations could decide to take over regulatory authority if they wished under the legislation that led to the devolved Administrations; that is particularly the case in relation to Scotland. That being so, will this clause apply to the interrelationship between the regulators in both countries? If the answer is yes, that makes the case for this clause because, clearly, one of the issues relates particularly to the National Health Service. Although it is run by four different government departments, none the less it has some UK-wide characteristics. The key one I believe is an ethos, but secondly there is the ability of staff in the NHS from the different countries to cross the border without any problem in relation to qualifications.

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 his question. Again, I repeat that I am very happy to hold round tables on this, as necessary.

On the noble Lord’s particular point, if a new separate regulator was set up that fell within the definition of a corresponding regulator for the purposes of this Bill, Clause 9 would automatically apply to it and the information sharing would happen in that way.

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

My Lords, I am getting more confused; I am Confused of Wherever. When we set out on our journey on this Bill, the Minister was clear that this was about the mutual recognition of qualifications between different regulatory countries and repealing certain aspects as a result of Brexit. Since then, in the debate on a previous group, the Minister talked about recruiting people into skills, which was not in the initial remit, and now we seem to have strayed firmly into the territory of the internal market Act. Most of the people in this Chamber sat through the happy hours of the then internal market Bill, which was there to do the things that the Minister has just talked about. It seems to me that we are conflating lots of different objectives, the reason being that, once again, if you read the title of the Bill, it can be almost anything you want, and, because of the Henry VIII powers, you can do almost anything you want. Things keep changing. The furniture keeps getting moved. So can the Minister please reassert the focus of this Bill so that I can perhaps knuckle down under his iron will and we can get through it?

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 3:30 pm, 22nd June 2021

I thank the noble Lord. When I earlier impolitely snapped at the noble Baroness, Lady Hayter, and said to read the Explanatory Memorandum, I was not saying that with any disrespect. This Bill, as we have just acknowledged, is about professional qualifications. It has a broad long title and one sees from the Explanatory Memorandum that it covers a number of matters that affect regulators and professional qualifications, additional to the mere mutual recognition of professional qualifications from overseas. You could easily say that Clauses 1, 2, 3 and 4, allowing recognition arrangements, are the heart of the Bill. But at the same time, as I said—and we have obviously not tried to hide this, as it is stated in the Bill—it covers various other matters in relation to regulators in the United Kingdom.

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

My Lords, the point from the noble Lord, Lord Fox, about the internal market Act remains valid. An entire part of that Act, Part 3, relates to professional qualifications. Under this Bill, a UK resident will be someone who, under a trade agreement, is entitled to practise. Under the internal market Act, that qualification is automatically recognised in another part of the UK, other than for those professions that are excluded. Can the Minister be very clear? Where does Clause 9 sit in relation to the internal market Act, given that that Act requires automatic recognition for a person’s qualifications in another part of the United Kingdom? Is it not just more bureaucracy, as has been suggested?

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 question. The way I see it is that the UKIM Act introduced a principle of automatic recognition of professional qualifications gained in one part of the UK, as well as provisions for the equal treatment of individuals who obtain their qualifications in a particular UK nation and those who obtain theirs in other parts of the UK. Clause 9 merely supports professionals as they seek recognition in another part of the UK by providing a legislative underpinning to information shared by regulators with their counterparts in another part of the UK. This is entirely about information sharing. It is not about the recognition of professional qualifications.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative

My Lords, I am grateful to noble Lords who have spoken at various stages of the debate. I want to clarify at the outset—and I am sorry if I was not clear—that I was in no way calling for an exclusion of the legal profession. I clearly stated that my experience is most familiar with the legal profession because I am a non-practising member of the Faculty of Advocates. I simply asked how many regulators will be covered by Clause 9, and my noble friend was kind enough to answer that he thinks 25 regulators will be covered by it. I asked for specific examples of where the Government think Clause 9 provides a solution to a particular problem.

I have to say that, from the questions raised by the noble Lords, Lord Fox and Lord Purvis, I am even more confused now than I was at the beginning of the debate as to the relationship of this clause to this Bill and the relationship of this clause to the internal market Act, which I sat through and contributed to on this specific theme. If anything, my noble friend has confirmed my understanding, and that of my noble friend Lady Noakes. I am most grateful again for her eloquence in stating her own view as to why Clause 9 is perhaps not necessary. My understanding is that the regulators are already communicating in the way that they should.

The noble Lord, Lord Hunt, made an argument as to why Clause 9 might be needed in one specific aspect, but I think that would have been covered in any event under the relevant provisions of the internal market Act.

I am grateful to have had the opportunity to debate this. I would just like to add a word of caution to my noble friend the Minister. The Explanatory Memorandum is not entirely clear in every particular. I refer to Clause 3 —not that we are debating that at the moment— and particularly paragraph 32 on page 6, which I think raises more questions than could possibly be answered.

This is something that I will keep under review for the next stage. I am not entirely convinced as to why Clause 9 is in this Bill, but, for the moment, I will not press my objection.

Clause 9 agreed.

Clause 10: Duty of regulator to provide information to overseas regulator

Amendments 50 and 51 not moved.

Clause 10 agreed.

Amendments 52 to 55A not moved.

Clauses 11 and 12 agreed.

Clause 13: Regulations: general

Amendment 56 not moved.

Photo of Baroness Fookes Baroness Fookes Deputy Chairman of Committees, Deputy Speaker (Lords)

We now come to the group consisting of the question that Clause 13 stand part of the Bill. Anyone wishing to press this to a Division must make that clear in debate.

Debate on whether Clause 13 should stand part of the Bill.

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

My Lords, in introducing this debate, I would like to apologise to my noble friend. I do not think that I was a member of the Better Regulation Task Force. I was the deregulation Minister in the Department of Health for a glorious period of four years, during which time we got rid of a few regulations—but I put through four major Bills to make up for that. Having done that, I was promoted, and I became a Better Regulation Minister in the DWP, the MoJ, Defra and finally DECC, where we were regularly hauled across to Downing Street to be given an absolute bollocking by the Prime Minister for why we were not doing enough to deregulate. Of course, for the other three months, we were called across and asked why we were not doing more to legislate to deal with a specific concern of Downing Street. Life does not change much. This Government talk a lot about deregulation but, my goodness me, they do not half like regulations when it comes to giving Ministers powers. That is really what I would like to explore in this stand part debate.

Clearly, we have had a very illuminating debate this afternoon. Despite the best intentions of the Minister, there is a sense of unease about the Bill, its rationale, the professions to be covered and its drafting. I say to the Minister that I would particularly note the comments from the noble and learned Lord, Lord Hope, when he talked about the unsatisfactory nature of the Bill. Coming from him, those were very telling comments indeed.

My own concern, as I have said, is about the extensive powers being given to Ministers throughout this Bill, and Clause 13 is an example. Clause 13(1)(a), taken together with the definition of legislation in Clause 16(1), means that the powers to which the Delegated Powers Committee has drawn the attention of the House in its report are Henry VIII powers. The powers conferred by Clause 5(2), Clause 6(1) and Clause 10(4) are also Henry VIII powers.

This is just one example of the increasing trend for Ministers to take powers unto themselves without adequate justification or explanation. I know that the Minister has sent a supplementary memorandum to the Delegated Powers Committee, and that we have had amendments to Clause 1, which have been very welcome. But it is noticeable that the Delegated Powers Committee, having considered that, says in its follow-up report that it none the less wishes to continue

“to press the Minister to provide … a much fuller explanation about the provision that could be made in regulations under clause 1; and”— here it seems to me is the nub—

“full justification for all such provision—including that which amends primary legislation—being made by statutory instrument instead of by primary legislation with its attendant scrutiny.”

I do not want to repeat what I said at Second Reading or in our earlier debates, but the report of the Secondary Legislation Scrutiny Committee must be seen in parallel with the reports of the Delegated Powers Committee. It complains about the number of pieces of legislation that have been introduced, partly in response to the pandemic but partly because of our withdrawal from the EU, which are extraordinary in the powers they give to Ministers. In this Bill so far, the Minister has very courteously defended the use of these Henry VIII powers on what I would call technocratic grounds—in other words, “We need the powers because they are demand-led, and demand will change over time.”

As we have heard today, it is not possible at this moment for the Government to state explicitly where these powers will be used or what organisations or qualifications they will apply to. The Minister has explained the process he is still going through, but you could make the same arguments for any piece of legislation. The question I put to him is this: are we not seeing a general trend towards continuously bringing skeletal Bills in which extensive powers are given to Ministers and of which Parliament has very little opportunity to really go into the details?

The Minister has relied on the need for this Bill in relation to the specific needs of the different regulators, but he has not responded to the constitutional issues raised by it. I have instituted this debate to allow him to do so.

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

My Lords, to add to what my friend, the noble Lord, Lord Hunt of Kings Heath, has said, I will concentrate mainly on Henry VIII powers, which apply to other clauses in the Bill, not just Clause 13.

Henry VIII clauses allow Ministers to amend or repeal provisions in an Act of Parliament using secondary legislation. I tried to look up what the laws might say about Henry VIII powers being adopted. For those not familiar with them, Halsbury’s Laws of England provides the following description:

“As a general rule, primary legislation amends other primary legislation but leaves subordinate legislation to amend itself; subordinate legislation frequently amends other subordinate legislation, but mostly does not amend primary legislation.

Powers conferred by statute cannot be assigned without statutory authority, and whether they can be delegated depends on the construction of the statute. It will be assumed by the courts that Parliament does not delegate legislative or other power unless it does so by express provision or unavoidable implication; and provisions conferring power will be construed strictly against the person on whom the power is conferred.

An Act of Parliament may contain a power to make subordinate legislation which in turn can amend the enabling Act or another piece of primary legislation. The clause of the Bill containing such a provision allowing primary legislation to be amended by secondary legislation is commonly termed a ‘Henry VIII clause’ and the power itself is likewise called a ‘Henry VIII power’”— terms familiar to us all. It goes on:

“The normal principles of statutory construction apply to Henry VIII powers but the courts will apply a restrictive interpretation if there is any doubt as to the scope of the power.”

The noble and learned Lord, Lord Thomas, who is speaking on this group, may wish to comment on that.

The House of Lords Delegated Powers and Regulatory Reform Committee has said:

“Henry VIII powers should not be inserted in Bills as a matter of routine, and any that are included should be fully explained and justified.”

For many of these clauses, including Clause 13, the scope and intent are not fully explained, although perhaps the Minister, as the noble Lord, Lord Hunt, has said, may wish to expand on that.

The House of Lords Constitution Committee report The Legislative Process: The Delegation of Powers had this to say:

“‘Henry VIII clauses’ are clauses in a bill that enable ministers to amend or repeal provisions in an Act of Parliament using secondary legislation. As secondary legislation is subject to a lesser degree of scrutiny than primary legislation, Henry VIII clauses are a significant form of delegated power.”

It concluded:

“This is an increasingly common feature of legislation which, as we have repeatedly stated, causes considerable concern. The Government’s desire to future-proof legislation, both in light of Brexit and the rapidly changing nature of digital technologies, must be balanced against the need for Parliament to scrutinise and, where necessary, constrain executive power.

Henry VIII clauses are ‘a departure from constitutional principle. Departures from constitutional principle should be contemplated only where a full and clear explanation and justification is provided.’ Such justification should set out the specific purpose that the Henry VIII power is designed to serve and how the power will be used. Widely drawn delegations of legislative authority cannot be justified solely by the need for speed and flexibility.”

Clause 13 is a key example of taking wide powers to amend even primary legislation. Hence I believe that Clause 13 should not stand part of the Bill.

Photo of Lord Davies of Brixton Lord Davies of Brixton Labour 3:45 pm, 22nd June 2021

My Lords, I fully support my noble friend Lord Hunt and the remarks of the noble Lord, Lord Patel. I will look at the wording of the clause; I might be slightly more inclined to consider giving the Government these powers if I understood better what the clause is getting at. I admire and sympathise with the parliamentary draftsperson; I understand that there is a massive amount of custom and practice, but what does the wording of this clause actually provide? We know what the Government are trying to do—take all the power—but we should at least try to provide something vaguely comprehensible.

Let us look at the wording. Subsection (1)(a) says that you cannot modify the legislation; under subsection (1)(b) you can

“make different provision for different purposes”; and under subsection (1)(c) you can

“make supplementary, incidental, consequential, transitional, transitory or saving provision.”

That is just a word salad. I assume that there are good definitions of all these words, which make them distinct, but I struggle to understand what they are.

Subsection (2) says that, under Section 8, there is no power to modify legislation. Does that mean that you can still make different provisions for different purposes under Section 8, or does the word “modify” encompass everything in one? Subsection (3) gives us even more words: “amend, repeal or revoke”.

I really hope we can get an understanding of what the real powers that can be exercised under this clause mean and what the distinctions are between all these different ways of expressing what to me—a lay person—seem essentially to be the same objectives.

Photo of Lord Thomas of Cwmgiedd Lord Thomas of Cwmgiedd Chair, Consolidation, &c., Bills (Joint Committee), Chair, Consolidation, &c., Bills (Joint Committee)

It is a pleasure to follow the noble Lord, Lord Davies of Brixton, and his analysis of Clause 13. I do not wish to add to it, because each of the words used in that clause is deliberately used by parliamentary draftsmen for purposes that, at the moment, I do not fully understand. My objection to the clause—this is why I support the noble Lords, Lord Hunt and Lord Patel—is that this is yet another piece of framework legislation with extensive Henry VIII powers, unclear as they are, as the noble Lord, Lord Davies, pointed out. There are occasions when one can see a justification for Henry VIII clauses or wide regulatory powers, but we have to ask about the context, and the context of this Bill is the professions, however broadly we define them. It is essential that professions be regulated under a structure approved in detail by Parliament, simply because we must be certain, first, of the quality of the professions, and secondly, of the scope of the restrictions. Thirdly, we must be certain that the professions are completely independent of government interference, given the reliance the Government place on them and the need for them to be steadfast in their independence and independent advice and statements to government.

The debate earlier this afternoon on Amendment 45 showed the fallacy of trying to do what the Government propose. It is only because this Bill—framework though it is and vague though it is—has been fully subjected to parliamentary scrutiny that some of the really difficult issues and the lack of preparation have come out. I dread to think what will happen when we move to looking at the way the Bill is to operate under regulations. It is clear, then, that the regulations will not subject to detailed parliamentary scrutiny. What can be worse than passing what I regret to say, with due deference to parliamentary counsel, for whom I have the highest respect and have had the pleasure of working with on many occasions, is a wholly unsatisfactory and poorly prepared Bill? But a draftsman is not to be blamed for that. The blame lies with those who give the draftsman instructions.

This is the kind of Bill on which Parliament must now take a stand. We should not be legislating without good primary legislation that sets out the detail, so that we are sure how the regulatory powers are to be used. We should curtail the use of these powers in relation to matters of great importance to the prosperity and health of the nation, and that is the independence of the profession.

I therefore warmly support the noble Lords, Lord Hunt and Lord Patel, in this regard. I have not added to what the noble Lord, Lord Patel, said about Henry VIII powers because I do not think I could have improved upon his eloquent explanation.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative

My Lords, first, it was churlish of me not to thank my noble friend the Minister for his enthusiastic embracing of the idea of a round table in connection with Clause 9; for that I am extremely grateful to him. I am also grateful that he asked us again to refer to the Explanatory Memorandum in relation to Clause 13, in addition to the remarks made by the noble Lord, Lord Hunt, in moving this amendment. The EM states that the powers under Clause 13

“may be used to modify legislation, including, where relevant, Acts of Parliament.”

Again, an Act of Parliament is being amended not by another Act, but simply by regulation.

Every Government like to govern by regulation and every Opposition would prefer things to be on the face of the Bill—that is just a fact of life to which I am becoming accustomed, having only served as a shadow Minister, not the real thing. But I would like to take this opportunity to ask my noble friend the Minister one specific question. Clause 13 as drafted is silent on any requirement to consult on these regulations. What consultation will there be, and at what stage might draft regulations be passed to the regulators as well as the relevant devolved Administrations? It is extremely important that they see them at the earliest possible stage.

Could my noble friend also put my mind at rest regarding an issue that the noble Lord, Lord Hunt, referred to in connection with Clause 9: the potential conflict between regulators of a devolved nation and regulators in another devolved nation or, indeed, the “mothership”—the English regulator? Might that situation arise under Clause 13? How would my noble friend aim to prevent that arising?

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

I am grateful for the speeches we have heard so far. I am a cosignatory to this amendment and I would like to associate myself completely with the comments of the noble Lords, Lord Hunt and Lord Patel. However, if they will excuse me, I would like to single out the comments of the noble and learned Lord, Lord Thomas of Cwmgiedd, which were a clear, clarion call as to what we need to do with this clause: take it out. If we do not, we will let a Bill leave your Lordships’ House with so much power vested in the Minister and the department.

We are still struggling with what this Bill is for. If, as the Minister says, the first four clauses are its beating heart, then if things change, these issues can be picked up in primary legislation. Secretary of State Fox was very clear: trade deals will be brought to Parliament and debated as primary legislation. If and when the Government renege on that, perhaps it would be a problem of their own creating, but to leave this Henry VIII clause in the Bill is to pass too much untrammelled power going forward. I am sure that every department wants that ability not to have to worry about what Parliament says when it is making regulations and primary legislation, but your Lordships are here to stand up against things like that. We should remember the words of the noble and learned Lord, Lord Thomas, as we move forward to Report.

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, my noble friend Lord Hunt referred to “unease” about the Bill. I would put it slightly stronger: the “worry” about the Bill is threefold. First, as we have been hearing, it is badly thought out, badly drafted and not subject to proper consultation. Secondly, it is powerful: it allows statutory bodies—ones we thought autonomous —to have their roles, structures and working practices altered, not at their request to a Minister but to comply with government policy. Thirdly, as we have just been hearing, these changes to statutory bodies will be imposed by secondary legislation.

Hence, it is entirely legitimate to ask questions about Clause 13. Again, it is about whether there are two parts to the Bill. I have been focused on the idea that the Bill is about recognising international qualifications, but we are hearing from the various trade talks that the Government will indeed want to add professional services into the mix. As we have said before, this will often be really welcome and will be prioritised, I hope, in some of the trade talks—but only where it is judged good for our professions and not where it is imposed in a deal for something else.

Today is the launch, as we know, of the negotiations with 11 countries belonging to the Comprehensive and Progressive Agreement for Trans-Pacific Partnership. One day I will learn to say that, so it rolls off the tongue, but I have not quite got there yet, and “the CPTPP” does not roll of the tongue either. The launch of those negotiations today highlights the possibility of liberalisation through the recognition of qualifications, encouraging this, particularly in legal services and engineering. As I say, this is excellent when it is in our interest, but only so long as the UK can continue to set its own regulatory frameworks and standards, and only where any changes are brought properly through legislation and not just via Henry VIII powers.

As the noble and learned Lord, Lord Thomas of Cwmgiedd, says, without a change to the powers in the Bill, this will allow for no detailed parliamentary scrutiny of the implementation of the secondary legislation that will fall as a result of those new trade deals. They could be in areas of really significant, independent professional standards, so there is real concern here about the powers that are granted to Ministers in Clause 13.

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, 22nd June 2021

My Lords, I note that the noble Lords, Lord Hunt of Kings Heath, Lord Fox and Lord Patel, have stated their intention to oppose that Clause 13 stands part of the Bill. The purpose of Clause 13 is to clarify and set out the parameters of the delegated powers in the Bill. Without it, there would be uncertainty about the limits of the powers in the Bill. Appropriate national authorities could have more, not less, discretion over how they make regulations under this Bill. For example, without Clause 13, the limits placed on the power to make regulations in Clause 10, which can amend the duty to provide information to overseas regulators, would no longer apply. The regulation-making powers could potentially be interpreted more broadly. On this point, the DPRRC observed that the power in Clause 10, which is described in Clause 13 as presently drafted, was an appropriate use of delegated powers. I do not believe that introducing uncertainty in the use of the powers under the Bill is the outcome noble Lords are seeking to achieve.

The debate, rightly and properly, has often returned to the DPRRC’s report on the Bill and its recommendations about the broad powers in the Bill. I respect and understand the points made by the DPRRC and by noble Lords during the Committee proceedings. I particularly noted the comments made by the noble Lord, Lord Hunt of Kings Heath, in this regard, supported by the noble and learned Lord, Lord Thomas of Cwmgiedd. The challenge we face, and I know I have said this previously, is that the existing legislative frameworks across numerous regulators include a mixture of primary and secondary legislation, so national authorities may require the ability to amend both primary and secondary legislation. I recognise the concern that noble Lords, including the noble Lords, Lord Patel and Lord Purvis of Tweed, and the noble Baroness, Lady Hayter of Kentish Town, have about the Henry VIII powers and the important comments made by the DPRRC. I will ensure that on Report I give as full an explanation as I can of why I believe those powers are necessary. I will not attempt to answer the legal points raised by the noble Lord, Lord Davies of Brixton, now. If I may, rather than doing it from the Dispatch Box, I will write to him, copied to other noble Lords present today.

I believe that if we are to move forward and put some greater coherence into the legislation surrounding professional regulators regulated by law in the UK this is the only route open to us. It allows us to provide for the implementation of international agreements of professional qualifications or to introduce routes to recognise qualifications from around the world in areas of unmet demand. The powers have also been designed to allow for flexibility to meet future needs. Of course I understand that noble Lords are worried about anybody at this Dispatch Box using the word “flexibility”. This is why I will have to explain as fully as possible how these powers will be used.

These future needs may be the terms of future trade agreements or changes in demand for professions in the UK. Clause 13, as drafted, allows appropriate national authorities to act expediently and in a proportionate manner through statutory instruments. These statutory instruments will of course be held to the rigorous scrutiny of the appropriate legislative process and will be informed by intensive engagement and, I can absolutely ensure my noble friend Lady McIntosh of Pickering, consultation with interested parties. Regulations made under this Bill—and I know this was a concern of the noble Lords, Lord Purvis and Lord Fox—will not cut across reforms to specific professions where they are also being taken forward. For example, DHSC’s consultation on proposals to modernise the legislation of healthcare professional regulators closed last week. If legislative changes are needed as a consequence of that reform programme, the intention is to use the existing powers under health legislation.

I hope that I have offered some reassurance about the intention behind the delegated powers in the Bill and I will, of course, continue to reflect on the points raised during the debate. I will see what I can do further to explain the rationale for these powers, but I do not believe that removing Clause 13 would address the concerns raised. I hope that the noble Lords feel able to withdraw their opposition to Clause 13 standing part of the Bill.

Photo of Lord McNicol of West Kilbride Lord McNicol of West Kilbride Deputy Chairman of Committees

I have received one request, so far, to speak after the Minister. I call the noble Lord, Lord Purvis of Tweed.

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 the Minister for indicating that we will have more information on Report, but we have been asking some questions of concern since Second Reading, so I think the very least the Minister and the Government can do before we start Report, and indeed before the deadline for amendments on Report, is to provide information. Otherwise, it is pointless once we are on Report.

My question follows up a question from the noble Baroness, Lady Hayter, on trade deals to which the Minister referred. In an earlier group, in response to a question I had about legal services in the Australia deal, the Minister categorical ruled out that there would be mutual recognition of lawyers in the Australia deal to try to allay my fears that it would override the internal market Bill. The attachment in the Minister’s letter to me, which is about the agreement in principle, has a specific paragraph:

“Legal services provisions which will both guarantee that UK and Australian lawyers can advise clients and provide arbitration, mediation and conciliation services in the other country’s territory using their original qualifications and title”.

If that is not a new agreement on professional qualifications that will have to be implemented by this legislation, in which the Minister is intending to using a Henry VIII power rather than primary legislation under previous commitments, how on earth can we trust any other commitments about intent from the Dispatch Box?

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, Lord Purvis, for that. I really believe that we have to wait until we see the detailed text of the Australia FTA, which will be subject to proper scrutiny. I think if there is one thing that the noble Lord and I agree on, it is the need for proper scrutiny of free trade agreements once the text is available. Trying to debate these free trade agreements purely on the basis of brief references to what they say is not something that I believe either he or I would feel is satisfactory.

Coming back to his earlier point, I will communicate with noble Lords as fully as can before Report on the matters to which he referred.

Photo of Lord McNicol of West Kilbride Lord McNicol of West Kilbride Deputy Chairman of Committees

I have received one further request to speak after the Minister, from the noble Lord, Lord Lansley.

Photo of Lord Lansley Lord Lansley Conservative

My Lords, I welcome what my noble friend had to say about returning to this issue on Report. When we do, given that, as the noble Lord, Lord Fox, said, it is our anticipation that future free trade agreements will be implemented in primary legislation, would my noble friend at that time also give us a guarantee that, where there is a choice between using primary legislation to make the necessary legislative changes to implement an international recognition agreement and using a power under this Bill, the Government will use the former to allow this House to scrutinise it in more detail?

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 that comment. As we know, these questions are difficult to answer in the abstract. What I can say is that, where primary legislation is needed, it will be used. I do not think that it is reasonable to ask me to define which aspects will be covered by primary legislation at this stage for agreements that have not yet been finalised.

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

My Lords, this has proven to be a very interesting debate, and it has moved us on a little. The noble Lord, Lord Patel, was very clear about why we are concerned about the use of Henry VIII clauses. He should take the noble and learned Lord, Lord Thomas, saying that he could not better his words as a pretty good compliment.

It seems to me that there are two things here. The first is the actual wording of Clause 13. My noble friend Lord Davies did a great service when he went through it. I reread it and, frankly, found it very hard to understand. When the noble and learned Lord, Lord Thomas, also says that he does not fully understand Clause 13, I suspect that that means that no one does, except perhaps one parliamentary counsel and possibly an official in the noble Lord’s department who issued the instructions. The fact is that this is poor legislation if it is almost impossible to work through what this clause actually means.

At heart, this is not just an academic debate. The noble and learned Lord, Lord Thomas, put his finger on it when he said that at the heart of this is the independence of our professions. One of the great successes that we in the UK enjoy, both in terms of prestige and financially, is the way in which many of our senior professions are viewed globally. The independence of those professions is one reason why that is so. That is what makes the Bill so important and why we are all rather worried about the current situation with it.

My noble friend Lady Hayter said that, if we leave it as it is, we are leaving any changes in the future without sufficient parliamentary scrutiny. The noble Baroness, Lady McIntosh, asked for draft regulations; I do not think that she received an answer to that, but it was a very important point.

The Minister has promised a full explanation on Report, which we will now get earlier, but he needs to come forward with changes to the Bill because it will clearly not get through after its current process through your Lordships’ House. There is a question for noble Lords generally about what to do with it.

The noble Lord, Lord Lansley, asked a pertinent question in relation to trade deals and the Government’s preference for primary or secondary legislation. The Minister answered him very carefully by saying that there would be primary legislation when needed, which is not quite the answer that I think the noble Lord was seeking. Of course, he had an earlier amendment that seeks to deal with this in one way; I have a sunset clause, which is another way of dealing with the problems in the Bill. There may be other approaches, but, between now and Report, we have to do something to protect the independence of our professions and Parliament’s role in scrutinising the provisions in the Bill.

Clause 13 agreed.

Photo of Lord McNicol of West Kilbride Lord McNicol of West Kilbride Deputy Chairman of Committees 4:15 pm, 22nd June 2021

We now come to the group consisting of Amendment 56A. Anyone wishing to press this amendment to a Division must make that clear during the debate.

Clause 14: Authority by whom regulations may be made