Moved by Baroness Hayter of Kentish Town
60B: After Clause 15, insert the following new Clause—“Saving: autonomy of regulators Nothing in this Act affects the autonomy of regulators to act in the interests of their profession, including but not limited to the ability to—(a) set and maintain professional standards.(b) set requirements to practise a profession. (c) determine who is fit to practise.(d) set requirements for having insurance. (e) set the training requirements (including requirements about gaining experience).(f) determine appropriate levels of flexibility in assessment practices;(g) determine to make a regulator recognition agreement.”
I apologise for my response during my noble friend Lord Hunt’s comments. Is it not wonderful that you learn something new every day? I had not realised that a Lords starter is not subject to the Parliament Act. I was just preparing something for a meeting I have tomorrow saying how the Bill was a Lords starter because that is normal for a noncontentious Bill. That is presumably why noncontentious Bills are put here.
However, with a final flourish, Amendment 60B is in my name and those of the noble Baroness, Lady Noakes, and the noble Lords, Lord Lansley and Lord Fox. It basically sums up the deep concerns we share about the Bill’s potential to undermine the independent standard-setting and public interest duties of what we have seen as autonomous regulators. As the Minister will recognise, everything in this amendment is what he promised in Committee. I am not suggesting that the department made up its position as the Bill went along. In this amendment we have simply brought things together to make the Government’s position, as the Minister has stated, much clearer and easy to read, so because of that, I think the Minister will have no issue at all with the amendment and will probably want to accept it.
As the amendment is all things that the Minister has been saying, I do not propose to rehearse all the arguments—he is familiar with all of them—save to say that a Bill to compel regulators either to enter negotiations with an overseas regulator or put in place a process for recognising the qualifications of applicants trained abroad to fulfil a promise made by the Government in a trade deal or to fill a skills shortage defined by a Minister is not compatible with a regulator’s independence if it is carried out by diktat rather than at the regulator’s request. I completely understand that if there is a deal and particular professions would like to have the mutual recognition of qualifications, they may find they do not have the powers and may come to the Minister saying “Look, our statute does not allow for it. Please can you do the necessary?” I quite understand that that power might need to exist but it should come from them, not from the imposition of the Minister.
The noble Baroness, Lady Randerson, has gone but, basically, I am going to suggest to the Minister the same as she did. He should do one of two things: add this amendment right at the start of the Bill on Report to provide the assurances that we are all demanding; or amend the Bill so that its powers to allow a Minister to amend a regulator’s freedom to consider that sort of mutual agreement occur only at the request of the regulator and not at the behest of a Minister. Or, of course, he could throw the Bill away and start again. I beg to move.
My Lords, we started Committee with an amendment in the name of my noble friend Lord Fox. It sought to establish at the very outset of the Bill the principle that nothing in it would have a negative impact on the autonomy of our regulators. I am glad that we are able to say—well, not quite “We told you so”, but certainly the fact is that we have learned little in Committee that has meant that the case is not even stronger, so reassurance needs to be provided in the Bill.
The powers in Clause 1 could be extensive when it comes to individual applications. The powers in Clause 4 could be forced on a regulator. The powers in Clause 3 could implement elements of trade agreements on regulators in all four parts of the United Kingdom with little scrutiny or accountability. In reverse order, on the trade side, during the debate on the previous group, the Minister sought to give the impression that the regulatory powers were needed to implement trade agreements and the professional qualifications elements of those agreements because, without those powers, we would not able to implement international agreements and therefore may need to act urgently. Clearly, I have not been following in Committee because, by definition, these regulators are statutory. If the Government’s statement that a treaty would be implemented by primary legislation is correct, that would be the vehicle—when that treaty is being implemented—to make changes to any of the legislation of those regulators. I simply cannot understand why a Henry VIII power is necessary for that.
On forcing the regulators to enter into mutual recognition agreements, if the Government are saying that this measure is purely enabling, there is a degree of merit in that. However, in Committee, we have heard that such enabling could go beyond and add extra pressure. In Clause 1, the powers on the application process are extensive. Whether we have a declarative statement at the outset or the protections that would be brought about by this amendment, there will have to be protections. If the Government genuinely want to avoid a situation where this Bill either must be paused or does not progress at all—my understanding is that the noble Lord, Lord Hunt, is absolutely correct that Bills starting in this place are not subject to the Parliament Act and that the Minister therefore has to be nicer to us—they must provide reassurance. That can happen now only through much greater detail about the organisations and regulators that will be impacted by this, as well as about certain areas of draft regulations along the lines of what the Government would really want to use these powers for. Without meaningful reassurances, this Bill has significant difficulties.
My Lords, I need to say very little, other than that I support what the noble Baroness, Lady Hayter, and the noble Lord, Lord Purvis of Tweed, have said. I know my noble friend has heard the strength of feeling in Committee, about the importance of regulator autonomy. I think there is agreement in Committee, though not necessarily yet with my noble friend the Minister, that something needs to be in the Bill to recognise that.
I hope that by the time we get to Report, if indeed there is a Report stage on this Bill, the Government will have taken ownership of the issue, because I am afraid that if they do not the House will.
My Lords, I have gone through the entire Committee session in complete agreement with the noble Baroness, Lady Noakes. Not a scintilla of difference has come between us all day. The fact that this amendment is signed by such a broad group of people indicates two things. One is that there is broad hope that we can get a Bill out of this process that we can live with. Also, this is the essential building block that has to start the process of creating a Bill that this House is much more comfortable with. As we have heard, the Minister has spoken time after time about the autonomy of the regulator. He cannot be faulted in the number of times he has said it. However, at no point is that autonomy echoed in the words of the Bill. That is what this amendment, very simply, seeks to do. As the noble Baroness, Lady Hayter, put it, it is to take the Minister’s words and to put them into the Bill. Without that insurance, as my noble friend Lord Purvis explained, that are plenty of ways that autonomy can be eroded and, indeed, set to one side.
My noble friend Lady Randerson, speaking to a previous group, explained that mutual recognition of qualifications takes years. It does not take years if it rides in on the back of a free trade agreement and overrides the rights and autonomy of our regulators. That is the fear that runs through all the people trying to correct this Bill. This amendment, or something that the Government pick up and make their own, is one way of starting the process of having the dialogue that will help the Bill make further progress.
My Lords, I thank the noble Baroness, Lady Hayter of Kentish Town, for her amendment, which sets out the autonomy of regulators to act in the interests of their profession. I note that the amendment is supported by my noble friend Lady Noakes and others. Of course, I commend their commitment to upholding regulator autonomy, and it will come as no surprise that I support their intent here. I was told before I joined your Lordships’ House that understanding the mood of the House was an important requisite if a Minister was to have a chance of even modest success in his role. I do not think that anybody who has listened to our debates on this matter could be in any doubt about the mood of the Committee on this topic.
I spoke at length on regulator autonomy on days one and two of Committee, saying, in particular, that regulatory autonomy is, and has always been, a priority in this Bill. Throughout the Bill’s development and following its introduction, the Government have engaged closely with a wide range of regulators—even the newly discovered ones—to make sure that their autonomy is upheld throughout the Bill. We will of course continue to do so, not just during the Bill’s passage but in its implementation. Subject to the usual channels, I believe that we may now have time available to us before the Bill moves to Report stage to make sure that process is fully and conclusively completed.
This is why of course we listened even before the Bill started its passage through the House, and tabled our amendments to Clause 1: to ensure, in that case, regulatory autonomy over decisions about who practises a profession and flexibility in assessment practices, in line with the rigorous standards set by regulators. I think noble Lords will recognise now that the overall effect of Clause 1, as amended, will be to ensure that regulators can use a full range of approaches to make their determinations about knowledge and skills, and it preserves their ability to set further conditions, such as those set out in the amendment. I am pleased that, through discussion, we were able to get both the General Medical Council and the Nursing and Midwifery Council to welcome this. The proposed new clause would also specify that regulators are able to determine whether to make a regulator recognition agreement. Perhaps I may humbly say that Clause 4 is already the means of achieving this.
Clause 3 ensures that, where the UK has international agreements on the recognition of professional qualifications, these can be implemented. The principle of autonomy will be a key priority in reaching these agreements. Of course, I understand the point made by the noble Lord, Lord Purvis of Tweed, that there will be a number of future free trade agreements that will require primary legislation to implement them. Equally, there may be some, for example the Swiss mobility agreement—not a full free trade agreement but one that acts within the spirit of the Bill—which may not need primary legislation. That is why it has been important to have this flexibility.
Agreements under Clause 4 are entirely regulator-led. The appropriate national authority may grant regulators the power only to enter into agreements, not to dictate what agreements to enter into. It is for the regulator to decide whether it wishes to enter into a recognition agreement with its counterparts overseas, and the terms of any agreement. I hope that I have conveyed through this, and my previous comments, that the Bill protects and values the autonomy of regulators. But of course, I go back to my earlier comments: the strength of feeling expressed by Members of this House has not gone unheard. I have listened carefully to the points made and I will continue to consider the importance of regulatory autonomy and to ensure that this is respected.
I would still highlight that the Bill, as drafted and amended by the Government, does give powers to regulators where they need them. If the Bill can be improved through scrutiny, who would not want it to be? However, the Bill is already consistent with the intended effects of the amendment, so I suggest that there is no need for an additional clause. I therefore ask that this amendment be withdrawn.
I thank the noble Lord and the noble Baroness, Lady Noakes, for their support for this. If I have understood the Minister correctly, he said, “Don’t worry about it because it’s all in the Bill, so it isn’t necessary”. But if it is all in the Bill, there is no harm in it. Given the concerns that we have had, I see nothing wrong with the reassurance, as I mentioned at an earlier stage. Sometimes, when things are tested, perhaps in courts afterwards, a very clear statement of intent and reassurance can work wonders—even more than a ministerial statement from the Dispatch Box. Therefore, it would not be right to say that it is not needed. If it is an extra bit, that seems to me a welcome addition.
However, I am very grateful to the Minister for saying that he has listened to everything we have said and will think about this. I will give away a small secret, just within these four walls: there is no date, as yet, in July for Report, so it may well be that we have until September, which should give the Ministers and their drafters plenty of time. It would obviously be better if any amendments that we agree with could come in their names, because they tend to be drafted better than ours, and it is also much easier to have a discussion and agree.
I will ask the Minister whether he is going to take the time to do it over the Summer Recess, which I think would be sensible. Please do not send us letters on a Sunday because we will all be on holiday—but any other update over the summer would be very welcome. I really do think that something like this is needed. Maybe because of the way it was put together, maybe because it was done in a hurry, and maybe because it had not been consulted on, there are worries that call out for some reassurance. I think that we will need to come back to this in some way. It may be right that it should be earlier in the Bill. It may be that it should be for Clause 3. Where it is best put is for discussion. The statement is an important one but, for the moment, I beg leave to withdraw the amendment.
Amendment 60B withdrawn.
Before I go on to the next group, it is perhaps worth saying to those who wish to speak after the Minister that the earlier they can inform us, the more likely it is that the message can be passed directly on. I am afraid that I was not able to call the noble Lord, Lord Lansley, as I had to apply the same rules that I applied to the noble Lord, Lord Purvis of Tweed, for the same reason.
We now come to the group beginning with Amendment 61. Anyone wishing to press this or anything else in this group to a Division must make this clear in the debate. I call the noble Lord, Lord Palmer of Childs Hill.
Clause 16: Interpretation