House of Lords
Wednesday 9 June 2021
The House met in a hybrid proceeding.
Prayers—read by the Lord Bishop of Carlisle.
Arrangement of Business
My Lords, the Hybrid Sitting of the House will now begin. Some Members are here in the Chamber, others are participating remotely, but all Members will be treated equally. I ask all Members to respect social distancing and wear face coverings while in the Chamber, except when speaking. If the capacity of the Chamber is exceeded, I will immediately adjourn the House.
Oral Questions will now commence. Please can those asking supplementary questions keep them to no longer than 30 seconds and confined to two points. I ask that Ministers’ answers are also brief.
My Lords, the Government are committed to enabling men with historical convictions for decriminalised homosexual conduct to apply to have their convictions disregarded. We are actively exploring whether further offences can be brought within the scope of the scheme to enable more people to benefit from it.
My Lords, have the Government noted that exactly 10 years have passed since the disregard scheme was announced to “right an historic wrong”, as it was described at the time, so that gay men convicted of or cautioned for offences that have been swept from the statute book—and indeed should never have been there in the first place—would no longer be stigmatised by having to declare such convictions and cautions? I thank my noble friend for her reply and pay tribute to all that she has done in connection with this issue, but is it not something of an affront to gay people that four and a half years have elapsed since she gave a commitment to extend the scheme—not least because the Home Office has long been in possession of draft regulations prepared by my friend Professor Paul Johnson at York University, who is the greatest expert in the country on the matter? Surely those regulations ought to have appealed strongly to a Government who resort so frequently to secondary legislation, particularly at a time when Scotland and Northern Ireland have wider disregard schemes than England and Wales.
My noble friend will know that I have noted what he said and that we remain committed to doing all we can to right this historic wrong. I pay tribute to my noble friend and others who have been so committed, and I pay particular tribute to Professor Paul Johnson for his expertise. It is important to note that any additional offences must meet the suitable legal criteria to be eligible to be disregarded.
My Lords, after the 1967 Act, remaining anti-gay laws were policed even more aggressively than before. In his research, Peter Tatchell estimated that 15,000-plus gay men were convicted in the decades that followed 1967. Lives were ruined for responding to the advances of an attractive policeman. Surely it is time for the Government to act. Why is the Home Office trailing behind Scotland and Northern Ireland, which have, as the noble Lord referenced, wider disregard schemes, leaving us behind? Why cannot we act now?
My Lords, I wish it were that simple. I want to acknowledge what the noble Lord has said: not only did men post-1967 face equal difficulties and persecutions for their sexuality but some of them have died—that is the tragic thing. This is complex work and we need to consider the challenging legal and practical issues in extending the scheme, but I do not want that to translate as our commitment being any less diminished.
My Lords, not only do the Government appear to be dragging their feet on this issue but there appears to have been a policy shift since Liz Truss became Minister for Women and Equalities. When the noble Baroness was Minister for Equalities, did she ever feel that the UK was focused too heavily on so-called fashionable issues of race, sexuality and gender? Could this explain the Government’s reluctance to take action on this important issue?
As I said to the noble Lord, Lord Collins of Highbury, our commitment to this has not diminished, despite the fact that it has taken time. When I was the Equalities Minister I was, and remain now, committed to equality, and the Government remain committed to equality. I am very proud of what the Conservative Government have brought forward to advance equality.
My Lords, I am glad that the Government have chosen to celebrate the life and work of Alan Turing, for which we must all be grateful. But I think he would be disappointed to find the somewhat hypocritical stance that he is being celebrated while other people are still suffering from the stigma of this legislation. On a second point, I would prefer to see the word “disregard” changed to “quashed”.
As a Mancunian, I have every praise and admiration for Alan Turing, who was one of many LGBT people to change the world. We do not want people being persecuted—that is precisely what we do not want—but we do not want unintended consequences from the laws that we make.
My Lords, it has been four and a half years and the work has been done, and we must move forward on these issues which blight the lives of women and men. Professor Paul Johnson has sent my Private Member’s Bill to the Home Office, which was not drawn in the ballot. It deals specifically and systematically with these pardons and disregards. I therefore urge the Minister, for whom I have the highest regard, to move on this issue and publish a timetable for the regulation. Otherwise, the Home Office could join the growing narrative from the Government which might be described as stoking a cultural war against the LGBT+ community, or, at best, a callous disregard for them.
I thank the noble Lord, for whom I also have the highest regard; we have worked very constructively over the years. I have his Bill in my pack and look forward to reading it. He is absolutely right to say that this is about women and men—it is equality before the law that is so important. On the timetable, I know that we are doing a review of the offence of soliciting and intend to publish the outcome during the summer. The noble Lord will also know that two Bills are coming up, and I am trying to gauge whether the timetable for those would be in line with the outcome of the review.
My Lords, the Minister has from the Dispatch Box used the words that we require “suitable legal criteria”, saying it is “complex” and not that “simple”—yet two parts of the United Kingdom have laws enacted on this issue on a wider disregard scheme, and in 2017, Professor Paul Johnson gave a full list of draft regulations, including legal definitions. Will the Minister please spell out in more detail what else the Home Office requires to get this Bill through, rather than, as it seems to many of us, dragging its feet?
My Lords, we are not dragging our feet. We are working with Paul Johnson and others to try to ensure that regulation provides for that equality before the law. We are going through offences which go back decades to see whether they are in line with the disregard and considering offences that people bring to us to see whether they are in scope as well.
Sudden Adult Death Syndrome
To ask Her Majesty’s Government what assessment they make of avoidable deaths from Sudden Adult Death Syndrome in the United Kingdom each year; and what steps they are taking to introduce screening to reduce such deaths, in particular for those involved in sporting activities.
My Lords, in 2019, sudden adult death syndrome was a factor in 1,511 deaths. The UK National Screening Committee found insufficient evidence to support a national screening programme. However, where a family member has cardiac disease, relatives at risk are offered screening for potential causes of sudden adult death syndrome. In addition, the NHS is focusing on fast and effective action using automated external defibrillation to save the life of anyone suffering from cardiac arrest.
I thank the Minister for her Answer. As to the absence of evidence, there is a good deal of evidence from abroad that deaths could be reduced by screening. That has been building as a case for many years and parliamentarians have acknowledged it. There is an APPG on cardiac arrest; there have been debates, including an Adjournment debate; Andy Burnham has moved for this; and there is a general feeling that something must happen here to acknowledge the evidence that exists and reduce young people’s deaths. Will the Minister set out a timetable for when this can move forward to further action, please?
My Lords, I am aware of the evidence in the UK and abroad, and the noble Baroness may be referring to a study from Italy. Similar results have not been found in other countries, and the UK’s assessment of the evidence is as I set out in my former Answer. More work is being done, in particular to improve access to screening for those family members where someone has suffered from sudden adult death syndrome or is otherwise shown to be at risk.
My Lords, does the Minister concur with the Sudden Arrhythmia Death Syndromes Foundation that for the 50% of SADS deaths that show no prior warning signs, rapid access to automatic external defibrillators—AEDs—is the only way to prevent many tragedies occurring? If so, do Her Majesty’s Government have any plans for expanding the number of AEDs available throughout the country, especially at sporting venues?
My Lords, the Government do agree with that assessment and are putting in place, with partner organisations, a programme of work not just to expand the number available but to improve co-ordination, so that emergency services know where those locations are and can direct members of the public so that they can use that equipment where necessary.
My Lords, as president of the small sudden deaths in epilepsy charity SUDEP Action, based in my former constituency, I know that sudden deaths from epilepsy have also risen during the pandemic. Part of the issue is how these deaths are reported and recorded. It is the second most common cause of preventable death and there is a lack of protocols for use by healthcare professionals, particularly to help young people manage this condition. Will the Minister ensure that this issue is looked at and that we increase our attention on the tragedy of sudden death caused by epilepsy in young people?
My Lords, the Government are committed to securing the best possible treatment and care for people with epilepsy, and to raising awareness of sudden deaths in epilepsy. Guidance has been made available from the National Institute for Health and Care Excellence that sets out recommendations for clinicians to this end, including referral to bereavement services for the families of those affected. NHSEI has also developed an epilepsy “right care” toolkit with leading charities in this area.
I declare that I am a patron of CRY and that my son is a cardiologist. Given that artificial intelligence automated screening could decrease the burden on screening, but must not dissuade participation in sport, and that sudden cardiac death can occur at any time and anywhere, how will the Government focus on the delivery and maintenance of defibrillators in sporting and all public venues, and ensure that CPR is taught to all athletes and coaches, all students in education, and all those working in public places? Will this be considered to be mandated?
I reassure the noble Baroness that awareness of CPR is now part of the national curriculum in secondary schools for teenagers. Other work is also being done with partner organisations such as the British Heart Foundation and GoodSAM to improve the co-ordination of first responder activities and defibrillation skills for adults and passers-by who may need to respond in that kind of situation.
My Lords, I found the websites of SADS UK, the British Heart Foundation and CRY useful in the information, advice and practical support they offer people about the various conditions which cause sudden adult death. Are these important organisations being supported by the NHS and the Government, and in what way? Secondly, can the Minister inform the House whether any research is being carried out into age, gender, race or other characteristics that will shed light on which groups are most vulnerable and carry the genetic disposition to SADS?
Perhaps I may reassure the noble Baroness that the NHS engages with a number of charities involved in SAD, including the sudden arrhythmic death syndrome charity SADS UK. That organisation in particular is helping scientists and clinicians understand and combat a rare condition called “short QT syndrome”, which is associated with an increased risk of sudden cardiac death. On other factors that may put people at an increased risk, gender is one that seems to increase the risk for men rather than women. However, I am sure that there is further work and research being done in this area.
My Lords, will the Government undertake that when all elite-level athletes go through routine medical checks, they are actually checked for this condition? That would not only improve the chances of survival for anybody who has this but would widen general public awareness.
My Lords, that is not the current position of the Government. The effectiveness of pre-participation screening for athletes is not proven by clear-cut evidence; there is mixed evidence out there. Its potential to reduce deaths is likely to be low because of the poor detection rate. There is also the counterbalancing potential for psychological harm due to the potentially high number of false positives, which could be particularly debilitating for professional athletes and those whose lives are centred around sport and participation.
Every time this syndrome strikes, it leaves a terrible situation for all those connected to the victims, including sometimes feelings of guilt that somehow in individual cases it could have been avoided. Does my noble friend think that sufficient research is being carried out, especially in the field of genetic causation, and what more could the Government do to support and enhance such work and research?
My Lords, there is an opportunity now, with the implementation of the genomic laboratory hubs across England, to explore the systematic introduction of post-mortem genetic testing for SAD, which could vastly help us in this area. A programme was launched last year between NHSEI and the British Heart Foundation to do that, and seven sites are developing pathways to improve testing in this area.
My Lords, in Northern Ireland, following the unexpected deaths of several young people, an independent screening clinic was established at Ulster University and launched by CRY. What discussions and inter-exchange of ideas have taken place with CRY, and what efforts have been made through Whitehall and the devolved Administrations to have dedicated specialist clinics for this purpose? Maybe the Minister could outline the level of discussions.
My Lords, as the Minister noted, the statutory guidance for PHSE education now includes teaching secondary school students life-saving skills, including CPR. But can she say what support is provided to schools to ensure that it is taught accurately, especially when there is no school nurse or staff member qualified to do so? As it is guidance only, are the Government monitoring the number of schools that are actually teaching this content within PHSE?
Criminal Trials: Intercept Evidence
My Lords, I first apologise to the Lord Speaker because I stood while he was standing—we are all grappling with masks and other things at the moment.
We continue to assess whether the conclusions of the comprehensive review of 2014, which of course the noble Lord, Lord Beith, oversaw, remain valid. It is not possible to find a practical way to allow the use of intercept evidence in court. The Government will keep this position under review.
My Lords, hundreds of arrests have been made because of the French police’s hacking of the EncroChat system used by criminal gangs, and more as a result of criminal use of the ANOM communication system, which was secretly controlled by the FBI. A recent Court of Appeal judgment means that much of this material could be used in evidence in UK courts. Does that not make the conclusion of the review to which the Minister referred now seem a little dated? The context has significantly changed, some of the obstacles that we foresaw in being able to make the change have been overcome, and maybe it is time to look again at it.
My Lords, this is quite a complex area. The information was obtained using an equipment interference warrant rather than an intercept warrant, and there are checks and balances within the criminal justice system to ensure that one route is not used in order to facilitate another outcome. We remain of the view that the review undertaken by the noble Lord is still valid.
My Lords, since intercept evidence is allowed in virtually every EU and common-law country, will the Government seek the advice of the Intelligence and Security Committee so that Parliament can decide, following the publication of its advice, the weight of the objections of the security services and inconsistencies where such evidence is allowed, in other countries, prisons and bugs?
My Lords, surely there must be some circumstances where intercept evidence could be used without compromising operational integrity, such as those mentioned by my noble friend Lord Beith. How many individuals could have been prosecuted if intercept evidence had been allowed instead of them being subjected to terrorism prevention and investigation measures, or TPIMs, at considerable additional cost—both financial and to the reputation of British justice?
My Lords, the question of how many individuals could have been prosecuted is very difficult to answer, given that the evidence was not used. I do not know if there are figures that I can give to the noble Lord. I want to make the point that we do not actually have an objection in principle to the use of intercept material as evidence, and we have tried to find a practical way to allow the use of intercept evidence in court. As I said, though, successive reviews have found that it is just not possible.
My Lords, when I was Secretary of State for Trade and Industry, something that I proposed had the unexpected effect, unknown to me, of affecting the way in which the security services carried out surveillance. I was therefore given a briefing on the different ways in which they did these things, some of which were well-known to me and the public but others were not. Surely it would be possible to allow the security services to decide which methods they are going to reveal where they are using techniques that we do not want criminals to know about.
As I have said to other noble Lords, the costs and risks of using intercept as evidence are disproportionate to the potential benefits, and therefore we have not proceeded to intercept as an evidence model. However, we are not closed to the idea and will keep the position under review, and I totally acknowledge what my noble friend has said.
My Lords, the extraordinary success of Operation Trojan Shield has netted thousands of criminals in a hundred different countries, but is the Minister convinced that this country will be able to get the same level of successful prosecution as a result of that operation? Can she tell us quite why it is that intercept evidence that is deemed to be stored should be acceptable whereas intercept evidence that is in transmission is not?
The noble Baroness asks a very interesting question, which I am sure we will have debates on in the months and years to come, about the difference between the two. Fundamentally, there is a huge amount of other evidence that one would need to consider for an intercept warrant that makes it prohibitively costly, and therefore we just do not use it.
My Lords, following the question from the noble Baroness, Lady Wheatcroft, in the EncroChat case the Court of Appeal analysed the distinction between intercept evidence where actual transmission has been intercepted and evidence that has been stored and harvested following transmission. That distinction is arcane and inconsistent. Can the Minister explain the difference in principle? Since we agree on the need for a warrant system to authorise the use of intercept evidence, should we not legislate for one consistent requirement for warrants to intercept actual transmission and warrants to harvest intercept evidence post transmission?
We would need a few hours to have that discussion so, thankfully, given that the Lord Speaker’s direction is to keep my answers brief, I will not go into that. As I have said, there are checks and balances within the criminal justice system, as the noble Lord well knows, that safeguard one route from being used in order to achieve another.
It has come to the attention of a few Members of this House that MI5 keeps files on them. If the police or security services chose to intercept our communications, would anyone in Parliament have the power to authorise or not authorise that?
I thank the noble Baroness for giving me notice of the fact that she was going to raise this issue; it is not really part of this Question, but that never stops her. As I said, we do not use intercept warrants as court evidence. In terms of who would authorise what, the Home Office would authorise its various agencies, the Foreign Office its agencies and the Northern Ireland Office its agencies, so it would be for those Secretaries of State to authorise those warrants.
My Lords, the interception of telephone calls or voicemails is normally an egregious breach of personal privacy, and some tabloids have paid the penalty for that. I declare an interest as a victim of hacking. However, that is different from law enforcement using intercept methods, properly regulated by the UK police and security authorities. Does the Minister agree that such techniques are essential to facilitate the gathering of essential evidence, as exemplified, as has been mentioned, by the FBI sting yesterday using the ANOM app, leading to over 800 arrests worldwide, and that, provided that it is used and regulated properly by the law, it is a legitimate tool protecting our citizens from organised and violent criminals?
That is a very good question to end on. The noble Lord raises the huge benefit of what the NCA has achieved through operations like Venetic. I will read out the figures: 746 individuals arrested and £54 million, 77 firearms and over 2 tonnes of drugs seized. That is an incredible achievement that goes towards keeping our citizens safe.
Passport and Visa Measures
To ask Her Majesty’s Government what plans they have to review their decision not to exempt young people from European Union member states on school trips to the United Kingdom from the new passport and visa measures due to come into force on 1 October.
My Lords, EU, EEA and Swiss students are now subject to the same rules as students from the rest of the world. They may come under the visitor route or as a student, but from 1 October they will require a passport like everyone else and we do not plan to review this decision.
My Lords, what a depressing advert for global Britain. Thousands of schoolchildren from Europe will not now be visiting our country since they will no longer be able to use an EU or EEA ID card. There is no doubt that the requirement for passports and, in some cases, visas, will put such trips beyond the capacity of many schools. It is short-sighted, petty and mean-spirited, and it means that, without these cultural exchanges with young people in Europe, we will not have the long-term economic and cultural links we have enjoyed for so long. The Minister says it will not be reconsidered; I ask her to reconsider this really outrageous decision.
I reiterate that we will not be reconsidering, but I do not agree with that assertion that thousands of children will not be visiting. What about the children from the rest of the world who visit this country? Are they in a different category? We are treating everybody in exactly the same way. Of course, there is always the option to get collective passports for groups of children issued under the 1961 Council of Europe treaty.
My Lords, the United Kingdom is getting a bit of a reputation for doing everything to annoy Europe. The Minister speaks about other countries, but all the nearby countries are in the European Union. All we are doing is making people feel unwelcome. We are tearing up something which does not need to be torn up. The Minister says that she will not reconsider, so I will not ask her to, but I will ask her to reflect on the damage this is doing to Britain’s reputation outside this country.
My Lords, I raised this issue during the passage of the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020. The Government then argued that this will be a security risk, which I think is rather far-fetched. I absolutely agree with the noble Lords, Lord Hunt and Lord Balfe, that this is going to dent our reputation and does not in any way promote global Britain. I argue that this is very short-sighted; I think that it will damage our economy and education institutions, and lead to an end of short-term school trips. I agree with the noble Lord, Lord Balfe, that the fact it affects the rest of the world is not important—it is the question of our relationship with Europe. It is important that we do not in any way dent our soft power.
My Lords, I am mystified. Will the Minister encourage her colleagues to look again—but not in the way that the noble Lord, Lord Hunt, asks—at making it so that children from all over the world conform to the arrangements currently in force for children in Europe? That is another way of solving the problem. I note that 750,000 children from Germany and France alone have come on an annual basis under the present arrangements. Is she convinced that she could persuade the entertainment, tourism, heritage and cultural institutions of this country looking for a post-Covid boost that the refusal to reconsider this is logical or legitimate?
My Lords, this attempt to elide European school students with the rest of the world really will not wash because, as well as talking about being ambitious for global Britain, the other favourite slogan of the Brexiter Government, is “We may have left the EU but we haven’t left Europe”. This restrictive policy towards European school students is narrow-minded and bad for Britain. One of the advantages of the present system is that no child is left out, so those who cannot afford a passport or are non-EU citizens and would need a visa are included. Do this Government really want to penalise schoolchildren and damage our reputation and, indeed, our economy?
I think that many in the House will be extremely disappointed with the responses the Minister has given. Last year, noble Lords raised this issue, warning of potential problems. Given that these have now arisen, can the Minister tell the House how many EU schoolchildren she estimates will be affected by the changes? Is she not concerned in the slightest that barriers to visiting and learning in the UK will give a negative impression of our country to those young people and their families—one that might, in time, be to the detriment not only of our economy but of our cultural and global reputation?
The noble Lord will not be surprised to know that I do not agree with him. In terms of numbers, it is very difficult to prove a negative: for example, how many children will not be able to visit because of the system we have. One might also about children who are currently outside of the EU. I mentioned collective passports, which are a route for groups of children to come to this country and are, I think, very affordable.
My Lords, it is not a level playing field; working- class kids from the poorest communities in the neighbouring countries which are the cheapest to get here will lose out. Middle-class and rich kids will get here whatever country they are from; that will continue. It will be the poorest kids from a variety of backgrounds, like the mining communities where I brought kids over from different countries to meet kids in our country. They are the ones who will lose out because the disproportionate increase in costs will not be borne by their parents. The poorer kids will lose from this policy, whether they are in Norway, which is not in the EU, or an EU country. The Government should think again.
My Lords, I know that many schools have arrangements. When my children were at school there were children whose parents could not afford to send them on school trips, of which there were many, or perhaps to another country. There are generally provisions within schools to help out in such situations.
My Lords, this is not a matter of upsetting the European Union, but a matter of geography, history and educational connectivity and is about the reputation of our country. You can get into this country if you have £2 million whatever your circumstances, never mind whether we really want you or not, but you cannot come here under present arrangements from 1 July with a school party on the existing provisions if you come from those countries that historically we have welcomed. Surely the Minister, who is the conduit rather than the cause of our concerns, might back to the Home Secretary and say: “Yes, I know there’s a policy, which is to prevent as many people as possible coming to the United Kingdom, but at some point, does this not have a major detrimental effect down the line when people who were forbidden to come under existing arrangements remember?”
It is not a question of forbidding people to come to this country, nor one of not welcoming children from all over the world, but it is a situation where the EU and the rest of the world are now all being treated the same way. Collective passports are in place and I am sure that there are arrangements within many schools to help children who cannot afford them, but we are not forbidding them. I just want to correct the noble Lord on that.
Arrangement of Business
My Lords, with the leave of the House, I will say a few words about the Division which we could not run yesterday on the Town and Country Planning (General Permitted Development etc.) (England) (Amendment) Order 2021. We had originally hoped to run that Division today, but although the system was restored yesterday afternoon, the Parliamentary Digital Service is still investigating the root causes of yesterday’s technical problems, so we have agreed to defer further the Division until tomorrow after Oral Questions, so that today’s test Division, which appears to have been successful, can be thoroughly analysed. We will have the vote, or votes, tomorrow, after Oral Questions and any PNQ, at around 1 pm. It is already on the Order Paper for then.
Coroners (Determination of Suicide) Bill [HL]
A Bill to require the coroner or jury at an inquest to record an opinion as to gambling addiction and any other relevant factors in a case of death by suicide; and for connected purposes.
The Bill was introduced by the Bishop of St Albans, read a first time and ordered to be printed.
Digital Economy Act 2017 (Commencement of Part 3) Bill [HL]
A Bill to bring into force the remaining sections of Part 3 of the Digital Economy Act 2017.
The Bill was introduced by Lord Morrow, read a first time and ordered to be printed.
Immigration (Collection, Use and Retention of Biometric Information and Related Amendments) Regulations 2021
Immigration and Nationality (Fees) (Amendment) Order 2021
British Nationality Act 1981 (Immigration Rules Appendix EU) (Amendment) Regulations 2021
Motions to Approve
Commons Urgent Question
The following Answer to an Urgent Question was given in the House of Commons on Tuesday 8 June.
“The Ajax family of vehicles will transform the British Army’s reconnaissance capability. As our first fully digitalised armoured fighting vehicle, Ajax will provide crews with access to vastly improved sensors, and better lethality and protection. Main gate 1 approval was granted in March 2010. Negotiations with the prime contractor to recast the contract were held between December 2018 and May 2019. The forecast initial operating capability, or IOC, was delayed by a year to 30 June 2021—later this month—at 50% confidence, with 90% confidence for September 2021.
Despite the ongoing impact of Covid, we have stuck by that IOC date, but of course, it remains subject to review. By the end of next week, we will have received the requisite number of vehicles to meet IOC. The necessary simulators have been delivered and training courses commenced. These delivered vehicles are all at capability drop 1 standard, designed for the experimentation, training and familiarisation of those crews that are first in line for the vehicles. Capability drop 3, applying the lessons of the demonstration phrase, is designed for operations.
We remain in the demonstration phase and, as with all such phases, issues with the vehicle have emerged that we need to resolve. We were concerned by reports of noise issues in the vehicle. All personnel who may have been exposed to excessive noise have been tested, and training was paused. It now continues with mitigations in place as we pursue resolution. We have also commissioned independent vibration trials from world-class specialists at Millbrook Proving Ground, which should conclude next month.
I assure the House that we will not accept a vehicle that falls short of our requirements, and we are working with General Dynamics, the prime contractor, to achieve IOC. Similarly, we are currently working with General Dynamics to ensure that we have a mutually agreed schedule for reaching full operating capability. That is subject to an independent review, which we have commissioned. This is an important project for the British Army, delivering impressive capabilities and employing thousands of skilled workers across the UK. We look forward to taking it into service.”
My Lords, this is my first time at the Dispatch Box as Labour’s defence spokesperson, and I look forward to debating these important matters with the Minister.
Ajax was set to be delivered in 2017 but, despite £3.2 billion being paid out, only 14 vehicles have been delivered—light tanks that cannot fire while moving—and personnel have been made so sick that the testing has been paused. The Defence Committee called this
“another example of chronic mismanagement by the Ministry of Defence”.
As the problem cannot be fixed before it has been identified, as we heard in the other place yesterday, when does the Minister expect to know exactly what is causing the problems of noise and vibration? How many personnel have been adversely affected? When will the reversing restrictions placed on Ajax be lifted? Given that the total fixed cost for the whole project is £5.5 billion and that £3.2 billion has already been spent, is the Minister confident that Ajax can and will be delivered to that total? If so, when?
I welcome the noble Lord to the House and his position on the Front Bench. I am pleased to answer the questions that he has posed. First, as he will know, in any complex acquisition, there are risks and challenges that must be mitigated against, and, in the case of Ajax, we face different challenges due to the nature of such capabilities. Delays can be for a range of reasons, including the technical challenges and programmatic issues.
On the matters that the noble Lord raised and those relating to speed restrictions—which have been publicly aired—the rear step and the question of firing on the move, I reassure the House that we are confident that these will be resolved very quickly. Those issues have been due to the restrictions that were deliberately put in place because we are in the demonstration phase of this project. On the question of noise, and vibration in particular, there is more work to be done. Although I cannot give a date on this, it is obviously an urgent matter and tests are under way at the moment to try to resolve it.
Finally, we have full confidence in the delivery of the whole project. As the noble Lord will know, full operating capability is not due until 2025. That is not to say that there is not a lot of work to be done before then, but we have full confidence in the main contractors, General Dynamics and GDUK, which were selected after a rigorous process and have 60 years’ experience of developing these advanced armoured vehicles.
My Lords, I also welcome the noble Lord, Lord Coaker, to his place and apologise that I am not in the Chamber personally today. I will follow on from his questions and the Minister’s initial response. The contractor may have 60 years’ experience of delivering for the MoD, but this is supposed to be a modernisation programme. Will the tanks ever be fit for purpose? Is the Minister confident that mitigation can be put in place to ensure the safety of our service personnel and that, in the longer term, there will not be issues of deafness and other associated physical effects on them? If the project cannot be rectified, will it be stopped, rather than there being another £2.3 billion spent on something that may never be fit for purpose?
I reassure the noble Baroness that we are confident that delivery will take place. As I said earlier, this is a highly complex programme, and we are working through the issues that have arisen. On the injuries that were raised by the noble Lord, Lord Coaker, although I do not have the numbers, I say that, as is the norm for the demonstration stage of these highly complex projects, trials necessarily take place. We are confident that these issues will be resolved. I mentioned the vibration issue earlier, which is the most serious one that we need to address, and it is one of the reasons why we have withheld £434 million of payments that would otherwise have been paid until these matters are resolved.
My Lords, I also welcome the noble Lord, Lord Coaker, to his place. I honestly do not think that Her Majesty’s loyal Opposition could have picked a better defence spokesman, judging from our previous exchanges in the other place. I declare my interest as a serving member of the Army Reserve.
A bit of context is required here. Ajax is not just an updated armoured fighting vehicle; it represents a generational shift in capability that will be able to deliver precision strike at range and, crucially, a network capability that our adversaries simply do not have. Given that there are literally millions of lines of code, I am surprised that there have not been more challenges during the development phase. We have lost out in the past by not updating our armoured fighting vehicles on a regular basis, so can my noble friend the Minister simply reassure me that Ajax is being designed with open architecture so that we can update it on a regular basis?
My noble friend makes a very good point. Perhaps I can add to what he was saying: this project represents the biggest single order for a UK armoured vehicle for over 20 years. Incidentally, the project supports approximately 4,100 jobs across more than 230 UK suppliers. It is now in its production and support phases, with the Army having taken formal delivery of the first Ares capability drop 1 vehicles in July 2020. However, it is more than that, as my noble friend said. This is a new and larger vehicle. It is modular and, over a predicted 30-year lifespan, it will be capable of being built on. It will be the backbone of the future digitised modern force, with unparalleled protection levels, incorporating hard-won lessons from recent conflict in Afghanistan and Iraq. Perhaps that adds to the complexity of this matter. I reassure the House again that these outstanding issues need to be addressed.
My Lords, I also welcome my noble friend Lord Coaker to the Front Bench. His initial question today indicates his enormous expertise.
I am surprised that we have got this far with this new development. We have seen the new report, apparently from the independent Infrastructure and Projects Authority, which says that this vehicle cannot reverse— perhaps we do not need to any more—fire on the move or go more than 20 miles an hour, and that the soldiers are limited to an hour and a half inside it because of the noise. What use is that on a battlefield? Will they put up a white flag and change staff before they continue?
I remind the House that the IPA has said that the delivery of the project “appears to be unachievable”. That is rather different from what the Minister has just told the House, which is that there are no plans to delay and that we will go on with it and, presumably, continue with the order of 580 tanks, which will all be deployed this year. Is it not time that we cancelled the whole thing and saved the Government, the taxpayer and ourselves several billion pounds of taxpayers’ money?
I need to put the noble Lord right on a number of points. First, on the IPA report, I remind the House that this came out as a result of a leak, and a full inspection is going on as to how that leak came out. On the speed restriction, I reassure the noble Lord that Ajax is capable and will be capable of speeds of up to 70 kph, but an initial limitation of 30 kph was introduced as a control measure for newly qualified Household Cavalry Regiment crews. That is in line with what I said earlier about this being the demonstration phase of this enormous project. On the rear step, the vehicle is capable of reversing over a vertical 0.75-metre step. Following some initial issues, this was restricted, again for the same reasons. Similarly, on the noble Lord’s point about firing on the move, the vehicle can and does fire on the move. The MoD has yet to certify the platform to perform this, which is also in line with what I said earlier. I reassure the House again that this major project is on track and will be delivered on time.
My Lords, all the supplementary questions have been asked. We now come to questions on an Answer to an Urgent Question asked in the House of Commons on Tuesday 8 June on British Council closures. I call the noble Lord, Lord Collins of Highbury.
Commons Urgent Question
The following Answer to an Urgent Question was given in the House of Commons on Tuesday 8 June.
“The British Council is a crucial part of the UK’s presence overseas and a key soft power asset. It works in more than 100 countries to promote UK education, arts and culture, and the English language. The Government remain committed to the British Council. As the integrated review made clear, we value the influence of the British Council. We agreed a 2021-22 spending review settlement totalling £189 million, which is a 26% increase in funding from 2020-21. The British Council has not been cut. Although we have had to make difficult decisions to cut in other areas, we have increased the money we are providing to the British Council. Not only have we increased funding; we have provided a rescue package during the Covid-19 pandemic. This includes a loan facility of up to £145 million, with a further £100 million loan being finalised to support restructuring. We have also provided a letter of comfort to ensure that the council can meet its financial obligations.
We found this funding for the council in the context of an extremely challenging financial environment. As a result of the pandemic, the UK is facing the worst economic contraction in over 300 years and a budget deficit of close to £400 billion. This package is necessarily accompanied by changes to the council’s governance essential to modernise the council. These include measures to update the British Council’s charitable objects, to focus the council on its core pillars, to streamline its governance structures and to agree new key performance indicators and targets to monitor council performance in key areas. The Foreign, Commonwealth and Development Office and British Council officials have worked together to ensure that the council will align even more closely with the Government’s strategic priorities and can focus on doing what it does best.
Having worked closely with the British Council, we are reviewing physical council presence in-country as part of this modernisation process. These changes will be minimal, but it is a strategic mistake to judge the impact of the council in a digital age solely by the physical office in-country. Rather, it should be judged by its operational presence, by the digital services we are investing in and which have expanded rapidly as a result of Covid, and by its ability to operate through regional hubs and third parties. The Covid crisis has changed the way we all have to operate. We have also implemented a new evaluation mechanism, so that when Ministers travel, they can assess the value for money and the impact provided by the British Council on soft power. This is a strong rescue and reform package. The council will also shortly have a new chief executive officer, so it will have strong leadership and a governance structure to make it viable and to reinforce its role as a force for good.”
My Lords, Nigel Adams yesterday acknowledged that the Covid pandemic had hit the British Council’s commercial activities incredibly hard. He was very sympathetic but failed to respond to Tom Tugendhat’s hope that the closure of five sites be reversed soon. As the Government host the G7 summit, does the Minister accept that to allow the closure of British Council overseas offices will be further evidence that the Government are not prepared to put the words of the integrated review into action?
My Lords, on the noble Lord’s substantive points, I assure him that we have demonstrated our integrated review priorities and our support for the British Council by the large-scale package of funding we have provided to the British Council during the pandemic. The formal announcement is yet to be made on the reversal of any office closures. We are working through the implications with the leadership of the British Council. If there was one silver lining to the terribly grey cloud that is the pandemic, it has been the ability to see how we can avail of technology delivery, including in the work the British Council does across the world.
The strategic review rightly extols the soft power of the British Council, but its finances have, as we have heard, been savaged by the pandemic. I fought hard to get the council back into Angola, for example. It is vital there and elsewhere for future trading relationships with the UK. It is vital also for our higher education system to have the British Council in country, training those who want to learn English. Will the Government think again about the council’s £10 million shortfall?
My Lords, I acknowledge the noble Baroness’s work in Angola. I know that she is involved with the British Council APPG. I have seen directly in my travels as a Foreign Office Minister, then as a joint Minister and now as a Minister at the merged FCDO the important work that the British Council does, including on English language training. I reassure the noble Baroness that we have provided support. The overall package is around £609 million over the past year, which includes emergency funding in March 2020 in line with the pandemic. We are working through the issue of any underlying shortfall with the British Council leadership. If the noble Baroness goes into the figures quite specifically, she will see that this is a very generous settlement for the British Council.
My Lords, I wonder whether my noble friend can say what has been accomplished over the last three years by the offices threatened with closure? Is it wise to close offices when the British Council is crucial to widen the influence of the United Kingdom in the world at this critical time in our national history?
My noble and learned friend again draws attention to the proposed closure of certain offices. I assure him that we are looking at and working through the implications for the services within each country but, equally, ensuring that we can plug the gap through an innovator model, including a hub-and-spoke model for a particular country, or through technology enablement.
My Lords, I declare my interest as co-chair of the APPG on Modern Languages. This is supported by the British Council, which last year used £30 million of its income from English language schools to supplement its grant in aid. Covid has wiped out this commercial income. Between five and 20 country programmes are at risk for the sake of £10 million, including the Five Eyes countries, risking trade and cultural benefits, and Afghanistan, which could see the end of valuable work with women and girls that would be hard to digitalise. How is this compatible with global Britain?
My Lords, I acknowledge the important work that the British Council does on the English language. I assure the noble Baroness that the Government recognise that the British Council is a leading provider of English language training and examinations and reaches more than 100 million learners across 100 countries. We will continue to remain focused, and in countries where we need to take a step back or there are office closures, we will look at how best we can provide such services there.
My Lords, the two things about Britain that radiate around the world are the World Service and the British Council. They are the main thrust of our soft power, as was represented in the integrated review. I urge the Minister that, far from cutting back, we should seek to expand the role of the British Council as well as the World Service, particularly into areas such as Russia where we have been forced to withdraw. We should back the British Council by expanding its budget, not cutting it as we are at the moment.
My Lords, I totally agree with my noble friend inasmuch as the British Council is an important part of the UK’s soft power. Indeed, I would argue with substance that the UK is a soft power superpower. I assure my noble friend that the FCDO is supporting specific programmes with the British Council through the package that I have already outlined, and indeed through the BBC’s World 2020 programme, and there are other examples of our soft power, including the Chevening, Marshall and Commonwealth scholarships, which provide further examples of our continued support, notwithstanding the pandemic.
My Lords, I declare an interest as an ex-chair of the British Council All-Party Parliamentary Group, and as someone whose father was a career senior officer in the council. As chair, I was privileged to work closely with the council at home, but I also visited Lebanon and Nigeria and saw the superb work being done on Britain’s behalf. Why on earth are Her Majesty’s Government effectively going to force the British Council out of a number of countries when they, the Government, constantly claim that they are in favour of a global Britain policy? The two concepts are surely in direct conflict with each other. As the Defence Secretary recently said,
“there is not enough of it”—
meaning the British Council—
“around the world”.—[Official Report, Commons, 1/2/2021; col. 674.]
He was correct, was he not?
I am sure that I will always agree with my right honourable friend the Defence Secretary, and I agree with him about the important role of the British Council. Where I disagree with the noble Lord is in his assessment. We are a major power when it comes to soft power, and the British Council is part and parcel of Britain’s continuing presence in that area across the world.
My Lords, following the theme of everyone else this afternoon, how can this country be a global Britain with an insular approach? How secure is the Minister that the Treasury fully understands the strategic contribution of the British Council in establishing networks and information gathering, the cultivation of future leaders around the world, and the creating of links for trade and export promotion, thus offsetting the demoralised Foreign, Commonwealth and Development Office?
My Lords, again, I am a Minister in Her Majesty’s Government and I would argue that we remain very strong in the area of soft power, including through our work in the British Council. I would draw the noble Lord’s attention to the fact that the UK ranks consistently well ahead of many other leading countries when it comes to soft power assessments; indeed, we are second in the Portland Soft Power 30 index, second in the Anholt Ipsos Nation Brands Index and third in the Brand Finance Global Soft Power Index. These are assessments of our capacity in soft power around the world.
My Lords, I am sure the Minister understands that it is difficult to believe in the Government’s commitment to being a soft power superpower while we are committing these cuts to development aid and the British Council. He may have to write to me, and I accept that, but can he assure me that the unique work that the British Council is doing through the cultural protection fund to repair the heritage of countries that have been so devastated by war will be placed on a sustainable footing? Does he agree with me that this is an absolutely critical and highly innovative way in which to maintain soft power where it really counts?
The British Council’s specific budgets will be finalised, but of course I will write to the noble Baroness in that respect. It also plays an important role with other organisations, such as UNESCO, with regard to protecting world heritage sites, and it will continue to co-ordinate in that way.
My Lords, I should perhaps declare an interest as someone who once did an exam in the British Council office in Bangkok. That is of relevance to the question that I wish to ask the Minister. For the 5.5 million Britons who live abroad, in many ways British Council offices and services are for them a link back that they rely on. More than that, I did that exam as part of a master’s degree through the University of Leicester; this is a hugely valuable export for the UK, and many educational institutions, as well as other institutions and businesses, rely on that British Council link. Will we not damage all those links for Britons abroad and for British businesses making links abroad?
First, I hope that the noble Baroness passed her exam—as I am sure that she did, based on her very able and notable contributions in your Lordships’ House. On supporting the British Council, I share what she outlined: the importance of the relationships that the British Council has, and the nature of our partnerships with key universities. She mentioned the University of Leicester. I have already alluded to the scholarship programmes, in addition to the work that we do with the British Council, which underline our commitment to education.
Just for clarity, I mentioned the £609 million over the past year that we have secured to ensure the British Council’s future. We have provided £26 million of emergency funding and loan provision facilities to the British Council of another £145 million, and we are currently finalising another £100 million loan facility. So far, the British Council has, I believe, drawn down £50-odd million of that loan facility. Overall, in addition to those loans, we are providing £189 million of grant in aid funding to the council for 2021-22, of which £150 million is ODA.
I hope that that gives a degree of reassurance—although not to the total satisfaction of all noble Lords, I am sure—that we are committed to the British Council. We support it, notwithstanding challenging times and notwithstanding the pandemic. We have stood by the British Council and will continue to do so.
Professional Qualifications Bill [HL]
Committee (1st Day)
Relevant documents: 2nd and 3rd Reports from the Delegated Powers Committee
My Lords, the Hybrid Sitting of the House will now resume. I ask all Members to respect social distancing. I will call Members to speak in the order listed. During the debate on each group, I invite Members, including Members in the Chamber, to email the clerk if they wish to speak after the Minister. I will call Members to speak in order of request. The groupings are binding. A participant who wishes to press an amendment other than the lead amendment in a group to a Division must give notice in debate or by emailing the clerk. Leave should be given to withdraw amendments. In putting the question, I will collect voices in the Chamber only. If a Member taking part remotely wishes their voice to be accounted for if the question is put, they must make this clear when speaking on the group.
1: Before Clause 1, insert the following new Clause—
“Purpose of this Act
(1) The purpose of this Act is to give regulators the necessary powers to ensure demand for professions can be met in the United Kingdom.(2) Nothing in this Act affects the independent process of defining the accreditation processes of the regulators.”Member’s explanatory statement
This amendment underpins the principle that the process of defining the accreditation processes rests with the regulators.
My Lords, this amendment, I should emphasise to the Minister, is offered very much in the spirit of helpfulness. At Second Reading, the Minister said:
“The Bill will allow action to be taken in the public interest if it is judged that a shortage of professionals has arisen in a profession, but that action in no way restricts regulators’ ability to take decisions about individual applicants; it merely requires them to set up a route through which people can seek entry to a profession.”—[Official Report, 25/5/21; col. 971.]
In other parts of his speech, the Minister reiterated the view that it was not the Government’s intention to interfere with regulators’ roles and responsibilities. Yet he also said:
“I emphasise that we want this new framework for recognition of professional qualifications to complement regulators’ existing practices.”—[Official Report, 25/5/21; col. 909.]
It is because of the need to clarify how the Bill complements the regulators that I am putting forward this amendment with the support of my noble friend Lord Purvis of Tweed.
This Bill is backed up by secondary legislation that we have yet to see and which will define the true nature of this Bill. There are genuine concerns that the Bill creates potential for central government to intervene in a manner that cuts across the Minister’s assurances. This amendment seeks to clarify and delineate the purpose of this Bill. It does no more than the Minister has repeated in meetings and on the Floor of the House.
I make no apology for repeating that the overwhelming proportion of the reach of this Bill is yet to be seen. All we have is the skeleton. We know from the Minister that we should expect a deluge of secondary legislation, and it is in that where we will see reflected the true purpose of the Bill. I would add that, unfortunately, level of scrutiny of such secondary legislation sometimes falls below the level of the scrutiny by your Lordships of primary legislation, which is another danger.
Why should we be suspicious and, indeed, are those suspicions restricted just to these Benches? For the first time, but not the last, I refer your Lordships to the report of the DPRRC, published on 27 May, which addressed this Bill. In that report, the issue is clear. At the outset, the committee categorises Clause 1 as
“a Henry VIII power, as it includes power to amend primary legislation and retained direct principal EU legislation”
and goes on to say:
“The power can be used to make provision about a wide range of matters relating to applications to practise a profession, including ‘detail on the approach to be taken in assessing … qualifications’, requirements for regulators to have regard to guidance when determining applications to practise, the information to be included in such applications, fees to be paid and appeals.”
We have yet to see this potentially very far-reaching legislation. This takes this Bill to a place that is somewhat beyond what the Minister has outlined its role to be. Of course, those Henry VIII powers are qualified, but the scope of those qualifications is broad and will be discussed later.
As well as the mutability of Clause 1, the nature of Clause 3 has confirmed the need for this amendment. I was grateful that the Minister met me and colleagues this week. During that discussion, he confirmed that in relation to the purpose of the Bill, Clause 3 is explicitly needed in order to implement trade agreements where mutual recognition of qualifications is included. In fact, the Minister considers it vital for the Government to use this clause to make sure that the regulatory authorities enact the terms of a future free trade agreement. Of course, it is not needed for that. The Government could bring each trade deal to Parliament for approval, which would be a way of getting primary approval of such clauses within a free trade agreement. In that case, Clause 3 would not be required, and we can have that debate later. This is all about the creeping remit of the Bill, which is why I refer to it in this amendment.
The amendment clearly upholds the aim of giving all regulators the powers to regulate international professionals. Importantly, it also underpins the independence of the regulators—independence that the Minister so obviously treasures, but which this Bill, as drafted, so obviously threatens. In the Minister’s own words at Second Reading,
“the regulators are the experts in their respective fields and they ensure that high professional standards are maintained. Regulators must continue to have the ability to act in the public interest, including in the best interests of their professions and the consumers of professional services.”—[Official Report, 25/5/21; col. 971.]
We say prove that by accepting Amendment 1 and putting it in the Bill. I expect the Minister to say that he agrees with the text, but disagrees with putting it in the Bill. If indeed that is the Minister’s response, I would appreciate him explaining why he disagrees with putting it in the Bill. What is wrong with putting it in if that is the purpose of this Bill?
This is a skeleton Bill—another skeleton Bill—and this amendment tries to make clearer what this Bill is for, explicitly guiding what the Bill will do when the body of secondary legislation is added. I beg to move.
I call the noble Baroness, Lady Noakes.
I call the noble Lord, Lord Palmer of Childs Hill.
My Lords, I am rising rather surprised. We have heard my noble friend Lord Fox elegantly put the reasons why the Bill needs to be slightly tidied up, if nothing else. The amendments in this group do all they can to allow overseas qualifications to be treated as acceptable in the UK. The amendment in my name seeks to deal with a situation where the qualifications and experience are held to fall short; the Bill does not talk about what happens then. In many spheres, what happens is that there is some bridging measure to bring the applicant up to the required standard.
Amendment 12 in my name seeks to give the regulator relief from bringing the applicant up to the required standard if this would involve unreasonable cost, time and be a resource burden on the regulator. My noble friend Lord Fox said that the regulator will be independent. We must not add the cost of providing bridging training if people do not come up to standard.
As has been said, this is a skeleton Bill. We need to make it clear on whom the duty falls to provide the additional training or experience to bring it up to standard. The Bill does not say, but it must not be down to the independent regulator.
I now invite the noble Baroness, Lady Noakes, to make her intervention.
My Lords, I asked the Government Whips’ Office to order the speakers as is normal in the Chamber when we do not have lists—that is to say, those who have tabled amendments are allowed to speak before those who simply wish to comment on them. I was advised that the list was issued late this morning.
The noble Lord, Lord Fox, may recall that I do not like purpose clauses. I believe that a Bill should be written in clear language and that its scope and impact should be readily understandable on its own terms. This Bill fails to meet that test, but I do not think that a purpose clause is the answer. Instead, we should focus on making sure that the Bill itself is fit for purpose. We have tabled a number of amendments aimed at doing this.
I also have a minor quibble with the drafting of Amendment 1. Subsection (2) refers to
“the independent process of defining the accreditation processes of the regulators.”
I believe that the independent processes which this Bill should protect go beyond mere definition of accreditation processes. We do not want any form of interference in the independent processes of regulators. This should be an enabling Bill which should unblock legal impediments to the recognition of overseas qualifications. It must steer clear of all the processes operated by regulators, not just of those defining accreditation.
I put my name down to speak because I recognised the Institute of Chartered Accountants’ provenance of Amendment 12 in the name of the noble Lord, Lord Palmer of Childs Hill. That is why I was keen for him to speak first. Amendment 9 in my name, in a later group, is slightly simpler, but on the same basic point. I realised a little too late that perhaps I should have asked to add my amendment to this group. The essence of Amendment 12 is to ensure that inappropriate burdens are not placed on regulators, as the noble Lord, Lord Palmer, has explained. I will not repeat those arguments. I will explain my own amendment when we reach it later.
This is a very real issue. The Government need to look at it again to ensure that their approach is reasonable in the context of what regulators could be compelled to do by the provisions of this Bill. As far as we can, we should seek to avoid any possibility that they could be compelled to do anything unreasonable, burdensome or otherwise inappropriate to their profession.
My Lords, I shall speak briefly in support of Amendment 1. Subject to the clear statement of the noble Baroness, Lady Noakes, it would be desirable to try to focus much more of this wide-ranging Bill. If that is not done, a provision to make clear that the independence of regulators is not in any way affected is of vital concern. The regulation of professions should be set by the structure ordained by Parliament—not by the Executive and then left to the regulators. If more precise provisions cannot be incorporated, Amendment 1 would have this vital effect of making clear the independence of the regulators.
In the case of the legal profession, it is convenient at this stage to raise two points about independence. First, the independence of the courts depends on the independence of lawyers, with their ability to challenge the powerful, particularly the Government. This can only be safeguarded by independent regulation within a structure set by Parliament. Given the position of the Executive in relation to the courts and the legal profession, it should not be the Lord Chancellor’s role to be involved in this in any shape or form. It is difficult to see, given the scope of the Legal Services Act, why these wide-ranging powers need to be given to the Lord Chancellor.
The second point concerns the UK legal services market. As this House knows well, this is very valuable to the UK economy, particularly because of the international work it services, both in the UK and by those qualified as English lawyers in overseas countries. It is often important for people to be qualified as English lawyers, given the prevalence of English law in international agreements and standard form contracts. Thus the position of the legal profession, particularly under the Legal Services Act, gives the regulators wide and extensive powers, leaving them to balance the necessary interest involved, particularly the consideration of reciprocal arrangements. It is important that none of these powers is constrained. Can the Minister clarify why recognition of overseas legal qualifications cannot be left to the regulators without the need for the extensive powers in this Bill? If they are needed, they should be very narrowly confined by primary legislation and not left to these sweeping Henry VIII powers.
My Lords, as we are at the start of the Committee stage, I declare my interest as a board member of the GMC, although I am speaking on the Bill in a personal capacity.
I support Amendment 1. We have a real problem with the skeletal nature of the Bill and the extensive use of Henry VIII clauses. It is a great pleasure to follow the noble and learned Lord, Lord Thomas of Cwmgiedd, whose powerful intervention illustrated some of the problems. The power in Clause 1 could be used to make provision about a huge range of matters relating to applications to practise a profession. Extensive powers are delegated to Ministers. As the Delegated Powers and Regulatory Reform Committee has pointed out, neither the Explanatory Memorandum nor the Explanatory Note gives adequate reasons for the extensive use of Executive power. I will come back to this during Committee, but the Minister should at least have a shot at explaining why Executive powers are needed to this extent. So far, we have not heard a reason.
The Delegated Powers Committee illustrated the example of the dentistry profession. Dentistry is one of the professions for which regulation is provided in primary legislation. The Dentists Act 1984 includes a provision to recognise overseas qualifications. Holders of overseas qualifications who wish to qualify for registration as dentists in the UK must not only have a recognised overseas diploma but, as a starting point, they must sit an examination to satisfy the regulator that they have the requisite knowledge and skill. They must also satisfy the regulator as to their identity, good character, good health and knowledge of English. The committee says that Clause 1 appears to allow such requirements and other comparable requirements in primary legislation relating to other professions to be watered down by statutory instrument, if Ministers considered this necessary to enable demand for the service of the profession in question to be met without unreasonable delay. I do not need to remind the Minister that the dentistry profession is under acute pressure.
My reading of the Minister’s amendments in Clause 1, which are welcome, is that some protection is provided, because regulations can specify additional conditions for a professional’s overseas qualifications to be met. But, of course, that depends on the Minister taking the necessary action. It also appears that Clause 3 could be used to implement an international agreement that encompassed an override in respect of the actions of a regulator. The noble Lord, Lord Fox, referred to this, and, again, we will come back to Clause 3 later today.
So there is a need to safeguard and protect the integrity of the regulators and uphold the public interest in high standards among the professions covered by the Bill. The noble Lord, Lord Fox, has attempted to draft such protection, and I hope that the Minister will be sympathetic. If not, he needs to realise that the current construct of the Bill will simply not do, and the House would be right to insist on further protections.
My Lords, the noble Baroness, Lady Noakes, raised her consistent point, for which I give her respect, about declaratory statements within legislation. My noble friend Lord Fox, in bringing forward his amendment, which I had the pleasure to cosign, is justified in this instance, given what other noble Lords have said within this group. The Government have not provided the level of detail about the potential use of the extensive Henry VIII powers under this legislation in particular. Therefore, a statement that these powers should not be used to impact upon the independence of our regulators is of great importance.
That has been not endorsed but reflected in the Delegated Powers and Regulatory Reform Committee’s report. As has been my wont over many years in this place, I have taken great joy in reading Delegated Powers and Regulatory Reform Committee reports—I did not have grey hair when I came into this place. It is rare that a committee report such as this can be so clear. On the Trade Bill, the Minister was given great credit when the committee cited support of the Government and raised no issues, but in this area, it could not be clearer. So the calls of the noble Lord, Lord Hunt, and my noble friend Lord Fox for greater clarity are important.
The committee, in paragraph 8, said of the fact that no adequate explanation was given:
“This is particularly disappointing given that … as the Government have acknowledged, most of the substantive changes to the law envisaged by this Bill are to be made through delegated powers rather than the Bill itself.”
Therefore, a statement such as this amendment is clearer. So we agree with the committee that a much fuller explanation of the provision to be made in regulations under Clause 1, and the justification for that provision, is required.
The Government did not need to go down this route, as their own impact assessment indicated. The impact assessment started, under the Minister’s signature on the opening page, by giving reasons for the alternative approaches, and included:
“For recognition of overseas qualifications: a fixed (one size fits all) approach; and a risk/benefit system.”
I think there would be common ground between most of us on these Benches and the Minister on risk/benefit systems usually being best. But no, the Government have opted for “one size fits all”.
The impact assessment goes on:
“For regulators and international recognition agreements: arrangements for specific regulators.”
As we will no doubt hear in other groups, specific regulators have specific legislative underpinning for their own purpose and require scrutiny on a case by case basis. But the Government rejected it. And they rejected for information transparency a non-legislative guidance-based approach. So it is the Government’s choice to go down this route, which opens up a lot of areas where they should be much clearer in indicating the intent behind the regulation-making powers they want.
The Minister said on Second Reading that this Bill, while a framework, was the result of a considered view from reflecting and consulting with regulators as well as more widely with stakeholders. So I was frankly amazed to read that there is currently, for the healthcare professions, a live consultation on regulatory reform. It started on 24 March and closes a week today; it has not even closed yet. That consultation, Regulating Healthcare Professionals, Protecting the Public, touches on governance, the operating framework, fees, education and training, registration and fitness to practise. At paragraph 10, on the governance and operation framework, it says that the Government are
“proposing to devolve many of the decisions about day to day procedures to the regulators themselves, whilst ensuring that they continue to meet their overarching objective to protect the public.”
But this Bill provides the Government with Henry VIII powers to do exactly the opposite when they choose. So I ask the Minister: which is the Government’s intent—the one in the Bill we are scrutinising at the moment or the consultation that has not yet closed?
Paragraph 17 says that the regulators
“are accountable to the Privy Council … and the PSA provides oversight of how they carry out their regulatory functions. The Privy Council has default powers to direct most of the regulators if they fail to deliver their objectives. However, this does not apply to the GDC and GPhC. We propose that the GDC and GPhC are included within the Privy Council’s remit.”
So the Government, in their consultation, are seeking to expand the role of the Privy Council with its default powers, while this Bill is going in the opposite direction. So could the Minister explain what the relationship will be between the regulation-making powers in this Bill and the Professional Standards Authority? Can these powers be made to change the Professional Standards Authority’s legislative standing and how it provides oversight to the regulatory bodies it provides for? And what is this Bill’s relationship with the Privy Council? The Privy Council, as the Government say in their own live consultation at the moment, is the body these regulators are accountable to.
Paragraph 23 says:
“The proposals set out in this document aim to give regulators greater flexibility to determine how they set standards for, and quality assure, education and training.”
But the powers under this Bill will provide—in a way the Government have not yet provided information on—Henry VIII powers to completely determine what they are for the set purposes. So restrictions on the Government’s ability to use those powers which will impact upon this legislation are necessary.
The element of the consultation I thought was quite extraordinary is that the Government themselves say that when it comes to regulation of the medical professions they will go down a different route to change the legislation. The Government’s consultation says:
“We intend to implement … changes for each of the healthcare professional regulators through secondary legislation made under Section 60 of the Health Act 1999.”
There is no reference to any mechanisms under the Professional Qualifications Bill, so what is the Government’s intent for the Henry VIII powers under this Bill, with their already publicly stated intent to use the Health Act for medical?
Finally, the Government’s consultation closes with this:
“While we are required to hold a public consultation on all draft secondary legislation made using the Section 60 powers, we are taking this opportunity to seek views on the proposals that will, in due course, apply to all the professional regulators and all regulated healthcare professionals.”
On Second Reading, the noble Baroness, Lady Hayter, made a very valid request of the Minister, which was to see some draft regulations about the intent before we conclude our scrutiny of this Bill in this House. The Minister refused her.
The Government’s consultation says that they are
“required to hold a public consultation on all draft secondary legislation”
when they change the regulation of health professionals, so what is the Government’s position on this? The Government say, in paragraph 407 of that document:
“We also intend to commission a review of the professions that are currently regulated in the UK, to consider whether statutory regulation remains appropriate for these professions.”
Clearly that is not the case, because the Government have decided so, as I said at the start of my contribution. Can the Minister tell us what the status of this consultation is, if so many issues have been pre-decided by the Bill?
My Lords, I slightly have the feeling that the back of an envelope was used for the drafting of the Bill. I could be quite wrong, but it has that feel about it.
I actually really welcome the “purpose” framing of the Bill—and here, unusually on this Bill, I disagree with the noble Baroness, Lady Noakes—because I think that such framing is extraordinarily useful when one later comes either to court cases, which have in the past occasionally been involved in determining what the purpose of a Bill was or what it meant, or to looking at statutory instruments. I like the idea of setting out what a Bill is for and what it is trying to achieve. Therefore, I welcome Amendment 1, although I have a question about one part of it.
What seems to me really important about Amendment 1 is the second part:
“Nothing in this Act affects the independent process of defining the accreditation processes of the regulators.”
As the noble Lord, Lord Purvis, said, this statement is of great importance. It clearly underlines many of the concerns raised with us—and, I am sure, with others around the House—by regulators, that somehow the Government will tell them how or when to accept the qualifications or experience gained under other jurisdictions so as to allow an individual to practice here. Indeed, this concern is reflected in Amendment 12, spoken to by the noble Lord, Lord Palmer, which emphasises that regulators should be able to rule on whether someone meets their standards.
As I said at Second Reading, regulation is all about protecting the public and the consumer or user interest. It is why we restrict when someone can call themselves a lawyer or a doctor. The comfort that gives to a client or a patient is obvious: it is shorthand for saying that someone has trained them up, someone has tested them, and someone knows they are fit to practice. For consumers, that is a really important purpose of regulation. It is why we have set up, in law, independent regulators to be able to decide whether somebody meets the recognised standards. They do of course do more than that—they look at CPD, at discipline and at various other issues—but for the purpose of this, it is about setting a standard and ensuring that someone can meet that standard before they practice, to protect users of the service. That part of Amendment 1 is really important.
What I am querying is the other bit, which says that the purpose of the Act—and as I said, I like the idea of a purpose of an Act—is to
“give regulators the necessary powers to ensure demand for professions can be met in the United Kingdom.”
Of course, that does not describe the Bill as it is at the moment; that is only one arm of the Bill. Indeed, the regulators who have been in touch with us say about the part I have just quoted that they can do it anyway, and ask why we are passing a Bill to give them powers that they already have. None of the regulators has been clamouring for these powers. Nobody, while we were in the EU, came to us and said, “Look, outside the EU we would love to have lawyers, doctors, vets”—I forget who is on the long list now—“from another country, but we are not able, because of our statutes, to have a process to take them in”. So this has got nothing to do with leaving the EU; either they had those powers before and they were not used, or they did not have them before and never felt the need of them. Nobody is asking for these powers. It is quite extraordinary that the back-of-an-envelope drafting managed to drop that bit in. Basically, that is what the regulators have been telling us.
We have also had the noble Lord, Lord Trees, telling us, from the veterinary surgeons’ point of view, that they have been able to do this. The noble Baroness, Lady Finlay, knows that the GMC has been able to recognise doctors’ qualifications and experience from around the world. None of the regulators needs this, so it is very hard to understand why it is being dropped in.
Of course, partly it is being dropped in because the purpose of the Bill is not simply to look at where there may not be sufficient professionals here. The Government say that they want to do trade deals, and, as part of those, want to be able to sell—or is it offer or swap?—the rights of professionals from other jurisdictions to come here. Actually, I think that that is what the Bill is about. Perhaps the noble Lord, Lord Fox, deliberately did not put it in the purpose of the Bill as he knows we are coming later to try to delete Clause 3 because we have our doubts about it.
It seems to me that we need to be clear whether we need the first bit. I will ask the Minister later—I have given him notice—which of the 160 regulators in the letter to the noble Baroness, Lady Noakes, do not already have the powers. If there are three of them, are we really passing a Bill for three regulators that cannot do it and probably do not want to do it anyway? I think that broad question needs to be asked. We will come on to that.
There is a big issue around whether the Government should be asking a regulator to do something it does not want to do. If a regulator wants to put in a process for recognising qualifications from another country, it has probably already done so anyway. We are therefore looking only at situations where it does not want to do it, and the Government are saying, “Nevertheless, we want you to”. We are going to come back to ask whether it is right that that should happen.
Going back to the second part of Amendment 1, the Minister has said in a letter to me—and to others too, I am sure; I do not think I get special words from him—that he
“fully recognises that the autonomy of regulators in assessing standards is key to protecting consumers and public safety and … in all negotiations a key concern for the government is ensuring the autonomy of UK regulators and protecting UK standards”.
If he is willing to put that in a letter to me, I see no reason why he should not put it in the Bill, so I hope he will at least accept the second part of Amendment 1.
My Lords, I thank the noble Lords, Lord Fox, Lord Purvis of Tweed and Lord Palmer of Childs Hill, for their proposed Amendments 1 and 12. These amendments would enshrine a purpose for the Bill and seek to avoid unreasonable burdens on regulators. I think we all recognise that, although this is a short Bill, it is a very complex one, as any Bill dealing with a landscape composed of more than 50 regulators and more than 160 professions was bound to be.
Many of the points raised in the debate, which I listened to very carefully, relate to the detail of subsequent clauses. So I propose, and I hope this is acceptable, to deal with these points later, in the order in which they come up in the Bill, rather than attempt to deal with all the points now. I have to say that I am very optimistic that, when I come to these points later, I will be able to deal with and assuage the anxieties expressed by noble Lords.
Coming back to the amendments in this group, I start with Amendment 1, tabled by the noble Lords, Lord Fox and Lord Purvis of Tweed. I accept that the noble Lord, Lord Fox, was trying to be helpful, as he always is, in tabling his amendment. The proposed new clause contains two provisions, and I will take them in turn.
First, the amendment states that
“The purpose of this Act is to give regulators the necessary powers to ensure demand for professions can be met in the United Kingdom”.
I am in firm agreement with the noble Lords’ intent. Indeed, one of the core purposes of the Bill is to give regulators the powers they need to enable demand for the services of professions in the UK, or part of it, to be met without unreasonable cost or delay. In essence, that is the purpose of Clauses 1 and 2. It is unnecessary to state one of the core purposes of the Bill separately, as it is already contained in Clause 2.
The Bill’s objectives, however—I think that this is clear to all of us—are wider than the purpose expressed in this proposed new clause alone. Do the noble Lords intend to limit the Bill only to responding to demand for services? That would be an opportunity missed. I will outline other important objectives of the Bill. It gives UK government Ministers and devolved Administrations powers to implement the professional qualification provisions of international agreements, and to empower regulators to enter into their own recognition agreements. These support the UK’s trade agenda. Having these powers has the knock-on benefit of helping to address demand for professions. Taken alone, however, these clauses are about international agreements and not demand for professions.
The Bill also has an important objective in relation to targeted steps for good regulatory practice. The clauses on transparency and information-sharing will support regulators in operating efficiently and individuals in entering professions. They are not necessarily about the demand for professions. I hope that the noble Lords recognise that these are also worthy purposes of the Bill.
The second provision in the proposed new clause outlines that nothing in the Bill affects the independent process of defining the accreditation process of regulators. As we all know, that process is important in maintaining professional standards in the UK. Once again, I find myself in firm agreement with the noble Lords’ intent. The Government are committed to upholding the autonomy of our regulators.
The noble and learned Lord, Lord Thomas of Cwmgiedd, spoke with great knowledge of this in the context of the legal profession, and I completely agree with his views about the need for the independence of the profession to be maintained. Let me say at the outset—I am sure that this is common ground across the Committee—that our regulators are the experts in their fields. They make sure that high professional standards are maintained. The core of the Bill supports the autonomy of regulators and their freedom to determine whether an individual with overseas professional qualifications is fit to practise in the UK.
Furthermore, and importantly, I am pleased to say that the regulators I have spoken to—I have spoken to a great number of them—agree that the Government are not interfering with their independence in the Bill. I add that I agree with my noble friend Lady Noakes about purpose clauses, especially when, as in the Bill, they serve no useful purpose. I am not therefore convinced of the need to set out the importance of the independence of regulators’ processes in an additional clause in the Bill, when the autonomy is manifest already. That autonomy, I beg to suggest, runs like a golden thread throughout the whole Bill.
I know we will come back to delegated powers when we debate individual clauses, but I appreciate the point raised by noble Lords that, with many powers contained in the Bill, a statement enshrining the purpose of the Bill would offer reassurance. I repeat, however, that those principles are delivered through the substance of the Bill, and I will offer arguments on the necessity of the powers later in the debate. I hope that they will assuage the fears of the noble Lords, Lord Hunt of Kings Heath and Lord Purvis of Tweed, and others.
I listened carefully to the points made about Amendment 12 by the noble Lord, Lord Palmer of Childs Hill. It seeks to ensure that regulators are not required to offer bridging measures to applicants that would lead to unreasonable burdens for the regulator. Nothing in the Bill obliges the regulators themselves to offer any necessary bridging measures. They may, for example, simply identify a course provided by another body or institution which the individual must pass before they can practise. To put it simply, if an applicant’s English skills are not good enough, it is not the regulator that will provide classes for him or her to improve their language skills.
We will come back to many of these points during Committee. I conclude by thanking the noble Lords for their amendments and I hope that they have found my response helpful and reassuring. I therefore ask the noble Lords not to press their amendments.
My Lords, I have requests to speak after the Minister from the noble Lords, Lord Lansley and Lord Purvis of Tweed. I call the noble Lord, Lord Lansley.
My Lords, not having participated in this group, I am prompted by the remarks of the noble Lord, Lord Purvis of Tweed, on the regulation of healthcare professionals, to which I do not think my noble friend responded. I have here the Law Commission report of April 2014—my noble friend will be aware of it—on the issues referred to by the noble Lord, which included the recommendation that Section 60 of the Health Act 1999, and indeed the powers of the Privy Council, should be substantially removed from the regulation of healthcare professions. What is the Government’s intention on the regulation of healthcare professionals? Do they intend to implement the Law Commission report seven years later, or do they now intend to proceed without any reference to it?
I say to the Minister respectfully: he did not assuage my fears, because he did not address them. Can he reassure me now, from the Dispatch Box, that none of the Henry VIII powers in the Bill will be used to impact the accountability of the medical professions vis-à-vis the Privy Council, or—whether in response to demand or otherwise—to impact any of the powers or the relationship between the professional standards authority and any of the regulators that it has responsibility for?
My Lords, this has already been a more interesting debate than I had anticipated. The response of the noble Baroness, Lady Noakes, on the subject of such clauses was not unexpected, but I emphasise that—as the noble and learned Lord, Lord Thomas, noted—this is a twin-track approach.
We would like at the end of this to have a Bill such that, in the Minister’s words, we all exit the Chamber assuaged. In the event that we do not, however, something along these lines is needed as a safeguard. I am not parti pris about the wording on this—I will take full advantage of the wisdom of others in the Committee, not least that of the Minister himself, if his department chose to engage to offer reassurance. He admits that such a clause would offer reassurance, and then says that the Government do not want to offer reassurance. The opposite of reassurance is something that I would not have thought the Government wanted to be spreading around, but clearly I am wrong.
On the chances of our being assuaged, there are two clear problems. First, while there has been some engagement with the medical profession, we have already had accountants, dentists and lawyers paraded as professions that have issues. I suspect that if there were experts in your Lordships’ House on many of the other professions, they too would express problems. So, while there has been consultation, it seems to me that more of that could be done.
That takes us to the other point, which is the back-of-the-envelope comment that the noble Baroness, Lady Hayter, made. I knew what my noble friend Lord Purvis was going to say, and I was still shocked when I heard him say it. There has been no reference by Her Majesty’s Government to this parallel exercise, and there would have been no reference to it had the diligence of my noble colleague not come to bear. It seems unthinkable that Her Majesty’s Government would bring a Bill such as this—a complex Bill, in the words of the Minister—without acknowledging a parallel exercise that is going on. The Minister does not seem to be prepared to answer the direct questions, but perhaps he could tell your Lordships’ House if Her Majesty’s Government are aware of any other parallel exercises going on in other departments at the moment. It would be helpful if they were all brought to light at this point rather than surfacing later.
It seems that assuaging us is going to take an awful lot of application from the Front Bench opposite. That said, we will wait and see how the debate goes today and on other days. On that basis, I beg leave to withdraw Amendment 1.
Amendment 1 withdrawn.
We now come to the group beginning with Amendment 2. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.
Clause 1: Power to provide for individuals to be treated as having UK qualifications
2: Clause 1, page 1, line 4, after “or (3)” insert “and any other specified condition”
Member’s explanatory statement
This amendment would enable regulations to specify additional conditions that must be met by an individual in order to be treated as if they have a specified UK qualification or specified UK experience.
My Lords, I rise to move Amendment 2 and to speak to Amendments 3, 6 and 10 in this group.
I have set out the need for a framework for the recognition of individuals with overseas qualifications and experience that focuses on addressing unmet demand for professional services in the UK. Clause 1 brings in an important part of that framework. It means that regulations can be made which require regulators to have a route in place to determine whether to recognise overseas-qualified professionals from around the world. Where such regulations are made under this clause as amended, they would require a regulator to make a determination as to whether an individual has substantially the same knowledge and skills to substantially the same standard as the UK qualification or experience. These regulations would not and cannot alter the standards required to practise professions in the UK, and UK regulators would still decide who can practise here. Regulations would be made by an appropriate national authority, meaning the Secretary of State, the Lord Chancellor, or the devolved Administrations where within devolved competence. I reassure noble Lords that, where Clause 1 is not exercised—it can be exercised only when particular conditions are met—regulators will be free to continue recognising qualifications from overseas in line with their existing powers and any reciprocal agreements in place.
On Second Reading, several noble Lords spoke to the concerns of healthcare regulators. They highlighted that Clause 1, as it appears in the Bill, could limit the ability of regulators to assess knowledge and skills as they see fit. I committed at Second Reading to table an amendment to Clause 1 to ensure that regulators can assess knowledge and skills as they consider most appropriate. I assure noble Lords that the Government take the views of regulators very seriously. This brings me to the detail of Amendments 2, 3, 6 and 10 in my name.
First, the amendments recognise that, where Clause 1 regulations are used in relation to a given profession, additional criteria may need to be satisfied before an individual may become eligible to practise—for example, criminal record checks to ensure public protection. As raised by a number of noble Lords at Second Reading, this could also be used to ensure overseas-qualified professionals have suitable levels of English language proficiency in appropriate cases—something that, where appropriate, could also be addressed as a compensatory measure under Clause 1(3)(b)(ii). The amendment to Clause 1(1) and the addition of new subsection (3A) would allow these additional regulatory criteria to be specified in regulations made under Clause 1. These criteria would need to be met before an individual with an overseas qualification or experience is treated as having a UK qualification or experience.
Secondly, there are of course a variety of ways that regulators may wish to assess the knowledge and skills of an overseas-qualified applicant. These might include an assessment of their qualifications or a test of competence. The amendments to subsections (2) and (3) of Clause 1 and the addition of new subsection (3A) provide reassurance that, when the power in Clause 1 is used, regulators can assess an applicant’s knowledge and skills in whatever way they consider appropriate. I hope, in my first step in assuaging the concerns of noble Lords, that that is the start of the practice.
I have been clear since introducing the Bill that we must protect regulators’ autonomy. This includes autonomy over decisions about who practises a profession and flexibility in assessment practices, in line with regulators’ own rigorous standards. The methods used to determine whether a professional qualified overseas is similarly qualified to work in the UK should rightly be identified and implemented by regulators. Through these amendments, the Government want to ensure that regulators can use a full range of approaches to make this determination. This could include making judgments only on the basis of qualifications or experience, or on such other bases as a regulator considers appropriate.
I have discussed my amendments with the General Medical Council and Nursing and Midwifery Council, who raised this issue directly with me. I am pleased to say that, in a very good discussion we had yesterday, both the GMC and the NMC welcomed these amendments to the Bill.
At this juncture, it is right to address a point I have discussed with several noble Lords and which touches on the point of the noble Lord, Lord Purvis, about the interaction of the Bill with other matters—in particular, the interaction between this Bill and the Department of Health and Social Care’s consultation on regulating healthcare professionals, which also touches on international recognition of professionals. I reassure noble Lords that there is no reason whatsoever why any proposals resulting from the ongoing consultation and requiring legislative changes could not be implemented through legislation led by the Secretary of State for Health and Social Care and his Ministers. I have no doubt that that legislation would be the appropriate vehicle for upgrades to UK healthcare regulators’ legislative frameworks. This is my second point of assuagement.
To conclude on this point, I hope that noble Lords will agree that the amendments address the challenges raised at Second Reading. The amendments will ensure that flexibility and autonomy for regulators is preserved in the event that the power in Clause 1 is used. I beg to move Amendment 2.
My Lords, I apologise that I was not able to be present at Second Reading, so I will not detain noble Lords with my views about the Bill in general terms. However, I hope that I will be forgiven if I have not been able to say those things previously.
Amendment 11 in my name seeks to amend government Amendment 10. My noble friend the Minister has explained helpfully and clearly how the Government have brought forward amendments even before the Committee stage to points made at Second Reading and by the regulators. That is extremely helpful, and I agree with them. There was always a risk that if there was a generic recognition of overseas qualifications or experience, an individual would be deemed to have met the required standard in the United Kingdom, but not necessarily by that individual’s experience, qualifications or other factors. My noble friend referred to things such as language assessment. When I was Secretary of State for Health, we were closely engaged in our dealings on this with other countries in the European Union. It is simply not the case that because someone undertakes qualifications that are deemed to be the equivalent of those in the United Kingdom, people are able to practise here in a way that is not impaired. We set about trying to remedy that and we need to make sure that we do not introduce legislation which would reintroduce the same kind of problem.
I encourage noble Lords to look at government Amendment 10. I understand what is intended, but I think that there is a drafting problem. The determinations set out in proposed subsections (3A) (b) (i) and (ii) state that the qualifications and experience are substantially the same or may fall short. Those determinations are to be made
“(i) only on the basis of the overseas qualifications or overseas experience concerned, or (ii) on such other basis”.
The inclusion of the word “only” means either qualifications and experience on the one hand or on another basis on the other hand, but it cannot be both. I do not see why that is the case. To me, it is transparent that we may be looking for an individual to have overseas qualifications and experience, but the regulator should have the flexibility to look at other assessments or experience. For example, I can think of someone I met while I was in hospital not so long ago who looked after me. He was a medically qualified practitioner from overseas, but he was working as a technician in the NHS because his qualification was not recognised for our purposes. However, his experience here in the United Kingdom treating patients should have been taken into account in assessing, for example, his linguistic competence and other experience.
If, for example, a regulator wanted to look at overseas qualifications and experience, as well as UK experience, why should it not be able to do that? The inclusion of the word “only” precludes such a combination on its plain meaning. That may not be the Government’s intention, and obviously I will not press this amendment, but I hope that, at the very least, my noble friend will undertake to look at this and say that leaving out the word “only” might enable this amendment to the Bill to do what he wishes it to do.
My Lords, I thank the Minister for the government amendments in this group. I want to speak in particular to Amendments 2 and 3, but having just listened to the noble Lord, Lord Lansley, I can see that Amendment 11 has an awful lot to commend it.
At Second Reading, I expressed concern that proficiency in English was not a prerequisite for individuals to be treated as having UK qualifications. I was prepared to put down an amendment to that effect, but I readily acknowledge that this is a matter much better left to the regulators than put in the Bill. The addition of the words “any other specified condition” leaves this in the hands of the regulators. It is hoped that many of them will recognise the importance that anyone working in the UK should speak and understand English. It is important not only for professional but for social reasons. We are still, alas, a hopelessly monolingual country, and any overseas worker who can speak only their language will have a difficult time both with their fellow workers and with sorting out their everyday life, however brilliantly they are qualified and however much experience they have.
Clause 1 concerns qualifications and experience, but leaves it with the regulator to consider whether experience makes up for any lack of appropriate qualifications. These amendments put the onus exactly where it should be—on the regulator. We on these Benches support the amendments.
My Lords, I am delighted to speak to this group of amendments. My question for the Minister is why we need these amendments. I understand that he has brought them forward in part to satisfy concerns raised by the General Medical Council and those expressed in the report of the Delegated Powers Committee. My noble friend has had an opportunity to speak to other regulators—here I declare an interest as a non-practising member of the Faculty of Advocates—but what he is proposing in these amendments could appear to be micromanaging criteria that would best be left to the regulators.
Concern that has been expressed by the Bar Council for England and Wales that the Government are conflating two different aspects. The first is the right of the Government or the state to set out which person should have the right to enter and remain here. The second is what I believe is the right and the duty of the regulator, which is whether an individual has the right to practise a particular profession or to establish services in this country. In seeking to amend the Bill in the way the Government are doing, we are moving away from the mutual recognition basis which has served this country so well, and I do not agree with that premise. Perhaps I may repeat that I had the opportunity to practise in Brussels on European Community law on two separate occasions, so I think that the Bill before us and the regulations to which my noble friend has referred will make it much more difficult to achieve that in the future.
I refer also to a letter from my noble friend which he sent to the Delegated Powers Committee. He talks about a “generous agreement” that was sought with the European Union on professional qualifications. He goes on to state on page 12 in the third paragraph:
“However, for other trade partners, we are more likely to consider Mutual Recognition Agreement (MRA) frameworks, a more common precedent in international trade agreements.”
I confess to being slightly confused, because if we are moving away from mutual recognition of qualifications with the European Union, why are we seeking to establish them in international trade agreements? I look forward to my noble friend being able to clarify those concerns.
My Lords, I am grateful to the Minister for these amendments, as I have spoken at length about the problems that would have been created for the General Medical Council otherwise. I am also grateful that he had extensive consultation with his officials and the General Medical Council. As he said, the General Medical Council is grateful to him for bringing forward these amendments.
Having said that, I would like the Minister to confirm on the record that any determination made by a regulator on whether a professional is able to join a register can be based on an assessment of the individual’s knowledge, skills and experience rather than solely on qualifications. Can he further confirm that the regulator would be able to make such an assessment using whichever method they found appropriate, including existing tests of competence and any other test they might develop in the future when it is found necessary?
I also support the probing amendment from the noble Lord, Lord Lansley. When the General Medical Council considers qualifications and experience, it takes into account the experience that the individual may have gained in his or her own country, but it also has the power to look at the experience that the individual may have gained subsequently outside their country. The amendment sought by the noble Lord, Lord Lansley, seems appropriate and I would be interested in the Minister’s response, but, at this juncture, I thank him for his amendments, and I support them.
My Lords, I refer to my interest as a member of the GMC board for the sake of this group of amendments. Like the noble Lord, Lord Patel, I welcome the government amendments and thank the Minister for his discussions with the regulator. I listened with great interest to the comments and queries of the noble Baroness, Lady McIntosh, about the amendments. In a sense, they reflect the generic and skeletal nature of this Bill, which means that each clause has to relate to many different professions. Frankly, I think it argues for a more detailed Bill, which would meet her issues as well as mine.
The argument that the GMC and others have put is very simple. Clause 1 currently gives power to the appropriate national authority—in the case of health regulators, the Secretary of State for Health and Social Care—to draft regulations to introduce a process that will require them to assess whether someone has a particular overseas qualification that is substantially the same as a UK qualification. In the case of the GMC, a person so deemed would then be eligible to practise as a doctor in the UK. That is because the GMC does not require those with UK qualifications to do anything further to demonstrate that they have the necessary knowledge and skills for registration. This could give an automatic entitlement to practise, under the current provision of Clause 1, for international medical graduates on the same basis as UK graduates. Currently, GMC has a very rigorous process for assessing whether the international medical graduate is safe and fit to practise. Without these amendments, it would be almost impossible for the GMC to manage operationally, with 10,000 international medical graduates applying for registration each year. It would be virtually impossible to assess this number of qualifications from countries as diverse as India, Pakistan, Nigeria, UAE and many others, with hundreds of different medical schools. The concern was that the Bill as drafted could force health profession regulators to accept professionals into UK practice in a way that compromised patient safety.
The Minister was sympathetic, and I am very grateful to him. However, there remains the issue of the relationship of Clause 3 to Clause 1, which we will come on to debate. In relation to the amendment from the noble Lord, Lord Lansley, he clearly has a point. I hope the Minister might take this away and give it further thought.
My Lords, I declare that I am registered with the General Medical Council and I am president of the Chartered Society of Physiotherapy. Like others, I know that the GMC has welcomed these amendments from the Government. Indeed, they address many of the concerns that we raised at Second Reading. I have had some discussions too with the Health & Care Professions Council. It still has some concerns that I hope the Minister will be able to address.
Government Amendment 6 leaves in the phrase “substantially the same” at Clause 1(3)(b)(i), in respect of knowledge, experience and standards. Currently, the processes demand that registrants meet certain standards in order to practise. There is a concern that the phrase “substantially the same” in the legislation risks lowering this standard, potentially creating a two-tier system in which applicants from overseas would need to meet a lower standard than their UK counterparts.
It is, of course, most welcome that the Government have recognised that regulators currently make a holistic assessment: they look at education, training, commitment to CPD and, importantly, the level of experience of each applicant rather than just at something on paper from the institution from which they received a qualification at some time in the past. This focus on the situation of the individual, whether it is an overseas qualification or experience demonstrating an equivalent level of knowledge and skills, is crucial.
Our current workforce shortage is acute. We have a lot of vacancies across the UK and there seems no longer to be the incoming workforce that there used to be. We have people leaving as well, so the vacancy factor is becoming more acute with a workforce that is already feeling the strain and burnout following all the pressures of Covid. I hope that there will be a clear assurance from the Minister that there will be no dropping of standards in a rush to try to fill vacancies and that there will be a concerted effort to provide the education and training needed to make sure that we have the appropriate number of properly skilled people in our workforce.
The amendment proposed by the noble Lord, Lord Lansley, as discussed, seems to raise an important point. I think that the general tenor of the debate so far has been that we hope the Government will take their own amendment away and have another look at it, rather than expecting it to be put into the Bill today. It could come in on Report when it had been appropriately amended if necessary. It certainly would seem to need some more thought.
I am well aware from my own discipline of medicine that many drugs and conditions have remarkably similar names. It is extremely easy for people to become confused over which is which; that is how errors occur. Even if someone passes an English language test, it is actually their command of the language in the relevant discipline that becomes so important.
The other thing I want to ask the Minister before I sit down relates to those disciplines that are not yet on a professional register but will need to be. They include physician associates, anaesthesia associates and nursing associates in particular. I know that the General Medical Council will take on the registration of physician associates and anaesthesia associates, but I would welcome from the Minister confirmation that the same criteria will apply to them as will apply to those in professions that are already regulated by regulators to whom this Bill currently applies.
There is also a question about what will happen in future to some other groups that are not regulated, such as some of the psychological therapies that we discussed at length during the passage of previous pieces of legislation—for example, the Domestic Abuse Bill—when many Peers across the House expressed serious concerns about some of the standards of practice. We know that some of the schools of psychology have evolved in different countries around the world. It is important that we do not inadvertently create another problem by allowing people to come here and practise in an unregulated way.
That brings me to my last point, which is on cosmetic interventions. Currently, they are unregulated. I hope that we will see them regulated, but I request from the Minister confirmation that the same ability for a regulator to determine criteria will apply and that it will not be separate if it concerns a group coming into regulation that was not regulated previously. We know very well the number of damage cases that there are, particularly from inappropriate cosmetic procedures.
At this point, I seek those assurances from the Minister but reiterate that the government amendments are most welcome. They have demonstrated that they have listened to the representation, particularly from the General Medical Council but also from others.
My Lords, I will be brief. I support the Government’s amendments in this group and the amendment in the name of my noble friend Lord Lansley. Initially, I thought that his amendment was attached to the word “only”, which is often misused in the English language—most often as an inappropriate or misplaced modifier. Initially I thought my noble friend was going to say that it was a misplaced modifier. However, I listened to what he said, and he raised a very substantive concern about the drafting of the clause. Like other noble Lords, I hope that my noble friend the Minister will agree to take this away and look at it and, if necessary, bring an amendment back on Report to make proper sense of his new amendments.
Of course, there is a slight problem: once we have amended a Bill, we are not supposed to go back and amend it again at later stages. However, I think that if my noble friend were clear enough from the Dispatch Box today that he will look at this, it would not cause a problem.
My noble friend Lord Lansley may well have noted that, in our Conservative notes on the amendments that we are considering today, his Amendment 11 was described as an opposition amendment. I know that my noble friend has not always toed the party line—he is not alone in that—but I have never regarded him as the Opposition. I share this with the Committee in the hope that it will improve my noble friend’s street cred.
My Lords, I join noble Lords in congratulating the Minister on moving quickly on this. I also congratulate the GMC and the Nursing and Midwifery Council on moving quickly in terms of raising this issue with Her Majesty’s Government. Reflecting back on some of the things we heard in the debate on the first group of amendments, it seems that there are other professional groups in regulated professions that still have outstanding issues. I hope that the Minister can confirm that his door is just as widely open for them to bring their issues forward, albeit somewhat later, so that we can clear them up.
The Minister talked about whether we were assuaged and then stated that the Secretary of State for Health could bring forward statutory instruments concerning the health profession. We knew that. What we do not know, and what has not yet been answered, is how conditions set and laws made by this Bill that reflect on the consultation—as the noble Lord, Lord Purvis, set out frankly, this Bill and the DHSC consultation are travelling in highly contradictory directions—will affect the consultation and the health professions. It is that direction that we are more interested in, rather than the opposite.
I associate myself with the comments made by my noble friend Lady Garden of Frognal. These amendments are welcome. I note that, along with the noble Baroness, Lady Finlay of Llandaff, we expect to debate the word “substantially” later because we have some concerns around that. I also note her point about future regulators, so to speak. My assumption is that those regulators will be established by a different process somewhere else but, in order to add those additional regulators to this Bill, we will be seeing some more of the Minister’s statutory instruments in future. Perhaps the Minister can be clear about how future new regulators will be added to the terms of this Bill.
The noble Baroness, Lady Noakes, does not regard the noble Lord, Lord Lansley, as the Opposition, and I kind of do not, either. In this respect, I think the Minister would do well to listen to his very wise advice.
My Lords, as has been said, the changes made are welcome. However, we should reflect that there are still concerns over the powers. On 7 June, the Delegated Powers Committee produced a report on the changes. It said that the Government had still failed
“to explain what such ‘additional requirements’ or ‘conditions’ might be”
and—this is the important bit—had failed
“to explain why the amendment would leave it to Ministers to determine … whether there are to be any such conditions and, if so, what those conditions are to be.”
The committee also said that the Government had failed
“to explain why all such conditions should be a matter for secondary legislation”
rather than primary legislation—a theme to which we will continue to return.
As the noble Lord, Lord Patel, said, the GMC welcomes the changes but has asked for a couple of things to be put on the record by the Minister today. For example, can the decision on whether a particular professional is able to join a register be based on an assessment of that individual’s knowledge, skills and experience, rather than on just their qualification? Also, will the regulators make that assessment? As the noble Lord said, the GMC has asked for that, but I must say, as a potential patient, that I too would like an absolute assurance that it will be the regulator who says that someone is fit to start cutting me open, or whatever else anyone would do.
On the little secret we heard about in the briefing from the other side of the House, perhaps the mistake next time could be calling my amendment a government amendment, because that way we might be able to get it through without anyone noticing. I live in hope.
The issue raised by the noble Lord, Lord Lansley, is a good one. I also wonder whether the Bill needs an “and/or”. That seems to go to the strength of putting this amendment to one side and putting it in on Report. The Minister should not think that there is any egg on his face or anything if we ask for a pause. As I am sure he will know, it is very normal for government amendments to be put in on Report; otherwise, they have to be brought back, slightly clunkily, at Third Reading, by which time we are normally rather tired and want to leave early. So if the noble Lord could not push his amendment today so that we can deal with it on Report, that might be the best way forward.
My Lords, I thank all noble Lords who have given their careful consideration to the amendments in this group. It was an unusual experience for me standing at the Dispatch Box almost to feel a warm glow as noble Lords welcomed my amendments. The lesson that I learn from that is that the quicker one can amend one’s own Bills, the better, probably, in your Lordships’ House.
As noble Lords will appreciate, the Government have not brought these amendments lightly. As we have heard, they have been informed rightly and properly by careful engagement with healthcare regulators. I thank a number of noble Lords; perhaps I can single out the noble Baroness, Lady Garden of Frognal, for her support and the noble Lord, Lord Fox, for his comments. Without reservation, of course, my door is open to other regulators who wish to speak to me as this Bill continues its passage.
We heard again from the noble Lord, Lord Fox, on his point about consultation with the HSC. I think that group 7, which is about consultation, will be a good place to return to that and I will try to address in detail the points the noble Lords, Lord Fox and Lord Purvis, have made.
My noble friend Lady McIntosh referred back to what, in her view, was clearly the golden age of mutual recognition with the European Union. As I said previously, we would have liked to have maintained that mutual recognition. The phrase I used at Second Reading was:
“We took the horse to water but it refused to drink.”—[Official Report, 25/5/21; col. 975.]
I hope that noble Lords will support my amendments. I believe that they protect the public interest, maintain standards and ensure that regulators have the necessary flexibility and autonomy to regulate appropriately. I thank the noble Lord, Lord Patel, for his comments, echoed by the noble Baroness, Lady Hayter, and I am happy to give a complete reassurance standing at the Dispatch Box on the important points that were made.
In relation to the points made by the noble Baroness, Lady Finlay of Llandaff, about the use of the word “substantially”, we have a later group which is almost entirely devoted to discussing that word. If I may, I will leave comments on that until we get there and, again, I hope to assuage noble Lords’ fears when we reach that point.
On what happens if other regulators pop up in this field, the way the Bill is drafted and, frankly, one of the reasons why we have not included a list of professions—I am sure we will come back to that later as well—is because it is a moving target. Of course, any new profession that ends up being regulated by law will automatically fall within the purview of the Bill by being so regulated, and if it falls within the purview of the Bill, the standards of the Bill and the methods that we have been discussing today in relation to my amendments will also apply to those new professions.
I come to Amendment 11 in the name my noble friend Lord Lansley, who made some interesting points during the discussion which were reinforced by my noble friend Lady Noakes. I always admire my noble friend Lord Lansley’s forensic attention to the detail of the legislation before our House. I think all Front-Bench spokesmen from this side always listen carefully to the points that he makes. I will look at this again, but I hope that he appreciates that the wording of Amendment 10 is intended to provide more flexibility about how regulators make their determination. We believe that they need this flexibility and will find it helpful.
Some regulators—and this is, of course, completely a decision for the regulators—may consider it appropriate to look solely at what is demonstrated by a qualification obtained overseas, others may require an applicant to pass a separate test of knowledge and skills, while others may choose to combine the two. Regulators should have this broad discretion available to them. I believe, and I am advised, that the proposed removal of the word “only” from Amendment 10 could cast doubt on whether the first of those options is available. I will have another look at this to make sure that that is the right reading. Meanwhile, I ask my noble friend not to move his amendment.
I commend Amendments 3, 6 and 10 to the Committee and beg to move Amendment 2.
I call the noble Lord, Lansley, and then I shall call the noble Lord, Lord Purvis, who has requested to speak after the Minister.
My Lords, I am grateful to all noble Lords who have kindly approved of the argument made in Amendment 11 and to my noble friend for saying that he and colleagues will look at it again. I think that what they suggest is not the case. As it stands, Amendment 10 allows regulators to make a determination based on overseas qualifications and experience alone, but it runs the risk, which is a different risk, of preventing them combining that with other factors and assessments and bringing them together in the determination. That is the point. The removal of the word “only” would not, in my view, prevent a regulator making a determination based solely on overseas qualifications and experience.
I am grateful to the noble Baroness, Lady Hayter. If the Minister is willing not to move Amendment 10 today and to look at it again and bring it back on Report, I think that would be the best way to proceed. I think we all know what we want to achieve, which is to give the regulators flexibility. It is purely a drafting issue, and I am sure we will not need to be detained at length on Report if the draftsman, is, in the event, clear that the effect is as the Minister wishes it to be. He has not moved Amendment 10 yet, and I hope he will not move it when we reach it.
May I explain to the Minister that we are debating Amendment 2, with which other amendments are grouped? The debate that is taking place currently is on Amendment 2 only.
If I make a slightly longer intervention than I planned, it might allow the Minister to consult the Whips in order to respond to the noble Lord, Lord Lansley, in a constructive manner. Certainly, these Benches would appreciate it if the Minister was able not to move his amendment at this stage. Like my noble friend Lady Garden, I do not think that there is a large area of difference. I cannot speak for the Cross Benches—I see the noble Baroness, Lady Finlay—I am giving the Whip plenty of time here, I hope.
The Whip should not indicate to my noble friend Lord Fox for me to carry on speaking, because normally that is quite the reverse of what my noble friend asks me to do, which is to shut up. However, that said, I hope that the Minister will reflect on it. If he is able to respond positively with a nod, I will defer my actual comment until later on in the Bill—he is nodding enthusiastically to try to do that.
3: Clause 1, page 1, line 11, leave out “overseas qualifications or overseas experience demonstrate” and insert “individual has”
Member’s explanatory statement
This amendment alters the determination that must be made by a regulator in order for an individual to meet the condition in subsection (2) of the Clause so that the determination relates to the knowledge and skills of the individual.
Amendment 3 agreed.
We now come to the group beginning with Amendment 4. Anyone wishing to press this or anything else in this group to a Division should make that clear in debate.
4: Clause 1, page 1, line 12, leave out “substantially”
My Lords, I wondered if I had drawn the short straw for this set of amendments. It always feels slightly lonely when yours is the only name on an amendment, but I assure noble Lords that I have the support of all my Lib Dem colleagues. I beg to move Amendment 4 and speak to Amendments 5, 7, 8 and 33—there may be more to come later; I hope that this is not a spoiler alert—to remove “substantially” from the relevant clauses. It appears so often that it is obviously a favourite word of the Bill drafters, but it expresses a qualification, uncertainty and lack of conviction which we wish to challenge, and it surely threatens to undermine the authority of the regulators. If I were having an operation, or water were flooding through my roof, I am not sure that I would be reassured to know that the surgeon or the plumber had substantially the same knowledge and skills as those required by a UK surgeon or plumber, or substantially corresponded to the practice of a profession. Surely in legislation we need to be more assured. If we are genuinely looking at a level playing field between UK and overseas professionals, let us have the courage of our convictions and assure our citizens that they are in safe hands because the regulators have done their professional job and checked that qualifications and experience match across the countries, not just substantially but in their entirety.
My Lords, I support these amendments. As my noble friend has excellently explained, we are probing the use of “substantially” and highlighting what we see as its inadequacy. The Minister’s own amendments start to tackle this problem. Both the British Dental Association and the British Medical Association have concerns that the proposals focus too heavily on simple qualifications and do not adequately recognise the importance of skills and experience, as well as the vital requirement to be of good character and to put patient safety first. This is fundamental in healthcare and being of good character is of course important in teaching-related professions.
The noble Baroness, Lady Finlay, earlier outlined the concerns of the Health and Care Professions Council. The Minister may argue that the BMA, the BDA and so on are not regulators, but they represent their profession. They have a stake in the respect in which that profession is held, and they pay substantial annual fees for the recognition of their qualifications. The impact assessment makes it clear that the proposals in the Bill will be likely to increase those fees.
In some measure, the amendment encapsulates the fundamental problem with the Bill. It tries to impose a simplistic solution on an endlessly complex and dynamic situation. The Government have grossly underestimated how long it will take to replace the current structure with an adequate and comprehensive alternative. The interim recognition of qualifications is swept away on enactment of the Bill, on the grounds that it gives preference to EEA and Swiss nationals before a replacement is necessarily ready. What will it be replaced with? Another set of recognition for qualifications from countries which will then be given preference as a result of international trade arrangements.
The impact assessment goes into pages of tortuous argument about the considerable costs and lengthy processes by which the current structure will be replaced by individual regulators, including the potential reinstatement, either for individual EU countries or for the block of 27 countries as a whole. I confess that I felt an element of farce creep in when I read that. Given that background, I can be forgiven for thinking that there will be interruptions in the market and therefore a temptation to cut corners, and thus “substantially” is not an adequate insurance. A medical qualification obtained abroad may be substantially the same as the one in the UK, but if the small variation was that students were not given the same understanding of the meaning of the Hippocratic oath, that would be a fundamental problem, hence the importance of incorporating both skills and experience, and, for healthcare professions generally, of recognising patient protection as an overarching guideline.
I would have greater faith in all this if there were any reference to universities. I declare an interest as chancellor of Cardiff University. There is no reference in the Bill to universities, other higher education institutions or other training providers. They are not even listed in the impact assessment as stakeholders, so presumably they have not been consulted. In practice, the quality of all these qualifications depends on the education and training that these organisations provide, and regulators are to a large extent simply relying on the outcome of their work. Two students coming out of two different universities with degrees in biology may have studied a different range of knowledge or may have studied it to a different level of detail, so regulators have to work closely with HEIs to ensure that both scope and depth of knowledge are maintained in whatever field they need, so they need a mention in the Bill.
It is possible to imagine that, as a result of a trade deal, a UK regulator may seek an agreement with a regulator in another country where not all educational institutions or qualifications are fully accredited by that regulator. Therefore, it is essential that recognition of qualifications is only ever agreed with the regulator in each country, and the Bill must specify this too. I will take a different example: the teaching regulators. Teachers qualified and registered to teach in England are not recognised as qualified to teach in Wales. One could argue that the learning and knowledge involved is substantially the same, but the requirements on skills and experience are somewhat higher and different in Wales.
This is all so much more complex than “substantially”, and the Bill needs a significant amendment to reflect this.
My Lords, the requirement to speak Welsh in Wales is rather important.
I have some sympathy with the Minister. Later, we will get to our proposed new schedule—it is on pages 18 and 19 of the Marshalled List—to specify the regulators, again referring to the letter sent to the noble Baroness, Lady Noakes. The range of regulators covered by the Bill—and if they are covered they should be in the Bill—includes farriers, who may never have gone to university and for whom none of this might apply.
One has to be careful. Part of the problem is that we are trying to write a Bill for an enormous range of professionals. It does not include the Church—the right reverend Prelate will be very pleased—and their qualifications are probably recognised across different jurisdictions, but it includes all sorts of others, such as driving instructors. I used to call their body the DVLC, but I think it is now called the DVSA. It may well be that, in order to be able to instruct people, a driving instructor has to have five years post their own driving licence in one country but six in another. There may well be bits that are substantially the same, but I understand why we would want to include them. We are not just talking about the health service. I see the problems with that, but as a patient I would want the qualifications to be the same if not higher if we are recognising someone here.
Part of the problem is that, in writing what looks like a simple piece of law to cover the Security Industry Authority, the Royal Society of Chemistry and the Highways Agency—presumably the people who check that the roads are safe; I do not know what they do but they are in here—we have ended up with a Bill that tries to ensure that both doctors and farriers, for whatever reason the latter are regulated, are of high quality. I have some sympathy, but nevertheless I see a substantial problem in allowing too much flexibility, which would not be in the interests of patients in particular and maybe of other clients in sensitive areas. I look forward, as they say, to the Minister’s response.
My Lords, I thank the noble Baroness, Lady Garden of Frognal, for tabling Amendments 4, 5, 7, 8 and 33, which probe the use of the word “substantially” in Clauses 1 and 4, and I thank the noble Baroness, Lady Randerson, for her comments. The point is that, in the end, it is the individual who must be fit to practise, and the assessments that we make must relate to the individual. It is here where the important matter of regulator autonomy comes in, and why it is that the only people who can safely work out what is the appropriate route for a particular profession and the right mix between the individual, the skills and the qualifications seems quite properly to be the regulator. That is the key safeguard that we want to achieve under the Bill.
I turn to the amendments. As we know, Clause 1 is the “Power to provide for individuals to be treated as having UK qualifications”. If amended as the Government suggest, under Clause 1 an individual would be treated as having UK qualifications if the regulator determined that the individual had substantially the same knowledge and skills to substantially the same standard as are demonstrated by the specified UK qualification or experience. The noble Baroness asked some interesting questions about this approach and whether it undermines the freedom of UK regulators. I reassure noble Lords that the issue has been very carefully considered.
If we removed the word “substantially” from Clause 1, that would change the requirement such that individuals would need the same knowledge and skills to the same standard as demonstrated by the specified UK qualification or experience. That suggests an assumption that it is often the case that skills and knowledge gained in one country for a profession exactly match those gained in another country for that profession. It also suggests an assumption that it is often the case that a profession in one country covers exactly the same set of activities as the equivalent profession in another country. Of course, these assumptions are not necessarily valid. So while it might make it easier for UK regulators to decline applications, removing “substantially” would remove regulators’ flexibility in considering how skills and knowledge developed overseas translate into the UK profession.
In the event that regulations were made under Clause 1 as drafted, regulators would have the discretion—and I believe that is where the discretion should sit—to make appropriate judgments about whether overseas skills and experiences meet their expectations to an acceptable degree. That drives us back to the consideration of whether the individual is fit to practise in substantially the same way as a UK individual would. This does not water down expectations and is not a compromise on quality, because if a regulator felt that the quality had not been maintained then they would not want to approve that person. The individual’s knowledge and skills must be substantially the same.
Lastly, including “substantially” does not restrict the freedom of regulators to make determinations of equivalence in ways that they deem fit. We come back to a point that we discuss regularly in this debate: the importance of regulators’ autonomy in deciding exactly the right approach to take.
On the question of English language proficiency, at Second Reading the noble Baroness raised the need in certain professions for demonstrable English language proficiency in order for an individual to deliver professional services to the standards required in the UK, and for regulators to be able to consider this. The Bill allows regulators to take into account language requirements as part of an assessment of knowledge and skills. Alternatively, under Amendments 2 and 10, regulations could provide that passing a language test was an additional condition in itself.
Amendment 33 examines the definition of “corresponding profession” in relation to authorisation that can be given by the appropriate national authority to enable regulators to enter into regulator recognition agreements. The amendment would change the permitted scope of regulator recognition agreements from those with overseas professions whose activities are
“the same as or substantially correspond to”
the UK profession to those with overseas professions that are “the same as or correspond to” the UK profession. As I have explained, there are differences between professions in different countries, and differences between how they are regulated between jurisdictions. Even under the EU’s prescriptive mutual recognition of professional qualifications directive, there were differences in the qualification requirements between different EU member states. The clause as drafted reflects the reality that professions do not exactly align across different countries’ regulatory systems and standards. Some countries do not make the same distinctions as us in how they define professions—for example, England and Wales distinguish between barristers and solicitors, but that is not the case in many other countries.
The amendment would narrow the circumstances in which a recognition agreement could be made, potentially preventing recognition agreements from being made at all if professions did not directly align with one another. The Government believe this would limit the autonomy of regulators to make decisions about how similar professions are in different countries. Regulators should be free to determine for themselves where it is appropriate to enter into regulator recognition agreements with their counterparts overseas.
Many noble Lords have spoken passionately about the need to ensure that regulators can make decisions that are appropriate to their professions. I hope I have explained why the word “substantially” is an important qualifier that allows for more regulatory autonomy in these clauses, and indeed in the other clauses where it is used, and that, on that basis, the noble Baroness is able to withdraw her amendment.
I call the noble Lord, Lord Fox, who has asked to speak after the Minister.
I thank the Minister, who has used words to set out why the Government want to put “substantially” in there but in no sense explained it. Again, the Minister stated the importance of regulatory autonomy for the regulators, which of course is why I proposed Amendment 1—to put it at the very beginning of the Bill, rather than in words such as “substantially”, which mean several things to different people, in the body of the legislation. I have one specific question. Can the Minister tell us what the legal judgment is on including “substantially” and opening up regulators to legal challenge? In other words, if the law says “substantially”, who determines that, and is there legal recourse for an individual who has been turned down by a regulator to use that word to make a legal case? If the Minister does not have that legal writing to hand, perhaps he could furnish it before the next day in Committee.
I thank everybody who has spoken on this debate, which turned out to be rather more interesting than I was expecting. I can see the two uses of “substantially” and
“the same knowledge and skills”.
Perhaps “the same range of knowledge and skills” would be right, but I cannot understand why “substantially the same standard” is right, because surely we should be looking for “the same standard” throughout. I might amend some of the amendments on this point but I am not assuaged, I am afraid, by the Minister. He also did not really address the important points made by my noble friend Lady Randerson about why higher education institutions and others were not involved.
The noble Baroness, Lady Hayter, mentioned the farriers. I believe the farriers are regulated by a livery company, are they not? I declare my interest with City & Guilds; they are likely to have City & Guilds qualifications rather than degrees in farriering. I could be wrong on that but, from memory, that is what happens. But she is quite right that the range of these professions is extremely wide. Many of them are almost crafts and trades, rather than professions, but perhaps everything is a profession these days.
On that basis, this has been a very important debate and we may need to return to it at the next tranche. And we have another load of the word “substantially” in the next half of the Bill to have fun with. Meanwhile, I beg leave to withdraw this amendment.
Amendment 4 withdrawn.
Amendment 5 not moved.
6: Clause 1, page 1, line 19, leave out “overseas qualifications or overseas experience fall short of demonstrating” and insert “individual does not have”
Member’s explanatory statement
This amendment alters the determination that must be made by a regulator in order for an individual to meet the condition in subsection (3) of the Clause so that the determination relates to the knowledge and skills of the individual.
Amendment 6 agreed.
Amendments 7 and 8 not moved.
We now come to the group beginning with Amendment 9. Anyone wishing to press this or anything else in the group to a Division must make that clear in the debate.
9: Clause 1, page 2, line 2, at end insert—
“(iii) that the conditions mentioned in sub-paragraph (ii) can be met without imposing unreasonable costs or other burdens on the specified regulator or on individuals who are already qualified to practise the specified regulated profession, and”Member’s explanatory statement
The amendment adds an additional determination requirement related to the costs and other burdens involved in dealing with overseas professional qualifications which fall short of the standards of the relevant UK qualifications.
My Lords, the noble Lord, Lord Palmer of Childs Hill, who is no longer in his place, explained the concerns which underpinned his Amendment 12, debated earlier this afternoon: namely that regulations could impose unreasonable burdens on a regulated profession to remedy a lack of appropriate qualification or experience in overseas professionals. My amendment has the same core concern. It was drafted after reading similar concerns expressed by the British Dental Association, which highlighted the burdens that could be imposed on regulators if they are required to assess professionals or overseas qualifications, or to develop new recognition agreements, to comply with regulations under Clause 1.
Even if regulators have autonomy over individuals who can practice, the regulations under Clause 1 could well impose burdens and costs in making the regulators set up operating processes to carry out the assessments to make the decisions, including having to assess the suitability of overseas awarding institutions, as well as the nature of practical experience that comes with individuals who wish to practice. In addition, it was noted that the costs which were incurred in any such new activity are likely to end up being borne by existing members. Regulators get the majority of their income from membership fees, and asking existing members to shoulder the costs of funding a problem of having too few professionals—which is what Clause 1 is said to be for—is, at the very least, unfair. That is why my amendment refers to the impact on existing members of the profession.
Amendment 9 would add a new determination that the regulated profession must make: that the additional processes of making good any deficiency in an overseas qualification
“can be met without … unreasonable costs or other burdens on”
the regulated profession or the existing members of that profession. I have expressed this in terms of costs or burdens because a regulated profession might, for example, have a shortage of suitable individuals who could carry out the processes and who therefore could not be obtained at any cost. It would actually be imposing an unreasonable burden for the regulated profession to bear. Importantly, my amendment places the judgment in the hands of the regulated profession.
Clause 2 refers to “unreasonable delays or charges”. These are words that my noble friend Lord Lansley wishes to delete with his Amendment 18, which is also in this group. But from my perspective, it should always be the regulated profession, and not the Secretary of State or other national authority, who should make that judgment. I look forward to hearing what my noble friend has to say about his Amendment 18, but I see the place for assessing burdens and costs, and that that assessment should be made by the regulated profession. I beg to move.
My Lords, I am very glad to speak to my Amendment 18 in this group.
In relation to Amendment 9, moved by my noble friend Lady Noakes, I think she has a point. Somewhere, we should be taking account of the costs that are imposed on regulators, and by extension as they are imposed on the professionals who are themselves regulated. In the previous group, the noble Baroness, Lady Randerson, referred to the material in the impact assessment on that point. Personally, I do not think Amendment 9 puts it in the right place, with great respect to my noble friend. There is a good point for putting it perhaps slightly later in Clause 1, and we may come back to this on Report. It seems that it certainly should be taken into account in the making of regulations under Clause 1; it just is not, at the moment. For example, there are things as to fees being paid in connection with an application but nothing to do with the regulations taking account of the costs on those regulated, including those who are currently regulated in that profession.
Why have I brought forward Amendment 18? The reason is that it relates to the inclusion of
“without unreasonable delays or charges”
at the end of Clause 2(2). What does that do? It is trying to define the circumstances where demand for a professional service is not being met. My fundamental problem with it is that it illustrates this by reference to unreasonable delays or charges. The implication is that this is the criterion by which one measures whether professional services are in sufficient supply.
For example, in relation to the health service, it is very hard to measure why there are delays for treatment. Sometimes they occur because of lack of workforce and sometimes for completely different reasons. It may be incredibly difficult to ascribe delays to simply having insufficient overseas applicants for a particular profession in the health service. Charges will be even more difficult since we do not charge. It may be possible to do this for dentistry but not for most other healthcare professions, since we do not charge consumers for access to services.
Interestingly, my noble friend Lord Grimstone wrote a letter to the Delegated Powers Committee—I think last Thursday—which is in its latest report, published on Monday. There is a paragraph which comes exactly to this point, in which he says:
“The Committee sought further clarification on the point that this demand needs to be met without unreasonable delays or charges. Those words make it clear that regulations can be made where the demand for the services of the profession is, strictly speaking, being met but the consumers of those services are experiencing unreasonable delays or having to pay high charges.”
Demand for those services under those circumstances is not, “strictly speaking, being met”; it is not being met. We do not need to write “unreasonable delays or charges” into the Bill for it to be evident that, in circumstances where insufficient members of a profession are providing services, there are delays in accessing those services; that is plainly the case.
As the end of the same paragraph, the Minister says, rather tellingly, that unreasonable charges and delays
“are illustrative of the considerations that the appropriate national authority would make in relation to this condition.”
“Illustrative” is not what the Bill says. It does not say “for example”, which it might well say. It says
“met without unreasonable delays or charges.”
It specifies those factors, so I think we should take them out. If unreasonable delays or high charges to consumers result from a lack of professional supply and that can be remedied by overseas applications, the appropriate national authority can make such a determination. It does not need the Bill to reference “unreasonable delays or charges” for that to happen.
I hope my noble friend will recognise that, in this respect, I am not trying to argue that delays or extra charges are not important; they are very important and may well be the principle determination one looks for in some professions. In others, one looks for other things. We should simply take those words out when the time comes—I hope we will—and the appropriate national authority will, if necessary, properly consult on what the demand for a professional service may be and the circumstances in which it is not being met.
My Lords, the Explanatory Notes state about Clause 9 that
“a regulator in one part of the UK could ask an equivalent regulator in another part of the UK for information relating to an individual’s fitness to practise and, where applicable, any instances of professional sanctions. This provision ensures that regulators in all parts of the UK have access to information that helps them fulfil their obligations.”
Does the Minister agree that, in view of the duty of all regulators to co-operate with each other, it should be mandatory for all four nations to allow any professions to practise in all four nations without any hindrance?
I am grateful to the noble Baroness for bringing forward these amendments. She is very modest and did not tell the Committee whether they are considered opposition amendments, but, if it is not too unhelpful for her, I will say that I am very sympathetic to them. We have been considering them very carefully.
The noble Lord, Lord Lansley, quoted the interesting response from the noble Lord, Lord Grimstone. I think it was fairly clear that the Government intend to have these powers to, if they so choose, change the ability of the regulators to set fees for applicants. The Government will take those on board and then, for international trade purposes, set the fees for applicants. That changes the responsibility of the regulator quite dramatically, especially since many regulators, under law, have to seek approval from the Privy Council or the Scottish Parliament to do so.
I ask the noble Baroness, Lady Bloomfield, whether she might respond to the two times I asked the noble Lord, Lord Grimstone, about whether any of the regulations under this Bill will impact the oversight and accountability of the Privy Council regarding the setting of fees and the professional standards authority regarding its oversight. If the Government cannot, in Committee, offer reassurance on that point, then we are in a separate situation of considering the relationship of the Privy Council and Scottish Parliament.
If the Government intend to have the new powers now under the provisions of Clause 1(5)(e), which makes
“provision for fees to be paid in connection with an application”,
we have to look very closely at the impact assessment with regard to the impact of the Bill on fees. In their impact assessment, the Government have said that there is a high cost of this Bill of £42.82 million and a best estimate of £18.16 million. Let me be fair to the Government and take their best estimate of £18 million. The impact assessment says:
“These costs could be passed through in fee increases to professionals”.
I raised the staggering costs of this to professionals—the applicants—at Second Reading. The Minister responded that I should not be too concerned because this was not cost to the Government. It is not—it is to the applicants. I think the noble Baroness, Lady Noakes, and I agree; the Government do not have money—it is taxpayers’ money, as we are always told from that side of the House. The people who will be paying £18 million for this are the applicants. The Government say they want these new powers to reduce fees, but by implementing these powers the fees are going up. What is their plan, given that one completely contradicts the other?
The Minister may be able to help me out here as I do not know, but it may be that the Government are using the Home Office forecast of a 70% reduction in applicants from the EEA and Switzerland as a result of leaving the mutual recognition arrangements with the EU. Paragraph 90 of the Government’s impact assessment says that this
“may save resources by no longer assessing applications. It should be noted however that these regulators will also no longer receive the fee revenue attached to these applications.”
We could see a 70% reduction in the foreign fee applications, with an £18 million increase in this bureaucracy, which the Government say is going to be paid by British applicants.
I hope that the Committee is following me. If it is, I will refer back to the Department of Health and Social Care’s live consultation on the medical professions, which says in paragraphs 71 and 72:
“Four regulators (the GMC, GDC, GOC and the GPhC) can set registrant fees without any Parliamentary oversight. The remaining regulators can only implement fee changes with the approval of the Privy Council and, in some cases, of the Scottish Parliament ... We propose that all regulators should be able to set their fees in rules without Parliamentary oversight. This will make regulators directly accountable to registrants for the fees that they charge.”
However, this Bill will not do that; in fact, it is completely contrary to the proposals in the consultation for the medical professions to remove parliamentary oversight. The Bill is putting it in.
If that were not bad enough, the current situation for regulators setting their fees, as paragraph 73 says, is:
“Any fee changes, including those to put in place a longer-term approach, would require consultation.”
The Government are proposing—this relates to the point made by the noble Lord, Lord Lansley, about where the amendment of the noble Baroness, Lady Noakes, could fit—to put these regulations in place, with these provisions on fees and extra costs, through the negative procedure without any consultation. The Government are not only contradicting what they are saying to the medical regulators at the moment but weakening the ability of—or the requirement for—regulators to consult on who would pay these fees in the first place.
I would be grateful if the Minister could neatly wrap all this up for me because I am really struggling to work out whether BEIS or the Department of Health and Social Care is in charge of this situation. The impression I get at the moment is that no one is.
My Lords, I will dwell on Amendment 18 in the name of the noble Lord, Lord Lansley. As he said, delays to services may not have anything to do with the workforce, although they may. I put my hands up: I live in a cladded building at the moment, and we feel strongly the lack of specialist fire surveyors to get things going. Therefore, one may have unmet demand for all sorts of reasons. Another one—save I would not want to say it to the ex-Secretary of State for Health—might be that the Government just do not spend enough money on the health service.
The issue that I really wanted to raise is not that one—I just cannot help teasing from time to time, as the Minister will well know—but the other point that the noble Lord, Lord Lansley, raised. In that letter sent by the noble Lord, Lord Grimstone, on 3 June to the Delegated Powers and Regulatory Reform Committee, which is in its report of Monday, the Minister said—it has already been quoted—that, in ascertaining whether there is an unmet demand for a particular profession, “delay” could be a factor. More surprising to me to hear from a Minister on that side of the House was his reference to “high charges” charged by the profession. Normally, that side of the House in particular would stray away from any government intervention in the setting of fees by professions or indeed any other service. As a consumer representative, I have often gone to the CMA or other regulators, saying, “We’re being ripped off”, and they say, “No; as long as the consumer knows what they’re paying beforehand and has the chance to take themselves out of the contract, we or the Government do not get involved in the fees charged to consumers”. As such, I find this unusual because it sounds like the Government are saying that if they felt that lawyers or surveyors, for example, were charging “high” fees—that was the word that the Minister used in the letter, not “excessive”—they could bring in regulation to open up the profession to outsiders. I hope that I have got that wrong, but it looks to me as if that is what this says, or it could be a way of defining it.
In a later group, we will come back to how we deal with skills shortages, and we will make comments at that point about the Government’s responsibility to fill any such shortages. However, at the moment, I ask for some explanation about whether it really is possible for the Government to put themselves in a position of defining whether a professional is charging excessive fees and, if so, being more sympathetic to bringing in overseas providers. Some clarity on that would be appreciated.
My Lords, I thank my noble friends Lady Noakes and Lord Lansley for Amendments 9 and 18, which bring together two elements of the recognition framework proposed under the Bill. Noble Lords have raised some interesting points about the Bill’s potential impact on professionals and consumers of their services.
I turn first to Amendment 9, tabled by my noble friend Lady Noakes, which seeks to ensure that any cost or burden on UK regulators in helping individuals with overseas qualifications or experience to make up deficiencies in their knowledge or skills is reasonable. The amendment proposes that particular means of addressing these deficiencies should not be available if the costs or other burdens on UK regulators and existing UK professionals, including those who fund professional bodies, are not reasonable.
By way of background, I note that Clause 1 allows the regulator to specify a means for an individual with overseas qualifications or experience to make up for a shortfall in their knowledge and skills, compared to UK requirements. This is typically known as a compensatory measure, which could include aptitude tests, completion of an academic course or further experience. If Ministers in the UK Government or the devolved Administrations make regulations under Clause 1, the regulator will decide the means by which it assesses individuals with overseas qualifications and experience. It is for the regulator to specify any appropriate compensatory measures.
I agree with my noble friend that any compensatory measures to demonstrate that the professional has met this standard should not be unreasonable or burdensome on the regulator or the qualified professionals whom they regulate. This is why there is no requirement for the regulator to have to specify a means to make up shortfalls where it is not appropriate or not available. There is no requirement for the regulator itself to provide particular courses or experience to an individual to help them make up shortfalls.
In some cases, a regulator may, for example, simply specify that the individual must complete certain academic courses or obtain a certain amount of additional work experience. This would not place unreasonable costs on the regulator. I should add that compensatory measures are a commonly used approach in professional qualification recognition; it is not a new concept or practice for many regulators.
For example, if English language proficiency were required in order properly and safely to practise a profession, it would be reasonable for a regulator to require an individual with poor English to take a course and pass exams to show that their English had improved. It would not be necessary for the regulator itself to deliver that course. In conclusion, I hope that regulators would not consider that compensatory measures place unreasonable costs or burdens on them.
Amendment 18, tabled by my noble friend Lord Lansley, who speaks with some authority in this field, seeks to remove “unreasonable delays or charges” to consumers being taken into account under the condition in Clause 2 for making regulations under Clause 1. Instead, the condition would focus solely on whether regulations would enable demand for professional services to be met.
Clause 2 limits the scope of the power in Clause 1 to a specific set of circumstances where the appropriate national authority deems it necessary to enable the demand for services provided by that profession to be met without unreasonable delays or charges. By this, I mean that the consumers of those services in the UK are experiencing unreasonable delays or having to pay high charges. An illustrative example of an unreasonable charge might be where consumers or businesses face unreasonably high fees caused by a shortage of professionals. For example, this could be the NHS—a consumer of professional services—or the general public’s consumption of them, direct from a professional. An unreasonable delay might, for example, occur if a profession was unable to deliver its services quickly enough without more professionals in the workforce. This could include, for example, waiting times for social worker support—so unreasonable delay or cost can be made distinct from demand or shortage. Without this wording, the levers that we have to take action where there is a need are narrowed.
The practical effect of this Clause 2 condition is that the requirement imposed by the Clause 1 power is targeted where the UK, and the nations in the UK, can benefit most. As I have said, our overarching approach is to respect regulators’ autonomy and leave it to them to make arrangements to meet the demand for professional services in the UK. The Clause 2 condition is something of a safeguard that the Government will act using Clause 1 only where necessary. Modifying the Clause 2 condition in the way proposed would remove these valid considerations of the impact of unmet demand from any determination made under Clause 2.
I know that the noble Lord, Lord Oates, brought up the question of fees and the cost of this at Second Reading. I shall try to allay his fears by saying that the Government would, obviously, undertake any impact assessment for fees in line with the Government’s better regulation framework. Given that, we just do not see any reason to have an obligation to do so in the Bill. All regulators can increase fees without parliamentary oversight but with consultation.
Lastly, the noble Lord, Lord Bhatia, asked about the four nations, their abilities and their powers in relation to the regulation of professions. We will cover all matters to do with the devolved Administrations at a later stage in the Bill. With the reassurances that I hope that I have been able to provide, I hope that my noble friend will withdraw her amendment.
I have received a request to speak after the Minister from the noble Baroness, Lady Hayter of Kentish Town.
The Minister has not answered my question. She seems to have continued to say that a national authority—that is, the Government or one of the devolved Governments—can decide when a professional is charging high fees. Can she be absolutely clear that she is saying that? I would like to know on what basis that would be and whether they would go to the CMA for advice. Whether it is a farrier or anything else—or an accountant, although I think they are not covered—on what basis is a Minister going to decide that a professional is charging a high fee? Will that be challengeable in court or via the CMA? What would be the mechanism for that decision?
I am sorry that I gave that impression, but I do not believe that I did give the impression that the Government would set the fees. There would be a mechanism for oversight, which would be the impact assessment route that I mentioned in my speech.
I have had a request to speak from the noble Lord, Lord Purvis of Tweed.
Could the Minister repeat what she said at the Dispatch Box? She said that the regulators do not have parliamentary oversight in setting their fees. The Health Department’s consultation at the moment says that four do not but the remaining ones do. They have to secure the approval of the Privy Council and, in some cases, the Scottish Parliament. So which is it, and will any of these regulations have any impact on the relationship with the Privy Council and the Scottish Parliament when it comes to the fact that they have to approve changes of fees?
Perhaps I can clarify what I said earlier. The Privy Council is the intermediary between independent regulators and the Government; it is essential to maintaining regulators’ independence, such that regulators are able to deliver their duties impartially. There is no relationship between the council and the Bill.
My Lords, I thank all noble Lords who have taken part in this debate for their contributions, an awful lot of which were on my amendment. Some important issues were raised by the noble Lord, Lord Purvis of Tweed, and the noble Baroness, Lady Hayter, none of which have been very satisfactorily dealt with by the Minister.
I turn to my amendment. I thank my noble friend Lord Lansley for his support and accept his challenge to look at the positioning of my amendment if I decide to take it forward at a later stage. The Minister talked as if compensatory measures were just sitting in every regulator’s toolbox to deal with every situation that could possibly arise, but the truth is that compensatory measures will have been designed for the sort of applicants who have already been coming to the UK for assessment, and they are not going to cause any problem. We do not even need this Bill for those applicants.
We are most likely to encounter problems when other forms of overseas applicant arise, with less traditional professional qualifications and/or experience. It is that which is likely to cause the burdens on the individual regulated professions to cope with things that they are not already coping with. The question posed by my amendment was about how we avoid unreasonable burdens being placed on those regulators and, in particular, on existing members of those professional bodies who fund the regulators.
To be honest, I do not think that the Minister answered that question at all. There is a very real problem there. I can see that we are not going to progress it any further today, but I recommend to my Front Bench that all the issues raised in this debate are looked at again before we get to Report because there are some big unanswered questions arising from this debate.
Before inviting the Committee to consider the withdrawal of the amendment, I call the noble Lord, Lord Lansley, who was attempting to come in after the Minister.
I am grateful. I just wanted to make a point after the Minister because I think she made a fundamental error in suggesting that if we were to take out the words
“without unreasonable delays or charges”
from this subsection unreasonable delays or high charges would not be able to be considered as factors in determining whether demand is met. On the contrary, they will be considered with other factors. They would not be excluded.
We will clearly come back to this again on Report because the reply to the debate was not satisfactory, and we will have to write these things out in more detail. Will my noble friend at least just agree that removing those words does not mean that those factors are not taken into account?
Amendment 9 withdrawn.
Amendment 10 not moved.
Amendment 11, as an amendment to Amendment 10, not moved.
Amendment 12 not moved.
13: Clause 1, page 2, line 8, at end insert—
“(4A) Before regulations under subsection (4) may be laid before Parliament, Senedd Cymru, the Scottish Parliament or the Northern Ireland Assembly, the appropriate national authority must undertake a formal consultation with the devolved administrations, regulators and the Lord President of the Court of Session.”
I am delighted to move Amendment 13 and to speak to Amendments 24, 35 and 40. I thank the noble and learned Lord, Lord Hope of Craighead, for his support of these amendments. I shall speak also in support of Amendment 41, and look forward to hearing more detail and the thinking behind Amendment 42, in the name of the noble Baroness, Lady Randerson, Amendment 49, in the name of the noble Baroness, Lady Hayter, and Amendment 57, in the name of the noble Lord, Lord Purvis.
On the background to Amendments 13, 24, 35 and 40, the case was made at Second Reading, and I have now followed that up more firmly with these amendments. It is really about having regard to two distinct concepts. I come from the background of the Faculty of Advocates, albeit now as a non-practising member. There are separate jurisdictions of law in the UK, and 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 throughout the Bill.
Secondly, as I said at the outset, it is a process of not just recognising that the distinct nature of legal services needs to be recognised and respected but also that the regulation of the legal profession, certainly as regards solicitors and advocates, is devolved. What I propose to do, and I hope that the House will support me in this regard, is to ensure that there will be a formal consultation with the relevant devolved Assemblies before any regulations are made under the provisions of the Bill as passed.
Amendment 13 relates to Clause 1, but the wording that I have used is similar in relation to Clauses 1, 3 and 5—Clause 3 relates to the “Implementation of international recognition agreements”, and Clause 5 relates to the “Revocation of general EU system of recognition of overseas qualifications”. A slightly different wording is used in Amendment 40 to reflect the fact that this relates to the setting up of an “Assistance centre”. As regards Amendment 40, I would go so far as to say that there should be a formal consultation with the devolved Administrations and regulators. I think the noble Lord, Lord Foulkes of Cumnock, and I have both been greatly assisted by the Law Society of Scotland in our preparation for this afternoon, and I thank the society most warmly for that.
The noble Lord, Lord Foulkes, goes further and goes to the question of consent—that consent be specifically given. In that regard, if that consent is not given then the understanding is that the arrangements would not proceed. I think it is extremely important, again underlining the fact that the purport of these regulations —also as regards to the assistance centre—must have regard to the nature of the devolved Administrations and regulators.
Amendment 49 in the name of the noble Baroness, Lady Hayter, and supported by the noble Baroness, Lady Randerson, looks to the common framework agreement. I have just one little question here. Is that what we understand by the common frameworks? I am following this as closely as I can, albeit living in England. Is the noble Baroness referring to the existing common frameworks, or is she proposing a separate one in that regard?
I believe that it really is essential that we adopt either Amendments 13, 24, 35 and 40 or something equivalent to them. I hope that my noble friend the Minister will look kindly on these amendments and go some way to assuaging my concerns that, without these amendments, we are not going to have a full consultation in advance of these regulations being laid.
With those few opening remarks, I look forward to hearing the rest of the debate on these amendments. I am grateful for the support of the noble and learned Lord, Lord Hope of Craighead. I have taken the precaution in Amendments 13, 24 and 35 to acknowledge the fact that the Lord President of the Court of Session has a specific role to play in regulating the legal profession in Scotland.
My Lords, like the noble Lord, Lord Lansley—who, following the revelations from the noble Baroness, Lady Noakes, I suppose I should now call my noble friend Lord Lansley—I did not participate in the Second Reading debate, as I was not able to be here, unfortunately. I agree with many people who said on that occasion that, although this is not a contentious Bill, it is a very important one. When you think of the number of professional bodies and areas of employment that are being regulated—more than 160—it is really a very important issue. I will come back to that.
However, I have sat through now two and three-quarter hours of what purports to be a Committee stage of the Bill. I must say that it is really a very disappointing and inadequate way of dealing with a Bill. It is not proper consideration when we cannot intervene properly and ask questions when the Minister is speaking and cannot intervene on each other. I would have liked to have intervened on the noble Lord, Lord Purvis. We could have had a dialogue about the Privy Council, of which I am a member. I know nothing about any of these matters because it is all delegated to various committees of the Privy Council. We could have maybe explored that.
There are other issues. The noble Lord’s predecessor in the Chair, the noble Lord, Lord Faulkner of Worcester, was very good and allowed the noble Lord, Lord Lansley, to come in without having to go through the process of emailing the Clerk. I think the noble Lord, Lord Purvis, managed to whisper in the Clerk’s ear. It is excellent that there is some flexibility, but it ought to be more flexible. We ought to have a proper Committee stage. The interesting thing is that most of the people participating have been here in person. There are relatively few today in this Committee stage on the screens. That is why I think that the Procedure Committee and the usual channels need to carefully consider changing the arrangements for Committee and Report stages, which are so important in dealing with aspects of Bills.
It was a fascinating exchange earlier between the noble Baroness, Lady Noakes, and the Minister. Under normal circumstances, there would have been a different kind of dynamic arising from that exchange. It could have been much more helpful in dealing with this Bill. At the moment, because everyone has to be dealt with equally—whether they are at home, as I was on a number of occasions, or here—we cannot have a proper Committee stage. One of my colleagues, the noble Lord, Lord Campbell-Savours, has suggested that we do away with that equality and the Procedure Committee should say that, for Committee and Report stages, certainly, those who are present should be able to operate normally as we used to do and that people at home should accept that and understand that. If they want to participate, they should be able to come here in one way or another. I really think that, in terms of considering our legislation properly, we need to look at that. That is nothing to do with the amendment, by the way, but it is very important.
Can I also say another thing that I would have said in Committee? As my noble friend Lady Hayter said earlier, there has been a lack of investment in training of doctors and nurses—over the last 10 years, in particular —so that we do not have home-trained doctors and nurses. I worry that some of the motivation of some people in the Government behind this—not everyone—is to bring in doctors and nurses from overseas as quickly as possible to make up for the fact that they have not been training enough doctors and nurses. As someone who has been involved in overseas development for years now—I used to be Minister in that department and now we are suffering that huge cut in our overseas development assistance—I think it would be wrong for us to drag in too many people and to see this as a way of bringing in too many doctors and nurses from overseas from countries that need them equally as much as, if not more than, we do, and which need their health infrastructure strengthened. That is nothing to do with amendment either, but it gets it off my chest.
The amendment would require the Secretary of State to seek the consent of the devolved Administrations —but with qualifications, I say to the noble Baroness, Lady McIntosh of Pickering—prior to making arrangements for the assistance centre. We welcome the provisions regarding the assistance centre; I speak on my own behalf, but I know, as does the noble Baroness, that the Law Society of Scotland welcomes it. Like her, I am grateful to Michael Clancy and his colleagues from the Law Society of Scotland for their help on these amendments.
The centre will provide advice and assistance regarding entry requirements—we will come to other aspects of it later—to those seeking to practise a profession in the United Kingdom or to those with UK qualifications seeking to practise overseas. We note the obligation on regulators, contained in Clause 7(2), to provide the designated assistance centre with any information it may need to carry out its functions. That seems entirely appropriate in the circumstances.
The obligation to make arrangements for the assistance centre lies on the Secretary of State. However, the centre will provide advice and assistance covering the whole of the United Kingdom, not just England. Accordingly, we consider that it would be important, and reflect the acknowledgement of the role of the devolved Administrations in earlier clauses of the Bill, for the devolved Administrations to be rather more than consulted on the arrangements for the creation of the assistance centre.
What I suggest in the amendment, as the noble Baroness, Lady McIntosh, generously said, goes further and is more radical than the amendment she has proposed. However, it would not give the devolved Administrations a veto; it says that the Secretary of State—should first “seek the consent” of the Scottish and Welsh Ministers and department in Northern Ireland; that is where I go further. If the Government do not get that consent within a month—it gives the devolved Administrations a veto or delaying power of a month—they can still go ahead. But if they do, notwithstanding the fact that they have not got approval from the devolved Administrations, they then have to publish a statement explaining why the Secretary of State decided to make the arrangements without the consent of the authority or authorities concerned. They have to explain why they have not taken account of representations before going ahead.
I say to my friend, the noble and learned Lord, Lord Hope, who knows more about the United Kingdom Internal Market Act than anyone around today, that this replicates the compromise that was agreed in that Act when we discussed it as a Bill in relation to, for example, the CMA and other aspects. Does the Minister consider that my amendment would have the same effect as the Government have already agreed in relation to the internal market Act? It is not revolutionary; it is more radical than the amendment of the noble Baroness, Lady McIntosh, but it is something that the Government have already agreed to in terms of the internal market Act. I therefore hope that it will be considered sympathetically by the Government.
Just for clarification, if a Member wishes to speak after the Minister and is in the Chamber, they can message the clerk; if they are online, they can email the clerk. But all requests must come through the clerk to the Chair. I call the noble Baroness, Lady Randerson.
My Lords, I wish to speak specifically to Amendments 42, 49 and 57, which I have co-signed. They all address issues related to the interaction of UK Government powers with those of the devolved Administrations and each of the three relates to different aspects of that issue.
Amendment 42 relates to the national assistance centre. The impact assessment makes it clear that this will be a centralised facility under the control of the Secretary of State, but it will also provide information and assistance in relation to devolved regulators and where the professional qualifications are different in the devolved nations. In preparation for this debate, I went online and explored the websites of a range of regulators. They all seem to provide comprehensive advice and information services, so I am puzzled as to what the problem is. Why is it necessary for the Government to overlay the well-established structure of regulators with this additional bureaucracy with—of course—its accompanying additional cost?
Because I am of a suspicious nature, I feel that the real purpose of the assistance centre is to enable to the UK Government to override the differences between the nations of the UK and, when making trade agreements, to take the opportunity to iron out those annoying differences in qualifications in one part of the UK and another. Hence my amendment, which simply requires consultation with the devolved Administrations on the function and operation of the assistance centre before it is established.
It should not be necessary to state this basic constitutional principle in terms of an amendment to a Bill, but the Government’s approach to this Bill has been woeful so far. It has been developed at speed—the noble Baroness, Lady Hayter, suggested it was on the back of an envelope—at a time when elections meant that there have been none of the usual opportunities to consult the devolved Administrations. In Wales, officials did not even see a draft of the Bill until the week before its introduction. They did not see the final version until we all saw it, when it was laid.
As drafted, this Bill confers a suite of regulation-making powers on the appropriate national authority. In Wales, the Welsh Ministers are that authority for the devolved areas, but the powers conferred on them are exercisable concurrently with the Secretary of State and the Lord Chancellor—hence the Secretary of State and Lord Chancellor could legislate in devolved areas and would not need to obtain Welsh Ministers’ consent.
As things stand, all the devolved Administrations appear to be opposed to this Bill in its current form. In Amendment 42, I offer just a modest solution to a very small part of the problem that the Government face. I would be grateful if the Minister could explain exactly how he sees the assistance centre working, how large it will be, what it will actually do and the estimated cost.
Amendment 49 relates to the interaction of this Bill with common frameworks, an issue that was raised by the noble Baroness, Lady McIntosh. Several noble Lords can boast that they have the T-shirt in relation to common frameworks and their interaction with government attempts to regain devolved powers. We fought several rounds with the Government on this issue during the passage of the internal market Bill. It is not at all clear how this Professional Qualifications Bill interacts with the well-established common frameworks programme.
There is a recognition of professional qualifications framework in preparation by BEIS, but it seems to have been delayed and there has been no explanation for that delay. Is this Bill designed to replace that common framework? If so, the Government need to tell the devolved Administrations, because they would much rather go ahead on the basis of a framework that involves non-legislative co-operation and a lot of working by consensus. This amendment is designed to ensure that the common framework on professional qualifications is not undermined or overtaken by any provisions in this Bill.
The noble and learned Lords, Lord Hope and Lord Thomas of Cwmgiedd, the noble Lord, Lord Foulkes, and I are all members of the Common Frameworks Scrutiny Committee. This week we took evidence from the noble Lord, Lord Dunlop, and discussed his report on the future of the union. The emphasis in that discussion was on the need to develop the strengths of working together co-operatively. There was a consensus that common frameworks are a key part of this development.
Amendment 57 would mean that the Secretary of State would make regulations under this Act, when passed, only if they related to England or to the whole of the UK, or were outside the legislative competencies of the devolved Administrations. There are an awful lot of regulatory powers in this Bill, including powers to amend primary legislation via statutory instruments. Paragraph 23 of the Delegated Powers and Regulatory Reform Committee’s report remarks that not only does the Bill allow requirements based on statute to be watered down by secondary legislation, but there is not even a requirement to consult the devolved Administrations. This is just not good enough.
Amendment 57 is long and complex. It may need some tightening up on Report. I am pleased that the noble and learned Lord, Lord Thomas of Cwmgiedd, is following me. He might well be able to explain in further detail how he thinks it could be improved. There are other issues to be discussed because the Senedd’s legislative competence does not always coincide with the executive powers of Ministers, which are sometimes