House of Lords
Monday 14 June 2021
The House met in a hybrid proceeding.
Prayers—read by the Lord Bishop of Leeds.
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.
Covid-19: Proof of Vaccination
My Lords, since May, individuals in England who have had two doses of an approved Covid-19 vaccine have been able to demonstrate their vaccine status for international travel. The services can be accessed through digital and non-digital routes, via the NHS app and the NHS website or by calling 111 to request a letter. The devolved Administrations are making available similar letters for use in travelling overseas. Over 63,000 people have requested a letter since the service was launched.
I am very grateful to the Minister for his positive answer. Can he tell the House exactly how long it takes to get a printed letter as opposed to downloading the app, and how this will relate to the new electronic travel authorisation, which hopefully will coincide with lifting restrictions on British travellers here and abroad?
My Lords, 57,000 people have received their letters so far. I am not aware of any delays. Those who wish to can use a pharmacy for the delivery of their letters. It is encouraging news and we have gone to considerable lengths to meet the suggestions of charities which we engaged with on the letters. They are available in different languages and in Braille.
My Lords, I refer to my interests in the register. It sounds as though what you really need is a secure card that proves your identity and has important information uploaded to it, such as your vaccination status—something my noble friend was introducing, only to have it scrapped by an incoming Conservative Government. We have had 10 wasted years. If there is to be a vaccination app or some other certification, can we be assured that it will not contain data that purports to show that holders are safe to travel because they have had a negative test under the absurd test and trace scheme? The BMJ has reported that the level of false negatives is of the order of 30%. Such negative tests have no probative value, despite the Government, according to the Public Accounts Committee, wasting £37 billion on them.
My Lords, that is not our approach. Our approach is to try to use whatever technologies work in order to open up our borders. The idea that 30% of tests are not correct is an unhelpful suggestion by the noble Lord. We will be using testing in the validation app.
My Lords, I declare my interest as a vice-president of the National Autistic Society. My noble friend will be only too well aware that many on the autism spectrum are very IT-savvy. However, can he help those who would find it quite a challenge to phone 111? Is there any way the Government can communicate with the autism community, perhaps through the charitable sector and others, to make alternative arrangements other than just a phone call?
My Lords, we have engaged considerably with the sector on exactly these kinds of matters. GPs and pharmacies are briefed to help those with difficulties get this material. We are also conscious that some with autism may struggle to take a test and find the process of swabbing intimidating, so we are looking into workarounds for that.
My Lords, regardless of whether you hold a paper or digital record, personal health and data will be held on a central database. Can the Minister therefore inform us which government departments and private sector organisations will have access to the data on the central database?
My Lords, the Minister has really answered this question already, but may I add that it surely would be possible for vaccination units to have supplies of certificates that they could issue to people when they come to get their first or second vaccination?
My noble friend alludes to having pre-printed certificates. In fact, each vaccine certificate has a tailored two-dimensional QR code that is designed for each person. Therefore, it is necessary to print the certificate for the person because it has their specific details on it.
My Lords, I am a little confused by what the Minister is saying. Is he saying that we are not going to get a proper Covid passport, as the EU will be offering from 1 July and Ireland from 19 July in both digital and physical options? Could he answer that in detail?
My Lords, I apologise for not being clearer; I will be crystal clear right now. Today, you can have a digital certificate on your iPhone, you can have a digital certificate that is printed out from your computer or you can call a number and have a paper certificate sent to you in the post immediately. All of those options are live today.
Disability campaigners are deeply concerned about the integration of health data into cultural participation and worry that the Government’s plans to set up the vaccine passport scheme could undermine the rights of disabled workers and audiences who cannot have the vaccine because of a health condition. What steps are the Government taking to ensure that any scheme that is introduced obeys the seven key inclusive principles, including complying with the Equality Act in making reasonable adjustments to ensure that disabled people do not face discrimination?
My Lords, I am very alive to the concerns of the disabled. We have to balance the need to limit the spread of this virus to save lives, but in a way that is fair and just to all people. We are very much engaged with disability and other charities to ensure that that works. The noble Baroness is right that there will be some people for whom the vaccine does not work and who could yet catch the disease. We need to make provision for those people, and we are working on that.
My Lords, I am concerned for the significant numbers of people with existing mental health problems who often do not feel comfortable with smartphone devices, as the information overload such phones can provide can exacerbate their feelings of stress and anxiety. I am pleased to hear the Minister say that other channels will be available to these people, but what arrangements are the Government putting in place to ensure that they are aware that options other than smartphones exist that they will be able to use?
My Lords, all the promotions for vaccine certificates through travel agents and GPs make very substantial reference to the availability of paper letters and the channel of being able to call 119 to receive them. I completely sympathise with those who do not want to use their mobile phones for everything, and some will prefer a letter in the pocket to an app on their phone.
My Lords, I thank the Minister for his clarity, but proof of vaccination is irrelevant if we are prohibited from travelling. The Prime Minister is rumoured to have discussed travel to and from the United States with President Biden at the G7, but what are the predictions regarding UK citizens travelling to Europe, apart from Albania, which seems to be okay?
I do not know about Albania specifically, but the freedom to travel in Europe is, of course, in part defined by Europeans themselves. We are in conversation with all European countries at the moment as to how our vaccine certificate scheme can be aligned with theirs. Indications from Europe are that they are interested in having a two-vaccination programme for entry as well, but we are trying to understand that more thoroughly.
My Lords, I welcome the choice that people are being given in how to prove that they have been vaccinated. However, as the Government further the digital economy, will they make it clear that no one will be left behind, so that those who do not wish to go online and to always communicate in that way will never be prevented from using the telephone or corresponding by letter to access any government service?
Yes, I completely endorse that sentiment. I pay tribute to 111 and 119, two facilities that have been used to an incredible extent during this pandemic. A lot of people would much prefer to hear someone at the end of a telephone, to have that reassurance and that personal touch. That is why we have substantially invested in both those resources and will continue to do so.
My Lords, I love the NHS app—in fact, I used it yesterday to gain entry to Wembley stadium to watch England’s great victory over Croatia. Will the Minister consider making sure that additional vaccinations can be loaded on to it, such as the flu vaccination, and starting a major advertising campaign to increase the numbers from 6 million to who knows what?
My Lords, I pay tribute to the England football team, who did extremely well; I am glad that my noble friend was able to attend. He is entirely right: this is an incredibly valuable resource. We have a very strong preventive agenda in our healthcare strategy. The vaccine has demonstrated how we can use modern medical technology to prevent the spread of disease, and it is by using thoughtful technology like this app that we can popularise and make useful a vaccine approach that could reach out to other diseases.
My Lords, the UK Government believe strongly in upholding the constitutional integrity of the United Kingdom. The United Kingdom is the most successful political and economic union in history. Together we are safer, stronger and more prosperous. The Government have no plans to establish an inquiry into the constitution.
My Lords, that is a typically complacent Whitehall response. Surely the Minister, who is more politically astute than people in Whitehall, must realise that there is a growing demand for decentralisation in England as well as in the rest of the United Kingdom. It is not just Gordon Brown asking for a comprehensive review; people on the Minister’s own side, notably Lord Salisbury, and many others want such a review. Does he not realise that the future of the union is in peril if Government Ministers keep burying their heads in the sand like ostriches?
My Lords, I try to avoid sand, whether putting my head in it or not. I do not think this Government are complacent. I think there are difficulties with the kind of federal approach that the noble Lord describes because of the nature of the United Kingdom, but I assure him that the Government listen with respect to all those who express views, including former Prime Ministers.
My Lords, I am not sure whether I heard reference to federalism there. Does the Minister agree that, because of the nature of the debate and the threats to the union, we need to get ahead of the game in relation to the union and its associated constitutional arrangements, and that this is urgent? Will the Government ensure that such discussions are cross-party and cross-society when they do take place?
My Lords, all those kinds of discussions certainly benefit from the widest range of opinions. The noble Lord, Lord Foulkes, did raise the issue of a federal approach, and I responded to that. I assure the right reverend Prelate that the Government’s ears are always open.
My Lords, I fully understand that the idea of a single constitutional commission or inquiry has now been abandoned and replaced by a number of inquiries that are taking place or have taken place into different aspects and branches of our constitutional arrangements, which always need attention. But if we are to offer a better union, could my noble friend explain which body will look into the obvious and fundamental incompatibility between the evident wish of Scotland’s ruling party not just for improved devolution but for the actual sharing or taking of sovereignty and the central constitutional tenet, which we all hold, of the absolute sovereignty of our union Parliament here at Westminster? There is a problem, is there not?
My Lords, many bodies make an input into this debate—I would single out the great work of your Lordships’ Constitution Committee, among others—but I repeat that the Government believe in a strong UK Parliament for a strong United Kingdom. The UK Parliament, which represents the whole of the United Kingdom, is sovereign, and the sharing of sovereignty would run counter to this core element of the UK constitution. The Government are committed to strengthening the union, and there is an earnest of that in the recent summit summoned by my right honourable friend the Prime Minister.
[Inaudible]—arrogant patriotism was an infantile disease like measles. In its new virulent form, it has led to Brexit and now threatens the union with Scotland. Does the Minister agree that former Prime Minister Gordon Brown is right when he says that we should drop divisive talk of “us and them” and look to commonalities of interest to make for a more equal and stronger union?
My Lords, on constitutional reform, can the Minister confirm that, following the retirement of the Countess of Mar, all Peers among the 92 places reserved for hereditaries are men; that all 21 candidates in today’s by-election for three Conservative hereditaries are men; and that all 10 candidates for the Cross-Bench vacancy are men? Is this not utterly unacceptable? What are the Government going to do about it?
My Lords, the commitment to constitutional integrity and the absolute sovereignty of the UK Parliament comprise a piece of legal purism which I think the Government would criticise if the European Commission displayed such a tendency. Does the Minister recognise that the commitment to absolute UK sovereignty was what led to the division of Ireland? Does he not accept that insistence on it with regard to Northern Ireland and Scotland now is likely to lead to further division?
No, my Lords, I do not agree. We currently have a constitutional settlement in which there are reserved and devolved matters. I think we all believe that devolution has benefited the United Kingdom, and the Government’s priority—as the priority of all of us should be—is to make that work in amity and with commonality, as we were reminded earlier.
As my noble friend Lord Howell just reminded us, the Government have abandoned their manifesto commitment to set up a constitution, democracy and rights commission in the first year of this Parliament. They have instead announced that they are going to have a range of independent workstreams, to be announced in due course. Can my noble friend shed any light on what these workstreams might comprise, and whether any might involve the working of your Lordships’ House?
My Lords, I will not anticipate the answer that may or may not come to that question. Given the broad nature of the constitution, we are taking forward the work via a range of workstreams, as my noble friend said. So far as your Lordships’ House is concerned, I have the greatest reverence for this House, and I believe that any institution that does its work well and sticks to its last will gain respect.
I do not know whether the Minister has read the Haggard and Kaufman book, Backsliding: Democratic Regress in the Contemporary World, but I wonder whether he shares its concern that without care and protection, our democratic strengths and constitution can be undermined by the lack of parliamentary, legal and press scrutiny. If he agrees, does he therefore think that a serious look at how government decisions are taken, in order to increase transparency and accountability, is now well overdue?
My Lords, within that question there are absolutes and particulars. Having had the honour to be elected by my fellow citizens many times in elections, my own view is that accountability to the people is fundamental, and I also believe that transparency and openness are extraordinarily important. In that respect, I agree with the noble Baroness.
Given the disparate and major changes to the constitution that have taken place in recent decades, does my noble friend agree that were any body set up to examine the constitution, it should engage in a take-stock exercise, making sense of where we are now rather than embarking on proposals for further change? Furthermore, does he agree that we should look at the union within the context of the constitution as a whole?
My Lords, the pandemic has shown us how we need one another; different countries all depend on each other. So, any future discussion or referendum should not be about just separation, division or—often reluctant—centralisation; there is a federal solution that should certainly be top of the agenda when people come to discuss future constitutional arrangements.
I am not sure whether the noble Lord has finished; I hope he has. I made some comments on the federal approach. My view, and the Government’s view, is that we should bend every sinew to make the constitutional arrangements that we have now work; that is what this Government have sought to demonstrate.
My Lords, does my noble friend share my scepticism at the idea that the union will be saved by the kind of constitutional upheaval and tinkering currently put forward by Gordon Brown and others, which many people in this country will see as a huge distraction from the priorities of the British people? Rather, what is needed is a relentless focus from the Government on sharing prosperity, opportunity and security throughout this United Kingdom, as well as a constructive and positive unionist narrative that puts at its heart our common values and shared future as one nation.
I agree with my noble friend. The Government have ensured that citizens and businesses across Scotland, Wales and Northern Ireland benefit from a £350 billion package of UK-wide support during the pandemic, protecting 1.7 million jobs in those countries and providing access to tests, key medicines and vaccines. The recent Budget further demonstrated our commitment to strengthening the union, with UK-wide policies including the extension of furlough and the self-employed scheme.
Covid-19: Vaccines and Pregnancy
My Lords, it is vital that we know what treatment is appropriate and safe for pregnant women, so it is imperative that clinical trials are inclusive of this group where possible. The current advice to vaccinate pregnant women is based on a US real-world study of more than 125,000 people. Recruitment to the first Covid vaccine study in the UK involving pregnant women was launched on 17 May. In addition, adverse reaction reports on Covid-19 vaccines in pregnant women are collected by the MHRA, carefully assessed and reviewed.
My Lords, I thank my noble friend for that Answer. I must say, though, that there is a lot of concern among the Royal College of Obstetricians and Gynaecologists and the Royal College of Midwives that the take-up of the vaccination among pregnant women is not routinely published. I would like to know from my noble friend what the real commitment to doing this is, what proportion of pregnant women have been offered a vaccine, what proportion of those women have accepted it and what proportion of them have had two doses. What is the mechanism for linking this data with follow-up in relation to the outcomes for women and their babies?
My Lords, my noble friend made a clear case for the importance of improving the way in which patient data is collected and analysed in this country. It is something that we are working on at the moment. She highlights a very difficult situation. A third of women do not know that they are pregnant, of course, and, when they are pregnant, their data is first caught at the hospital where they decide to have their birth. Those databases are not easily linked. We do not have a countersignal for pregnancy at the moment; it is therefore not an acute priority. However, I take my noble friend’s point and will look into it further.
My Lords, I declare an interest as chair of the trustees of the Royal College of Obstetricians and Gynaecologists. The RCOG survey found that more than half of those who declined the vaccine did so because they were waiting for more information about the safety of the Covid-19 vaccination during pregnancy. Will the Government, as a matter of urgency, issue guidance to all pregnant mothers explaining that the vaccination will not harm their unborn babies? Will they also provide facilities for pregnant women to be vaccinated at antenatal clinics as a mechanism to increase the take-up of vaccinations by pregnant women?
I am extremely grateful for those constructive suggestions from the noble Baroness. We have a very large amount of materials specifically for pregnant women, including guidance for pregnant women and a guide for women who are of childbearing age, pregnant or breastfeeding; those are widely distributed by GPs. However, as I said, a lot of pregnant women do not know that they are pregnant, so it is not possible to reach all of them all the time. At the moment, our priority is to ensure that those aged over 50 take their second jab. We will sweep up other demographics, and we will make that a priority when we reach it.
A close family member rang her surgery to ask for advice about being called for vaccination while breastfeeding. They said that it was nothing to do with them and told her to ring the main vaccine booking line. That person said, “Just ask the person who vaccinates you”, who said, “Oh, I don’t know. I’ll have to check”. Last week, Channel 4 reported that this is a widespread problem for pregnant and breastfeeding mums. It is evident that there is no clear guidance for front-line staff on what to tell mums. Can this be remedied as a matter of urgency?
The noble Baroness alluded to a problem that is, I am afraid, commonplace in the healthcare system: an acute sensitivity about giving advice to those who are pregnant because people are very concerned about giving the wrong advice, which sometimes leads to no advice being given. We are aware of this problem but I assure the noble Baroness that material is given to those on the front line—I have mentioned some of the materials that we have published—and GPs have all that material at their disposal. We have recognised this problem, we have moved on it and we are making as much material as possible available to the right people.
My Lords, I hope that noble Lords can see me because I do not seem to be being picked up very well. Can the Minister comment on what additional steps are being taken to publicise the up-to-date position to women who are either trying for a baby or are pregnant? Is this information being shared with the organisations in this field, such as the National Childbirth Trust and Mumsnet, to share with their communities?
My Lords, if the up-to-date advice is “Get the vaccine”, which is exactly what it should be, what work is being done to assess the effect on women of having Covid during their pregnancy? What is the effect on the child? Is there any research on that?
My Lords, the noble Baroness points to one of the challenges of longitudinal research: the babies have not been born for very long, of course. We need to do long-term studies to understand the effect. There is no evidence at all of a negative outcome but we will need to monitor that; research resources will be dedicated to looking at it.
To tackle the risk of stillbirths and emergency Caesareans among mothers who are giving birth and have contracted Covid-19, as we see the vaccination programme extend further—particularly into the younger age groups—will the Minister look at prioritising pregnant women for vaccinations? I refer particularly to women in the later stages of pregnancy.
My Lords, the JCVI has a clear set of prioritisation protocols, which we are sticking to. The fact of being pregnant does not seem to have a direct impact in terms of severe disease or death, so there is no clear evidence at the moment for putting in or changing the prioritisation of pregnant women. However, we constantly review that and we are naturally concerned to protect both the mother and the child.
The Minister referred to women who do not know that they are pregnant. The place where women go to find out whether they might be is a pharmacy. What are the Government doing to make sure that pharmacies are places where women can access accurate information and guidance?
The noble Baroness is entirely right. Pharmacies have played an absolutely critical role in the vaccine rollout, and we owe them huge thanks for their contribution. Pharmacists have undertaken a huge amount of training in both the delivery and explanation of the vaccine. I attribute some of the success of the vaccine programme to the extremely effective communication from pharmacists on all aspects of the vaccine, including relating to pregnancy.
My Lords, would it not be a good idea if the Chief Nursing Officer and the Chief Midwifery Officer gave a conference from Downing Street to reinforce the message that the Minister has given today about the safety of the vaccine? Can he tell me what the Government are doing specifically about the conspiracy theories going round in relation to safety risks to mothers and babies?
My Lords, when it comes to conspiracy theories, we have found that the best people to communicate on that are those who women and mothers trust and are dealing with during their pregnancy, typically their nurses and doctors. We have ensured that all the right materials are there, so that difficult questions can be answered in a collaborative dialogue. That is the most effective way of dealing with this.
My Lords, the vaccine programme has worked extremely well across all the nations of the UK, and there is a huge amount of collaboration, particularly between the CMOs. Material is routinely shared between all the countries, and I am not aware of any differential outcomes in any particular part of the UK.
Libel and Defamation Cases: Cost to Public Funds
My Lords, court fees are set to achieve full cost recovery, and thus the cost to public funds of libel claims brought by people from outside the United Kingdom in England and Wales is negligible.
Is the Minister aware that five Russian billionaires are involved in a strategic lawsuit in London against the journalist Catherine Belton as a result of her book, Putin’s People? Why should Igor Sechin, Roman Abramovich, Mikhail Fridman, Petr Aven and Shalva Chigirinsky be using London lawyers Carter-Ruck, CMS, Harbottle and Lewis and Taylor Wessing to silence a journalist? These grubby law firms should be struck off and the barristers whom they are paying to do this work should be disbarred. Our courts are being abused by these people, and as Nick Cohen said in the Observer, they are making London
“the censorship capital of the world.”
What are the Government doing about the co-ordinated, shameful abuse of our courts, which must have started life in the Kremlin?
My Lords, it is not what the Government are doing but what the Government have done. Section 9 of the Defamation Act 2013 provides that if a defendant is domiciled out of the jurisdiction then London can hear the case only if the judge is clear that this is the appropriate forum. That Act also contains defences of truth, honest opinion and public interest.
My Lords, strategic lawsuits against public participation—SLAPPs—are lawsuits brought by powerful individuals or bodies to silence anyone who investigates or criticises them. Before her assassination, the late Daphne Anne Caruana Galizia faced 47 different legal actions trying to prevent her reporting on corruption, and countless legal threats, including some launched by English lawyers with the threat of action in English courts. Other countries, such as Australia, parts of the US and Canada, have passed legislation to prevent SLAPPs, including mechanisms to quickly dismiss them, and sanctions for those who abuse the courts in this way. Can Her Majesty’s Government follow suit?
My Lords, the Government always take action to protect freedom of expression to safeguard the work of journalists. The forthcoming online safety legislation will enshrine in law protections for journalistic content and free debate. We will, however. also keep a very close eye on what is called the SLAPP jurisdiction. My noble friend mentions Australia and Canada; she may also wish to read a recent judgment from the Western Cape High Court, the case of Mineral Sands Resources (Pty) Ltd, in which Deputy Judge President Patricia Goliath set out in very clear terms the advantages of a SLAPP jurisdiction. This may be the first occasion of a David praising the work of a Goliath.
My Lords, the Written Question tabled by the noble Lord, Lord Rooker, focused on the cost to public funds, which the Minister fully answered. The Oral Question contains an attack on barristers and solicitors for representing clients. Does the Minister agree that any litigant, whoever they may be and wherever they may come from, is entitled to legal advice and representation, and that it is the job of the judge to decide what the legal rights and wrongs are?
My Lords, that is absolutely right. With respect to the comment of the noble Lord, Lord Rooker, from a sedentary position, it is not a vested interest point, it is a fundamental principle of the rule of law. A lawyer should not be identified with their client, and perhaps I may say that I would not want to be identified with all my former clients. But they are all entitled to representation in free and fair courts, which is what this country provides.
My Lords, as well as concern that English law is still being abused by threats and court action from powerful individuals against journalists and authors reporting on financial crime and corruption, there is credible evidence of women who have alleged abuse facing libel threats and actions from wealthy men as it has proved an effective way to shut women up. Does not the defence of legitimate debate, freedom of expression, safety of journalists, exposure of corruption and encouragement of women to report violence and abuse demand at least a review and reassessment of the measures that can be taken to prevent such actions by corrupt, violent and wealthy figures?
My Lords, the noble Lord makes a very important point. There are, of course, the defences of truth and, in relation to what is said in court, there is of course absolute privilege. As the Minister who played a significant part in taking the Domestic Abuse Act through this House, I will certainly want to ensure that the protections it gave to women are not undermined by people exploiting the law of defamation.
My Lords, the Defamation Act 2013 was an important coalition achievement. The pre-legislative committee on which I served was unanimous, so we now have the serious harm threshold, the serious financial loss requirement for companies and the defences of honest opinion and publication in the public interest. To curb libel tourism, as the Minister has just said, Section 9 requires any claimant outside the UK to show that
“England and Wales is clearly the most appropriate place”
for defamation action. It was a test applied strictly by the Court of Appeal last year in Wright v Ver. While we should certainly keep the Act under review, is not the law now restrictive enough?
My Lords, I agree with the noble Lord that the law is well balanced. We think that the Defamation Act 2013 is working well. I thought I heard the noble Lord say that Section 9 applies where a claimant is domiciled outside the UK, but I think that it is actually where the defendant is so domiciled. With that small correction, I agree with the noble Lord.
My Lords, in October 2019, the MoJ published its post-legislative memorandum regarding the operation of the Defamation Act 2013 since it came into force. It concluded:
“There has not been any body of opinion calling for a review … of the Act. That may be because … it is still too early to feel their full impact—
that is, of its provisions—
“given the length of civil litigation.”
Following the concerns raised in November last year in an article in the Guardian, we have now heard further concerns from my noble friends Lord Rooker and Lord Browne, who mentioned how women who allege abuse may face libel threats from wealthy former partners. In the Minister’s view, does this not all add up to a re-review of the operation of the 2013 Act?
My Lords, as I have said, the 2013 Act is regarded as working well and there are no current plans to reform or revise it. However, we will always consider a review if significant problems are demonstrated. Indeed, the 2013 Act itself was a response to such concerns and problems. Obviously, it is inevitable that libel cases will still be brought, but we consider that the Act gives the courts a proper basis on which to determine them by setting out the correct legal framework. The decisions of the courts in interpreting the 2013 Act have helped to reinforce the intention and policy underlying that Act.
My Lords, in answer to a Written Question that I received two weeks ago, the Foreign Office stated:
“Persons or entities designated under the Sanctions and Anti-Money Laundering Act 2018 are not banned from initiating action in UK courts.”
Does that incidentally mean that if costs were awarded against such people or entities, they would be forbidden to reimburse them? Does the Minister not regard this as a fundamental abuse of British sovereignty?
My Lords, the response from the Foreign Office was absolutely right. Legislation imposes proportionate sanctions where warranted, but restricting access to justice is something else. When it comes to payment of costs awarded against such people, I can say to the noble Lord from experience that there are ways in which such costs can be ordered and paid, but one has to be very careful in such circumstances not inadvertently to breach the sanctions regime.
My Lords, does the Minister agree that part of the problem raised by this Question is the absence of an appropriate, independent alternative dispute resolution mechanism for those unfairly treated by the press? Do the Government have any plans to consider this?
My Lords, the short answer is yes. I would disagree with noble Lord in only one respect; that is, when he calls it alternative dispute resolution. We should not see these forms of dispute resolution as being alternative in the sense of being somewhat outré or unusual. They should be absolutely at the forefront of our civil justice system, and indeed, we are making changes throughout our civil justice system to make sure that only cases that really cannot be resolved outside of court end up in court.
Cigarette Stick Health Warnings Bill [HL]
A Bill to require tobacco manufacturers to print health warnings on individual cigarette sticks and cigarette rolling papers.
The Bill was introduced by Lord Young of Cookham, read a first time and ordered to be printed.
Office for Demographic Change Bill [HL]
A Bill to establish the Office for Demographic Change with the duty of collecting evidence about and analysing the impact of population change, and considering future changes in the population of the United Kingdom and their consequences; and for connected purposes.
The Bill was introduced by Lord Hodgson of Astley Abbotts, read a first time and ordered to be printed.
Hillsborough: Collapse of Trials
Commons Urgent Question
The following Answer to an Urgent Question was given in the House of Commons on Thursday 10 June.
“I am sure that the whole House would want to join me in paying tribute to the immense courage, determination and patience of the families of the 96 people who died in the Hillsborough disaster, and of those injured who, 32 years on, continue to grieve about the events of that truly terrible day.
The collapse of the case concerning two former police officers and a solicitor who are charged with perverting the course of justice for allegedly having altered statements to be provided to the 1990 Taylor inquiry was the final opportunity for the families seeking justice for what happened at Hillsborough. As the House will have seen, the trial judge in that case ruled that the offence of perverting the course of justice could not have been committed because the inquiry was carrying out an administrative function for the Home Secretary and was not a process of public justice. As such, the prosecution was not able to establish a key element of the offence of perverting the course of justice and the case was unable to proceed any further. Of course, as Lord Chancellor, it is my duty to respect that decision.
Since the Taylor inquiry, the Inquiries Act 2005 was introduced, which allows inquiries to take evidence on oath and to compel witnesses to give evidence and to produce documentary evidence. Section 35 of that Act also makes it an offence to commit acts that intend to have the effect of distorting, altering or preventing evidence from being given to the statutory inquiry. It is also an offence intentionally to suppress or to conceal a relevant document or to destroy such a document.
Members will be rightly concerned as to what, if any, effect this may have on current public inquiries, such as the Grenfell inquiry, the Undercover Policing Inquiry and the Independent Inquiry into Child Sexual Abuse.
Each of those are statutory inquiries and each has been set up under the aegis of the 2005 Act, which means that, should someone seek to distort, destroy, conceal or suppress evidence in any of those inquiries, that Act provides that those actions will constitute a specific criminal offence. Indeed, the common-law offence of perverting the course of justice may also be an appropriate offence to charge if the elements of that offence are made out.
We recognise the need for those in public office to act responsibly and to discharge their duties with both honesty and integrity. As we continue to consider the judgment in the latest Hillsborough trial and its implications, we will of course always consider opportunities to review the law and how it operates. I want the families to know that there will be no exception in this case. We are carefully considering the points made by former Bishop of Liverpool James Jones in his 2017 report on the experiences of the Hillsborough families, including in relation to the proposed duty of candour. Our focus now, after the trial’s conclusion, will be on publishing the Government’s overarching response to that report, after having further consulted all the families.
Irrespective of the outcome of this case, the Government continue to be committed to engaging with the survivors and the bereaved families. It is critical that the lessons of the Hillsborough tragedy—the Hillsborough disaster—are not only learned but consistently applied so that something similar can never be allowed to happen again. The Government are absolutely determined to do just that.”
My Lords, following the collapse of the trials relating to the Hillsborough disaster, on 10 June in response to the UQ in the Commons the Lord Chancellor said that he would very carefully consider
“the points made by the … Bishop of Liverpool …. in his 2017 report”
and the conclusion of the trials, and publish an
“overarching response … having further consulted … the families.”—[Official Report, Commons, 10/6/21; cols. 1128-29.]
In addition to this, the Government have undertaken to respond to the Justice Committee’s report on the coroners service by the end of July this year, specifically to its recommendation that bereaved families should be legally aided at inquests where public authorities are legally represented. Does the Minister accept that, in these two responses, the overriding concern should be that bereaved families and victims feel that their interests come first, and that no public authority or individual working for that public authority is above the law?
My Lords, on a personal note, I was still living in Liverpool at the time of the Hillsborough disaster. I remember listening to Radio Merseyside that fateful Saturday evening as the news of the deaths came in and the figure mounted higher and higher. I have nothing but admiration for the families and their supporters who sought justice for the 96 over so many years and in the face of so many obstacles. In response directly to the noble Lord’s question: yes, the overriding concern must be that bereaved victims and families feel their interests come first. We want to place them at the centre of our response to the inquiry under the former Bishop of Liverpool. Certainly, I agree that no public authority or individual working for that public authority is above the law.
My Lords, Mr Justice Davis held that the offence of perverting the course of justice did not apply to a public inquiry, because it is an administrative function of the Government rather than a process of public justice. If that is the current state of the law, even given the specific offence under the 2005 Act mentioned by the Lord Chancellor, will that not undermine the whole point of public inquiries and destroy public confidence in them? Will the Government urgently amend the Inquiries Act to reverse this decision, particularly in view of the impending inquiry into the handling of the pandemic, where we know there will be significant conflicts of evidence?
My Lords, we will of course keep this point of law under consideration but not for the reasons the noble Lord gives, if I may say so respectfully. The Prime Minister has already confirmed that the Covid inquiry—if I can call it that—will be established on a statutory basis with full formal powers. That means that Section 35 of the Inquiries Act 2005 will apply. That makes it an offence to commit acts that tend
“to have the effect of … distorting … altering … or preventing … evidence”
from being given to a statutory inquiry.
Will the Minister confirm that the DPP himself advised on charges brought in the trial and on the surprising decision not to appeal the trial judge’s terminating ruling? Will the DPP follow the practice of publishing his advice in important cases? Will the Minister explain why alternative charges of misconduct in public office were not brought against all three defendants, as they could have been?
My Lords, the CPS sought advice from senior Treasury counsel pre-charge. Decisions on appropriate charges were made after consideration of that advice. Those decisions were taken in 2017, predating the current director’s term of office. As far as misconduct in public office is concerned, that charge was not available for Mr Metcalf, the solicitor for South Yorkshire Police’s insurers. The allegations against the two officers were related closely to his conduct. Therefore, it was considered that the same charge against each was appropriate. The CPS did not appeal the decision because, having carefully considered it, it concluded there was not a proper basis to appeal to the Court of Appeal. As for the point about the director publishing advice, he does not sit under the Ministry of Justice, as the noble Lord will be aware, but I will pass that point on to the director, whom I note is appearing before the Justice Select Committee tomorrow.
My Lords, having flown up to the ground on the day of the tragedy as Minister for Sport, I spent time in the gymnasium that was divided into three: principally, an area for the dead; an area for families and friends to identify their lost ones through photographs; and an area for counselling and statements. I have rarely spoken about the appalling tragedy and the lasting effect it had on all of us involved, but does my noble friend the Minister agree that for all the criticisms levelled and questions about the decisions made by those in charge, the support given in tragic times to the bereaved, and the respect for those who had died—lying there in the gymnasium—has rarely been recognised? Does he accept that everyone I met that day, many in a state of profound shock, including many young police officers, did their level best to assist in harrowing circumstances?
My Lords, in cases like this, it is important to distinguish between the institutional response—which in many cases was either lacking or appalling—and the individual response of individual police officers, emergency service workers and others who went out of their way to assist in the most distressing of circumstances.
My Lords, what have the Government learned about the process of justice and public confidence in law, when a trial can collapse one day and a defence counsel stands in the street outside the court and maintains unequivocally that this proves that there has not been a cover-up, yet almost the next day the police admit such cover-ups and compensation is duly paid?
My Lords, as Prime Minister David Cameron said when he made the apology in the other place, the families
“suffered a double injustice: the injustice of the … events”
“the failure of the state to protect”
“and the indefensible wait to get to the truth;”
and also the offence of
“the denigration of the deceased.”—[Official Report, Commons, 12/9/12; cols. 285-86.]
When I was at the Bar, it was generally regarded as unwise or sometimes improper to comment publicly about your cases. I certainly commend that approach to anybody who says anything about the acts of the Liverpool fans. The Sun itself had to provide a full apology. It well behoves everybody else to read the Bishop Jones inquiry if they want to find out what the truth actually is.
My Lords, those of us who have been campaigning in support of the Hillsborough families for many years welcomed the positive and sympathetic response of the Lord Chancellor in the other place, and it has been echoed today by the Minister. Does he agree that it is time to meet the demand of the Hillsborough families—that no one similarly bereaved in a public disaster in the future will have to suffer what they suffered for so long? Does he also agree that the Public Advocate Bill, as first set out in the 2017 Queen’s Speech, will meet that demand by giving the bereaved real agency in the aftermath of such disasters and the ability to set up a Hillsborough-type panel to ensure that the truth is never again covered up?
My Lords, the Government fundamentally recognise the importance of placing the bereaved at the heart of any investigation that follows a public disaster. The noble Lord has worked in this area for a number of years and a Bill on this has been proposed. There was a government consultation in 2018, the responses to which were somewhat varied. As the Lord Chancellor confirmed in the other place last week, we will work at pace to ensure that we have a proper, full consultation on this important topic. He also reiterated that we will work on this on a cross-party basis. It is important that the independent public advocate does three things: first, it has to be independent; secondly, it must have the confidence of those who use it; and thirdly, and most importantly, it has to make a practical difference.
My Lords, even before the Hillsborough disaster of 15 April 1989, I had written to the Government questioning the safety of the ground. With the deaths of Liverpool constituents, including a child, and permanent brain damage to another constituent, I have waited patiently, along with the families, to see justice. This is justice delayed and justice denied. Reverting to the question asked by my noble friend Lord Carlile, presumably the Director of Public Prosecutions thought the perverting charge sustainable in law. Did he review the case himself, given its huge public importance, and will the CPS now consider prosecution for misconduct in public office for at least some of the three acquitted men? Does the Minister agree that the possibility of a private prosecution for other offences remains?
My Lords, at the time of these events, I was living in the constituency next door to the noble Lord’s and I remember his significant leadership in the city then. Respectfully, I shall pass the question on the director to the director for him to respond to the noble Lord. CPS charging decisions must be a responsibility of the CPS and totally independent of government. It would be unwise for a government Minister to provide legal advice from the Dispatch Box on the sensitive topic of private prosecutions.
Napier Barracks Asylum Accommodation
Commons Urgent Question
The following Answer to an Urgent Question was given in the House of Commons on Thursday 10 June.
“I am answering this question on behalf of the Under-Secretary of State for the Home Department, my honourable friend the Member for Torbay, Kevin Foster, who has sadly suffered a family bereavement and therefore cannot be here this morning.
Covid-19 has had a major and unprecedented impact on the asylum system. We make absolutely no apologies for doing everything in our power to provide shelter to those in need during these exceptional times.
Between March and October last year, nearly 12,000 extra people needed to be housed as a result of the pandemic, nearly 10,000 of whom ended up in hotels, at huge public expense. Every accommodation option had to be considered.
Those accommodated at Napier barracks are catered with three nutritious meals per day, with options for special dietary or religious requirements. There is a recreational building with a library. Prayer rooms are available and scheduled activities now include yoga, English conversation and art. There is a nurse on site and access to a GP. All asylum seekers housed at Napier have access to a 24/7 advice service, provided for the Home Office by Migrant Help.
Napier barracks has been happily used for many years by Army and police personnel. The Army itself has continued to use barrack accommodation around the country during the pandemic, when needed. While we are disappointed by some of the judgment, the High Court found in the Home Office’s favour in a number of areas. It rejected the claim that conditions at Napier amounted to ‘inhuman or degrading treatment.’ The judge declined to rule that dormitories or barrack accommodation could never provide ‘adequate accommodation’ for asylum seekers, and the judge rejected the claim that the expectation that residents would be back on site by 10 pm amounted to a curfew or unlawful imprisonment.
Furthermore, the judgment was based on conditions in the past, before several significant improvements. These include a stronger cleaning regime, reopening of communal areas with staggered access times, limiting the period of residency and using lateral flow tests three times a week. The overall capacity of the site has also been reduced. At all stages, the Home Office believed it was taking reasonable steps to respond to Public Health England suggestions on public health, where possible.
We have published the suitability criteria that we use for assessing who is suitable to be accommodated at Napier. If it becomes apparent that someone is resident but unsuitable, a transfer is then arranged.
Through our new plans for immigration and the upcoming sovereign borders Bill, this Government are taking action to increase the fairness and efficiency of our asylum system but also to fight illegal and unnecessary migration, such as that by small boats coming across the English Channel. I hope Members will support that Bill when it comes forward, as it is sorely needed to support reform of the system.”
The judgment found that the Napier Covid arrangements were
“contrary to the advice of PHE”,
with precautions being
“completely inadequate to prevent the spread of Covid-19”,
with people in dormitory blocks having shared facilities for up to 28 people. PHE advice was that
“dormitories are not suitable”
but that, if the Home Office proceeded, the number of beds should be limited to six with people kept in bubbles. Even that did not apply at Napier, where 200 people got Covid.
The Home Secretary told the Commons Home Affairs Committee in February that
“the use of the accommodation was all based on Public Health England advice”
“we have been following guidance in every single way.”
That claim was demolished by the judgment and by the Commons Minister last Thursday, who said that
“Where possible we have followed”—[Official Report, Commons, 10/6/21; col. 1118.]
PHE guidelines, with “where possible” determined by the Home Secretary. Why did the Home Secretary tell the Home Affairs Committee that PHE guidance had been followed “in every single way”, when that was not the case?
My Lords, we believed we were taking reasonable steps to give effect to the PHE advice on the steps to be taken to make dormitory accommodation as safe as possible. It was on that basis that the Home Secretary and the Permanent Secretary appeared before the committee. We acknowledge the court’s findings that the measures were not adequate and are considering our next steps. Throughout the set-up and operation of the site, the Home Office has engaged with health officials in various organisations to ensure that it is aware of up-to-date advice. While the advice to officials from PHE was that dormitory-style accommodation was not suitable, it also set out how congregate residential settings should be used if other accommodation was not available. We have been working very constructively with PHE for more than a year now.
My Lords, the Minister just said “we believed we were taking reasonable steps”, but the Home Secretary told the Home Affairs Committee, in answer to question 120, that
“we have been following guidance in every single way.”
Does the Minister agree that there is a significant difference between what she has just said and what the Home Secretary said to the Select Committee? Who is telling the truth?
As I said to the noble Lord, Lord Rosser, we believed that we were taking reasonable steps to give effect to the PHE advice on the steps to make accommodation as safe as possible. The advice that PHE set out was that self-contained accommodation should be used where available but, if not, how non-self-contained accommodation should be used. I have to say that we acted in an unprecedented health pandemic to ensure that asylum seekers were not left destitute. We took steps, in response to advice from health authorities, and have continued to make improvements throughout. In its letter to the chair of the Home Affairs Select Committee, the PHE set out that we have been working with it on Covid matters since spring last year.
My Lords, we have heard that the High Court found in the Home Office’s favour in a number of areas, not least in rejecting the claim that conditions at Napier amounted to inhuman or degrading treatment. Surely Napier barracks is nothing less than a distraction from the real issue of the French authorities failing dismally in their duty to protect seaborne migrants by preventing them leaving the safety of French shores. Given the enormous contribution that the British taxpayer is making towards this effort in France, can the Minister give an explanation that I can take back to the many people who are, frankly, baffled by the inadequacies of French law enforcement in preventing migrants crossing the channel?
I fully concur with my noble friend that any journey across the channel is perilous and, as we have seen on many occasions, leads to people who take those journeys dying or ending up in the sea. The only people who benefit from those journeys are the criminals who facilitate them. We continue to work with the French to ensure that people do not take those journeys from the French coast. To that extent, we hope that things will improve.
I declare my interest as a trustee of the Refugee Council. Asylum seekers in Napier barracks, who came via continental Europe, are now being told by the Home Office that before their cases can even be considered, they must spend six months in limbo—six months before they join the queue, lengthening steadily since 2015 and, by March, a record and scandalous 40,000 strong, of those awaiting an initial decision on their claim, not allowed to work and subsisting on £5 a day. Will the Minister answer two questions? First, will she explain how the new limbo is consistent with our refugee convention obligations, given that there is no convention rule requiring applications in a safe transit country? Secondly, will she tell us how sending these people back to continental Europe could be contrived, given that we have left the Dublin convention and have no replacement bilateral agreements in place?
The key phrase used by the noble Lord is “continental Europe”. These people are coming from safe countries; Europe is a safe set of states. We believe that the inadmissibility rules are consistent with the refugee convention. They have not been dreamt up by us recently, but are long standing. We are currently in discussions with other countries on sending people back who should not have applied for asylum, coming from a safe country.
My Lords, this has been a sorry tale, which, more than anything else, has exposed that the Government either did not know or were avoiding telling Parliament what was happening. Part of the next phase is the opening of a detention centre—I think that is what it is being called—in Medomsley, County Durham. The site is beautiful, but has a very sorry history from when it was a detention centre and then the Hassockfield youth offending facility. There are still outstanding cases of alleged abuse relating to Medomsley. It is a very strange place to put people from very different cultures with probably very different language needs from those in the local community. How will the Government ensure that the system, which already looks fairly broken, does not become even more broken by there being insufficient people with language or cultural knowledge to work there, and ensure that we fulfil our international obligations, as we ought to?
My Lords, any accommodation, be it detention or reception accommodation, will be scoped and checked to make sure that it meets service standards. I understand the point that the noble Baroness makes about that particular detention centre because the right reverend Prelate the Bishop of Durham brought it to my attention. We are currently scoping through various options for detention, but if someone has no legal right to be here and we cannot effect their removal, we unfortunately have to place them in detention, but the detention estate has declined somewhat over the last few years.
My Lords, if the High Court considers that Napier barracks cannot provide acceptable accommodation for asylum seekers under current conditions, does my noble friend agree that the court’s judgment is considered extraordinary and absurd by a large majority of the public? Does she not further agree that the judgment strengthens the case to identify suitable offshore centres to house asylum seekers, which might eventually damage the illusion of nirvana—as the people smugglers portray life after illegal entry into the UK?
The judgment found explicitly that the conditions of the barracks were not inhumane or degrading, as has been reported, but I concur with my noble friend that anyone who has no right to be here, whether through criminality or a failed asylum judgment, should be removed from this country. The Government are looking at various ways in which that can be effected.
Order of Consideration Motion
That it be an instruction to the Committee of the Whole House to which the Environment Bill has been committed that they consider the Bill in the following order:
Clauses 1 to 21, Schedule 1, Clauses 22 to 47, Schedule 2, Clause 48, Schedule 3, Clause 49, Schedule 4, Clause 50, Schedule 5, Clause 51, Schedule 6, Clause 52, Schedule 7, Clause 53, Schedule 8, Clause 54, Schedule 9, Clauses 55 to 65, Schedule 10, Clauses 66 to 71, Schedule 11, Clause 72, Schedule 12, Clauses 73 to 80, Schedule 13, Clauses 81 to 92, Schedule 14, Clauses 93 to 107, Schedule 15, Clauses 108 and 109, Schedule 16, Clauses 110 to 123, Schedule 17, Clauses 124 to 130, Schedule 18, Clauses 131 and 132, Schedule 19, Clause 133, Schedule 20, Clauses 134 to 141, Title.
Professional Qualifications Bill [HL]
Committee (2nd 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 might wish to press an amendment other than the lead amendment in a group to a Division must give notice in debate or by emailing the clerk. Leave should be given to withdraw amendments. When putting the Question, I will collect voices in the Chamber only. If a Member taking part remotely wants their voice accounted for if the Question is put, they must make this clear when speaking on the group. We will now begin.
Clause 3: Implementation of international recognition agreements
Debate on whether Clause 3 should stand part of the Bill.
My Lords, I rise to oppose Clause 3 standing part of the Bill. Judging from the range of people who have co-signed this amendment and those who would have signed it had there been space, this issue is not confined to one set of Benches. I thank the noble Lords, Lord Trees and Lord Hunt of Kings Heath, and the noble Baroness, Lady Noakes, for signing it. I also acknowledge the craft of the noble Lord, Lord Lansley, in drafting Amendment 56; I will obviously allow him to speak for himself, but it may well be another way of thinking about the clause. We have already heard about some of the issues in Clause 3, as your Lordships have sought to make amendments. Of course, we are in Henry VIII territory again, but there are particular concerns about this clause, which I will highlight.
The Minister told us at Second Reading:
“Clause 3 will enable UK Ministers and devolved Administrations to implement the recognition of professional qualifications elements of international agreements.”
“To be frank, we acknowledge that these powers are broad”.—[Official Report, 25/5/21; col. 910.]
Broad is a good word. In one of his many letters—for which I thank the Minister, as they arrived at five o’clock yesterday evening—he again confirms the importance of the autonomy of regulators, which he has returned to on many occasions.
However, this clause essentially gives the Government of the day the ability to make whatever provision is required to implement any international recognition agreement to which the UK becomes a party. It includes the power to amend primary legislation and retained EU legislation. If regulators were indeed autonomous, what exactly would this clause be implementing? To date, I am aware of no indications from the Minister or his department as to the nature of what changes might be necessary to implement such international agreements. Perhaps he can give us some examples but, in the meantime, we have to assume that nothing is off the table and that the autonomy of the regulators would not be protected in any way if this Bill were passed with this clause in it.
When I first read the Bill, I was already more than somewhat disquieted by this clause but when I read the Delegated Powers Committee report my fears were amplified. I cannot match its authority, but its damning condemnation of the scale of the powers in this clause are really quite important and should be taken into consideration. As the committee said:
“Implementation of such agreements in UK domestic law could raise matters of considerable public interest (for example, were such agreements to give preference to professional qualifications issued in particular countries—perhaps linked to trade deals).”
In the letter to the noble Lord, Lord Lansley, the Minister confirms that the clause will ensure that the Government can meet their international commitments. Would I be right in assuming that this would include mobility frameworks in free trade agreements?
The DPRRC report goes on to highlight the lack of clarity in changes that secondary legislation would make in domestic law, or the scale of change this law might exert on the 160 or so professions in question by international regulation agreements that the committee implicitly linked to trade deals. It then explains that the justification for this delegation is the fact that the nature of future international agreements cannot be known, which we will come back to. Additionally, the DPRRC notes that the Government fail to try to explain why these
“‘necessary changes’ should …be made by Ministerial regulations rather than by Act of Parliament.”
I expect the Minister to respond to this debate by saying that this clause is vital to Her Majesty’s Government’s plans to implement international trade agreements. But this is true only if the Government refuse to bring these agreements to Parliament for approval. How does he justify the taking of power for the Minister and not leaving it to a future Act of Parliament? How does he respond to the DPRRC’s telling conclusion that
“clause 3 represents an inappropriate delegation of power and should be removed from the Bill”?
My Lords, I am very glad to follow the noble Lord, Lord Fox. Like him, I was moved to draft Amendment 56 not least by the report of the Delegated Powers and Regulatory Reform Committee, which at the end of its consideration of Clause 3 said that it
“represents an inappropriate delegation of power and should be removed from the Bill.”
The noble Lord was not proceeding entirely on his own initiative, and I entirely recognise where he is coming from.
I am coming from this as a Member of the International Agreements Committee. We are looking at many of the negotiations taking place between ourselves—now as an independent trading state—and other countries in creating international agreements. I do not personally see the world as divided into trade agreements and other agreements. We are increasingly entering into economic partnership agreements where, to be frank, the issue of services and the mobility of professionals should rightly play an increasing part in the economic partnerships that we forge with other countries. I want to see us enter into frameworks with other countries whereby our professionals can work there, and their professionals can work here. That will be, as trade often is, to the benefit of all parties.
On that basis, I considered whether this may be like the Trade Bill, in which we effectively gave Ministers the regulatory power to amend legislation and bring it in line with the continuity agreements we enter into. The conclusion I reached is that it is not like that; these are new agreements, not continuations of old ones. From our point of view, as a committee charged under CRaG with the scrutiny of new agreements, we are only too aware that this House has no capacity to block such a treaty, and no capacity to amend it.
Where secondary legislation is concerned, the House may have the power to stop statutory instruments, but in this territory, frankly, we would enter very difficult terrain. We would end up with our Government having signed an agreement with another country, intending to be bound by it under international law—indeed, it may have come into force—and, at that point, this House would have to consider its implementation in legislation. It seems to me, therefore, that the remedy of deleting Clause 3—and so requiring that every time Ministers want to implement an international recognition agreement in legislation, they have to do it in new primary legislation—is asking too much. As time goes on, there will clearly be framework international recognition agreements under which Ministers will regularly, or maybe frequently, need to change the secondary legislation affecting a range of professions and regulators.
My thinking was that we should—as we often do—allow Ministers the power to change the statutory instruments and secondary legislation relating to new international recognition agreements, but not the power to change primary legislation. That is why, instead of changing Clause 3 itself, Amendment 56 amends the regulation clause at the end, Clause 13, and would provide that the power in Clause 3 to implement international recognition agreements is a power to modify subordinate legislation but not primary legislation; that would be the effect of Amendment 56. Noble Lords may support the noble Lord, Lord Fox, and others in opposing Clause 3, but—if they share my belief that we will often be in this this territory, with Ministers having to change secondary legislation and much less frequently primary legislation, and that, when they do, they should secure the consent of the House, with our ability, as ever, to insert amendments, conditions and caveats, as well as sunshine clauses and so on—then they should in due course consider an amendment on the lines of Amendment 56 to strike a better balance, giving Ministers power but not a Henry VIII power.
My Lords, to start, I do not agree with the amendment tabled by the noble Lord, Lord Lansley. I clearly understand the point that he is trying to make; in fact, I have my name down with others to strike Clause 13 from the Bill, but we will come to that.
I will say in a minute why I do not agree with the noble Lord’s proposition but I do agree with that of the noble Lord, Lord Fox, and, absolutely, with his argument. It was clear from the comments of the Delegated Powers Committee that it considered this clause unnecessary. I personally think this is the key clause of the whole Bill; all the other clauses revolve around it.
As I have said, for some professions, such as those in healthcare and, in particular, medicine, the whole Bill is irrelevant because the powers that it gives the Government are already there for the regulator. Including Clause 3 would allow the Government, when making agreements—trade or otherwise—to recognise, for instance, medical qualifications from around the world, without the regulator having any say. I have heard the Minister say many times—and I believe him—that the Government have no intention of going down that path without consulting the regulator. However, one cannot tell from the Bill what form that consultation will take, or whether the Government are obliged to accept what the regulator may say.
In medicine, the regulator currently has power to check the validity of the certification from the university that awarded a doctor’s primary qualification. When I was chairman of the specialist training authority, we found many times that such documents were forged and we had to go to great lengths to make sure that they were authentic. Experience, too, is often found not be correct, so the regulator has to go through lengthy processes. I hope it will not be acceptable just to recognise professional qualifications through an agreement, whether a trade agreement or otherwise, without the regulator having the full powers. For no other reason than that, I support the amendment from the noble Lord, Lord Fox.
The amendment of the noble Lord, Lord Lansley, suggests that we give Ministers the powers through this clause but reserve the removal of Clause 13 so as not to change the primary legislation. I think the two things are quite separate and, therefore, I do not support his proposal. I conclude by respectfully saying to the Minister or his officials that, for some reason, I do not receive any of his communications; I would be grateful to do so.
My Lords, I declare an interest as a member of a professional organisation. We have before us the international agreements clause, as we could call it. In their response to the Delegated Powers and Regulatory Reform Committee, the Government said:
“Clause 3 is necessary to ensure that the provisions of international agreements can be implemented domestically and be given effect to by particular regulators.”
I am not sure about the use of “necessary” but that is how they have chosen to phrase it and, taken at face value, it is all well and good. It is established practice for trade agreements to cover a range of issues, including the recognition of professional qualifications—or rather, it would be acceptable if we could trust the Government. The problem, of course, is that we cannot trust this Government, particularly when they seek to assume such wide-ranging powers.
There are two levels of concern. First, and crucially, the driving principle should be the maintenance of the quality of professional standards and the service provided, not any wider considerations of economic benefit. For example, as stated by the General Medical Council:
“Patient safety is, and must remain, the principle consideration when considering whether to facilitate access to the medical register as part of an economic trade agreement.”
In other words, there must be no room for any trade-off of potential broader economic advantages at the price of weakening professional standards. One way of ensuring that the correct professional standards are maintained is the fullest, earliest possible involvement of the relevant UK regulators in the discussions that take place on the trade agreement; that is, before and during the trade discussions. The Minister has protested that it is no part of the Government’s trade policy to compromise our professional standards. It is possible that I have—again, in the Minister’s words—“a suspicious mind”, but the Government’s record suggests otherwise. This is a general issue where some reassurance would be appropriate, whoever is in government.
The second level of concern is that this is not a normal Government. The evidence we have so far is that this Government are desperate and will do almost anything to justify their decision to change our international trade arrangements to get Brexit done. More store is being placed on obtaining trading agreements for their own sake, however bad or vague they might be. The Government are desperate to present the public with so-called achievements of favourable trade agreements.
For example, we are led to believe that a trade deal with Australia will shortly be announced. It will be the first big post-Brexit trade deal that is not simply a rollover of arrangements that the UK enjoyed as an EU member. In practice, Australia is a relatively small export destination for UK goods and services, but that does not matter because it is all about the politics. There is also an ambitious Secretary of State.
How can our professional services depend on their interests being defended in any future trade deal under the terms of this legislation, any more than, for example, the hill farmers of Wales will be defended under the putative agreement with Australia? It is obvious that, whatever the terms, getting the deal is the only thing that matters to the Government.
In addressing this issue, the Government have to be honest that trade agreements are almost invariably about more than trade. It is innocent to believe otherwise. For example, the Comprehensive and Progressive Agreement for Trans-Pacific Partnership is much more about achieving the UK’s Indo-Pacific tilt for foreign policy than an economic project. However, the UK has to accept all the CPTPP rules to become a member if it wants to achieve that strategy.
There are real concerns, which I hope the Minister will address, that professional standards risk being the sacrificial lamb, slaughtered on the altar of political ambition.
My Lords, since this is my first contribution to this Committee stage, I thank the Minister for his personal letter to me after Second Reading addressing my concerns about the Bill. He is always courteous and meticulous in responding and I sincerely appreciate that.
However, I still have certain concerns. At Second Reading, I asked two main questions. One was whether the Bill would debar relevant regulators from requiring certain applicants—where no regulator recognition agreement has been set—to sit the UK regulators’ own examination or assessment procedures. I commend the Government and thank the Minister that the Government’s own amendments, brought in with regard to Clause 1, have made it clear that this is not the case.
However, the other question and my concern relating to Clause 3 remain. Why is there a need for a clause in the Bill connecting professional recognition to trade agreements? It leads to a genuine concern that Clause 3 will pressurise regulators into relaxing standards. That concern remains, so I will consider it in some detail
A major purpose of the Bill is to give regulators powers to reach mutual recognition agreements or other methods to enable overseas professionals to register and practise in the UK. The Royal College of Veterinary Surgeons—and I declare my interest as a fellow and former president—and the healthcare professions, particularly the General Medical Council, as my noble friend Lord Patel has mentioned, already have these powers, and one wonders how many of the 50 or so other regulators in the UK do not have them. A question I raised at Second Reading still stands: why not give such regulators the powers they currently lack and leave it at that? Why link regulatory recognition to international agreements?
If we look at the precise wording of Clause 3—and I have not added any words, just subtracted some—Clause 3(1) states:
“The appropriate national authority may by regulations make … provision … for … implementing any international recognition agreement to which the United Kingdom is a party.”
Clause 3(4) continues:
“An ‘international recognition agreement’ means so much of any international agreement … for … the recognition of overseas qualifications or overseas experience for … determining whether individuals are entitled to practise in the United Kingdom”.
I am not a lawyer, but this translates to me as meaning that the Government can implement an agreement to recognise whether individuals can practise in the UK. There is no mention in Clause 3 of involvement or consultation, let alone agreement, with the relevant regulatory authority in the UK. That is my amateur interpretation but the noble Baroness, Lady Noakes—I hope I am not pre-empting her—put it more bluntly at Second Reading:
“The dodgy bit of the Bill is Clause 3, which allows the Government to override existing approaches and procedures for the recognition of non-UK qualifications if they have been covered in a trade treaty.”—[Official Report, 25/5/21; col. 931.]
However, as we have heard already from the noble Lord, Lord Fox, and others, that is not all. The Delegated Powers and Regulatory Reform Committee, in its report on the Bill, had plenty to say about Clause 3. The committee’s concerns are different from mine but are none the less serious and pertinent. Its report notes that Clause 3 gives Ministers broad powers by regulations, including Henry VIII powers to amend primary legislation, without conditions. The report considers and rejects the justifications for this in the Explanatory Memorandum of the Bill and concludes that
“clause 3 represents an inappropriate delegation of power and should be removed from the Bill.”
It seems to me that Clause 3 adds nothing to the reasonable and positive elements of the Bill to enable regulators to have greater ability to recognise, by the means they so determine, overseas applicants for registration to practise in the UK or to ensure that the regulators have such processes and that they communicate them publicly to facilitate overseas applications.
There are serious concerns about the potential that Clause 3 gives the Government to determine or influence the process of professional recognition in the UK and serious concerns from the DPRR Committee about the powers this clause gives the Government to amend primary legislation. I argue that, collectively, these facts support the view that Clause 3 should not stand part of the Bill, which I support.
My Lords, I want to put myself on the record as one of those who would have signed the noble Lord’s amendment, had there been space. I again draw attention to the way in which our systems, with the limit of four signatures, no longer allow a full representation of the range of views in your Lordships’ House. I say to the noble Lord, Lord Fox, that should we get to a vote at a later stage, he has the support of the Green group in this matter of Clause 3.
This morning, in my continuing efforts to spread news about what happens in your Lordships’ House to the general public, I wrote what I believe is the first non-specialist press article on the Professional Qualifications Bill, in the Yorkshire Bylines. In it, I described the Bill collectively as a “massive power grab” by the Government, and I believe that Clause 3 is the key part of that power grab, as a number of noble Lords have already indicated.
It is interesting that a number of noble Lords speaking before me have declared their professional affiliations, coming from a wide range of professional areas. They were mostly addressing Clause 3(2)(a), which is about provisions
“conferring functions on any person”.
I will look at Clause 3(2)(c) in particular—the
“provision for the charging of fees.”
There is also real potential for great mischief and great impacts in this element.
I will refer specifically to an ongoing issue around UK visa fees for citizens of 26 European countries. This relates back to when the UK signed the 1961 European Social Charter, as part of our membership of the Council of Europe—so this is not EU or Brexit-related. This arrangement sees a £55 reduction in the cost of UK work visas for people from 22 EU states and Iceland, North Macedonia, Norway and Turkey. This, for example, reduces a seasonal worker visa charge from £244 to £189. That perhaps does not sound like a lot of money to your Lordships, but I point out that we are talking about people who also face an immigration health surcharge of £624.
We are talking about playing around with people’s lives and possibilities. We are not just talking about people coming to the UK because, in many cases, we are talking about something reciprocal. We are playing around with people’s possibilities and freedoms and what is available to them. In the context of Brexit, that is the practical reality: lots of people are seeing their lives disrupted and possibilities previously available to them not being available in the future. However, there should at least be democratic scrutiny and oversight of how that is done through the parliamentary process.
I will pick up on what the noble Lord, Lord Davies of Brixton, said about this being an issue of trust, and how it seems clear that so many of the Government’s decisions are about the politics rather the economics or the impacts on people’s lives. Coming back to Clause 3(2)(a), let us imagine that the Government are negotiating an international recognition agreement and they really want to get the City of London very lucrative access to a national market. There are some nations in the world that train more medical personnel, say, and essentially regard them as an export. They might say, “We want you to reduce the rules to allow our medical professionals into your market, your working environment, and the trade-off is that your City can make a lot of money”. Just think about what that picture looks like and is. That is the practical reality of what I and many others have identified as a massive power grab by the Government.
We are talking about people’s lives and safety and the quality of our professional services, and I urge your Lordships’ House to back the call that Clause 3 not stand part of the Bill.
My Lords, in last week’s Committee, we emphasised the need for the Bill, and not just the Government’s fine words, to recognise the autonomy of the regulated professions. If the Government really do intend to respect the independence of the regulated professions, it is quite difficult to see why Clause 3 is required.
If the Government sign a trade treaty that includes the recognition of qualifications, and if they do respect the autonomy of the professions, it is difficult to see why we need Clause 3 in addition to Clause 4. Many regulators already have powers to enter into recognition agreements for overseas regulated professions, and if they do not have them, Clause 4 is there to empower them to do so. As such, they either have the powers already or can acquire them by using an order under Clause 4, which seems to me to make Clause 3 redundant if—and only if—the Government do actually mean what they have been trying to tell us: that they respect the autonomy of the professions.
Put another way, there is no evidence before the House that Clause 3 is needed. When faced with an unnecessary clause, the right thing to do is remove it. The Delegated Powers and Regulatory Reform Committee, which other noble Lords have referred to, was highly critical of the Government’s taking of Henry VIII powers in the Bill, particularly in relation to Clause 3. There is very good reason for the Committee to agree with the DPRRC that Clause 3 should not stand part of the Bill.
I looked very carefully at my noble friend Lord Lansley’s Amendment 56 in this group, but I am not convinced that the existing distinction between what is in primary and what is in secondary legislation is sound. It means accepting that the EU’s use of regulations versus directives, and the use of statutory instruments to implement the EU law coming into our law as we left the EU, is a good basis going forward for determining the degree of parliamentary scrutiny that is required for any changes. Because of this, I cannot support my noble friend’s amendment.
As we are starting the second day of Committee, I declare my interest again as a member of the GMC board, although clearly, I am not speaking on its behalf.
I put my name to the noble Lord’s clause stand part Motion, and I was happy to do so, although I acknowledge that the noble Lord, Lord Lansley, has given a different and interesting perspective. Equally, I remind noble Lords that I have a sunset clause that we will debate next week. All of us are trying to get to grips with the same problem. The Minister brought some very welcome amendments last week and made some very welcome remarks about the Government’s wish to protect the autonomy of regulators. The issue is that, on any reading of the Bill, Clause 3 would seem to be able to override those protections. This is where we get to the heart of the Bill.
My noble friend Lord Davies was absolutely right: we have seen how the farmers are being dealt with over trade agreements, and it is pretty clear that the Government are willing to ditch a great deal in order to get a trade agreement. That is why it is no good having legislation that does not protect the professional autonomy of regulators. Does the Minister accept that, notwithstanding the warm words he has used, in the event of a trade agreement it will be perfectly possible to use this clause to override any of the protections in Clause 1?
If, as I think the Minister has to say, it will be possible, the question posed by noble Lords and the noble Baroness, Lady Noakes, then comes back: why do we have to have this clause at all? If we do have to have it, why is there not some protection within it that says that, notwithstanding the trade agreement, it cannot override the protection given in Clause 1? One way or another, before the Bill leaves your Lordships’ House, we have to tackle this head on.
My Lords, I come to this with a slightly different perspective. Many Members of this House have contributed to the Committee stage of the debate from a ministerial, government or legislative perspective, but I would like to look at it from what my noble friend Lady Noakes might say is the consumer or regulator perspective.
In the debates on the Bill, many noble Lords have acknowledged that we are dealing with a particularly complex landscape. We have had contributions from specialist clinicians, accountants and others, but we have not heard from airline pilots, driving instructors, slaughterers or pig farmers, who are included in this legislation. The list of professions is a given. As the noble Lord, Lord Fox, acknowledged, Clause 3 deals with hypotheticals—with future agreements about which we do not yet know, and on the terms of which we can only hypothesise. My noble friend Lord Lansley pointed out how important the mobility of professionals is and will increasingly become in this complex landscape. Many of the regulators of these numerous and diverse professions are governed by pre-existing legislative frameworks. I cannot see how it would be possible to deliver in the Bill the necessary future changes which all these individual professions might desire.
At every opportunity, my noble friend the Minister has rightly stressed the autonomy and independence of the regulators. Indeed, he has described this as running,
“like a golden thread throughout the whole Bill.”—[Official Report, 9/6/21; col. 1453.]
I do not believe that Clause 3 alters this in any way. Many regulators already have robust processes for overseas applicants who wish to join the UK register. They are able to judge the equivalence of qualifications and have already built up considerable experience and relationships with overseas regulators. These regulators would be in an excellent position to advise the Government if and when they felt it necessary to bring forward further secondary legislation. I have spoken to the Health and Care Professions Council, which feels that it is one that could help the Government to shape and hone this secondary legislation to ensure that it met its intended purpose and did not conflict with existing standards, but enhanced, protected and maintained patient safety priorities. It would be reassuring if the Minister could set out how he envisages that a formal process of consultation and engagement would work.
Last week, when he was talking about powers under Clause 3, the Minister referenced European trade forums and ad hoc consultations with interested parties. BEIS also organises regulator forums which provide updates on the negotiations and terms of trade deals. Some regulators—the Health and Care Professions Council is one, and there may be others; I am afraid that I do not know—are not members of either the ETAG or the BEIS regulator forum. There may be others of which I am not aware. Can the Minister give regulators such as these some confidence as to how these powers could be used in future by successive Governments?
Specifically, I understand that the power in Clause 3 is limited to the professional qualification elements of international agreements. In his response to the Delegated Powers and Regulatory Reform Committee’s third report, the Minister gave the example of the UK’s original offer to the EU as the furthest the Government would or could go to require regulators
“to put in place processes to consider applications … from professionals in the EU.”
This is key. Clause 3 ensures that processes are put in place. There should be a clearly outlined route to registration. I cannot find any obligation for a regulator to recognise overseas professionals if they are not satisfied that all their own independently set and required standards have been met. However, as I have already said, experts and regulators are keen to help and work with the Government to provide the necessary expertise and to advise on all aspects of professional regulation equivalence of overseas qualifications which may be required in preparation for and during trade negotiations.
Some have therefore expressed concerns—which have been shared by other Members of this House—that Clause 3 could lead to a situation in which this expertise would be bypassed. Can the Minister enable us to understand further the impact which the provisions in Clause 3 are likely to have? Can he offer any further reassurances as to the context in which these Clause 3 provisions would be used and how the Government intend to work with regulators to inform these trade negotiations on recognition of qualifications?
I appreciate the views of many noble Lords who have expressed concerns about the wide-ranging powers and Henry VIII clauses in this Bill. I am on a steep learning curve where these are concerned. I also noted last week that the noble Lord, Lord Bruce of Bennachie, raised a concern about how the Government would ensure that the devolved Administrations would properly and sufficiently be consulted. I hope that in the implementation of Clause 3 in relation to international agreements, for example, the Minister might give some comfort and say how he envisages that this might work practically in this context, as it will hinge on areas of skills shortages all across the UK.
Finally, I am a great believer in proportionality, particularly in the proportional use of powers. Bespoke primary legislation in response to a diverse shifting skills and trade landscape may be not only disproportionate but unbelievably burdensome. As my noble friend Lord Lansley said, it would perhaps be asking too much—and not only of your Lordships’ House as legislators; in my short time here, I have already seen how hard you work, and your time is important. But it would also place a burden on regulators, for which a flexible framework approach would enable them to be nimble as to who they assess as overseas applicants and how they assess them. As we consider the skills shortages in so many of our professions, this is surely the preferable route to take.
My Lords, I commend the noble Lord, Lord Fox, on securing this Clause 3 stand part debate. I associate myself with everything that he, my noble friend Lady Noakes and the noble Lords, Lord Davies of Brixton and Lord Hunt, said.
I repeat that I am a non-practising member of the Faculty of Advocates, and I should probably state that I am an associate fellow of the British Veterinary Association.
Many believe that, while Clause 3 is useful, it is limited to international agreements—treaties to which the UK state is a party. If this is the case, when he sums up the debate, can my noble friend confirm that the power would not be available to make or amend legislation to give effect to a mutual recognition agreement negotiated autonomously at the level of professional regulators? In the view of the British Bar Council, this is a deficiency in the Bill and another reason why Clause 3 might not fit in here.
I particularly associate myself with the comments made by the noble Lord, Lord Hunt, and others, about farmers. As my noble friend will be only too aware, I have mentioned this just about every time we have debated either the Trade Act—as it now is—or individual trade agreements: there is no parity of approach between, for example, our farmers and what they might expect to get from the Australian deal, and the Australian farmers and wine producers and what they might expect. I should be delighted if the doors to Scotch whisky were to be opened in a reciprocal arrangement, but I will not hold my breath.
Where is the symmetry in the approach adopted under Clause 3? In our approach to regulations under this recognition of professional qualifications and in individual trade deals to which I have just referred, we seem to be rushing to accommodate members of those professions who wish to come here. As others, notably the Bar Council and the Law Society of England and Wales and the Law Society of Scotland have pointed out, there does not seem to be any support for our professionals who go over there. My noble friend was very clear that there was no reciprocity of agreement with the European Union. Am I being completely ignorant? Does the agreement with the EU also cover the agreement with the EEA and Switzerland? I am at a loss to understand why we are not seeking to reach an agreement on the basis of reciprocity of professional qualifications, not just with the EU but with the EEA and Switzerland.
I would like to press my noble friend the Minister further, and more specifically for a response to the amendments I tabled on day one of this Bill. I asked specifically for provision for consultation with the devolved Administrations and the individual regulators in them. My noble friend said—I am paraphrasing—“There will be many consultations”, so what form will those consultations take? What is the specific mechanism and at what stage will they take place? I do not think it is fair that the devolved Administrations should be presented with a fait accompli; they should be consulted at the earliest possible stage. The noble Lord, Lord Foulkes, tabled an amendment that went further, saying that the consent of the devolved Administrations should be sought. That is a moot point, to which I am sure we can return at later stages.
I conclude by saying that my greatest difficulty with Clause 3 is understanding the policy that lies behind it. Doing my homework, preparing for the Bill this afternoon, I found that, for once, the Government have produced an impact assessment. I know that will please my noble friends Lady Noakes and Lady Neville-Rolfe, who is not here today, as we always look to the impact assessment. That is commendable. It is something to which we should refer frequently and in great depth.
In paragraph 36, on page 11, the impact assessment refers to:
“The preferred option, ‘Provide powers in the Bill to enable the government to implement the RPQ provisions of international agreements and support regulators in making agreements with their international counterparts on the recognition of professional qualifications,’ … These powers will enable the UK government to make regulations to achieve its policy aims, including the amendment of primary legislation where necessary.”
Slightly before that, on page 8, the policy objectives are set out. I will not read them all out, but one is to
“end the interim system which gives preference to EEA and Swiss professional qualifications.”
I hope my noble friend will put my mind at rest, but in the following policy objectives, I do not see anything about what the benefits to our professionals will be, whether they are pig farmers or advocates, when trying to ply their profession or establish their professional service in another jurisdiction. That is another reason it is extremely difficult to understand what the policy is behind Clause 3 and what reciprocal arrangements the Government are seeking. I hope my noble friend will set these out when he sums up this little debate.
My Lords, I am grateful to my noble friend Lord Fox for bringing this debate forward in such a cross-party manner. I was struck by the comments of the noble Baroness, Lady Noakes, who has been consistent in this area. Her argument and that of my noble friend Lord Fox has been supported by the Delegated Powers and Regulatory Reform Committee report. In paragraph 32, the committee cites the Constitution Committee, saying that both are of the view that the Government’s previous attempt at legislation in the Private International Law (Implementation of Agreements) Bill,
“which allowed Ministers to implement a category of international agreements by way of statutory instrument, represented an inappropriate delegation of power.”
I agree. In that Bill, we attempted to make the Government see sense. To some extent, they did, because the powers under it, which are drafted almost exactly like those in this Bill, had an additional clause, with a sunset. The powers under that Bill for international agreements can last for only five years after their signing. Perhaps this is the point the noble Lord, Lord Lansley, made: in recognition of that, if changes mean that agreements need to be updated or go beyond the scope of that Bill, new legislation should be brought forward. I would be interested to know from the Minister why the previous mechanisms for implementing a trade agreement on certain aspects include a sunset clause and this one does not.
Fundamentally, this is about trust. Because of the concerns of other committees and the debates we had on the Trade Bill, we consistently and repeatedly raised concerns about the use of Henry VIII powers especially but also about secondary legislation for implementing trade agreements or parts of them. The Minister and his predecessor, the noble Baroness, Lady Fairhead, tried to reassure us by repeating the statement that Liam Fox, when he was the Secretary of State for International Trade, gave in the House of Commons on 16 July 2018. When it came to scrutiny of trade agreements, he said that
“the Government will bring forward a bespoke piece of primary legislation when required for each new future trade agreement that requires changes to legislation and where there are no existing powers.”—[Official Report, Commons, 16/7/18; col. 42.]
Clause 3 and the Henry VIII powers in Clause 15 are a direct contradiction of that. This Bill seeks to use broad Henry VIII powers where regulations
“contain provision amending, repealing or revoking primary legislation”
when it comes to implementing a trade agreement. I think I can say collectively that we respect the Minister and take his word at the Dispatch Box, but why are the Government now contradicting the commitment that Dr Fox gave as Secretary of State in 2018?
I share some of the concerns of the noble Baroness, Lady Noakes, about Clause 3. It provides even broader powers than those in Clause 1. Clause 3 does not limit itself to Henry VIII powers in legislation connected with regulators. It relates to any regulations under the Henry VIII power concerning individuals
“entitled to practise a regulated profession.”
These regulations are not limited to the regulators themselves. The breadth of the powers in Clause 3 is breathtaking. In the letter the Minister sent to the noble Lord, Lord Lansley, he simply said that he would consider the need for impact assessment on regulatory independence when implementing an international recognition agreement. That is not good enough. This should be the default, and it should be the default that if there are requirements to revoke, amend or repeal legislation, it should be done in primary legislation.
I was grateful for the Minister’s letter and, like my noble friend Lord Fox, grateful for the letters he sent to us yesterday. I was grateful to the Minister for confirming what I said in the previous day of Committee—that CRaG would not necessarily be a default process for these agreements. Given that the implementing of what could be sub-agreements would not go through CRaG, this is of even more concern. The Minister said in his letter—and mentioned briefly at Second Reading—that if a mutual recognition agreement was not a treaty in its own right and did not amend the original treaty, there would be no need to go through the CRaG process. He said that this was the appropriate result, because Parliament would have had the opportunity to scrutinise the original treaty and the regulations made to implement the MRA.
The point is that these new aspects are potentially extremely wide and could impact massively on who is fit to practise in the UK. If Parliament would have no ability to extend scrutiny of the Henry VIII powers, even under the affirmative aspect—on which the noble Baroness, Lady Bloomfield, said it was not the Government’s intention to bring forward consultation, when she spoke to the noble Baroness, Lady Hayter—or have the same level of scrutiny on either an affirmative or a negative instrument, as it would under CRaG, this would not be sufficient.
Part of the argument which the noble Lord, Lord Lansley made—and normally I would by default agree with some of his amendments on trade Bills and other legislation—convinces me less. Where there is no legislation requiring implementing legislation, rather than amending it, the default position should not be to use Henry VIII powers. It should be new primary legislation. If we are seeing regulations which could amend regulators’ processes, we must ask what purpose that primary legislation served for those regulators. It is essentially there to provide statutory underpinning for the regulator’s functions for public safety—the safety of those who are licensed and who would be considered fit to practice in the UK. There is no limit on the regulatory powers under Clause 3, and there is no link to fitness to practise or standards. There is purely a secondary Henry VIII route through which a Government could drastically change the existing statutory underpinning for public safety.
I wonder why the noble Lord, Lord Lansley, feels that amending secondary legislation is necessary. If there is no existing statutory legislation that is the parent Act of the subordinate legislation for these regulators, then we should not be creating that legislation by secondary legislation. We should look at the original Act, and not simply support regulation-amending provisions. Fundamentally, while we can have many concerns about the operation of these regulations, their breadth, the impact they could have on the regulators and those who are applying to them, this is about honouring a commitment given by this Government during the passage of the Trade Bill. It is stated on the record in Hansard, and I hope the Minister will reaffirm that, and have discussions about removing this clause.
My Lords, as we have heard, Clause 3 gives powers to Ministers to do all sorts of things, but particularly over professional regulators to implement what the Government have negotiated with a third country as part of a trade deal. We are not talking about participation in negotiations on a trade deal, but when a trade deal is done, Clause 3 would give Ministers powers to make such provision as they think necessary to implement any international recognition agreement.
Basically, it states that, where the Government have agreed that opening up a particular UK profession to people qualified in that third country, Ministers can tell a supposedly independent regulator—if I understood what the Minister said earlier—simply to put in place a process for assessing any applicants. However, it goes much further than that, as the noble Lord, Lord Purvis, and others have said. It could even be to accept such applications, not simply to have process by which they would consider applications. Why is this power needed? Either the regulator already has the power to have such a process to consider applications so that it can judge the qualifications, experience, fitness to practice and general bone fides of applicants, in which case this power is not needed, or it lacks the power and does not want it because if it wanted such a process, it would have put it in place.
Not everyone opened their emails at 5 pm yesterday, but I did, and I had a letter from the Minister. One of the questions we have been asking—and which he helpfully promised to answer—was how many regulators are we discussing anyway, under the 60 regulators who do not already have the powers to accept or consider applicants from third countries to practice here. He named three, meaning that we may be doing this for just three regulators. One is the Health and Safety Executive, another the Teaching Regulation Authority, and the third is the Security Industry Authority, which I think regulates bouncers. Someone who knows about this can tell me if I got that right—I see that the Minister confirms it. So this Bill will enable a regulator which regulates our bouncers to take applicants from third countries with which we have done a trade deal, so that their bouncers can come and operate at our nightclubs, which are closed at the moment because of Covid. I thought I should share with colleagues that we are possibly talking about three regulators who do not have the power, and that one probably does not want it anyway. If they can already consider applicants, then this seems to go further than saying that you need a process in place, and seems possibly to say, “You will accept these applicants,” whom I am sure were already regulated in their own countries. Nevertheless, it seems to require regulators to accept them, not just to put a process in place.
My noble friend Lord Hunt asked why should a Minister be able to override what a statutory regulator—a supposedly autonomous regulator set up in law to protect the public and maintain standards—and establish a new route against its wishes? If the regulator is happy, everything is hunky-dory, and we do not need this power anyway. The Government have said that Clause 3 is a more proportionate method to implement mutual recognition agreements, but they have failed to tell us which trade deals being considered will have a mutual recognition agreement and why regulator-to-regulator side agreements are not satisfactory. The Minister’s letter—for those of your Lordships who did not open their emails at 5 pm yesterday, and incidentally I am impressed that the Minister was there to press send at that time—to the noble Baroness, Lady Randerson, says that if an MRA is agreed and approved by the trade agreement,
“it may need to be implemented in law”.
However, the Minister in that letter gave no example of why it would need to be implemented in law, or what type of MRA that is. Perhaps he can now spell out the circumstances in which an MRA would need to be implemented in law in the way envisaged in Clause 3.
I am anyway still bemused about why—given that the Government have said that, in their negotiations with other countries, it is for the autonomous regulator to determine who practises a profession—a Minister might need to instruct a regulator in law to set up a route for negotiations and recognition.
As the noble Baroness, Lady Noakes, and others said, and as the Delegated Powers Committee wrote, the Government have failed to satisfy us that Clause 3 is needed at all, and—as Amendment 56 tabled by the noble Lord, Lord Lansley, emphasises—have failed to explain why, should something along these lines even be needed, it should enable primary legislation to be implemented by statutory instrument. Clause 3 states that the Government—or any of the devolved Governments—can use regulations to implement any international recognition agreement, which means that they could use it, as others have said, to authorise Brazilian vets, Japanese bouncers or Australian teachers to work here without our regulators being the ones to decide that. It certainly seems to go beyond simply having a process in place, which is the point on which I wish to press the Minister. Earlier he said that it was all about making sure there is a process in place. If I have not understood correctly, I am looking forward to the Minister’s explanation of why this is needed.
My Lords, I thank my noble friend Lord Lansley for his amendment to Clause 13, which limits the regulation-making power of Clause 3, and I note that the noble Lord, Lord Hunt of Kings Heath, intends to oppose Clause 13 standing part of the Bill and that the noble Lords, Lord Fox, Lord Trees and Lord Hunt of Kings Heath, and my noble friend Lady Noakes intend to oppose that Clause 3 stand part of the Bill. I hope to provide noble Lords with the assurances they are seeking, but I have listened carefully to the points made during the debate and know that I may have an uphill task ahead of me on some of these matters. I will of course be reflecting on that after this debate.
Before I turn to my noble friend Lord Lansley’s amendments to Clause 13, it would be helpful to consider them in the context of Clause 3. I will therefore outline the rationale for Clause 3. Before I do that, I apologise to the noble Lord, Lord Patel, if letters to him have been misdirected—although he may be grateful not to have received them at 5 o’clock yesterday afternoon—and I will of course ensure that that does not happen again. In answer to the noble Lord, Lord Purvis of Tweed, I will of course research what previous Trade Secretaries have said on matters germane to the Bill.
Let me again outline the rationale for Clause 3. I think it is common ground that international agreements on professional qualifications can be beneficial in reducing non-tariff barriers to trade by supporting UK trade in services and helping professionals to provide services abroad. I still believe that Clause 3 is important to ensure that the UK can meet its international obligations by allowing national authorities to implement those parts of international agreements that relate to professional qualifications.
As I have described before, what is implemented under this power will be subject to the outcome of negotiations. It is the case that for many trade partners, we are likely to agree the standard model of recognition of professional qualifications: a mutual recognition agreement framework. Perhaps in answer to my noble friend Lady McIntosh’s fears about reciprocity, I think the clue is in the name: these are mutual recognition agreements. Under these frameworks, the parties to the deal encourage their regulators to negotiate and agree recognition arrangements, but—and this is the key point—with no obligation that they do. It is up to the regulators to decide whether to agree a recognition agreement and to propose its terms. This takes time. Sometimes, once a mutual recognition agreement is agreed and approved under the FTA’s governance processes, it can be annexed to the FTA itself, and then it may require implementation by the Government, often—this is the reality—years after the FTA was actually agreed. That is one of the answers to the noble Lord, Lord Purvis of Tweed, as to why sunset clauses do not really work in those circumstances.
With other select trade partners, the Government may look to agree more ambitious provisions for the recognition of professional qualifications. An example of this is the excellent deal recently agreed with the EEA EFTA states, Norway, Iceland and Liechtenstein, and I am happy to use it as an example, as requested the noble Lord, Lord Fox. This agreement includes a framework that ensures that there will be a route to recognition for UK professional qualifications in the EEA EFTA states and vice versa, but, as I have stressed previously, this is a route to recognition, it is not an obligation to recognise and it does not affect the ability of national authorities or regulators to set and maintain professional standards.
Without Clause 3 or bringing in primary legislation—I hope noble Lords will appreciate that it is not always satisfactory to bring in primary legislation: parliamentary time may not be available, et cetera—we risk limiting our ability to implement ambitious deals on professional qualifications such as the EEA EFTA agreement. I have to say that I have heard no noble Lord speak out against such agreements, or against that agreement in particular. We would also limit our ability to make future international agreements that concern only the recognition of professional qualifications. For example, in the December 2020 services mobility agreement, the UK committed to future negotiation with Switzerland on a comprehensive agreement on the recognition of professional qualifications, and we may well need Clause 3 to implement that agreement and, over time, others.
Before and during such negotiations, I can assure noble Lords that intense engagement would take place with regulators and other interested parties. Given that we always intend to do that, and in response to the real concerns expressed by my noble friends Lady McIntosh and Lady Fraser and the noble Lords, Lord Trees and Lord Davies of Brixton, I will consider whether I can give further assurances on this, because we will be consulting regulators. Again, it is one of these matters of trust, in respect of which I do not think I have yet quite been able to convince your Lordships.
I would say the same thing, perhaps, about my statement that regulator autonomy has always been a red line for us and always will be. This point is so important because it strikes at the heart not just of the trust of this House in the Bill but the trust of professionals and others in it. It concerns me that this has become a matter of trust for noble Lords. I will reflect on that and your Lordships’ seeming inability to take my words at face value.
In summary, international agreements on the recognition of professional qualifications can be part of FTAs, they can be agreed as frameworks in FTAs but then in detail for specific professions much later, or completely stand alone. Clause 3 is broad because we need it to account for those many permutations. It is that complexity of the landscape which has driven this Bill to being a framework piece of legislation. I hope that noble Lords agree, having listened to what I have said, on the importance of international agreements on professional qualifications and will in due course support this clause standing part of the Bill.
I now turn to my noble friend Lord Lansley’s amendment. This amendment to Clause 13 would limit the regulation-making power in Clause 3 so that regulations made under it could amend only secondary legislation. However, many professions in the UK are subject to existing legislative frameworks that include both primary and secondary legislation. I understand the points made by my noble friend and the distinction he has drawn between primary and secondary legislation. The challenge is that there is often no rhyme or reason, when you survey the landscape of 50 regulators and 160 professions, as to what is in primary and what is in secondary legislation. With all due respect to canine animals, it is a dog’s breakfast, so being able to bring these agreements into effect may require amendments to primary or secondary legislation.
We have set up the framework so that we can reflect the terms of international agreements on professional qualifications, or adaptation, so that they function correctly alongside any international obligations. There is no reason more or less than that as to why this is a framework Bill. The fact is that existing powers may not provide for the full implementation of international agreements on professional qualifications, especially where primary legislation needs to be amended. This is why Clause 3 is so important.
I am grateful to the noble Baroness, Lady Hayter, for letting the Committee know the three professions we have identified so far; I think there are many others, and we will carry on researching this to find out where regulators themselves—this is not coming from us—either do not have the powers or have indicated they do not believe their powers are sufficient for the job in hand.
As I have mentioned previously, the Trade Act 2021 provides for the implementation of provisions on the recognition of professional qualifications that are included in UK trade agreements with countries with which the EU had signed trade agreements as of 31 January 2020. However, the primary legislation can be amended under it only if it is retained EU law. Those powers may expire after five years—another weakness of the sunset clause.
Therefore, even where the UK has mutual recognition agreement frameworks in place with other countries, such as Canada, by virtue of their inclusion in rolled-over EU trade deals, we might not be able to implement MRAs under them beyond this limited period if primary legislation cannot be amended by Clause 3. Further, even within this five-year window, the power in Clause 3 will be necessary in circumstances where the primary legislation that needs to be amended is not retained EU law.
I suggest, with all humility, that to potentially introduce bespoke primary legislation for individual MRAs agreed under these FTAs would be disproportionate and burdensome. It could also undermine the ability of our regulators to reach such agreements in the first place, given the preciousness of parliamentary time, and, frankly, our negotiators could well lack credibility. The rationale for Clause 3 is that it provides a more proportionate means to implement such agreements.
Of course, we all recognise that all treaties agreed by the UK will be subject to the procedure set out in the CRaG Act. Furthermore, any amendments to primary legislation using regulations made under Clause 3 will be subject to the affirmative procedure, ensuring appropriate parliamentary scrutiny at that point. A number of the arrangements requiring Clause 3 might have been instigated by the regulators in the first place, and they should know what they are talking about.
I ask my noble friend Lord Lansley to withdraw his amendment to Clause 13, and I commend that Clause 3 stand part of the Bill.
My Lords, I have received requests to speak after the Minister from the noble Baroness, Lady Noakes, and the noble Lords, Lord Hunt of Kings Heath, Lord Purvis of Tweed and Lord Lansley.
I will raise just two topics. The first is trust; the Minister regretted that the Committee did not trust the Government on this. We have to remember that when very wide legislation is placed on the statute book, it can be used by a later Government to its full extent, whatever the current Government intend—in this instance, in relation to regulator autonomy. We have plenty of examples of that; the most glaring at the moment is the legislation being used to cover the hundreds of statutory instruments on coronavirus restrictions. Very clear statements were made to both Houses of Parliament when that legislation went through about the circumstances in which it would be used. That has been completely ignored to cover the biggest deprivation of civil liberties in peacetime, for circumstances that the legislation was never intended to be used. The Committee is entitled to be entirely sceptical about very broad expressions in statute.
My second point relates to letters. I received one letter, yesterday at 5 pm, so I have not seen many of the letters which have been referred to. It is extremely difficult, when letters come out at 5 pm on a Sunday and we start the next Committee day the following working day, to have any chance of tracking down whether any letters have been issued. As far as I understand it, the Library does not operate in real time and there is no real-time way to interrogate how things are laid there—even if these letters were laid in the Library, which I have no idea about.
The reason Ministers write letters in Committee is that they have failed adequately to deal with an issue at that stage. When the Minister handled the last group of amendments last Wednesday, he said that he would answer it very briefly, as it was getting late, and would write. Whomever he addresses the letter to, when he writes, he is writing to the whole Committee, and it is only right and proper—and this always used to be the case—that all other Members taking part in the Committee get a copy of it. It is additionally laid in the Library so that the rest of the House has access to it.
We have lost sight of how to conduct our business properly—partly because hybrid proceedings make it more difficult for us to run things down completely in Committee, but there are always cases where you cannot run things down in Committee and have to rely on subsequent correspondence. The way the Minister’s civil servants are operating this letter-writing procedure is depriving the Committee of its ability to operate effectively.
I thank my noble friend for those two comments and the spirit in which they are offered. I realise that my point about trust is not a personal matter in relation to me but the more general point my noble friend makes. On letters—I will not dwell on this too long—I think the short gap between the two stages of this Committee, and this Committee being on a Monday, was a particularly difficult practical point. The officials have literally been working day and night on this; that is why not all the letters were available until the end of Sunday. We copied all of them to Front-Bench spokesmen, but I take my noble friend’s point that in future, as well as putting them in the Library, it would be convenient for noble Lords if letters were copied to them—albeit sometimes, when there is such a restricted period between the two days of Committee, they may arrive later than any of us would wish.
My Lords, I am grateful to the Minister for his response. He said he would consider this between now and Report, which I am very grateful for. He then referred to Clause 4, making the point that it will be useful in encouraging regulators to make mutual recognition agreements, but that there will be no obligation and it will be up to the regulators to agree. However, we are debating Clause 3, and our problem is its open-ended nature, which on my reading means that Ministers can simply, through regulations, tell regulators what to do. I will not go into the issue of trust again, but does the Minister recognise that there is a problem with Clause 3? Is he prepared to look at its wording to make it clear that it cannot be used to override the protections he has already put into the Bill through Clause 1?
My Lords, I am grateful for the Minister’s reply to the noble Lord, Lord Hunt, which I will come to in a moment. He was extremely dismissive of legislative powers to implement international trade agreements having sunset clauses. He has just taken through the Trade Act, which has exactly those clauses in it. The power there is a five-year sunset, and a regulation can extend it to no more than a further five years. This is to protect exactly that kind of scrutiny of these changing agreements, so that Parliament, if there are changes in that period, has an opportunity to scrutinise them again. All I was asking for was some form of comparable treatment in this Bill, which he is taking through, to the one he has just taken through on the rollover agreements. I cannot for the life of me think why he championed them in the latter and now dismisses them in the former.
On the breadth of the Clause 3 powers, on my reading and having listened to the Minister’s speech, I would be grateful if he could indicate whether I am wrong that, while 50 regulators and 160 professions regulated by law are covered by Clause 1, the other 90 regulators of the 140 professions cited under the impact assessment—not the legal framework—could now be within the scope of powers of duties imposed on them by Clause 3. Without there being any restrictions in Clause 3 on the duties of or obligations on all regulated professions, statutory or otherwise—these could include new duties on current non-legislative regulators—and without there being protections regarding their independence in Clause 3, are they all now potentially within the scope of these powers?
I thank the noble Lord for that comment. My belief is that this Bill applies only to our famous 50 regulators and the 160 professions, and that it is those regulators that are governed by law, but I will write to the noble Lord and send a copy to all Members of the Committee to confirm this.
On the point about sunset clauses, the trade agreements covered in the Trade Act were all rollover agreements, many of which will be replaced in due course by other agreements. The noble Lord will know that some of that process has started already and that what we are talking about here is mutual recognition agreements rather than rollover agreements in their entirety.
My Lords, I am grateful to my noble friend the Minister for his response to my Amendment 56. If I understand it correctly, he attributes to the professions legislation considerable complexity; for example, the supplementary delegated powers memorandum that the department submitted referenced the Dentists Act—a mix of primary legislation and secondary legislation. If this House accepted that there are practical reasons for providing a power of this kind to enable the amendment of both primary and secondary legislation, will my noble friend say that the Government will not use it as a precedent in relation to future legislation or future arrangements for the approval of trade agreements and other international agreements? There is a principle here: in future, as these trade agreements come through, where they impact on primary legislation, they should be implemented through primary legislation. Does my noble friend accept that this will not be cited as a precedent?
My Lords, this has been a very good debate—the Minister has clearly listened and responded strongly. We have certainly listened to his response.
First, I take issue with the noble Baroness, Lady Hayter, who appears to have redefined the phrase “being bounced by the Government”. She was looking at me when she referred to door security, at which I take umbrage.
On the subject of letters—we already have more in the post—I point out that the timetable is the Government’s timetable. If it is short, it is clearly the Whips with whom the Minister needs to have a word rather than us suffering. I support the point made by the noble Baroness, Lady Noakes, about making this available to all of us.
The notion that we all want to see people able to work in different territories as a result of this is absolutely true. The Minister will know that I have spent a great deal of my time proposing amendments to various Bills in order to put back mobility frameworks that were being removed in another way, so my support is there. What we have heard in this debate is a compelling argument about Clause 3. The noble Lord, Lord Patel, was right that this is the key clause of the Bill.
The noble Lord, Lord Trees, asked the right question: why is there a need for Clause 3? The Minister attempted to answer that and, in doing so, used the example of the EFTA agreement. In that agreement, as he said, it is agreed to have a route to recognition. This confirms the suspicion of the noble Baroness, Lady Fraser, whom I congratulate on making the only case for supporting the Government that we have heard so far—although even that contained some pretty hard questions, which I hope the Minister will be able to answer, probably in another letter.
The point is that the powers in Clause 3 are constrained by the wording of the FTA. We do not know what the next FTA or the FTA after that will say, but the only constraint comes from the words in that FTA. The powers in the clause are in effect unlimited, as the noble Lord, Lord Hunt, pointed out. That is the concern. Before we talk about Amendment 56 and the like, we must establish the answer to the question asked by the noble Lord, Lord Trees: why do we need this clause. What is it that we need? Frankly, it is a nice-to-have power for this Government but, as the noble Baroness, Lady Noakes, pointed out, it could very well become a nasty-to-have power in future when other people may take it and use it in different ways.
The Minister is right to identify that there is more work to be done. He reflected that it is an uphill task. Well, there is often more than one way to get to the summit. Straight up, rather than taking a more considered and circuitous path, may be the best way to get the elements of Clause 3 that the Minister considers essential there. At the moment, the sledgehammer of this clause, as we have seen, will not be acceptable.
Clause 3 agreed.
Clause 4: Authorisation to enter into regulator recognition agreements
Amendment 29 not moved.
My Lords, we now come to the group consisting of Amendment 30. Anyone wishing to press this amendment to a Division must make that clear in debate.
30: Clause 4, page 3, line 25, at end insert—
“(1A) Regulations made under subsection (1) may not require a regulator of a regulated profession to enter into a regulator recognition agreement.”Member’s explanatory statement
This is a probing amendment in connection with the extent of the rule making power.
My Lords, Amendment 30 is a probing amendment on the abiding theme in our debates on this Bill, namely regulator autonomy.
Clause 4(1) says that regulations can be made
“for the purpose of, or in connection with, authorising a regulator … to enter into regulator recognition agreements.”
That seems pretty straightforward. Authorising a regulator to enter into a recognition agreement should not involve any element of compulsion, but I have learned to be wary of wide regulation-making powers.
My Amendment 30 seeks to make it clear that Clause 4 cannot be used to compel regulators to enter into recognition agreements. With this probing amendment, I am asking one simple question: are there any circumstances in which the power in Clause 4 could be used to force a regulator to enter into any recognition agreements?
Since tabling my amendment, I have seen the Government’s response of 3 June to the Delegated Powers and Regulatory Reform Committee, where they state that the power cannot
“be used to provide regulators with the ability to enter into regulator recognition agreements where they lack sufficient abilities”.
If my noble friend the Minister confirms today from the Dispatch Box that nothing in Clause 4 could compel a regulator to do anything it does not want to do, we will be able to dispense with my amendment fairly straightforwardly.
My Lords, I am very pleased to speak in support of this amendment in the name of the noble Baroness, Lady Noakes. This issue is the crux of the independence of regulators. The situation is that not all regulators are equal: they do not all have the same legal powers; they do not all have the same clout; they do not all have the same capacity. For example, in the years between 2007 and 2016, the Nursing and Midwifery Council issued 46,257 decisions on international regulation, whereas the General Chiropractic Council issued 29. We are obviously not talking about a group of organisations that are equal in terms of their ability to withstand not just the letter of the law, but the thrust of government policy. Pressure from the Government can be a very powerful thing for an organisation. We also have to take into account the fact that some of the countries with which these international trade agreements will be signed will have regulators that are only now properly developing. Not only are all our regulators not equal, but in other countries, not all regulators are equal.
I draw the Minister’s attention to a set of statements in the impact assessment. He has often emphasised the independence of regulators, so can he therefore explain the contrast between two of its paragraphs? Paragraph 111 of the impact assessment says:
“The Bill contains a power to enable regulators to negotiate and agree Recognition Arrangements (RAs) with their overseas counterparts. The Bill does not require the negotiation of RAs”.
In paragraph 118, however, it says:
“The Bill contains a power to make regulations to implement the recognition of professional qualifications (RPQ) components of international agreements. These regulations could include the ability to bind regulators to implement the RPQ chapters of IAs as appropriate.”
Paragraph 111 says that they cannot be bound, whereas Paragraph 118 says, just as the noble Baroness, Lady Noakes, suggested, that regulations might trespass on the independence of regulators. I simply ask the Minister for clarification.
In his letter to me this weekend which, in the spirit of proceedings here, I read just after midnight, the Minister said that MRAs
“would not place obligations on regulators and instead encourage them to develop MRAs.”
Which is it? Are regulators to be truly and, in a wholesale way, independent and not subject to pressure, either direct or indirect, or are they to have their wings clipped potentially by regulations?
This amendment clarifies beyond doubt what I believe, from the Minister’s previous statements, is his favoured interpretation: that regulators would always be independent.
My Lords, I crave the indulgence of the House; I hide behind the excuse of being a beginner. I put my name down to this amendment because it is one of those probing amendments about which you think, “Why not? What is the possible objection?” I really have no more to add to what the noble Baroness, Lady Noakes, said in moving the amendment. There is a certain amount of pleasure in this: I suspect that I will rarely agree with the noble Baroness, but on this occasion I do, so I am more than happy to reinforce the points she made.
My Lords, in the Minister’s letter to the noble Baroness, Lady Hayter, yesterday—which I hope has been circulated to all those who have been participating in the Committee, as the noble Baroness, Lady Noakes, indicated—the Minister cited the reason for moving away from what he termed the “prescriptive and unpopular” EU-derived system of mutual recognition across members. The next sentence says:
“But it did at least give all regulators [Inaudible] a means to establish international recognition routes with EU member states.”
The Government say that it was “prescriptive and unpopular”, so they want to do exactly the same. However, there is not the same kind of protections on the regulators at the moment for their operational independence if they decide not to enter into an agreement. There will be substantially good reasons why they may not want to, and they were outlined by the GMC on its response to the Government’s consultation on the CPTPP.
The GMC has indicated that the approach of the UK regulators in many areas has gone beyond simply looking at the areas listed by the Government in this Bill, which we debated at our first Committee sitting. The regulators on health and certain other areas look at the broad fitness to practise, the background education and the ability to verify the educational standards in country of that applicant. Unless they are satisfied with that broad range of all the other areas, they do not wish to have mutual recognition. However, this is where the problem arises: in the future, it might be desirable that we have mutual recognition in professions with applicants from a certain country, but not yet. It should be up to the regulator and there should be independence when making the decision that a country’s standards on the education and training route for that applicant were not sufficient to meet UK standards.
At the moment, there is insufficient protection in Clause 4, because, as the Minister keeps reminding us, it is purely enabling, and could be completely undermined by Clause 3. The powers in Clause 3 can, in effect, force the regulator to move. It is not simply the slightly benign word that the Minister used in his letter— to “encourage”. Perhaps I am alone in being slightly cynical, but whenever I hear the Government say that they want to encourage someone, then that someone should be worried. It is not simply about encouragement, however. Clause 3 allows for that regulator to move to start the process of a mutual recognition agreement.
There is another reason why I think this probing amendment is justified, and I hope that the Minister can offer the reassurance that the noble Baroness seeks. The Government do not seem to know what the problem is in regard to many of the regulators yet, but they want an answer to them all under this. This comes at a great cost, because this Bill, as the impact assessment indicated, may well cost up to £42 million. These costs are passed on to the applicants. The Alice in Wonderland nature of it is that the Bill’s stated purpose is to reduce the fees for those applicants. However, it is the regulators who want to avoid a situation where they are forced through an MRA agreement to have a fee system imposed on them by the Government. That is why the justification for the voluntary nature of it is very strong. If the Minister were able to say that he would consider adding to Clause 4, which offers the kind of reassurance in statute that would be required, we would be more amenable to be assuaged.
My Lords, I seek the Committee’s indulgence—I did not want to keep popping up in the last group—because there were some unanswered questions which I had posed. I am sure that more letters will come, but I asked the Minister to make it absolutely clear that Clause 3 was talking about more than just a regulator setting up a process and possibly accepting applicants. Perhaps he could write about that, because he went on to say that nobody objected to the new EFTA agreement, but that is only about a process. There is a big difference between asking a regulator to put a process in place and telling them what the outcome has to be.
Regarding this amendment, as the noble Lord, Lord Fox, said on the last group, mutual recognition agreements between willing partners are to be welcomed. They work and we like them. It is about professional movement and all the things that we are in favour of. Clearly, if they require a legal basis, then it is helpful for that basis to exist. However, I need some examples, even if no one else does, of what legal basis would be needed for a mutual recognition agreement. I quoted in the earlier group the letter to the noble Baroness, Lady Randerson, which said that an MRI may need to be implemented in law, yet we have had no examples of what type of issues would need to be so implemented; that is, going beyond what a regulator can do at the moment. Perhaps either now or in correspondence, we could have some examples of that.
Amendment 30 must be right, because surely it is not for a Minister to require in law—it goes much further than encouragement, as the noble Lord, Lord Purvis, said—for a regulator to enter negotiations with another overseas regulator against its will. We are not talking about when it wants to do it. We are telling it when it does not want to do it that it must. This needs some justification by the Minister.
My Lords, I thank my noble friend Lady Noakes for this amendment to Clause 4. It is worth reminding ourselves of the essential difference between Clause 3 and Clause 4. Clause 3 provides a power for the Government to implement international agreements, including the professional qualification elements of free trade agreements and bespoke agreements on professional qualifications. These are agreed between the UK Government and international trade partners. Clause 4 provides a power for national authorities to authorise regulators to enter regulator recognition agreements. These are often bilateral agreements between UK regulators and their counterparts in other countries on professional qualifications that make it easier for professionals to obtain recognition in their respective jurisdictions. I think the comments made by the noble Baroness, Lady Randerson, referred mainly to Clause 3, when she looked at the impact assessment, rather than Clause 4, which of course is the subject of this amendment. Also, it is always a pleasure to hear from the noble Lord, Lord Davies. I welcome his comments.
I agree with the sentiment behind my noble friend’s amendment. Regulators must continue to have the ability to act in the best interests of their professions and the consumers of professional services. Clause 4 as introduced—I say this categorically—cannot be used to compel regulators to enter into reciprocal recognition agreements. It can only authorise them to do so, not oblige or compel. No circumstances can change this. I hope that reassures the noble Lord, Lord Purvis of Tweed, and others. It is not the Government’s policy to force regulators to enter into regulator recognition agreements. The decision to enter such an agreement must sit squarely with the regulators themselves. They are best placed to determine which recognition agreements would be most beneficial and to decide the terms of any agreements which they may enter.
I am sure that your Lordships recognise the value of recognition agreements and the importance of their creation being demand-led, regulator-led processes. Therefore, while I agree with the sentiment behind the amendment tabled by my noble friend Lady Noakes, I believe that the clause as drafted meets the objectives of it. With this reassurance, I hope that my noble friend feels able to withdraw her amendment.
My Lords, I thank all noble Lords who have spoken on this amendment. I heard the noble Baroness, Lady Randerson, say that not all regulators were equal. That clearly is true, particularly in relation to overseas regulators. She highlighted that some were less well developed. There are some which simply come nowhere close to the standard which would induce a UK regulator to enter a mutual recognition agreement, and that is what we really need to protect. I also thank the noble Lord, Lord Davies of Brixton, for his support on this occasion. I hope that we may find lots of other opportunities in future to agree.
I think that my noble friend the Minister has given an unequivocal statement that this clause cannot be used to compel a regulator. That is what I was seeking to establish. I thank him for that and beg leave to withdraw my amendment.
Amendment 30 withdrawn.
We now come to the group beginning with Amendment 31. Anyone wishing to press this or anything else in this group to a Division must make that clear in the debate.
My Lords, Amendment 31 in a way continues what the noble Baroness, Lady Noakes, and others, have just touched on. It seeks to answer a concern raised particularly by the British Dental Association and mentioned by others.
The amendment, along with Amendment 32 in the name of the noble Baroness, is to strengthen Clause 4 to make it absolutely certain that where a domestic—UK—regulator is looking to recognise professional qualifications, experience or whatever, this would apply only to qualifications which had been approved by the regulator of that third country. This is important because in some countries not all educational institutions or award-giving bodies may be fully accredited by the national regulator, although they may look good on paper. There may be institutions giving out qualifications, but those qualifications are not recognised by the national regulator. It is vital that qualifications issued by an unaccredited institution abroad are not expected to be accepted here.
Amendments 31 and 32 would ensure that a qualification which had been approved by the appropriate regulator in the other country, rather than just having been awarded within its territory, is what would be considered by our regulators here. Without this amendment, a qualification from an awarding organisation outwith the remit of the parity regulator might be thought acceptable in the mutual recognition agreement. I beg to move.
My Lords, I am glad to have heard the noble Baroness, Lady Hayter, introduce her amendment. We both tabled our amendments in light of the British Dental Association’s comments, but we ended up drafting them rather differently. I thought that the noble Baroness, Lady Hayter, was drafting hers so that it would have to be approved by the UK regulator, rather than by the overseas regulator. I think that we are on the same page, and that my drafting is probably slightly more accurate, but let us not go there. It so confused those in the Public Bill Office that they tried to claim that there was a conflict between our amendments, and that we had to invoke something in the Standing Orders. I said that no, they were not in conflict, and could exist side by side perfectly well, but I now see that they are trying to address exactly the same issue.
The noble Baroness is right that a number of countries have a multitude of individual qualifications, some of which are good for the purposes of the regulated profession, and some which are not. There is a good example in this country: lots of bodies recognise accountants, but not all of them can be recognised as registered auditors; and there will be lots of examples beyond that. It is that point which we are trying to ensure is properly identified when dealing with Clause 4 and the position of the overseas regulation in relation to particular qualifications, and I hope that my noble friend the Minister will look on one or both of these amendments favourably.
My Lords, Amendment 32A, in my name and that of my noble friend Lady Garden, would require the appropriate national authority to consult with higher education institutions and other training providers before making regulations under this clause. I declare an interest as chancellor of Cardiff University.
I asked a Written Question, answered by the noble Lord, Lord Callanan, in which I asked Her Majesty’s Government
“why higher education institutions and other providers of training for professional qualifications are not listed as stakeholders affected in the impact assessment for the Professional Qualifications Bill; whether higher education institutions or others …were consulted on the proposals in that Bill, and … what plans they have to consult such providers in the future.”
The Answer stated:
“The proposals in the Bill do not affect the UK qualifications or experience required to practise a profession. The Government ran a Call for Evidence on the recognition of professional qualifications … between August 2020 and October 2020, which was open to anyone with an interest in professional qualifications”,
and that there were, among others,
“26 responses from educators who provide training and higher education institutions.”
The Answer continued:
“Officials have met representatives from Universities UK to discuss proposals in the Professional Qualifications Bill and will continue to pursue an active programme of stakeholder engagement.”
So, having told me in the Answer that this Bill has no impact on HEIs and other trainers, the Government went on to say that the HEIs and trainers identified themselves in the public consultation as being concerned by, or interested in, this Bill. Following that, the Government have been in discussion with Universities UK at least. Will the Minister clarify whether the Government have also spoken to other training providers, not just the representatives of universities?
I have had correspondence from Universities UK, which says that, although its contact with the Government has been fairly constructive so far, it would be helpful to require the Government to consult with higher education providers as they strike regulator recognition agreements, given the importance of these agreements to certain sections of higher education. The potential impact on onshore recruitment of EU students on relevant courses should be monitored. Clearly, that is of importance because if you are doing away with the EU-established system, there will be an impact on the number of EU students coming to this country, potentially some of them afresh as they will want to get their qualifications here, but also on the top-up courses that our HEIs provide. It also says that it would be helpful to have frequent consultation and analysis-sharing between the Government and higher education providers to help ensure that the Bill benefits the range of bilateral agreements that could increase recruitment to higher education, rather than have a detrimental effect.
It is not the case that this Bill does not affect HEIs. It affects the number of foreign students applying to the UK on top-up courses, and, crucially, what the HEIs and other training providers teach. Depending on what they teach, it affects who they employ and how many of them they employ, so this has a deep impact on them. I urge the Minister to consider this very reasonable amendment. The Government have recognised the legitimate role of higher education—I hope they have consulted other trainers as well—so what reason could they have for rejecting such a sensible and modest amendment?
My Lords, Amendment 55A is in my name. There are many excellent provisions in the Bill requiring regulators to share information. They are required to share information with regulators at home and abroad, and with people who wish to be qualified to practise in this country. However, there is nothing in the Bill which requires the sharing of information with people who are already practising the profession in this country. Indeed, there is nothing in the amendment spoken to by the noble Baroness, Lady Randerson, which touches on my point, although it would expand the requirement for information sharing.
It might be thought otiose to have such a requirement where a regulator is also a membership body, as it could be assumed that naturally it would communicate with its members, but a regulator is not always a membership body. I remind noble Lords that I said at Second Reading that I was an honorary fellow of the Royal Institute of British Architects, and I am grateful to RIBA for discussions about this topic. RIBA is a membership organisation representing its profession, but it does not regulate the architectural profession. As noble Lords will know from other parts of the Bill, that is a function reserved by statute to the Architects Registration Board. Experience is that stand-alone statutory regulators do what is required of them by statute, and very little else. That is why a nudge is needed, and this amendment would achieve that.
This clause would allow professional practitioners to know what agreements regulators were pursuing, what mutual recognition agreements were in the pipeline, what progress had been made and the timeline for the agreement. It would also provide a clear path for professional practitioners to have their views on how agreements should be prioritised made known to the regulator. Remarkably, without this amendment, there is no statutory obligation on a regulator to have any communication with regulated professionals at all.
Why does it matter? To take the example of architects, British architects are known to lead the world. They work on major projects throughout the world, and they often work with our world-beating civil engineers on transport, infrastructure and other major projects. They earn a great deal of export earnings for us as a country, too. When they are doing this, they need to be able to send architects to work in other parts of the world. On occasion, they also need to be able to employ in this country architects who are from countries where a pipeline of work might be developing and have specialist knowledge of regulations—be they on planning or whatever—that apply in the country where the project is being delivered. They are very commercial architects—they have to be, because they operate in a harsh commercial world—so they look ahead. They see a pipeline of activity in a particular country that might be coming forward with new projects—airports, infrastructure, or whatever it might be. They want to be able to have some influence on their regulator about how mutual recognition agreements might be prioritised to facilitate capturing that work.
I have used architects as an example, but there are other professions that might find themselves in a similar situation, which would want to have that two-way flow with their regulator and which, not being a membership organisation, would need, in my view, the help of statute to ensure that that communication took place. This is so modest and commonsensical a suggestion that I hope my noble friend will be able to rise and simply say that he accepts it.
My Lords, I speak particularly to Amendments 31 and 32, and I commend Amendment 32, tabled by the noble Baroness, Lady Noakes, to the House. I remind the Committee that the British Dental Association said:
“We would strongly advise that any body issuing qualifications which might be recognised in the UK must be a recognised body for the purpose of issuing professional qualifications by the regulator in a given country. This is crucial to avoid situations in which a UK regulator might be asked to enter into recognition agreements with another regulator in a country where not all educational institutions might be fully accredited by that regulator.”
Unfortunately, I was too late to add my name to Amendment 32. I strongly support it and hope that the Government will take it on board. I have wondered whether it would benefit from “relevant” being inserted before “overseas”, but that would come later on. We certainly need something of that nature in the Bill.
I also speak briefly to Amendment 32A because, as the noble Baroness, Lady Randerson, outlined, it is essential that there is a degree of stability in the higher education system and with training providers. In some subject areas, there is a need for simulation suites and quite complex teaching that requires long-term investment, and, as the noble Baroness said, staff may need to be taken on. You cannot just shed staff; you cannot ask staff to start teaching something they are unfamiliar with without due warning. I am concerned that there is a danger that the Bill could inadvertently destabilise some of our own systems.
My Lords, like the noble Lord, Lord Davies, I am also new to this House—in fact, I am even newer than the noble Lord. Like him, I support my noble friend Lady Noakes’ points on Amendment 32, but I actually wish to speak to Amendment 32A in the names of the noble Baronesses, Lady Randerson and Lady Garden.
I absolutely support wider consultation. I made that clear in discussions on the earlier groups where, despite being the only person to support the Government, I think I was the only one not to receive any letter from the Minister at five o’clock or any other time this weekend. I trust that that will be sorted out for the future.
As I say, I absolutely support wider consultation, but I am not sure that this is the right context for including it. Many regulators already regularly consult higher education institutions, training providers and professional bodies. In some cases, this includes programme approval and monitoring, and in others it is about promoting and discussing latest practice developments. Certainly in healthcare, each of the professions regulated has at least one professional body or association, and these organisations are often closer to the ground in understanding emerging issues or delivering post-registration training or CPD. I would prefer an emphasis on consultation with these professional bodies compared with listing higher education institutions at the top. As I have said, I accept that there is a role for regulators in consulting all appropriate bodies, but I am not sure why it should be specifically inserted only here.
I want to sound a note of caution regarding what actual use the information from any consultation would achieve in practice. To give a specific example, occupational therapists have highlighted to me an issue with American and Canadian students accessing our pre-registration master’s programmes, which I understand are rather lucrative for the universities involved. Our various services then offer practical placements to these students. Once completed, they return home, so there is no benefit to the local services that have supported these courses and students.
The Royal College of Speech and Language Therapists has also highlighted that much workforce modelling for this profession, particularly in England, tends to focus only on healthcare settings employed by the NHS, whereas many of the professionals in this sector are employed in non-health settings—such as education, justice and social care—or are employed by voluntary and community organisations or in independent practice. The risk of not taking into account these wider workplaces in any consultation is that there could potentially not be enough professionals to cover all the areas they work in, therefore exacerbating and not relieving the vacancy issues within the NHS.
Additionally, regulators will regularly review standards to ensure that they are keeping pace with the realities of services. For example, in my area of health and social care, Covid-19 has been an absolute catalyst for significant innovation, such as the rapid adoption of digital provision or the development of multidisciplinary teams and advanced practice roles. These are examples of the ever-changing landscape and of looking at what will be required into the future. Therefore, I remain wary of insisting that regulators, or anybody else, do something or publish information based on today’s consultations, which many are doing already. I cannot see that it will produce the desired practical results.
My Lords, I start by apologising to the Committee for the discourtesy of not being here last time for a later amendment. I spoke on the first two groups, and I completely failed to notice that I was down to speak on another one, so I went home. It was not until I got frantic texts and emails from my colleagues asking where the devil I was that I looked at the list again and realised, to my horror, that I was down. I am sorry; I have been in this House for 14 years and I really should know better. I apologise.
I have added my name to my noble friend Lady Randerson’s amendment, and she has explained coherently the reasons for it. The Bill seems to have ignored the very significant part played in professional qualifications by higher education training providers, awarding organisations and, indeed, many other bodies. I declare an interest in that for many years I worked for City & Guilds developing and promoting professional qualifications. Of course, many of the awarding organisations do much of their own regulation, sometimes through exchanges with other organisations to ensure that standards are being maintained. We all know that universities have a practice of having visiting academics to check their standards. Sometimes that is done with the support of expert committees; certainly, at City & Guilds we had tremendous expert committees to guide us and, of course, we were in constant dialogue with the recognised professional bodies.
Our universities tend to be their own hardest taskmasters because they are fully aware of their reputation if they are to attract students and to keep their place in whatever league table they deem appropriate. Universities, training providers and awarding organisations know that they stay in business because of the respect for, and quality and relevance of, their standards. I am as bemused as my noble friend about why these bodies do not appear to have been consulted in the drafting of the Bill given that so many of its clauses concern qualifications with no mention of who actually awards them. This amendment seeks to rectify the omission.
I look forward to the Minister’s reply and hope that he will see the sense of having something in the Bill that recognises the organisations which award the qualifications that we are all talking about.
My Lords, I thank the noble Baronesses, Lady Hayter of Kentish Town and Lady Randerson, and my noble friends Lady Noakes and Lord Moylan for these amendments. I shall begin by addressing Amendments 31 and 32.
The amendment tabled by my noble friend Lady Noakes would limit qualifications recognised in recognition agreements to qualifications approved by the overseas regulator, while the amendment proposed by the noble Baroness, Lady Hayter of Kentish Town, would limit the qualifications involved in recognition agreements to those approved by the UK regulator. On the face of it, these amendments seem reasonable. However, they would have no practical effect. Regulations under Clause 4 would authorise the regulator to enter into an agreement with an overseas regulator of a corresponding profession which carries out functions relating to regulating a profession. Logically, a regulator would enter into only an agreement which concerned those professionals whose qualifications and experience had been recognised by that overseas regulator. It is also true that the UK regulator would agree, as part of a recognition agreement, to recognise only those qualifications which meet UK standards. Given that, I humbly suggest that these amendments are unnecessary. They simply reflect what would happen in practice, and indeed what happens now, for regulators that can already enter into such agreements. I therefore ask the noble Baronesses to withdraw or not move their amendments.
The amendment in the name of the noble Baroness, Lady Randerson, would require the Government and the devolved Administrations to consult higher education institutions, training providers and other bodies before regulations are laid under Clause 4. I have already spoken about engagement, including in response to previous amendments tabled by the noble Baroness, so I will not rehearse those points again in full. However, I reassure her that my officials are working closely with the Department for Education to engage with a range of training providers.
The key point in relation to this amendment is that the regulator recognition agreements envisaged by Clause 4 will be regulator-led. The decisions will be for them; Clause 4 merely authorises them to enter into agreements. Of course, in considering and progressing recognition agreements, regulators will naturally want to engage with education providers and many others. I think, therefore, that the answer to the noble Baronesses, Lady Randerson and Lady Finlay of Llandaff, is that the Government do not need to get between the regulators and education providers in this matter. Indeed, if the Government did get between those two sides, they would risk being seen as seeking to limit regulators’ autonomy, to which I know we have all been paying so much attention.
Regulators will also want to work with national authorities, which themselves already work closely with a wide range of education and training providers, so I think that the amendment is unnecessary. Further, as my noble friend Lady Fraser of Craigmaddie has helpfully confirmed, this engagement already happens naturally, as one would expect it to. I hope that this reassures the noble Baroness, Lady Randerson, and I ask her not to move her amendment.
I thank my noble friend Lord Moylan for his support of Clause 4 at Second Reading and I appreciate his interest in regulator recognition agreements. His amendment seeks to require regulators to report annually on the status of recognition agreement negotiations, to publish criteria for the initiation of negotiations, and to establish a process to allow for consultation within their sector. I appreciate the intention behind my noble friend’s amendment and I too am keen to support the development of recognition arrangements wherever I can. However, I think that placing these legal obligations on regulators is unnecessary.
First, regulators are a varied group and not all of them may wish to enter into recognition agreements, so requiring them all to publish criteria for the initiation of negotiations and to establish a process to allow for consultation within their sector seems burdensome. Secondly, it is our experience that the regulators one might expect to be active in international discussions already provide updates on recognition agreements and consult routinely on opportunities with their professions and other interested parties. Legislation to enforce this seems unnecessary.
We have spoken at length about regulator autonomy. I hope I have been clear throughout that we must trust regulators to act in the interests of their profession and to determine which recognition agreements are beneficial. I therefore ask my noble friend not to move his amendment.
My Lords, my noble friend Lord Davies of Brixton merely agrees with the noble Baroness, Lady Noakes, but I am actually going to defer to her. It is clear that her amendment is superior to mine. I did not use the term “UK” in mine and I understand the implication of that. It was drafted slightly sloppily, and for that I apologise.
The Minister says that the amendment is not necessary because Clause 4(2) states that it is for regulators to regulate agreements between regulators, as well as dealing with the recognition of qualifications. In a sense, therefore, you have go in through one to get to the other. The issue raised in the amendment in the name of the noble Baroness, Lady Noakes, perhaps goes back more to Clause 3, which covered whether anything is ever going to be asked of a regulator, not just in a regulator-to-regulator agreement but when the Government ask it to do that as part of a trade deal, where we may still actually need it. I think that the implication—the real meat of it—is still needed. I know that her drafting is brilliant, but perhaps we need it in Clause 3. However, we can look at that.
I want to make one more comment arising out of the interesting issue raised by the noble Baroness, Lady Fraser. She mentioned that some of the overseas training is valuable; one might say almost that it is too valuable to some of our education establishments because it is keeping them going. But what comes out at the end does not stay with us and is not filling the skills gap. The noble Lord, Lord Trees, who is not here, has told me that it is much the same for vets. We are training an awful lot of overseas vets, and I think he said that something like 40% of them then leave because they get very high-quality training, but unfortunately do not stay to be vets here. I know that that is more about the earlier issue on skills, but it is one to bear in mind.
For the moment, and again with apologies for my rather poor drafting, I beg leave to withdraw the amendment.
Amendment 31 withdrawn.
Amendments 32 and 33 not moved.
We now come to the group consisting of the question of whether Clause 4 should stand part of the Bill. Anyone wishing to press this to a Division should make that clear in debate.
Debate on whether Clause 4 should stand part of the Bill.
My Lords, I am saying that Clause 4 should not stand part of the Bill. We have now discussed Clause 4 extensively in the last three debates. I do not intend to go over the ground because that would be unnecessary. Coming to the crunch, the Minister has said that Clause 4 would be used by national authorities to encourage regulators to make mutual recognition agreements, but that they will be under no obligation to do so. Today, the noble Lord, Lord Purvis, said that he was not quite sure what “encourage” means. In a sense, one Government’s encouragement may become another’s diktat, particularly when Clause 3 is part of their armoury.
Something else the noble Lord, Lord Purvis, said, on the first day in Committee, was about the interrelationship between the Bill and what is happening with health regulators. At the moment, there is an extensive consultation on the use of Section 60 orders in relation to a whole host of health regulators. What is interesting is that in that consultation no reference is made by the Government to them upholding the independence of those regulators—something the GMC noted, I think, in its response. Put that alongside the Government’s intention to bring an NHS Bill to Parliament very shortly—it was mentioned in the Queen’s Speech, but has not yet been published, I suspect because extra clauses are being added day after day. Part of that intention is to add clauses on regulations that will give the Government the power to abolish a regulator through an order-making power and set up new regulators through an order-making power. Regrettably, that came out of a Law Commission recommendation quite some years ago. When you put this together, you have to worry about the future independence of the health regulators. It is pretty clear that, with the legislative changes, they would potentially come under more direct control from the Department of Health. One has to say, many of those regulators enjoy considerable oversight by the department already—hence, a little scepticism about the Minister saying that it is entirely up to the regulators what they do.
My principal reason for raising Clause 4 was to refer to the Delegated Powers Committee, which refers to this being a Henry VIII clause. It refers to the memorandum and accepts that it says that it is a narrow power and cannot be used to change regulators’ abilities to recognise overseas qualifications, but, as the committee says, the memorandum fails to explain this or say what effect regulations under Clause 4 should have. I wanted to raise this because the report of the Delegated Powers Committee is critical throughout of the Minister’s department, the Explanatory Memorandum it has produced and its failure to provide sufficient explanation. I put it to the Minister that when I was a Minister, we worried about the Delegated Powers Committee and, frankly, always accepted its recommendations. We seem to be developing a new convention, where Minister think this is just any old committee and can be ignored. It cannot be; it has to be taken seriously. I urge the Minister to recognise that when the Delegated Powers Committee says that there is not enough explanation, something needs to be done about it. When it says that Clause 3 will not do, it is not something you can simply ignore; you have to come back with some proposals to deal with it. That is how legislation works in your Lordships’ House. I do not really expect the Minister now to go through what Clause 4 says, because he has done it; I just wanted to draw attention to the Delegated Powers Committee’s report.
I have two brief points. I would like to speak in support of Clause 4 standing part of the Bill, but I welcome my noble friend explaining, in response to earlier amendments, that this will be regulator-led and is permissive, not prescriptive.
First, I am slightly concerned by subsection (1), as explained in paragraph 39 of the Explanatory Notes, which then go on to say that it seems quite prescriptive. I do not know if that takes away from the permissive nature of the rest of the clause.
Secondly—and, to be honest with my noble friend and the Committee, I could not think of where else to raise this—I accept that they are not regulated bodies, but I understand that the professional drivers and attendants of pig farmers, chicken producers and livestock transporters are covered by the remit of the Bill. It is interesting to see, but I cannot understand why beef and lamb producers are not covered, because it strikes me that they might like the opportunity to make common ground with countries with which we are seeking to do deals. It may be that they are allowed to do so, but if they are, I wonder why they are excluded from the remit of the Bill.
Finally, I assume that the costs will be minor. I would like to place on record the fact that most of the bodies that have contacted me welcome the powers set out in Clause 4. I do not know whether paragraph 66 on page 18 of the impact assessment is relevant here. That refers to frameworks but I presume that also covers regulator recognition agreements. It comes up with a figure, giving a mean of £350,000 as a best estimate. On what basis has that figure been reached?
My Lords, we are indebted to the noble Lord, Lord Hunt, for opposing that this clause stand part. The way in which he set out the issues around delegated powers was excellent. I have nothing to add, but I would like to associate myself with what he said. His point about the severity of the sanction of a DPRRC report is very well made. I have tried to make in different ways. I think we will all be waiting to see how the Government react in legislative terms.
The term “encouragement” has come up and, clearly, Clause 4 is the encouraging end of a continuum that goes through “recommendation” and ends up in “compulsion”. Here, I come back to the question that my noble friend Lord Purvis asked when we were debating Amendment 30. The Minister confirmed that Clause 4 is voluntary, which we were all grateful for, but omitted to respond to my noble friend’s question about whether Clause 3 has the power to override Clause 4 and move that encouragement further down the continuum towards compulsion. Rather than ask it that way around, let us ask it the other way around. Are there any circumstances in which Clause 3 can be used? In other words, would the Minister rule out that Clause 3 can ever be used to compel regulators to do things as a result of Clause 4?
My Lords, the Government need to justify why this clause is in the Bill. What would happen if it were not? What would we lose? What is the worse that could happen if it were not in the Bill?
UK regulators are free to enter into negotiations with other national regulators at the moment, so why is this clause needed? Could the Minister just answer that, how it would be used and why we need to give Ministers this power? It does not use the words “encourage” or “encouragement”; it says that the Government can authorise a regulator to enter into negotiations, but it is hard to understand when that would ever be needed. Can the Minister answer the question: what would happen if this were not there and why, if a regulator did not do it of its own free will, the Government would need this power to authorise it to do it?
My Lords, I note that the noble Lord, Lord Hunt of Kings Heath, set out his intention to oppose Clause 4 standing part of the Bill. I hope that the arguments I have previously set out in favour of Clause 4 have gone some way to assuaging the noble Lord’s concerns.
First, I will directly answer the question just posed by the noble Baroness, Lady Hayter. The fact is that there are regulators that would like to enter into regulator recognition agreements that do not have, or are not sure whether they have, the powers to do so. My noble friend Lady McIntosh of Pickering referred to regulators that have contacted her welcoming this clause. If regulators want this power in this Bill, and all of us are agreed that it is helpful for them to have it, even if the numbers are small, why would we not want to give it to them? Why are noble Lords saying that it is okay for regulators that already have this power to enter into recognition agreements but, for some reason that I find inexplicable—with due respect—regulators that do not have this power or are not sure whether their power is appropriate should not be allowed to have it? That seems to go against the spirit of regulatory autonomy and recognising that regulators know what they are talking about, in this area.
Before I start, I say to the noble Lord, Lord Hunt of Kings Heath, that of course I have taken the comments made by the Delegated Powers and Regulatory Reform Committee seriously. I read its memorandum very carefully, and think that the supplementary memorandum that I submitted afterwards met some of its concerns. I will continue to reflect on its two responses to me, as we attempt to move this Bill forward.
In answer to what my noble friend Lady McIntosh said about the coverage of the Bill, it looks weird when noble Lords start quoting individual examples of regulators that are covered or not. It is simply because the class of regulators that are covered by the Bill is that class of regulators that are governed by law. Off the cuff, I could not answer why the regulators of people who deal with pigs can and the regulators of those who deal with another animal may not. One would have to go back to the original legislation to do that, but this Bill does not make a value judgment on these regulators; it merely uses the legal definition of which regulators are covered by law to be its class of regulators for the purpose of the Bill.
I take this opportunity to emphasise the importance of regulator recognition agreements for enabling professionals who have qualified in one jurisdiction to work in another. They are important for trade: they help sought-after UK professionals to provide services into overseas markets and help overseas-qualified professionals to have their qualifications recognised in the UK, where a regulator determines that they meet our rigorous standards.
In some territories, or for some professions, there can be barriers to UK professionals practising overseas. Reciprocal agreements put in place by regulators can reduce these barriers. I come back to the point made by the noble Baroness, Lady Hayter: why would we not want regulators to do this, if that is what they want to do? For example, regulator recognition agreements can set out streamlined processes for two regulators to recognise each other’s professionals on the basis of similar standards. They can also include provisions that set out how applications for recognition will be treated; for example, through agreement on standard application or evidence requirements.
As we heard from the noble Lord, Lord Trees, at Second Reading, with reference to the Royal College of Veterinary Surgeons, some regulators already have these powers; they enter into recognition agreements and seize these opportunities. The RCVS, for example, has made use of this ability to enter into, among other agreements, an MoU with the Veterinary Council of Ireland to facilitate recognition of each other’s accredited veterinary degrees. This demonstrates how recognition agreements are demand-led processes, and it is for regulators themselves to decide whether or not to enter into one. The Government are not nudging them in one direction or another; we are giving them an enabling power to enter into such agreements if they wish to.
As I have said, we should trust regulators to decide which recognition agreements are beneficial. This is a quite separate category of agreements from those that we addressed previously in Clause 3. I hope that noble Lords who have an antipathy to Clause 3 do not allow its proximity to spread that antipathy to Clause 4, as well, because they serve two quite different purposes.
Where regulators already have this power, no further action needs to be taken. Just to repeat myself, we know that, for some regulators, entering into regulator recognition agreements is a new process as the UK moves away from the EU-derived system for the recognition of professional qualifications. They did not have to think about that under the previous EU system; it was there. Now, they have to do this and take individual decisions. This has brought to the surface how some of them do not have the necessary powers.
To enable them to take full advantage of international opportunities, we need to provide them with this ability. Regulators in this position, as the noble Baroness, Lady Hayter, knows—and again I fall into the mistake of giving specific examples—include the Architects Registration Board and the Intellectual Property Regulation Board. There is no rhyme nor reason for why those boards do not have those powers at the moment. Their underlying legislation just happens not to give them these powers.
Noble Lords may reasonably ask why the Bill does not provide only these named regulators this ability. Frankly, it is because we are not entirely sure which they are, because some of the powers are obscure and, as we know, we are dealing with a long list of professions and regulators. We do not see it as a harmful power, so it seems perfectly right to allow the decision on whether to do this to rest with the regulators.
As this is a demand-led process that is new for many regulators, the Government believe that it is prudent not to limit this power to those regulators that have already identified a gap in their powers. This approach supports the UK Government and devolved Administrations in authorising regulators to pursue regulator recognition agreements as they need them. The circumstance where this power might most often be used is following the direct request of a regulator.
I also reassure noble Lords that this is about empowering regulators. It ensures regulators’ autonomy in the exercise of their decision-making power to enter recognition agreements. It does not interfere with the ability to set professional standards and decide who should be recognised to practise; that responsibility lies with the national authority or the regulator. The authorisation that this power provides is limited and intended to complement regulators’ existing powers. It cannot be used to change a regulator’s ability to recognise overseas qualifications or to reduce the standards of professionals practising in the UK. Regulators must implement recognition agreements through their existing powers to recognise and assess overseas qualifications, so nothing about that—the actual assessing of the qualifications or the individuals—is changed by this power.
It is only right that we support our regulators in making agreements to provide opportunities for professionals to use their qualifications overseas and for those qualified overseas to practise in the UK, where they meet our high standards. This clause will do just that. I can see no harmful implications from it at all, and I commend this clause to stand part of the Bill.
The Minister has to understand that we are wholly supportive of regulator-to-regulator agreements; it is the best way, it is good for our professionals, very good for the City and for all sorts of things. The problem here is that the Minister does not even know how many regulators might need this. In his letter to me he named three: the Security Industry Authority, which I very much doubt wants an international agreement on this; a teaching register; and the Health and Safety Executive, which again is very unlikely to want this. He has now thrown into the mix the Intellectual Property Regulation Board, so we are possibly talking about having a whole Bill for four regulators. We would understand it if the Bill, in the case of statutory regulators which do not at the moment have the power to enter into a regulator recognition agreement, said that the Minister could by regulation make that happen. The problem is that it goes much further than that. We might have only three or four regulators but we have a whole clause which sounds more than the Minister suggests. Perhaps he could agree to a preamble to this clause that would spell out, where the regulator does not under its own statute have the necessary authority, that the Minister could do it. Is he willing to look at that?
I assure the Minister that I have managed to work out that if two things are standing next to each other I can feel differently about one from the other. Everything that I have said has recognised the benign nature of Clause 4, but what I asked and did not hear an explicit answer to was whether that benign nature could be modified by the very close Clause 3—and never mind how close it is; it could be anywhere in the Bill. The Minister did not answer that question, and because of that I assume that I and my noble friend Lord Purvis, the noble Baroness, Lady Noakes, the noble Lord, Lord Hunt, and others, are correct that Clause 3 can modify Clause 4, and benign, beneficial and voluntary elements of Clause 4 can be made compulsory by Clause 3. Unless the Minister is prepared to say that that is not and can never be the case, I am afraid I will leave this Chamber clear that what I have just said is correct.
The noble Lord’s colleague the noble Lord, Lord Purvis, cautioned me on the previous day of Committee never to use “never” at the Dispatch Box, and I am trying to remember his strictures on that. The reason I did not answer the question directly is that I am not going to do so unless I am completely sure of my facts on this. I do not believe that it is possible for Clause 3 to creep its way into Clause 4 but, so that I can give the noble Lord, Lord Fox, a completely definitive answer, I will write to him, and I will copy that letter to all other noble Lords. Indeed, I will hand deliver it to noble Lords who wish to get it particularly expeditiously.
I suspect that we should be wary of what we wish for, and that the Minister is now going to take his revenge in the number of letters that we will receive over what I hope will be a very pleasant weekend. I do not think we can take this any further because he has said that he will respond to the noble Lord, Lord Fox, whose question, alongside that of the noble Baroness, Lady Hayter, seems to me the core of the argument. The only other question is about pig farmers as opposed to beef farmers; the Minister said that at some point pig farmers were covered by the legislation but beef farmers were not. I suggest to the noble Baroness that we leave as an eternal mystery why that should be.
Clause 4 agreed.
We now come to the group consisting of Amendment 34. Anyone wishing to press this amendment to a Division must make that clear in debate.
34: After Clause 4, insert the following new Clause—
“Recognition of foreign auditors and foreign audit qualifications
(1) Section 1221 of the Companies Act 2006 (approval of overseas qualifications) is amended as follows.(2) In subsection (1A)(a), for “covers all” substitute “sufficiently covers”.(3) In subsection (91A)(b), for “covers all” substitute “sufficiently covers”.(4) In subsection (1B), for “is” substitute “may be”.(5) In subsection (3), for “equivalent” substitute “sufficiently comparable”.(6) In subsection (5), after “qualifications” insert “or experience”.(7) In subsection (7A)(a)(ii), after “not” insert “sufficiently”.”Member’s explanatory statement
This new Clause amends the Companies Act 2006 such that the Financial Reporting Council, the statutory regulator for audit, would gain greater discretion over which foreign auditors and foreign audit qualifications could be accepted in the UK.
Amendment 34 is in the name of my noble friend Lady Hayter, and I thank the noble Lord, Lord Palmer of Childs Hill, for signing it. The amendment would make changes to the Companies Act 2006 to allow the Financial Reporting Council—the current statutory regulator for audit—greater control and discretion over the acceptance of foreign auditors and foreign audit qualifications in the UK. The Institute of Chartered Accountants in England and Wales has said that these changes would fix a historic problem, as comparing and recognising qualifications between countries has been very difficult for the FRC. This is due to Section 1221 of the Companies Act 2006, which is highly prescriptive in terms of the degree of identity required between the UK standard and the foreign one. The ICAEW states that, in the last 30 years, the UK has recognised only two non-EU qualifications for audit and, post mergers in those countries, neither is the current version any more. Does the Minister think that this needs to change? Can she explain, without the amendment, exactly what changes the Government will propose?
Can the Minister also update the House on audit reform? In March the Government recommitted to a new authority and stated that
“legislation is needed in many areas to complete the task of remodelling the regulator and to establish the FRC’s successor body, the Audit, Reporting and Governance Authority (ARGA).”
However, this legislation was not mentioned in the Queen’s Speech and we are wondering why. When will it be brought forward? Will the changes suggested in Amendment 34 form part of the new Bill? I beg to move.
My Lords, I support the thrust of Amendment 34 and it is good to see the Benches opposite getting involved in the exciting world of chartered accountancy and auditing. I remind the House that I am a member and former president of the ICAEW.
The wording of Section 1221 of the Companies Act 2006 is rather black and white. I understand that the Act is still the longest Bill that your Lordships’ House has ever considered, and I bear the scars of weeks and weeks in Grand Committee considering hundreds, if not thousands, of amendments. Despite all that effort, from memory I think that we did not focus on the wording of Section 1221, which is clearly a major failure of your Lordships’ legislative scrutiny.
I turn to the amendment. Section 1221 gives little scope for judgment where an overseas qualification is largely the same as a UK one for audit purposes but is not exactly the same. We heard that that has led to relatively few uses of that power. That contrasts with this Bill, where the formulation in relation to overseas qualification is “substantially the same”. I know that the noble Baroness, Lady Garden of Frognal, who is not in her place, queried the use of “substantially” on our first Committee day, but it seems to me that it gives an important element of flexibility to the Bill. Something like that would probably give an element of flexibility in the context of Section 1221 of the Companies Act 2006; indeed, I wonder whether a better formulation for that would be to use “substantially”—that is, to mirror the kind of wording that is used in respect of recognition of overseas qualifications in this Bill. The noble Baroness may like to consider that if she chooses to bring forward this amendment again on Report.