11: Clause 13, page 10, line 20, after “modify” insert “subordinate or EU retained”
My Lords, there are three amendments in this group, characterised by the fact that they appear more or less in the same place in the Marshalled List. My Amendment 11, which leads the group, relates to the very specific point, to which we have referred on a number of occasions: whether secondary legislation, and regulations under the Act, should be able themselves to modify primary legislation. The amendment’s intention is of course to restrict that possibility and limit it to subordinate legislation and retained EU legislation. Of course, there is a separate power in relation to the very specific EU retained legislation relating to the recognition of overseas professional qualifications.
I will not make a long argument about this, because the time is late. Ministers will say that there is a lot of private legislation out there relating to these professions, but as it happens, we are amending the primary legislation relating to architects in the Bill. I am not sure to what extent, given all we know and have discovered about the processes of seeking to recognise professional qualifications from overseas, just how often they will need to amend primary legislation and whether it really is impossible to achieve it through a route that exposes the changes to primary legislation to the proper scrutiny of this House.
Because it is linked to this, I reiterate a point I made in Committee. Ministers will acquire a power under the Bill to implement international regulatory recognition agreements and these aspects of international trade agreements by secondary legislation. I hope that the Minister—I know it is his stated intention—would expect new significant trade agreements, wherever they impacted on our legislation, to be the subject of legislation brought forward for this purpose. I do not want us to find that the legislation we see in future relating to trade agreements leaves out the recognition of professional qualifications because it can be achieved through subordinate legislation and we are therefore not able to examine it in the same way as we can other issues relating to a trade agreement, through primary legislation.
I will not talk about the protection of regulator autonomy; that is very much for the noble Baroness, Lady Hayter, who raised these issues in detail in Committee, as did my noble friend Lady Noakes. I am rather grateful to my noble friend Lord Grimstone—as we are in many other respects—for bringing forward government Amendment 12, which would put a pretty cast-iron clause into the Bill to give the regulators the confidence about their future autonomy that they seek.
My Lords, like the noble Lord, Lord Lansley, I welcome Amendment 12, which the Minister will speak to shortly. As has been said, right from the start we worried about the independence of regulators and indeed, as I suggested earlier today, the Law Society still retains a slight frisson of concern there, although I note the Minister’s words. Regulators have been worried about their independent ability to decide who was fit to practise in this country and that that might be undermined by a government diktat to co-operate with another country to accept their professionals or to drop standards in order to meet a government trade objective. As the Minister mentioned earlier, given that I am now looking at trade deals, I think he realises that I will be able to keep a beady eye on that as we go forward, along with the noble Lord, Lord Lansley, who will be looking at that as well.
As I mentioned before, it was also of concern to the users of regulated services in case their trust in professionals, which stems from a regulator keeping to standards and high quality of enforcement, might be in any way in jeopardy. However, the Government have recognised these concerns and have come forward with the very welcome Amendment 12; it must be good because there is even a Lib Dem name attached to it, so we know that this government amendment is well received. Needless to say, of course I still prefer the wording of Amendment 15, which was short and to the point, but I am content not to press it in favour of the Government’s own amendment.
On the subject of Amendment 11, I have full sympathy with the point made by the noble Lord, Lord Lansley. If my noble friend Lord Purvis were to speak, he would remind the Committee that at the outset we were promised primary legislation for trade deals, and I am gratified that at least two noble Lords will be keeping an eye on the overall process.
In Committee, back in July, the very first amendment that we discussed, in my name and that of my noble friend Lord Purvis, was very similar to Amendment 15. Its purpose from the outset was to protect the autonomy of the regulators. In that respect we are both delighted that the Minister has listened and, through the process of discussion, has come up with Amendment 12. It does a lot of the heavy lifting in dealing with what I referred to earlier as the Trojan horse of suspicion.
In protecting regulatory authorities from Clauses 1, 3 and 4, the amendment very much creates a situation where they are allowed to go about their business in the way that we want. It is for that reason that I took the unusual step—at least, unusual for me—of countersigning the Government’s amendment, which clearly indicates our support from these Benches for what we see as a welcome and important addition to the Bill.
My Lords, throughout our consideration of the Bill I have been critical of my noble friend the Minister and the Government for riding roughshod over regulatory autonomy, so I very much welcome Amendment 12 in his name and that of the noble Lord, Lord Fox.
I have a residual concern. While this protects the autonomy of regulators over whom they may admit to practise in their profession, there may still be a concern that significant costs will be loaded on to regulators from having to comply with the obligation to consider individuals or institutions overseas, because that is what has been negotiated as part of a trade treaty, which would result in a considerable cost for the predictable outcome of not approving those individuals or institutions, and those costs would inevitably be borne by UK professionals because there is nowhere else for costs to go. To some extent, therefore, I was unhappy with the formulation of Amendment 12. However, taking it in combination with the amendment that we have already considered relating to consultation with regulators, I have to hope that the Government would never proceed with regulations that imposed unreasonable burdens on UK-regulated professionals in the pursuit of something that would not be achievable, in terms of the recognition of individuals within an overseas profession. I think that taken together those amendments are okay, but I have a residual concern that burdens might end up on professionals.
My Lords, from the outset of the consideration of the Bill, the Opposition have been clear that this legislation must not undermine regulators’ independence and that the Government cannot force them to accept professional qualifications. The public rightly expect that high standards of health, public safety and consumer protection will be maintained through the process of recognising overseas qualifications. This was repeated to us time and again in the meetings that my noble friends had with regulators and organisations across different sectors and professions.
My noble friend Lady Hayter of Kentish Town spoke in Committee about
“the Bill’s potential to undermine the independent standard-setting and public interest duties of what we have seen as autonomous regulators.”—[Official Report, 22/6/21; col. 201.]
A Bill compelling regulators either to enter negotiations with an overseas regulator or to put in place a process for recognising the qualification of applicants trained abroad, in order to fulfil a promise made by the Government in a trade deal or to fix a skills shortage as defined by the Minister, would not be compatible with the regulators’ independence. That concern was shared widely across the House during debates.
From looking through Hansard, I think it was the noble Baroness, Lady Noakes, who said that regulator autonomy needs to be in the Bill to recognise its importance. It was clear to many noble Lords that this could impact on our current domestic standards, with regulators perhaps being forced to accept lower levels of training requirements or changes to fit in with practice in the UK.
Amendment 15 in the name of my noble friend Lady Hayter reflects what the Minister promised on this issue from the Dispatch Box. It is the same amendment that was tabled in Committee. We have simply brought the commitments together to demonstrate the Government’s position.
We are very pleased with the amendment that the Government have brought forward. As other noble Lords have said, it is not perfect but it goes a long way to alleviating our concerns and those of other noble Lords. It prevents the appropriate national authority making regulations under Clauses 1, 3 or 4 unless regulatory autonomy is protected. It is a welcome development to ensure that our domestic standards across the now 205 regulated professions in the scope of the legislation are protected. You can see a clear crossover between Amendment 12 from the Government and Amendment 15, which my noble friend tabled.
I believe the Minister’s intention on this, and I am very pleased. We also had a welcome meeting a few weeks ago. He has understood the mood of the House and the concerns raised by noble Lords across all sides of the House, and has come back with an amendment that I think we can all get behind. My noble friend Lady Hayter will not test the opinion of the House on Amendment 15.
My Lords, I will speak first to the amendment in my name on regulator autonomy and then respond to my noble friend Lord Lansley’s amendment and that of the noble Baroness, Lady Hayter of Kentish Town.
As your Lordships know, I am a great advocate of the autonomy of our regulators. I have no doubt that regulators are best placed to determine who is fit to practise in their professions. The consequence is that to interfere with this could undermine public confidence in those who provide important services.
The Bill absolutely will not undercut regulators’ ability to make determinations about individuals with qualifications, experience or skills from overseas. I have previously given this assurance to your Lordships. However, picking up the point from the noble Lord, Lord Kennedy, I began to realise that the mood of the House was not to rely on assurances in this area. No matter how eloquently I argued the case for assurances, it would not cut the mustard. I absolutely recognise the continued strength of feeling on this issue. That is why I am proposing to make the protection of regulator autonomy clear in the Bill, and to do so specifically for Clauses 1, 3 and 4.
Protecting the autonomy of regulators is particularly relevant to these clauses, because this is where regulations made under the Bill will most directly intersect with regulators’ existing powers. This could be through empowering regulators to assess individuals with overseas qualifications, enabling them to enter into recognition agreements or placing substantive obligations on them.
These clauses also attracted particular interest from the DPRRC, and your Lordships rightly asked for more assurances. The amendment in my name places two conditions on regulations made under Clauses 1, 3 and 4. The first condition is that the regulations cannot remove regulators’ ability to prevent unfit individuals practising a profession. The second is that the regulations cannot have a material adverse effect on the knowledge, skills or experience of individuals practising a regulated profession. To put it simply, regulations cannot lower the required standards for an individual to practise a profession in the UK or, importantly, part of the UK. Taken together, these two conditions will make sure, enshrined in statute, that regulators will retain the final say over who practises in their profession and that the standards of individuals practising professions are maintained.
I also reassure your Lordships that this does not ask regulators to change expectations where they differ between different parts of the UK with good reason. In the case of devolved regulators, such as the General Teaching Council for Scotland, this would mean the requirements of a regulator for part of the UK.
As I said, in framing this amendment I have drawn inspiration from contributions made in this House and from discussions with regulators. Indeed, I am particularly pleased that it has been recognised by the noble Lord, Lord Fox, who has chosen to put his name to this amendment. I hope that this will be the first of many amendments that I bring forward at the Dispatch Box that the noble Lord, Lord Fox, will feels able to do that to going forward.
I turn now to Amendment 11. Of course, I recognise that my noble friend wants safeguards around how powers that could modify primary legislation are used. That is entirely reasonable. But I hope that my explanation of the regulator autonomy amendment in my name provides reassurance that the Government have listened to both noble Lords’ and the DPRRC’s concerns that regulations made under the Bill will be an appropriate use of the powers in Clauses 1, 3 and 4.
In particular, I know that some noble Lords have questioned how regulator autonomy will be safeguarded in trade deals. First, I repeat what I have said previously: in all negotiations, a key concern for the Government is ensuring the autonomy of UK regulators and protecting UK standards. Now, of course, the regulator autonomy amendment in my name ensures, in statute, that this concern is reflected in any regulations made under Clause 3.
I come to the point that my noble friend Lord Lansley made in asking for an assurance that primary legislation will be used to implement any consequences of free trade agreements that affect professional qualifications. I am not able to give that assurance because, by this Bill making it statutory that we cannot undercut the autonomy of UK regulators and diminish UK standards, it is appropriate that secondary legislation will be used to implement those aspects of future trade deals.
This new clause that I am putting forward means that Clause 3 cannot be used, for example, to require the automatic recognition of overseas qualifications—it would not be possible to do that. Before regulations are made, the Government will engage extensively with regulators on trade negotiations. Earlier today, I spoke about how I have formalised that in the new regulated professions advisory forum, which provides regulators with a mechanism to inform UK objectives for trade negotiations and the implementation of commitments that we make in them. If I have learned anything from the Bill, it is that regulators will not shy away from telling the Government when they have concerns about their autonomy.
Should any of your Lordships remain in doubt about whether powers in the Bill should be used to modify primary legislation, I remind the House that the relevant sector-specific legislation can be primary or subordinate legislation. Why we have these differences is lost in the mystery of time, but there is no consistency at all between professions in this matter. For example, the qualification and experience requirements to be a doctor or vet are set out in primary legislation. By contrast, the requirements for pharmacists or social workers are set out in subordinate legislation. That is why regulations made under the Bill may need to amend both primary and subordinate legislation in order to work for all regulated professions.
To give a further example, Clause 4 ensures that regulators can be authorised to enter into regulator recognition agreements with overseas counterparts. Many regulators already have this power; however, not all do. The Architects Registration Board and the General Dental Council are examples of regulators which do not have this power and may therefore benefit from Clause 4. But their powers are set out in primary legislation, so my noble friend’s amendment would prevent them being authorised to enter these agreements under Clause 4 if necessary. To give a further assurance, of course the Government envisage that regulations made under Clause 4 would be made at the request of the regulator. It would seem unfair to prevent them entering into recognition agreements simply because their powers are set out in one type of legislation rather than another. There frankly is no rationale or sensible reason for this difference. I hope that I have provided the House with the necessary reassurance that we have taken seriously the concerns about the use of delegated powers. For this reason, I ask for the amendment to be withdrawn.
I thank the noble Lord, Lord Kennedy, for speaking to Amendment 15, and the noble Baroness, Lady Hayter, for her contribution. My amendment addresses the same core concerns as Amendment 15. Both amendments —I understand that the noble Baroness’s amendment was very well intentioned—ensure that the Bill does not require regulators to allow those whom they determine to be unfit to practise and that the Bill cannot lower professional standards. Amendment 15, however, would further specify the protection of regulators’ autonomy regarding flexibility in assessment practice. The ability of regulators to make assessments as is most appropriate is already accommodated in the amendment in my name to Clause 1.
Finally, Amendment 15 also seeks to prevent anything in the Bill affecting a regulator’s ability to determine to make a regulator recognition agreement. This point is unnecessary. FTAs—such as the UK’s current deal with Canada—often contain frameworks for agreeing regulator recognition agreements. However, there is no obligation on regulators to enter into these agreements in any deal the UK has entered into. I am concerned that specifying this in legislation could unhelpfully suggest that the Government are unsupportive of such agreements. The Government are keen to support regulators agreeing them, where they wish to do so. In view of my own amendment, I formally ask the noble Baroness not to press her own.
My Lords, I thought that my noble friend gave an extremely helpful response to the debate and explanation of the relationship between the Government’s new clause in government Amendment 12 and Clauses 1, 3 and 4. Regulators in particular looking at this debate will, I hope, look at subsections (2) and (3) of the Government’s proposed new clause and share their view with us. If that holds, it provides a central piece of protection for regulators in future, in relation to all the substantive powers made available through the Bill. I am grateful for what the Minister has brought forward, and what he has said this evening. I beg leave to withdraw Amendment 11.
Amendment 11 withdrawn.
Amendments 12 and 13
12: After Clause 13, insert the following new Clause—
“Regulations: protection of regulator autonomy
(1) The appropriate national authority may make regulations under section 1, 3 or 4 only if satisfied that the conditions in subsections (2) and (3) are met. (2) The condition in this subsection is that the regulations do not remove the ability of any regulator of a regulated profession to prevent individuals who are unfit to practise the profession from doing so.(3) The condition in this subsection is that the regulations will not have a material adverse effect on any regulated profession in terms of the knowledge, skills or experience of the individuals practising it.(4) The reference in subsection (2) to individuals who are unfit to practise the profession is a reference to individuals who are unfit to practise the profession by reason of their character, a lack of knowledge, skills or experience or otherwise.(5) A reference in this section to practising a profession includes a reference to undertaking activities that comprise the practise of the profession or using a title associated with the practise of the profession.”Member’s explanatory statement
This amendment prevents the appropriate national authority making regulations under section 1, 3 or 4 unless satisfied that the conditions in subsections (2) and (3) of the new Clause are met.
13: After Clause 13, insert the following new Clause—
“Regulations: consultation with regulators
Before making regulations under section 1, 3 or 4, the appropriate national authority must consult a regulator of a regulated profession if the authority considers that—(a) the regulator is likely to be affected by the regulations, or(b) it is otherwise appropriate to consult the regulator.”Member’s explanatory statement
This amendment requires the appropriate national authority to consult a regulator of a regulated profession before making regulations under Clause 1, 3 or 4 if the authority considers that the regulator is likely to be affected by the regulations or it is otherwise appropriate to consult the regulator.
Amendments 12 and 13 agreed.
Clause 14: Authority by whom regulations may be made
Amendment 14 not moved.
Clause 15: Parliamentary procedure for making regulations
Amendment 15 not moved.
16: After Clause 15, insert the following new Clause—
“Protection for existing recognised qualifications
Nothing in this Act prevents, qualifies or otherwise affects the ability of those with existing recognised qualifications to continue practising the profession to which the qualifications relate in the United Kingdom or any part of the United Kingdom.”
My Lords, as I said in Committee, there is a clear need to give those who already have their professional qualifications recognised in the UK certainty and confidence that this legislation will not affect them negatively, especially because, in many cases, the professionals and people working in these areas already live in our communities, have decided to call the UK their home and are people on whom all of us so often rely, particularly for our vital public services. Amendment 16 seeks only to enshrine the Government’s own central promise from the Explanatory Notes that
“nothing in the Bill prevents, qualifies or otherwise impacts the ability of those with existing recognised qualifications from continuing their areas of practice in the UK”.
The Minister said in Committee says that he completely agrees with
“ensuring that professionals who have already had their qualifications recognised in the UK should be able to continue to rely on those recognition decisions.”
Then why not put it in the Bill? Without this simple amendment, how can the Minister provide the reassurance that these workers so desperately need? He also stated in Committee:
“The regulations which commence Clause 5(1) will include saving and transitional provisions”
“ensure that professionals whose qualifications were recognised from the end of the transition period to the point when the 2015 regulations are revoked are unaffected”,
“support a smooth transition to the new framework for recognising overseas qualifications.”—[Official Report, 14/6/21; cols. 1734-35.]
When will we see these regulations, and what does “a smooth transition” actually mean? Will it ensure that no one with qualifications recognised today will lose out on job prospects tomorrow?
We feel strongly about this issue, and I look forward to hearing unequivocal and clear commitments from the Minister tonight
My Lords, an issue raised in Committee that it would be helpful for the Minister to provide an update on—in writing would be satisfactory to me—concerns those European Union workers who had been providing services, with their qualifications recognised, and had applied for settled status but on the fast-track element, which did not ask them to provide any more information about the qualifications recognition. With Clauses 5 and 6 revoking the previous EU scheme and the move towards the domestic schemes, there is still potentially a grey area for those workers who will have to provide proof of their qualifications recognition if they change employer, or indeed if they seek new rental or property agreements, et cetera.
Previously, the noble Lord, Lord Grimstone, indicated that the Government were aware of this, and he provided assurances. It would be very helpful if the Government could say how many of these workers could be in this position. It emphasises the point made by the noble Baroness, which I agree with, that, even if there are unintended consequences of putting at risk some of these workers, we can ill afford it.
The second element is that it would be helpful to know the Government’s intentions for the timing of the revocation of the EU scheme. Previously, the Minister indicated that it would be when the Government were ready to do so but that they were not in any rush to do it. It will be helpful to know what timeframe we are looking at, because the noble Lord, Lord Frost, in a Statement he provided to the House in September, said that the Government were now carrying out a substantial review of previous European legislation and retained EU law. Are professional qualifications separate from that review or will they be considered as part of it? If the Minister could give some reassurance on that, I would be grateful.
Finally, because this will probably be my last comment on the Bill in this House—which I am sure the noble Baroness, Lady Bloomfield, will be pleased to hear—I want to put on record how she and the noble Lord, Lord Grimstone, have engaged in this process. I have been in this House a number of years, and we hear at the Dispatch Box fairly frequently that the Government value the input and scrutiny from this House and take on board whenever we amend legislation, and we always welcome that. But our amendments quite frequently get buried in the dust in the other House, when all our great counsel and wisdom is turned back.
The benefit of the noble Baroness and the noble Lord listening and then acting by tabling the government amendments is that this is now government policy, and the Bill is now substantially changed. If I understand it correctly, this will be the first time that the autonomy of regulators will be respected in primary legislation. That is a considerable achievement for the parliamentary process of a Bill of which we had been not only sceptical but critical at the early stages, but which we now support. Therefore, I commend both Ministers and their teams for the work they have done. Personally speaking, I think the Bill is in a much better position. For the benefit of our regulators and those who receive services that the professions operate, it is a better Bill as a result.
I thank the noble Lord, Lord Purvis, for his kind words; I will certainly try to continue to do my best at the Dispatch Box. I also thank the noble Baroness, Lady Blake of Leeds, for her amendment. In Committee, the House sought confirmation that professionals who have already had their qualifications recognised in the UK will be able to continue to rely on those recognition decisions. Indeed, those professionals will be able to continue to do so, provided of course that they meet any ongoing practice requirements. Nothing in the Bill, nor the regulations anticipated under it, will interfere with or reverse such decisions.
Regulations commencing Clause 5 will include saving and transitional provisions to ensure that professionals’ existing recognition will continue to be valid, and applications made before revocation comes into effect by the commencement regulations will continue to be assessed under the relevant retained EU recognition law. It is possible to make similar provisions in regulations under Clause 6.
The noble Baroness, Lady Blake, asked what a smooth transition would look like. It will include regulations which ensure that the UK meets its international obligations under the EU-UK withdrawal agreement, EEA EFTA separation agreement and the UK Swiss citizens’ rights agreement. It includes saving and transitional provisions to ensure that professionals’ existing recognition will continue to be valid, and applications made before revocation has commenced will be assessed under the EU system. Commencement of Clause 5(1) is timed to avoid burdening regulators or creating gaps in their ability to recognise overseas qualifications. The Government took a similar approach when amending retained EU recognition law in 2019 to ensure a smooth transition for businesses and professionals following the UK’s withdrawal from the EU.
The noble Baroness also asked why, if we are so committed to protecting the ability of those with existing recognised qualifications to continue practising, we are not putting this on the face of the Bill. We believe that this matter is best dealt with through saving and transitional provisions in secondary legislation. The UK Government and devolved Administrations took this approach when amending EU legislation on recognition of professional qualifications to prepare for leaving the EU. We see no reason to depart from this approach and enshrine this commitment in the Bill.
The revocation of the general EU-derived system will not impact the ability of professionals with recognition decisions awarded under that system to continue practising in the UK. This applies even where a professional takes a career break and chooses to return to a profession in which they were awarded recognition. The noble Lord, Lord Purvis of Tweed, asked about the fast-tracked settled status of EU citizens. We are unable to provide the House with the precise timetable at present, but we will engage with stakeholders as we go forward.
Professionals who do take a career break should check with their regulator to establish what, if anything, they will need to do to continue practising or to return to practice. This will of course vary between professions. If a profession has a continuing practice requirement, that will also apply for individuals currently practising. For example, where a registered medical professional has a licence to practise, they must revalidate their registration every five years. Similarly, when a professional returns to the UK, their first port of call would be to the relevant regulator in the UK to ascertain requirements for recognition.
The Bill does not make commitments in these areas, because that would be interfering with regulators’ ability to regulate. The main reason that this amendment has been proposed is to protect those with recognition decisions, but there is no threat from this Bill to those decisions. The Professional Qualifications Bill respects existing recognition decisions and any ability a regulator has to set professional standards. I therefore ask the noble Baroness to withdraw this amendment, if I have provided sufficient reassurance.
I thank the Minister for her response, and the noble Lord, Lord Purvis, for his comments.
I think I can honestly say that there is still concern. I have heard it particularly from those professionals who are not practising at the moment—so there is a continual need for reassurance. However, I thank the Minister for her comments and beg leave to withdraw the amendment.
Amendment 16 withdrawn.
We now come to the group beginning with Amendment 17. I remind the House that if Amendment 17 is agreed to, it will pre-empt Amendment 18.
Clause 16: Interpretation
17: Clause 16, page 13, line 16, leave out subsection (3) and insert—
“(3) For the purposes of this Act, a regulator is a regulator of a regulated profession if it is listed in Schedule (Regulators of regulated professions).(3A) The appropriate national authority or the Secretary of State may by regulations amend Schedule (Regulators of regulated professions) so as to insert additional regulators.”
My Lords, I will move Amendment 17 and speak to its associated Amendment 20, which would place the list of regulators covered by the Bill into a schedule.
I know that the Minister is familiar with this because we argued it in Committee, but, interestingly, in asking a rather simple question—“Which regulators are covered by the Bill?”—we discovered that not only did the Minister not know but nor did the officials and indeed some of the very regulators covered. At the time, as we rather playfully looked through the list, we discovered that one of the regulators on the Minister’s list was the body regulating bouncers—which were hardly the professionals we quite had in mind on a trade deal, nor where we thought there was likely to be an unmet need. But there we are. We also found that others on the list already had the powers to authorise incoming professionals, so it did not actually require an ability for Ministers to make that possible if their own statute did not.
At the time, we noticed that the Minister was slightly uncomfortable with the absence of a comprehensive list and he very graciously said:
“I accept, without reservation, that it is not good enough that these lists have been incomplete and that noble Lords must have felt they were playing a game of blind man’s buff in trying to see who the Bill applies to.”—[Official Report, 22/6/21; col. 161.]
I confess that I was never very good at sticking the tail to the right end of the wretched donkey and I understand that it has taken BEIS a little time to get it right. I think we have had two updates of the list, with some regulators added and some gone. I see that the pig farmers have gone from the latest list and the aircraft engineers have also disappeared, as have analytical chemists. However, we have in their place chicken farmers, schoolteachers and waste managers—so it seems that the Government can turn flying pigs into chickens.
It may seem a bit of a joke, but the Bill is about giving Ministers quite a strong power to ask independent regulators to do something they would not otherwise do—because if they are already doing it, we do not need the Bill. So being absolutely clear to whom the Government can apply these powers is an important consideration. Therefore, it is vital that we in Parliament and, even more, the regulators concerned, know that they are caught by the Act and therefore liable to be caught by its provisions. I still maintain that the best way of ensuring that is to have the list on the face of the Bill.
One part of the purpose of our original amendment has in a sense been achieved, in that the Government have worked hard—I know that the Minister has worked across all departments and an enormous amount has been done—to get that list right and finesse it so that those covered by the Bill now know that they are covered. I also know that the Minister has given an undertaking to publish that list and keep it updated. The Government have also established what I think is called a professional regulators’ forum, and I assume that all the regulators on the current list would be included as members of that forum. So, while I accept that the list will change from time to time, I ask the Minister to confirm that everyone on it—all those organisations—will be included in the forum.
I am not asking for a promise or anything. I know that the list is on a website, but we do not all look at a website very often. If the list—or maybe just a link—could be included on the agenda for those meetings of the regulators’ forum, it would be really helpful. It would make sure that we knew on behalf of Parliament that someone was looking over the Government’s shoulder at the list; apart from anything else, it would save us from having to check that it had been updated.
I still think my schedule should be on the Bill, as it would be the best way of keeping it up to date, but I can tell the Minister that I will not push this to a vote. I will be asking at the end for permission to withdraw my amendment, so he need not go into great depths about why it is absolutely not necessary. However, I do ask for assurances that the list will be not only published but included as an agenda item for meetings of the forum and, importantly, that every organisation on that list will be invited to his forum. That would be a way of holding a grip over the list. I beg to move.
My Lords, I think it was in the briefing before Second Reading that I first asked which regulators were covered by the Bill—one of those naive questions where you are often surprised by the answer that you get. My noble friend the Minister said he would write to me, which he duly did, and it was a surprise to other members of the committee when we got the letter—and things sort of went downhill after that. We had another version of the list, with more regulators on, and then a more definitive version that appeared more recently and is on the website.
For me, this struck at the competence with which the Bill was put together, and nothing that has happened has made me change my view that it was not put together in a competent way. But I am satisfied that the Government have done a very considerable amount of work to try to establish the scope of the Bill and to whom it applies, and are committed to keeping an updated list on the website. So I am happy with where we have ended up—but, my goodness, it has been an extraordinary journey.
I think we can all congratulate Members on their persistence on this issue and I have to tell noble Lords that my vocabulary has expanded at an enormous rate by being involved in the Bill. I have never heard the expression, “I am not assuaged” quite so often, but it clearly shows that we are moving in the right direction. As we have heard, there are still concerns and, given the lateness of the hour, I just want to add that with Amendment 18 we really feel that we would like to see statutory protection to ensure that the list is regularly maintained and updated. That is the question we have: we have achieved so much through the debate here, but how can we be reassured that the list will be kept updated and maintained, and how often will it happen? Because of our experience, we need a reassurance that the list will not be removed once the Bill has received Royal Assent. I will listen very carefully to the Minister’s reply.
My Lords, I think no one has had a bigger headache on this list than the Minister himself and the department, but it was a headache, frankly, of their own making.
I am with the noble Baroness, Lady Hayter, on this: I think it should be a separate schedule. We proposed a mechanism in Amendment 19 by which this schedule might be created and maintained. The noble Baroness, Lady Blake, talked about keeping it updated: if it had not been for the scrutiny of your Lordships and the constant harrying of the Ministers, this list would not have been nearly right now. I suspect there are still amendments to go into it. For that reason, we think Parliament should hold on to a regulatory process and, through a statutory instrument, that schedule can be updated.
What we have sought to do in Amendment 19 is not to second-guess where the list is now—because, as the noble Baroness, Lady Hayter, pointed out, that is like catching a knife—but to give the Government a process by which a definitive list may be created, put in a schedule and updated easily and, I would say, flexibly through a statutory instrument. Why? Because this is not just a list of organisations on a website: there are rights and responsibilities that come with being on this list and, indeed, not being on this list. Which professions are going to be scrutinised to see whether demand is met or unmet? This is a really important issue that Parliament should continue to maintain scrutiny over.
The noble Baroness, Lady Hayter, talked about the responsibilities of those organisations, but also the rights—which ones have the autonomy that the Minister’s amendment has granted and which are not part of this list? Furthermore, when the conversations are being had with the devolved authorities, a list gives weight to those discussions and gives a very clear indication of which professions are in and which are not. So, one way or another, putting it in the schedule is really important, as is a way in which that can be flexibly maintained, whereby Parliament maintains its ability to scrutinise that process; because without that scrutiny, where would we be now?
My Lords, I thank the noble Baronesses, Lady Blake of Leeds and Lady Hayter of Kentish Town, and the noble Lords, Lord Purvis and Lord Fox, for their amendments. These amendments return to the debate about the regulators and professions to which the Bill applies, a topic which has covered me in embarrassment at various stages during the Bill’s passage. I admit that it was not our finest hour. Noble Lords rightly asked that the Government fully and precisely articulate who meets the definitions in the Bill.
The Government too, of course, and the regulators want to be clear about who the Bill applies to. It was for this reason that I asked my officials to carry out a comprehensive exercise to determine all those regulators and professions that meet the definitions in the Bill. My officials worked closely throughout the summer with other government departments, devolved Administrations and regulators. I am grateful to all those who contributed. Every regulator that meets the definitions in the Bill has been directly contacted by my officials, and is aware that the Bill applies to them. My officials have also contacted those regulators that we no longer consider the Bill applies to. I have written to my counterparts in the devolved Administrations to confirm the professions and regulators that operate in those parts of the UK. I am pleased to report that they have fully co-operated in this exercise. This extensive engagement culminated in the drawing up of a list of regulators and professions affected by the Bill, which we published on GOV.UK on 14 October. This exercise has provided the additional clarity rightly demanded by this House. The Government remain absolutely committed to regularly updating a list of professions and regulators to which they consider the Bill applies, and to keeping that list in the public domain.
I have also asked my officials to ensure that the assistance centre will also publish the list and will signpost professionals to all the professions and regulators identified on it. This will be part of our future service requirements and our contractual requirements for the assistance centre. Building on our work with regulators to prepare the list, my officials will continue engaging with this network of regulators through a variety of avenues to ensure they are kept updated on our work in this area. In answer to the noble Baroness, Lady Hayter of Kentish Town, I say that it would not be sensible to use the new forum that we are setting up as a means for doing this. The forum would be so large that we would probably have to go to Rome to use the forum there for its meetings, and it would frankly be unwieldly to have a forum of that size. That forum is going to have a cross-section of all the regulators on it. We will refresh that cross-section from time to time to make sure that all regulators from all parts of the UK have a chance to put their views. Of course, we will have other networks where we will engage through a variety of avenues to ensure that regulators are kept updated on our work in this area.
Perhaps picking up a point made by the noble Lord, Lord Fox, I say that the regulators will of course want to know that they are on this list, because a regulator who is covered by the definition gets the benefit of regulatory autonomy. There is therefore a positive reason for a regulator wanting to be included.
On that note, in the event that I happened to be the chief executive of a regulator that was not on that list, it would help to know what the process was by which one sought to join the list or, indeed, to be taken off it. If we are not going to have a schedule as we discussed, the process by which a regulator puts itself in the frame or seeks to put itself in the frame would be really important, as well as publishing the list. Discussing that process would be useful.
Of course, the interesting thing is that this process derives entirely from the legal definition of a regulator that is governed in law. It is not a matter of grace and favour to say whether a regulator is included or not; it is a matter of fact as to whether the regulator statutes make it a regulator engaged in law.
It is more about having to draw attention to the fact that they believe that they are within the law. I cannot imagine that the department will have enough resources to continually trawl the horizon and find them, so individual organisations may find themselves asking how they go about getting on the list.
I think the simple answer is that they should write either to the Minister responsible, whoever that is—if it is me, of course, I will attend to that—or to the senior officials within the department or within the devolved Administrations. This will obviously be something that officials will monitor and keep up to date.
Amendments 17 and 20 proposed by the noble Baroness, Lady Hayter of Kentish Town, would enshrine a list of regulators as a schedule to the Bill, while also maintaining a definition of a regulator. I have some major reservations about this approach. A schedule to the Bill listing regulators, while there is also a definition of the regulators that the Bill applies to, immediately creates a conflict. Which one is correct? Is it the regulators in the schedule, or the regulators that a court considers to meet the definition?
This would also result in a conflict if a “regulated profession” could continue to be defined. A profession could meet the definition but its regulator be not listed in the schedule. Would that profession and regulator be covered by the Bill or not? Definitions and a schedule cannot coexist in the Bill; it would be legally inoperable. Therefore, if there is to be a schedule to the Bill, the definitions would have to be removed and it would be as if they were never there. As a result, such a schedule would have no statutory hook and would simply be an arbitrary list of regulators.
My clear preference is to retain the definitions in the Bill—and let me set out why. The professions regulated by law in the UK and their associated regulators will change; legislation will change; names of regulators will change; and administrative arrangements between regulators will change. With a schedule instead of the definitions, there would be no statutory reason to update who the Bill applies to.
We could intend to maintain the proposed new schedule in line with the definitions currently established in the Bill, but there would be nothing to oblige the Government, nor future Governments, to do that. As a result, I believe this risks a more arbitrary determination about who is a regulator under the Bill. We have to root the definition of who is covered by this Bill in a straightforward legal definition. Decisions regarding who is covered by the Bill should be made based on clear criteria—which are the definitions established in the Bill.
It is for the same concern over arbitrary determinations that I have reservations about the approach proposed in Amendments 18 and 19. First, let me say that, in considering the merits of Amendment 19, I have assumed that the noble Lords’ intention was to oblige the Government to publish in regulations a list of regulated professions, rather than “a list of regulators”, as the amendment says. These amendments would mean that a profession could meet the existing definitions of a regulated profession, as set out in Clause 16, but if that profession is not on the government website or listed in regulations, the Bill and any subsequent regulations made under it would not apply to the profession.
It should not be the Secretary of State who has the final say over who this Bill applies to. It should not be for this Government, nor future ones, to remove or add professions to the Bill arbitrarily—a risk that these amendments introduce. I hope that, with that further explanation, noble Lords fully understand the merits of a definitional approach.
So, while I of course recognise the good intention of noble Lords to bring greater clarity, the Government have already responded to that. The combination of scrutiny by regulators, the fact that this list will be easily accessible on GOV.UK and the fact that it will be a requirement for the assistance centre also to publish this list and keep it up to date will provide the confidence that the House is looking for—whereas these amendments, by contrast, risk greater ambiguity. For these reasons, I ask for the amendment to be withdrawn.
I start with an apology to the noble Baroness, Lady Noakes: of course it was her. In fact, I have just seen in my files the letter where it was shared with her and then, afterwards, with us. I apologise for that oversight.
Something that the Minister said has caused me great concern. I was suggesting that, as a way of having someone overlooking the list on GOV.UK, it be linked to in the agendas or whatever for the forum. The Minister then seemed to suggest that it would be an enormous collection, but his own policy statement says that there are about 50 regulators, and around 45 went to the first meeting that he held, so there is not a great number. We are talking not about hundreds of regulators but about what has sometimes been 61. The most it has ever been was 80, and we are down to 70 at the moment, I think—I am sorry, but I do not have the absolutely up-to-date figure in front of me. My concern is that those are not all invited to the forum, which the Minister has given me to understand that he will, on the whole, chair—he may not always be able to, but that would give it a certain kudos. I am not saying that every regulator would want to turn up, but I would find it a bit surprising if he is setting up a regulator forum but not inviting all the regulators covered by the Bill to it.
I am not expecting him to pop up now and give me that assurance, but it may be that an exchange of letters afterwards could do so—because the regulators’ forum was seen by a number of us as something that is very important. But I hope that it will not just be a hand-picked selection of the 50 or 60 regulators that are covered. Having said that, as I said at the beginning, I will not test the opinion of the House on this. I still think that I am right and he is wrong, but there you are—it happens. I beg leave to withdraw the amendment.
Amendment 17 withdrawn.
Amendments 18 to 20 not moved.
House adjourned at 10.07 pm.