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.
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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.