My Lords, this group has three amendments in it, two of which are in my name. The other amendment, in the name of the noble Baroness, Lady Garden of Frognal, strictly speaking, is not really related. Her amendment makes a perfectly good point, it seems to me; I will not dwell on it, as I am sure she will introduce it very effectively. It simply asks for language requirements to be something that the assistance centre provides information and assistance on, so it sounds perfectly reasonable.
Amendment 34A in my name is somewhat prompted by the Government’s amendments to Clause 1 that we debated last Wednesday. If noble Lords will recall, those looked at the risk that the Government acknowledged in their supplementary memorandum to the Delegated Powers and Regulatory Reform Committee. In paragraph 6, they said their amendments were
“to avoid the risk that clause 1 could allow an overseas-qualified individual to circumvent additional requirements that other legislation imposes, or allows a regulator to impose, on overseas-qualified individuals.”
That is, indeed, exactly the risk that was referred to, quite properly, at Second Reading and to which the Government responded.
What was added into Clause 1 was “and any other specified condition”. In its response to the supplementary memorandum, the Delegated Powers and Regulatory Reform said that, while it welcomed the amendment since it was intended to mitigate that risk, the appropriate conditions that were going to be added in were not specified. In part, Amendment 34A is part of a process of trying to tease out from my noble friend what is going to be in those conditions under Clause 1 that are in addition to the requirement for an overseas qualification or overseas experience to be substantially the same as UK qualifications and experience.
One of the things that I felt it was helpful to illustrate that is the question of indemnity insurance. That is what Amendment 34A relates to. For a number of regulators—especially of course, those that I am aware of, in the medical professions—there is a requirement on practitioners as part of their professional standards to have professional indemnity. Would this, for example, be one of the conditions that my noble friend would anticipate would be specified under Clause 1? That is by way of probing that situation.
Amendment 60A, however, is both to probe this issue rather more but also perhaps to make a suggestion to my noble friend when they are considering what might give further reassurance. Given the debates we have had last week and today, time and again noble Lords are saying that they remain concerned, notwithstanding the Government’s intentions and statements, that regulators will find that a consequence of the regulations under Clause 1 or as a consequence of Clause 3, which we have just been talking about, will be that they cannot impose or exercise the same control on overseas applicants to practise in the United Kingdom as would be the case for a UK applicant.
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Why is that the case? First, it is because there is a risk that, where there is an Act which deems somebody to have an overseas qualification which is the equivalent
of a UK qualification and the UK qualification is the basis upon which they are entered in a register, there may be scope for legal challenge to any decision by a regulator that seeks to frustrate their ability to practise in this country. There may be individual actions or indeed class actions of people saying, “If we have qualifications and experience, your legislation says that we are deemed to have the same qualifications as in the UK.” Subsection (1) of my intended new clause says that that should not be case. The determination cannot be pre-empted by any regulations under this Act.
Secondly, the amendment looks at whether people should have an entitlement to practise. Clearly, I am thinking particularly here of medical and healthcare professions. Let us consider the circumstances where somebody is on the register for a profession but there are limitations on their practice. Say, for example, there are UK registrants in healthcare professions who very often engage in independent prescribing. Because they have independent prescribing rights in the UK, based on their UK qualifications and experience, this should not and does not mean that the qualifications and experience which might, on the face of it, look equivalent actually should be the basis on which they prescribe independently. That should be the subject of an assessment by the regulator. This is exactly the point in addition to what the Health and Care Professions Council has been saying. The GMC says the same thing. Fitness to practise is not a matter simply of qualifications or even of experience. It is a matter of a holistic assessment of a person’s knowledge, skills and experience. Indeed, as the HCPC quite rightly highlights, it has a responsibility to assess the character and health of an applicant.
This brings me to subsection (3) of my proposed new clause. I was thinking of this in relation to the question of assessing the character and health of an applicant. An overseas applicant may well have qualifications and evidence of experience, but they will need to provide the regulator with evidence of their character and health. This might also be, I might say, an area where the question of the disclosure and barring scheme is relevant, although I have not mentioned it. The ability to demonstrate to a regulator that one has not just the qualifications but all the characteristics and the health and experience that is necessary to be fit to practise is much wider than simply qualifications or even experience. Subsection (3) would be to make it very clear that, where there is a lack of evidence of fitness to practise on the part of an applicant from overseas, the regulator is under no obligation by virtue of the equivalence of the qualifications and experience to treat that person as fit to practise. I clearly do not intend to press this amendment, but I think that when we come back on Report something of this character would enable Ministers to put in the Bill the reassurances that they keep telling us from the Dispatch Box.
It is a saving provision, which could be phrased differently, to say that nothing in this Bill stops a regulator from determining whether somebody is fit to practise and taking into account all of these factors. It might also be helpful to work through the range of these contributing factors to an assessment of fitness to practise. It is very difficult to list them all in a Bill,
but certainly necessary somewhere in this legislation to make it very clear—more than is implied by “any other specified condition”—that, whether it is under the Clause 3 power or the Clause 1 power, this is not designed to give people an entitlement to practise in the UK whether or not their qualifications and experience put them on the register: fitness to practice is a wider assessment for which regulators are responsible, and they must be able to do this for an overseas applicant in the same way as they would do it for a United Kingdom applicant, and nothing in this legislation should pre-empt, override or undermine their ability to do that. That is what Amendment 60A was attempting to do. So I hope my noble friend will be able to at least look kindly upon it, and think positively about whether this is something we can further add to on Report. I beg to move Amendment 34A.