Economy and Fair Work Committee
Legislative Consent Memorandum - Professional Qualifications Bill
Letter from the Minister for Business, Trade, Tourism and Enterprise, 18 December 2021
Dear Claire,
LEGISLATIVE CONSENT MEMORANDUM – PROFESSIONAL QUALIFICATIONS BILL
I am writing in response to your letter of 22 November and the report which your Committee published on the Legislative Consent Memorandum for the UK Professional Qualifications Bill (“the Bill”). I am grateful for the opportunity to attend the Committee to discuss the Bill, and to you for publishing the report and recommendations. I note the report refers to the Delegated Powers and Law Reform Committee report on the Bill and highlights similar concerns which my officials have already put to the UK Government.
Your report asks a number of questions, as follows:
16. The Committee asks the Scottish Government to provide further details on how UKIMA will interact with the Professional Qualifications Bill in relation to recognition of professional qualifications within devolved competence.
The UK Internal Market Act (UKIMA) provides for a system for the mutual recognition of professional qualifications that are regulated in law across the UK. It introduces an “automatic recognition” principle which applies to UK residents who are professionally qualified in one part of the UK to enable them to be treated automatically as qualified in respect of that profession in another part of the UK, as well as setting out the situations where the automatic recognition principle does not apply. Certain legal professions are excluded. School teaching is also excluded after considerable pressure from Scottish teaching organisations, the Scottish Government and Peers during the passage of the Bill.
UKIMA intends to set the rules by which regulators will have to operate in relation to standards set by equivalent bodies in other parts of the UK, including the requirement to offer routes to recognition. The Professional Qualifications Bill largely intends to set the rules for the recognition of qualifications gained outwith the UK.
However, the Professional Qualifications Bill does include clauses that impact on relationships within the UK such as information sharing requirements and the establishment of an information centre.
The UKIMA specifically excludes school teaching and the legal profession and these professions and their devolved regulators will be covered by the Professional Qualifications Bill. All other devolved professions, such as social workers, will be covered by both sets of legislation.
The UKIMA would not allow a non-UK qualified professional who would not have had their qualification recognised through direct application to a particular UK regulator (e.g. under the Professional Qualifications Bill) to rely on recognition through the UKIMA if they were recognised in another part of the UK, as it only applies to UK gained qualifications and experience. Equally, an individual who was UK qualified but not recognised as reaching the requirement standard for another part of the UK could not apply for recognition through a route established to comply with the Professional Qualifications Bill.
36 The Committee asks the Scottish Government to set out how it will track relevant changes made via this legislation and UKIMA and keep the Scottish Parliament informed of developments with relevance to policy in Scotland.
The Scottish Government is actively considering how it monitors legislation made under powers in the UKIMA and how it would bring relevant changes to the attention of Parliament.
39 The Committee requests that the Scottish Government keeps the Committee updated on the outcome of these discussions.
I updated the Committee on amendments to the Bill addressing regulator autonomy and consultation in my letter of 23 November 2021 and will continue to keep members informed of any further developments.
42 The Committee requests confirmation from the Scottish Government on whether it will actively pursue these issues with UK counterparts.
Scottish Government Officials have established a regular discussion forum with BEIS and have no concerns with proposals relating to regulator to regulator agreements. Future issues relating to international treaties will be subject to further discussion through formally established ‘four country working groups’.
45 The Committee welcomes the Minister's agreement to look further into whether clause 3 of the Bill could be used to compel devolved regulators to charge fees. The Committee requests an update from the Scottish Government on this matter.
After committee stage on 9 June Lord Grimstone wrote to Lord Purvis of Tweed, noting that Lord Tweed “raised questions regarding the variety of processes regulators must navigate to get approval for the level of fees charged to applicants, including the involvement of the Privy Council and, in some cases, the Scottish Parliament.”
In his letter, Lord Grimstone states:
“Where regulations establish a unilateral recognition route, Clause 1(5)(e) allows the regulations to provide for fees to be paid by a person who applies under that route. Similarly, where regulations are used to implement an international recognition agreement, under Clause 3(2)(c) the regulations could include provisions about fees in connection with applications made under that agreement. Without these provisions, there could be doubt about the Government's ability to authorise regulators to charge fees in these circumstances.
So the Bill is an enabling Bill, including powers that can be used if necessary. The powers under the Bill could, in theory, be used to support regulators in disparate sectors, with varying needs and requirements and varying existing practices about fees. It is not practicable nor desirable to set a one-size-fits-all approach to fees in the Bill. Indeed, this would encroach on regulator autonomy.
Where the Government uses the Bill’s powers, we would of course engage with the relevant regulator and all interested parties in deciding what to say about fees in the regulations. We believe that regulators should be able to charge appropriate fees to recover the costs of any applications they process.”
In line with UK Government amendments tabled in the House of Lords, any implementing regulations under Clause 3 would have to be consulted on with relevant regulators and would need to be consistent with the conditions set out in the amended Bill.
48 The Committee shares these concerns and requests that the Scottish Government seek, and then share with the Committee, further information on which professions and regulators are covered by the Bill and how the distinct nature of certain professions, such as the Scottish legal profession, will be recognised.
The list of regulators covered under the Bill has been published here on the UK Government’s website. https://www.gov.uk/government/publications/professions-regulated- by-law-in-the-uk-and-their-regulators/uk-regulated-professions-and-their-regulators
56 The Committee notes that the Scottish Government is currently in discussions with the UK Government on potential amendments to the Bill to include a requirement for consent from Scottish Ministers where regulations are to be made in devolved areas. The Committee requests that it be kept updated on the progress of these discussions.
It remains the case that the Scottish Government and the UK Government are in discussions on potential amendments to the Bill in respect of the exercise of concurrent powers under the Bill. The Scottish Government will continue to keep the Committee updated on progress of the discussions.
DPLRC Report
70 The Committee also recommends that the lead committee pursues with the Scottish Government whether a statutory requirement to consult the affected regulator(s) before exercising the power should be included in this clause. This is particularly so given that the clause covers a multiplicity of different regulators.
Separately, clause 3(1)(c) enables regulations under this power to make provision for the charging of fees. The lead committee may also wish to explore whether this could be used to compel devolved regulators to charge (or not to charge) a fee, and what the implications of this might be.
In response to the DPLRC’s issues above, the Professional Qualifications Bill went through Report Stage in the House of Lord on 9 November, with two amendments passed which address the DPLRC’s concerns:
- Regulatory Consultation: the Bill has been amended to include a requirement for a national authority to consult with regulators who would be affected by a regulation;
- Regulator Autonomy: the Bill has been amended to give regulators the power to make a determination on the basis of qualification only, and to introduce a new ‘Protection of regulator autonomy” clause, clarifying that regulations made under the Bill cannot remove the right of regulators to decide whether an individual is fit to practise or not, and “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.”
With regards to Clause 3(2)(c) (Previously 3(1)(c)), this provision can empower a regulator to charge fees but this would only take place after the regulator had consulted.