Policy paper

Report on the consultation of the devolved administrations on regulations under the Professional Qualifications Act 2022 to implement the Recognition of Professional Qualifications (RPQ) provisions in the EEA EFTA Free Trade Agreement

Published 13 October 2023

1. Introduction

This is the report on the consultation with devolved administrations on the Regulations being made under the Professional Qualifications Act 2022 to implement the recognition of professional qualifications (RPQ) provisions of the EEA-EFTA free trade agreement (FTA). The report details the consultation process; any agreement, objection or views of the devolved administrations; and an explanation of whether and how these views have been taken into account by the UK government in the Regulations. This includes providing explanation where the UK government is making the Regulations despite an objection.

2. Background

The Professional Qualifications Act 2022 (the PQ Act) introduces a new approach to RPQ which supports international trade and gives regulators more autonomy in how they recognise individuals with professional qualifications gained overseas.

The PQ Act includes concurrent powers, meaning that they can be used either by the Secretary of State or the Lord Chancellor, or the relevant devolved administration in areas of devolved competence.  

The Secretary of State is:

• making regulations under section 5(2) of the PQ Act to amend UK and devolved legislation consequential to the revocation of the European Union (Recognition of Professional Qualifications) Regulations 2015^{[footnote 1]} (the 2015 Regulations) which contain the general EU system of recognition of overseas qualifications
• making regulations under section 3 of the PQ Act to implement Chapter 12 of the UK-Norway, Liechtenstein, Iceland Free Trade Agreement (the EEA-EFTA FTA)

The Secretary of State is required, under section 17 of the PQ Act, to consult Welsh Government ministers, ministers in the Scottish Government and a Northern Ireland department before making regulations under sections 3 or 5(2) where the regulations make provision which could be made by the devolved administrations themselves.

3.Changes in UK legislation for the recognition of professional qualifications

The PQ Act revokes the EU-derived interim system for RPQ (the 2015 Regulations). The interim system will be revoked in a way that protects the UK’s existing international commitments and international obligations. These include the Common Travel Area (CTA) between the UK and Ireland, and the EU-UK Withdrawal Agreement, the EEA EFTA Separation Agreement, and the Swiss Citizens’ Rights Agreement.

In July 2021, the UK signed the Free Trade Agreement with Norway, Iceland and Liechtenstein. These countries are members of both the European Economic Area (EEA) and the European Free Trade Association (EFTA) so are collectively referred to as the ‘EEA EFTA states’. The EEA EFTA FTA provides for a comprehensive RPQ system and will ensure that UK professionals seeking to practise a regulated profession in one of the EEA EFTA states can access a clear process to have their professional qualifications recognised, and vice versa. The FTA places an obligation on the UK and EEA EFTA states to put in place necessary measures and require its ‘relevant authorities’ to operate an RPQ system.

Under the FTA, the UK is required to use best endeavours to “adopt, where applicable and maintain the necessary measures” that require regulators to deliver the RPQ system by 1 December 2023.

The UK government will revoke the interim system and implement the RPQ chapter of the FTA at the same time. This will ensure that regulators are only required to make one set of changes.

4. Implementation approach

The UK government will give effect to the obligations in the EEA EFTA FTA by using section 3 of the PQ Act. Section 3 provides a power to enable the UK government or devolved administrations to make regulations to implement provisions on the recognition of professional qualifications in international agreements.

The UK government is using a single UK-wide statutory instrument (‘the Regulations’) to require regulators to meet the FTA’s requirements on the recognition of professional qualifications obtained in Norway, Iceland, or Liechtenstein. The Regulations will:

• place a duty on regulators to meet the requirements for the recognition of EEA EFTA professional qualifications provided in the FTA
• provide regulators with the legal basis to meet these requirements, where required

The Regulations apply to professions regulated by law on a UK-wide basis (such as architects, doctors) as well as those regulated separately across the four nations (such as teachers).

The UK government considers that legislation is required to implement the UK’s commitments under Chapter 12 to ensure that the UK can demonstrate that it has ‘adopted’ and will ‘maintain’ the necessary measures to deliver the RPQ system. Relying on existing or voluntary measures will not satisfy the requirement to ensure that compliance is maintained. Critically, in the UK’s dualist legal system, the FTA is not part of domestic law. In the absence of legislation requiring compliance, a professional would have no legal recourse if a UK regulator changed its system so that it no longer complied with the obligations in the FTA.

The UK government considers that a single set of Regulations is required to implement the FTA consistently across the UK and provide clarity on implementation for regulators and for professionals with qualifications from Norway, Iceland, or Liechtenstein.

The regulator consultation (held before the devolved administrations consultation) identified that some regulators do not have the necessary powers to be able to operate the system outlined in the FTA. Using legislation will ensure all regulators in scope of the FTA have the necessary powers to implement the system contained within it. The Regulations do this by amending sector-specific legislation, where needed, to implement the terms of the FTA.

Regulations are being made under section 5(2) to amend UK and devolved legislation consequential to the revocation of the interim system. As this revocation will take place at the same time as the implementation of the FTA, these amendments will be contained within the Regulations.

5. The regulations

The Regulations implement the specific terms of the FTA. The Regulations require relevant authorities to fulfil the requirements set out in the FTA to assess and recognise professional qualifications obtained in Norway, Iceland, and Liechtenstein in line with the requirements of the FTA.  

The UK government undertook a review of sectoral legislation and a targeted consultation for regulators. The UK government has included amendments to sectoral legislation within these Regulations to:

• provide impacted regulators with specific powers to operate the system for professionals qualified in Norway, Iceland, and Liechtenstein
• comply with the requirements of the FTA, for example, school teachers in England

The Department for Business and Trade reflected relevant comments and feedback from the regulator consultation into the regulations to ensure transparency and for collaborative inter-governmental working. This was ahead of consulting with devolved administrations on the Regulations.

The amendments consequential to the revocation of the interim system will remove reference to the interim system to cohere sectoral legislation.

6. The consultation process

The consultation with the devolved administrations ran from 12 June 2023 to 17 July 2023.

The UK government received responses to the consultation from each devolved administration. UK government officials carefully considered the responses and relevant amendments submitted. The outcome of these considerations is detailed in the UK government response section of this report.

The commencement regulations to revoke the interim system (section 5(1)) are outside the scope of this consultation.

7. Responses from devolved administrations

Please see below a summary of the response from each devolved administration to the consultation questions. For the consultation questions please refer to Annex A of this report.

7.1 Northern Ireland

7.1.1 The Department for the Economy in Northern Ireland noted their opposition to the inclusion of wide-ranging concurrent powers within the PQ Act. However, it is their view that this use of those concurrent powers falls within their intended scope of those concurrent powers and it is content with the UK government’s approach. Furthermore, it was noted that the single legislative implementation route follows existing precedent, as a UK-wide approach was taken to implement the EU Mutual Recognition of Professional Qualifications (MRPQ) Directive.

7.1.2 The Department for the Economy in Northern Ireland noted issues in relation to the Windsor Framework. Northern Ireland is in a different position to the other UK nations in relation to F gas professionals (F gas professionals are covered in Annex 2 of the Windsor Framework). It was noted that the UK government needs to factor this in when making the Regulations.

7.1.3 The Driver and Vehicle Agency Northern Ireland, and the Food Standards Agency in Northern Ireland provided technical amendments to devolved legislation for inclusion in the Regulations, for:

• agricultural analysts
• public analysts and food analysts (FSA NI)
• driving instructors (DVA NI)

7.1.4 The Departmental Solicitor’s Office in Northern Ireland had no legal comments about the Regulations.

7.1.5 Northern Ireland Departments also provided comments on the Commencement Regulations under section 5(1) for the revocation of the 2015 Regulations. Although these were out of scope of this consultation they have been taken into account.

7.2 Scotland

7.2.1. The Scottish Government noted their opposition to the conferral of powers on UK ministers in devolved areas with no requirement to seek consent from the Scottish ministers to exercise them in devolved areas. The Scottish Government noted that the PQ Act was passed in breach of the Sewel Convention. The Scottish Government noted that compliance with devolved aspects of international agreements is for the Scottish Parliament and Scottish Government.

7.2.2 In response to questions (a) and (b), the Scottish Government noted that the draft legislation is sufficient in respect of the regulators to which it relates. The Scottish Government said that Scotland will meet its international obligations and Scottish ministers take the implementation of international agreements very seriously.

7.2.3 The Scottish Government did not provide technical amendments to devolved legislation for inclusion in the Regulations. However, they noted that there is a requirement for a technical SSI to go through the Scottish Parliament to make small amendments to devolved legislation.

7.2.4 In response to question (c), the Scottish Government was not aware of any of the provisions in the draft regulations being unworkable in practice.

7.3 Wales

7.3.1 The Welsh Government noted their opposition to the inclusion of concurrent powers in the PQ Act as powers would allow the UK government to exercise them in devolved areas. The Welsh Government said that implementation of international agreements is a matter for Welsh ministers in devolved subject areas.

7.3.2 In response to question (a) the Welsh Government noted that Welsh ministers will amend the School Teachers’ Qualifications (Wales) Regulations 2012, The Food Safety (Sampling and Qualification) (Wales) Regulations 2013, Welfare of Animals at the Time of Killing (Wales) Regulations 2014 and Regulation and Inspection of Social Care (Wales) Act 2016.

7.3.3 In response to question (b(i)) the Welsh Government noted that:

• there are existing legislative powers and measures in place to effectively demonstrate that devolved regulators meet the FTA
• if Welsh ministers consider that any additional legislation is required, the UK government should not seek to hinder the Welsh ministers from making such legislation

7.3.4 In response to question (b(ii)) the Welsh Government noted that amendments will need to be made to devolved legislation to reflect the requirements of the regulatory framework.

7.3.5 In response to questions (b(iii)) and (c) the Welsh Government noted that the UK government should raise these issues with the devolved regulators. The Welsh Government is of the view that effective monitoring arrangements already exist between the Welsh Government and the devolved regulators and that imposing further UK government made legislation on Welsh regulators in devolved areas will increase the administrative burden on these regulators. The Welsh Government said that the requirement for these regulators to offer compensatory measures is particularly burdensome given the low numbers of individuals from the EEA who require their qualifications to be recognised in Wales.

8. UK government response

The UK government is grateful to devolved administrations for their responses to the consultations. The UK government has considered the responses carefully.  

The UK government notes the opposition of the Scottish Government and Welsh Government to the UK government exercising the concurrent powers in the PQ Act without their consent. These arguments were considered during the parliamentary passage of the PQ Act (then Bill) as a result the UK government introduced section 17, which bound it to consult the devolved administrations when using these powers.

The UK government considers that UK-wide legislation is necessary for effective implementation of the FTA. UK-wide legislation will demonstrate that the UK has ‘adopted’ and will ‘maintain’ the necessary measures in the FTA. UK-wide Regulations will implement the FTA consistently across the UK and will provide clarity on implementation for regulators and professionals with qualifications from Norway, Iceland, or Liechtenstein. It will also provide regulators (where necessary) with the legislative basis required to implement the RPQ system set out in the FTA.

8.1 Northern Ireland

The UK government welcomes Northern Ireland’s decision to agree to a UK-wide implementation approach. It is the UK government’s intention to implement this FTA through UK-wide legislation that is specific to the terms of the FTA. This falls into the intended scope of the powers in the PQ Act.

As set out in paragraphs 7.1.2 and 7.1.3, the amendments submitted by the Northern Ireland have been considered and incorporated into the Regulations.

The UK government acknowledges the points made in paragraph 7.1.2 on the Windsor Framework and F gas professionals. Professional qualifications and services more generally are outside the scope of the Windsor Framework. While the regulation of F gases is contained within Annex 2 of the Windsor Framework, and these Regulations also contain provisions on the regulation of F gas professionals, the operation of the F gas regulation in Northern Ireland will be unaffected by the implementation of the EEA EFTA FTA and the revocation of the 2015 Regulations. The UK government is satisfied that these Regulations do not conflict with the Windsor Framework. On amendments to legislation for agricultural analysts, public analysts and food analysts, the UK government will work with Northern Ireland officials to confirm these amendments.

As set out in paragraph 7.1.4, whilst the comments on the commencement order for the revocation of the 2015 Regulations were out of scope of this consultation, the draft commencement regulations have been amended as a result of these comments.

8.2 Scotland

The UK government welcomes Scottish Government’s response to the consultation confirming that the Regulations are sufficient in respect of the regulators to which they relate. The UK government welcomes the confirmation that the Scottish Government will meet its international obligations, and notes that the Scottish Government intends to make further necessary legislative amendments to ensure compliance of Scottish legislation with the FTA.

8.3 Wales

The UK government welcomes the confirmation that the Welsh Government will meet its international obligations and notes that the Welsh Government intends to make further necessary legislative amendments to ensure compliance of Welsh legislation with the FTA.

In paragraph 7.3.5, the Welsh Government noted that the Regulations will increase the administrative burden on their regulators and that the requirement for these regulators to offer compensatory measures is particularly burdensome. The UK government ran a regulator consultation in January 2023 for a 6-week period and no concerns were raised by regulators in Wales.

9. Conclusion

In line with its duties under section 17, the UK government has taken into account the views expressed by the devolved administrations. This report has set out why the UK government continues to make these Regulations despite objections raised by the Welsh and Scottish Governments.

The UK government is grateful to the devolved administrations and their officials for their continued collaboration and inter-governmental working on these Regulations.

Annex A – consultation questions

The devolved administrations were asked the following questions to seek their views on the Regulations being made under s5(2) on revoking EU-derived law and s3 on implementing the RPQ provisions of the EEA-EFTA FTA.

a. The UK government will make amendments to legislation in areas of devolved competence consequential to the revocation of the 2015 Regulations. This will ‘tidy up’ the statute book by removing references to the 2015 regulations.

1. In areas of devolved competence, are there any further amendments that you consider are required for the purpose outlined above?

b. The UK government will use single UK-wide regulations to meet its obligations under the Agreement. This will ensure the whole of the UK meets its international legal obligations, with consistent, efficient application across the UK. We are therefore consulting on the following questions:

1. Is the legislation in your jurisdiction sufficient to meet the obligations in Chapter 12 of the Agreement?

2. Are there any amendments beyond those already contained in the draft regulations that will need to be made to your devolved legislation? For example equivalent amendments for any professions regulated in England which have amendments in the draft regulations.

3. Where these draft regulations apply in areas of devolved competence, will they compel regulators of professions regulated by law to meet all the obligations set out in Chapter 12 of the Agreement?

3.1 If not, what changes need to be made to the draft regulations to ensure that your regulators comply with the provisions made in Chapter 12 of the Agreement?

c. As you will see from the draft regulations, it is proposed that any amendments needed to sector specific legislation as a result of the obligations contained in the draft regulations be included in these regulations.

1. Are any of the provisions in the draft regulations unworkable in practice? If so, please explain why and provide specific comments about how they could be changed.

1. S.I. 2015/2059 ↩