Explanatory Notes

Clause 12: Recognition of professional qualifications

173 This clause gives Ministers of the Crown and the devolved authorities the power to make necessary regulations to implement:

a. Chapter 3 (Professional Qualifications) of Title II of Part 2 of the Withdrawal Agreement;

b. Chapter 3 (Professional Qualifications) of Title II of Part 2 of the EEA EFTA Separation Agreement; and

c. Article 23(4) (so far as relates to recognition of professional qualifications) and Part 4 (Mutual Recognition of Professional Qualifications) of the Swiss Citizens’ Rights Agreement.

174 The provisions in the Agreements set out that professional qualifications held by EU citizens and EEA EFTA nationals, who are resident or frontier working in the UK by the end of the implementation period, and recognised, or in the process of being recognised, by a UK professional regulator before the end of the implementation period, will continue to be recognised. Family members of EU citizens and EEA EFTA nationals who are resident in the UK will also have rights to have their qualifications recognised under these agreements.

175 Under the Swiss Citizens’ Rights Agreement, Swiss nationals who have had qualifications recognised or applied for recognition before the end of the implementation period will continue to have their qualifications recognised. Swiss nationals will have an additional four years from the end of the implementation period to make applications for recognition, so long as the individual has obtained, or was in the process of obtaining, a qualification before the end of the implementation period.

176 All persons with recognised qualifications under the Agreements will be entitled to practice the profession under the same conditions as UK nationals.

177 For the purpose of this clause, the devolved authorities are the Scottish Ministers, the Welsh Ministers and a Northern Ireland department.

178 For EU citizens and EEA EFTA nationals, this clause applies to recognition decisions made under UK legislation that implements the following EU directives:

a. Title III of Directive 2005/36/EC - right to practice a regulated profession based on the recognition of professional qualifications or professional experience gained in another EEA state;

b. Article 10(1) and (3) of Directive 98/5/EC - admission to the profession of lawyer in another EEA state;

c. Article 14 of Directive 2006/43/EC - approval of statutory auditors from another EEA state; and

d. Council Directive 74/556/EEC - recognition of knowledge and ability needed to engage in the trade and distribution of toxic products.

179 For Swiss nationals, this clause applies to decisions made under UK legislation that implements the following EU directives:

a. Title III of Directive 2005/36/EC – right to practice a regulated profession based on the recognition of professional qualifications or professional experience gained in another EEA state;

b. Directive 98/5/EC - admission to the profession of lawyer in another EEA state;

c. Council Directive 77/249/EEC - to facilitate the effective exercise by lawyers of freedom to provide services;

d. Council Directive 74/556/EEC - recognition of knowledge and ability needed to engage in the trade and distribution of toxic products; and

e. Council Directive 86/653/EEC in respect of self-employed commercial agents.

180 The recognition of professional qualifications provisions in the Withdrawal Agreement and EEA Separation Agreement only apply for the purposes of establishment, and not for the temporary and occasional provision of services. The Swiss Citizens’ Rights Agreement also makes provision for the purposes of establishment. In addition, Article 23 of the Swiss Citizens’ Rights Agreement provides that those providing services on a temporary basis from Switzerland to the UK or from the UK to Switzerland shall have the right to continue to do so after the end of the implementation period, provided certain conditions are met. Those in the scope of Article 23 may continue to rely upon the Council Directive 77/249/EEC, which facilitates the exercise by lawyers of freedom to provide services, and the provisions of Title II of Directive 2005/36/EC, which concerns the freedom to provide services for other regulated professions.

181 This power may also be used to give effect to amendments to the Withdrawal Agreement, and the EEA EFTA Separation Agreement, adopted by the Joint Committee falling within the scope of the matters provided for by this clause.

182 Subsection (1) provides that the power may be made to make regulations to implement Chapter 3 of Title II of Part 2 of the Withdrawal Agreement, as well as to supplement the effect of section 7A of the EU (Withdrawal) Act 2018 in relation to that Chapter, and to deal with matters arising out of, or related to, that Chapter.

183 Subsection (2) provides that the power may be made to make regulations to implement Chapter 3 of Title II of Part 2 of the EEA EFTA Separation Agreement, as well as to supplement the effect of section 7B of the EU (Withdrawal) Act 2018 in relation to that Chapter, and to deal with matters arising out of, or related to, that Chapter.

184 Subsection (3) provides that the power may be made to make regulations to implement Article 23(4) (so far as relates to recognition of professional qualifications) and Part 4 of the Swiss Citizens’ Rights Agreement, as well as to supplement the effect of section 7B of the EU (Withdrawal) Act 2018 in relation to those provisions, and to deal with matters arising out of, or related to, those provisions. Article 23(4) sets out that Swiss service providers, providing temporary and occasional services in regulated professions in accordance with Article 23(1) can continue to do so.

185 Subsection (4) outlines that for the purposes of subsection (3) the professional qualification provisions of the Swiss Citizens’ Rights Agreement are Part 4 and Article 23(4) (so far as it relates to the recognition of professional qualifications).

186 Subsection (5) provides that an appropriate authority may make the regulations that apply not only to persons within the scope of the relevant provisions of the Withdrawal Agreement and EEA EFTA Separation Agreement but also to persons outside the scope of those agreements who have been granted leave to enter or remain in the United Kingdom under the residence scheme immigration rules (the protected cohort) (see clause 17).

187 Subsection (6) provides that the powers in subsections (1), (2) and (3) may be used to modify any provision made by or under an enactment but subsection (7) provides that primary legislation passed made after IP completion day is not caught by subsection (6).

188 Subsection (8) defines an ‘appropriate authority’ for the purpose of this clause as meaning a Minister of the Crown, a devolved authority or a Minister of the Crown acting jointly with a devolved authority.

189 Subsection (9) references Schedule 1 which makes further provision concerning the powers of the devolved authorities to make regulations under this clause.

 

Prepared 19th December 2019