Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021

Baroness Brinton Excerpts

Tuesday 20th July 2021 Lords Chamber

[Baroness Brinton (LD) [V]]

My Lords, I declare my interests as a vice-chair of the All-Party Group on Adult Social Care. Many have spoken from the heart, including my noble friend Lady Tyler, about the principles of ensuring that those who need to be cared for by the care sector are kept safe. From these Benches we unequivocally support that principle but we argue that this SI itself is flawed, as demonstrated by the eighth and 10th reports of the Secondary Legislation Scrutiny Committee. These echo the concerns of cross-party MPs in their debate on this SI last week.

First, it is important to say that a year ago the shockingly high death toll in care homes was because neither residents nor staff were protected by our Government. In the early days, patients with Covid were discharged from hospital into homes. Worse, staff could not get access to proper PPE. I do not take the view of our Prime Minister—as reported by Dominic Cummings—that anyone over 80 is going to die soon anyway. For too many, Covid is a very nasty disease, as he well knows. Shame on him for dismissing the lives of anyone over 80.

I turn to the regulation itself. There is still no impact assessment. The statement of impact, hurriedly published yesterday, does not answer the questions raised in the Commons debate last week and does not provide the evidence for its assertions. Further, it is not clear exactly where the boundaries of the Minister’s powers lie in the regulation and what ability there is, therefore, for mission creep and Henry VIII powers.

One example is the nature of the evidence required for vaccination status. It might be an app. It might be an NHS letter. There is no evidence yet for your Lordships’ House to understand how secure this process would be. Nor are the duties under law of the registered person in a care home or a care company stated. The Secondary Legislation Scrutiny Committee pointed out that it was not certain

“whether that would provide a sufficient defence to a registered person if they needed to contest a sanction for non-compliance.”

The real concern from the evidence given by Ministers and their officials is the actual size of the problem they are trying to solve. SAGE has said that the target for staff vaccinations should be around 80% and, in his opening speech, the Minister said that we are so nearly there with the vaccinations and then quoted the data to confirm that, despite localised variations. The 10th secondary legislation report says:

“It became evident that the DHSC are trying to target this legislation on particular groups of people”.


It is not explained in the Explanatory Memorandum, perhaps because it is those people in deprived areas, younger staff and ethnic minorities.

I reassure the noble Lord, Lord Wei, the noble Baroness, Lady Fox, and others that, for months, the care sector and unions have been working with vaccine-hesitant staff. Back in January, a GP in Newcastle was reported as saying that the single most effective tool to overcome vaccine hesitancy was getting local doctors who staff know to listen to their concerns and answer them. Care providers confirm that this technique is highly effective and, frankly, it is probably why the SAGE targets and more are achievable. Why are the Government not backing this route, which would appear to overturn staff hesitancy more than any other technique, and certainly more than coercion?

There is a long litany on the lack of legislative compliance, commented on by many noble Lords, in addition to the lack of the vital impact assessment. The sector has faced a perfect workforce storm in the last 18 months. Brexit has resulted in large numbers of EU staff leaving the UK. Now, as restrictions are lifted, staff are being wooed by those able to pay premium salaries in hospitality and, in rural areas, agriculture. Social care providers say that there are already over 120,000 vacancies. They know that they will have to sack those who refuse vaccinations and will find it even harder to recruit from an ever decreasing pool. All the Government say is that it will cost the sector £100 million—much better to work with the sector to do this voluntarily.

To workforce issues, we must add the lack of detail in the Explanatory Memorandum about how this proposed system would work. Nor do the SI or the EM have key definitions, again leaving your Lordships’ House in the dark. I add to the comments of others about the inconsistencies of targeting just this sector and not others in the NHS. So, care assistants, plumbers and hairdressers must be vaccinated if they are going into care homes, but not GPs and other doctors—that is extraordinary.

I end by returning to the fundamental issue of whether there is a need for this SI. One of the largest care organisations, Four Seasons Health Care, challenges the Minister’s assertions that care homes are not safe at the moment. In its evidence, it said:

“Since March 5th 2021 we have had 2 covid deaths, during which time 955 residents have passed away. Covid therefore accounts for 0.2% of all our deaths in the past 18 weeks.”


Can the Minister provide the nationwide data on deaths in care homes over the last four months? I believe it matches these figures, so is this SI necessary? The Government admit that SAGE’s target was met, but have said there should be even more vaccinations. Other than the Minister, every speaker tonight has raised problems with these regulations, from all sides of the House. From these Benches, we say that the litany of minor and major issues means that the instrument should not be brought into effect, so we will support the amendment of the noble Baroness, Lady Wheeler.