Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 2) Regulations 2021

Baroness Thornton Excerpts

Tuesday 14th December 2021 Lords Chamber

I hope that the Minister has some answers to all these contradictions. His concern for procedure is not matched by his department’s actions. Trust about the so-called “urgent business” is being squandered, given that our first debate on this matter was in July. The Government cannot argue that this is short notice. I hope that the Minister will give the House an undertaking that, in future, an impact assessment will be published in the proper way.

[Baroness Thornton (Lab)]

My Lords, I declare an interest as a non-executive director of an NHS hospital. I thank the Minister for explaining this statutory instrument, although I have to confess that I had a moment of panic during his opening statement. I thank him also for explaining his understanding of how the Government arrived at this point. I note that the department has at last produced at least something called an impact assessment, as well as other documentation. This was the subject of my Motion to Regret, now withdrawn. That does not mean that I no longer regret the lackadaisical manner in which this Government approach their accountability to Parliament and the legislative process.

As most noble Lords, including the noble Lord, Lord Cormack, have said to the Minister in clear language, we still wish to know how the legislation will operate. We hope that the Minister will be more forthcoming about, for example, the “significant workforce capacity risk” which the Secondary Legislation Scrutiny Committee mentioned in its very critical report. We note that the committee was damning in its criticism, and I thank my noble friend Lord Cunningham for speaking about the fact that these things are not an option but a requirement.

I say to the noble Baroness, Lady Noakes, that we agree with her criticism of the Government’s handling of these issues. We absolutely agree about the procedure, the drafting and the lack of justification that supports the legislation. I have been commenting on this from this Dispatch Box since March last year. However, the noble Baroness did not say that this was necessarily the wrong way to go. I withdrew my regret Motion because, today, given the new clear threat of omicron, we need to focus on the way forward. I do not believe that that is a political reason for withdrawing the Motion. Had the noble Baroness tested the opinion of the House on her fatal Motion, we on these Benches would have supported the Government, just as we are doing right now in the Commons. The Labour Party has acted, and will always act, in the best interests of our NHS, our public health and our nation.

Of course, we want everyone working in the NHS to take up the vaccine. It is safe and effective, and the Government should be focused on driving up vaccination rates through persuasion, education and support for the vaccine-hesitant, as many noble Lords, particularly those on the Liberal Democrat Benches, have said. We know that omicron is now a clear threat. It is important that the elderly and the vulnerable, and those being cared for in healthcare settings, are protected. Vaccination also protects staff from severe disease, so we will not oppose the Government on this.

Compulsory vaccination for NHS staff is a difficult question—of course it is—as the right reverend Prelate the Bishop of St Albans and my noble friend Lord Hunt explained to the House. We would all much prefer that all front-line NHS staff voluntarily agree to have the vaccine. The latest SAGE advice, however, suggests that omicron may increase the risk of hospital-acquired infections. Vaccination will not eliminate all transmission, but it will reduce the risks and protect both patients and staff in the NHS from severe disease. It may also reduce staff absences caused by Covid.

Of course, there is a precedent for certain NHS staff having to be vaccinated, for example against hepatitis, and given the evidence that being vaccinated reduces the risk of transmission, it is reasonable to ask whether those who are looking after our loved ones should themselves have taken every step possible to reduce the risk that they may pass the virus on to those whom they are caring for, many of whom may be elderly and vulnerable.

However, ahead of any rollout, the Government must ensure that this change does not make the staffing crisis in the NHS any worse and must work with the royal colleges, NHS Providers and the trade unions to agree a framework for how this change is rolled out. The trade unions and royal colleges have been critical of the proposals for compulsory vaccination, ahead of what will be, and is becoming, a very difficult and challenging winter for the NHS because of the implications this could have for staffing. So we welcome the fact that the Government have pushed the date back to April 2022, but we continue to be concerned about the implications that mandatory vaccination for NHS workers will have on staff shortages. We have asked the Government to set out a plan for this.

For the record, on the separate issue of mandatory vaccination for the public, the Prime Minister probably puzzled the whole nation—he certainly puzzled me—when he floated this idea. We are opposed to this—as is the Minister’s boss, I expect. We are opposed to the use of Covid status certification for access to essential services. Forcing the general population to have the vaccine would not only be wrong but impractical. The Government have not brought forward any measures to introduce this, and we would not support any future attempt to do so.

Finally, all of us want to enjoy Christmas safely this year. We all want to protect our NHS, which has been suffering from staff shortages and record waiting lists and has been performing miracles for the last 18 months. Our best defence against all variants of the virus, including omicron, is that we all get vaccinated.

[Lord Kamall (Con)]

My Lords, I thank all noble Lords for taking part in this debate. I apologise to noble Lords for getting the terminology wrong at the beginning. I will make sure that that is corrected in future.

I thank my noble friend Lady Noakes for raising this important issue, and for challenging us and rightly holding the Government to account on many procedural issues. I accept that your Lordships perform an essential role in scrutinising the measures that we have put forward today. That is one of the things that makes me very proud to be a Member of this House. I recognise the strength of feeling of your Lordships for and against what we are proposing and about the procedures thus far. I know that these feelings are sincere and heartfelt.

I now turn to some of the point raised by noble Lords. My noble friends Lady Noakes and Lord Cormack and the noble Baroness, Lady Brinton, raised questions about the red-rated impact assessment from the Regulatory Policy Committee. I hear the concerns of this House, and I acknowledge that, due to the necessity to move as quickly as possible and minimise the risk to those who are vulnerable, we were unable to publish the full impact assessment alongside the regulations being laid. We set out a statement of impacts, and the full impact assessment has now been published on GOV.UK, but I accept the argument made by noble Lords that this is rather late. We have also now published additional consideration of the points raised by the RPC in relation to private businesses.

My noble friend Lady Noakes also asked what the Government have done in response to the criticisms of regulations from the Secondary Legislation Scrutiny Committee. I reassure noble Lords that we have published the updated Explanatory Memorandum to provide additional information on the specific concerns raised. I also accept the criticisms that this could have been more timely. This includes more information on the scientific and clinical rationale for the policy, the exemptions that have been provided for, those not included, and the steps that we have taken to further encourage uptake of vaccinations and to mitigate work- force risks.

The SLSC also raised concerns about the impact assessment on process. We have worked hard and as quickly as possible to finalise the impact assessment that we feel best captures the likely impact of this novel policy in the uncertain circumstances that we are still living through and the need sometimes to react quickly. As my noble friend Lady Noakes rightly said, this impact assessment was laid before the House in advance of this debate.

My noble friend Lady Noakes also raised the question of whether a cost of £270 million is value for money, considering the impact assessment. While it is not possible to model the non-monetised benefits that this policy would have due to the limited data available, the health benefits through reduced infections and deaths among health and care users—as well as the wider community—from the workforce being vaccinated are likely to be large and should be considered when focusing on costs.

A key benefit is the impact of reassurance to patients and care users that they are being looked after by staff who are vaccinated. This avoids the very dangerous situation of people feeling wary of going to the NHS and other health and care providers, which can have dangerous long-term implications regarding health outcomes for our society. This is non-monetised, yet it remains a highly significant factor.

My noble friend Lady Noakes also asked about the workforce impact of this legislative instrument. As of 5 December, 521,000 staff in all care homes, or nearly 96%, have been vaccinated with the first dose, and 511,000 staff, or 94%, are reported to have received a second dose based on responses from 99% of providers. Although NHS workforce figures are dynamic as people join and leave, since the Government consulted on the policy in September, the latest published figures show an overall net increase of NHS staff vaccinated with a first dose of over 55,000.

My noble friend Lady McIntosh also raised valid questions about the impact on the social care workforce. We are not aware of any care homes where VCOD is the primary reason for closure, but we continue to work with our regional assurance team, which works closely with regions across the country to understand the local and regional pressures, and offer support and advice as appropriate.

In social care, we have already put in place a range of measures to help local authorities and providers to address workforce capacity pressures; indeed, I have announced some of those in this House. As in healthcare, there will be a 12-week grace period for workers in the wider social care sector before requirements come into force, which will give all unvaccinated staff time to get their jab. We are focusing every effort on promoting and encouraging vaccine take-up across social care, and £300 million was announced for the workforce on Friday 10 December to support the care sector over winter.

My noble friend Lord Cormack, the noble Lords, Lord Cunningham and Lord Hunt, and several other noble Lords have eloquently raised points about the use of retrospective legislation and emphasised the importance of parliamentary processes. I sympathise with noble Lords who are concerned about some of the procedural aspects of the passage of this legislation.

As my noble friend Lord Cormack rightly said, in unprecedented times such as these it is right that the Government do everything in their power to protect the vulnerable. Vaccination is our best defence against Covid. It reduces the likelihood of infection and therefore helps to break chains of transmission, as the noble Baroness, Lady Thornton, rightly acknowledged. It is safe and effective. The legislation will protect those receiving care in all health and social care settings as well as our valuable health and social care workforce themselves.

I agree with my noble friend on the point about reviewing the use of such legislation. I assure noble Lords that Regulation 5 sets out the requirement for the Secretary of State to carry out an annual review of these regulations, taking into account clinical advice and accessibility and availability of authorised vaccines, and to publish a report setting out the conclusions of this review.

On my noble friend Lord Cormack’s suggestion of an ongoing Joint Committee, I apologise if the response I suggested was inaccurate. I suggest that I discuss it with him so that I can learn from his experience of parliamentary procedures.

The noble Baroness, Lady Tyler, referenced the importance of encouraging the hesitant. I completely agree. We both come from the same part of London; indeed, she informed me that we went to the same school. We come from an incredibly diverse area, and we understand the different concerns and pressures in many of these communities; as noble Lords will recognise, I myself come from one of these communities. But as she will know, the NHS has focused in recent months on a targeted approach to improve uptake in hesitant groups by undertaking campaigns not only based on function, such as at midwifery staff, but directed at different communities, such as ethnic-minority groups and students, as well as using the booster campaign as an opportunity to re-engage staff. I repeat my gratitude to noble Lords across the House who have suggested to me ways that we can address many of these communities, including working with interfaith communities and networks which really understand these communities and have the trust of many individuals.