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

Lord Kamall Excerpts

Tuesday 14th December 2021 Lords Chamber

Moved by

[Lord Kamall]

That the draft Regulations laid before the House on 9 November be approved.

Relevant document: 21st Report by the Secondary Legislation Scrutiny Committee (special attention drawn to the instrument).

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Kamall) (Con)]

My Lords, I will make a Statement on measures to make sure that our health and care system is as safe as possible in the battle against Covid-19 by making vaccination a condition of deployment for more health and social care settings.

Across the UK, the overwhelming majority of British people have played their part by getting vaccinated against Covid-19. Over 81% of people over the age of 12 have had two doses, a figure that rises to around 91% when you look at NHS staff. The impact of this outstanding vaccination effort is clear. The UK Health Security Agency estimates that at least 127,000 deaths and 24 million infections have been prevented as a result of the Covid-19 vaccination programme. In addition, around 260,000 hospitalisations have been prevented in those aged 45 years and over.

But we still need to do more. Uptake rates vary between different health and care organisations and across the country, and, despite the incredible effort to boost uptake across the country, over 94,000 NHS staff are still unvaccinated. It is important that our health and care staff get jabbed to protect the vulnerable who are in their care and to protect the NHS workforce in the wake of new variants, such as omicron. We made vaccination against Covid-19 a condition of deployment in care homes from 11 November this year. Contrary to initial fears, we are not aware of any care home closures where vaccination as a condition of deployment has been the primary cause.

Today, we are putting before your Lordships the regulations to extend this requirement to health and other social care settings, including NHS hospitals and GP and dental practices, regardless of whether a provider is publicly or privately funded. Anyone working in health or social care activities regulated by the Care Quality Commission will need to be vaccinated against Covid-19 if they are deployed to roles that have direct contact with patients or service users, apart from a few limited exemptions—for example, for medical reasons.

I hear the concerns that have been expressed or raised about the impact of these measures on the workforce, especially during these winter months. For this reason, we are allowing a 12-week grace period to give people the chance to make the positive choice to get protected. We are committing to enforcement of the requirements by 1 April next year, subject to the will of Parliament.

We are also increasing the number and diversity of opportunities to receive the Covid-19 vaccine, using the booster campaign to make the most of walk-ins, pop-ups and other ways to make sure that people are getting the vaccine as easily as possible. The NHS has already written to all providers providing early guidance, setting out what vaccination as a condition of deployment means for the system, as well as advising on next steps to boost uptake and help to ensure smooth implementation. After consulting on the policy in September, we have seen a net increase of over 55,000 NHS staff vaccinated with a first dose.

These steps complement key interventions that we have made to support services, including bolstering capacity across urgent and emergency care and the wider NHS, including with a £250 million investment in general practice, £55 million for the ambulance service and £75 million for NHS 111, and publishing an adult social care winter plan, including £388 million to support infection prevention control and £162.5 million for workforce recruitment and retention. In addition, we have invested £478 million for support services, rehabilitation and reablement care following discharge from hospital, and we are ensuring that health and social care services are joined up.

Although the Government believe that these measures are a proportionate way of protecting those at greatest risk, we recognise that some noble Lords have asked whether we should or would extend these measures even further. So let me state clearly that although we have seen plans for universal mandatory vaccinations in some countries in Europe, we do not support them here. The Government have no intention of extending condition of deployment to other workforces or introducing mandatory vaccination more widely.

At this point, I would like to address head on some of the concerns your Lordships may have regarding concerns raised by the Regulatory Policy Committee and the Secondary Legislation Scrutiny Committee about these regulations. I sympathise with noble Lords who are concerned with some of the procedural aspects of the passage of this legislation, but in unprecedented times such as these it is right that the Government do everything in their power to protect the vulnerable.

The Government have responded to the concerns raised by the Regulatory Policy Committee and the Secondary Legislation Scrutiny Committee as quickly as possible and have provided further information to your Lordships, including on the actions on workforce capacity—as I have set out—and the steps we are taking in collaboration with the NHS and adult social care sector to mitigate the risks to small business, which is of particular concern to the Regulatory Policy Committee. An updated Explanatory Memorandum has been provided to Parliament, and the department’s consideration of the RPC’s concerns has been published on the government website.

The updated Explanatory Memorandum provides further information on the scientific and clinical rationale for the policy, the exemptions that have been provided and those not provided, and the steps we have taken to further encourage uptake of vaccinations and to mitigate workforce issues. The Secretary of State also wrote to all Peers on 10 December to set this out.

In these difficult times, we have seen the very best of those who work in health and care. We have seen care, compassion and conscience. Noble Lords across the House continue to pay tribute to the heroic responses across the health and care sectors. Today’s Motion is about protecting not only health and care staff but the patients in their care. By protecting patients and staff, we protect the NHS from being overwhelmed. I commend this Statement to the House.

[Baroness Chisholm of Owlpen (Con)]

My Lords, I just want to make a quick adjustment: we are of course debating the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 2) Regulations 2021.

Amendment to the Motion

--- Later in debate ---

[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.