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

Baroness Noakes Excerpts

Tuesday 20th July 2021 Lords Chamber

[Baroness Noakes (Con)]

My Lords, whether or not noble Lords agree with the intent behind this statutory instrument, they ought to share my deep sense of outrage at how Parliament is being treated.

We have become inured to the cavalier way in which the Department of Health and Social Care uses secondary legislation to interfere with citizens’ lives but this instrument reaches a new low. For the first time since the Victorian era, vaccination will be mandated by law. I believe that it is wholly inappropriate to use unamendable secondary legislation to cross that line. It raises deep issues of civil liberties and human rights and should have been fully scrutinised in primary legislation. Furthermore, the department’s contempt for Parliament is demonstrated by the lack of accompanying operational detail or an impact assessment, as has been pointed out.

The department has doggedly resisted releasing full impact assessments on Covid instruments. Whenever possible, it has hidden behind the small print of Cabinet Office rules on impact assessments to claim that they are not required. The small print does not cover today’s statutory instrument so the department has instead resorted to—there is no easy way to say this—lying. The Explanatory Note and the Explanatory Memorandum state that a full impact assessment has been prepared and is available. The Minister in the other place admitted last week that it has not even been prepared. As we heard last night, a flimsy document called an impact statement appeared on the website, but this falls far short of an impact assessment, and an impact assessment published after Parliament has considered an instrument does nothing to contribute to parliamentary scrutiny.

The department has rightly drawn the condemnation of the Secondary Legislation Scrutiny Committee of your Lordships’ House, which recommended in its eighth report on the instrument that this consideration be delayed until both the detailed impact assessment and operational guidance were available. Yesterday’s 10th report emphasised the many questions left unanswered. The department has cocked a snook at Parliament by ramming this instrument through now.

Allowing proper parliamentary debate in September would do nothing to delay the implementation of the policy. It already has a 16-week implementation gap built into it. The consultation showed that more people opposed the policy than supported it. UNISON does not support it. The Government cannot claim that they are acting in uncontroversial territory. I suspect that the real truth is that this policy would never survive the scrutiny that a fully informed debate would bring. It is also far from clear that the policy solution is the right one. As the Minister pointed out, 96% of residents of older-age care homes and 92% in working-age care homes have had a first vaccination dose, with the figures for staff being 86% and 83%, which is well in excess of the SAGE guidelines of 90% for residents and 80% for staff, so in aggregate there is no problem.

The Minister has said that only 65% of older-age care homes were meeting that guideline, falling to 44% in London, although he gave no figures for the two-thirds of care homes in that sector that cater for working-age adults. These limited data do not provide support for the intrusive rules in these regulations; rather, they speak to the need for more targeted interventions on a local basis and with smaller care homes to level them up to the very great achievements that have been made so far at national level.

None of this is explored, because we have no impact assessment, in particular in relation to care home staffing. Last night’s impact statement came up with a central estimate of a one-off cost of £100 million in respect of the recruitment of 40,000 staff who would be lost because of the instrument, but I do not think that that estimate will stand up to much scrutiny.

If some staff decide not to be vaccinated—as is entirely their right to do—they will be forced out of employment in the sector, but the Government have no evidence presented that there are people willing and able to come into the sector to replace that large number of people going out of it. There is no excess capacity in the market for care home staff, as many care home operators will testify. The impact of the loss of care home capacity is simply not addressed in the impact statement, along with a host of other consequential issues.

While I agree with the amendment from the noble Baroness, Lady Wheeler, I shall not be voting for it this evening, because it is a mere gesture and it does not defend the role of Parliament; but neither shall I vote for the Government.