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

Baroness Noakes Excerpts

Tuesday 14th December 2021 Lords Chamber

Moved by

[Baroness Noakes]

Leave out from “that” to the end and insert “this House declines to approve the draft Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No. 2) Regulations 2021 because Her Majesty’s Government have not published a full impact assessment”.

[Baroness Noakes (Con)]

My Lords, I thank my noble friend the Minister for introducing this order with his customary clarity. I tabled my amendment because when I read the excellent report of your Lordships’ Secondary Legislation Committee, I saw red. This was yet another set of regulations from the Department of Health and Social Care that came without an impact assessment. My amendment asks the House to decline to approve the regulations as a full impact assessment has not been published. I was informed by the Printed Paper Office yesterday afternoon that the impact assessment was in fact laid on Friday, which I had discovered online over the weekend. So, to an extent my amendment has been overtaken by events and I do not expect to press it to a Division. The Department of Health and Social Care is, however, still seriously in breach of its obligations in relation to impact assessments with this late document, and I shall move my amendment so that the issues can be debated.

The department published a so-called impact statement alongside these regulations, but noble Lords should be in no doubt that there is a big difference between an impact assessment and an impact statement. The impact statement amounted to nine pages and was in a rather large font size. The impact assessment amounts to 69 pages in a normal font size. The arrival of this impact statement so late is all the more shocking because it has been rated red and not fit for purpose by the Regulatory Policy Committee, which carries out the independent reviews of impact statements required by the Small Business, Enterprise and Employment Act 2015. It is a very unusual for the RPC to rate statements not fit for purpose, so this is a serious issue.

While my instincts are against the compulsion these regulations introduce, I was prepared to be persuaded if a good case had been made. In the absence of the analysis and evaluation accompanying the regulations, the case was not made. The very late impact assessment, together with the RPC’s views, raise many questions that cannot simply be answered by a couple of sentences from my noble friend the Minister at the Dispatch Box or, indeed, by revised papers put on websites late in the day. It suits the Government to operate in this way. They have become accustomed to making sweeping changes to our lives without meaningful challenge from Parliament.

The 21st report of the Secondary Legislation Committee is excoriating in its criticism of the regulations and the quality of the supporting material accompanying them. The noble Baroness, Lady Thornton, had tabled a regret Motion that captured many of these criticisms, and I am sorry she has pulled it, doubtless for political reasons. I agreed with it and would have supported it had she chosen to divide the House. My amendment focuses on impact assessments because this strikes at the heart of effective policy-making and, importantly, effective parliamentary oversight. On effective policy-making, it is a clear requirement on the Government that the development of policy should be subject to rigorous analysis and evaluation of options, set out in a Green Book. There is little evidence that this has taken place.

Secondly, the Government’s better regulation framework builds on that foundation and requires impact assessments to be prepared at the consultation phase for policy development, as well as at the final policy implementation stage—the stage we are now at. Regulatory impact statements at the final stage have to be independently appraised by the Regulatory Policy Committee, but it is voluntary at the earlier consultation stage. It came as no surprise to find that when the DHSC issued its consultation on this policy in September, it did not include an impact assessment, let alone have it independently assessed.

All this raises serious questions about the quality of analysis underpinning the Government’s policy formulation, which has been a concern throughout the pandemic. Some on these Benches have regularly challenged the lack of impact assessments for the policies pursued under the Covid banner. Regulatory impact assessments are required in order to evaluate burdens on business, primarily, but the bigger issue is whether the Government have considered the broader costs and benefits of their Covid policies. We have been particularly concerned about the lack of analysis of the non-Covid health harms as well as the non-health harms—in particular, to education and to the economy. Certainly, there has been little government analysis of this in the public domain.

The Government’s line has always been that they are not required to produce regulatory impact assessments for policies expected to last less than one year—an excuse not available for these regulations. That is technically correct, but it entirely misses the point, which is that good policy formulation requires a comprehensive analysis of costs and benefits, however long the policy is expected to last, and that is what the Green Book requires.

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I commend these regulations to the House.

[Baroness Noakes (Con)]

My Lords, I thank all noble Lords who supported the points I made about needing better information for parliamentary scrutiny of government policy. This was very ably led by my noble friend Lord Cormack who put it very well when he talked about treating Parliament with contempt. That was echoed by a number of noble Lords. It was very good to hear from the noble Lord, Lord Cunningham, from his perspective on the Secondary Legislation Scrutiny Committee, which has served this House very well, particularly in relation to this order.

I am sorry that the noble Lord, Lord Rooker, questioned my sincerity in bringing these points to the House. I am a mere Back-Bencher; I was trying to make the kind of points that Back-Benchers should be making about effective parliamentary scrutiny. I cannot be held accountable for what the Government do in bringing legislation in the future, so I would encourage him not to try to use my speech as a checklist against future primary legislation brought to your Lordships’ House. This will not be my fault.

I am grateful for what my noble friend the Minister said. He accepted my criticisms with good grace and did not seek to defend the indefensible. As to the future, I would have hoped to have something a little more encouraging than that he hoped they would do better in the future and that he would take the matters back to his department. I hope he will take the matters raised back to his department but with a stern resolve to get them dealt with better next time. With that, I beg leave to withdraw my amendment.

Amendment withdrawn.