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

Baroness Wheeler Excerpts

Tuesday 20th July 2021 Lords Chamber

Moved by

[Baroness Wheeler]

At the end to insert “but that this House regrets that the Regulations do not include any information about how the legislation will operate and that this will be left to guidance that will not be available until the end of July; further regrets that a full impact assessment has not been published including analysis of the number of current staff who may not comply and the potential impact on care homes if care home staff become ineligible for work because they are not fully vaccinated or medically exempt; notes that the Secondary Legislation Scrutiny Committee recommended that the debate on the instrument should be deferred until the operational guidance and full impact assessment has been published; and calls on Her Majesty’s Government to provide stronger supporting evidence for permanently requiring staff to have received both doses of the vaccine or, if they have not, to be banned from entering their workplace.”

[Baroness Wheeler (Lab)]

My Lords, I thank the Minister. I am moving my amendment in the light of the deep concerns of the Secondary Legislation Scrutiny Committee in its eighth report. I listened to its 13 July questioning of Nadhim Zahawi, the Vaccine Minister, which was held on the same day that the SI was debated in the Commons. The committee produced a further, 10th report yesterday in response to this. As its eighth report says,

“effective Parliamentary scrutiny is impossible”

by the House because crucial operational guidance and the impact assessment are not available, because none of the practical information about how the guidance is to operate is in the actual legislation before us, and because no reasons have been provided as to why the legislation is not a restricted pandemic measure rather than the permanent measure that the Government are proposing.

The Commons debate was focused on the failure to produce the impact assessment so essential for understanding the full consequences of the legislation. The Health Minister promised that we would have it before our debate today; the Vaccine Minister instead undertook to provide an impact statement, which the committee still had not had at the time of its further report. I am still not clear which piece of the last-minute information promised has been delivered, and the Minister’s speech may have confused me still further about what is and what is not available.

So we have more documentation and more information but not the full and detailed impact assessment that is needed. Overall, we still do not have the answers to the committee’s fundamental questions: why has the vaccination programme not managed to achieve the required levels despite care home staff being prioritised, and why the regional variations? Why has there been no detailed analysis of the impact the policy will have on care home staff and the possible risk to the viability of care homes as a result? We still have had no real analysis of the degree and nature of the opposition to the proposals expressed during the consultation, which could provide helpful guidance on how it is to be addressed.

This SI is muddled, confused and disjointed and, in places, contradictory—across the SI itself, the Explanatory Memorandum and in the Government’s consultation response. This makes even more urgent the publication of clear and detailed guidance which includes not just the practical detail the committee wants to see but the full policy framework. We are assured that the guidance has been produced in consultation with the sector. Can the Minister confirm that this has included care home providers from both large and small group homes, and the staff unions? Is there now a firm publication date, other than just the end of the month, in 11 days’ time, that we have been promised?

Specifically on consultation, the Government’s consultation response document itself admits that 57% of respondents were against the mandatory vaccination of staff. Nadhim Zahawi stressed to the committee how important it was to “carry people with us” and our Minister told the House on 8 July:

“We are in a consultation … it is an honest consultation. We have to take people with us: this is not something that we can impose on people against their will.”—[Official Report, 8/7/21; col. 1454.]


How will the Minister now honour that commitment, and how does he square it with the legislation that the Government have actually produced?

In its report, the committee is particularly scathing about the DHSC’s failure to provide justification for the substantial policy change from using the SAGE advice, mentioned by the Minister, of at least 80% of care home staff needing a first vaccination in order to provide a minimum level of protection against Covid-19 to the requirement for them to have two doses or they will be banned from the workplace and stand to lose their job. Why this shift and what is the detailed evidence which led to such a major policy change?

Despite our deep concern about the health and safety of care home residents, no one doubts the impact that mandatory vaccination will have on care home staff in their jobs, the risks to the viability of care homes and the confusion that will reign, especially in small care homes coping with even worse staff shortages and recruitment problems than they currently have and trying to administer and monitor the trades- person, et cetera, visiting arrangements. The National Care Forum has been particularly vocal on that latter point. We just do not know the scale and extent of the risk in a sector that already has 100,000 unfilled posts.

These are dedicated staff who have been in the front line of care through the pandemic. We need to understand why there is vaccine hesitancy among the minority of staff and build and strengthen the excellent work that has been done with so many to allay fears and assuage concerns arising from cultural or personal health fears.

Can the Minister explain how the Government will ensure that the 16-week grace period is used to intensify and ramp up the take-up campaign and ensure the targeting of regions and areas where there is relatively low take-up? Will it be extended if the impact assessment and implementation plan show that that is needed?

Paragraph 12 of the EM contains only five short points dealing with the serious staff shortages that the care sector will face, starting with the bald understatement that there will be

“the short-term cost of dealing with staff absences”.

Moreover, the EM goes back to the Care Act 2014 provision, which assumes that local authorities have a contingency plan to address workforce shortages and care provider closures. Given the Government’s sweeping council social care funding cuts for the past 10 years, we know just what state councils would be in if they tried to meet that contingency. Last week ADASS reported up to 250,000 vulnerable people across England languishing on social care waiting lists for care assessments or service reviews to check their physical and mental state. Will additional funding be made available to councils to meet the extra costs of staff shortages and turnover?

In conclusion, the House must be reassured that there will be a detailed, coherent, well-resourced and fully thought-through plan for moving forward and finding solutions for carrying and taking people with us—in the words of the Ministers—and addressing the major challenges that implementing the mandatory vaccination of care home staff will present. We must be reassured that the Secondary Legislation Committee’s rightful concerns have been fully addressed. For the record, its 10th report, published yesterday, stresses that, despite the welcome “further information and explanations” from the Government,

“we remain unclear about the justification for some of the policy choices underlying these Regulations and also the basis on which the department struck a balance between public health benefits and the impact on the rights of individuals.”

I look forward to the contributions of other noble Lords and the Minister’s response, and I will wish to test the opinion of the House on this very important issue. I beg to move.

--- Later in debate ---

Again, I thank all noble Lords present for their time today and for their tough but thoughtful remarks. To the noble Baroness, Lady Wheeler, I say that the Government hear her reservations, but I hope the reassurances I have provided will persuade her to withdraw her amendment. I repeat my gratitude to social care workers across the country for the valuable work they do every day. I beg to move.

[Baroness Wheeler (Lab)]

My Lords, I thank the Minister for his response and all noble Lords for their contributions on this very important SI. Of course, I join in the tributes to social care staff across the sector during the pandemic. As I said in moving the amendment, my focus is on the Secondary Legislation Scrutiny Committee’s rightful concerns about the inadequacy of the legislation and the Government’s failure to produce the essential guidance needed or the full impact assessment of the risks to the future of many care homes from the huge disruption that will take place. It is not an SI that is pandemic-restricted, a temporary measure; instead it is permanent legislation, which makes the quality of the SI even more important and reinforces the inadequacy of the legislation we have before us today on such an important issue for care homes, their staff and residents.

My noble friend Lord Hunt and the noble Lord, Lord Lansley, sought an assurance from the Minister that the measures will be temporary and time-limited, but we did not get that assurance. Once again we have an SI that seeks to extend unspecified government powers in legislation without justifying why those powers are needed. In other words, this is, as the Secondary Legislation Scrutiny Committee says,

“guidance exceeding its ancillary function and taking on the role of legislation”.

Noble Lords raised many points and I fear there is just not time now to respond to them. Overall, this SI remains an incoherent, muddled and confused piece of legislation and further last-minute information and reassurances from the Government have not made it any clearer or dealt with the key issues that need to be addressed. I wish to test the opinion of the House.