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

Lord Duncan of Springbank Excerpts

Tuesday 14th December 2021 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, a great deal of concern about procedure has been expressed from all sides of your Lordships’ House. I have nothing to add on that, except to say that I share those concerns.

I have two specific questions for the Minister. The first builds on the comments of the right reverend Prelate the Bishop of St Albans, who talked about how we have to win the argument on vaccination and the concern about unintended consequences and potentially discriminatory outcomes. When I look at the impact assessment, it is focused entirely on the care and health sectors. For example, paragraph 126 refers to

“the possibility of negative behaviour change resulting from the policy. For example, a German experiment found that vaccination requirements increased anger among individuals with existing negative vaccination attitudes and led to a decrease in uptake”.

As far as I can see, there does not appear to be in this impact assessment any consideration of impacts outside the health and care sectors. If we are creating this process, it will have impacts right across society, not just in the health and care sectors. We are talking about systems thinking here: not just what making a decision in the health and care sectors means for the health and care sectors, but what it means across the whole of society. What are the negative impacts of people in general deciding not to get vaccinated because of this?

The second point I draw from a very useful briefing from the Homecare Association. I do not think anyone else has asked this question, and I feel I should ask it for the Homecare Association. It said that it is extremely concerned about the intention to legislate rather than persuade. It is asking about a contingency plan if, indeed, the results are towards the worst end of the impact assessment. What are the Government doing to plan for this situation, when we have already had 1.5 million hours of commissioned care not delivered between August and October because of lack of availability? If this gets much worse, what plans do the Government have to fill the gaps?

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

My Lords, there will be one winder taking part remotely, the noble Baroness, Lady Brinton. I hope we can go to her now.

[Baroness Brinton (LD) [V]]

My Lords, I declare my interest as vice-chair of the All-Party Parliamentary Group on Coronavirus and a vice-chair of the All-Party Parliamentary Group on Adult Social Care. The Minister started and ended his contribution to the House by saying this was a statement. I suspect the Minister is in no doubt now that this is actually a statutory instrument. I thank the noble Baroness, Lady Thornton, and also the noble Baroness, Lady Noakes, for her Motion, given the clear failings of the presentation of this statutory instrument. The Minister needs to hear the concern from every part of your Lordships’ House this afternoon, and it very gracious of the noble Baroness, Lady Noakes, to say that she will not press her fatal Motion, for all the reasons cited by the noble Lord, Lord Hunt.

The 21st report of the Secondary Legislation Scrutiny Committee states at paragraph 10:

“An EM … should be a freestanding, comprehensive explanation, and it should not be necessary to conduct extensive research into other documents in order to achieve an understanding of what an instrument does: we regard this EM as an example of poor practice.”


From these Benches we thank the Secondary Legislation Scrutiny Committee, including the noble Lord, Lord Cunningham, whose presence will be missed when he leaves it, for going further and collating as much other information as it could for your Lordships’ House. The committee is excoriating about the failures of the legislation, the Explanatory Memorandum and the guidance, including unclear definitions in law.

For example, what does “vaccinated to a complete course” mean? At what point does the booster jab become compulsory? Will whoever is checking check that the severely clinically extremely vulnerable have had their four doses instead of three? That would require access to very personal staff health information. There is no definition and there are no practical suggestions. The use of the term “registered person” is set out in the Health and Social Care Act 2008, but there is no explanation of who, in reality, in a hospital, has responsibility for checking that staff have had their vaccines.

This SI speaks of people with face-to-face clinical and non-clinical ancillary contact with patients and those who are directly involved in patient care having to have the vaccination. The guidance, however, is still not published to define what is and is not in scope. Does it include clerks on the wards? What about catering staff bringing meals? Does “not being vaccinated” mean that you have to stay a certain number of feet away from patients?

The Secondary Legislation Committee report also points out that non-face-to-face staff are exempt—but they can still mix with front-line staff at other times. Does the Minister think that Covid can tell the difference and that the virus will not transmit from an exempted co-worker to a front-line member of staff in the cafeteria? We know that omicron is bypassing the vaccinated, even if it is bringing possibly less serious disease—although we are waiting to see the evidence.

The government consultation document published on 10 December on vaccination says that more than 1.2 million social care workers in England have now taken up the vaccination. As of 19 August, vaccination take-up was around 87% of staff in younger-adult care homes; 81% of domiciliary care staff; and 75% of staff in other settings. In London, obviously, this is lower, as we all know. This data, however, directly contradicts the Explanatory Memorandum, which says that only 65% of care homes are meeting the 80% staff rate; so they are not even co-ordinating on their own data. The Government’s own data has shown that there has been a 3% reduction in social care staff since March. Some—not all—will have left because of compulsory vaccines. They are not just leaving the care home; they are leaving the profession. They are going into retail or hospitality, and we know that people, having left, often do not return.

I entirely agree with my noble friends Lady Tyler and Lady Walmsley that targeted help and support has worked with a large number of social care staff, as the Government’s own figures in the 10 December document demonstrate. The evidence is that the most effective way of changing the minds of vaccine-hesitant people is to give them a chance to sit down with a local doctor and their own community leaders, ask questions in their own time and listen to people that they trust. The problem with compulsion, especially short-notice compulsion, is that it removes the opportunity to take that time to listen, think, discuss and be reassured. Worse, as we are moving into another wave of the pandemic, doctors will not have the time to do this, whether it is with other NHS workers or with more social care staff.

Even more than that, the Government undermine their own arguments for urgency. At paragraphs 25 and 26, the Secondary Legislation Committee report points out that, in discussing making the flu vaccine compulsory, the department said that

“the government has considered the concerns raised in relation to introducing flu vaccination requirements. The flu programme runs between October and March, with most flu vaccinations happening October through January. Due to the need to balance this with the time necessary for health and social care to implement the regulations, the government has decided not to introduce vaccination requirements for flu at this time. The government will keep this under review following this winter and ahead of winter 2022-23.”

It seems extraordinary that, while this precedent has been set to delay one type of compulsory vaccination due to the time of year and the extreme pressures on the healthcare and social systems, the Government are insisting on doing it for another. The left hand does not know what the right hand is doing.