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

Motion to Approve

That the draft Regulations laid before the House on 22 June be approved.

My Lords, more than ever, the social care workforce demonstrates unwavering compassion and dedication for our elderly and most vulnerable. We are proud of and immensely grateful to them. I pay huge tribute to their tireless work during this pandemic to protect people who are most vulnerable to Covid-19, including their incredible efforts to support the vaccination rollout across the sector, to bring in infection controls and to provide pastoral care during this most heartbreakingly lonely episode.

To date, 1.2 million social care workers in England have been vaccinated. This is an incredible achievement and an important step for staff to protect themselves, their loved ones and the people they care for from becoming seriously ill or potentially dying from Covid-19. However, there is a tipping point here. It is a tipping point of safety when it comes to care homes, where many of our most vulnerable priority-list loved ones live. We are not quite there yet.

SAGE recommends that 80% of staff and 90% of residents should have received their first dose of the vaccine to provide a minimum level of protection against coronavirus outbreaks. We have all been witness to the incredible pace at which vaccination programmes have been rolled out. I am delighted to report to the House that 96% of those living in older-age care homes have received their first dose and 93% their second dose. Meanwhile, 93% of those living in younger-age care homes have received their first dose and 88% their second dose.

In many places, take-up among care home staff is also impressive. Some 87% of those working in older-age care homes have had their first dose and 76% their second dose. This compares with 83% and 73% respectively for staff working in younger-age care homes. However, there is also significant variation at a regional and a local level. Only 65% of older care homes in England are meeting SAGE’s stipulated safety tipping point in the latest published data. This drops to an even more worrying 44% in the London area.

As a result, despite very high levels of vaccination, testing, PPE and other infection control measures, we are still seeing outbreaks in care homes, where residents are incredibly vulnerable to the serious effects of this terrible disease. Since January this year, care homes have tested staff more than 21 million times and made proper use of 1.2 billion items of PPE. Yet nearly 14,000 care home residents have died because of the virus this year alone.

This winter will be challenging and, in the face of rising case rates across the country, we need to make sure that we have done everything we can to prepare and to minimise the risks for residents in care homes and the incredible staff who care for them.

This is the context. It makes this legislation critical. By November this year—and subject to the usual parliamentary approval and, we hope, a helpful and practical 16-week grace period—anyone entering a CQC-registered care home in England must be vaccinated, unless a valid exemption applies. This will apply to all care home workers, agency staff and volunteers. Visiting healthcare workers, tradespeople, hairdressers and CQC inspectors will also be obliged to follow the new requirement.

Moved by

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.”

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.

My Lords, this is an extremely tricky issue, and I find myself deeply conflicted. On the one hand, I strongly support the principle of mandatory vaccination of care home workers, for reasons I will explain. On the other hand, I think the Government have gone about it in entirely the wrong way. As so often in this pandemic, we are trying to reconcile forces that pull in entirely opposite directions—in this case, the public health need to safeguard some of our most vulnerable citizens, which in my view is overwhelming, pitched against the individual liberties of care home workers.

For me this is deeply personal. My mother is a long-term care home resident and in the first wave of the pandemic, when hospital patients were being transferred to the home without proper testing, there was a significant number of deaths. I need hardly say that this was deeply distressing for my whole family and, I know, many other families up and down the country.

Care homes have a duty of care to their residents, which in my view they are not fulfilling if they do not require care workers who perform close-contact and intimate tasks to be fully vaccinated, unless they have a medical exemption. In my view, anything else would be negligent. Let us never forget the human tragedy this cruel pandemic has wreaked in care homes. Some 20,000 care home residents died in the first wave, accounting for 44% of all excess deaths for that period in England and Wales. We surely owe it to all who died and their families to ensure that care home residents receive every possible protection at a time when cases are rising again with a far more transmissible variant. Today we learn from the latest ONS figures that care home deaths are on the rise too.

Months ago, Professor Chris Whitty expressed the view that front-line health and care workers have what he termed a “professional responsibility” to get vaccinated, to reduce the risk that Covid poses to patients and care home residents. It seems odd that the mandatory hepatitis vaccination for some front-line health workers is hardly, if ever, queried.

My Lords, I am very glad to follow the noble Baroness, Lady Tyler of Enfield. Like her, I would not be in a position to be able to support the amendment to the Motion. I support this statutory instrument but, I have to say, with some reluctance—and it is not simply because of the procedural issues. It is a step we should take only in a health emergency. I will come back to that point before I conclude.

I am grateful to my noble friend, who explained the SI with his customary clarity, but we are especially grateful to the Secondary Legislation Scrutiny Committee, whose painstaking work has illustrated many of the issues, including those I want briefly to refer to. I am looking for my noble friend in responding to this debate to give one explanation and two sets of assurances.

The explanation is because I simply do not understand why care homes have been brought forward and legislated for in this way where other settings have not been. I cannot understand the difference between a care worker going into a domiciliary care setting with a vulnerable person and how that differs from a care worker in a residential care home. I cannot understand how the vaccination of a residential care worker is different from the vaccination of a healthcare worker in a geriatric ward in a hospital. Why are these things different? If the Government are going to move forward on this, they should have moved forward on all these settings together and should have had the clear argument presented rather than what appears to be a piecemeal argument. I hope that my noble friend will explain why the Government have proceeded in this piecemeal fashion with a further consultation to come, which may lead to different conclusions even at the margin for other settings and for care homes, which will create unnecessary confusion.

Secondly, I am looking for an assurance about support for the care home sector. My noble friend said that the statement of impact—which I found on the government website but of course not published alongside the legislation—says that the Government’s central estimate is 40,000 potential losses of staff. This is in a sector where Skills for Care reported 112,000 staff vacancies in the autumn of last year and where we know that there is a dependence on workers from overseas, some of whom have gone back home and not returned. The sector needs help. The impact statement says that recruitment on average costs £2,500, which is £100 million for the sector in consequence of this measure. That is before you begin to look for the other support it needs from the healthcare system, its general practice colleagues, and in dealing with the insurance sector and others. I hope my noble friend will be able to say that the Government will add significantly—at least that £100 million—to the infection control fund, which is £1.1 billion, and do so in close consultation with the care home sector to give it the support that it needs.

My Lords, I greatly welcome this debate and the tabling by my noble friend of her very relevant amendment. According to the Explanatory Note, the regulations provide that for,

“the purposes of preventing, detecting and controlling the spread of infection, registered persons … must secure that a person … does not enter the premises used by A unless B meets specific requirements”,

which are then set out. However, the list of requirements excludes the crucial requirement that is now the subject of a national debate: the wearing of masks. The regulations appear to put in place a non-statutory framework governing mask use, thereby relying on a voluntary approach under guidance notes. Guidance notes will not work. They will be widely ignored, perhaps even in care homes to some extent.

In anticipation of liberation day, there already has been widespread non-compliance in wider society. We are ignoring at our peril the experience of countries worldwide where the real benefit of mandatory masking under properly enforced regimes has been at the heart of policy, not only in care homes but in wider social interactions. Masking crucially helps to alert the public to the real dangers of the virus.

If, as I suspect, and for reasons that I understand, the Government remain torn, they should put the wider question of masking in its broader application to the House of Commons. Let MPs take that decision this week before the House rises. Let them face up to their responsibilities. They will have to listen to a divided public while arguing their case. The whole issue could then be decided on a free vote. It is not unprecedented. An informed decision on masking cannot be ducked and if the Government themselves are uneasy over the decision, Parliament, where I believe there is majority support, must take it.

Mandatory masking is absolutely crucial in the building of public confidence in the Government’s wider Covid relaxation strategy. I am convinced that the alternative is increased Covid hospitalisation as a more liberalised regime leads inevitably to disease spread, cancelled operations in the NHS, a lack of confidence in public protection leading to increased workplace absences, further damage to the high street with the possibility of renewed restrictions, public anger over government vacillation, further deterioration in the public finances and a prolonged epidemic.

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.

My Lords, I will be supporting my noble friend’s amendment; I am very glad that she has put it before us. Like the noble Baroness, Lady Noakes, and other noble Lords, I cannot help but feel that this regulation is not the way to deal with such an important and sensitive subject. Even at this late stage, I appeal to the Minister to allow it to be delayed until the autumn, when the full impact assessment and the guidelines are made available. This is not the way to treat Parliament.

This is a challenging issue, and I am very mindful of the opinion of Big Brother Watch, which I respect. It warned that mandatory vaccination is

“crossing … the Rubicon on medical choice, medical confidentiality and bodily autonomy …vital components of the right to privacy.”

Equally, I have been alarmed at the unwillingness of some staff to have the vaccination. In these uncertain times, I accept that action normally considered as unacceptably undermining our personal liberties may have to be taken in the wider interest.

In the end, I come down in favour of the principle of the regulations, but I am dismayed by the way in which the Government have handled them. We have already heard the criticism of the Secondary Legislation Scrutiny Committee. It is an absolute disgrace that the Government have not produced either the operational guidance—even though they say it will be produced within a few days—or the impact assessment, which is required to be submitted to the Regulatory Policy Committee for independent scrutiny and presented to Parliament. Why has this not been done? To expect us to agree to the incursion on personal liberty, in the way that these regulations provide for, is very bad indeed.

My guess is that the Government are very uncomfortable with what a proper RIA would say. Clearly, what has happened is that, once again, the poor old residential care sector has been picked upon and could be devastated as a result of these regulations. The Government are embarrassed by this, and therefore do not want Parliament to know the full facts. If the Minister says it is because officials have been working very hard and are not ready, I just do not believe it. His department has so much form in treating this House with contempt that I am afraid I cannot give it the benefit of the doubt on this. This is a deliberate attempt to hide from Parliament the consequences of a hugely important policy decision. It will not be forgotten. Like the noble Lord, Lord Lansley, I would like an assurance that this will last only for a minimum period of time.

My Lords, I have been calling for the vaccination of care home workers for months and months. I believe that, when we have had to have so many restrictions imposed upon us—on the number of people we could have in our own homes, where we could go and what we could do—it is entirely reasonable to say that those who care for the most vulnerable members of society should be obliged to be vaccinated. I think that that is reasonable. The noble Baroness, Lady Tyler, indicated that that was the line that she took.

However, I have been doing this for month after month after month, going back to the very beginning of this year, if not before. I regret infinitely the way in which there has been prevarication. It seems to me so obvious that, if this had been said at the beginning of the year, proper legislation could have been produced.

My noble friend Lady Noakes talked about the contempt with which Parliament has been treated. I do not think that anyone since Cromwell has treated Parliament with greater contempt, over a whole range of issues. We are a parliamentary democracy, and the Government are answerable and accountable to Parliament. We have been through an extraordinary series of emergencies, when it has been understandable that certain measures had to be taken, but there has been far too much retrospective legislation, far too much secondary legislation and far too many Henry VIII clauses. I beg the Government and my noble friend Lord Bethell—I am sorry that he is not here; he cannot be with us because he is in isolation. He has not treated your Lordships’ House with contempt—far from it—but there has been an arrogance that has not been attractive.

It is right that we proceed, but it would have been very much better to have primary rather than secondary legislation. Lessons should be learned. We have to come back—the noble Baroness, Lady Tyler, made this point in her speech—to the fact that a very large percentage of those who perished from Covid were in care homes. There were all sorts of factors such as the release of people from hospital to care homes. But the plain, blunt fact is that over one-third—probably 40%—of those who make up the frightening statistic of those who have died were in care homes. Those in care homes are, by very definition, not very mobile, particularly the elderly in care homes. They are fixed.