Amendment to the Motion

Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 - Motion to Approve – in the House of Lords at 6:35 pm on 20th July 2021.

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Baroness Wheeler:

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.”

Photo of Baroness Wheeler Baroness Wheeler Shadow Spokesperson (Health and Social Care), Opposition Deputy Chief Whip (Lords) 6:43 pm, 20th July 2021

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.

Photo of Baroness Tyler of Enfield Baroness Tyler of Enfield Liberal Democrat 6:50 pm, 20th July 2021

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.

I regret that today we are not looking at both NHS and social care workers together. According to the evidence provided to the Secondary Legislation Scrutiny Committee, published only yesterday, take-up of the first dose in the care home workforce stands at 85.6% but with significant variation, as the Minister set out.

It is clear from the two reports of the Secondary Legislation Scrutiny Committee and the debate in the other place on 13 July that this SI is deficient in many respects. The confusing data provided in the Explanatory Memorandum, the lack of an impact assessment—particularly on the workforce implications—and detailed operational guidance not being available until the end of the month are inexcusable. Frankly, I also found it peculiar that the regulations cover a range of tradespeople and other service providers who are unlikely to have close contact with residents. In reality, proper parliamentary scrutiny was pretty much impossible. I totally get that.

I have argued from the outset that far more support was needed to improve vaccine take-up rates among care workers. In early days, slow vaccine take-up was partly due to practical problems, such as vaccinators coming to homes with enough vaccine only for residents, staff being expected to travel to vaccination centres but not given time off or money to get there, and those staff not on duty when vaccinators came missing out. Despite all the efforts made locally to encourage staff to have the vaccine, crucially, the Government should take more proactive steps for carers to be paid for time spent on getting vaccinated, especially if they have to come in when they are not on shift and if they have to take time off because of any short-term reaction to the jab. These things are critically important to low-paid staff, some of whom are on zero-hours contracts.

GPs spending time in care homes talking to staff who are vaccine hesitant has proved highly effective. On top of this, I feel the Government should step in to help with the costs of redeployment and retraining for staff who still refuse to have the vaccine. Without seeing the operational guidance, we do not know whether this will happen.

It is with a heavy heart and after much thought that I am unable to support the amendment in the name of the noble Baroness, Lady Wheeler. I am sympathetic to its intent and broadly support the first three elements, but I cannot support the final element, which says that stronger supporting evidence for requiring staff to be vaccinated is required. The case is clear, and we need to see both more action and more support to ensure that more lives are not lost. However, we need to see the right action.

I plead with the Government, even at this late stage, to think again and to provide the help and support I have outlined above. I also feel that it sends out the wrong message to the public, who will not be following the minutiae of parliamentary procedures and impact assessments and the like. The message will simply be that we do not support the principle of mandatory vaccine for care workers other than those with the medical exemption, which I do, and strongly. This is the right policy but, sadly, the Government have gone about it in entirely the wrong way. It should also apply to NHS workers and it was wrong to exclude them. However, two wrongs emphatically do not make a right.

Photo of Lord Lansley Lord Lansley Conservative

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.

Thirdly, and finally, the point of reassurance I am looking for is that I expected, having discussed this with Ministers, that this statutory instrument would be brought forward with a sunset clause. That is transparently something that should apply during the emergency. It would be reasonable if the Government had said, “This time next year, we should be deciding whether legislation of this kind should be renewed, and a sunset clause would enable that to happen.” I have no confidence that a review, as Regulation 7 says, means that if the review concluded that legislation in this form was not needed, it would not be retained. I am sorry, but I am afraid that from the parliamentary point of view, that is unacceptable. Therefore I am looking for my noble friend to make it absolutely clear that if Ministers conclude next year that the review says that this legislation is no longer needed, they will ensure that it is repealed.

Photo of Lord Campbell-Savours Lord Campbell-Savours Labour 7:00 pm, 20th July 2021

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.

The mask is a signal, an alarm bell and constant reminder. It acts as an amber light and is the only way in which one can signal to the public the danger of infection and the scale of personal risk—the risk from onward transmission to colleagues and friends, and the need to be constantly on the alert. The moment that one drops the requirement for a mask, the public will act defensively by withdrawing from public engagement, whether at the place of work or socially, or they will mistakenly conclude that the problem is past and life is returning to normal, which it is not. That is my fear.

Liberation day is potentially opening the door on a disaster and I cannot understand why those who oppose lockdown but who are calling for an early return to normality cannot support mandatory masking. It helps their case and would facilitate the early return for which they yearn. It secures a wider form of individual freedom. I say to the Government that they need to get real and take the lead. The public are looking to the Government to show the way. Either take a big decision to maintain masking or let the Commons take it on a free vote.

Do not get bogged down in misinterpretation of what constitutes liberty. Your liberty should not be at the cost of my liberty that dropping the guard in care homes will soon expose. If, as an individual citizen, I have to lock myself away and lose my freedom as a consequence of you securing your freedom, we then need arbitration. Care homes, offices, shops, public transport and, indeed, all public places are similarly at risk and threatened by this new approach. I plead with the Government, even at this late stage, for sanity in the policy that they are pursuing. Please do not make this grave mistake.

Photo of Baroness Noakes Baroness Noakes Conservative 7:05 pm, 20th July 2021

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.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Labour 7:11 pm, 20th July 2021

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.

I always work very well with the Registered Nursing Home Association, which says that, at the moment, it does not know how staff will react—how can it? It has been asked to respond to the current draft guidance, and it says that it is very light on, for instance, exactly how the regulator—the CQC—will regulate this regulation. There is an oral statement that the CQC will be proportionate but, as it asks, what does that mean when the requirement is that 100% of staff need to be vaccinated? It also says that the guidance is very light on the issue of what providers and local authorities, as commissioners, should do to support those services that are short of vaccinated staff. Will the Minister give us an assurance that this will be dealt with in the guidance that will be produced in a few days’ time?

The Care Provider Alliance is concerned about the overall impact of losing critical staff. It says that we currently have around 112,000 vacancies. If the Minister is right, and another 40,000 vacancies are added on top of that, how on earth will the sector cope with that? On the point of the noble Lord, Lord Lansley, about the inconsistencies, one must assume that those 40,000 people will find jobs, either in the NHS as care assistants, in the domiciliary care sector or in any of those sectors where they are not required to be vaccinated. How on earth can that be seen as a sensible policy?

I will finish on a completely different subject. I want to raise the case of Christian Scientists. In discussion with the late Lord Weatherill, as a Minister in 2000, I was able to agree a special provision in the Care Standards Act for Christian Scientists. At the time, I said from the Dispatch Box:

“the Government have no intention of preventing or discouraging people from being cared for in accordance with the principles and practices of the Church of Christ, Scientist.”—[Official Report, 28/3/00; col. 740.]

The issue today concerns the two homes that the Christian Scientists run in England. The Church believes that it should be permitted to claim a religious exemption from Covid-19 vaccination. Will the Minister confirm the assurances that I gave to the House from the Dispatch Box 21 years ago? Would his officials meet with the Church to discuss the details?

Photo of Lord Cormack Lord Cormack Conservative 7:17 pm, 20th July 2021

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.

I first brought this to the attention of the House and Ministers because of a great friend of ours who had a mother who has since died. She was 99 when she died and she had a long life and a good life, until towards the end. Our friend used to say to us, “I have to dress up in all manner of accoutrements, I cannot hold my mother’s hand”—and she could not until just a week or two before she died—“and I cannot communicate with my deaf mother properly.” And yet, in the care home in which she was being well looked after, something like one-third of those looking after her most intimate needs were refusing to be vaccinated. That cannot be right.

Of course, I do not believe in compulsory vaccination regardless, but I do believe it is entirely reasonable to say that those in certain positions have an obligation to their vocation and those they are looking after to do so as safely as possible. We know the efficacy of vaccination; it is not perfect, but it gives a high degree of protection. It is therefore entirely reasonable that we ask those fulfilling those tasks to be vaccinated. But it could have been done in a much better way. The policy could and should have been announced at the beginning of the year because the facts have not changed. There would have been ample time then for primary legislation.

I will not, of course, support the amendment to the Motion moved very eloquently by the noble Baroness, Lady Wheeler, although I respect her very much. I shall vote for the Government; I will be voting with relief but, at the same time, with a heavy heart.

Photo of Baroness Foster of Oxton Baroness Foster of Oxton Conservative 7:23 pm, 20th July 2021

My Lords, on my election to the European Parliament more than 20 years ago, it became clear early on that the Commission—or the Executive—wielded great power. There were no business impact assessments, despite our enacting primary legislation. The Commission was not keen to change the status quo, but some of us were, and eventually it gave way—albeit reluctantly. But the battles continued, as it would never admit that it was wrong. As for us, the politicians, a little courage and fortitude to hold your ground is very difficult and it is so much easier just to give in. The EU sought more and more centralising powers and aimed to micromanage every element of our lives, so we left—quite literally. When the vaccine debacle blew up last year, it summed up why we had had to go. We wanted to take back control—well, most of us did, anyway.

I do not underestimate the challenges in making the most difficult decisions that Ministers have had to make. Initially, the British people wholeheartedly supported the actions that were taken. The vaccine was and is the silver bullet, and we all bought into it. However, in my view, the hand of the state is now riding roughshod over the will of the people, still controlling everything we do and how we are allowed to think. If you question, say, a lockdown or a mask, you are accused of wanting to “let rip”—not my words. If you publicly disagree, you are normally too stupid to understand, and if you actually demonstrate then obviously you are an anarchist, which the majority plainly are not. So when Ministers turn up to the Dispatch Box, hiding behind the 2020 emergency powers Act, without a full business impact assessment and wishing to broaden the scope without consultation, that is a step too far.

I am a great supporter of the vaccines but I will not support coercion or anyone being forced to have it to keep their job or feed their family. This debate is now moving away from public health and into the realms of state control. The goalposts move daily. The public and businesses have no idea what is happening next. Contradictions abound. “Ping-gate”, as it is called, is causing chaos. It was always advisory but the public were deliberately kept in the dark. Thousands of workers and children have been self-isolating who are fit and well—500,000 last week. Test and trace is all over the place while, in my view, forcibly testing school children with no symptoms has been an outrage.

And so to holidays. The Minister decides and announces that France is now in amber plus, despite the fact that the beta variant is in Réunion, which is 6,000 miles away. It is a bit like a new “foxtrot” variant emerging in the Falklands. Portugal went back to amber—naturally, post the Champions League—and the Balearics are where all the families go, so they are in amber too, but not if it is a pilot. At concerts in Liverpool three months ago, Royal Ascot, Wimbledon and Wembley there was no distancing and no masks and there have been no spikes so they were not dangerous.

This brings me to SAGE. Some 366 members sit on 10 working groups and committees, 18 of whom remain anonymous. I do not question their integrity but they are unelected, wielding powers that affect our freedoms, movement and association with people. It beats me how they would ever agree—but they do not, really, because different medics and scientists contradict their colleagues on mainstream media every day, normally those appearing to want to wallow in bad news. The behavioural commissions admitted that they had used scare tactics and propaganda to make the public comply—terrified, more like it.

So here we are, 18 months down the line. Ministers and politicians cannot continue to hide behind the science, advisers, focus groups and opinion polls. It is about being accountable, transparent and bold. Can you imagine a Thatcher Government or the likes of my noble and learned friend Lord Clarke and my noble friends Lord Tebbit, Lord Lamont, Lord Lilley and Lord Forsyth, or many others in this House, not rigorously challenging the advice?

In conclusion, no one gave any Government the authority to take away the civil rights that we earned over centuries. We fought and died for them. No Government can demand respect; they have to earn it. We, the people, will take back control. We will get back to normal. So it behoves the Minister, along with his colleagues, to make sure that that happens. It gives me no pleasure to speak out against my own Government but, in my view, to remain silent today would have been remiss of me.

Photo of Baroness Bennett of Manor Castle Baroness Bennett of Manor Castle Green 7:29 pm, 20th July 2021

My Lords, I preface my remarks by noting that I have had two vaccinations, which I got at the earliest opportunity. I recommend that everyone who possibly can do the same.

What we have in these small but extraordinarily significant regulations is a collision between the Government’s social care policy—the one we were told was “clear” and “prepared” two years ago, but which, we have learned this afternoon, is not expected to be available until the autumn—and their Covid policies. These are two areas of the greatest government failure—two areas of confused, confusing, contradictory and clearly disastrous policies, which, when put together in these regulations, produce what could be a disaster as well as a severe procedural tangle. The likely outcome of this policy is a dangerous diminution of care provision for some of the most vulnerable in our society, and great stress, worry and possibly loss of employment for those—mostly low-paid, too often insecurely employed, mostly women, many from minoritised communities—who care for them.

As is all too often the case, I regret that the regret amendment, which I support and which the Green group will back, is only that and not stronger. In this, I may be in rare agreement with the noble Baroness, Lady Noakes. Nearly two years ago, the first vote I took part in in your Lordships’ House—in that strange, archaic procedure of trooping down long corridors, attaching myself to another Peer to check I was heading in the right direction—was on a regret amendment. That Peer, a Lib Dem, kindly explained that it was a vote but it would not change anything, to my considerable disappointment.

We talk a lot about affirmative and negative instruments and wrestle with the Government about converting the latter to the former. But really, if we are not prepared to actually stop something that is as clearly wrong and chaotically mismanaged as this, should we not think about what is askew with our constitutional arrangements —those antique, accidentally accreted structures, which we have managed to demonstrate, through the Covid-19 pandemic, can be quickly modernised when there is the will?

I am sure many noble Lords will have received, as I did, a briefing from Neil Russell, chairman of PJ Care Ltd. I do not know Mr Russell, but I know a cri de coeur when I read one, and that is what his briefing was. He calculates, believably, with figures that broadly reflect the scant information we have from the Government, that 5% of staff may, as a result of this, leave the sector—75,000 staff in a sector that already has 100,000 vacancies. There is clearly a risk that some homes will be able to poach workers from those that cannot keep them.

We have a disastrously financialised care home sector—something that the Financial Times, among other unlikely media outlets, has increasingly been highlighting—with a significant degree of ownership concentrated in the hands of hedge funds that have, on their classic model, loaded them with debt while shipping out massive profits of 12% to 16%, usually off to tax havens. However, that situation could be even further worsened by this measure, with large chains being able to ship staff around while smaller, independent family businesses and the few remaining homes run for public good not profit do not have that option.

Workers in this sector have made their views clear. The UNISON briefing says this measure is

“counterproductive, risks serious staff shortages and could drive the problem underground.”

I am not suggesting doing nothing. I note the article titled “Excess mortality for care home residents during the first 23 weeks of the COVID-19 pandemic in England” in the BMC Medicine journal. Up to 7 August 2020, there were, tragically, nearly 30,000 excess deaths in all care homes: 65% of those were confirmed or suspected Covid-19.

To protect the residents of care homes—as the Government so comprehensively failed to do last year exactly when Germany was applying strict testing and quarantine requirements for residents returning to or entering homes, meaning far fewer deaths—is obviously crucial. But the London School of Hygiene & Tropical Medicine study, to which other noble Lords referred, emphasises

“the importance of COVID-19 vaccination remaining voluntary.”

It says:

“Feeling pressurised had damaging effects, eroding trust and negatively affecting relationships at work, and often exacerbated COVID-19 vaccination concerns and hardened stances on declining vaccination.”

That is not surprising. It is human to think that if you are being forced to do something, there is a reason why that force is necessary.

Many, presented with the evidence and given time to think it over, are likely to come on board—the right way for any medical procedure to be given—with full informed genuine consent. UNISON presents a half-page list of useful voluntary measures that could and should be undertaken. I particularly highlight the need to remove any financial disincentives.

I started with my personal experiences. After both doses, I felt pretty rotten for three or four days and less than perky for a few more. I say that not as a discouragement, but as an honest account. That is the kind of honesty we need to build trust and confidence. It is obviously vastly preferable to catching Covid or passing it on to others, but I am lucky; I have a job where I can mostly work sitting down or, if I suddenly need to bail out of the day, I can. For a low-paid care worker, one struggling to pay the rent and put food on the table and knowing vulnerable people depend on them, those luxuries are not available. We need to make sure people who work in care homes can choose to have these vaccinations, and are not forced into them.

Photo of Lord Wei Lord Wei Conservative 7:35 pm, 20th July 2021

My Lords, I declare an interest as an adviser to Future Planet Capital, a sustainable investment firm that has a stake in Vaccitech, the start-up that licensed the intellectual property and original R&D relating to what is known as the AstraZeneca vaccine, of which I have received two doses. I begin by congratulating the Minister for running the marathon of this past year or so, managing the demands of the pandemic tirelessly and responding swiftly to requests, certainly from me, for information or action. For example, I remember us speaking at one point early in the pandemic about the need to restrict inbound travel from Italy. He and his colleagues at the Foreign Office ultimately took the necessary action.

I recognise the reasons behind this measure, given the high number of fatalities and infections that have taken place in care homes and facilities over the course of the pandemic and the need to ensure that those in them are protected. It is a step in the right direction proactively to seek to ensure that safeguards are in place, given that, last year, we found that the speed of events could, at times, truly overwhelm us and the system. To this end, I echo the Minister’s tribute to staff in the social care system who have tirelessly sacrificed to protect those in their care.

My main point is that, while seeking to vaccinate those working in care homes may make sense in the short term, I would love to see a more systemic approach by the Government to make our health and social care system more resilient generally, rather than reacting to events after the horse has bolted. By doing so, we would be able not only to address the problems we face in our social care system and its funding, but to deal with the long waiting lists we face and ultimately make our economy and society less of a hostage to whatever crisis next turns up to fill our hospitals with patients.

Hospitals and care homes are particularly vulnerable within our wider system right now, because they concentrate a lot of vulnerable people and thus make it easy for the virus to reach them, relatively speaking. Of course, defending them helps, but I would love to see more thinking in government to tackle root causes, such as whether we should be concentrating so many vulnerable people in one place at all and whether more diagnosis, care and treatment could be done at home, remotely, in the community or in smaller facilities. If they have to be in larger units, bubbles could be created within them, so the truly vulnerable are separated from the others. Only in that way, I believe, will we truly eliminate the likelihood of future lockdowns.

However, today we are talking not about this more holistic or comprehensive approach to preventing infection, but about the measure before us. I support it in principle, but the challenge is in the transition. Those who work in care homes today did not sign up to compulsory vaccination when they applied and accepted their job offers, so there is an ethical issue about what we do about those who choose, rightly or wrongly, to object for their own ethical and other reasons. If this were another job, for example in certain units in the Army where vaccination is the expected behaviour upon receiving an offer, this would not be an issue, but we now face having to impose it retrospectively on current workers. More thought needs to be put into how we deal with this dilemma. For example, could the Minister consult the care sector to explore what roles people who have been a front-line carer could play, which would not require vaccination, either remotely or on site, but separated from vulnerable service users? Could steps not be taken to separate different groups of patients in care homes based on the latest clinical science? This would at least reduce the risk of discrimination and the perception of rules being changed arbitrarily and after the event, rather than in a planned way.

Ultimately, we have to accept that we are still fighting this pandemic and that emergency measures like these are needed, but we also need to remember that we are in a democracy and that you cannot unvaccinate someone, so, unlike other measures, this cannot be temporary or reversible. We have to give more thought to what we do to look after those who object to being vaccinated, even if we may disagree with them, rather than casting them and their concerns aside, even if for the very worthy cause of keeping service users healthy, protected and alive. It is a very slippery slope, changing the terms of someone’s job such that they suddenly find themselves forced to do something against their conscience. Let us hope that this and future Governments will do this only very rarely and ensure that they have thought through the implications for everyone, including workers, carefully in the future.

Photo of Baroness Fox of Buckley Baroness Fox of Buckley Non-affiliated 7:40 pm, 20th July 2021

My Lords, there have been some excellent speeches in this debate. I speak the day after the rather misnamed “freedom day” was used by the Prime Minister to herald a “show your papers” society. No doubt the threat of domestic passports—a policy that the Minister for Vaccines has regularly described as discriminatory—is just a ploy to nudge or blackmail young people to get vaccinated or be denied access to nightclubs and public life.

Today I am here to speak against another illiberal measure: mandated vaccines for care workers. That message is, “Get vaccinated or you will be denied access to your job”. Have the Government abandoned using the usual democratic means of persuasion—convincing citizens of the merits of policies—and resorted instead to a lazier, coercive approach, bypassing Parliament while they are at it?

The Government claim that they have tried extensive communications programmes to try to persuade care workers to get jabbed, but how hard have they tried? I think the UNISON suggestions were very helpful. We have heard from the noble Baronesses, Lady Noakes and Lady Bennett, about some other ways we can have targeted persuasion, peer-to-peer reassurance initiatives and so on. I just do not believe that we have tried hard enough.

We all understand that vaccine hesitancy among care workers is a moral dilemma. Ideally, those who work with vulnerable people should not put them in danger, and it would be better if they were immunised. As my mother lived in a care home and my aunt is still a resident, I am sensitive to the idea that, in certain protective environments, following health and safety rules is key to the job. If care workers who have intimate contact with our loved ones refused to wear PPE, for example, we might think them negligent, so I can see both sides. Can the Minister concede that this is an ethical minefield? This legislation is a blunt instrument that does not take into account any nuance at all.

Ministers say that the policy is based on consultation, and they claim that they have listened to the experiences and concerns of providers and people living and working in care homes, but have they really listened? A majority of the consultation respondents did not support mandated vaccines, and 62% of care home residents themselves are unsupportive of the proposal.

The consultation is credited with the extraordinary decision to broaden the scope to include, with limited exemptions, everyone who enters a care home, regardless of their role. Can the Minister explain whether the driver who regularly delivers food should be sacked too? What about the hairdressers and the arts and crafts teachers who went into my mum’s home and who service homes? Will they be banned? Will there be bouncers at the door? Will homes have fewer services?

Then there are the unintended consequences. A recent study by the London School of Hygiene & Tropical Medicine was very clear that the Covid-19 vaccine should remain voluntary for care workers or it would risk negatively affecting relationships at work, hardening stances against the vaccine and undermining the trust in all vaccines and the process of policy-making.

Let me be clear: I am an enthusiastic supporter of vaccination. The 18th-century Edward Jenner is one of my personal heroes. Specifically, Covid vaccines are proof that humanity can deploy scientific ingenuity in managing and overcoming deadly challenges. I have no time for the anti-big-pharma tropes or the rejection of pharmacological interventions—nature does not know best. But I also believe in freedom, specifically freedom of choice and conscience, and surely it is dangerous and regressive to weaponise medical interventions as the price of freedom. Ever since trade unions and radicals forced the repeal of the Contagious Diseases Acts in 1886, the voluntary principle of opting out has worked well. At the very least, overturning that principle in law should require far more scrutiny than a rushed-through statutory instrument given only 90 minutes of debate. I thank the noble Baroness, Lady Wheeler, for forcing us to at least have this debate, but this is not the way it should be done.

The Government insisted that this was necessary, however, to protect vulnerable residents. That might be more convincing if so many vulnerable people had not died of Covid in care homes due to government policies that were not debated. All right, that was an emergency but more recently the welfare of the many of the same vulnerable residents has been jeopardised by draconian restrictions on visits from families. I commend to all noble Lords Midsummer Milestones, a briefing paper from John’s Campaign and supporters of Rights for Residents, to get a visceral sense of the horrors inflicted on those in care homes by the mandatory 14-day isolation rules. The protective ring around care homes really does ring hollow and now the everyday heroes of care homes, who worked their guts out during the pandemic, feel victimised. I have received droves of emails from front-line staff who say that they feel like third-class citizens.

Finally, and ironically, this policy could make care homes less safe in the future. We have already heard that if only 5% of staff refuse the vaccine and are sacked, that will mean tens of thousands of workers leaving a sector that already has severe staff shortages. Does the Minister think homes should operate with dangerously low staffing levels or close down? Many professionals believe that mandated vaccine policy will see them close altogether, with a loss of 50,000 beds. Does the Minister realise that that would mean residents ending up in hospitals, increasing pressure on the NHS? Oh, the irony.

This SI is not serious policy. I will abstain because regret is not strong enough for how I feel. The issue requires proper, nuanced, moral argument in this House—the vulnerable deserve it.

Photo of Baroness Brinton Baroness Brinton Liberal Democrat Lords Spokesperson (Health) 7:47 pm, 20th July 2021

My Lords, I declare my interests as a vice-chair of the All-Party Group on Adult Social Care. Many have spoken from the heart, including my noble friend Lady Tyler, about the principles of ensuring that those who need to be cared for by the care sector are kept safe. From these Benches we unequivocally support that principle but we argue that this SI itself is flawed, as demonstrated by the eighth and 10th reports of the Secondary Legislation Scrutiny Committee. These echo the concerns of cross-party MPs in their debate on this SI last week.

First, it is important to say that a year ago the shockingly high death toll in care homes was because neither residents nor staff were protected by our Government. In the early days, patients with Covid were discharged from hospital into homes. Worse, staff could not get access to proper PPE. I do not take the view of our Prime Minister—as reported by Dominic Cummings—that anyone over 80 is going to die soon anyway. For too many, Covid is a very nasty disease, as he well knows. Shame on him for dismissing the lives of anyone over 80.

I turn to the regulation itself. There is still no impact assessment. The statement of impact, hurriedly published yesterday, does not answer the questions raised in the Commons debate last week and does not provide the evidence for its assertions. Further, it is not clear exactly where the boundaries of the Minister’s powers lie in the regulation and what ability there is, therefore, for mission creep and Henry VIII powers.

One example is the nature of the evidence required for vaccination status. It might be an app. It might be an NHS letter. There is no evidence yet for your Lordships’ House to understand how secure this process would be. Nor are the duties under law of the registered person in a care home or a care company stated. The Secondary Legislation Scrutiny Committee pointed out that it was not certain

“whether that would provide a sufficient defence to a registered person if they needed to contest a sanction for non-compliance.”

The real concern from the evidence given by Ministers and their officials is the actual size of the problem they are trying to solve. SAGE has said that the target for staff vaccinations should be around 80% and, in his opening speech, the Minister said that we are so nearly there with the vaccinations and then quoted the data to confirm that, despite localised variations. The 10th secondary legislation report says:

“It became evident that the DHSC are trying to target this legislation on particular groups of people”.

It is not explained in the Explanatory Memorandum, perhaps because it is those people in deprived areas, younger staff and ethnic minorities.

I reassure the noble Lord, Lord Wei, the noble Baroness, Lady Fox, and others that, for months, the care sector and unions have been working with vaccine-hesitant staff. Back in January, a GP in Newcastle was reported as saying that the single most effective tool to overcome vaccine hesitancy was getting local doctors who staff know to listen to their concerns and answer them. Care providers confirm that this technique is highly effective and, frankly, it is probably why the SAGE targets and more are achievable. Why are the Government not backing this route, which would appear to overturn staff hesitancy more than any other technique, and certainly more than coercion?

There is a long litany on the lack of legislative compliance, commented on by many noble Lords, in addition to the lack of the vital impact assessment. The sector has faced a perfect workforce storm in the last 18 months. Brexit has resulted in large numbers of EU staff leaving the UK. Now, as restrictions are lifted, staff are being wooed by those able to pay premium salaries in hospitality and, in rural areas, agriculture. Social care providers say that there are already over 120,000 vacancies. They know that they will have to sack those who refuse vaccinations and will find it even harder to recruit from an ever decreasing pool. All the Government say is that it will cost the sector £100 million—much better to work with the sector to do this voluntarily.

To workforce issues, we must add the lack of detail in the Explanatory Memorandum about how this proposed system would work. Nor do the SI or the EM have key definitions, again leaving your Lordships’ House in the dark. I add to the comments of others about the inconsistencies of targeting just this sector and not others in the NHS. So, care assistants, plumbers and hairdressers must be vaccinated if they are going into care homes, but not GPs and other doctors—that is extraordinary.

I end by returning to the fundamental issue of whether there is a need for this SI. One of the largest care organisations, Four Seasons Health Care, challenges the Minister’s assertions that care homes are not safe at the moment. In its evidence, it said:

“Since March 5th 2021 we have had 2 covid deaths, during which time 955 residents have passed away. Covid therefore accounts for 0.2% of all our deaths in the past 18 weeks.”

Can the Minister provide the nationwide data on deaths in care homes over the last four months? I believe it matches these figures, so is this SI necessary? The Government admit that SAGE’s target was met, but have said there should be even more vaccinations. Other than the Minister, every speaker tonight has raised problems with these regulations, from all sides of the House. From these Benches, we say that the litany of minor and major issues means that the instrument should not be brought into effect, so we will support the amendment of the noble Baroness, Lady Wheeler.

Photo of Lord Bethell Lord Bethell The Parliamentary Under-Secretary for Health and Social Care 7:53 pm, 20th July 2021

My Lords, I thank noble Lords for their considered questions and huge interest in the instrument laid before us today. Tragically, there have been more than 30,000 deaths recorded among care home residents during this pandemic. We have a duty to do all we can to prevent further suffering. Testing,PPE and infection prevention can go only so far in the mitigation of risk. Ensuring very high levels of vaccination for people living and working in care homes is an essential public health intervention for a serious vaccine-preventable disease.

To answer my noble friend Lord Lansley, the residential care workers covered by these regulations are handling the most vulnerable and elderly in priority list 1, which is why we started with them. Forthcoming consultations will address those who work with priority lists 2 to 4 and, in response to the noble Baroness, Lady Brinton, we may ultimately consult on extending further into the rest of the health and social care workforce. My noble friend Lord Lansley asked about resources. Our focus has been on ensuring that the social care sector has the resources it needs to respond to the pandemic. On 27 June, we announced a further £251 million of adult social care Covid-19 support, through an extension of the infection control and testing fund.

I say to my noble friend Lady Foster, who spoke with such passion on individual choice, that it is worth bearing in mind that many people are not afforded much, if any, choice in who cares for them. We have heard from people with lived experience of care. They want to know that the person who cares for them is vaccinated. I am not instinctively a supporter of mandatory measures. I note my noble friend’s philosophical points on this with great interest. I am even less keen to impose obligations on those people just at the time when the rest of society is opening up around them. But the noble Baroness, Lady Tyler, put it very well. She made a strong case, with moving personal testimony, that it is right that we protect the most vulnerable, even if it would take us further than we would normally go. We simply cannot be in a position where those most in need of care and the highest level of protection from the threat of Covid face a lottery of risk depending on the level of vaccine uptake by those working in their care. My noble friend Lord Cormack has spoken on this on several occasions extremely movingly.

It is not our intention to compel anyone to take the vaccine against their will. We can, and should, make it an essential criterion for working in care homes—to make it an explicit duty of care, providing peace of mind to colleagues, residents and all who visit. Barchester, a large care home provider with over 16,000 staff, already requires staff to be vaccinated. The evidence there gives us real cause to be hopeful, showing that, having taken the time and effort to engage with employees, understand their concerns and encourage them to take up the vaccine, only 0.5% of staff left the workforce. I reassure the noble Baroness, Lady Wheeler, that there have been huge efforts to drive vaccination take-up among care home staff in recent months already. In response to the noble Baroness, Lady Brinton, and others who have spoken on this point, I would welcome the opportunity to update noble Lords on these efforts, in detail, at a suitable briefing.

We have heard the arguments made by the noble Baroness, Lady Tyler, that social care teams need support. That is exactly why vaccination teams have visited care homes to offer vaccinations to both residents and staff, with actions at the national, regional and local level to improve access and address concerns. To answer the concerns of the noble Baroness, Lady Wheeler, on guidance, I reassure the House that we recognise the need to introduce these changes with the utmost care and sensitivity. To the noble Baroness, Lady Brinton, we are working with representatives from the sector to produce detailed operational guidance to support implementation. The noble Baroness, Lady Tyler, is right that the implementation is complex, so we will also be working with Skills for Care, the charity focused on workforce development, to ensure that guidance and best practice are available to support providers and local authorities. I say to the noble Lord, Lord Campbell-Savours, that the wearing of masks in a care home setting is properly governed by regulations. I reassure him that the guidelines are rigorously enforced.

I will address the heartfelt, tough and, if I may say, challenging remarks of noble Lords on the impact statement. I reassure noble Lords that this Minister, this department and this Government fully respect Parliament, and the scrutiny and challenge brought by Parliament and this House. We have published an impact statement. I say to the noble Lord, Lord Hunt, that there is no question of us trying to hide that. But it is very complex. I hope the House will appreciate that there is an enormous amount about this pandemic that is unprecedented. The noble Lord, Lord Hunt, put it well. We cannot be sure how staff will react to this unprecedented measure. That is what drives the financial model, but how do we know how many will leave the sector or take a lateral move to a non-sensitive role?

Much about the vaccine has confounded expectation. Who would have thought a year ago that the take up of the vaccine among the elderly would be in the mid-90% range, or that the take-up among the young would be incredibly encouraging? As I said, one major care home provider has already brought in such a measure and saw a drop-off of less than 1%. That is why the drafting of the impact assessment has been such a struggle. There is no question of hiding or of misleading the House. We are working with partners to generate the most credible calculations possible. We will publish the impact assessment as soon as possible and we are using this time to hammer out the best estimate we can.

To the concerns of the noble Baroness, Lady Wheeler, I say that it is right that we start with care homes, where residents and staff are the top priority, and we intend to consult further on the rest of health and social care. It is also right to acknowledge the important role of the Joint Committee on Statutory Instruments in considering the regulations. I acknowledge fulsomely the vital role of the Secondary Legislation Scrutiny Committee in scrutinising the legislation and holding the Government to account. We are particularly grateful to the committee for giving us the opportunity to explain the policy in further detail in an evidence session last week.

In addition, I put on record that we will be correcting the error regarding the impact assessment in both the Explanatory Memorandum and the Explanatory Note to the regulations. This will make it clear that an impact assessment has not been published, but set out that an impact statement has been laid in Parliament and published, and where it has been made available. I hope the recent publication of the impact statement and the point I have outlined today on the rationale for these draft regulations have helped to address the points raised today by the committee, as well as those raised by the noble Baroness, Lady Wheeler, and other noble Lords who have raised concerns by correspondence.

To my noble friend Lord Lansley, and the question of the noble Lord, Lord Hunt, about a sunset clause, I draw their attention to the annual review clause with the draft regulations which will require the Government to carry out a review one year after coming into force to assess whether they still think it is appropriate. Given the amount of consultation we have done, we think that is a proportionate approach, but I reassure them both that, if the review calls on us to revoke these measures, we will not hesitate.

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.

Photo of Baroness Wheeler Baroness Wheeler Shadow Spokesperson (Health and Social Care), Opposition Deputy Chief Whip (Lords) 8:00 pm, 20th July 2021

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.

Ayes 221, Noes 211.

Division number 7 Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 - Motion to Approve — Amendment to the Motion

Aye: 221 Members of the House of Lords

No: 211 Members of the House of Lords

Ayes: A-Z by last name

Nos: A-Z by last name

Division conducted remotely on Baroness Wheeler’s amendment.

Baroness Wheeler’s amendment agreed.

Motion, as amended, agreed.