This week, the cross-party House of Lords Secondary Legislation Scrutiny Committee considered the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 in its weekly report to the House.
The instrument will make it mandatory for anyone working in a care home to be fully vaccinated against coronavirus unless subject to a medical exemption. In its report, the Committee raise a number of concerns about the Regulations and about the associated explanatory material. These include: the lack of clarity and practical detail about how the legislation is to operate; the absence of any assessment of the impact on the care home workforce and care homes in general; the confusing analysis of current vaccination levels in the sector, and the absence of any clear explanation of the policy choices made, making effective scrutiny of the instrument impossible.
The Committee was not satisfied with the department’s response to its concerns. A Minister from the Department of Health and Social Care (DHSC) has, therefore, been invited to give evidence at the next meeting of the Committee to clarify the Department’s long and short term policy plans and to seek detailed information about, for example, how DHSC anticipate care homes to stay open if significant numbers of current staff fail to comply.
Nadhim Zahawi MP, Minister for Business and Industry and Minister for COVID Vaccine Deployment at DHSC, will be giving evidence to the Committee on Tuesday 13 July 2021 at 4pm.
The session will take place virtually and will be available to watch live or on demand at Parliament TV.
The Committee will ask the Minister to address the following points in detail:
- why practical information as to how the legislation will operate is not set out in the instrument itself but is to be included in guidance, which has yet to be published;
- why DHSC’s vaccination programme has not already achieved the required levels of vaccination take up despite care home staff being prioritised, and why there are regional variations;
- what the impact of the policy on the care home workforce is likely to be and whether there is any risk to the viability of care homes as a result of its implementation;
- why the degree and nature of opposition expressed during the consultation was not fully addressed in the Explanatory Memorandum accompanying the instrument; and
- what the Government’s longer-term intentions are given that that the instrument is a permanent measure and that DHSC plan to consult on extending the requirement to other settings, including the NHS, and in relation to other vaccinations.
The Committee concluded that the instrument should be drawn to the special attention of the House on the grounds that the explanatory material laid in support provides insufficient information to gain a clear understanding about the instrument’s policy objective and intended implementation.
Commenting, Baroness Watkins of Tavistock, Committee member, said:
“There are numerous parts of this legislation that provide cause for significant concern about its practical operation and implementation, not least the fact that it applies only to care homes and not to the NHS.
“No one can be unaware of the increased risks to those living in residential care homes from COVID-19 and requiring staff to be fully vaccinated may be the way forward, but the approach of these Regulations, in requiring both doses, is much stronger than the advice offered by those advising the Government and as such the DHSC needs to explain and fully justify this policy choice.”
Also commenting, Lord German, Committee member said:
“We have repeatedly made clear to Departments that it is unacceptable to present legislation for scrutiny without sufficiently, detailed explanatory material.
“Equally we have consistently made clear our view that all key definitions and criteria on which decisions that might affect a person’s welfare or livelihood will be made, should be included in legislation and not in guidance which cannot be subjected to appropriate Parliamentary scrutiny or approval.
“In this case, DHSC has laid this instrument without providing sufficient detail. Further information and the operational guidance are crucial to our understanding of how the policy underlying these Regulations will work – for both individuals and on a sector wide basis and in their absence, effective Parliamentary scrutiny is impossible. We therefore recommend that the debate on the instrument should be deferred until these are made available.”