The Department of Health and Social Care (DHSC) was accused yesterday of being “seriously in breach of its obligations” by a member of the House of Lords Baroness Noakes. This was in relation to impact assessment, or lack thereof, regarding the vote carried out in Parliament yesterday making vaccinations mandatory for NHS staff in England.

The DHSC is the UK government department led by the Secretary of State for Health and Social Care, Sajid Javid. The department oversees the NHS and is responsible for government policy on health and adult social care matters.

Back on November the 9^th 2021, Javid said that all staff working face to face in the NHS and social care will have to be vaccinated. This was at a time when analysis conducted by NHS Providers, found that around 103,000 NHS workers were unvaccinated and a massive 93% of NHS trust healthcare staff had received one dose of the covid jab and 90% (1 307 832) were double dosed (figures do not include agency workers or NHS bank staff).

Javid though was looking to jab all staff and said that an impact assessment of the policy would be published before parliament voted on the change. An IA should include both detailed considerations of the costs and benefits of the policy chosen allowing it to be compared with rejected alternative solutions according to the Secondary Legislation Scrutiny Committee (SLSC), arguably this may have altered the voting.

The Impact Assessment that was made available, however, was perhaps not important enough to Javid and the DHSC, as it has been revealed it was deemed “not fit for purpose” and that it was rated red by the Regulatory Policy Committee (RPC) according to Baroness Noakes from the House of Lords.

 

The Impact Assessment

The RPC carries out the independent reviews of impact statements required by the Small Business, Enterprise, and Employment Act 2015, and apparently, it is very unusual for the RPC to rate statements not fit for purpose (source).

According to Baroness Noakes, the DHSC published a so-called impact statement which amounted to only nine pages in a large font size, whereas normally an impact assessment amounts to 69 pages in normal font size.

Not only that, but it was so late, only being “laid” on Friday the 10^th of December, and the member was only able to access it over the weekend after discovering it online. Clearly not a lot of time to scrutinise and formulate an argument.

Therefore, the peer had asked the House to decline to approve the regulations as a full impact assessment has not been published, she added that “this was yet another set of regulations from the DHSC that came without an impact assessment she said “so, to an extent my amendment has been overtaken by events and I do not expect to press it to a Division (source).

Notably, the absence of an adequate Impact assessment did not seem to be a problem for the MPs who readily voted for the mandatory vaccines.

Secondary Legislation Scrutiny Committee

Notwithstanding the attempts of the DHSC to provide an appropriate IA was previously criticised by the Secondary Legislation Scrutiny Committee  (SLSC) in their 10th Report on the preceding Care Homes Regulations.

The SLSC is a sub-committee of the House of Lords and has a responsibility to consider the policy effects of statutory instruments and other types of secondary legislation subject to procedure.

They had said that if the DHSC decided to extend its mandatory vaccination policy, they would expect to see a more effectively argued case for it, this did not happen it would seem.

The “Impact Statement” was a very “broad brush” and the Explanatory Memorandum (EM) accompanying the instrument was “just as superficial” according to the SLSC who added that a “Statement is no substitute for the required Impact Assessment (IA), which should have been integral to the policy development process.

The Neglected Considerations

An IA should include both detailed considerations of the costs and benefits of the policy chosen and allow it to be compared with rejected alternative solutions according to the SLSC who said that:

•  The legislation lacks practical detail about how key expressions, such as “face to face “ or “otherwise engaged”, are to be applied, instead referring to future guidance “to supplement this instrument”;
•  The EM makes no reference to any lessons learned from the roll-out of the Care Homes Regulations and is also silent on what contingency plans DHSC is making to cope with expected staff losses when these Regulations take effect, which are likely to be particularly acute in London.
• While we appreciate that implementing an exemption on religious grounds might be difficult, DHSC provides no evidence to support its assertions that doing so would “significantly reduce the impact of the policy” or cause tension among co-workers.

A Disproportionately Small Gain

DHSC’s figures had anticipated that of the currently unvaccinated workers in the sector, this legislation will result in 26% additional staff being vaccinated and 61% losing their jobs as a result of not complying with the requirement of being vaccinated.

This according to the Lord’s committee seemed a “disproportionately small gain for legislation that is anticipated to cause £270 million in additional costs and major disruption to the health and care provision at the end of the grace period”.

The House may expect to be provided with some very strong evidence to support this policy choice, and DHSC has signally failed to do so according to the committee, who said: “These Regulations are 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”.

Adequate Information Not Given

This was also the opinion of Conservative peer Lord Framlingham, who complained that adequate information was not available to those making such important decisions on the regulations.

Lord Framlingham said he was against any compulsory vaccination of any kind and stated that: “it goes completely against all that we should believe in and I am totally opposed to it.”

In his quest to understand the DHSC’s stance, he asked two written questions to the Minister’s department: to ascertain if there was a difference in the protection from the disease and the transmission between people who had been vaccinated and those who had tested positive with antibodies.

The answer he got was unlikely to sway his intended vote: “We’re looking at it, but as far as we can tell at the moment, there is no difference”—it was 84% versus 85%, was the reply.

No Difference Between Vaccinated and Those with Antibodies

There is no difference between the protection that the vaccine offers and the protection given by antibodies in the normal course of events. Lord Framlingham asked “surely we are not going to vaccinate people who have the antibodies? adding “It is pointless, particularly if they are thousands of schoolchildren”,

“Can we not test people who have the antibodies and tell them that they do not need to be vaccinated?” He asked.  Well, that would be a more rational approach, if there was any need for intervention at all.

It seems that this question cannot be truthfully answered by the ministers who have clearly made their decision to jab the experimental concoction into the arms of the nation, despite the lack of evidence to support their decision.

Necessary Debate and Scrutiny

Ordinarily, bills that pass-through parliament is open to debate and scrutiny of not only the MPs but also the peers. and both houses have the ability to suggest amendments or changes if they believe they will make improvements to the legislation.

Many hundreds of amendments are proposed by members to major bills as they pass through the committee stage, report stage, and third reading in both Houses of Parliament.

However, it seems that one house was not privy to information in order to debate the issues before yesterday’s vote. and it would seem that this is not a new occurrence during votes regarding COVID-19.

It would seem, therefore, that certain members of the government did not want the scrutiny, nor the debate, they had made up their minds that mandatory vaccinations for the NHS were definitely going to go ahead. The day in Parliament, which was surprisingly empty for most of the debate leading up to the voting, was merely a tick box exercise.

We could predict that this would have been the case, what we should not have been able to predict was the total lack of opposition from the labour party. They did not demand that there should be an examination of an adequate impact assessment for the benefit of the NHS working-class staff. Instead, they let them down and rode roughshod over their human rights while allowing them to be subjected to blackmail by effectively saying, “get the jab, or lose your job”.

Many people, if they didn’t before now, will feel politically homeless today. This is not about left and right politics, it is clearly about right and wrong.