My Lords, I thank my noble friend the Minister for introducing this order with his customary clarity. I tabled my amendment because when I read the excellent report of your Lordships’ Secondary Legislation Committee, I saw red. This was yet another set of regulations from the Department of Health and Social Care that came without an impact assessment. My amendment asks the House to decline to approve the regulations as a full impact assessment has not been published. I was informed by the Printed Paper Office yesterday afternoon that the impact assessment was in fact laid on Friday, which I had discovered online over the weekend. So, to an extent my amendment has been overtaken by events and I do not expect to press it to a Division. The Department of Health and Social Care is, however, still seriously in breach of its obligations in relation to impact assessments with this late document, and I shall move my amendment so that the issues can be debated.
The department published a so-called impact statement alongside these regulations, but noble Lords should be in no doubt that there is a big difference between an impact assessment and an impact statement. The impact statement amounted to nine pages and was in a rather large font size. The impact assessment amounts to 69 pages in a normal font size. The arrival of this impact statement so late is all the more shocking because it has been rated red and not fit for purpose by the Regulatory Policy Committee, which carries out the independent reviews of impact statements required by the Small Business, Enterprise and Employment Act 2015. It is a very unusual for the RPC to rate statements not fit for purpose, so this is a serious issue.
While my instincts are against the compulsion these regulations introduce, I was prepared to be persuaded if a good case had been made. In the absence of the analysis and evaluation accompanying the regulations, the case was not made. The very late impact assessment, together with the RPC’s views, raise many questions that cannot simply be answered by a couple of sentences
from my noble friend the Minister at the Dispatch Box or, indeed, by revised papers put on websites late in the day. It suits the Government to operate in this way. They have become accustomed to making sweeping changes to our lives without meaningful challenge from Parliament.
The 21st report of the Secondary Legislation Committee is excoriating in its criticism of the regulations and the quality of the supporting material accompanying them. The noble Baroness, Lady Thornton, had tabled a regret Motion that captured many of these criticisms, and I am sorry she has pulled it, doubtless for political reasons. I agreed with it and would have supported it had she chosen to divide the House. My amendment focuses on impact assessments because this strikes at the heart of effective policy-making and, importantly, effective parliamentary oversight. On effective policy-making, it is a clear requirement on the Government that the development of policy should be subject to rigorous analysis and evaluation of options, set out in a Green Book. There is little evidence that this has taken place.
Secondly, the Government’s better regulation framework builds on that foundation and requires impact assessments to be prepared at the consultation phase for policy development, as well as at the final policy implementation stage—the stage we are now at. Regulatory impact statements at the final stage have to be independently appraised by the Regulatory Policy Committee, but it is voluntary at the earlier consultation stage. It came as no surprise to find that when the DHSC issued its consultation on this policy in September, it did not include an impact assessment, let alone have it independently assessed.
All this raises serious questions about the quality of analysis underpinning the Government’s policy formulation, which has been a concern throughout the pandemic. Some on these Benches have regularly challenged the lack of impact assessments for the policies pursued under the Covid banner. Regulatory impact assessments are required in order to evaluate burdens on business, primarily, but the bigger issue is whether the Government have considered the broader costs and benefits of their Covid policies. We have been particularly concerned about the lack of analysis of the non-Covid health harms as well as the non-health harms—in particular, to education and to the economy. Certainly, there has been little government analysis of this in the public domain.
The Government’s line has always been that they are not required to produce regulatory impact assessments for policies expected to last less than one year—an excuse not available for these regulations. That is technically correct, but it entirely misses the point, which is that good policy formulation requires a comprehensive analysis of costs and benefits, however long the policy is expected to last, and that is what the Green Book requires.
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Let me now turn to the dimension of effective parliamentary oversight. Parliament cannot be expected to scrutinise legislation, whether primary or secondary, without access to full impact assessments. That means impact assessments issued on a timely basis with the related documents, not rushed out days or hours before parliamentary debate. Parliament deserves not only the assessments required by the 2015 Act but the
broad analysis that should underpin good policy-making; and in the case of Department of Health and Social Care orders, that must include impacts beyond the health and social care sector.
For example, this impact assessment’s central estimate of the likely loss of staff to the health and social care sectors is 126,000. That is twice the number expected to be vaccinated as a result of the policy. So, it does the calculation but makes no real attempt to explore whether it is feasible to recruit sufficient new staff and what would actually happen if suitable staff were not available. This is more than a mere calculation of costs, because it could impact on service availability, as has been the experience in the care home sector. The Minister referred to no care home closing, but care home capacity has been cut back in many areas where it has not been possible to recruit suitable staff. All these impacts can be significant.
My amendment is, at its core, a plea for the Department of Health and Social Care to stop taking Parliament for fools. The department must respect the role of Parliament by facilitating rather than evading effective parliamentary scrutiny. That means full impact assessments for all significant policy interventions, whether of long or short duration; and, of course, it means they must be timely. At the very least, I hope the Government and, in particular, the Department of Health and Social Care will reflect on their duty to ensure that Parliament can do its job of oversight of the Executive. I beg to move.