Attempts to cap States' vaccine liability contested

Thursday 23 September 2021

Two deputies have put forward a 'motion to annul' a change in the law, that would cap the States liability if a person was to become ill after receiving a covid vaccination.

Under the emergency powers granted to the Civil Contingencies Authority, regulations have been made to limit the liability of the States of Guernsey to the sum of £120,000 if someone experiences ‘loss or damage from death or personal injury’ after receiving a covid vaccination.

These regulations get voted in every 30 days. However, to avoid continually bringing it to the assembly, Policy and Resources has passed an ordinance changing the law and introducing new legislation.

It will permanently amend the CCA’s temporary legislation and due to it being passed under emergency powers it has not been voted on by the States Assembly. It’ll simply come into effect at a date decided by P&R.

Deputies Gavin St Pier and Andrew Taylor argue that as it significantly alters people’s rights to damages it should be fully debated by the States Assembly.

“It is a significant change in individuals' normal legal rights and remedies.  For that reason alone, I believe it is a piece of legislation that is worthy of proper debate and a vote,” said Deputy St Pier.

Um. I don’t like the use of emergency powers under Article 66A to pass this legislation. It’s not yet in force; and COVID Regs cover, so was it really “necessary or expedient in the public interest”? But doing it this way rather than normal route means there is no debate… pic.twitter.com/60qCII5GRo

— Gavin St Pier ???????? (@gavinstpier) September 21, 2021

Pictured: Deputies St Pier and Taylor have brought a ‘motion to annul’, which if voted through would force the ordinance to be debated.

“At the moment, because it has been approved by the Policy & Resources Committee using emergency powers under the Reform Law, it would not normally be subject to such a debate,” continued Deputy St Pier.

“The 'motion to annul' which Deputy Taylor and I have now lodged is the only mechanism available to us to ensure that there is the opportunity for a full debate and vote. The extent of any debate will be up to States Members next week but this at least facilitates that opportunity."

The Head of the CCA, Deputy Peter Ferbrache, announced the introduction of the ordinance during the last States’ debate, moments before asking the assembly to vote for the CCA’s continued retention of emergency powers.

He was met by more debate than usual, with several deputies raising concerns with the continued existence of the CCA’s emergency powers.

Express subsequently received concerns from a member of the public, who was unsure of what the introduction of the vaccine ordinance meant.

They received a reply from the President of Health and Social Care, Deputy Al Brouard, who said: “The use of temporarily authorised COVID-19 vaccines in the unique context of the SARS-CoV-2 pandemic, gave rise to the need to evaluate potential risks or liability issues associated with the vaccination programme. 

“These issues have been considered by the Committee for Health & Social Care (CfHSC), the Policy & Resources Committee (P&RC) and the Civil Contingencies Authority (CCA), and have resulted in steps being taken in legislation to limit the potential liability of the States of Guernsey,” he said.

Pictured: “The legislative cap of £120,000 aligns to the sum currently payable under the UK Vaccines Damages Payment Scheme,” said Deputy Brouard.

Deputy Brouard continued: “The Ordinance will replace the provisions within the CCA regulations on the same terms and place the legal provision in relation to limiting the liability of the States on a stronger statutory footing, negating the need for the CCA to continue making the emergency regulations.”

He emphasised that the vaccine remains voluntary. Deputy Brouard also said the provisions don’t apply to the Moderna vaccine, which has been granted conditional marketing authorisation. This means it has been authorised but with less comprehensive clinical data than is normally required.

The ‘motion to annul’ will be debated at the next States’ debate on 29 September.