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Moved by Lord Bethell
That the Virtual Proceedings do consider the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020.
Relevant document: 11th Report from the Secondary Legislation Scrutiny Committee
The Motion was considered in a Virtual Proceeding via video call.
My Lords, I will outline what the regulations we are considering do, then set out the policies and processes underlying their development, their implementation and finally their monitoring and review. However, first, I will recap the Prime Minister’s announcement.
Informed by scientific evidence and advice, on
In addition, there are changes affecting businesses and venues. First, the regulations expand the list of reasonable excuses to leave or be outside the home to include outdoor recreation, including but not limited to exercise, as is currently the case. Secondly, there is an amendment to allow people to spend time outdoors alone, with members of their household or with one member of another household. Thirdly, there are amendments to enable the reopening of garden centres and outdoor sports courts.
The regulations to effect these changes will be for Parliament to approve and I hope that we can use the excellent facilities of this virtual Chamber to do so more speedily. I also add that, unfortunately, our original Explanatory Memorandum contained two typographical errors which, regrettably, we did not spot until after publication. First, it said that the first review would take place on
These regulations are similar to those introduced by other countries, and we have worked closely with the devolved Administrations—to which I pay tribute—in developing and reviewing these measures. This country has been, and still is, engaged in a national effort to beat coronavirus, delivering a strategy designed to ensure that our NHS is protected, with capacity always exceeding the demand for ICU beds for coronavirus patients. Flattening the peak, drawing down the rate of transmission of the disease and the number of infections, alongside the work to significantly expand NHS capacity, has helped to protect our NHS and to save lives. I wish to put on record our continued thanks to the NHS, to care workers and to key workers around the country for the phenomenal work that they are doing, caring for people and keeping the United Kingdom going.
The regulations that we debate today have played a crucial role in the success we are seeing in reducing the infection and transmission levels. They place significant demands on individuals and society, with impacts on businesses, the economy and daily life. I understand the sacrifices that people are making at this time, their frustrations and their anxieties, but these regulations are necessary, because the single most important step that we can all take towards beating this disease is to reduce the spread by following these regulations, thereby protecting ourselves and others.
Before we made these regulations, the number of patients in intensive care was estimated to be doubling every three or four days. The Scientific Advisory Group for Emergencies—SAGE—assessed that, at the beginning of the epidemic, the R number was between 2.7 and 3. Each person with the disease gave it to nearly three other people. This type of exponential growth would have overwhelmed the NHS had it not been contained, but then our regulations took effect. The footfall data showed a significant fall of activity; UK daily footfall fell by 80% compared to last year. These regulations came in tandem with a vast and co-ordinated effort, with schools closing and becoming virtual and massive increases in testing and NHS critical care capacity.
The latest assessment by SAGE is that, across the UK, R has reduced to between 0.5 and 0.9, meaning that the number of infected people is falling. On
However, I acknowledge the great sacrifice that these regulations have required everyone to make. Whether you are separated from your loved ones, unable to go to a funeral, face restrictions in your religious observance or simply have not been able to meet your friends for weeks, everyone has made a contribution. These are exceptional measures, brought forward to reflect exceptional challenges. They were made by the Secretary of State on
We do not use these powers lightly or without good reason. We are acutely aware of the burden that they place on society and the challenge that we face in achieving the right balance between protecting the public’s health and safeguarding individual liberties, and between saving the NHS and saving our economy. I believe that we have achieved that balance.
The reasons for my confidence are threefold. First, these regulations set out that a review of these restrictions and requirements must take place at least every 21 days to ensure that each restriction or requirement continues to be necessary to prevent, protect against, control or provide a public health response to the incidence or spread of infection in England. We completed the first review, as required, on
Secondly, the regulations reflect the strategy that we have agreed across the UK, which is led by the best scientific evidence available along with consideration of the economic, operational, social and policy implications.
Thirdly, recognising the potential for harm to public health and the economy if measures were relaxed too soon, we have developed robust criteria to guide policy considerations on when it would be desirable for measures to be eased. These considerations are fivefold: whether the NHS can provide critical care across the UK; whether there is a sustained and consistent fall in the daily death rate; whether infection rates decrease to an acceptable level; whether supplies of PPE and testing meet future demand; and whether the evidence is clear that changes will not risk a second peak.
Ministers conduct the review guided by officials and experts, ensuring that the measures continue to be both proportionate and necessary. However, it would be naive to imagine that there have not been snags that public servants across the UK have had to work day and night to untangle. The JCHR and others have expressed concerns about the variations in enforcement and the approach to it adopted by different police forces. As your Lordships will be aware, guidance was issued to police forces; that has continued to be clarified and updated. It is important that the police operate within the law, as set out in these regulations. That guidance is treated as such: guidance.
In the first review, it was agreed that no changes would be made to the existing restrictions. However, a small number of minor amendments were required to clarify the regulations and ease their operation. They relate to enforcement of the measures and affected businesses and venues.
The changes announced by the Prime Minister earlier this week may well lead to further revisions of these regulations. Your Lordships need not feel, therefore, that this House’s role in scrutinising the Government and holding us to account has, because of the manner in which these regulations were made, become somewhat diminished—far from it. These debates influence the choices made in policy development.
I look forward to a high-quality and informative debate this afternoon. We will take your Lordships’ contributions on board. I beg to move.
My Lords, I thank the Minister for his introduction to these statutory instruments. The Prime Minister’s Statement will be debated later, so I will focus on these regulations. As the Minister said, they give considerable power to Ministers to make significant demands on us: to stay at home as far as possible, closing many businesses and stopping gatherings of more than two people in public. As Liberty points out, although the regulations expire in six months, Parliament has to approve them only once, yet Ministers are required to review them every three weeks. Ministers can change the guidance and, through a ministerial direction, can terminate a requirement or restriction contained in these instruments. The Minister said that the regulations get the balance right, but Ministers are given huge authority. Liberty suggests that, as a minimum, the regulations should be remade under the Civil Contingencies Act, as opposed to the Public Health Act. This would enable regular parliamentary scrutiny. Will the Minister look at this again?
The other point which I want to raise, which the Minister touched on, is the use of police powers. Overall, the police have responded magnificently to the incredible challenge they have been given. However, there has been confusion, not least over the extent to which people are permitted to exercise and gather outside. As Liberty says, the combination of sweeping powers, haste in drafting legislation and mixed communication strategies is in part to blame for some of the police confusion. This is likely to grow, given the Prime Minister’s Statement and fears among doctors and police chiefs that the new message to stay alert rather than to stay at home may confuse the public and make it harder to enforce the restrictions.
Liberty recommends that any guidance published to supplement the regulations should distinguish between what is law and what is best practice advice to the public. The Lords Scrutiny Committee made similar points and worried about the confusion between the law and the guidelines. It is keen to ensure that the police are aware of the scope of these regulations, as distinct from the guidance. Given the road map laid out by the Government for lifting the restrictions, we are likely to see changes to the guidelines on a regular basis. I hope that the Minister can assure me that all will be done to make clear to the police just what the law is in the regulations that we are asked to approve today.
My Lords, these regulations are about the management of public health, not how to uphold public order. It is, therefore, a great pity that, due to the way that the Government have introduced them, the debate has become mainly about public order. Confusion was initially due to the words and grand statements of Ministers which were, at times, at odds with the actual provisions of the statutory instrument. On exercise, Ministers said, “Once a day, close to home”. Yet the SI does not restrict individuals to that. We had police stopping people unnecessarily and Derbyshire police using drones to shame people walking legally. There were issues around shopping, with Ministers talking about what “essential items” were. Yet the SI does not define essential or non-essential items; it states the law on where you can buy them. We had trolley spying by some police forces and the famous Easter egg debate. None of these was to do with public health issues around Covid-19. The police college had to send out guidance to cut through ministerial soundbites and state what was actually law within the SI. We are taking note of them again but tomorrow, as the Minister said, some of the provisions will change, due to them being out of date and as the new, graduated, measures to release lockdown start.
However, confusion has started again as we debate, not the science of public health, but the words and confusions of Ministers on public order issues. For example, public health advice indicates that you have a low transmission risk if you meet one other person outside your household outdoors and stay two metres apart. Yet the debate is now about the difference between meeting in a park or in your garden. The public health message is again getting lost: it makes no difference to public health, or the transmission of the virus, whether you meet one person outside, at a distance of two metres, in a garden or a park. Are we going to have police tiptoeing over people’s garden fences to see whether they are meeting one other person outside their household?
These SIs, and the new ones tomorrow, will be an important part of public health measures and the management of Covid-19. Will the Minister and the Government keep to that, and not give us soundbites that focus on people in parks or gardens, or on Easter eggs? We need to see these as helping to reduce Covid-19 and enhancing public health and not as a matter of public order where the debate moves away from people feeling safe and knowing to do the right things which the SIs say by law they have to.
My Lords, I want to sort of start my comments by congratulating the Government and the police on showing incredible restraint in acting under huge pressure in what has been an incredibly difficult period. The amendments to these regulations are welcome because they start to allow people to get more exercise and get the economy going. It is easy for us out here to sort of criticise, but I congratulate the Minister on what he and his team have been doing under huge pressure.
The Prime Minister has talked about the importance of common sense, and we now need to start thinking about these regulations and our whole approach to the response to Covid, using common sense, and involving other parties in this. I would be keen to hear from the Minister how we can start to involve the public in the way that these regulations evolve moving forward. For example, there is data at a local level about how many people are infected with Covid. Instead of using law and regulations all the time to shape behaviour, which can be a crude instrument, are there ways almost to gamify and allow citizens to understand the situation in their local area, understand what might be causing it locally and start to adapt their behaviour according to where they are, in the country or in a city such as London?
Secondly, understandably, we have had to bring in these regulations, but they are a huge infringement on civil liberties. So far we have had to take into account the needs of the NHS and public health in shaping these regulations, but do we also need to think about the enforceability of these regulations and laws? For example, on the new change that will allow people to meet one other person from outside the household, do we believe that the police have the resources to check every time they see people in the park whether an additional member has joined that household or whether they are part of the same family? Could we not start to work together with experts in this House, in the police and in the legal system, to shape laws based on natural law and common-law principles that are more tailored and risk-based? For example, we do not seem to have the resources to shut down large gatherings when they appear, so how will we be able to focus on policing individual families?
Moving forward, we will need to have a much wider debate to shape these laws, rather than the Government generating and issuing them and noble Lords in this House commenting around the edges. It feels as though we need to move forward and create these regulations together.
My Lords, we understand that the regulations require a review every three weeks. However, it is of the utmost importance that this review should include a range of engagements and practical, meaningful discussions with the opposition parties, trade unions, and, not least, the First Ministers of the devolved Governments. Mark Drakeford said recently that he does not think there has been “sufficient” communication. He said that is has been three weeks since he wrote to Michael Gove asking for a “regular pattern of engagement” between devolved Administrations and the UK Government. He said:
“We didn’t have, in my mind, that reliable rhythm of contact … Where we had it, it was good. But as I said before it was in fits and starts”— and he did not think that that was sufficient. Does the Minister agree that three weeks is far too long for one Government to receive a communication from another? Therefore, in the light of these comments, will he assure the House that he will engage with the Government so that Mr Drakeford’s request for a regular pattern of engagement with UK Ministers becomes the norm and not the exception?
What are we doing in Wales to protect the population from the pandemic? Mark Drakeford announced on Saturday that the Welsh Labour Government would extend the stay-at-home regulations for a further three weeks, albeit with some modest adjustments, becoming the first UK leader to do that formally. Wales currently has six regional drive-through testing centres and eight mobile testing units operating across the country. Together with the ongoing rollout of an online portal for booking tests and the planned introduction of new home testing kits, that will help significantly to increase daily testing in Wales. The message remains the same: stay home, protect the NHS and save lives. The Health Minister gave a further public update on the outbreak in Wales earlier today.
Another vital area for the Government to consider is local government. Councils, with their knowledge of their local communities, are ideally placed, with the skills, knowledge and experience on the ground to help the Government achieve their ambition to ramp up the level of testing and contact tracing necessary to defeat this disease. I did not hear the Prime Minister mention in his update anything specific about their important role in this public health crisis.
The LGA has said that
“the sharing of information is essential if we are to succeed in driving down the numbers of new people being infected once the lockdown is gradually lifted and access people who will not be reached by the new NHS app.”
Key sources of data are needed by councils, such as access to testing results across all sites, hospitalisation records for those with Covid-19, death certifications in which the disease is identified, and many more indicators, so that councils can identify hotspots, map where the virus is prevalent and plan for action. Can the Minister find out how much detailed liaison work is happening with local government on these matters and if not, why not?
My Lords, the justification for not providing Parliament with a draft of these regulations, as is usual, has been
“the serious and imminent threat to public health”.
Notwithstanding that, the noble Lord, Lord Hunt of Kings Heath, is right to say that our duty is to ask awkward questions and to scrutinise. I will use my three short minutes to do that.
Confusingly, while these regulations impose restrictions and fines for members of the public breaking the lockdown, a Cabinet Minister has said of Covid-19, “let it run hot”. Our Minister, who replies for the whole Government, says that it was not his department that said this, but which of these strategies—carefully cautious or “let it rip”—is the Government’s position? When will he publish the scientific evidence behind the use of that phrase?
The Care Quality Commission is to investigate whether hospitals, some here in the north of England, might have broken the law by sending patients with Covid-19 back to care homes, where more than a quarter of Covid deaths have occurred. Managers and staff were not told that the patients being discharged were infected, triggering new fatal outbreaks among other residents. Will the Minister confirm that, in doing this, the law was indeed broken? When do the Government anticipate that the CQC will publish its report? Will the findings be presented to Parliament?
Will the Minister confirm that levels of coronavirus infection are probably at least five times higher among hospital and care home staff than in the wider population —I declare an interest in that one of my sons is an A&E doctor working in a hospital with Covid patients—and that coronavirus outbreaks in care homes are now leaking back into the community and driving the epidemic? Sir Ian Diamond, the head of the Office for National Statistics, says that the R number, referred to earlier by the noble Lord,
“is driven by the epidemic in care homes”.
Will these regulations be used to stop carers visiting multiple care facilities? If so, what thought is being given to the care needs of residents and ensuring that staff who are infected are properly isolated?
I have written to the Minister about the importance of giving public health officers and local councils greater control over tackling the outbreak in their communities. Sir David King, the former Chief Scientific Adviser, says this will be the only way to contain new peaks. Does the Minister agree? I also hope that the Minister agrees that the need for a national care service, locally administered but with central oversight, on a par with the National Health Service and with more than Cinderella status, is now self-evident and long overdue.
My Lords, I declare my interest with the Dispensing Doctors’ Association. These emergency measures were brought in at comparatively short notice, so I welcome the chance to review them, and congratulate the Government on what they have achieved in a very short time.
As my noble friend the Minister pointed out at the outset, the success of the regulations will depend on the clarity of the message and the collaboration and co-operation of the public. My concern is that the level of trust shown by the public may fall as time goes on and they become less patient. We should also note that the latest guidance, which is being issued and emerging this week, is perhaps more clouded and less clear.
There are inconsistencies in the guidance; for example, people are urged to go to work but may not have access to public transport, or have been advised not to use public transport but alternatives are simply not feasible. Those with children may have no childcare available, making it difficult for them to leave home and return to work.
Will my noble friend consider the difficulties of policing? Will the Government consider talking about physical distance rather than social distance, so that people really pay attention to the two-metre rule?
I understand that the sunset provision is not due to come in until
My noble friend is familiar with my interest in Regulation 61 of the National Health Service (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013. This is particularly appropriate in rural areas. It allows NHS England to commission a dispensing doctor’s surgery to provide services to all—that is, not just its own registered dispensing patients—where a pharmacy is temporarily closed. This decision can be national or regional, but so far it has not been used in either circumstance. Why not? Having urged us all to avoid all but essential travel, will the Government consider keeping this under constant review and ask NHS England, both nationally and regionally, why this regulation, which permits dispensing doctors to dispense these medicines, is not being used to facilitate the lives of patients and allow dispensing doctors to do their work?
My Lords, the Minister has explained that the legislation is about to be superseded. The rule of law requires law, brought to both Houses of Parliament as soon as possible. There is enough confusion about what is intended without confusion on the part of citizens and the police as to whether what we are told to do or not do has the force of law, because a breach may carry a fine and, let us not forget, a criminal record.
I keep coming back to what is a “reasonable excuse”, which, as I understand it, is still the overarching criterion. Enforcement has to work with guidance; it is not enough for the Prime Minister to say, as he did yesterday,
“everybody understands what we are trying to do together.”—[
The Secretary of State this morning seemed still unable to answer the question posed on Sunday: can I meet both my parents, all of us keeping well apart, physically distanced, in my back garden, accessed directly? If not, why not?
If I were an employer, I would ask—so I will ask the Minister—“If I ask or tell staff to return to work, could I be opening myself up to legal claims because of how I organise the work? If I do not tell them to return—I could do, but I am cautious—will they still get their furlough payments? If some return but others are too anxious to do so, does one group receive those payments but the other does not, and how do I handle that?”
We seem to be in a position of no substantive change —indeed, the Minister in his introduction reverted to the “stay home” mantra—but with added muddle. “Staying alert” to me is the language of not ignoring dodgy packages on the Tube, not being alert to something you cannot see. Are the Government taking advice from behavioural scientists and psychologists in both policy and communications? The noble Lord, Lord Wei, might agree.
I think all speakers so far have called for consistency and clarity. Do we need clear, and clearly intra vires, law? Yes, and so does the Secretary of State, who must terminate regulations that are not necessary or proportionate. He, and we, must be able to make that assessment. Did we need another slogan? Not in my view.
My Lords, we were not equipped to cope with the pandemic when Covid-19 hit. Despite the shortcomings identified in 2016 and the inevitability of such a viral attack, we had pitifully few intensive care beds and a dearth of PPE, so the lockdown was necessary to enable the NHS to gear up.
People have largely played by the rules, but the damage inflicted on people’s mental health and on the economy has been huge and should not be prolonged. The Government cannot continue prescribing people’s lifestyles as these regulations do. They must move towards trusting people’s common sense, not just talking about it. It is very clear who is most vulnerable to the virus. It is surely right to assume that a wish for self-preservation will deter those most at risk from assuming an unnecessary level of risk, but society as a whole must cope with living with the risk of Covid. We are accumulating debts, both public and private, which will affect the lives of generations. To prolong the economic misery is to make the treatment worse than the disease.
Lord Sumption has said:
“We have resorted to law, which requires exact definition, and banished common sense, which requires judgment.”
Sadly, as other noble Lords have said, exact definition is missing from much of the regulations, and it is very hard for people to apply judgment when regulations are trying to limit their behaviour. Now is the time to allow the public to exercise their judgment. If people judge it important to meet both their parents simultaneously, is it really the role of government to tell them they cannot? If young people want to go to the pub, is it really the role of government to tell them they cannot? The noble Lord, Lord Wei, suggested that perhaps the public could be told more about how the virus was behaving in their area. I agree that that would help them form their judgment.
Families must be able to resume family life. The hospitality and tourism industries must be allowed to reopen their doors. If that does not happen soon, for many of them it never will. Social distancing is a concept now well understood. The Government should trust the people to be sensible and socially distance themselves. They should concentrate their efforts on supporting our health service and care workers. This virus has highlighted the low priority given to social care for many years. Could the Minister say whether he believes that the regulations governing care homes are sufficient to ensure that they are not used as dumping grounds by the NHS?
My Lords, I absolutely recognise the difficult balancing act for the Government in grappling with the trade-off between public health protection and individual liberty—between the economy and the resources to support our population in the future, and the national health. I would like to highlight two vital elements that are part of these regulations and the ministerial thinking that has been clearly outlined by my noble friend.
I turn first to liberty and health. The regulations state explicitly that “vulnerable person” includes
“any person aged 70 or older”.
It is not clear that there is medical or statistical evidence to support the implication that anyone over the age of 70 is more vulnerable to Covid-19 than other age groups. We have done so much to improve the lives of older people, extending working life and life expectancy, so that those aged over 70 are now fitter and healthier than many younger people. While I congratulate the Government on their decision not to relax the lockdown rules in any way that discriminates against older people, these regulations contain that implication.
The latest ONS data undermines the arguments made by some that age is a predictor of fatalities from this virus. The most recent information shows that the proportion of people aged over 70 who have died with Covid-19 is 81.5%, but the annual death rate for the over-70s in the UK is normally 82% of all deaths. This does not support age alone being a relevant factor. Of course, older people are at any time more likely to pass away than younger people, so I wonder if the Government will reconsider the position of the over-70s that is indicated in these regulations and remove any age discrimination from our reaction to this virus. We must differentiate between elderly people who are at extreme risk, particularly if they have previous medical conditions, and the rest of the population.
That leads to my second point. I listened carefully to my noble friend who introduced these measures. His words each time were that they protected the NHS and ensured that it had spare capacity. However, I am deeply concerned that, as other noble Lords have mentioned, this extraordinary focus on NHS capacity, which has now reached a significant high, has resulted in discharging people who are the most vulnerable to this illness back into the community or into care settings, putting others who are also vulnerable—and the staff—at risk too. I hope that my noble friend can confirm that the department will consider the importance of upholding our national values, which reject age or any other form of discrimination, and increase the parity of esteem between the NHS and social care, which is so important for the management of this illness.
My issue with these regulations is the policy on masks. Under the heading “Restrictions on movement”, Regulation 6 states that
“no person may leave the place where they are living without reasonable excuse”.
I propose that when the Government next review these regulations, they should add the following words: “Where a person leaves the place where they are living with reasonable excuse, as set out in Regulation 6(2)(a) to (2)(m), that person shall wear a mask or face covering of such design as to reduce the transfer of the virus.” It is now nine weeks since I first raised this issue in the House on
Yesterday’s guidance on masks adds little to the existing arrangements. In recent weeks, a Mr Phillip Collet recently returned from a visit to Thailand, where, interestingly, the total deaths number 56 in a population of 69 million, against the UK’s total deaths of 31,000 in a population of 66 million. Almost the entire population of Thailand wears face masks. Based on research, Mr Collet argued that the Hunan in China infection rate requires further study. That study found that, on a bus, one person infected nine people. No person wearing a mask was infected. Half the people infected were four metres away from that single source. He went on to say that the study on Prevention and Control of Covid-19 by Dr Wenhong Zhang should be considered. He argues that masks with valves can be dangerous and appeals for the scientific advisory committee to consider the Wenhong and other Chinese studies.
The argument is simple. Has Mr Collet got a case? Are officials in the department listening to him? Why have the countries he cites been the most successful worldwide in dealing with the virus? Is the real reason why HMG resist mandatory arrangements the fact that they have failed to organise, invite and promote the development of a domestic manufacturing capacity and instead are relying on cheap sources in China, which is now supplying the world and is overwhelmed? Can we also have an authoritative response by Ministers to Phillip Collet’s observations? The issues around masks are not going to go away.
My Lords, I declare an interest as chair of the National Mental Capacity Forum. I want to highlight the tension between public health measures and protection of an individual’s rights, as defined through the Mental Capacity Act.
Those with learning difficulties, dementia and brain injury through disease or trauma often also have conditions that make them vulnerable to Covid, yet society has come to realise that the vulnerable are valuable—they enrich our lives. It has been difficult to explain to them why, and which, restrictions were needed, and it is now even less clear which parts of the guidance are statutory requirements. Is there now a need for a personalised app that tailors legally-apt guidance to the risk factors of a person and those in their household?
Going forward, people with capacity impairments will need more support to adapt to the lessening of the restrictions that were imposed for public health measures. The lockdown routines, creatively structured to keep people mentally and physically well, will change again as “isolation” becomes a nuanced word. Simply saying “use common sense” will not be enough. It will be hard work supporting those who are vulnerable as they adapt to widening and changing physical freedoms. Tasks such as keeping a 2-metre distance must be learned, using bank cards instead of cash makes people more vulnerable to fraud and exploitation, keeping a face mask on is difficult, and some have lost physical strength through decreased activity. The very vulnerable, and those with physical care needs, have carers coming and going. The plan of test, trace and isolate will keep them safe only if testing is rapidly and easily available, for both the person and those who care.
Will public health plans require that all testing facilities are local to the person and get results out rapidly? Which national external quality assurance systems are commissioned labs required to adhere to? Are false positives from RNA contamination, and false negatives from specimen decay in transit or from error-prone gene tests, being detected through audits? Unless those supporting the vulnerable are maintained virus-free, our second wave may be worse than the first.
My Lords, I pay tribute to the SLSC for its typically thorough report, which identified errors in the original regulations. But with the changes announced by the Government over the last two days, I look forward to new revised regulations, which I hope will correct one glaring anomaly in the regulations of
Regulation 6(2), relating to restrictions on movement, states that a reasonable excuse to leave home is
“the need … to obtain basic necessities, including food”.
Leaving aside the word “need”, which is quite subjective, the term “basic necessities” has led to some police officers boasting that they were patrolling shopping aisles to make sure that consumers were purchasing what the police considered were “basic necessities.” I believe that that behaviour was quickly stamped on, but the law in this regulation still says “basic necessities”.
Schedule 2, Part 3 lists the shops that may stay open. These include supermarkets, petrol stations and hardware shops, among others. The Government have confirmed that consumers can purchase anything at all in these shops which they stock, much of which is not a basic necessity. Supermarkets selling homewares, toys, video games, clothing and compost are perfectly within the law. The term “basic necessities” is confusing and unnecessary. Regulation 6(2)(a) should therefore be changed to say: “to obtain any supplies, including food”, et cetera, “from the businesses listed in Part 3 of Schedule 2”.
Schedule 2 should also have a general provision which states that any shop or retail premises can open provided that it can maintain social distancing. If the supermarkets can limit numbers and space out customers, why not permit, say, Army & Navy Stores, Debenhams or any other retailer to open if they can set up safe systems?
Finally, I commend the statement in the Government’s plan, Our Plan to Rebuild, announced yesterday, that
“the Government will continue to recognise that not everybody’s … risk is the same; the level of threat posed by the virus varies across the population”,
and that the Government expect
“to steadily make the risk-assessment more nuanced … some … may be able to take more risk … The Government will need to consider both risk to self, and risk of transmitting to others.”
Therefore, I hope that the new regulations will make it clear that everyone over 70 is not automatically vulnerable. The same goes for those of us with “underlying health conditions.” These cover a huge range of conditions, and not all of them have equal risk. We must let people over 70 or others in perceived risk categories get out, so long as they do not pose a risk to others. If they endanger themselves, that is their decision, so long as they do not endanger anyone else. I hope that my noble friend the Minister will take those points on board.
My Lords, I am pleased to be able to speak in this debate on the regulations before us today. I intend in the short time I have to focus on two issues only.
Over 32,000 people have died in hospital from being infected with Covid-19. It is horrifying that the United Kingdom has one of the worst records in the world and the worst record in Europe. This pandemic will require serious questions to be asked about the Government’s handling of the crisis. However, that is the future, not for now.
Specifically, I am pleased to see amendments to the regulations with respect to attending burial grounds and gardens of remembrance to pay respects to family members and friends. There have been some welcome changes to the regulations and clarifications to guidance, as there were some instances of wrong or poor interpretation of the regulations, which was making the process of saying goodbye to a loved one even more difficult and distressing than it has been in these difficult and unprecedented times. We had situations where guidance or the regulations were interpreted, as I said before, harshly or even incorrectly. I was pleased that approaches I made to Ministers had some effect, and sensible clarifications in advice, guidance and actual regulations, made here and elsewhere, will make a difference. I appreciate the way in which the points I raised with Ministers were listened to and acted upon.
The second point I want to raise is the treatment of homeless people. The vast majority of homeless people are off the streets, but there are isolated cases where things have not gone well. I cannot see the point of prosecuting homeless people for leaving the place where they live. Court papers say, “living at no fixed address”. That seems completely ridiculous. I hope that the CPS will consider the stupidity of prosecuting such cases. Homeless people, like the rest of us, need to be protected, and criminalising them in this way does nothing to help them or the wider population. It just brings further problems, and it is a waste of public money, which could be better spent on getting a homeless person additional help and support. Can the Minister, when responding to the debate, bring the concerns I have expressed here to the attention of the Justice Secretary and the Crown Prosecution Service?
My Lords, even I will admit that these regulations were urgent and necessary, but it is a democratic and constitutional outrage that they were implemented on
The Government say that they are adjusting their guidance to loosen the restrictions but they must make amendments to the regulations reflecting this. For example, last week the police were threatening sunbathers in parks with a fine; this week, they will not be. Were the police wrong about the law last week or are they wrong this week? The law has not changed, so the circumstances in which people can be fined have not changed either. With so much confusion among police officers and police forces, anyone who is fined should be encouraged to challenge a fine through the courts to ensure that it has been issued lawfully and not based on a police officer’s mistaken understanding of the facts or the law. Even so, too many people will be paying fines which have been wrongly issued. Can the Minister tell me, first, what the Government are doing to protect against this?
Secondly, can the Minister explain how the Government are addressing the widespread confusion among police, prosecutors and the judiciary, which has led to people being wrongly convicted under these regulations and the Coronavirus Act? Thirdly, can he provide an update on the Crown Prosecution Service’s review of convictions under the legislation? I understand that it is even going to look at guilty pleas. Finally, can he explain the appointment of an anti-terror spook in the role of deciding how to lift lockdown restrictions, instead of the four Chief Medical Officers who were tasked with it before? When did this become a terrorism issue rather than a health issue?
It is our hard-pressed police who have been left with the unenviable job of enforcing and interpreting these rushed regulations and guidelines, which did not receive proper parliamentary scrutiny prior to being introduced. Inevitably, there have been differences in the interpretation and application of these regulations, which have statutory force, and the guidelines, which do not. It is clear that senior police officers already feel that the confusion and lack of clarity is making their job of policing by consent increasingly difficult, if not impossible.
The situation will have been made worse by the Statement to Parliament yesterday from the Prime Minister, amending or changing the interpretation of these regulations and associated guidelines. The Statement was not exactly a model of clarity. The Prime Minister stated yesterday that
“from Wednesday there will be no limits on the frequency of outdoor exercise people can take” and:
“You can drive as far as you like to reach an outdoor space.”—[Official Report, Commons, 11/5/20; cols. 25-6.]
But the Prime Minister later stated:
“Yes, staying alert for the vast majority of people still means staying at home as much as possible.”
Can the Minister explain how, under these regulations and associated guidelines, staying at home as much as possible for the vast majority of people is consistent with there being no limits on either the frequency of outdoor exercise that people can take or how far they can drive to reach an outdoor space? How can the police be expected to reconcile those obviously conflicting statements in enforcing and interpreting these regulations and any associated guidelines?
The regulations actually preclude anyone from leaving the place where they live without reasonable excuse and set out examples of reasonable excuses. Will the intended amendments to the regulations also reflect the changes or modifications to the definitions of reasonable excuse that the Prime Minister announced yesterday, to which I have referred, or do the Government deem those changes to still come within the terms of the existing statutory definitions of reasonable excuses in the regulations and, if so, which definition or definitions?
Finally, were the changes to the regulations and guidelines announced by the Prime Minister yesterday the subject of any consultation beforehand with chief constables and elected and accountable police and crime commissioners? What are the powers of an elected and accountable police and crime commissioner to determine how, in practice, the changes announced by the Prime Minister yesterday should be applied to the constituents who elected them by the police force for which they are the PCC?
My Lords, in the Covid emergency legislation and these regulations, the Government have taken unto themselves enormous powers which remove from citizens many basic legal rights. Having done so, the Government should be under an obligation to subject their decision-making to scrutiny which is reasonable and timely. The fact that we are discussing today regulations already implemented in March is yet more evidence that the decisions made unilaterally by the House authorities to restrict House business and the ability of Members to take part are hugely damaging to democracy and preventing transparency.
“Tackling covid-19 requires a robust, integrated and proportionate response”.—[Official Report, Commons Delegated Legislation Committee, 9/3/20; col. 1.]
Today it is our duty to test whether the Government have done that so far.
What we have a today is a set of regulations based on assumptions that the greatest threat to public health would arise from individual people ignoring advice to observe lockdown and defying advice on physical distancing. With some exceptions, the public have observed the public health advice pretty well. Where groups of people have not followed advice, local government, particularly mayors, has stepped in to restore compliance.
Ironically, we have seen instead that the biggest threat to life since the pandemic began has been in care homes, where it is said that there have been more than 10,000 deaths. That is not the fault of local government or local resilience hubs, which know and understand the needs of care providers and vulnerable groups in their area; it is a direct consequence of central government’s failure to prioritise testing in care homes and testing of people being discharged from hospitals into care homes. Seven weeks in, local government and care providers are still being sent detailed guidance which is constantly changing, and they have to grapple with three different systems for ordering PPE, none of which works properly. Unsurprisingly, the death rate among staff in care homes is much greater than that in hospitals.
In this morning’s Question about care homes, the Minister said:
“I reassure the House that deaths in care homes have always been part of the official figures.”
I ask him to write to me setting out the exact basis for his statement, because the Government’s advice of
Since the beginning of the pandemic, decision-making has been based on two assumptions: first, that the main and lasting impact of the virus would be on the NHS and, secondly, that central government, and not local government, are always best placed to lead every initiative. As some of us have been saying since March, those assumptions may have been temporarily correct for the initial medical emergency, but they are the wrong basis on which to prevent further major outbreaks. The key to managing the virus while a vaccine is developed is to work in partnership with regional and local government, businesses and charities to design, implement and monitor effective public health systems.
The regulations that we are discussing today have been overtaken by events. However, as the country prepares to exit lockdown, it is more necessary than ever that we have regulations which make clear the legal basis on which government decisions and actions have been taken, and which make a distinction between the law and good practice.
Yesterday, the Government released what they called Our Plan to Rebuild, the Covid recovery strategy. It is not a plan; it is a set of assertions and aspirations not particularly well communicated. Page 33 announces 14 supporting programmes. On closer inspection, there are at most 10 programmes, all of them centrally determined. Other Governments within the UK and local government are simply the recipients of more responsibilities. Some of those are extremely complex, such as rebuilding a social care system which is broken, but there is little detail about how it will be funded. What we have is yet another example of central government issuing demands and announcing initiatives, such as the GoodSAM app, when they have not thought through how they will work in practice. It is more like a plan for central government to get the glory while local government gets the blame.
The Government’s mantra is that they are following the science, but the job of government is more than that. It is the job of government to listen to scientific advice, consult relevant authorities and develop clearly understood legislation that will work. The public want to know what they can do safely to expedite the end of lockdown.
Will the Minister assure the House that no new criminal offence for individual citizens will be created as a result of this plan until the law and regulations have been voted upon by both Houses? There is an urgent need for clear legislation regarding key elements of yesterday’s announcements so that public health officials, local authorities, the police, schools, workers, employers and businesses understand their legal obligations and rights. Will the Minister undertake to bring the regulations, with the accompanying evidence base, to the House at the earliest opportunity? Will the Government allow sufficient time and information for Members of the House to understand how those regulations will be implemented?
When the emergency Covid legislation was passed, Ministers stressed that the government powers in that legislation would be turned on and off as necessary rather than being permanent. At that time, we asked for an updated table of measures in force at any one time so that people having to implement the laws knew under which legislation their actions would be authorised. Can the Minister say when that will happen? It is becoming a matter of urgency.
The Government have had unprecedented support from opposition parties and the population of the United Kingdom. For that to continue, they have to provide timely and accurate information that is trusted by those who hear it. I am afraid that this week, that has not been the case. By not doing so the Government have damaged their ability to take the swift action they have said they needed to take all along. The more the Government move into issuing statements based on soundbites rather than scientific evidence, the more difficult it becomes for politicians on all sides to support them in what they do. I hope that the Minister will take lessons from these regulations and that when the Government bring forward the next lot, they will have listened to the powerful messages given to them from right across the House this afternoon.
My Lords, I thank the Minister for his introduction and I thank all noble Lords for the many questions they have raised, which needed to be asked. We all wish these regulations were not necessary, but we also accept that they are. I think the counsel of the noble Baroness, Lady Wheatcroft, is dangerous and potentially fatal and I hope the Government will not heed it. This virus is still among us. It is not defeated, and we need to be cautious and, most of all, clear.
Before getting to the substance of these regulations and the future, it is important to remember that they represent the biggest peacetime restrictions that this country has ever seen and demand full parliamentary monitoring and scrutiny. Parliament put them through at speed, and I wonder whether the Minister agrees that a couple of hours of debate weeks after they were introduced cannot in future be sufficient to provide the level of examination and scrutiny that such sweeping laws require. The Prime Minister’s announcement, the publication of the new strategy, the subsequent debates and discussion and the statement made last night on the BBC by my right honourable friend the leader of the Labour Party, Sir Keir Starmer, all point to the need for greater clarity and significantly better communication. The main point concerns the need to come back to Parliament with yet more amendments to these regulations. Does the Minister anticipate that we will see further revisions to the regulations, and if so, when?
I would like the Minister to address some of the problems caused by the mixed messaging and to try to rectify the somewhat shambolic government communications over the past few days. For example, why have the Government called for people to return to work before the schools are open and not to go to work on public transport? To these Benches, that suggests a serious lack of understanding of ordinary people’s working lives. For the Prime Minister to say that he is sure employers will understand that some of their workforce will have childcare difficulties makes me wonder which planet he and his Ministers inhabit.
Will the Government bring forward further regulations, or even legislation, to provide protection for employees who are faced with the dilemma of employers demanding that they return to work when their children cannot go to school? Furthermore, is a grandparent allowed to look after one child but not two? Who exactly should return to work—as the Prime Minister said, “The next morning” —and how should employers keep their employees safe? The guidance on funerals also needs further clarification. It was championed by my noble friend Lord Kennedy but I feel that there is still considerable variety across the country, with some councils taking awful decisions and causing serious distress to families. Can the Minister ensure that the guidance issued is being followed? My noble friends Lord Kennedy, Lord Campbell-Savours, Lord Hunt and Lady Wilcox asked many questions, which I hope the Minister can answer.
These regulations allow officers to arrest and fine people for breaking the lockdown but, as many noble Lords have said, we know that they have been misinterpreted in some cases, with wrongful cases identified through social media and press reporting. Indeed, the Home Affairs Committee in the Commons voiced
“concern that police were enforcing government advice rather than the letter of the law”,
which is less strict. Parliament’s Joint Committee on Human Rights previously warned that the police may be punishing people “without any legal basis”, causing confusion over the extent of the law. Can the Minister confirm that all criminal charges made under the Act will be duly reviewed to ensure that they are appropriate and compliant? Given the pace at which the new regulations had to be implemented, it is not surprising that there have been early problems and errors, hence the need for a second set of amending regulations.
We all know the damage that this virus is doing to our society and we all know that these measures are needed to limit that damage, but we should not forget their impact. The physical and mental toll is huge, yet virtually everyone has been adhering to these rules in a way that is testament to the resolve and determination of the British people. Like the Minister, I congratulate everyone on their discipline, their thoughtfulness and the protection that they have afforded our NHS.
We acknowledge that this is terribly difficult. We do not want these measures to be in place for a day longer than is absolutely necessary, which is why they must be accompanied by openness, accountability and scrutiny at a greater level than we would ordinarily see. I note that the Chairman of the Secondary Legislation Scrutiny Committee considered a significant number of statutory instruments that make provision, either directly or indirectly, to deal with the coronavirus pandemic. He said:
“Some of these instruments temporarily impose significant and far-reaching restrictions on citizens and businesses, and the Committee noticed the use of a wide variety of different sunset dates and provisions.”
That is absolutely true. We face a very confusing legislative and regulatory framework.
I am also concerned about the monitoring of the Care Act and the other measures in the emergency legislation that we passed just before lockdown. When will we have the opportunity to discuss them in the House?
The three-weekly review of the regulations means that the Secretary of State is legally required to terminate any regulations that are not necessary or proportionate to control the transmission of the virus. Will a statement providing a helpful examination of that requirement follow the review, and will an Oral Statement follow each subsequent review? Can the Minister assure the House that relaxation of the measures and what will happen in the future will be discussed with opposition parties, employers, trade unions and, of course, the public?
That leads me to my next point. The current rules, sweeping as they are, are too numerous. As the Minister said, the next phase will contain a longer list of reasonable excuses to leave home; it is even more important that those rules be clear and consistent. The rules need to be harmonised with the advice, guidelines and all forms of official communication, as most noble Lords said. We do not want people to infer legal authority where there is none or to act outside the law. That is vital to preserve the rule of law. We know that the lockdown was a blunt tool—effective nevertheless—that will change by definition as restrictions ease. There will be a measure of nuance, distinction and variation that requires careful explanation and policing.
In conclusion, we on these Benches do not oppose the regulations, of course, but, given that they represent the most severe restrictions imposed on British liberty in modern history, it is critical that they be subject to continual comprehensive and transparent scrutiny.
My Lords, this has been an important debate about what many noble Lords have rightly called important regulations that affect everyone in this country. I thank very much all noble Lords who contributed. Before I address specific issues raised by individual Members, I reiterate the Government’s commitment to working in partnership with opposition parties and Parliament in developing the policies that find expression in the legislation we debate in this House.
This afternoon’s debate has been a classic of its kind: an opportunity for the Government to hear, through parliamentarians, the concerns of a wide range of society, as demonstrated by the excellent contributions to the debate. The delay mentioned by many noble Lords is no one’s preference and it is not for me to comment on it, but I reassure the House that the Government’s commitment to accountability is undiminished. I remind the House that we will have a debate in September on the Coronavirus Act and that there will be a report on the measures in two weeks’ time.
I reassure the noble Lord, Lord Hunt, that the Government are listening to parliamentarians and to the public. I reassure the noble Baroness, Lady Wilcox, that there is daily engagement with the devolved Administrations that is characterised in particular by the very close collaboration of the four CMOs. We listen very carefully to front-line workers and their representatives, remembering that those front-line workers bear the heaviest burden in combating this terrible disease. They are the people who deserve our protection. I reassure the noble Baroness, Lady Thornton, that guidance for employees and their roles in the workplace was published yesterday. I would be happy to send a link if that would be helpful.
We listen to the scientific and other evidence that defines the set of policy options we must choose between. I will take a moment to reassure the noble Lord, Lord Alton, that no one in this Government has ever called for us to “run it hot” and that our priority has always been to save lives. Our choices are influenced by what the country can afford to do, as well as what we can afford not to do. Our challenge therefore is to reconcile what the weight of evidence points to as the right choice, alongside people’s appetite for that choice and the resources that we can bring to bear to implement it.
I reassure the noble Baroness, Lady Barker, that science remains at the centre of decision-making and transparency remains our watchword. My office will forward a link to her office of the table outlining the implementation measures under the Coronavirus Act, which was published on
I completely recognise the very good points made by the noble Lords, Lord Hunt and Lord Scriven, and others, that the regulations issued by the Government are complex and sometimes feel overwhelming. Dozens of guidelines are issued by Public Health England to cover every aspect of public, business and civic life. It is a huge publication exercise and the goalposts have quite necessarily moved this way and that as we have sought to be flexible to adapt regulations to changing circumstances and to the advance of science.
On each occasion that we have issued new guidance, there have been, as the noble Lord, Lord Kennedy of Southwark, rightly pointed out, questions and requests for clarification from the public. However, I reassure noble Lords that the public have been hugely supportive. They massively endorse the lockdown regulations, and their understanding of complex guidelines has quickly settled down into common-sense interpretation.
It is worth noting that the number of police interventions has not been large, as suggested by the noble Baroness, Lady Jones. In fact, it has been tiny, with just 8,000 fines in total. That is reassuring considering the massive impact of these guidelines on people’s lives. In response to the noble Lords, Lord Scriven and Lord Rosser, I commend the police, who have applied the guidance on what the new laws will entail with remarkable common sense, professionalism and restraint.
The excellent advice that we get from our advisers is world class and has guided the choices that we have made. I reassure the noble Baroness, Lady Hamwee, that we work very closely with the Behavioural Insights Team. I pay special tribute to the team and its director, David Halpern. They have brought humanity and communication skills to the otherwise clinical epidemiological advice of the scientists.
In response to the noble Lord, Lord Campbell-Savours, a face covering is not the same as a surgical mask or a respirator, which should both be reserved for those who need them most. However, we are encouraging the public to wear face coverings in enclosed spaces where social distancing is not possible.
I reassure the noble Baroness, Lady Finlay, that the most vulnerable have always been at the forefront of the Government’s thinking. We have provided guidance for those implementing the regulations on quarantine, which require that, where a person lacks the relevant mental capacity, the local health protection team should liaise closely with their relatives or other persons in making a decision.
I reassure the noble Lord, Lord Alton, and my noble friend Lord Wei that we are working closely with local authorities, the directors of public health and environmental health officers. That reliance on local services will only increase as our testing and tracing operations are rolled out in the community and our dependence on local knowledge is made all the more important.
However, we have to take account of what people in the UK can be expected to put up with. My noble friend Lady Wheatcroft raised very searching questions about these regulations and their impact on the economy and on personal freedoms. We recognise those concerns. I say in response that I never thought that in my life I would be standing at a digital Dispatch Box defending such draconian and expensive measures. None the less, I reject her analysis. We cannot protect the NHS and the people who are vulnerable to this disease if we do not implement the common-sense measures in these regulations, and the public, by and large, agree. That is why we have decided to protect the NHS and, in doing so, save lives.
I assure my noble friend Lord Blencathra that it is the disease and not the Government that is prejudiced against older people. I reassure my noble friend Lady Altmann that the guidance does not class individuals over 70 as clinically extremely vulnerable, and therefore they are not treated differently from the rest of the population on the basis of their age.
We now need to make careful preparations to return very gradually to a normal life, one day repealing these regulations. I assure my noble friend Lady McIntosh of Pickering that the regulations are due to expire six months after they come into force.
This is neither easy to describe nor simple to carry out. Emerging from the lockdown requires constant and careful watch over a wide range of evidence, followed by expert evaluation of that evidence, then a precise calculation of what legislation and other changes will be needed to bring about the successful outcome. I am sure there will be many occasions over the coming weeks—and, in all likelihood, months—when we can debate these matters further. For now, I assure your Lordships that we have heard today’s contributions and will reflect on them as we develop the policies.
I end by paying tribute to the resilience, patience and fortitude that the people of the UK have demonstrated every day for the last few months in helping combat this outbreak. That investment has been worth it. We have averted a catastrophe and flattened the curve. Because of this, the NHS and other front-line staff have been able to save lives. That sacrifice has been worth it. As a Government, we will play our part by making sure that the burden is no more onerous than it absolutely needs to be. These regulations ensure that.