Amendment to the Motion

Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 4) Regulations 2020 - Motion to Approve – in the House of Lords at 1:23 pm on 6th October 2020.

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Lord Lamont of Lerwick:

Moved by Lord Lamont of Lerwick

To move, as an amendment to the above Motion, at end to insert “but that this House regrets the failure of Her Majesty’s Government adequately to consult the public in the preparation of the Regulations and the impracticality of enforcing the measures”.

Photo of Lord Lamont of Lerwick Lord Lamont of Lerwick Conservative

My Lords, I have tabled this amendment to raise a few questions about the rule of six, on which I am grateful to the Minister for his comments. He has already conceded that there are lots of inconsistencies and injustices but that these are put there in the name of simplicity. However, for many people, that makes it more difficult for rules to be accepted as legitimate.

Many people want to know the basis on which the rules are made and the scientific basis for the rule of six. The very fact that there are different regimes in different countries in the UK, all based on exactly the same science, suggests that there cannot be a precise basis for the figure of six. Is it just fingers in the air for each country of the UK?

Six means that a family with four children cannot have a family gathering with even one set of grandparents. If a couple invites another couple from next door and have two children upstairs, that counts as six, but if the couple who have been invited have three children next door, for some reason the three do not count. How can this be logical and how can it be fair in terms of spreading the risk of infection? It does not make sense. Why cannot children under 12 all be exempt, as in Scotland and Wales? What is the point of the rule anyway, when one can go into a carriage on the Tube or into an office or supermarket and find oneself positively close to a lot more than six people?

It becomes more difficult to understand when one considers some of the exemptions; for example, that for “linked families” and “support bubbles”. What exactly is a linked family? What exactly is a support bubble? Who decides whether a support bubble is genuine or just a convenient excuse?

The SI that we are considering has a limit of 30 for a wedding, but it has already been altered to 15 in another statutory instrument. The 30-person limit was guidance and not law in July but overnight became a 15-person limit on 28 September without any parliamentary process. This law affects many couples and an important sector of the events industry. A rather dry, cynical, mathematical friend of mine pointed out that, at a wedding, there are two main participants: each gets seven and a half friends. At a funeral, there is one body, who gets four times as many friends. This may not be the most appropriate way of looking at it, but it has a certain logic. Can the Minister explain what his logic is and why it is superior?

There are so many different events. At a christening, is it true that a baby counts as one of the total for the six? As for Halloween on 31 October, apparently parents will be fined if children go trick-or-treating in groups of more than six. The fine, I am told, is £200; perhaps the Minister will tell me that it is £3,000. Is the person who answers the door to the trick-or-treater included in the total of six?

Edmund Burke once remarked that

laws reach but a very little way.”

There is a limit on how far laws can influence behaviour, and a wise Government do not pass over-intrusive laws.

My amendment refers to the difficulty of enforcing these rules. How is this to be done? Will police officers force their way into private houses? The police in Glasgow have announced that they have already broken up 300 gatherings in private homes. What will this do for public support for the rules? Two Ministers have suggested that people should inform on their neighbours. It is one thing to report your neighbour if you see that he is building a bomb factory, but if he is holding a barbecue for seven people, are you really going to report him?

I deplore any suggestion that we should become a nation of informers like the old East Germany. As the Minister said, the whole point of the rule of six was to simplify things, but when the regional variations are added on top, it becomes absurdly complex. As well as the national rule of six, there are seven local regimes, and that is on top of the variations between the devolved Administrations. As we saw the other day, Ministers, including the Prime Minister, struggled to explain what the rules were in the north-east of England—I sympathise, with the “gotcha” journalists all around him—but ordinary people face fines if they do not know what the rules are. A noble Lord on the other side of the House drew my attention the other day to a cartoon in one of the newspapers which showed a man in a pub talking to his companion, and he said to him, “I’ve just downloaded a wonderful new app. It tells you whether in the last 14 days you’ve been in close proximity to anyone who understands the rules.”

My amendment refers also to the lack of consultation. With this SI, as with others, we have the element of retrospection. The SI was introduced on 13 September and became law one minute after midnight—which probably left some people breaking the law in the wrong house at the wrong time. Last week, MPs won the right to have a say in the implementation of national rules. That is welcome; I hope it will really happen, and it should have happened earlier. Local government matters. Some mayors have complained about a lack of emails, a lack of phone calls and no documentation.

Last week, when we had the debate, I put to the Minister a direct question which he did not answer. May I put it to him a second time? The Health Secretary has talked of eradicating—that is the word—the virus. The PM, in his interview on “The Andrew Marr Show”, referred to bringing the virus

“to an end in the speediest possible way”.

What does this mean? Other Ministers give the impression that government strategy is simply to suppress the virus until there is a vaccine. If so, what is there to stop the virus bouncing back every time the rules are relaxed? Are we to continue suppressing the economy until there is a vaccine? What happens if there is no early vaccine? That is the key question I hope the Minister will answer. What exactly is the government strategy?

I am not arguing that we should let the virus rip. We need rules, but we have not had satisfactory explanations. I do not intend to divide the House, but I say this to the Government: this cat’s cradle of rules is in danger of collapsing under its own weight. Popular consent is undermined by arbitrary rules that are hard to follow. For rules to have legitimacy, people need to understand the rationale, and above all, government needs to observe the appropriate limits of laws.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Labour 1:31 pm, 6th October 2020

My Lords, it is a great pleasure to follow the noble Lord, Lord Lamont, and surely he is right. It is one thing to publish and enact regulations, which, from the Government’s view, are simple, but there has to be some rationality behind them. I hope the Minister will answer the question. He said there was no science at all behind the plucking out of the figure of six; can he confirm that that is so? Also, I do not understand why the Government did not exempt young children in England. What on earth is the reason for that? Does he not agree that Government would carry more credibility if there was some confidence in the overall direction we are going in? As the noble Lord, Lord Lamont, has pointed out, different Ministers have been saying different things today about the endgame.

It is not surprising: we have seen a litany of failures, such as the original behaviour by Mr Cummings, which was so damaging to public confidence, and the contrast between the “world-beating” test and trace system and the shambles we have seen week after week. Watching Mr Johnson on “The Andrew Marr Show” on Sunday, when he spoke of the tension between the interests of the economy and public health, which, of course, we understand, he came across as indecisive, late to act and failing to find a way to steer between these two options. The result is that we have failed in both.

Public confidence is very important, and so too is parliamentary scrutiny. Mr Speaker intervened last week. Mr Hancock agreed that, where possible, the Commons would have a vote on national regulations in the future. What opportunity will this House have? In all the talk about new rationalisation of local lock- down regulations into three tiers, can we be assured that Parliament will debate this before they are introduced?

Photo of Baroness Barker Baroness Barker Liberal Democrat Lords Spokesperson (Voluntary Sector), Deputy Chairman of Committees 1:33 pm, 6th October 2020

My Lords, on 21 September, the Joint Committee on Human Rights said:

“Assessments of the proportionality of measures must be up-to-date, based on the latest scientific evidence, and formulated as a result of a precautionary approach to minimising overall loss to life. Importantly, the Government must be transparent in justifying its decision-making, including in explaining how it has balanced competing interests and the evidence on which the balancing decision has been made.”

Twice, now, I have asked the Minister: What is the evidence base for this rule of six? I have had unsatisfactory answers.

On 14 September, the noble Lord said that the phenomenon they had noticed was that large groups of people, sometimes in pubs and other places, would seemingly say that they were from two households. It was

“proving to be extremely flexible in the minds of many people. Therefore, putting an integer into the formula makes it much clearer.”—[Official Report,14/9/20; col. 1002.]

We now have regulations under which it is possible for a person to meet and socialise with 35 people from six households in the course of a week. The public has figured out that that, in public health terms, is an absurdity. It will not work. I am surprised that, during freshers’ week, more students have not got into trouble inadvertently due to the lack of clarity.

Between March and September, Dominic Cummings has, without competitive tendering, paid people and bodies such as Hanbury Strategy £946,000 to

“research public attitudes and behaviours in relation to” the pandemic. That information is paid for by taxpayers’ money. It is not the property of the Government or the Conservative Party, so I ask the Minister: when will that and similar reports be published so that Members of Parliament can scrutinise the basis on which decisions such as these are being made? We are six months in, and the Prime Minister does not know what we are doing, local authorities do not know what we are doing and the general public are bamboozled by the lack of clarity and consistency. It is time for us to get real about this and stop putting people in danger.

Photo of Lord Bilimoria Lord Bilimoria Crossbench 1:36 pm, 6th October 2020

My Lords, we are talking about the rule of six. I declare my various interests.

The hospitality industry employs 4 million people and has been one of the hardest hit in this crisis. The British Beer and Pub Association said:

“Make no mistake, a 10pm curfew will devastate our sector during an already challenging environment for pubs.”

During the current circumstances, every hour of trading is crucial to the survival of pubs. For many, this curfew will render their business unviable. Can the Minister explain on what scientific basis this 10 pm decision was made? I understand that fewer than 5% of infections come from the hospitality sector, and evidence from our trade shows that 10% of drinks are consumed after 10 pm. So, why are the Government doing this, and will they remove this 10 pm restriction?

Another aspect is that Sir Bernard Jenkin, the chair of the Liaison Committee, wrote to the Prime Minister on 29 September, saying:

“We would also like to understand what new measures the Government will be taking to achieve the ‘moonshot’ of 10 million tests per day.”

Will the Minister acknowledge that mass testing is now available? In America, there is Abbott’s BinaxNOW test—10 million were produced last month, and there will be 50 million per month from this month onwards. This is a $5 test that gives a 15-minute result on whether, on an antigen basis, you have Covid or not, with 97-98% accuracy. Why are we not getting such a test over here and making it widely available? I have heard that this Abbott test has not been approved here in the UK. Could the Minister confirm this? If that is the case, why has the FDA approved it, and why have other countries, such as Greece, which has dealt with the pandemic relatively well—it has 36 deaths per million versus our 633, which is very sad. Is this a question of the best being the enemy of the good?

Photo of The Bishop of Rochester The Bishop of Rochester Bishop 1:38 pm, 6th October 2020

My Lords, like others, I tend to think that carrots are more effective than sticks. It is, therefore, vital, if people are to behave as the Government might wish, that they understand and assent to the reasons for particular restrictions.

My understanding of the rationale for the rule of six is that is about restricting the mixing of households. I understand that, and I seek, in my role and personally, to abide by that principle. But what the Minister has said notwithstanding, the anomalies do not help to gain that consent. If I have understood things correctly, I may, in a given period, be a part of more than one group of six, and thereby, I am multiplying the households with which I have contact. Yet, as many have observed—and there are other examples—a couple with three children cannot meet with two grandparents at the same time, even though that would only be two households in most instances.

I genuinely worry about the effect of these regulations, particularly the rule of six, on the long-term flourishing of family life and cohesion, if they persist for too long. My simple point is that the rule of six gives a kind of cliff edge, which could surely be graduated without compromising the principle about household mixing. I rather hope that Her Majesty’s Government will be able to think creatively about how that might be done.

Photo of Lord Palmer of Childs Hill Lord Palmer of Childs Hill Deputy Chairman of Committees, Deputy Speaker (Lords)

I call the noble Lord, Lord McColl of Dulwich. He is not there. I call the noble Baroness, Lady Donaghy.

Photo of Baroness Donaghy Baroness Donaghy Chair, EU Services Sub-Committee, Chair, EU Services Sub-Committee 1:39 pm, 6th October 2020

My Lords, we are caught between the Scylla and Charybdis of the so-called libertarians in the Conservative Party and the well-meaning, but not very competent, government action to deal with the pandemic. The regret Motion in the name of the noble Lord, Lord Lamont, is really a fundamental challenge to the Government’s strategy and should not be supported. However, those of us who want the Government to succeed in saving more lives need more clarity and consistency and, in particular, actual delivery of an effective test and trace system, with care homes and health staff given priority for testing and receiving results in good time.

It is very easy to mock with regard to funerals and weddings and to give examples of inconsistency. What is not easy is delivering effective policies that we all want to unite behind. Please could the Government do better?

Photo of Baroness Walmsley Baroness Walmsley Co-Deputy Leader of the Liberal Democrat Peers 1:40 pm, 6th October 2020

Mr Johnson presented the new regulations as a simplification and a strengthening of the coronavirus mitigation regime, based on consultation with the police and feedback from the public that the existing rules had become quite complicated and confusing. However, the Explanatory Memorandum recorded that a public consultation had not taken place, and nor had a regulatory impact assessment, which is why the noble Lord, Lord Lamont, has highlighted the public consultation issue. Perhaps if it had occurred, the public, or local authorities in particular, would have been able to highlight some of the illogicalities of the rules, because now they are even more confusing.

I, too, would like to ask why the rule of six in England includes children, even when they are upstairs in bed, when school-age children can go to school and work in their class or year bubble of dozens of children? This appears to be contradictory. Why are children under 12 excluded from the rule of six in Wales and in Scotland but not in England? Is there evidence in England that young children are more contagious than they are in Wales? If so, why can they go to school? I would really like to know on what scientific evidence the decision is based.

Secondly, I would like to ask about people with a learning disability or autism, for whom contact with family is vital in helping to maintain their well-being, especially during the pandemic. Current guidance on visitation is mainly aimed at care homes; other settings, such as supported living, have little guidance. There is no information, for example, about people with a learning disability visiting family in the community. Will the Minister ensure that this gap is filled? Will he ensure that people who may have difficulty social distancing or following other guidelines are considered when decisions are being made about the prioritisation of testing at a national and local level?

Photo of Viscount Waverley Viscount Waverley Crossbench 1:43 pm, 6th October 2020

My Lords, remarks do not target the noble Lord, Lord Bethell. If possible, he would be mentioned in dispatches as being of excellent ministerial calibre, but he has political masters. The light-hearted but serious remarks of the noble Lord, Lord Lamont, can be extended beyond the lack of public consultation to constitutional neglect by the Executive in undermining the functions of Parliament to scrutinise and hold the Executive to account. Statements and questions have their place but are not sufficient. The other place must debate and be given the opportunity to impact directly the decisions of government.

The Government had a simple and practical choice: allow parliamentarians, who are the agents of the people, to fulfil their role, or decide at the outset that existing statutory provisions should be set aside. They chose the latter course. This undermining of the role of Parliament as the prime guardian of our constitution is regrettable; provisions of the Civil Contingencies Act 2004 that ensure appropriate parliamentary and civil consultation were at their disposal. The subsequent manner in which secondary legislation has been introduced has brought widespread confusion, and council leaders and some police chiefs are uncertain how to interpret local requirements, let alone enforce them.

The mindset of inadequate “consult and inform”, together with the impracticality of enforcing measures, should be reversed, with correct governance reinstalled. The urgency of the situation requires it.

Photo of Lord Lipsey Lord Lipsey Labour 1:45 pm, 6th October 2020

Balderdash. Twaddle. Gobbledegook. Piffle. Oops, I am sorry, my Lords, I misspoke. I do not want to talk about the content of this order but about its communication, or rather non-communication, led by the Prime Minister.

Every time I speak to friends, I ask them this question: we all know that we are allowed to see only six people indoors at once, but can they be different people, or does it always have to be the same six? Of those who claim to know, a majority think that it is okay to host two guests or family members one night, and two different guests or family members another. But if we are to believe the noble Lord, Lord Bethell— I always believe him—they are wrong, as he said this afternoon and in a Written Answer to me on 10 September:

“Support bubbles should be exclusive. This means people should not … make connections with multiple households.”

I accept that communicating these rules is hard, especially since the utterly meaningless “Stay alert” was substituted in England for the clear, if unpalatable, “Stay at home”. It is particularly hard if, like me, you live in both Wales and England, or if you live in one of the local areas subject to stricter restrictions. It has been made immeasurably harder still when Ministers, from the Prime Minister down, are quite unable to spell out from day to day, even if they know, what the regulations they have flashed through Parliament with minimal scrutiny mean.

Photo of Lord Robathan Lord Robathan Conservative 1:47 pm, 6th October 2020

My Lords, I give my commiserations to my noble friend the Minister, who yet again finds himself in the stocks on this particular debate. I support my noble friend Lord Lamont’s regret Motion, which was introduced with typical aplomb and great good humour. I point out to the House that humour and ridicule are not far separated. I hope that he might divide the House, but he seems to be a little bit pusillanimous on this, which is not like him at all.

By what can we judge the rule of six? There was no consultation, there has been no parliamentary scrutiny until today, and, as the Motion says, it is totally impractical. Every day, and yesterday would be no exception, an average of 1,700 people die in the United Kingdom. According to the National Health Service, yesterday the total number of coronavirus deaths, every one tragic, was 19. Could my noble friend confirm that that is correct? The NHS news release yesterday of deaths in hospital in the preceding 24 hours was 10, all aged between 67 and 91, and all but one patient, who was aged 85, had known underlying health conditions.

Does my noble friend think, therefore, that the rule of six is working? Surely it has not had long enough to stop infections, and it has been widely ignored, as we hear. He said that it would reduce by one-third the number of people gathering, but I am not sure that is enough to stop the spread of infection. Does he think that actually this rule of six is entirely pointless, and that it is entirely pointless to stop young people meeting as they are not going to suffer serious illness or death? Could he also explain “long Covid”, to which he often refers, because is not any respiratory illness difficult to overcome? If you have pneumonia, it is quite likely that you may spend up to six months with effects from that.

Finally, on testing, what proportion—I am told it is a high proportion—of these tests bring back false positives? It seems to me that the testing, and the number of infections, is not the most important thing. The most important thing is who is dying and who is suffering very serious illness as a result of getting Covid.

Photo of Baroness Mallalieu Baroness Mallalieu Labour 1:49 pm, 6th October 2020

I, too, am sorry for the noble Lord, Lord Bethell, but the fact is that the Government are making a mess of handling this health crisis. As the mayor of Manchester has said, the public have had just about enough of it. Parliamentary democracy has been sidelined, and basic civil liberties have been cancelled. In their place we have been given ever-changing draconian regulations, often incomprehensible, unenforceable and apparently based on speculation, someone’s pet theory or pure guesswork, and all done without any prior debate. This regulation is a good example.

Back in March, we gave the Government almost carte blanche; we wanted them to succeed and we still do. Now, we know a great deal more about Covid and its potential death rate. More people have died of flu and pneumonia over the same period, and many more are likely to die from conditions that have been untreated as a result of this epidemic. We also know that current repressive policies are destroying our industries, our culture, our sport and indeed our way of life.

Randolph Churchill said, “Trust the people”. The Government have not done that, but if they do not do it then people will stop trusting the Government, and that is what is happening. Of course we need rules, but we need sensible ones which everyone can see are sense and which are enforceable. Some people are foolish and irresponsible, and they are now, but no one wants to get Covid and most people will co-operate with things they think are worth doing. If you order people to obey laws which they can see make little sense and which are almost wholly unenforceable, and if you try in this particular regulation to ban things such as “mingling”—whatever that is—you undermine respect for the whole rule of law and you will come to a tipping point in compliance, even with the most law abiding among us. We are reaching it now, and I support the noble Lord, Lord Lamont.

Photo of Lord Bourne of Aberystwyth Lord Bourne of Aberystwyth Conservative 1:51 pm, 6th October 2020

My Lords, I strongly support a very strong response to this virus and believe we need to bear down upon it very heavily. An unadulterated libertarian approach to this public health crisis would be disastrous for our country and our people. I believe the public will respond to clear, consistent messaging, and I urge the Government to ensure that such messaging is better focused, clearer and consistent, because that has not always been the case. Indeed, there is often confusion about the basic messaging. I agree with other noble Lords and with my noble friend Lord Lamont that we need more parliamentary input and proper scrutiny in order to be able to look closely at the regulations and offer support to the Government.

On a completely different front, although one that is clearly related to the virus, I would like to say something about Chris Whitty and Sir Patrick Vallance. It was dreadful that they were attacked in the other place. I am very pleased that that has not been the case in your Lordships’ House, because they are public servants and not able to respond. They are doing a very difficult job in difficult circumstances and they deserve our support.

I would welcome confirmation from my noble friend that ultimate success will come only with a vaccine, and, in the shorter term, with effective testing and tracing. Clearly there is still much work to be done on both of those fronts. On the former, it is more difficult for the Government to take a lead on the vaccine, but in relation to test and trace, they really do need to get their act together.

I support these regulations. I cannot support the amendment, though I understand the motivation of my noble friend Lord Lamont in bringing it forward.

Photo of Baroness Wheatcroft Baroness Wheatcroft Non-affiliated 1:53 pm, 6th October 2020

My Lords, these regulations came into effect 28 minutes after they were laid. That is far from satisfactory. The Minister himself accepted that there were many inconsistencies in the regulations now. As others have pointed out, the lack of logic is what makes people so angry about the ever-changing rules with which they are expected to comply.

The noble Lord, Lord Lamont, raised many valid questions, including the contrasting rules between weddings and funerals. A friend of mine, a priest, is suggesting that there should not be any split families over Christmas: the host simply has to slaughter a turkey and stage a humanist funeral. Such jokes arise because the regulations do not make sense. I can see the point in limiting the mingling of households, but where is the sense in preventing grandparents, from one home, meeting with a second household of their son, his partner and their three children? Regulations need to make sense, but they also have to be based on a degree of humanity if people are to abide by them.

Many families are now facing problems with childcare. It is fine under the regulations for them to send their offspring to a nursery or to a registered childminder, but how much more sense might it make for those children—maybe from two different households—to go to the home of their grandparents to be looked after while their parents contribute to the economy? Would that not be a healthier solution? It would limit the mixing of households, but it is not allowed. We need some common sense.

Photo of Lord Wood of Anfield Lord Wood of Anfield Labour 1:55 pm, 6th October 2020

My Lords, governing in these torrid, complex, challenging times is not easy. None of us should pretend that it is. I have three questions and a plea for the Minister, specifically about the rule of six.

First, given that scientific studies have shown that the risk of transmission is 20 times greater indoors than outdoors, why does the rule of six abandon that distinction? I know the answer: simplicity. I understand the force of that, as the noble Lord, Lord Lamont, said. However, if the Government want to use the authority of science to generate legitimacy for and adherence to rules, and the science suggests that a rule is not grounded in science, they must at the very least bring the public inside their reasoning for why there is an exception. You cannot simply cite science and say that it always supports your conclusions, and not mention it when it does not, and then simply keep citing the mantra: “We will always be led by science”.

Secondly, have the Government considered the unintended perverse behavioural effects of the rule abandoning this outdoor/indoor distinction? Eliminating the distinction between gathering in groups of up to six outside, where the risk is very low, and gathering in groups of up to six indoors, where it is around 20 times higher, means that people who want to break the rules, and are determined to do so, are incentivised to gather indoors and not outdoors, where the rules are more likely to be enforced. Why did the Government not follow the Welsh option of having more relaxed rules for outdoor gatherings?

Thirdly, if we look to our partners in western Europe, we see variations in rules, of course, but also some constants. Public gathering limits are considerably higher: 10 in France, 50 in Germany, and none in many countries. Private household gathering limits, apart from in Ireland, are rare, and mask wearing is considerably more compulsory in public than in the UK. Taken together, this suggests the UK is becoming an outlier: it is restriction heavy and face-mask-wearing light relative to other countries. Is this because our science knows something that they do not, or is it because the British people behave differently from those in other countries? What is the reason for the UK being an outlier in the portfolio of measures we seem to be taking?

Lastly, I make my plea. The Government rightly adopt a mixture of national rules and local variations. However, across England, local authorities have consistently complained about an absence of consultation, decision sharing and refining of rules in the light of local circumstances. Can the Government please now commit to greater responsiveness and flexibility towards local considerations, to allow a local refinement of rules that are, after all, unlikely to be equally appropriate for Camden, rural Dorset and Manchester?

Photo of Lord Cormack Lord Cormack Conservative 1:58 pm, 6th October 2020

My Lords, here we are again: post-legislative scrutiny and a hapless Minister, who has worked with prodigious vigour—we all salute him for that—given a frankly indefensible brief. The hallmark of a good law is clarity and simplicity, so that we all understand what it is. Here we have a law that is continually riddled with new anomalies and new inconsistencies. My noble friend Lord Lamont pointed out a number of them with his customary good humour, but it is not really funny, is it? This is touching the lives of people throughout our country, in a cruel way in many cases.

The rule of six was most effectively ridiculed in your Lordships’ House a week ago. Not that it was a directed ridicule, but our new noble friend Lady Morrissey said with quiet pride that she has nine children, seven of whom were still at home. We have got to have a law that can be seen to be fair. We have got to have laws that can be seen to have been properly discussed and debated in the other place, and indeed in your Lordships’ House where there is an accumulation of ministerial and medical knowledge second to none in any chamber in the world. We really must get the horse before the cart, because we are not doing that at the moment. Of course I feel sorry for my noble friend, who I genuinely like and admire, but he is being given an indefensible brief. May we hasten the day when he has one that he can truly defend and that we can all support.

Photo of Lord Liddle Lord Liddle Labour 2:00 pm, 6th October 2020

My Lords, I put my name down to speak with some reluctance because I am getting fed up with saying the same thing about the lack of parliamentary accountability and the way in which these regulations have been introduced. It is scandalous and high time that something was done. I agree that the most important point was made by my noble friend Lord Hunt, who asked whether the Minister could guarantee that when further major changes to these regulations are introduced—the new so-called three-tier system—the House can debate them before they are implemented and become law. This could be done through new arrangements for a special committee, agreed through our Procedure Committee, or by the whole House.

The noble Lord, Lord Lamont, gave a sparkling speech, much of which I agreed with. If regulations can be ridiculed in such a successful manner, they cannot be sensible and command public assent.

I end on a policy point. Far from stressing the rule of six, if we are to control this disease, it is most important to get the test and trace system right and tackle the fact that a low proportion of the people being contacted and asked to self-isolate are doing so. Getting that system right and involving local authorities on the ground is most important, as well as personal contact to persuade people to self-isolate.

Photo of Baroness Neville-Rolfe Baroness Neville-Rolfe Conservative 2:02 pm, 6th October 2020

My Lords, I, too, support the amendment of my noble friend Lord Lamont on two grounds. The policy is wrong for reasons that I will explain, and I am disturbed by the level of scrutiny the regulations have enjoyed.

I appreciate that life is difficult for the Government and that there are many uncertainties, which is not dissimilar to the problem that businesses face most of the time. The more difficult the problem, the more important it is to keep a cool head and have proper impact assessments or cost-benefit analyses—call them what you will. The bottom line is that urgency is not a good excuse for bad decision-making.

Such an assessment should cover at least four issues. First, is there a medical and scientific case for the measure? There seems no logic behind the rule of six other than a general wish to slow down the infection rate, but we can surely do better than that. My noble friend Lord Lamont set out the nonsenses clearly in his typically brilliant and witty speech. Dr David Strain of Exeter Medical School, in an area without much Covid, put it succinctly. He said:

“There is no science behind it and there is no logic as to why six would be useful.”

Therefore, my first question to my noble friend the Minister is: what is the scientific justification for the measure? I have asked this several times and have yet to receive a satisfactory reply, including in the Minister’s introduction.

The second issue, not yet focused on, is whether the rule can be justified economically. It is killing our service sectors—pubs, entertainment and spectator and community sport. Where is the assessment of damage that the Government should have done before embarking on such a huge step? Socially the measure has many adverse effects, notably in separating families. My third question is whether these adverse social effects are necessary or acceptable. I suspect not. Fourthly, can such a rule be implemented and enforced properly? On that, we know the answer: it cannot.

The measure fails on all four counts. Accordingly, it should be replaced with something more realistic and less damaging. I endorse everything that my noble friend Lord Lamont said regarding scrutiny.

Photo of Lord Bhatia Lord Bhatia Non-affiliated 2:05 pm, 6th October 2020

My Lords, although the requirement in England limiting group meetings to no more than six people, indoors or outdoors, came into effect on 14 September, data from the Joint Biosecurity Centre has indicated that the incidence rates of Covid-19 around Birmingham are significantly above the national average, and increasing. The data also indicated that a high proportion of the new cases were due to transmission within or between households. The regulations therefore impose tighter restrictions on those living within the protected areas of Birmingham City Council, Sandwell Metropolitan Borough Council and Solihull Metropolitan Borough Council. They prohibit those living within the protected area from gatherings of two or more persons from different households in private dwellings in or out of the protected area, except for linked households as defined.

The regulations allow visits to care homes only in exceptional circumstances. When the restrictions were announced, the Secretary of State for Health and Social Care, Matt Hancock, said:

“After seeing cases in the West Midlands continue to rise, the decision has been taken in collaboration with local leaders to ban households mixing in Birmingham, Sandwell and Solihull.”

Can the Minister say how many people have been arrested or fined since the rules were declared?

Photo of Baroness Massey of Darwen Baroness Massey of Darwen Labour 2:07 pm, 6th October 2020

My Lords, safety is, of course, paramount. Somehow, the messaging from the Government seems not to be acceptable to many. It is seen as irrelevant and sometimes incomprehensible. A young man from Leicester said to me recently, “The advice from the Government about mixing with other people makes no sense—too complicated. I would just like 100% clarity on what I can and can’t do but with an explanation based on the science behind any restriction.” It concerns me that local councillors, political leaders and people in communities complain about a lack of consultation. The Mayor of Middlesbrough called it

“a monstrous lack of communication and ignorance”.

Communities need to feel communicated with. I have much sympathy with the amendment to the Motion moved by the noble Lord, Lord Lamont.

I give another example. The other day, I asked the Minister a question about encouraging people to take up the NHS Covid app. One noble Lord asked how many university students had downloaded it. The Minister replied that he could not give an answer to a “reasonable question” and that we did not have that kind of demographic insight. I do not blame the Minister but that suggests that we have no knowledge of who is doing what at a local level, including in the hotspots in the north of England. I suggest that we need these granular demographic insights and efforts to influence behaviour, not only locally but in specific cases, such as among university students and younger people. We need to attract and involve younger age groups in the light of findings that, while few may be ill, many may have the virus but be asymptomatic. We also need insights from older age groups. Asking people to restrict their movements and groupings, and behave differently, means involving them in decision-making. The Government handing down edicts will simply not work.

Photo of Baroness Noakes Baroness Noakes Conservative 2:09 pm, 6th October 2020

My Lords, I endorse everything that my noble friend Lord Lamont said and I shall list as many of my concerns with the regulations as I can in the two minutes that we are allowed.

First, the rule of six is not based on science. Indeed, the Minister revealed its basis when he said on 14 September that the Government had relied on

“marketing advice from our communications department”.—[Official Report, 14/9/20; col. 1000.]

He also referred to focus groups. The Minister might think that that is science-based but most would disagree with him.

Secondly, Ministers would double down by encouraging snitching. That is not the kind of society I want to live in. Thirdly, the rule lacks logic. It is illegal for seven children to gather together to feed ducks, but it is perfectly okay for 30 adults to go out shooting them—the ducks, that is.

Fourthly, the order lacks precision. It makes mingling yet another way to break the law, but does not define it. On 14 September, the Minister said that it was

“a concept which, frankly, I do not think needs much description”.—[Official Report,14/9/20; col. 999.]

Frankly, I think that that is an unacceptable way to legislate. Fifthly, as usual, there is no analysis of impact or alternatives and no attempt to explain the balance between the competing interests of our economic future, non-Covid mental and physical health matters and the narrow Covid impact.

I could go on, but sadly I have run out of time. I regret that my noble friend Lord Lamont is no longer pursuing his earlier fatal Motion. That would have had my vote.

Photo of Lord Haskel Lord Haskel Deputy Chairman of Committees, Deputy Speaker (Lords)

The noble Baroness, Lady Uddin, has withdrawn, so I call the noble Lord, Lord Hutton of Furness.

Photo of Lord Hutton of Furness Lord Hutton of Furness Labour 2:10 pm, 6th October 2020

My Lords, I hope that the measure we are discussing today will have the effect that the Minister and the Government intend—that it will limit the spread of the coronavirus in our society. But anyone who thought that the rule of six was going to inject some clarity and simplicity into the regulatory framework needs only to read the 25 pages of these regulations and the seven new definitions, along with the interesting new legal concept of “mingling”, which has never before surfaced in British legal history; good luck to the judges in making sense of that particular term.

I hope that the measure will have some impact—we all want it to. I have three brief points to make; many of them have been made already. First, the Government now have to find a different way of legislating to impose these restrictions. I do not believe that the Public Health (Control of Disease) Act 1984 is a viable platform for this legislation because we need more parliamentary scrutiny. I echo the noble Viscount, Lord Waverley, in inviting Ministers to reconsider the use of the Civil Contingencies Act 2004. As a minimum threshold of parliamentary scrutiny in this field, where our cherished personal freedoms are being overridden, the minimum requirement of 30 days’ duration for any new law is a threshold that we should follow.

Secondly, but better still, the Government should consider again devolving much more of the responsibility for imposing local restrictions to tackle the Covid epidemic to local authorities. I do not think that central government can manage the workload of doing this. The Government have centralised everything in their response to the Covid pandemic and that is failing. They have to find a different way of proceeding. If we go on this way, we will run the risk of civil disengagement and, worse still, of civil disobedience, which would bring disrespect for the law into mainstream public behaviour in the UK, which would be a tragedy.

Thirdly and finally, at the very least, we must avoid examples of last-minute lawmaking behind closed doors. Now that Parliament is sitting again, there can be no justification whatever for laws which impact on the lives of so many people being introduced with 30 minutes’ notice from behind closed doors.

Photo of Lord Dobbs Lord Dobbs Conservative 2:12 pm, 6th October 2020

My Lords, “hundreds of thousands” of people would die if we simply “let the virus rip”. That is what the Health Secretary said last week, but I am baffled because I have no idea who is making these silly suggestions. The Prime Minister has said that some people think we should

“give up and let the virus take its course”.

Who is proposing that? It worries me when we go to extreme lengths to deal with extreme arguments; that only adds to the confusion, and there is confusion. I share the confusion of my noble friend Lord Lamont about the 10 pm pub curfew and about how we are going to get through Christmas with the rule of six.

Kate Bingham, the head of the Vaccine Taskforce, in an interview with the Financial Times, has offered a rather more interesting insight: less than half the population is going to get the vaccine—if there is one. There will be no vaccinations for the under-18s because it is aimed primarily at those over 50. Looking at the death rates rather than the infection rates, that seems to make great sense. It suggests that we can and must be far more flexible in our approach by differentiating between those most at risk and younger, healthy people who are not going to die from the disease. If we can do that and put aside the one-lockdown-rule-fits-all approach, we could put our economy back into shape much more quickly. We could speed up medical help for non-Covid patients and we could strike a stronger balance between the competing medical, economic and social tensions. However, it is news to most that not everyone is going to get the vaccine and I hope that my noble friend will be able to shed a little light.

Photo of Lord Beith Lord Beith Liberal Democrat 2:15 pm, 6th October 2020

My Lords, I thank the noble Lord, Lord Lamont, for tabling his amendment to focus attention on the deficiencies of process which have attended these and related regulations. I very much welcome the fact that my noble friends Lady Bakewell and Lady Walmsley, the noble Baroness, Lady Wheatcroft, and others have pointed out some of the awful inconsistencies that are resulting from these kinds of regulations. The noble Baroness, Lady Massey, quite rightly pointed to the failure to consult closely with local government in a number of instances where, if proper consultation had taken place, it could have made a real difference.

Confusion is widespread, as is inconsistency. A resident of Berwick, where, according to the Government’s dashboard figures, there are three cases per 7,000 people, is being subject to the same restrictions as those in parts of Tyneside 60 miles away, where in one area there have been more than 280 cases per 7,000 people. The regulations lack any ability to distinguish. Indeed, a citizen of the north of England, whether the north-east or the north-west, having secured a copy of the regulations we are debating today, might think that they would be able to glean what the law is, but they would be mistaken because they would also need to look at a series of other regulations. They would find themselves bound not just by the rule of six but by the rule of two, which is actually the rule of not meeting anybody else at all. You are not even allowed to meet one other person; you are the only person you are allowed to meet under those regulations.

To understand the law, the citizen would also need to look at the Health Protection (Coronavirus, Restrictions) (North of England, North East and North West of England and Obligations of Undertakings (England) etc.) Amendment Regulations 2020, which were made on 29 September and came into force at midnight on that day, but were laid before Parliament only at 10.30 am the following day, and therefore accessible to us—10 and a half hours after they had come into force. As far as I could establish, they were not on the Government website at 8 am that day. The Prime Minister had no idea what the provisions were anyway, while the previous statutory instrument relating to the north-east had to be amended within hours of being made.

I welcome that the Government have promised parliamentary votes on major orders of national application, but I have to say that the loss of freedom in Berwick, Blackburn or Bolton is no less significant than the loss of freedom in London and other parts of the country. Some of these local orders are of massive significance in terms of the civil liberties they abrogate.

I agree with the noble Lord, Lord Hutton of Furness, who made a related point, that we need to question the Government’s attitude to the made affirmative procedure under which orders come into force before Parliament has considered or approved them. They have been overused. I recognise that sometimes there is a case for using them to guarantee that an order will come into effect quickly if there is a very serious need for it, but Parliament can act quickly if the Government are prepared to co-operate. I hear criticisms of Parliament, such as by the noble and learned Baroness, Lady Hale, for not having considered and debated these matters, but the Government control the agenda in the House of Commons, so Parliament’s inability to act quickly is a matter for the Government to resolve. I am glad to see that the Minister has noted that point because it can be the Government who hold up debate.

I do not see why new restrictions which have been announced many days—or even a week or more—before they come into force cannot be debated. When they are announced, the order should be laid before Parliament and strenuous efforts made in the days before they come into force to have at least the short debates for which our procedures provide. The capacity for democratic control over major incursions into people’s freedoms should not be diminished because not enough resources have been made available to draft the orders in time.

Parliamentary scrutiny can identify bad drafting and increase the chance that at least some people inside and outside Parliament will actually understand what the law is. There are several threats to the effective application of emergency measures: when the public do not understand them or the reasons behind making them, a point which has been illustrated in this debate by a number of noble Lords; when those responsible for enforcing them do not know what is the law and what is guidance, a mistake which has even been made by police forces and the Crown Prosecution Service; and when the measures are themselves defective to the point that even those responsible for carrying them out have failed to recognise that they are, so that prosecutions have to be abandoned or fail. All these problems would be addressed and reduced by parliamentary scrutiny. As the noble Lord, Lord Lamont, has argued, there needs to be a clear government strategy and we need to know what it is.

Photo of Baroness Thornton Baroness Thornton Shadow Spokesperson (Health) 2:20 pm, 6th October 2020

I start by asking the Minister a procedural question, as other noble Lords have. Will we in this House get to discuss the statutory instruments following the debate on the renewal of emergency legislation in the Commons? We know that the Commons will be able to vote. My understanding of what the Minister has said is that we will not get to see these statutory instruments in advance. I had been rather optimistic and excited, because I thought we might see an end to the dozens of pointless, time-expired statutory instruments that we have had to endure for the last few weeks and months—and indeed can look forward to between now and Christmas.

I fully understand why the noble Lord, Lord Lamont, is frustrated by the rule of six and has asked many pertinent questions. I thank the noble Lords, Lord Hunt, Lord Liddle, Lord Lipsey and Lord Wood, and the noble Baronesses, Lady Donaghy, Lady Massey and Lady Mallalieu, for making strong, sensible and quite often witty remarks today—which is quite hard when you are discussing statutory instruments that have already been in place a couple of weeks. The theme running through their remarks, and those of other noble Lords today, is that we are all fed up with these unsatisfactory legislative and accountability decisions.

I have a few questions of my own. As we know, it is now illegal for groups of more than six to meet. That is simple and clear, we are told by the Secretary of State and the Prime Minister. The law applies to all parts of England, except of course places with local lockdown rules, where the rules may be tighter. It is therefore clear, as long as you know the rules and the lockdown situation in your area. We are told that the reason for this restriction is the rise in coronavirus cases in England. The Government have decided to lower the number of people allowed to socialise at any one time to help keep people safe. Scotland took similar steps, cutting the number of people who can meet but excluding children under 12. Wales too has its own rule of six, which came into force on the same day, but it does not apply to children under 11 and covers only indoor meetings. Northern Ireland has stopped people meeting indoors completely, but allows six people to meet in the garden and up to 15 in a public area.

Can the Minister please point me to the science that has led to all these different decisions? His explanations did not provide that, and I dispute the idea of this being at all simple. We did not see an impact assessment. Would it be possible to see one? When is the effectiveness of the rule of six to be reviewed? When will there be an assessment of its impact on the young? The Children’s Commissioner has asked for children to be excluded from the rule in England, and I agree with that.

Last week, when she responded to the Prime Minister’s Statement, my noble friend Lady Smith pointed out that she could have breakfast with one group from this House and lunch with a different group—I think she even invited some of us to join her for a curry in the evening. This was to demonstrate the fact that the rule is flexible and probably rather unclear. I think that she is right, and I am looking forward to having a curry with my noble friend.

These rules will work only if people comply. While the police have powers to fine people who break the rule of six, forces in England and Wales have said that they will do so only as a last resort. I do not understand how that works, because people will be in a group of six or more only for a very short time. How on earth will the police issue warnings to all those people and then watch them to see whether they get themselves into another group of more than six? Can the Minister confirm how many fines have been issued for breaking the rule of six and their value? The penalty for failing to wear a mask or breaking the rule of six has now doubled to £200 for a first offence. I would like to hear from the Minister whether that is working as a deterrent.

The Metropolitan Police also said that officers will not generally pursue people retrospectively—whether famous or otherwise—if photographs or video footage emerge of them breaking these rules, including the rule of six. Does the Minister agree with that approach? Does he share my concern that people flouting the rules and getting away with breaches undermines public faith in their effectiveness? Perhaps that could act as a deterrent.

On the other hand, does enforcement of the rule of six rely on people grassing up their neighbours? Can the Minister confirm how these regulations will be enforced in public spaces? For example, if an employer suspects that two or more groups of six in his pub are actually together, and in breach of the rules, what enforcement action are they required to take?

One of the more controversial exemptions from the rule of six is for those involved in certain sports, including shooting and hunting. Will that also be reviewed? Does the Minister accept that these are often social occasions and that, if we follow his line of thought on pub curfews, people will be less likely to observe social distancing guidance across the piece?

In other words, it is a very confusing framework and the rule of six is very far from being simple.

Photo of Lord Bethell Lord Bethell The Parliamentary Under-Secretary for Health and Social Care 2:25 pm, 6th October 2020

My Lords, I am extremely grateful for this debate, not because it was particularly enjoyable for any Minister to be described in the terms that I was—although I am grateful for some of the kind words—but because it was an important one. What I heard, loud and clear, was huge frustration: it was like listening to an elastic band being stretched to breaking point—not a pleasant sound. However, it was an important moment when we heard quite clearly the deep and heartfelt concerns of noble Lords about the key issues around this statutory instrument. I will address those concerns in turn.

Fundamental is the science, and I will talk a little about the background to this statutory instrument because there is clearly enormous concern about that—about the Government’s strategy and its complexity, and about the sheer volume, sophistication and confusion of the guidelines and the requests that are being made to the public, and the process by which these instruments are being put together. It is a lot to bite off, but I will cover it as well as I can.

I want to convey to noble Lords that in the past six months our understanding of the virus has changed dramatically. From receiving telephone calls from the front line of the health system we now have a massive information system plugged into the Joint Biosecurity Centre, which was designed by the best minds that the Government have from the intelligence services, the data services and the Cabinet Office. That gives us a very clear picture of what is going on on the ground. Some of that information is data flows from the health system, hospital logs and test and trace, while some is local intelligence from infection control teams on the ground, local resilience forums and local councils. Some of it is then filtered by analysts with epidemiological training, who plug into the proper scientists—the white-coated scientists—who provide their own analysis.

I do not offer this Chamber a volume and say, “This is the science”. Rather, I offer a huge amount of technical insight that is pored over every day, is delivered in extremely sophisticated dashboards, is interrogated by inquiring minds and is challenged by sceptics. We now have a much clearer day-to-day picture of what is going on, in the country as a whole and in different parts of it. When we drafted these regulations, we considered all that information.

The story being told in mid-September was that the public had miscued: that they had, during the summer, massively relaxed their behaviour. The key form of transmission—the trigger to a huge amount of infection —was families taking an extremely lax interpretation of what social mixing they could do. The insight that came from the ground—not from the top—was that we needed to give a much clearer, more easily understood and more enforceable story, or instruction, to the public in order to separate people.

For all that has been said in the Chamber, it is clear to all of us how this disease is spread. It is spread in the aerosol from our breath and by our touching and feeling things. At the end of the day, what we are talking about here is something deeply uncomfortable. We can rightly challenge the regulations for being too complex, and I have enjoyed the speeches that poked fun at some of the difficult and potentially ludicrous parts of sophisticated and complicated guidelines. I can hear the frustration in that kind of challenge, but the bottom line is that social distancing means putting space between ourselves and the people we love. There is no avoiding that bottom line.

You can try to blame the laws, if you like, and blame the regulations for being at fault—“We’ve drafted bad regulations”. But it is not the regulations; it is the space. We all want to spend a lot more time with the people we worry about and care about. We want to enjoy the conviviality of groups we know and trust. We want to plug into the networks of spiritual connection, interest, power and familial connection. These regulations emphatically break those connections. Where there was love, they put in space. I cannot apologise for that. I cannot change it or find some form of words that transforms that simple fact, or in any way changes the grim realities of how we have to limit the transmission of this disease.

I completely hear the ridicule. I feel the frustration and I do not doubt that things could have been done better. Some of these regulations could have been written better. My noble friend Lord Lamont has rightly queried the differences between weddings and funerals. There is an explanation for why they are treated differently, but it would be churlish of me to stand here and plod through it in a bureaucratic and, frankly, frustrating manner. However, I would be glad to write to my noble friend with that explanation. The honest truth is that they are hurtful, they do damage the way in which we show our love, and they will leave a lasting effect on the psychological health of the country and on the economy. I would like quickly to address those two points.

I have been questioned on the strategy many times but, as most noble Lords know, the strategy is clear. The Prime Minister was clear about it last Thursday, as was the Chancellor this morning. We will suppress the virus, while supporting education and the economy, until we eliminate it by vaccine, therapeutics and mass testing. This is a middle way. It emphatically is not a national measure to lock down the country—we tried that and it was horrible, although successful and made a big difference—nor is it running hot. It is the middle way. Therefore, we have to accommodate. We have complexity. We are using local lockdowns and we are trying to instruct by consent, rather than by force. We are trying to be flexible with those who have special needs. Most importantly, we are letting those trying to defend their jobs and education pursue those interests. Those are our two major priorities.

Time is tight, so I will address just a couple of points. As a father of four children, three under 12, I completely hear the point on children. There are many parents and grandparents here who feel it harshly, but the research from the front line was crystal clear: people were using children’s birthdays, drop-offs and congregations around children to flout the rules and create events where infection was happening. Clarity and preventing those nodes of transmission became a priority, which is why we have pursued the route we have.

In reply to my noble friend Lord Dobbs, I can be crystal clear: the Vaccine Taskforce has done brilliantly in researching, identifying and buying vaccines. Advice on how they will be distributed will be given by the JCVI. Our policy on vaccine distribution will be to listen to the JCVI, which has yet to pronounce on it.

My noble friend Lord Robathan is right that some of long Covid is post-viral fatigue, but there is more to it than that. Neurological, cardiac and renal failure are being seen in many people, which is extremely alarming.

I have to draw stumps there. I reassure the House that we have learned the lesson about parliamentary scrutiny, which builds support and brings the light of scrutiny to these measures. We would not have had this debate today, with all the pain and frustration that has been present, if we had had more debates like it previously. My right honourable friend has given a commitment in the other place to bring measures to the House more promptly. In response to the noble Baroness, Lady Thornton, it will be up to the usual channels and the Joint Committee on Statutory Instruments to bring these instruments to the Chamber for debates more promptly, as has rightly been suggested today.

Photo of Lord Lamont of Lerwick Lord Lamont of Lerwick Conservative 2:36 pm, 6th October 2020

My Lords, I thank all noble Lords who spoke. We had an excellent debate, with many good speeches and many new points made. I also thank the Minister, for whom a lot of sympathy was rightly expressed. He comes here for debate after debate, is attacked and attacked, and bears it with great good humour and is absolutely on top of his brief. He said he heard the sense of frustration in this debate loud and clear and would take that away; I hope he conveys that to the Government. He emphasised again and again that the Government have more and more information. It is one thing to have that, but are we using it to get on top of the virus? I am not sure I heard an answer to my question about the virus just bouncing back every time we go through suppress, relax, suppress, relax.

There was near unanimity in the House that the message has not been clear. It is messy and confused, which makes compliance with the law more difficult. These are not just rules; they are laws. People are subject to arrests and fines. Compliance is much more difficult without public acceptance. Important points were also made about the need, as the Government have said, to consult Parliament well in advance of legislation. That is profoundly important, but I am grateful to the Minister for saying that he has heard the frustration of the House and will convey it back to the Government. With that, I beg leave to withdraw my amendment.

Amendment withdrawn.

Motion agreed.

Sitting suspended.