Health Protection (Coronavirus, Collection of Contact Details etc and Related Requirements) Regulations 2020 - Motion to Approve

– in the House of Lords at 1:16 pm on 7th October 2020.

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Lord Bethell:

Moved by Lord Bethell

That the Regulations laid before the House on 14 September be approved.

Relevant document: 27th Report from the Secondary Legislation Scrutiny Committee

Photo of Lord Bethell Lord Bethell The Parliamentary Under-Secretary for Health and Social Care

My Lords, the virus continues to spread. We will put in place measures to break the chain of transmission and to protect the NHS, but at the same time our strategy is to support the economy, keep our schools open and, wherever possible, maintain normal life—for friends and family to meet and for businesses to remain open. These regulations play an important part in that objective by contributing to enhanced contact tracing, some, but not all, through the NHS app.

The instrument before the House requires designated venues to collect contact details and display an official NHS QR poster. To give a sense of the impact of these regulations, as of 9 am this morning there were 16,302,038 users of the NHS Covid app. Any one of them can check in at 634,488 posters that have been downloaded by designated venues. We know that this is proving popular, because there have been an astonishing 19,721,804 check-ins so far. I encourage noble Lords to exercise their digital skills and take advantage of this important protocol.

If local public health officials determine that one of these venues is linked to an outbreak, they can send a message with the necessary health advice to all those whose timing and proximity coincides with the infection. This might include a requirement to isolate for 14 days.

Privacy is key. An individual who has been in one of the venues in scope of this policy can rest assured that their contact details will be shared confidentially with local public health officials. This will then allow the individual to receive the necessary health advice. Alongside other requirements, this will increase public confidence to go out and use these venues.

I will now set out why this measure is necessary and how uptake has increased following the introduction of the regulations. On July 2, the Government issued guidance to the hospitality sector and asked designated venues to collect contact details. This led to manual, handwritten logs in some venues, and homemade and commercial logging systems in others. The guidance was in place for two months, but there was a growing level of non-compliance. Surveys indicated that around two-thirds of respondents were asked for their contact details some or all of the time, but many were not. According to our surveys, only 43% of people said that they were asked for contact details in all the venues they visited. We saw video evidence as part of media reports showing multiple establishments not adhering. My experience endorsed this coverage: I pay tribute to the Prince Bonaparte pub in Notting Hill for its diligent commitment to these protocols, but I shall not mention some other pubs I have visited where standards have been more lax.

This uneven application of voluntary rules meant that local public health officials often struggled to obtain the contact tracing information they needed. In one instance, a pub in Bolton had been identified as a potential outbreak source, as many of the positive cases had been on the premises. Unfortunately, when contact tracers contacted the venue to access its logs, they contained only names and postcodes. It took up significant amounts of precious time, using appeals on social media, to trace potential infection. This prevented public health officials providing targeted public health advice to those who had been at risk and raised needless worry among others. This is only one of many examples, and something needed to be done to address this significant risk at a time when daily case numbers were rising rapidly across the country.

This instrument has made the requirement on businesses clear. It has given local authority officials powers to enforce penalties on businesses which do not comply. Since bringing in this measure, we have seen the public and business community embrace this policy. It is hugely significant. If an outbreak is then linked to a venue, a message can be sent to the app user on the advice of local health protection teams, providing the necessary public health advice.

We know that the Covid pandemic has disproportionately affected vulnerable groups such as the elderly and people living in high deprivation. These at-risk individuals are less likely to have access to smartphones, so it is essential that a system is in place to contact-trace people who do not have the app. The logs that designated venues must have achieve this. From a recent engagement with industry, we know that designated venues are implementing these requirements. For example, one trade association found that 95% of businesses were fully compliant. Two-thirds of members are capturing data electronically in advance through online or telephone bookings, whereas remaining businesses have introduced customer and visitor logs.

Research in New Zealand, which has a similar system to ours, has assessed that rapid case detection and contact tracing, combined with other basic public health measures, has over 90% efficacy against Covid at the population level, making it as effective as many vaccines. This shows the importance of ensuring that NHS Test and Trace can reach more contacts overall, meaning that more people are provided with appropriate public health advice when they need it.

While these measures apply to England only, we have learned from the approach taken in Scotland and Wales. Colleagues have found a marked improvement in compliance, and although these regulations have been in place for less than three weeks in England, we are already seeing positive signs.

Because of the issues I have just described, we have used emergency powers to introduce these regulations. I recognise that in different circumstances, it would have been preferable to publish them in plenty of time before they were laid and to have brought them before the House before their enforcement. This point has been made in the past, it is acknowledged, and it is understood. We have put together a register of future potential regulations in an effort to improve our housekeeping. However, perhaps I may say a few words in mitigation.

We were hesitant about mandatory enforcement, as we seek to apply Covid-related regulations through voluntary compliance wherever possible. However, we decided to act because of the increasing rate of positive Covid cases, the evidence of non-compliance and the feedback from local public health officials, who were unable to contact people who may be infectious to provide the necessary public health advice.

I know these regulations place additional requirements on businesses and other sectors, which we have sought to mitigate. To reassure noble Lords, we continue to work closely with the sectors in scope to ensure that these measures do not cause undue burdens. Furthermore, the regulations set out that a review must take place within six months of their coming fully into force, and the Secretary of State for Health and Social Care keeps their necessity under consideration between formal review points. We will have these measures in place only for as long as necessary.

This instrument is already benefiting individuals and businesses, and as your Lordships have heard today, individuals and businesses recognise that this is a key tool to prevent further societal and economic restrictions, which we all desperately want to avoid. These regulations are enabling NHS Test and Trace and local public health officials to suppress the virus, to support the economy to remain open, and to protect individuals and their loved ones. The public should therefore be confident to visit and work in these venues, knowing that they will be contacted if they have been exposed to the virus. Providing this reassurance is essential to returning to a more normal way of life and supporting businesses to prosper. I beg to move.

Photo of Baroness Henig Baroness Henig Deputy Chairman of Committees, Deputy Speaker (Lords)

As the noble Lord, Lord Liddle, is not contactable at the moment, I call the noble Baroness, Lady Barker.

Photo of Baroness Barker Baroness Barker Liberal Democrat Lords Spokesperson (Voluntary Sector), Deputy Chairman of Committees 1:25 pm, 7th October 2020

My Lords, we return yet again to the subject of NHS track and trace. In view of our discussion yesterday, it is right for me to put on record with the Minister that we on this side of the House understand entirely the need for local and national action and for those to be complementary. However, they need to be informative of each other; it is not a matter of putting in place centralised top-down systems and not picking up on local data. Only by co-ordinating national and local action will we beat this thing.

We come to these regulations with no regulatory impact assessment. More than that, after three weeks, we have nothing but assertions on the Minister’s part that they are working well and are necessary. The Government are very short on evidence when they come back with repeated requests for regulatory powers. That cannot go on indefinitely. We on this side of the House are quite willing to support actions that are necessary and proportionate—we have been from the very beginning—but frankly, the Minister is trying the patience of the House when he repeatedly requests powers without any evidence to back them up.

I ask the Minister: how many people have not engaged with this process only because they have concerns about the privacy of their data—about it being shared beyond the NHS and local authorities? If people could be absolutely sure of that, there might be far greater uptake. I say that, but I have eaten out only once in the last six months. I happened to be with a group of four people, and I was not the contact person. Had I subsequently tested positive, I would not have known how to go about telling the establishment. If this is going to work to maximum benefit, we ought to look now at how it works in practice and could be made more effective.

On refusal of entry, what evidence do we have so far that that power is being used, how it is being used and who is enforcing it? What evidence is there that it is working? On what basis was the £500 fixed-penalty notice decided, how does it compare to other fees and penalties, and who is in charge of tracking the evidence that that works?

On fixed-penalty notices, Regulation 18(11)(a) states that they can be enforced by “authorised” persons such as

“a constable … a police community support officer” and

“a person designated by the Secretary of State for the purposes of this regulation.”

Who would that be? Are they the infamous marshals we expect to come riding to our aid any day now, with undefined powers, no skills and no resources?

Finally, when will the Government share the data on the implementation of these regulations? It is great to have three weeks of positive signs, but for these powers, the Government need to tell us a bit more about what is coming. Before the Minister comes back to ask that these powers be extended, will he provide a full statement on their impact for the whole of England?

Photo of Lord Bourne of Aberystwyth Lord Bourne of Aberystwyth Conservative 1:29 pm, 7th October 2020

My Lords, I declare my interests as set out in the register. It is a great pleasure to follow the noble Baroness, Lady Barker, who has very impressive forensic skills.

I thank the Minister for setting out the background to these regulations. His prodigious work-effort continues to be incredibly impressive. I am surprised that he has managed to make a tour of west London pubs to see which are complying with the regulations, but obviously, he has, so congratulations on that too.

I strongly support these regulations. It seems to me that we all have a great interest in having an effective test and trace system. For that to work properly, we do need back-up, and this provides it. I share many of the concerns expressed by the noble Baroness, Lady Barker, but I come from a position of thinking that these regulations are very necessary and, as stated, they came into force some 20 days ago. I have had a chance to look at the regulations, and I do have some questions on them. It may be that my noble friend is not able to answer them all on the hoof today, as it were, but I would be grateful for a response in writing, with a copy to other noble Lords and to the Library, if he is not able to do so.

My noble friend indicated that some 634,000 businesses or institutions have downloaded the QR code facility. Is he in a position to indicate what percentage of those needed for this to be effective across the board that represents? It may be that is a very high percentage, and that we are not looking significantly elsewhere for other institutions to sign up, but it would be interesting to know how many have not done so, and what percentage that represents.

Further, with regard to the specific persons and institutions affected by these regulations, I do have some specific questions. First, in the Explanatory Memorandum, there is an exemption for police and security officers visiting businesses. I understand that, in an emergency, it may not be appropriate for them initially to download or indicate with the app that they are present—they are pressed, in terms of doing other things. However, there will be visits by police and security officers that are not in that urgent situation, and indeed, in situations where there is an urgency, subsequently it is surely desirable that their presence there is also recorded. So I wonder why that exemption exists, and whether there will be some review mechanism so that we are able to extend these regulations sensibly to those who should be affected by them.

In relation to accommodation—hotels, B&Bs and so on—I would be interested to hear from my noble friend whether short-term accommodation of the likes of Airbnb, which are well run and largely overseen by the Short Term Accommodation Association, are part of this system, bearing in mind that in many cases there will be remote check-in, and that people using these facilities may not come into contact with anybody at all. But on occasion, of course, they will. So I wonder whether there is a particular position there in relation to such businesses. In relation to non-commercial businesses, it seems that only commercial businesses, or commercial accommodation, I should say, are covered. What about hostels that are not run on a commercial basis—faith accommodation and so on? Why are they not subject to this? Art fairs are covered; why not antiques fairs and book fairs? These are detailed questions.

I strongly support the regulations. I am pleased that over 16 million people have downloaded the app. It needs to be many more, but we are making good progress here, and I congratulate my noble friend.

Photo of Lord Bilimoria Lord Bilimoria Crossbench 1:33 pm, 7th October 2020

These regulations impose a number of obligations on relevant persons in order to protect against the risks arising from coronavirus. Businesses and other public settings where people meet socially, including hospitality, close contact and leisure venues, must record contact details of customers, visitors and staff on their premises to tackle the spread of coronavirus. The details must be stored for 21 days and shared with NHS Test and Trace if requested.

All that makes sense, but Jeremy Hunt, the former Health Secretary, recently questioned the current Health Secretary, Matt Hancock, on whether the entire system of testing needed to be overhauled. He argued that the underlying problem was that the Lighthouse laboratories—the Government-funded facilities there to supplement existing public laboratories—had been “overwhelmed by demand”. As the chancellor of the University of Birmingham, I say that we have a testing facility on site and one of the top medical schools in the country. And yet, I am told, there is a piece of machinery that NHS Test has—there are about six of them—which, if we were to get hold of one of them, would enable the testing at the university facility to go up multifold. Why is that being held back? Why are these pieces of equipment not being released to increase capacity? This is an urgent situation.

At the same time, business resilience—I say as president of the CBI—is lower than it has ever been, with cash and stockpiles run down. We must get this right. We know that business knows public health must come first, and we have been doing all we can to keep staff and customers safe, whether in pubs, shops, factories or offices. Local restrictions come as a disappointment for many businesses across the country, but the Government cannot stand by as infection rates rise in the region. We must aim for a no-surprises approach as far as possible when restrictions are put in place, and not all restrictions are one-size-fits-all. We have seen this from the full lockdown in Leicester and the household-based restrictions in Greater Manchester, west Yorkshire and elsewhere.

Then we have the 10 pm closing of pubs, bars and restaurants. I declare my interests, but will the Government tell us where the evidence is that this is required? The scientific evidence I have heard is that less than 5% of new infections come from the hospitality industry, which employs 4 million people and which has really suffered—it was closed for three and a half months, from 23 March to 4 July. From my knowledge in the trade, only 10% of drinking happens after 10 pm. So why do this—quite apart from the unintended consequence of people spilling on to the streets and going elsewhere to drink?

When it comes to testing capacity, Professor William Hanage, of the TH Chan School of Public Health at Harvard University, has said, on the lack of mass testing:

“By the time you become aware of the problem it is likely to already be much larger. You are not going to detect outbreaks if you don’t look for them.”

He called for

“very good diagnostic tests as well as tests that may be less sensitive but can be used more frequently.”

Why are the Government not procuring the mass testing that is available?

The Abbott Laboratories BinaxNOW test, which is $5 and gives results in less than 15 minutes, has been approved by the FDA, but I believe has been rejected by our Government. I am told that Greece—a country that has dealt with the pandemic relatively very well—has ordered millions of these tests. If it is good enough for the FDA, and if it is good enough for Greece, which had a death rate of 36 per million vs our 663 per million, why is it not good enough for us? They are producing 50 million of these, and there are other equivalent tests that give these instant results and are affordable.

When it comes to false positives, anyone who has tested positive with these instant tests can immediately have a PCR laboratory test to confirm that it is positive. So surely, by not doing this, by not having the mass testing, we are saying that the best is being the enemy of the good. This mass testing will enable our economy to fire on all cylinders. From a cost-benefit point of view, we are talking about a £2 billion a month cost if you test everyone twice a week in the whole population. We have been spending hundreds of billions supporting the economy. If we have mass testing, our country can get on.

So, a vaccine is on soon and the testing is needed urgently—

Photo of Baroness Penn Baroness Penn Baroness in Waiting (HM Household) (Whip)

My Lords, I must remind the noble Lord—

Photo of Lord Bilimoria Lord Bilimoria Crossbench

Thank you very much, I am just about to stop. I would like to conclude by saying we need this testing urgently now.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Labour 1:38 pm, 7th October 2020

My Lords, this debate is taking place three weeks after these regulations came into force. As Big Brother Watch points out, the impact of this legal change cannot be overstated. The regulations introduce the potential for the mass recording of citizens’ movements by an array of overstretched businesses.

I am not opposed to the regulations, but it is simply not acceptable—and I repeat what has been said in the last week—for these kinds of draconian measures to be introduced without Parliament having its say first. I listened to what the Minister said this morning; I also listened to the Secretary of State last week. Can we really have an assurance that this will not happen again?

Secondly, I want to return to the major point made by the noble Lord, Lord Bilimoria, about the impact on the hospitality industry. I know that the Minister himself is doing his best to keep it going, but the fact is that, although this is a not a new provision and in a sense it has been voluntary, it will have an impact on the hospitality business. The Explanatory Memorandum accompanying the regulations says that a regulatory impact assessment is not required because it will cease to have effect after less than 12 months. But what we do need is an impact assessment on the series of such regulations, which are having a total impact on the industry, such as the 10 pm curfew.

It is being widely let out that the Government intend to introduce a new system of three levels of alert locally. My understanding is that alert level 2 would restrict meetings in pubs and restaurants, and alert level 3 would see the full closure of the hospitality sector, allowing for takeaway services only. Will this House and the other place be able to debate those regulations before they come into law? I certainly hope so, because they could spell the death knell for many businesses, and it would be quite wrong, although they are local regulations, for that to happen without prior parliamentary approval.

Will there be a clear framework for decision-making around the restrictions? I know that we will debate the Birmingham regulations later this afternoon, but I commend to the Minister the views of the city council on the approach that might be taken. It argues that the Government should avoid adopting a one-size-fits-all approach and take a more nuanced approach to decision-making which incorporates: clarity on criteria for escalation, such as the rate of infection per hundred thousand of population that would trigger an escalation to the next level of alert; an evidence-informed approach; clear criteria that would trigger an exit; and a sufficient package of support to businesses to sustain them through the winter if they are placed under an alert. Will the Minister and his colleagues talk to Birmingham and other local leaders about the sensible approach needed if the Government are going ahead with this new system?

Photo of Lord McColl of Dulwich Lord McColl of Dulwich Conservative 1:41 pm, 7th October 2020

My Lords, I approve of the regulations, which came into force on 18 September. As the virus is spreading rapidly, the regulations are essential to collect certain contact details from customers, visitors and staff. Keeping this information for 21 days also seems reasonable and essential to enable NHS Test and Trace and local public health officials to contact vulnerable people and give them advice to help curtail the spread of the virus.

These debates and media discussions have been bedevilled by people who concentrate on destructive criticism but offer no practical solutions. For instance, we hear scientists saying, “There is no scientific evidence for the rule of six”, but is there any scientific evidence that such a rule would be harmful? Why do they not say what number they would suggest? Some of these scientists seem to behave more like party politicians than unbiased scientists. Should those doom and gloom merchants in Parliament and the media not realise that their repeated vitriolic outbursts do nothing but demoralise the public?

Photo of Lord Greaves Lord Greaves Liberal Democrat 1:43 pm, 7th October 2020

My Lords, I support everything that my noble friend Lady Barker said and declare my interest as a local councillor, in view of what I am going to say.

There are serious civil liberty issues here, serious data protection issues and, more to the point, serious issues about operational practicality, but I do not want to say more about those things, except: does it mean that everybody who is involved in collecting this information has to register with the Information Commissioner as a data controller? What is happening to make sure that happens, if that is true?

I really want to talk about the problems that issues like this cause in areas with two-tier local government, where there is the county council—the Health and Social Care Act set a public health function at county level—and the districts, which have always been the local public health bodies. The old public health inspectors, 45 years ago, became environmental health officers, but they are still there and do the work. They are the people who, for example, are skilled and trained in tracing infectious diseases locally, but the Government really have not been using them as well as they should have been during this pandemic. When it comes to checking premises such as pubs, restaurants and all the rest which are listed here, it is the environmental health staff from the district council, who do that anyway —for example, food standards inspections—who will be doing this work in many areas. They are employed by the district councils, but Regulation 4 on “Interpretation” states that

“‘local authority’ means … (b) a district council in England for an area in which there is no county council”.

Otherwise, it is a county council.

On power to close premises which are not carrying out all the distancing regulations—pubs, for example—it is the county council and the county officers who possess the powers, but it is often the district council officers, who are on the ground and know the patch in a way that county officers do not, who will be doing the legwork and investigations and deciding that a pub needs to close. The same will be the case in checking that data collection—names and addresses under this regulation—is being carried out. The people who do the work are from the district, but the people who have the powers to enforce are at the county. This is causing delays and extra unnecessary bureaucracy. If the districts were given the power alongside the county, this would be solved, and I hope the Minister will look at it.

Photo of Lord Naseby Lord Naseby Conservative 1:47 pm, 7th October 2020

My Lords, these regulations are pretty comprehensive, and I wish to make five observations that I hope will be helpful against a family background of two doctors, and myself as a former leader of a local authority as well as a Member of Parliament. The first is on care homes. I commented on inspections in the review debate on 28 September, and since then I have double-checked the situation of Care Quality Commission inspectors, who are currently just wearing a mask rather than having undergone a Covid-19 test. No one else is allowed into a care home or a nursing home without a test, because people there are very vulnerable. I now understand that the decision was made in August and backed by the department of health without any consultation with the National Care Association. Surely this needs to be reviewed urgently.

Secondly, staying with care homes, and mentioning that my wife is a former general practitioner, is it true—[Inaudible]—simply looking after them? If so, that seems an error. It may not be accurate, in which case the Minister can put my mind at rest.

Thirdly, we know that part of the rise in infections is due to young people, as mentioned in paragraph 7.14 of the Explanatory Memorandum. What discussions were held with the Department for Education, the universities and sixth-form colleges and other colleges—[Inaudible.]—before students went back to university or college? Did any discussions take place? Did the Department of Health take the initiative and—[Inaudible.]? The comment of my colleague, the noble Lord, Lord Bilimoria, on mass testing is highly relevant here.

Fourthly—[Inaudible.]

Photo of Baroness Penn Baroness Penn Baroness in Waiting (HM Household) (Whip)

My Lords, we are having trouble hearing the noble Lord. We heard his first three questions. I suggest that we come back to his final two questions when his connection is restored, and move on.

Photo of Lord Loomba Lord Loomba Crossbench 1:51 pm, 7th October 2020

My Lords, these regulations underpin the Government’s intent to ensure that transmission of the virus is halted by maintaining fully up-to-date information for the track and trace system on who has come into contact with a person who has tested positive for Covid-19. This is an admirable aim, but some questions remain over the robustness of the overall system for tracking people and with regard to privacy.

First, on the catastrophic failure of the IT system that transfers the positive test result data over to the track and trace system, as case numbers began to rise far more than it could cope with, the system failed at the first hurdle due to the larger volumes. If this part of the track and trace system is also predicated on the same legacy Excel software as that of the positive-case data, it is entirely possible for that to fail too, causing many people not to be contacted early enough, or even at all, if a glitch goes unnoticed. Is this part of the tracing system underpinned by software in the same way as the positive-case data software? Are there any in-built warning signals to alert authorities if this system fails to deliver?

My second point is on the validity of any data stored, given the reports that some people are not leaving their correct details with venues. What is happening to follow this through in order to ensure that people are properly traced? Also, given that some venues are not asking for information directly but leaving it up to customers to comply, the system does not appear robust enough. If a venue does not store that data, there is no way in which the Government are going to know that a person has been there, unless they are a positive case, in order to find the business guilty of failing in its legal duty.

My third point is on privacy. While the Government require venues to keep information only for 21 days, what measures are in place to protect citizens from data loss and breaches of privacy, so that they can have faith in using the system?

Photo of Lord Hamilton of Epsom Lord Hamilton of Epsom Conservative 1:54 pm, 7th October 2020

I think that my noble friend the Minister would accept that these measures being taken to combat the pandemic have to involve a trade-off with what happens in the economy. If we go back to the original decision to lock down the economy totally in March, if someone had made the point at that stage that it would result in 70% of our businesses shutting down completely for three months with the result that millions of people would lose their jobs—many for the foreseeable future—would we have reached that original decision to go for total lockdown?

I agree that most countries took the view that total lockdown was the answer, but the Swedes did not. The result is that the Swedish economy is forecast to shrink this year by something like 5.5%, while the latest figures are that our economy will shrink by between 11% and 12%—double the rate and double the impact of job losses. That is also true of this measure.

I have only one question for my noble friend. Was a cost-benefit analysis ever carried out before the original measures were taken to lock down the economy totally, and has such an analysis been made on the measures before the House today?

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green 1:56 pm, 7th October 2020

My Lords, these regulations are excessive, intrusive, punitive and potentially discriminatory to older and poorer people. They also raise important questions about compatibility with data and privacy laws.

On data protection, collection of contact details is important, but a lot of places gather this personal data without any security. I have also visited pubs and I can say that some keep their log-books open and available for other people to take photographs of them. This would clearly infringe all sorts of privacy matters. Has the Minister issued enough guidance for places of entertainment in order for them to fulfil their obligations under the Data Protection Act?

Regulation 7 states that premises do not need to collect personal details of people who have,

“scanned the QR Code displayed”.

However, no definition of “scanned” is given. Therefore, in practical terms, what is a premises operator supposed to do to check that the QR code has been scanned properly? Should they check the person’s phone or make some other judgment call? These are important legal questions because, if a premises operator needs to check a phone to make sure that the code has been scanned properly, they would need to be sure that they can avoid a conviction and fine under Regulation 17 if the scan was not done properly.

The Minister was ingenious in calling the delay in presenting regulations such as these as “housekeeping”. This is not housekeeping but an erosion of democracy. I am delighted that he said that the regulations would be improved but when, how and how fast? There are now so many coronavirus regulations that I do not understand how people are expected to navigate and ensure that they are not breaking them. The Prime Minister and other Ministers have fallen short in many TV interviews and been unable to answer quite basic questions on what the rules require, or to distinguish between law and guidance, advice and common sense. These were not actually “gotcha” questions but straight- forward questions about what people should be doing in certain places. The Government are imposing extreme restrictions on people. I understand that they are to fight a pandemic that we have not seen for 100 years, but they must have some reasonable basis. What plans do the Government have to simplify the regulations and bring them all into one coherent framework?

I go back to the erosion of our democracy. Why are we consistently being given only a few minutes to question the Minister? I do not see any reason for the House to rise at 5.15 pm today. Why can we not carry on for longer and have a proper debate on these issues? We have so much space in our timetable at the moment. While we have big Bills to consider, there is also a lot of space, and I do not understand why we cannot take some of that space to debate these issues properly. It seems me to me that there is a clear avoidance on the part of the Government to be scrutinised about these issues.

Photo of Lord Robathan Lord Robathan Conservative 2:00 pm, 7th October 2020

My Lords, it is a pleasure to follow the noble Baroness, Lady Jones, with whom I find myself almost exclusively in agreement—that is sometimes a little worrying, and she may be worried as well. She has pointed out how confusing this package of regulations is, and not just these ones. I have been looking at them and I am pretty confused. They are profoundly antipathetic to traditional British civil liberties. They are also unworkable, as shown by the problems we have discovered with the test and trace system. Yesterday evening, I went to a restaurant with my wife. We were the only people there. The proprietor was beside himself. Before these and other regulations were laid last month, his business was picking up, but this package of regulations is destroying the hospitality industry. That is a huge cost to the economy and there will be escalating unemployment, so I have to say that I find this extraordinary.

Yesterday, I received a reply to a Parliamentary Question that I put down some time ago. In fact, it was given by Professor Sir Ian Diamond, of the UK Statistics Authority. The figures show that 14.4% of those aged under 65 without known comorbidities die from this virus, which makes for something in the region of 800 deaths since February. Some 450 people die from cancer every day. Every death is tragic, but the impact of these regulations is that in fact more people are dying from cancer than might be necessary because of the impact on the NHS.

The totality of these restrictions is causing untold harm and unnecessary deaths:

“Keeping these measures in place until a vaccine is available will cause irreparable damage, with the underprivileged disproportionately harmed.”

That quote is from the Great Barrington Declaration, which noble Lords will find in the media at the moment. It is a petition started by leading epidemiologists and public health scientists. I urge the Government to show courageous leadership and ignore the hysterical media and focus groups and change tack, rather than double down on their policies. Allow the vulnerable to shield themselves and to take sensible precautions, and allow society to get on with life. The impact on our children’s future and the economy is already devastating, with no end in sight for the catastrophic social and economic damage being caused.

Photo of Baroness Noakes Baroness Noakes Conservative 2:02 pm, 7th October 2020

My Lords, the regulations are one more proof point that the Department of Health and Social Care is suffering from Covid derangement syndrome. The syndrome features an obsession with just one thing: Covid-19. The department seems to have forgotten that it is not the Department of Covid, it is the Department of Health and Social Care. Since March this year, non-Covid patients have been largely ignored. There is a huge backlog of elective surgery and diagnostic tests. Cancer treatments were not started or were paused. My right honourable friend the Secretary of State for Health said this week that cancer patients may be guaranteed the treatment that they need only if Covid-19 stays under control—whatever that means.

There is a legitimate debate to be had about how the use of NHS resources should be prioritised. The costs and benefits of treating Covid-19 patients should be set alongside what is happening to other patients. The department has refused to analyse whether its Covid-dominated strategy is the best outcome in health terms, let alone in the broader economic context.

Another symptom is the inability to connect to reality. The Secretary of State for Health has said that the strategy is to suppress the virus until a vaccination arrives. But the Secretary of State should know that an effective vaccine may not in fact arrive, or may not arrive any time soon. Even if one does, by some miracle, get through all the testing and approval processes in the next few months, the chairman of the department’s own vaccination task force has said this week that less than half the population would be vaccinated.

Sufferers from Covid derangement syndrome seem convinced that all solutions must be authoritarian and backed by enforcement. Thanks to the Prime Minister, we got some freedoms back after lockdown, but for every freedom granted, the department plots some other restriction or tightening. That brings me to the regulations before us today.

Back in July, hospitality and other venues were allowed to have a crack at rebuilding their businesses which had been wrecked by the lockdown policies. They were asked to keep records of their customers and visitors. Consumer surveys—not business surveys—reported 67% compliance on being asked for contact details, which is pretty good, as some businesses would already have the contact details of their clients and customers on their databases. But that was not good enough for the department. It turned to evidence from contact tracing and focused not on the thousands of contacts which are household-related, accounting for 70% of contact tracing, but on the category of food outlets, where tiny numbers in double digits were identified. Yes, they were rising, but they were still small. The department got its blunderbuss out and fired off this order, piling more restrictions on all businesses which are desperately trying to get back on their feet while complying with all of the Covid-19 restrictions, such as social distancing and now a 10 pm curfew. Small and medium-sized businesses will rightly question why they should have to bear the burden of feeding a test and trace system that is still so dysfunctional.

I hope that a new vaccination will be developed soon, but this time to deal with Covid derangement syndrome. It should be compulsory for everybody in the Department of Health and Social Care to be vaccinated.

Photo of Baroness Uddin Baroness Uddin Non-affiliated 2:07 pm, 7th October 2020

My Lords, when the technology works, it is impactful, and therefore access to these enabling facilities is critical. Of course, we do not live in a world that is socially and economically equal by any measure. Therefore, I urge the Minister, as I have done before, that when measures such as these are presented to the House, an equality impact assessment must be embedded. That is absolutely necessary, particularly when the regulations state that there is no human rights impact but then proceed to list many possible infringements and punitive punishment measures. I therefore add my voice to those of the noble Baroness, Lady Barker, and others, who have called for the Minister to present a current analysis of what is happening on the ground, right now, when bringing forward SIs. This is important and extremely pertinent, so that we can continue to support these retrospective government measures and regulations.

The Minister listed the impressive number of people who have downloaded the apps. Indeed, as someone who is getting to be comfortable with these things, that is impressive. However, what evidence is available to the Government on the use of these apps and compliance with the test and track requirements? Are they being taken up by those in vulnerable communities where infection rates are the highest? Does the noble Lord accept that the messaging has some way to go to reach into those communities where language barriers and socio-economic disadvantages, including digital disadvantages, are so significant? These are people who remain extremely vulnerable to the upcoming surge in infection rates and admissions to hospital. If so, we will have to learn the lessons of the last deadly period.

I have spoken to the owners of a number of hospitality businesses, including to Mr Atique Choudhury, the owner of Yum Yum. Incidentally, his father, Mr Dabirul Islam Choudhury, a pioneering restaurateur and a centenarian, has raised £250,000 for the NHS and related charities. I hope that the Minister will take this opportunity to commend his incredible work. Mr Choudhury and others in the British curry industry have emphasised that they have invested significantly in keeping customers safe by ensuring effective compliance, with some using manual records to meet the requirements.

There are massive concerns about data management. Without a trustworthy track and test system in place, it feels as though we are playing Russian roulette with our populations. This has been said by one of the restaurateurs; it does not come from me.

I also reiterate points I have made before about safeguarding data, particularly when it is being calculated manually—how it is being accessed and who will have management and control responsibility. I cannot fathom the rationale of keeping classes going in some universities and schools where there have been positive Covid incidents. We know that restaurants and other businesses would be forced to close for 28 days, which may be unnecessary. Intense so-called fogging can take place, which does not require prolonged closure of businesses.

There are lots of issues and not enough time for us to express many of the frustrations we have learned. I agree with many noble Lords that these regulations should be viewed with caution and dread. I ask the Government to ensure that they speak to all our citizens with consistency and clarity.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative 2:11 pm, 7th October 2020

My Lords, I thank my noble friend for bringing these regulations forward today and, in particular, for his admission that it would help to publish such regulations before they are laid. That would be very welcome. They should also be brought to Parliament before they are implemented in future. Those two developments would help the industry and both Houses to scrutinise them.

My noble friend is under no illusion about how great the impact of Covid has been on the hospitality sector, which reopened late in the day, only in July. I find the application of these regulations particularly helpful, as they appear to help hospitality facilities, which are their target, to remain open. The announcement over lunchtime today that Greene King may close a number of establishments, some permanently, with a mass loss of jobs, is deeply worrying and possibly the tip of an iceberg.

I will ask one question and make one comment and proposal. Could my noble friend clarify the level of fine for a first offence? It seems reasonable for £500 to be the top level for a first offence, because there could be a difficulty in understanding and adhering to the rules. An increased fine for a second or third offence would seem reasonable. However, one part of the regulations before us today says that £500 will be the first fine; in another place, I see £1,000. I make a plea for £500, which seems more reasonable.

It is not the work of his department, but my noble friend is aware of this and I have raised it in connection with other regulations. Since Covid-19 became so extensive, water companies have been regularly testing wastewater at both household and community levels. It is then sent off for analysis by the Environment Agency. The thrust of debate on these regulations, the previous Urgent Question and all comments generally is that we need lockdowns that are as localised and short as possible. The benefit of testing wastewater is that, while it cannot be limited to individual households, it can be limited to a narrow community. Could my noble friend see whether his department can liaise with the Environment Agency and Defra to see whether the information gathered could be used to target more specific, community-based, smaller lockdowns, which would last for shorter periods? That would help both the local community and the hospitality industry, which has taken the brunt of the regulations, such as those before us today.

Photo of Lord Alderdice Lord Alderdice Deputy Chairman of Committees

We ran into some technical problems earlier, so I propose to try again to hear the last two questions of the noble Lord, Lord Naseby.

Photo of Lord Naseby Lord Naseby Conservative 2:14 pm, 7th October 2020

I have two quick points. Paragraph 10.1 of the Explanatory Memorandum says:

“There has been no public consultation in relation to this instrument.”

My question is whether there should be automatic consultation with relevant trade bodies and associations, so that they are on side. In that way, they can be helpful, rather than being left on the sidelines, having to criticise. My second short point is that local authorities are still complaining that they are not being contacted, either in time or in depth. An earlier speech by a noble Lord raised that problem. I thank the Deputy Speaker for allowing me to add to the three points I made earlier.

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs) 2:15 pm, 7th October 2020

My Lords, first, I reassure the House that I have not been promoted to health spokesperson for these Benches; an administrative error has thrust me into the spotlight. But I asked to speak in this debate for two reasons: first, my practical experience of over 30 years of policing; and secondly, my experience of this statutory instrument working in practice.

The purpose behind this statutory instrument is laudable: to keep a record of patrons using establishments so that, if they shared a space with someone who tests positive for coronavirus, they can be traced and informed. However, like other noble Lords, I have concerns about the way it operates in practice.

The first is the display of a QR code, so that patrons entering the premises can use their smartphone to register their presence, instead of the owner or occupier requesting that the person provide their details. Simply using your smartphone to capture the QR code does not register your presence at those premises. The QR code works only if you have downloaded the NHS Test and Trace app and used the venue check-in facility in the app. QR codes are designed, almost exclusively, so that people can scan them to be taken to a website, which is what happens if you do not use the app. I say this because I have done both with my smartphone and it works only if you use the NHS app.

Nothing I can see in the SI says that “A” has to scan the QR code with the venue check-in facility on the NHS app, although I understand the guidance to those who own or operate premises says this. On that basis, surely the person who owns or operates the premises does not commit an offence if someone scans the QR code with their smartphone without using the NHS app. The Minister talks about compliance, but how many patrons have correctly downloaded the app and then scanned the QR code? As my noble friend Lady Barker said, there is no evidence, only assertions, from the Minister.

Secondly, the whole emphasis of this SI is on the person who operates or occupies the premises. Someone who refuses to provide their details commits no offence. Offences are committed only by the person who operates or occupies the premises. Not only that, but they can be arrested for breaching the regulations, as well as being given a fixed penalty of up to £4,000 or even prosecuted. Surely there should be some obligation on the patron to comply with these regulations.

Thirdly, as has been said by my noble friend Lord Greaves, the noble Lord, Lord Hunt of Kings Heath, and the noble Baroness, Lady Jones of Moulsecoomb, and as Big Brother Watch says in its briefing on this SI, where are the data security protections for personal information about who attended which premises and when, if it is recorded by the owner or operator of the premises? Where is the requirement to use the information only for the purposes of health protection and not for marketing, for example? The Minister said that this information would be shared confidentially with local health authorities, but Big Brother Watch says that there is evidence that the data recorded is also being used for commercial purposes. Where are the safeguards against this?

Finally, the food store close to the gym I use in the City of London has a QR code on its door, but shops are not listed in the schedule to the regulations, and the store provides nowhere to consume food or drink on the premises. At every entrance to the Palace of Westminster, including Peers’ Entrance, there is a QR code to scan. Can the Minister explain why? Is it because you can get food and drink in these premises? In that case, should only noble Lords and others who use those facilities be scanning the QR code? If not, can the Minister say what the compliance rate is of noble Lords scanning the QR code when they enter these premises? Is this just an example of how another half-baked idea is creating confusion? Of course, legislation such as this needs to be implemented urgently but, when legislation is implemented urgently, it is also essential that Parliament scrutinises it to point out such confusion.

How will this legislation be enforced? As my noble friend Lady Barker asked, will it be the job of these mysterious marshals? Where are the additional resources that local authorities will need for them to comply with yet another duty placed on them by government?

Photo of Baroness Thornton Baroness Thornton Shadow Spokesperson (Health) 2:20 pm, 7th October 2020

I begin every discussion of statutory instruments these days with a preamble outlining our serious concerns about the way in which decisions have been made, announced and brought into law. Somebody said, “Groundhog Day”—I think it might have been me last time—and it sort of feels like that.

In the case of these regulations, there is no justification for their having been laid at the eleventh hour using an urgent procedure. In his introduction, the Minister used the word “housekeeping”. That is an inappropriate word for what is democratic accountability. The app has taken six months to roll out and, in that time, thought should have been given to these regulations and key stakeholders should have been consulted. Those stakeholders should have included the industries affected by them, and local government, as several noble Lords have mentioned. That can only help the Government to allow time for those who are going to have to implement the regulations to review them, which would prevent mistakes and reduce the need for amending regulations. As noble Lords will be aware, we have regulations that have had been amended and regulations that have been revoked. A bit of thinking about this could avoid wasting our time and that of the Minister and his officials. Lead-in time to prepare new regulations is vital.

The NHS Covid-19 app was finally rolled out across England and Wales on Thursday 24 September; it uses Bluetooth technology in smartphones to keep an anonymous log of people with whom an individual comes into close contact. However, as we know, it has been plagued with problems, including the fact that up to 70,000 users were blocked from logging their positive test results. Can the Minister explain how that was able to happen? There was never an issue with test results from Public Health Wales labs. I understand that that oversight has now been corrected, but I fear that confidence in this technology is being further eroded.

I am concerned that the UK’s contact tracing apps are not cross-compatible. Plenty of people regularly cross the border between England and Scotland, but the NHS Covid-19 app and Protect Scotland do not seem to work in conjunction with one another. Positive test results from one nation cannot be entered into another nation’s app—is that true?—and alerts can be received from only one app at a time. This is obviously worrying, so what steps are the Government taking to develop interoperability—a terrible word, but I could not think of another one—between the three UK apps to ensure that contacts between citizens are reliability identified? Does the Minister acknowledge that this could be important to citizens in the border regions of England and Scotland?

It is of course great that 14 million people, including me and my family, have downloaded the NHS Covid-19 app in England and Wales; that is some 24% of the UK population of 66.5 million. However, public health bodies the world over have said that Covid-19 contact tracing apps need to reach a 60% adoption level to give the population effective uptake, so it seems to me that more work needs to be done to reach the 58 million smartphone users in the UK, which is far more than 60% of the population. Why do the Government think that people have not downloaded these apps? Can the Minister confirm that one of the main barriers to the wider use of these apps is compatibility? One in five iPhones and 8% of Android smartphones currently in the use in the UK are deemed to be too old, a matter I have raised with the Minister before. Moreover, I understand that the newest models of Huawei smartphones, launched in May 2019, will not be able to run the app due to a ban on sharing technology. Is that true? Does the Minister share my concern that significant numbers of smartphone users are locked out of digital test and trace?

I now turn to the use of the QR code as a precondition of entry. I shall add to the questions that have already been asked. Has the Minister and his officials read the Big Brother Watch brief on this? It is very interesting and says that those of us on the Parliamentary Estate are not complying with the Government’s rules and the laws in these regulations, so that is a matter of some concern. I confess that I have not used a QR code on entering our canteen. I will do if that is what I am required to do, but I did not realise that I was supposed to. I would hate to think that we on the Parliamentary Estate are in breach of these laws. However, people who are older, on lower incomes or are less familiar with this technology are sometimes being humiliated because business owners do not understand the regulations or are applying them in an inappropriate way. There are a series of questions that the Minister needs to answer to make these things work.

Photo of Lord Bethell Lord Bethell The Parliamentary Under-Secretary for Health and Social Care 2:27 pm, 7th October 2020

My Lords, I am enormously grateful for the thoughtful questions and rich debate that we have had. I shall try to knock off some detailed questions about the app, and I will then address some of the broader themes in the 10 minutes I have. I will try to move as quickly as I can.

A number of speakers asked about feedback on the app over the past three weeks. It often takes three years for government policies to get concrete feedback. We have sought to give as much feedback as we can on this app, and I pay tribute to the app team for operating in as transparent a manner as possible.

A number of noble Lords asked about the fixed penalty fine. Fines are in accordance with the BEIS obligations of undertakings regulations and are independently adjudicated. The initial fine is £1,000 and is reduced to £500 for prompt payment. In response to my noble friend Lady McIntosh, as I understand it, no first offence would incur a fine.

A number of noble Lords asked about exemptions. There are exemptions in the legislation for police and others because it is our assumption that they would be wearing facemasks, so the requirements for them would be different. There is also a facility in app for those who would be in PPE and in close proximity to others, either through a visor or through their personal PPE, such as doctors or shop assistants. The proximity meter on the app can easily be turned off, and it turns itself back on at the end of the day.

My noble friend Lord Bourne asked about Airbnb and other detailed arrangements. There are specific guidelines on guest accommodation, and my understanding is that they would capture Airbnb. We have sought to be as detailed as we can, and there are helpline arrangements for those who wish to query whether their venue is covered by the Act.

The noble Lord, Lord Paddick, asked about commercial purposes. I reassure him and all those in the Chamber that there is absolutely no commercial dimension to the use of the data in the app, and I would be very grateful if the noble Lord sent me any evidence that he or Big Brother Watch think they have to the contrary.

The noble Lord, Lord Bilimoria, mentioned Birmingham University, to which I pay tribute. It has been a terrific partner and ally in NHS Test and Trace and other things, lending us important and valuable equipment. I reassure the noble Lord that this is not simply a matter of having a piece of kit that allows you to run a testing programme. A massive logistical and data programme is required, and its challenges are enormous, so I question the proposition that we should simply send the piece of kit back to Birmingham University and let people there get on with it.

A number of noble Lords asked about the 10 pm closure of pubs and hospitality. There will be a debate on this, but intimacy and the drinking of alcohol plainly encourage people’s closer proximity to each other. This is borne out by the evidence from our tracing programme.

Noble Lords also asked about outbreak management. It has become a pretty clear rule of thumb that if you want to find someone with Covid-19, find someone who has already tested positive and introduce yourself to their friends, because they are the most likely carriers. I reassure noble Lords who asked about Abbott UK and mass testing that we are engaged with all the distributors and manufacturers of testing equipment, including Abbott, and we are validating and assessing their equipment at pace.

The noble Baroness, Lady Thornton, asked about interoperability, which is quite right; we are working hard to ensure that the various nations’ apps work together and that the apps of different countries can one day work together. We are hopeful that UK interoperability will be built into the second version of the current app. On her question of whether there is a point at which the app is more effective, I reassure her that there is no specific threshold. At the current level of 16 million-plus, the app is extremely effective at breaking the chain of transmission.

Regarding privacy and open logs, I completely agree with the noble Baroness, Lady Jones, that a piece of paper lying on a table at the front of a pub is completely suboptimal. There is a gender issue there, and the safety of vulnerable people, and women, is of great concern. That is why we require pubs and hospitality to comply with GDPR, why the ICO has issued special guidance for pubs, and why we brought into place the QR codes, which we hope will be a suitable alternative for most people.

I assure noble Lords that a huge amount of consultation went into the development of the app and our contact tracing, with local government and with privacy experts and advocates. Massive trials were held on the Isle of Wight and in Newham, and we had important learnings from those, and with the hospitality industry itself, which has embraced these recommendations, a point that has been slightly lost in this debate. However, I take on board the comments about parliamentary scrutiny. If I may repeat myself, my right honourable friend has made a commitment in the other place to greater parliamentary scrutiny, and said that regulations with a national impact, such as these, would be brought before the Chamber and the other place before they are laid. I remind noble Lords that it is up to the usual channels to programme the business of the House, and the Joint Committee on Statutory Instruments reviews SIs such as this before they come to the House, so it is not possible for me, from this Dispatch Box, to give the noble Lord, Lord Hunt, all the reassurances that he asked for.

The question of what the alternative is to these regulations has also been raised. What if we did not have mandatory apps? What consideration has been given to the impact of the mandatory contact-tracing arrangements? There would be a grave danger that hospitality would once again be closed altogether. Hospitality is a vector of infection, and the specific purpose of these regulations is to try to keep our pubs, clubs and hospitality sector open. There is a binary alterative. If we do not seek to protect these industries and venues by measures such as these contact-tracing arrangements, they are vulnerable to being perceived and identified as places where the disease spreads. Therefore, to break the chain of transmission, we would be obliged simply to close them down. Neither I nor anyone affected with the Covid-deranged syndrome want to envisage that, which is why we have brought these measures before the House.

The alternative is to let things just run hot. My noble friend Lord Naseby asked about the impact of our lockdown measures on social care. I remember that in April, in a given week more than 2,000 people died in social care, whereas in the last week it was a much smaller number—fewer than 100 people—which shows that if we apply measures that break the chain of transmission, we can keep control of the virus, but if we let it run hot, the consequence will be a huge number of deaths. In reply to my noble friend Lord Hamilton, any economic analysis of either the lockdown or these measures must include an assessment of the value of those lives.

I genuinely believe that the contact-tracing measures of the NHS app are good news wherever you come from. If your priority is to reopen the economy, these measures help keep open the hospitality industry, on which a great many livelihoods depend, and if your priority is to protect the NHS and those vulnerable to this disease, these measures help protect those either at risk from, or who have been in contact with, the disease, and to help infection-control officers who can give accurate health advice and isolate those who have the disease. I commend the regulations to the House.

Motion agreed.

Sitting suspended.