Health Protection (Coronavirus, Restrictions) (England) (No. 3) Regulations 2020
(3 years, 7 months ago)
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Lord Bethell
That the draft Regulations laid before the House on 17 July be approved.
Relevant document: 24th Report from the Secondary Legislation Scrutiny Committee
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Bethell) (Con)
My Lords, these regulations were made on 16 July and came into effect on 18 July. They were necessary to give effect to the announcement made on 3 July by my right honourable friend the Prime Minister setting out the Government’s goal to enable as many people as possible to live their lives as normally as possible in a way that is as fair and safe as possible. To achieve this, he set out the need to move away from blanket national measures towards targeted local measures.
Three main activities are being undertaken to support the shift in focus to managing localised outbreaks through proportionate localised responses. First, local authorities have now drafted local outbreak management plans, which set out how they will manage outbreaks in their local areas. I cannot emphasise enough the importance of these frameworks, and I thank all those who have worked so hard and so collaboratively on these important plans. Secondly, we have published the contain framework, which sets out national expectations of how and when upper-tier local authorities should make community protection orders to manage the transmission Covid-19. Thirdly, open businesses and venues have been asked to assist the NHS Test and Trace service by keeping a temporary log of their customers and visitors for 21 days—this is critical.
Local authorities already have some legal powers under existing public health, environmental health and health and safety laws. These existing powers are complicated; they apply under a confusing patchwork of triggers and, in some cases, require a time-consuming application to a magistrate. They are simply not sufficient to enable local authorities fully to implement the community protections set out in the contain framework or to do so with the speed needed to manage outbreaks effectively. The Government’s ambition is to empower upper-tier local authorities to introduce targeted restrictions; this is an important rebalance that means the need for the Government to impose more serious restrictions is greatly reduced. Before these local intervention power regulations came into force, local authorities did not have the powers to impose fully the community protection actions set out in the contain framework. These regulations are a response to points made by local authorities, which have been echoed in the Chamber, and I therefore hope this uniform set of powers to enable local decision-makers to take prompt and sufficient action will be welcomed.
The local intervention powers in the regulations are exercisable by upper-tier local authorities in England. A local authority may give directions imposing prohibitions, requirements or restrictions relating to individual premises, as in Regulation 4; events, as in Regulation 5; or outdoor public spaces, as in Regulation 6. Before giving a direction, the local authority must deem that there is a serious and imminent threat to public health in their area due to coronavirus and that giving the direction is necessary and proportionate to control the incidence or spread of coronavirus in that area.
Local intelligence is key to decision-making. The local authority must have regard to advice from its director of public health. Local authorities are supported in such decision-making by guidance published alongside the regulations. As Secretary of State, my right honourable friend has the power to direct a local authority to use its powers under the regulations where he considers that the same criteria are met. Before directing a local authority to use its powers, he is required to consult the Chief Medical Officer or one of the Deputy Chief Medical Officers of the Department of Health and Social Care. We have not, to date, had cause to issue any such direction to a local authority.
There is a mandatory requirement for local authorities to review every seven days the continuing need for any measures they impose under the regulations. The regulations require that, following the review, if the local authority considers that any restrictions or requirements set out in the direction are no longer necessary or proportionate, it must revoke the direction and either not replace it or replace it with a direction that meets the necessary conditions. A similar duty applies to the Secretary of State, who must direct the local authority to revoke the direction if he considers that the restriction or requirement is no longer necessary. If my right honourable friend directed a local authority to impose a direction, it is still for the local authority to terminate, although this could be directed by my right honourable friend.
The local authority must notify the Secretary of State as soon as is reasonably practicable once it has given a direction under these regulations. To date, 48 notifications have been received from 18 local authorities.
To manage cross-boundary impacts, the local authority must provide neighbouring authorities with notice when these powers are exercised. Neighbouring authorities are required to consider whether they should also implement any measures under their own powers.
If a local authority decides to give a direction, it must publish the decision and ensure it is brought to the attention of any person who may be affected by it. Where a direction or decision by a local authority imposes or revokes a direction, it must notify any affected person in writing.
The regulations permit someone affected by a decision to appeal the decision to a magistrates’ court and to make representations to the Secretary of State. Where representations are made to the Secretary of State, the joint biosecurity centre will consider them and make recommendations to my right honourable friend. If he determines that the local authority in question should have exercised its powers differently, he will direct it to amend its direction.
The enforcement regime is broadly based on provisions set out in the national regulations. Police will also have the power to direct an event that contravenes restrictions to stop, to direct people to leave or to remove people from the relevant area if need be. Offences are created for breaching a direction, obstructing police or local authority officers and failing to comply with reasonable instructions. These regulations have their own six-month sunset clause.
Coronavirus is the biggest challenge the UK has faced in decades. The resilience and fortitude of the British people in complying with the national lockdown that we introduced in March has been a true national effort, but we always knew that the path out of the lockdown would not be entirely smooth. These regulations have demonstrated our willingness and ability to empower local authorities to take action where they need to. I am grateful to your Lordships for your continued engagement in this challenging process and your scrutiny of these regulations. We will of course reflect on this debate as we consider the response to any future local outbreaks. I commend the regulations to the House.
Lord Harris of Haringey (Lab)
My Lords, as ever, we are grateful to the Minister for introducing these regulations. They are, of course, an urgent measure and I do not disagree with their urgency, but what is deeply regrettable is that, in the name of urgency, so little that the Government and in particular the Minister’s department does is properly considered and scrutinised by either this House or the other Place.
I therefore make no apology for raising another group of issues where the Government have acted in the name of urgency, evading proper scrutiny. I refer to the fast-track procurement processes. Some of the contracts that have been awarded seem strange to say the least. Can the Minister explain why, in April, two contracts worth £8.4 million were awarded to Taeg Energy Ltd for hand sanitiser? Taeg Energy is listed as a dormant electricity production company, owned by a Mr Matthew Gowing. How and why was it selected? Who did it know in the Department of Health and Social Care to come to be awarded these contracts?
Why, in the same month, was another contract worth £692,000 for the supply of PPE gowns awarded to Kau Media Group Ltd, which is based in Hammersmith? How was a company specialising in social media, search engine optimisation and online advertising even considered by the department for such a contract? Who did it know?
Finally, how was Ayanda Capital, a company specialising in currency trading, offshore property and private equity, selected for a contract to supply £252 million-worth of face masks? How did this happen? Is it true that about £150 million-worth of these were not fit for use in the NHS? Again, who did it know?
The Minister must understand that these contracts, all rushed through without going through normal procurement policies—I do not argue with the need to get PPE—create the impression that something fishy is going on.
Baroness Penn (Con)
I remind the noble Lord of the time limit on Back-Bench speeches.
Lord Harris of Haringey (Lab)
I would have finished in the time you took to make that intervention. If we saw this in some other jurisdiction we would say that it reeks of corruption, stinks of cronyism or, at the very best, demonstrates rank incompetence and naivety. Can the Minister reassure us?
Baroness Jolly (LD)
My Lords, I apologise to the House. I came here from my office in Millbank for the beginning of Questions. I picked up my papers from my desk, and it was not until I was sitting that I realised I do not have my full speech. But we have been through this before—we have just changed the number to three. I welcome the move to local powers in this measure.
In the first of these debates, I asked the Minister about fixed penalty notices. Since we are now up to the third set of regulations, how many fixed penalty notices have been served since the first debate? How many have not been paid? Is the Minister of a view that they are a deterrent? I certainly do not think that the average member of the public would even know that they exist, but I just ask the question.
Lord Lansley (Con) [V]
My Lords, I am grateful to my noble friend for his very clear introduction to and explanation of these regulations. I will make two points. I was very pleased to hear my noble friend make it clear that Regulation 3, on the powers of the Secretary of State, has not been used. It would effectively be a failure were that to happen, so it is very good news that the collaborative work to which my noble friend referred is continuing.
As my noble friend will recall and noble Lords may remember, one of the central arguments I have made from the beginning is that the public health infrastructure established from 2013 onwards was intended to rely substantially on the work of local authorities, to which public health functions and capacities were returned. However, that capacity was not supported with the funding required in subsequent spending reviews. The public health infrastructure should have had increasing resources, at least at the pace of increase provided to the NHS as a whole.
My two points to my noble friend are, first, will he undertake that the Government will continue to work with local authorities so that the powers in these regulations continue to be used collaboratively, with local authorities working with central government rather than by way of Secretary of State directions, which should be avoided wherever possible? Secondly, we must rebuild the capacity in local authorities, not simply for the Covid crisis, but for public health infrastructure more generally.
Baroness Bull (CB)
My Lords, the statutory guidance to these regulations is clear that, prior to issuing a direction, local authorities must have due regard to the Equality Act 2010 and should consider carrying out an equalities impact assessment to determine whether the measure might disproportionately affect people with protected characteristics. However, the guidance makes no provision for those with impaired mental and decision-making capacity, which means it is unclear whether and how these regulations apply to people who cannot fully understand them, or what the consequences are of them not following them.
It is therefore not clear whether someone with reduced mental capacity would be subject to criminal sanction for unwittingly breaking local lockdown rules. Nor is it clear what is supposed to happen in a case where this new power is used to remove someone with impaired capacity from a restricted area or a mass gathering. Can the power also be used to return the person to their home, or does it seize as soon as they are outside?
Expanding the statutory guidance would help local authorities to meet their obligations to those people with reduced mental capacity, while clear, unambiguous guidance would help those people and the people who care for them to comply more easily with the regulations. It would also reduce the potential for unintended contravention, avoiding the messy question of whether criminal prosecution could follow. Can the Minister commit to reviewing the statutory guidance to include the need for local authorities to take into consideration reduced mental capacity, in accordance with the Mental Capacity Act, when exercising their power to impose restrictions?
Lord McCrea of Magherafelt and Cookstown (DUP) [V]
My Lords, I appreciate that the powers under these regulations relate only to England, yet we from Northern Ireland stand firmly behind the underlying principle, which is to allow local authorities to make decisions based on the need of their respective communities in these challenging and unprecedented times. The reality is that the spread of this virus has affected different countries in different ways at different speeds. The same is true of different communities and populations right across our nation, who have experienced varying rates of—
The Deputy Speaker (Lord Duncan of Springbank) (Con)
We will try to find the noble Lord, Lord McCrea, again. I do not think that he was quite finished. However, we will move on to the next speaker, the noble Lord, Lord Hunt of Kings Heath.
Lord Hunt of Kings Heath (Lab)
I hope I am not cut off like that, my Lords.
I certainly welcome the opportunity to debate these regulations, which show up the inadequacy of our procedures to scrutinise such instruments. Last night, the Minister, in the Second Reading of the medicines Bill, extolled the virtues of regulations. He said they come to Parliament and we can scrutinise them effectively, but this afternoon we can see how scanty that scrutiny actually is. These regulations came into force on 18 July. It has taken until today to have a debate on it. There are many more Covid regulations that we still have to debate, which are in power. As Big Brother Watch has pointed out, the regulations have a major impact on how people live their lives and they deserve much tougher parliamentary scrutiny. I would also remind the Minister that very few SIs have been defeated and, the last time the House defeated an SI, we were threatened with abolition by his own Government. Coming back to the medicines Bill, the idea that regulations provide a degree of parliamentary oversight and scrutiny is, I am afraid, very much mistaken.
The noble Lord who got cut off was talking about the importance of local authority leadership—I agree. The trouble is that Regulation 3 gives the Secretary of State power to override local councils. That might be justified if the intervention was based on science or some other rational explanation, whereas we have seen, in the north-west, that the decision of the Government was based on lobbying by Conservative MPs, which had to be reversed when the data came to light.
The noble Lord quoted Regulation 3. Can he explain to the House—so far today he has had two opportunities—what representations his department has received, in the last few weeks, from Conservative MPs in the north-west, to ease the lockdown? Did the Minister take account of the advice of the Chief Medical Officer or Deputy Chief Medical Officer?
The Deputy Speaker (Lord Duncan of Springbank) (Con)
The House will be pleased to know that we have managed to recover the noble Lord, Lord McCrea.
Lord McCrea of Magherafelt and Cookstown (DUP) [V]
My Lords, it is certain that local authorities and councils will hold unique insight into imminent threats facing their communities. The extension of these powers to direct closure of certain premises and events is prudent. I also accept that the safeguard included legislation that allows the Health Secretary to intervene, or revoke particular directives, should it be in the national common good. It may be necessary in certain circumstances.
The foundations of our vibrant democracy allow the UK to adopt a localised and targeted approach to Covid-19 interventions, as well as enforcement of the rules. All of this is placed within a wider framework agreed between the four nations. Ultimately, it is collaboration and delegation of powers that will continue to be vital as we seek to face down this deadly threat with God’s help.
I also welcome the focus on ensuring that the coronavirus regulations, and the enforcement of them, take into consideration the impact on the fundamental freedoms of those with disabilities or other impairments.
Lord Scriven (LD)
My Lords, I bring to the attention of the House my registered interest as a vice-president of the Local Government Association.
These regulations were too little, too late and introduced in a way that is becoming a national disgrace. No longer should Whitehall know best, nor emergency legislation without the proper scrutiny and revision by Parliament be enacted from the tip of a Minister’s pen, when there are significant implications for people’s freedoms and business survival. This kind of knee-jerk reaction indicates a Government not on top of the issues that this virus is seeks a competent Government to deal with.
I sought a power of general direction for local authorities back in March, but Whitehall knew best and said no. It should now be clear to those in the Whitehall bunker that they cannot control the spread of this virus from SW1A. Rather than continual emergency legislation on the back of a fag packet, a competent Government would have sat down with the local government and come up with powers and legislation useful in laying down actions, responsibilities and resources that councils up and down the country require to keep people safe and help stop the spread of the virus.
What is required is proper strategic discussion with local government, treating it as an equal partner in the fight against Covid-19, so that effective powers and responsibilities can be taken up in local areas. They should be drawn up in a proper legislative process and scrutinised and revised by this Parliament, so that when the next wave of Covid-19 hits us, powers, responsibilities and resources are in place at a local level that can be used proactively and are effective in slowing the spread of the virus.
Whitehall and the Minister said no in March when I came up with a constructive amendment. This time, I hope the Minister is listening a little more closely, and will do what I have suggested: stop relying on the Whitehall-knows-best reactive emergency regulations and produce more detailed and informed legislation—scrutinised by this Parliament—that will be far more effective in dealing with this deadly virus at a local level.
Lord McColl of Dulwich (Con) [V]
My Lords, I welcome these regulations, because the trouble with the present local arrangements is that they are far too bureaucratic. Sometimes, they even require the participation of the law. It really is so difficult to get things done. Effective local decision-making is what is required, and we should have much more of it, rather than central control.
Perhaps the local authorities could also point out to all and sundry that politicians and the media, with their enormous power, spend so much time in destructive criticism of the Government, which demoralises the public. Blaming the Government for the high mortality rate of Covid-19 is false. The high mortality rate is due to the fact that over 70% of the people in this country are obese. Obesity and Covid-19 is a potentially fatal combination. If politicians and the all-powerful media really want to help the British people, they should support the Prime Minister in his campaign to combat the obesity epidemic.
The Earl of Clancarty (CB)
My Lords, giving local authorities these powers was the right thing to do, although we should have been discussing this in Parliament in July, not September. At present, the key issue is that local authorities need the best evidence on which to base their decisions. The gathering of that data now ought to be controlled by local authorities. I agree with the noble Lord, Lord Greaves, when he said in the House yesterday:
“Give us the tools and we will get on with the job.”—[Official Report, 2/9/20; col. 350.]
If local councillors and others are saying that there is a problem, the Government need to listen and ask what they can do. They should listen to those such as Andy Burnham when he said yesterday that the emphasis should be on local door-to-door testing, rather than a national test and trace system.
Do the Government believe that testing is increasingly important in those situations where people are on the move—going back to work or school—when there is a greater chance of the disease being spread? We know, for instance, that Berlin has had to shut 5% of schools already. That is not an argument for the country not to open up; it is an argument for much more comprehensive testing, including in schools, in workplaces and before and after flying abroad.
We should, however, go further than that. If you can easily buy a reliable test kit online from one of numerous private practices, I do not see why you cannot now get a test easily and informally from your own NHS doctor, whether you have symptoms or not. The problem needs to be understood as one of availability at the local level, not capacity. I suggest to the Government that when people go for a flu jab this autumn, it will be the perfect time for a large section of the population to get tested for Covid, if mass testing is now a government objective.
Lord Blencathra (Con) [V]
My Lords, once again I congratulate the Minister on his sheer hard work, and on setting out so clearly the content of these regulations, which I support.
I want to focus again on the penalty and enforcement provisions in the regulations, which on paper are excellent. However, as we have seen time after time over the last few months, the police are simply not bothering to enforce them, and that is not the fault of the Minister or of the Department of Health and Social Care.
I am tempted to report every police force in this country as committing mass hate crimes against elderly and disabled people. We have spent four months locked away obeying the law, but what of many others? We saw mass demonstrations of Black Lives Matter and not a single person fined but the police bowing down to them. We saw mass lawbreaking of every sort in Leicester by Asian sweatshop owners, and again the police and authorities did nothing because they did not want to offend their communities. There have been hundreds of illegal raves all over the country and not a single person fined. I accept that where thousands turn up it is a problem, but the police have failed to break up and penalise small raves and house parties. Two days ago, a bunch of yobs roamed up and down a TUI flight dispensing Covid-19 to all and sundry. Not a single person has been fined or prosecuted. The police boast that they have spoken to tens of thousands of people and urged them to comply. What a joke; every young person now knows that they can pack into pubs, houses, raves and planes not wearing a mask, and not a single thing will be done about it. Fining Jeremy Corbyn’s brother £10,000 is no alternative to fining the other tens of thousands of lawbreakers.
We old gits will continue obeying the law and being put at risk every day by some people who do not give a damn and by a police force that is unwilling to enforce the law. I regret that I will not join those who say that the police are doing a wonderful job. They are not, and they should be ordered to enforce the law.
Baroness Wheatcroft (Non-Afl) [V]
My Lords, I thank the Minister for his clear explanation of the regulations. Clearly it is right that local authorities have these powers, but as he said, local intelligence is key to decision-making in coping with this pandemic. In 2018, with the horrific Novichok poisonings in Salisbury, we saw that local public health officials were able to deal brilliantly with containing the problem, yet while the Government pay lip service to local empowerment, their tendency is still to centralise. This was all too evident in the recent fiasco over restrictions in Stockport, Bolton and Trafford. While the Mayor of Manchester, Andy Burnham, was adamant that the restrictions should not be lifted, the Government insisted on doing so. The Mayor went as far as advising people to continue to follow the restrictions. The local intelligence of the Mayor was right, and within hours the Government U-turned—something of a habit. Can the Minister explain why the Government originally overruled the local intelligence?
In a similar vein, we learned today that last week was the worst ever for test and trace, with a contact rate of less than 70%. Local health protection teams have a contact tracing success rate that is very close to 100%, so again, can the Minister explain why we have such a centralised test and trace system when the problem is localised?
Baroness Crawley (Lab) [V]
My Lords, I have a couple of questions arising from these regulations. In asking the Minister, I acknowledge the work that he is undertaking personally in these very challenging times despite his Government’s best efforts to sow chaos and uncertainty all around him.
Can the Minister say a little about the particular support being given to BAME communities during local restrictions and lockdowns, as we are all aware of the disproportionate effect of Covid-19 on these communities? How is clarity and transparency in official communications being addressed when focusing on BAME communities?
In the case of Birmingham, a city that I used to represent and which is now, as he knows, an area of enhanced support—meaning that it is one step away from intervention—does it really make sense for us to see the city’s drive-through testing facility close? I am aware that there are other facilities outside the city boundaries, such as at West Bromwich and Solihull, but this must be the most convenient facility for people to access. Has there been any more progress in looking at alternatives as far as drive-through testing sites in Birmingham are concerned?
Baroness Walmsley (LD) [V]
My Lords, often during the recent series of local lockdowns the voice of the local authorities has not been heard. When eventually it is heard, such as in the recent case of Bolton and Trafford, changes have been at such short notice as to confuse local people and make them much less likely to abide by the new restrictions. Local authorities must give reasonable notice to the public and businesses about closures. How can they do that if the Government change their mind with 12 hours’ notice?
Recently, many businesses have gone to enormous trouble to protect their clients with cleaning and distancing arrangements and PPE, which have cost them time and money, and yet sometimes they must close because of the behaviour of others or virus spikes at the far side of a large local authority area. I want to ask about their rights in those situations. According to these regulations, they can appeal to the magistrates’ court. How many such appeals have there been, and how long have they taken to be considered? What training have magistrates been given in considering these cases? Have any closure notices been overturned by a magistrate because of the rigorous safety measures being taken on the premises? Proprietors can also appeal to the Secretary of State. How many such appeals have there been, and how long have they taken to be considered? What steps have been taken to inform those running premises of their rights in this matter?
The enforcement section of this regulation contains an increasing list of fixed penalties, depending on the number of offences. What discretion do magistrates have to consider the case of an organiser or a participant in a peaceful protest where all possible precautions have been taken to protect public safety?
Baroness Altmann (Con)
My Lords, I congratulate the Minister on laying these regulations, his explanation for them and all his hard work in connection with the current emergency. I support the idea that the Government should not impose more nationwide controls, and the Minister’s words about people needing to get on with their lives as much as possible around the country. Targeted local measures to manage health locally are vital.
However, I echo concerns about these regulations being debated only weeks after they came into force. I am also concerned that we do not have adequate localised testing and that results from testing, where it is done, are received with such delay in too many cases. The consequence of that makes it very difficult for local authorities, or indeed the national authorities, to understand the serious and imminent threat to public health from Covid-19 and what measures are necessary and proportionate to protect public health. These very blunt instruments are all that we have at the moment. I hope that we will improve the ability to track and trace local outbreaks in the coming weeks.
The idea of using flu jab appointments as an opportunity for widespread testing is an excellent one, and freeing up local authorities to do some testing rather than being straitjacketed into a national system would encourage local authorities to use whatever local facilities are available to them to serve their local population as best they can in tracing and testing.
Baroness Jones of Moulsecoomb (GP)
I express sympathy for the Minister, who, before this debate began, had already been under interrogation for an hour. However, it is almost six months since the first emergency legislation was brought in to deal with the coronavirus. The sheer urgency and importance required Parliament to pass an emergency Bill, now the Coronavirus Act, and then approve emergency regulations made under the health protection legislation.
The Government have now had plenty of time to get a handle on this, and I echo other noble Lords who are exasperated by the fact that we are still seeing emergency statutory instruments coming in on the “made affirmative” procedure. The Government should bring forth a Bill setting out a proper framework for scrutiny of future restrictions. Let Parliament debate, amend and pass legislation, so that there is a proper democratic backing for these measures.
The other piece of scrutiny is around the Coronavirus Act, which has to be reviewed by the end of this month. Can the Minister outline what the Government’s plans are regarding the Act and what will happen with the review? There are huge parts of it—the most restrictive of people’s liberties—that are obsolete and should be repealed. In particular, I refer to the parts that allow for people to be detained for testing and treatment. These were always very concerning provisions, but the Government told us that they were absolutely necessary for dealing with the pandemic—though apparently not. Can the Minister confirm that Section 51 of the Act has never been used, is not necessary, and should be repealed? Will the Government use the powers in Sections 88 or 90 to repeal those parts of the Act that are no longer necessary?
Lord Naseby (Con) [V]
I thank my noble friend, who must be one of the hardest-working Peers in history, I would think. I declare an interest in that my wife is a doctor who has worked in India, Hackney and Islington. We are celebrating our diamond jubilee today and we discussed this particular SI over lunch.
The linkage with local government is not working properly, because people in central government do not fully respect local medical officers of health. I have been a leader of the London Borough of Islington and I know what a good job they do.
In today’s Telegraph, the Governor of the Bank of England said that consumer caution was derailing the economy. One area of the economy that is closed is the sporting world, be it cricket, rugby, football or other things. DCMS is exceedingly slow and ultra-cautious, with only 15% of its staff at their desks. We have an opportunity here. All first-class cricket clubs were ready to open for business in July, with proper Covid-19 preparations fully approved. Why do we not use local government to inspect these sporting grounds to approve them or otherwise? It already does it for safety. The cricket finishes in four weeks, and there is a real business opportunity as we deal with the T20 Blast. It will encourage our dear people to go out and enjoy themselves, spend money and get the economy moving.
While I am about it, can we please use the phrase “possible second wave”, not simply “second wave”—the Minister did use the words “second wave” earlier on today—particularly as we see falls in hospital admissions and death rates? Above all, can we forget the phrase “world-beating”?
Baroness McIntosh of Pickering (Con) [V]
My Lords, I have a brief question to put to my noble friend the Minister regarding the consultation on local lockdowns: how, in future, can we strive to avoid the tension that appears to have arisen in local cases, particularly in the north-west? I urge the Government, in the next campaign that I gather will be announced about face-based test and trace, to look to ensure, if possible, that young people are targeted in any campaign that we have.
In terms of the potential flu epidemic that might coincide with a national spike in Covid, can my noble friend assure the House today that his department has had contact with doctors and pharmacists to ensure that not just the over-65s will have sufficient access to vaccines and that, with the new demand, over-50s will also be able to be vaccinated and that there will be sufficient availability for both categories? My understanding is that flu vaccines are ordered months, if not a year, in advance and there may not be sufficient to cover both categories.
The Deputy Speaker (Lord Duncan of Springbank) (Con)
The noble Baroness has quite a fetching scarf. The next speaker is the noble Lord, Lord Bhatia.
Lord Bhatia (Non-Afl) [V]
My Lords, this SI gives local authorities powers relating to the control and prevention of coronavirus. This SI requires the approval of both Houses. The regulations came into force on 18 July 2020 but, if they are not approved by the House of Lords, they will cease to apply.
These are important powers to control the spread of the coronavirus. In these difficult times, it is important to give powers to local authorities to close down certain properties, such as bars, restaurants and shops. We have witnessed the various towns where there has been a flare-up of the pandemic and the powers of the local authorities have helped to close down such premises before it spreads further. Communities and local government have to work together to ensure that people wear masks, maintain social distance and regularly wash their hands with soap. Local authorities must have powers to fine individuals in premises if they do not conform to the regulations. Repeated breaking of the regulations should mean heavy fines and perhaps imprisonment.
We must realise that such powers are for the safety of public health. These powers are fair and proportionate in the present circumstances. I trust that both Houses will ensure that politics will not interfere with these regulations. Lives can be lost in these difficult times.
Lord Willis of Knaresborough (LD) [V]
My Lords, does the Minister agree that it is essential that there is public buy-in for these and future regulations, and that that has not been the case? That buy-in can come only from a Government who gain credibility by having clear, unambiguous messaging and the courage at times to admit failure.
That being the case, why, when Public Health England was created by the Government and reports directly to the Secretary of State, has the Secretary of State not accepted responsibility for its failure? Why, given the consistent underperformance of his own track and trace system, has the person leading that failure now been given an even greater role in the Covid response programme? Is not a lack of government credibility the reason for the public increasingly ignoring these regulations, and not the police and local councils, which are totally frustrated because they do not have the means to enforce these confusing regulations?
The previous policy of whole-council lockdowns, often announced in the media before local officials are told, is now seen as disproportionate and unfair, but will the new regulations be any better? Where are the criteria by which local authorities need to judge their lockdown policies? What is the process for including or excluding individual businesses or leisure facilities within locked-down areas where no evidence of rising infections exist? How about dedicated local track-and-trace systems? They do not exist, but could accurately give evidence of an effective lockdown. People have to understand why they or their business are being targeted. They need criteria for action, rapid testing, swift and consistent feedback, and immediate support. Simply waving the threat of meaningless and unenforceable penalties will not do.
When will the long-awaited app—so effective in Germany, with over 15 million people using it—be available here? No doubt its failure to appear will be blamed on some hapless official to save the face of Government Ministers during this disaster.
Baroness Noakes (Con) [V]
My Lords, these regulations are authoritarian and disproportionate. Under the banner of responding to Covid-19, the Government’s default position is to take sweeping powers to tell citizens what to do and to punish them if they do not do it. Recruiting local authorities to this cause does not make it any better. The only good thing about the regulations is that they have a sunset clause.
Covid-19 may well have been a major public health danger in the early part of this year, but it is not one now. Hospitalisation rates and deaths are extremely low, despite a rising number of recorded infections. However, we now have two massive problems that are exacerbated by the obsession with Covid-19.
First, the NHS has virtually abandoned most patients. Access to primary care, undetected and untreated cancer patients, massive hidden waiting lists for consultations and diagnostics, and a huge backlog of elective surgery are just some of the problems.
Secondly, we have a very great economic crisis. Lockdown has had a huge, negative impact on the economy. Government borrowing is at levels not previously seen in peacetime. Businesses are struggling to get back to anything like normal and many will not survive.
These regulations are nothing to be proud of. The Government need to prioritise the real problems facing our country.
Baroness Uddin (Non-Afl)
My Lords, I am pleased to follow the noble Baroness, Lady Noakes. We are in the seventh week of the regulations being in place and once more we are sleepwalking into approving regulations without an opportunity to amend or challenge decisions, undermining any notion of meaningful oversight.
I wish to make two points, the first being about localised lockdown. Despite what the Minister said, confusion seems to have reigned, creating significant turbulence in communities. By now, we should have established a blueprint for multiagency intervention in partnership with local leadership and health organisations, including local testing, as I have said before in this House. When the Government say that they are being decisive, that is not recognised by many communities, which consider that government approaches cause anxiety and resentment among residents, businesses, health professionals and law enforcement alike. Can the Minister inform the House what criteria and benchmarks are activating local lockdowns? I understand that the virus remains worryingly active, and I hope that noble Lords will agree that we must do all we can to mitigate the effect of uncertainties and the erosion of trust and confidence. That includes improving communication among minority communities, which at the moment can be considered negligent.
The other point that I wish to raise is on the impact of regulations on public gatherings. Every weekend I see young people in public and at social gatherings breaching the mask-wearing and social distancing rules, with no enforcement in sight. The health protection regulations are in place to protect the public from health risks, but they must not transgress, being used to impinge on civil liberties or stop peaceful, democratic protests. During these protests, some people have received excessive, punitive fines. Any draconian interpretation of the rules must not be countenanced or allowed to curtail our basic rights at a time when we are witnessing historic movements led by young people campaigning for social and political justice, equality and action on climate change. I agree wholeheartedly with the noble Baronesses, Lady Jolly and Lady Bull. Can the Minister assure the House that the Government are collecting robust data for equality impact assessments, on how and where fines are being issued, and on the ethnic and age breakdown?
Lord Balfe (Con)
My Lords, we are at a tipping point in this matter. Much of the population no longer believes in the measures that are being put forward. On Monday this week, the Times carried a story with the headline:
“Second wave … this winter could kill 85,000 people”—
that is, twice as many people who have already died. In the middle of the article was a little table showing that one person died the day before the story was published.
Many people, particularly the young, think that old people are legislating for them. Many old people feel that middle-aged people are pushing them around and telling them to isolate. Now, we have this legislation, which effectively ends political protest. I carry no brief for Extinction Rebellion, but it could easily be banned under this legislation, and that would be wrong. We will face an inability of the state to get its citizens to behave in the way we wish without coercive measures, and that we cannot do. Therefore, the Government should look, first, at exempting political protests from the regulations and, secondly, at easing up, because if they do not, the population will. The fact is that there is freedom to dissent in this country. There is also a freedom to do foolish things, and people should defend that. That is what this is about.
Finally, people often used to say to me, “Do you know that Jeremy Corbyn? He’s dreadful, isn’t he?” I used to say to them, “You should meet his brother.” I do not think that we were right to fine Piers Corbyn £10,000. He has very quickly raised that sum on the net, and if we carry on with this level of confrontation, we will regret it.
Baroness Ritchie of Downpatrick (Non-Afl) [V]
My Lords, I take this opportunity to thank the Minister for his explanation of the SI. It is good that local authorities are given local powers to deal with local situations where there have been spikes of Covid. However, to assist with these mitigating measures, I would like to ask him a few questions.
Can he tell your Lordships’ House what progress has been made on global vaccine development? I believe that people will feel safe only when a vaccine becomes available. What preparations have been made for a possible second spike of Covid? Will those preparations take the form of local lockdowns and directions to be given by councils in relation to premises, and what staff and funding resources will be devoted to such an outbreak? Is there an available supply of PPE and ventilators, and are care homes now fully equipped to deal with emergencies such as a further possible spike of Covid?
Also, what assessments have been made of the track and trace programme? If applicable, will those results be made available, and how will they instruct government on the allocation of medical, care and nursing staff resources, as well as the ready need for financial resources?
Baroness Neville-Rolfe (Con)
My Lords, we had a very good PQ debate on 28 July about the need to give greater priority to the economic impact of Covid. I argued on the basis of analysis from leading academics that the costs of the severe restrictions that we have imposed for medical reasons are much larger than the benefits. So there was a strong case for the recent lifting of national lockdown restrictions. Taking a lead from my noble friend Lady Penn, who is in her place and spoke very convincingly then, there was agreement that measures adopted to counter any flare-up in infections should be carefully targeted locally rather than being general in effect. I therefore support these regulations, the provision they rightly make for local lockdowns and the January sunset clause.
However, I have four concerns today. First, since lockdowns and local measures have now become more routine, I think that it was wrong not to consult formally on these regulations, and I would like to know who was consulted informally beyond charities. As we have seen, local closures have a huge impact and we are now talking about very few deaths, as my noble friend Lady Noakes said, and much improved hospital care.
Secondly, with these emergency measures as with others, there is no attempt to measure economic impact and, I believe, still no economist on SAGE. All we know is that the debt load for our children to tackle is already horrific; we must reverse that trend.
Thirdly, the Secretary of State for Health and Social Care appears to be responsible for policing whether local measures are necessary and proportionate. How is this checked and enforced? Is there not a bias here in favour of caution and Covid, when the adverse impact on shops, education and the world of work and on the number of deaths of people on NHS waiting lists are a worry?
Fourthly, why is there not more local and workplace testing—including, indeed, here in the House of Lords? Care homes, in particular, are crying out for frequent testing. There is lots of capacity, so, as the Minister in charge, my noble friend should lay down the law.
Viscount Eccles (Con)
My Lords, I will follow the thrust of the speeches made much earlier by the noble Lords, Lord Hunt of Kings Heath and Lord Scriven. In this intervention, I am questioning not the policy but its legislative implementation. In the early days when things were very hectic we could understand why the policy was being implemented in the way that it was, but now, when we know much more, it must be a matter of doubt.
The policy is being implemented under a 36 year-old Act, the Public Health (Control of Disease) Act 1984—I apologise to all noble Lords who know this story very well—including the emergency powers in that Act. The Act imposed duties upon bodies such as the Port of London, port health authorities and aerodromes controlled by the Secretary of State, and their duties were to report notifiable diseases. The powers in the Act were designed to make sure that they carried out their duties in a proper manner. There were even duties about the conditions in which people might live in canal boats.
My question to the Minister is: is there a precedent for picking a conveniently drafted set of powers and using them for a very different purpose? Will the Government, with their much greater knowledge, continue to use this, or do they intend to change the way in which they implement the legislation to give much more scope to Parliament for scrutiny and even possibly amendment?
Baroness Barker (LD)
My Lords, I hope the Minister managed to get a small break over the summer. I did, and I visited Salisbury Cathedral and its most famous exhibit from 1215. The entrance to the exhibition has a copy of the emergency Coronavirus Act 2020. The display says, “Do you know that the Government has taken unto itself the following powers and taken away the following rights from citizens?”, and lists them. Looking at these regulations today, it is tempting to repeat the most famous question of all: “Magna Carta: did she die in vain?” Six months ago, when we were looking at that Act, we said to the Government that it was predicated on some wrong assumptions. One of the key assumptions that was wrong was that it did not take into account the role of locally elected officials and their accountable rule in public health.
I want to draw attention to four problems that underlie all the regulations that we are having to deal with. The first is the mistaken belief that Department of Health Ministers, their spads and their friends in tech companies know better than local government and public agencies how to handle the pandemic. With every passing week, it is more evident that what my noble friend Lord Scriven said in March, which was ignored, was absolutely right: the key to managing a pandemic is to give local authorities a general power of competence, and that is becoming more and more urgent. I ask the Minister when the Government will remedy that.
I checked throughout the summer with colleagues throughout local government and found that the same issue has arisen time and again: they are ordered by central government to take action to close down establishments and to install barriers for physical distancing, but they have no power of enforcement. They are managing at the moment on the power of their own authority negotiated with local populations, but they need the Government to understand that what is being achieved is done so despite the orders from central government, not because of them.
The second problem is the failure to understand that, while central government and the NHS can focus solely on Covid if they have to, and they have done so, others cannot. The police have to deal with the consequences of the virus at the same time as carrying out routine crime policing. Local authorities have had to reorganise social care completely, maintain sanitation services, try to support local businesses to keep open and, in one case, try to decide what the consequences were of Zippos Circus not being able to open on common land. That may seem trivial, but that is what people in local government are having to deal with as yet more “helpful” advice and guidance comes from the Government. So my next point to the Minister is this: will the Government ban officials from issuing yet more advice to local government that gets changed day by day and gets in the way of implementing things properly?
The third and most important problem is the one that we have alluded to and which we knew was coming: the failure to have an effective track and trace system. The Government have thrown millions at companies that did not have to tender or even show any competence in the area at all. Directors of public health still do not have timely household data about infections so that they can use their local intelligence to work out what the transmission patterns are and take precise precautionary action. Ministers can stand there and bluster and blame all they like, but until such time as they own up to that and work with people in local government to rectify the systems and build on local intelligence, we are not going to be able to make any of this work.
The fourth problem is that immunity from parliamentary scrutiny has clearly enabled the Government to do something that has been quite counterproductive: to pay no attention whatever to the communications strategy for what they want to do. Time and again they have announced at the last minute to professionals what they are expected to do within hours rather than days. I can tell the Minister that in Oldham, hours before the beginning of Eid, it was announced that two families from separate households could not meet in a garden but it was still all right to go to the pub. That went down very badly with everyone in Oldham because they understood entirely what its effect would be. I have to say, looking at some of the other public announcements since, it is clear that people in central government have yet to understand what people in the streets understand: that they are making this up as they go along.
The noble Baroness, Lady Jones, rightly pointed us to the really important matter: the Act has to be reviewed by the end of this month. We have a backlog of regulations that are every bit as ineffective as these are. I do not think that in all conscience this Parliament can let the Government hide as they did behind the emergency nature of the virus outbreak six months ago. The Government have to start telling us now how they intend to revise the legislation, who they intend to involve in consultation and, above all, how they will be led by local professionals who understand what is happening in their communities, so that not only do we get something that is effective but we get ourselves back on the right side of human rights and public responsibilities.
Baroness Thornton (Lab)
I agree with everything that the noble Baroness, Lady Barker, has just said. We shall get to that point by the end of this month. I congratulate the Minister on the marathon session that he has done today. I have just agreed to almost three days this month of statutory instrument conversations like the ones that we are going to have today about things that have already been enacted. They all have to be done by 25 September, so for two Fridays and a Thursday the Minister and I and many noble Lords here will be in the Chamber having similar conversations. The time has come when we actually need to review the whole process. I say that for a number of reasons.
The Minister has said a few things today that I completely agree with; for example, he says that the population are getting a bit exhausted, that we definitely have a second wave coming and that there are things that we therefore need to think seriously about. The Minister has also said that we now know a great deal more about Covid, what happens and how to deal with outbreaks than we did at the beginning of March. When you put all those things together, it should say to us that we do not need the urgent legislation on the statute book that we agreed back in March. It needs to be reviewed. There is now time to plan for the next wave if it is going to happen. There is time to have discussions in Parliament about what needs to be done, what local authorities should be doing, what resources are needed, how the NHS can function and continue cancer and other treatments at the same time as manage a Covid outbreak. We have time to do that. It is about time to ask the Minister to say to the Government that we need to end the emergency legislation. We need to review it and we need to stop it. We now need proper scrutiny of the regulations that we are discussing today.
These regulations should have been debated two months ago. I put on the record again that this process needs to be reviewed as a matter of urgency. If we are to believe the Minister and his colleagues about testing and tracing, the readiness of the NHS, the scientific basis for local lockdowns, the strengthening of local public health efforts, and the greater understanding of the virus, we do not need emergency legislation to facilitate and to avoid a national lockdown. The question that the Minister needs to answer is: when will we see a proper review and revoking of these powers instead of just rolling forward, with Parliament unable to play its part in the legitimate scrutiny of this legislation?
Another legitimate concern which the Minister has heard from several parts of the House is that this piece of legislation can be used to stop legitimate political activity. Can the Minister say whether the legislation has indeed been used to stop legitimate political protest, which this country prides itself on allowing to happen, even in its most bonkers forms?
The noble Baroness, Lady Bull, and others raised important questions about the equality issues raised by this legislation. I would like the Minister to address those questions.
Can the Minister expand on the criteria for serious and imminent threats to public health and the necessary precautions? According to the Local Government Association, local authorities are unsure of the circumstances in which they can use these powers and the threshold for meeting these two tests. For example, many councils have been grappling with the lack of social distancing in venues, including licensed premises, such as pubs, but found that a small minority ignored the requirements to ensure social distancing altogether.
Where areas are on the Government’s watchlist, and there is a clear imminent public health ground to take action, councils feel confident in taking enforcement action under the regulations. However, where there is not a known spike of Covid cases locally, councils have advised that they are less certain about whether they can take enforcement action under the regulations to prevent a local outbreak. Does the Minister believe that a lack of social distancing in itself constitutes a serious and imminent threat to public health?
Hesitancy is not helpful in the fight against Covid-19. The clarity for which we have been calling for months remains a priority. I think that these regulations give a Secretary of State the power to require a local authority to make or revoke a direction after consulting with the CMO or deputy CMO. Can the Minister advise whether the Secretary of State has given any such directions and, if so, where has he done that? Can he confirm whether the CMO or deputy CMO were consulted and whether their responses were shared with the appropriate authority?
I would be grateful if the Minister could explain how this particular set of regulations interacts with the Government’s guidance on other legislative regimes. However, basically, the Government need to take a thorough look at the appropriateness of these regulations and the way in which they are carried out.
Lord Bethell (Con)
My Lords, I thank everyone involved for this important debate. The restrictions that we have debated today are incredibly necessary and do, in fact, answer many of the points that have been raised in this Chamber about the way in which the Government are going about their fight against Covid, and in particular, about the interaction between central government and local authorities. Empowering local authorities to protect the people in their areas from this terrible virus is the exact reason for these regulations. I would like to pay tribute to those local authorities which are working so closely with government and bringing about important impacts in their areas that close down outbreaks that we never hear about.
I will focus on individual answers to questions, and then wrap up. I reassure the noble Lord, Lord Hunt, that all decisions by local action committees are based on the latest data and advice from experts, including the CMO in consultation with local authorities. That interaction between central government and local authorities has come a huge way since we last spoke in this Chamber and a huge investment has taken place during the summer in building those relationships and getting the data moving between the two. It works nine times out of 10 without any impact on the headlines whatever, and those relationships are being forged extremely closely.
The noble Baroness, Lady Jolly, asked about fixed penalty notices. I reassure her that under Regulation 3 no fixed penalty notices have been issued. I think that is a tribute to the way in which the police have gone about marshalling these restrictions, which, despite the comments of some noble Lords, has been extremely responsible, light-touch and has relied on encouragement wherever possible.
I very much welcome my noble friend Lord Lansley’s comments on the collaborative work between government and local authorities. We are extremely committed to local-led leadership in the fight against Covid. In answer to his question, we are investing massively in systems, data, personnel and the culture of collaboration in that relationship between central and local government.
I completely agree with the noble Lord, Lord McCrea, that the virus hits different people in different ways. When I speak to my counterparts in other countries, what is amazing to me is the reassurance I get that many of the challenges they face are the same, but also how the disease hits different people in different ways.
I remind the noble Lord, Lord Hunt, that some of his comparisons between the regulations before us today and the regulations envisaged in the Medicines and Medical Devices Bill are completely different and an unfair comparison. What we have before us today is emergency regulation in the face of an unexpected, unprecedented and horrible epidemic. It was passed quickly to fight a virus that is killing tens of thousands of people. The regulations anticipated for the Medicines and Medical Devices Bill will be highly considered, highly consultative and under the affirmative action in most cases. It is very important to get that comparison right.
I make a special note on the comments of the noble Lord, Lord Scriven, many of which were echoed by the noble Baroness, Lady Barker. I completely pay tribute to the noble Lord, who is absolutely an advocate for local decision-making and enhanced powers for local authorities. I remember well his interventions during the passage of the Coronavirus Bill and his draft amendment. The processes and resources that we are looking at today, at the beginning of September, for local intervention by local authorities, are completely different from what they were in March. We have made a massive investment of time, money, people, technology and systems to beef up those resources. Today, local authorities, local infection teams and directors of public health are being as effective as they are—and they are being effective—because we have worked so hard to build those resources. If it was not for that work, the impact would not be felt. While I completely pay tribute to the vision and accurate analysis by the noble Lord, Lord Scriven, and others on this point, the truth is that if we had taken that approach in March it would not have worked. But we are building those systems today, and I pay tribute to those involved who have taken it so far.
Also in response to the noble Lord, Lord Scriven, I pay tribute to the hard work that went into these regulations. They are characterised as having arrived here unexpected and unscrutinised. That is not true in this case. These regulations were hammered out in conversations between government, local authorities and DPHs in response to the needs and requirements of those local authorities and directors of public health. They were in response to the political call of those in this Chamber and elsewhere. They were not unexpected or rushed; they were the subject of extensive consultation. On their quality, I remark that no one has particularly questioned the regulations themselves. Their quality is first class; they are completely fit for purpose, and I am extremely grateful to those involved in the drafting of these regulations, which have already proved to be extremely effective and have had a huge impact.
On the comments of my noble friend Lord McColl, I am afraid that I could not hear them all, but I believe that they were a sobering reminder that, as a country, we have not tackled the challenge of obesity, which has correlated the impact of coronavirus in this country. The Government take that extremely seriously. It starts at the top with the Prime Minister and his own personal experience and goes through the announcement in July of our obesity strategy, which we debated in this Chamber yesterday. It is a long-term commitment of the Prime Minister and Secretary of State for Health to address the matter properly.
In response to the question from the noble Earl, Lord Clancarty, yes, you can get a test wherever you live, but typically it costs around £100. That is why we are working on dramatically reducing their cost, so that we can introduce the sort of mass surveillance that he discussed.
In response to my noble friend Lady Wheatcroft, I completely welcome U-turns when the evidence changes. We need to balance between national and local resources and decision-making and analysis.
In response to the noble Baroness, Lady Crawley, I am very sad about the disproportionate effect on BAME. We are studying it extensively to try to understand it properly.
I completely and utterly reject the characterisation by my noble friend Lord Naseby of the Department for Digital, Culture, Media and Sport, which has been extremely active in this space. It is deeply engaged with cricket. The second wave has already hit France and Spain hard and it seems unlikely to avoid Lords cricket ground for any cultural superiority reasons.
In response to the noble Baroness, Lady McIntosh—gosh, I am running out of time here—we are offering the flu jab to 30 million people, and plans are in place to extend it to 50 million to 64 million people.
I have massively misjudged my timing on this, and there are a large number of questions that I would have liked to answer, but I have got it completely wrong. My key points are that a second wave is already reaching across Europe. If you go to Marseille or Barcelona, or, if you are in America, you go to Florida, you will see that the rise in prevalence leads to a rise in hospitalisations as night follows day. We have to be prepared for winter. The days are already shorter, and the schools are back. It is only 113 days to Christmas. We have put into place during this summer important preparations for the winter, and these regulations are an important part of it. They meet the challenge of getting central government to work closely with local authorities. They are very good regulations and answer many of the challenges that I have heard here in this Chamber. For that reason, I commend these regulations to the House.