Health Protection (Coronavirus, Restrictions) (All Tiers and Self-Isolation) (England) (Amendment) Regulations 2021
(3 years, 8 months ago)
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Lord Bethell
That the Regulations laid before the House on 29 January be approved.
Relevant document: 45th Report from the Secondary Legislation Scrutiny Committee
The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Bethell) (Con)
My Lords, this regulation covers important aspects of the enforcement of isolation. Noble Lords will recognise that isolation is the key tool that most effectively breaks the chain of transmission; if those who are asked to isolate do so, we can beat this awful virus, but if they do not, the cost is measured in lives, the economy and our society. Huge resources are expended on identifying those with the disease, and their contacts.
So many are asymptomatic that the instruction to isolate can strike some as tough. No one likes measures that restrict people like this. I did not join the House thinking that I would stand here like this, and I am sure that many noble Lords will rightly reflect on the costs to liberty of such regulations. However, I would not be before your Lordships now if I did not believe that they were absolutely necessary. If those with the disease, and their contacts, do not isolate, and instead spread the disease in the community, then we are wasting the country’s resources in fighting this disease, because this disease is so virulent that we cannot rely on most people abiding by the guidelines most of the time. We need much higher adherence than that to beat the disease, or else we will be living with a high infection rate, giving the disease the circumstances to mutate and potentially evade the vaccines, so that we are back at the beginning.
These regulations cover detailed aspects of data sharing between test and trace and our police forces. This is a delicate area, because we must be very careful about data being shared between a testing body and an enforcement body. That is why these regulations are so detailed and why we are taking so much time to get them right. The data sharing of these regulations is operationalised by a memorandum of understanding between the National Police Chiefs’ Council and the Department for Health and Social Care. Conscious of the importance of getting this relationship right and retaining public trust in the system, we have sought to give clear legal underpinnings with these regulations. We worked very hard to get this right in the regulations in September, we refined them in January, and we continue to work hard to get this right.
This instrument makes changes to the original regulations from September. These regulations introduced for the first time the legal requirement to self-isolate for individuals who have been notified to do so by test and trace. They provided for some very basic details to be shared by test and trace to the police, specifically name, contact details, the date on which they were told to self-isolate and the end date of the self-isolation period. Non-adherence to those regulations became punishable by a fixed penalty notice ranging from £1,000 to £10,000. Failure to pay could result in court action and conviction.
The amendments that we are discussing today address the data sharing that is required to make those FPNs enforceable. For the police to issue FPNs, in addition to the information covered in the September regulations, they need some very basic extra information about the suspected brief, including, first, evidence to prove that the individual is supposed to be self-isolating—either a test result or a contact connection—and evidence that a person has received a notification from test and trace.
Secondly, there are some further items of contextual information that are needed by the police to help them reasonably manage their engagement with a potential offender. For instance, they need to know if that person might have a disability, so that they can take the right approach. At the other end of the spectrum, they need to know if that person has been threatening or abusive. These amendments allow the minimum necessary information to be shared with the police to ensure that they have confidence with the individual who has been notified and issued with an FPN if necessary.
I have spoken previously of our intention to publish the MoU and I reiterate that. We will publish it shortly, once these loose ends are tidied up.
I will say a word about how all this works in practice. The process deployed since the regulations first came into force protects individual privacy and is only activated by a specific police inquiry. The amendment to the regulations on 29 January does not change that. These additional data points may only be shared,
“for the purpose of the prevention, investigation, detection or prosecution of offences”.
The police receive details of a potential breach, mostly from the public, and will assess this information. Where confirmation is needed that the individual has a legal duty to self-isolate, a specific request is made to test and trace. On receipt, test and trace will check its records and confirm to the police that the individual has been notified. The police do not have access to the test and trace database and that will remain so. The police will then decide whether to contact the individual and, having interviewed them, whether the FPN should apply. To meet the evidentiary test necessary to issue an FPN, the police need to have the same level of certainty of the facts as they do for bringing a prosecution in a court of law. The changes being debated today provide that certainty. Without the additional information, the police would have found it much more difficult to issue an FPN.
We will continue to support people to do the right thing, both through the test and trace support payment scheme and through supporting councils to provide practical help for those struggling to self-isolate. In this country, we rely on the principle of the consent of the people, rather than the threat of imprisonment, for the application of lockdown measures. However, as has been noted by noble Lords in many debates, there must be consequences for those who break the law. The police have a role in upholding and enforcing these regulations. We must ensure that they have the tools—the data—necessary to do so. The urgency of this amendment stems from the feedback received from the police that that additional information was needed.
SI 97 also makes changes to the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020. It introduces a higher fixed penalty notice to persons aged 18 and over for participating in gatherings of more than 15 people in a private dwelling, educational accommodation or an indoor rave. This new, larger FPN will support wider efforts to improve compliance with regulations during this stage of the restrictions and thereby help to lower transmission rates further.
Taken together, these amendments demonstrate our willingness to take tough action against the most serious breaches of the rules. We also understand that it is crucial to take steps to allow people to return to a more normal way of life. The most effective way of doing this is by continuing to reduce the transmission of the virus while we deliver our vaccination programme. I commend these regulations to the House.
Lord Hunt of Kings Heath (Lab) [V]
My Lords, the Minister has argued persuasively this afternoon that we need to ensure that infected individuals, and their close contacts, self-isolate. He was also persuasive about the need for the police to have the data necessary to strengthen the effectiveness of the current system. In principle, I support this statutory instrument. The police need more support to deter people from breaching self-isolation and increase compliance, as this is so clearly in the public interest. I wish the Government had been as vigorous when it came to quarantine arrangements at our borders.
I note that the Secondary Legislation Scrutiny Committee has welcomed this SI, having previously criticised the Government for not sharing data effectively with the authorities to enable them to enforce self-isolation. Having said that, I am, like the Minister, mindful that allowing the police access to NHS Test and Trace data does raise some uncomfortable ethical questions. Despite supporting this instrument, I think that it may cause some members of the public to be reluctant to be tested as a result. As the BMA has said:
“We are already concerned that some people are deterred from being tested because they are anxious about loss of income should they need to self-isolate—and we are worried should police involvement add to this.”
We have seen something similar with vaccines. As Nick Cohen wrote in the Observer yesterday,
“Theresa May’s ‘hostile environment’ for migrants makes them frightened of visiting vaccination centres. When the NHS shares data with the Home Office and immigration enforcement, they have every incentive to stay away.”
This is a very sensitive matter and I would like an assurance from the Minister that the SI will be rescinded as soon as possible.
Big Brother Watch has raised the issue of the memorandum of understanding with me and other noble Lords. My understanding is that this was agreed between the Department of Health and the National Police Chiefs’ Council last October but it has never been published. The Minister says that it will be published soon, but does he agree that, when it comes to the sharing of information, we are entitled to see the MoU, in the interests of transparency and speed? Can he confirm that “soon” means in a matter of days?
Lord Scriven (LD) [V]
My Lords, four months have passed since the Minister told the public that the memorandum of understanding on data sharing between the National Police Chiefs’ Council and his department was just a small administrative issue, nothing to do with health information that could undermine public health efforts. Yet four months later, the law is in place and data is being passed to the police without Parliament or the public seeing the MoU.
In answer to a Written Question from me on 17 February, the Minister stated that the MoU
“is currently being updated to reflect amendments”
to these regulations
“and feedback from the Information Commissioners Office.”
He added that,
“the MoU will be published as soon as practically possible.”
What are the issues on sharing non-sensitive health information, such as one’s name and address, that have taken four months and required the intervention of the commissioner? Did she require any changes to the original MoU, and if so, what?
As we move to the next stage of dealing with the virus and the new variants, we will still require people to self-isolate. As the noble Lord, Lord Hunt, has said, the BMA has already said that it is concerned that some people are deterred from being tested because they are anxious about loss of income if they need to self-isolate and that it is
“worried should police involvement add to this.”
Evidence has shown that most people do the correct thing and isolate if they have financial security and practical support to do so. These are the key tasks for the Government now if rates of people self-isolating are to be improved on. While some financial support is being made available, for many it is not enough. Will the Minister now commit to paying people their full wages, so that people will self-isolate for the full period without having to worry about paying bills or feeding their family?
Practical support is required too. If you live in a cramped or multigenerational household, it can be impossible to self-isolate in a separate room. Why will the Government not do what other countries have done and pay for some of the closed hotels to be used as isolation hotels? Excellent international practice has reduced the spread of the virus through supporting people to self-isolate, via community well-being and health teams. These teams support with shopping, well-being and other healthcare support. In countries where these teams are deployed, they increase self-isolation and compliance and help reduce the chain of transmission of the virus. These kinds of issues are at the root of improving self-isolation. The Government should focus on them and not four months of fruitless discussions about sharing health data with the police, fines and, potentially, criminalising people who just want the financial security and practical support to do the right thing.
Lord Bilimoria (CB) [V]
My Lords, we are talking about self-isolation and test and trace. It is less than three months since 8 December, when the first inoculation took place, and we have vaccinated 20 million people. Hats off to Nadhim Zahawi and everyone involved, for this is remarkable.
Throughout the past week, companies throughout the UK have continued broadly to welcome the Government’s roadmap out of lockdown—I speak as president of the CBI. Businesses back the step-by-step, data-driven approach to reopening, with the hope of ending the damaging “stop-start” of restrictions. We also welcome the return of schools in a few days’ time on 8 March. The Government’s decision to extend the workplace testing scheme until the end of June was excellent news, alongside the roadmap’s reviews into reopening high-risk sectors such as large events and international travel. It is this workplace testing which will identify asymptomatic individuals and cause them to isolate. Business sees the vital role of this in reopening the economy. Firms conducting workplace testing—both privately and through the government scheme—have noted the benefit of being able to detect asymptomatic cases that would otherwise have gone unnoticed. However, confusion remains about what resource from businesses is required to sustain workplace testing, and how it will interact with community surge testing and NHS Test and Trace, particularly as the economy reopens. Could the Minister tell us more?
Firms undertaking testing privately are highlighting how disparate the testing market is. CBI members are saying that the cost of a single test ranges between £5 and £20, and that is unsustainable. To build confidence and encourage the implementation of workplace testing across all workplaces, businesses require clear guidance on how it interacts with other policies such as Covid-secure guidelines and vaccinations. Does the Minister agree that data, and not dates, should drive the reopening of the economy? If vaccinations increase from half a million per day to 1 million per day—as we have the capacity to do if the supply comes on line this month, as I think it will—that will mean more than 20 million per month, and we will be able to vaccinate the population well ahead of the government forecast. Every day earlier the economy can reopen is every day that livelihoods will be affected, in industries such as hospitality, aviation and tourism. Does the Minister agree that we would need to review those dates if, in the optimistic scenario, we were well ahead of the game and infections, cases and the sad deaths dropped to zero before 21 June?
Lord Blencathra (Con)
My Lords, I begin by praising my noble friend the Minister for yet another appearance at the Dispatch Box. He must have set a record for the sheer number of times he has briefed this House and for his depth of knowledge and courtesy. He is an outstanding Minister, but so too have been the Prime Minister and the whole ministerial team in rolling out the world’s best vaccination programme.
A writer in the Guardian yesterday began with the sentence:
“For diehard Remoaners like me, all this endless good news about jabs and carbon emissions is pretty hard to take.”
He went on:
“Nearly 20 million … doses administered. A forward-thinking procurement plan. The leading large nation, far ahead of the US and, more gallingly for us frothing Remoaners, miles ahead of Europe. Nothing could be more depressing for the honest self-loathing liberal Brit … the vaccine programme has turned out to be a slick collaboration between hard-nosed businesspeople, big pharma and the academic establishment.”
So says the Guardian, so it must be true. So thank you, Ministers, and thank you, Brexit.
I have one point for my noble friend about vaccination refuseniks, and I neither want nor expect an answer today. Along with the vast majority of the public, we demand that all NHS staff either get vaccinated or get out. Everyone has the right to refuse a vaccination, but free choice brings consequences. As a vulnerable patient, I have followed NHS instructions not to visit hospitals in the past year, and all my appointments have been virtual, and all have worked exceptionally well. This is going to be the future for many appointments.
I and millions of others have done our bit to protect the NHS and now it is the duty of all NHS staff to protect us. We have all clapped the dedication of NHS staff who have worked incredibly stressful hours over the last year, but that does not give a minority the right to think that they can do what they like and jeopardise patients’ lives. When we go into hospitals, now that we have highly effective vaccines, we have the right to expect that every staff member in there has been vaccinated—front-line staff and all those admin people I see wandering around wards and corridors carrying files.
If the figure is true, it is appalling that 25% of staff in London are refusing vaccinations. Who do they think they are? Of course, the Government should explain and persuade, but, if that fails, the next step should be a final written warning and then dismissal. Yes, we are short of NHS workers, but the public demand that we do not have thousands of Typhoid Marys wandering around our hospitals and spreading the virus. I commend the care home industry for its policy of “no jab, no job,” and ask that it be extended to all NHS staff. The whole country has been through hell for the last 12 months and we are coming through it. We cannot let the ignorant and selfish wishes of a minority undermine all those sacrifices. We respect the absolute right of NHS staff to refuse being vaccinated, but we ask that they respect our right not to keep them in a job if they refuse.
Lord Clark of Windermere (Lab) [V]
My Lords, I thank the Minister yet again for introducing an SI in a clear manner, which provides much certainty to the police. That is what is needed, and I thank the Minister for it.
This SI is complicated, detailed and technical. The Minister is right, and the Government are right, to try to ensure that it is perfect, but, like many complicated SIs, it depends on basic information. If this information proves to be incorrect or false, no matter how complicated the SI is, it will not work. I will give an example of that by citing an incident which has become public today. We have learned that a number of people have entered Britain from Brazil carrying the dangerous P1 variant. They have managed to trace six of the individuals but cannot trace the seventh because the person who filled the forms in did so incorrectly and provided no contact details. This makes my basic point: if the information provided is incorrect—and it was a standard form—and the form is not checked by any official, we have only that incorrect information. As it was incorrect, we have had someone entering from Brazil carrying a very dangerous disease. We do not know where that person is. Will the Minister try to ensure—I know that it is not easy—that the Border Force has sufficient individuals at the border to check every single form?
Baroness Neville-Rolfe (Con)
My Lords, it is a great pleasure to follow the noble Lord, Lord Clark of Windermere, for whom I enjoyed working when I was an official at the Cabinet Office many years ago. He was as courteous then as he is now.
Reflecting on our response to Covid has caused me to shift from being mainly a staunch supporter of strong law and order policies to one who is equally worried about the erosion of British liberties. Unfortunately, we know from history that Governments come to regard long-standing emergency measures as essential—look at the delay in lifting rationing after World War II. I would like some ministerial recognition of such dangers that now face us.
Taken together, the Covid rules represent a very authoritarian regime. A criminal offence can ruin an individual’s life chances, excluding them from some walks of life. Will breach of the various provisions we are discussing today give offenders a criminal record? If so, is there a defence against mistakes? A new system of data sharing is being opened up in these regulations. How do we ensure that any this information does not get into the wrong hands or stay on police computers for years?
Finally, when will the powers to which this SI makes changes end? Can the Minister confirm that there will be a proper opportunity for debate before the whole system of coronavirus measures under the Public Health Act is renewed, and will there be an impact assessment next time round? This is a vital way of ensuring that those involved in bureaucracy make sensible and proportionate regulations and, perhaps equally important, that they are ready to make changes if they are wrong—some evidence of which we have seen today.
I end with my personal observations of this past weekend. One London park was packed because of the glorious spring weather. The swings were a riot. The grass areas had been taken over by fathers and children playing tennis and cricket, with others queuing to follow them. Yet the dedicated tennis courts and hard playing areas were aggressively locked. There is a strong case for opening these up earlier in March, to the advantage of all. Can the Minister please think again on this and answer my detailed concerns?
Lord McCrea of Magherafelt and Cookstown (DUP) [V]
My Lords, we have been assured that all the sacrifices that have already been made concerning personal restrictions imposed by the Government have been life-saving measures, and I acknowledge again the debt of gratitude that we owe to all those who have worked within the health service and those who have tirelessly worked to get vaccines that will, I hope, assist in bringing this nightmare to an end. I also applaud those who have been involved in rolling out the 20 million doses of vaccine, and I trust that this will continue.
We have had daily updates on the spread of the virus and the measures commanded by government to save lives. However, during this pandemic we have endlessly talked about our efforts without acknowledging our need for divine intervention and God’s blessing upon our efforts. When our nation faced days of crisis before, our leaders invoked the help of Almighty God and the tide was turned. I was reminded of the psalm that we often read at the beginning of our deliberations:
“I will lift up mine eyes unto the hills, from whence cometh my help.
My help cometh from the Lord”.
I humbly suggest that we need God’s help today.
We are told that these regulations are essential as we move forward in a measured fashion. It is imperative that we do not face another lockdown. This must be the last one, because many across our nation are struggling with serious mental and numerous other medical issues that require urgent attention. We are at a critical point in the Covid-19 pandemic and, bearing in mind the great sacrifices of so many, certainly it is a disgrace that there are those who frequently breach the rules around social gatherings; we have certainly seen that in our Province.
However, allowing police to have access to very personal data held by the Department of Health is certainly a vexed issue, and there is a genuine concern in the hearts of many about how far individual civil liberties and freedoms should be restricted. Self-isolation which is demanded without being assured of receiving financial support from the Government is surely a totally unacceptable situation. Can the Minister give noble Lords the assurance that no one will be financially burdened by being forced into isolation? I trust that the strengthening of the regulations will permit the police to effectively and yet fairly take resolute action against those who act irresponsibly to endanger lives. I appreciate that this instrument extends to England and Wales, but certainly it will be noted by other devolved Administrations.
Lord Bourne of Aberystwyth (Con) [V]
My Lords, it is a great pleasure to follow the noble Lord, Lord McCrea of Magherafelt and Cookstown, who reminds us quite rightly of the important part that faith and faith communities play in tackling this pandemic. I thank my noble friend for outlining the purpose of these regulations and pay tribute to his incredible hard work and good humour throughout this pandemic and in serving our House.
I support these regulations. I believe that the overriding need to contain the spread of the disease means that, where self-isolation is required, it should be properly enforced. I enjoy the honour of serving on the Public Services Select Committee. During our recent inquiry, one very clear fact emerged, which was the frequent need to be more open to sharing data. We saw very clear evidence that bodies which chose to share data were able to rise to the challenges of the pandemic much more readily. So I very much endorse the approach of these regulations in this regard, although, like others, I look forward to the imminent—I hope—memorandum of understanding.
On the stricter control of gatherings of over 15 people, again this seems eminently sensible. Clearly, the larger the gathering, the greater the concern. I suspect that many people would strongly support these regulations and would perhaps even favour a tougher regime. I have a question in this regard for my noble friend. Clearly, the mischief which the regulations seek to address is large unauthorised gatherings. Why then do the regulations restrict themselves to private dwellings, educational establishments or indoor raves? Clearly, they are part of the problem that we need to tackle, but what happens if there is a large gathering on business premises or in a barn, on industrial or charitable premises, or perhaps there is unauthorised use of a public building? It seems that, as drawn, the regulations do not cover these types of activity. It may well be that I have missed something or that some other regulations deal with those situations, but if the problem is large unauthorised gatherings, why are we not tackling all indoor gatherings rather than just some of them? Subject to that caveat and concern, I give strong support to these regulations and once more thank the Minister for all he does for our House.
Baroness Tyler of Enfield (LD) [V]
My Lords, these regulations, dealing with the sensitive issue of medical confidentiality and data sharing with the police, are being debated 30 days after they came into force. This has become a regular pattern in our scrutiny and a very unwelcome one, not least in this case because of the centrality of medical privacy to an effective public health system. We all understand the urgency of responding to the pandemic, but democratic accountability should not suffer in the process. When considering these issues, we must surely remember that we are first and foremost dealing with a public health crisis, not a public order crisis, and our responses should be viewed through that lens.
As we have already heard, these regulations were introduced to increase compliance, which I very much support. We know that a small number of people flout the rules—compliance is estimated at about 90%. However, the issue for most people is self-isolation and the support needed to adhere to the rules. Where people can comply, generally they do. Increased support, particularly financial support, is most urgently needed, as my noble friend Lord Scriven so compellingly set out. As the human rights group Liberty has said, supporting people and helping people follow guidance is the best way to keep everyone safe. That must be right. It is worrying that, owing primarily to a lack of support, a study by UCL this January revealed that 38% of respondents said they were not isolating for the recommended number of days when they had developed symptoms, with 13% not isolating at all.
As others have pointed out, these regulations will give the police more ammunition in enforcing the rules, but, in reality, are we clear how much capacity the police have to enforce this? Also, do we know what impact data sharing and increased fines have had on improving isolation rates, and can the Minister supply the House with those figures?
I turn finally to wider issues. Having had my first dose of the vaccine earlier today, I want to thank all involved in the rollout of the vaccination programme. It has been a great success. I pay particular tribute to the volunteers who are doing such a wonderful job at the vaccination centre I attended. However, despite all this, and the much-needed morale boost that the rollout has given the country, this morning’s news of six cases of the Brazil variant comes as a serious blow. Were we not far too late in introducing the new quarantine and testing on arrival requirements? One person who did not even give basic contact details has slipped through the net completely, and this was not picked up by a basic check. Surely that suggests that the system is not working and needs some urgent re-engineering. What assurances can the Minister give us on this absolutely critical matter?
Lord Balfe (Con)
My Lords, I want to take up the point made by the noble Lord, Lord Scriven, and ask the Minister when we will see the MoU. On 17 February, the Minister wrote that it
“is currently being updated to reflect amendments to the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020 on 29 January and feedback from the Information Commissioner’s Office.”
He added that the MoU would be published
“as soon as practically possible.”
That was two weeks ago. Where is it? When will we see it?
I will make some general observations. This has become very much a middle-class debate. A lot of people in this country are not paying much attention to these regulations. Many of them do not understand what they are for—although they understand that they want to get round them. They see an increasingly authoritarian Government increasing the penalties but the police not implementing the law. There is not a single sign of the law being aggressively implemented in the city of Cambridge, where I live. I do not think the police would like to invade the middle-class enclave and I am not sure they would feel that confident going on to the council estates.
So we can keep on giving the police powers to fine and so on, but we need to understand that what is perceived as a hostile environment, backed up by an authoritarian Government, is not working. Threatening people with a criminal conviction that could stop them being employed for ever is an incentive to get around the law as much as it is to obey it, and we have not really followed that up. People will say, “Why should I take the test? I might be found to be infected. Then I would lose my income. I would have to stay at home.” It is a directive incentive not to take a test, and we do not seem to be able to face up to that.
This was made very clear by the noble Baroness, Lady Finlay, when she said:
“Crippling fines and a police record will only disincentivise people to seek testing and disclose their contacts.”—[Official Report, 22/10/20; col. 1668.]
That is absolutely true.
My final point is that I have been abroad fairly regularly during this, because I have a job that takes me to Brussels. I have regularly handed in my test and trace form. It has always been accepted but has not on a single occasion been checked.
Baroness Wheatcroft (CB) [V]
My Lords, I welcome these regulations. It is essential that those who could transmit this devastating disease should isolate. Although I listened to what the noble Lord, Lord Balfe, had to say, I believe that the majority of people in this country, whatever their class or role, understand the importance of testing and isolating and are doing their best to comply.
The Minister introduced these regulations in his normal straightforward manner, for which I thank him. It is important that the Government should be consistent in dealing with the disease. It is harder for people if they are asked to comply with inconsistent regulations. I declare my interest as chairman of the Association of Leading Visitor Attractions. As others have said—although not this afternoon—it seems completely inconsistent that non-essential retail will open for business on 12 April, but indoor visitor attractions will not be able to open on this date. They will have to wait at least five weeks longer, which means that, once again, they will miss the crucial Easter trading period. All the evidence we have is that visitor attractions can enforce social distancing much more effectively than non-essential retail, so can the Minister explain this difference in approach?
I now refer to the detailed regulations presented today. I understand the need for the police to have access to data and to be able to levy fines on those who do not comply. Those who have to isolate are told to do so by test and trace, yet test and trace acknowledges that when it notifies someone of the need to self-isolate, it relies on that individual telling those who live with them that they too must self-isolate. They are not contacted directly by test and trace. So can the Minister say whether those who are simply told by someone with whom they live that they need to isolate can be subject to fines if they fail to do so? Those people will not have been notified directly by test and trace.
Finally, the SI refers to gatherings. How does the law define a “rave”? The Minister is certainly better qualified than most to help us on this point.
Baroness McIntosh of Pickering (Con) [V]
My Lords, I am delighted to follow my noble friend Lady Wheatcroft. I look forward to the Minister’s answer as to what constitutes a rave.
I congratulate the Minister on bringing forward SI 97. I thank him especially for responding to the two specific points that the Secondary Legislation Scrutiny Committee identified in its report as wanting. The Government are closing these loopholes. They were accused of not sharing data effectively with the authorities to enable them to enforce self-isolation. They are also bringing forward a new fixed-penalty notice in the circumstances set out in the statutory instrument. Even though these measures were introduced six weeks ago in January, I congratulate the Government on the fact that we are now successfully tackling the potential spread. I welcome this instrument, which effectively tackles potential spread in the workplace and at illicit gatherings.
I will focus my attention on what I believe is still wanting and needs to be addressed as a matter of urgency, as other noble Lords have mentioned during this debate. We are failing to secure our borders successfully. It is obviously highly damaging that a potential victim of the Brazil variant of coronavirus is wandering around and has not yet been identified. We are an island, so it is easier for us to control access and entry into the country, whether by plane, boat or Eurostar.
I urge the Minister to go back to what used to happen, and it is a very simple solution. If you were travelling by plane—and this applied also to entry by ship or Eurostar—a white landing card used to be issued, filled in and handed in before landing. Presumably these cards were handed directly to Border Force. I urge my noble friend to have hard copies of passenger locator forms for this purpose on all planes, trains, boats and Eurostar services. That would ensure that any individual entering the country for whatever reason submits details of where they have come from and where they will be staying, so that Border Force and the police can access their whereabouts at the earliest possible stage.
Baroness Fox of Buckley (Non-Afl)
My Lords, as the Minister has noted, retaining public trust is key, especially if we want people to go along with incredibly draconian and invasive tools in terms of isolation. It feels as though this is a one-way street. The Government asked the public to trust the police and the authorities rather blindly and yet, they will not trust people to make the most basic decisions, such as allowing them to assess any level of risk or threat that they might face. They then use threats of criminal conviction far too readily.
As we have heard from noble Lords, there is a lack of imagination when it comes to offering a generous settlement that would allow people to isolate without causing them and their families great hardship. I know many people who cannot afford to isolate; that is the reality and we have to face up to it.
Like the noble Baroness, Lady Neville-Rolfe, I worry about signing up to data sharing, privacy issues, a likely form of ID cards and police access to our most intimate information. These are anathema to a free society. This emergency should not blind us to the dangers of a constant expansion of police powers. Over the weekend, I noted that the Home Secretary and the Policing Minister are looking to extend some of the emergency restrictions on the right to protest. I fear that, unless there is a full public debate about the consequences for freedom of association and redrawing the relationship between the state and the individual, it will, in the end, fuel distrust.
I have one chilling piece of data, as the Government are interested in data. As of 26 February, a few days ago, 356 coronavirus-justified statutory instruments had been made law, without a draft presented in advance to Parliament, and therefore without scrutiny of their justification or proportionality. I want the Minister to understand that if he wants trust, he needs to assure us that there will be an emergency stop on the road map of this kind of democratic government as soon as possible. I am afraid that I am nervous about the rules that they keep bringing in after the effect.
The Deputy Speaker (Lord Haskel) (Lab)
As the noble Baroness, Lady Uddin, is not available, I call the noble Baroness, Lady Stroud.
Baroness Stroud (Con) [V]
My Lords, I add my congratulations to my noble friend the Minister on the enormous success of the vaccination procurement and rollout programmes. They reveal not only the extraordinary feats that can be achieved when the private and public sectors work closely together, but also how, when circumstances require it, we are able to unite as a nation to serve and protect those who are most vulnerable.
However, as encouraging as the initial vaccine rollout programme has been, the Minister is right to highlight that the virus has not yet been beaten. We are all only too well aware that the threat of further mutations means that the coronavirus is here to stay in some form or other. The question now shifts to: how do we live with the threat of Covid going forward, even in a vaccinated population? The answer has to lie in the form of a health response, not a legislative response, to empower individuals to make responsible decisions for their own health and their family’s and community’s health. But here we are today further strengthening restrictions, even as we have charted the way out of lockdown.
These regulations, which came into force on 29 January, introduce a new fixed-penalty notice for those attending a gathering of more than 15 people and amend the self-isolation regulations to provide the police with further tools to identify and enforce self-isolation orders. It is odd that at a time when we should be championing the success of the vaccine programme and restoring our civil liberties, we are passing statutory instruments that further restrict our freedoms.
Will the Minister tell the House what impact on the numbers of people self-isolating has been achieved by this SI? What other proposals were considered to achieve the same policy objective, such as a full salary replacement strategy? A recent study by Oxford University found that Britain is experiencing one of the strictest lockdowns in the world. Only two Governments—Venezuela’s and Lebanon’s—have introduced tougher responses. Why do we think that these powers are needed when the British people have done such a good job at complying? They have not complied because of the threat of legislation, but because they have acted responsibly to protect their own health and the health of their family and community. They have responded to the information that they have been given and made wise choices.
I have enormous faith in the character of the British people. Mobility data clearly indicates that the public responded to public health advice and largely restricted their own behaviours, even prior to official lockdown enforcement measures. There is much to be rebuilt for all Governments around the world as we come out of this lockdown, but one aspect that will need to be rebuilt is the Government’s trust in the people of this nation. I strongly encourage the Government to refrain from further statutory instruments that would seek to limit personal liberties in response to the virus. With the vaccine programme under way, it is time to wind back these measures and empower the British people to take the responsible steps to build back their own prosperity.
Baroness Brinton (LD) [V]
My Lords, here we are again, discussing legislation that was presented to Parliament on 28 January and came into force the following day. Only a month later are we now debating it.
Given that the Government’s intention is to deter people from breaching self-isolation and increase compliance at a time when adherence to self-isolation is crucial, ensuring that infected individuals and their close contacts self-isolate has to be one of the most powerful tools for controlling transmission of Covid-19. If that is the case, can the Minister explain why the new £800 fines that were brought in a month ago are still not published on the Government’s guidance page under the section “if you break the rules”? How on earth can they be a good deterrent if people do not know about them? In short, these regulations are about compliance, enforcement and data sharing but frankly, it is all stick and no carrot.
The Liberal Democrats have been extremely concerned about the half-hearted nature of the approach the Government have taken to self-isolation and quarantine. As others have said, and we agree, we know that in general most people do comply and only very few deliberately choose not to. That is not the issue, as my noble friends Lord Scriven and Lady Tyler have said.
The role of the state is to encourage as well as to force compliance in public health emergencies such as this pandemic. We have repeatedly asked for these carrots to be created and made visible to the public. We know from those nations that run successful self-isolation and quarantine systems that telephone support, food and medicine deliveries and, most important, payment of the equivalent of a minimum wage are what makes them work—not, noble Lords should note, a one-off grant that is almost impossible to get, and sick pay at a level that is a joke and requires the poorest families to decide between isolation and putting food on their table. It is time the Chancellor responded to our calls, because the best way to support people and to help them follow the guidance is also the best way to keep everyone safe.
We note that the regulations increase data sharing for police, including contact details, how the individual was notified to self-isolate and the test result. Has the Department of Health and Social Care monitored whether data sharing has had an impact on people’s willingness to seek help and share their data? Can the Minister say how the data will be kept safe and secure?
May I repeat a question that I asked him 12 months ago, when we discussed the early regulations: what assurances can the Minister give your Lordships’ House that the data will only be used for the purposes of Covid regulations and that the police and any other authority will delete it as soon as it is no longer needed for Covid matters?
All of this is brought into sharp relief with the news headlines today about the travellers who arrived from Brazil last month, and the one whose test result form did not have contact details on it. Without knowing much more about that case, I ask the Minister some questions of first principle. Can a traveller evade registration or notice as they come into the country? Given the remarks of the noble Lord, Lord Balfe, that his forms on coming in were not checked, what guidance is given to border staff to check? Are any links made between the data collected from travellers quarantining at home and NHS Test and Trace, their GPs or local council via the director of public health, or are the two systems completely separate? If so, why are they not joined up? At what point do local councils and tracers become aware of someone coming in from a red country, whether directly or indirectly? Having that local contact could be vital, if a traveller were subsequently to alert key officials if they feel unwell and need a test. It makes the whole issue of support and further testing of contacts so much easier.
If the test form is not completed fully, as in today’s case, can it be checked back to the QR code for the test kit issued, either in a centre or by post, and then reverse-engineered back to small numbers of people and, hopefully, to the individual? Or is it true that it is possible to send it back without contact details and that the laboratory never checks back and queries it? If so, why is that the case? What lessons are being learned from this, very quickly, given that, once again, one of the key elements to managing this virus is putting the lifting of lockdown at risk?
The noble Lord, Lord Blencathra, suggested that the social care sector had decided to introduce a “no jab, no job” policy, and he wondered whether the NHS might follow. I thought that it was the other way around: that the NHS has vaccine rules in its employment contracts with clinicians, but the care sector has not, in the past. The care sector is now applying them to new staff, but is unable to back-date this because of employment law. More importantly, can he say what plans there are to support and encourage social care staff to have their vaccinations, as the low numbers are very worrying? Is the refusal because staff are low-paid shift workers, often without the means to get to vaccine centres, or is it disinformation about the vaccine?
Finally, like the noble Lord, Lord McCrea, I hope that this is the last lockdown, but the end to lockdown is a partnership between the people and government. Compliance is part of it, but people want and need the tools to make it happen. Can the Minister tell us if government will now do that?
Baroness Thornton (Lab)
My Lords, we will be supporting these regulations, but I have a few questions. I just have a request to the House authorities, and I hope the Minister might support me on this. When these statutory instruments are published, could the House authorities put the SI number on the agenda—the green sheets—because, as several noble Lords have mentioned, we are dealing with dozens of them? Those of us who do not have massive offices to support us have to dig into them to work out which statutory instrument we are approaching. I know that one noble Lord made a speech about these regulations the last time we had a debate about regulations, simply because no number was on them. That was just a request.
The regulations were laid before Parliament at 11 am on 29 January, under the “made affirmative” procedure, and came into force at 5 pm the same day. Could the Minister clarify why the Government felt the need to introduce them at such haste, without parliamentary scrutiny, when, as other noble Lords have said, we are discussing them more than a month later? If they were needed so urgently, it begs the question why it has taken so long to introduce them, a year into the pandemic.
This instrument amends the self-isolation regulations to provide the police with sufficient information to verify the identity of an individual, a copy of the notification sent to the individual informing them of the legal duty to self-isolate and why, following a positive test or contact with an infected individual. Regulation 4(4) limits the use of this shared information to
“the prevention, investigation, detection or prosecution of offences under”
the self-isolation regulations. The Department of Health and Social Care states that the disclosure of this information, for these reasons, is proportionate and in line with Article 8 of the European Convention on Human Rights and the Data Protection Act 2018.
Could the Minister advise the House of whether those notified by the app to self-isolate will be covered by these regulations? They were not covered by the original self-isolation regulations, which was probably an oversight, but if that has not been rectified, can the Minister explain why not?
Further, can the Minister clarify whether the regulations extend to those who have been advised by an individual in their household to self-isolate? Other noble Lords have raised that question: what is the legal liability for people in that household who might have to tell them—it may just be a flat-mate or someone they share a lease with—that they also have to self-isolate?
Regulation 2 changes the all-tier regulations to introduce a new fixed penalty notice for each individual who attends a gathering of more than 15 people. I ask the Minister on what scientific basis the magic number of 15 was arrived at. Do gatherings of 14 not attract fines? We had a similar debate about the rule of six and whether six was plucked out of the air. I would be grateful if the Minister could clarify whether children are included within that 15.
Several noble Lords questioned the issue of sharing data and expressed concern, about both how the data that are being collected will be used now and how soon they will be eliminated and will not be accessible to the police or anybody else. The heart of that question is public trust. We need assurances that sensitive health data will be kept private. Many people could be unwilling to take a test or engage with the department’s contract tracers, particularly if there is a threat of harsh punishment if we are not given those reassurances. The British Medical Association is also concerned about this.
There are concerns about the broad definition of who the information may be shared with. It can be provided not only to the police but to anyone else the Government enlist to uphold the rules. Could the Minister advise us who exactly is entitled to receive this information? For example, are volunteer Covid marshals permitted?
We are now in our third national lockdown—the longest to date. It is a very challenging situation, requiring the public to stay at home and away from their friends and family. There has been much talk about personal responsibility but, as many noble Lords have said, including my noble friend Lord Hunt, it is incumbent on the Government to do the right thing by the people who are co-operating with this and to ensure that there is appropriate support for self-isolation.
For many months, the Government have known that rates of self-isolation remain too low. The noble Baroness, Lady Harding, confirmed that 20,000 people a day were not self-isolating when they should be. This is unsustainable if we are going to see success from some of the relaxations of the current measures, which we all want. The rates at which Covid-19 cases have fallen this year are dramatically lower in some of the UK’s poorest regions compared to the wealthy ones, so does the Minister accept that this is a consequence of the failure to offer financial support to help people on lower incomes with the self-isolation requirements? This has been mentioned many times: the £500 test and trace support payment is not reaching enough people. Seven out of eight people do not qualify for it, so they will simply not get tested. If they do, they may just disappear, and that helps nobody.
Lord Bethell (Con)
My Lords, I start by thanking the Secondary Legislation Scrutiny Committee for its work in looking at this legislation. I also echo the words of the noble Baroness, Lady Thornton, and thank all those noble Lords who have shown huge commitment in following these regulations. I completely confess that it is a tough gig, and I am enormously grateful to those who have shown the stamina, forbearance and determination to stick with it. If anyone has any questions, please do not hesitate to contact me directly.
I also echo the thanks of my noble friend Lord Blencathra, the noble Lord, Lord Bilimoria, and others on the vaccine. It is absolutely right that the rollout of it is impressive, but it is also right that we have to remain cautious because of the very large number of people who have not been vaccinated, and we also must be cautious about whether variants may affect the vaccine. That is why we remain determined to get these regulations right.
I shall start by tackling the MoU, which is the most delicate of the subjects raised by noble Lords. We are trying to get this right; when it comes to the data, we took a minimalist approach. The MoU and the regulations we have laid so far have covered the smallest amount of data that we thought could be effective. We are slowly ensuring that the police have the clarity that they need—the noble Lord, Lord Clark, spoke eloquently on this point—and we are adding to it carefully. The moment that we have an MoU that we think is publishable, I assure noble Lords that we will publish it.
It is absolutely crystal clear that the data covered by the MoU may only be used in the
“prevention, investigation, detection or prosecution”
of these specific offences, and it may not be used elsewhere. The data itself is held on the management of police information—MoPI—system and taken off the moment it is no longer needed. This SI will be rescinded in September this year, unless it is rolled over, in which case a debate will be necessary. To the noble Baroness, Lady Thornton, I say that this does not apply to the isolation app because it does not tell us who the person is who has it on their phone—because of its privacy settings.
Noble Lords spoke very eloquently and with such thought on the absolutely critical issue of compliance, and we are very focused on trying to get it right. I completely and utterly disagree with my noble friend Lord Balfe and his very sweeping and uncomfortable generalisations. I believe that most people in this country want to do the right thing, whether they live in a council house, fly by NetJets or anywhere in between; that is what we have seen from the British public.
Several noble Lords asked about the number of FPNs. We have had 42,675—roughly 4,000 a month—in the entire epidemic. That is a very small number, considering that it is not the approach of this Government to try and get compliance with these regulations by enforcement—we have not done that. We have sought to appeal to people’s civic pride and their feelings towards their neighbours and loved ones, and that appeal has largely worked.
However, my noble friend Lady Wheatcroft did speak about consistency and clarity when it comes to the law. One of the things that I have learned during this epidemic is that putting things into law has the benefit of making them clearer: it means you take out the bugs and reduce the amount of flexibility, and that is of enormous help to those who are trying to live their lives by the law and contribute to the well-being of others. In this matter, I completely agree with the sentiments expressed by my noble friends Lady Wheatcroft and Lady Stroud.
A number of noble Lords spoke about deterrence, and we are very alive to this danger: the idea that you may put enforcement measures in place that deter people from taking tests. This has not been our experience to date, but I take on board the comments last week of the noble Baroness, Lady Finlay, and others who have spoken about the dangers of this. This is why we have not put enforcement at the heart of our approach in terms of trying to implement isolation; instead, we have appealed to people’s better nature.
We are doing a very large amount of marketing around isolation during the unlockdown that starts on March 8, and we are making a huge effort to roll out hundreds of millions of tests in the community testing programme, through schools, workplaces, the community testing programme and elsewhere. At the heart of that investment is an appeal to people’s better nature, which, we believe, will make a huge difference. If you look around the world at those who have effectively applied isolation protocols, you see that you need a combination of four things: civic buy-in, a degree of carrot, clarity and the presence of a little bit of stick—that is our approach.
On carrot, I completely take on board the comments of the noble Baronesses, Lady Thornton and Lady Brinton, the noble Lord, Lord Scriven, and others. However, I do not agree with the suggestion posited: we have, in fact, done an enormous amount to support those who are feeling the pinch. We have a very broad furlough scheme and a payment for testing; local authorities have billions of pounds in order to support local schemes. Those who need it have the support necessary for them to comply with isolation.
On a slightly detached note, I want to say a word about the use of data, which has been brought up by a number of noble Lords. We are seeing a revolution in the use of data through Covid, and we are extremely ambitious about this. The use of the NHS number has been massively increased through vaccination, so that everyone who has a vaccine now knows their NHS number, if they did not know it before. Many of them have used the NHS login to reach the website. The Covid app, with 20 million downloads, has been one of the most successful digital health interventions in the world. I pay huge tribute to the IT teams at NHS Digital, NHSX and NHS Test and Trace who have done an enormous amount to produce billions of data points on the testing, tracing and support of those with clinical needs.
We envisage a complete inflection point on the use of diagnostics by the British public. We are hopeful that this experience will lead people to be much more engaged with their patient records, that they will download the logins and apps necessary to stay in touch with their records, and that they will take a much more proactive approach to consumer diagnostics. That, I hope, will be one of the positive dividends of this awful pandemic.
A number of Peers have asked about borders and the Brazilian variant. We have a debate on this tomorrow so I will limit my comments. However, I stress that the managed quarantine process has been an enormous success. It is extremely frustrating that although there was one person did the right thing and stepped forward for a test, their details were not properly captured. We are trying to understand exactly how that happened. But overall, the South African variant is on the decline, and it speaks volumes that families in south Gloucestershire and in Scotland have done the right thing and isolated so that those outbreaks have been contained. I pay tribute to the Project Eagle team, to NHS Test and Trace and to the borders team who have worked so hard to make that happen.
Finally, on the subject of raves, which several noble Lords have raised, including my noble friend Lord Bourne, and the noble Baronesses, Lady Wheatcroft and Lady Thornton, there is a definition in the law book. It is a gathering on land in the open air with music that includes sounds which are wholly or dominantly characterised by the emission of a succession of repetitive beats, causing serious distress to the inhabitants of the locality. That used to be my life.
Perhaps I can give a legal and a cultural explanation for these measures. The legal explanation is that there has been a lacuna in the law. While small and large gatherings were covered by other regulations, gatherings of under 15 in a house were not. My noble friend Lord Bourne will of course remember the origins of the phrase “house music”; it refers to the period after the closure of discotheques when people gathered to listen to loud music in their home, creating house parties which themselves generated the genre of music now known as house music. That is what is happening, and it often arises at times of economic decline. I beg to move.