Health Protection (Coronavirus, Restrictions) (England) (No. 3) Regulations 2020

Baroness Bull Excerpts

Thursday 3rd September 2020 Lords Chamber

[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?