Health Protection (Coronavirus, Restrictions) (All Tiers and Self-Isolation) (England) (Amendment) Regulations 2021

Lord Bethell Excerpts

Monday 1st March 2021 Lords Chamber

Moved by

[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.

--- Later in debate ---

[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.

Motion agreed.