Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020

Graham Stringer Excerpts

Monday 14th September 2020 General Committees

[The Minister for Patient Safety, Mental Health and Suicide Prevention (Ms Nadine Dorries)]

I beg to move,

That the Committee has considered the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020 (S.I. 2020, No. 791).

It is a pleasure to serve under your chairmanship, Mr Twigg. The regulations were made by the Secretary of State on 23 July and came into force on 24 July. We introduced the regulations to make it mandatory to wear face coverings in some indoor settings in England, such as shops, supermarkets and indoor transport hubs. The regulations are exceptional measures that have been brought forward to mitigate the unprecedented impact of the covid-19 pandemic, and they comply with all the Government’s obligations in relation to human rights.

[Graham Stringer (Blackley and Broughton) (Lab)]

I am grateful to the Minister for giving way so early in the debate. My intervention is relevant to the first point that she made. Paragraph 3.1 of the explanatory memorandum says that the order was laid on 23 July “by reason of urgency”. What was the urgency at that time, when this matter had been under debate for at least three months?

[Ms Dorries]

I will look further into what the urgency was, but I imagine that the evidence that we were getting at the time was that face coverings could prevent people who might be asymptomatic from spreading or contracting the virus. Any measure that can stop an increase in the incidence of coronavirus would have been deemed necessary to halt coronavirus, to stop it increasing in the community and to save lives. I will come back to the hon. Gentleman with further information on that.

The regulations are exceptional measures that have been brought forward to mitigate the unprecedented impact of the covid-19 pandemic, and they comply with all the Government’s obligations in relation to human rights. Above all, the regulations can help to save lives. I urge the Committee to approve the regulations, so that we may continue to use these powers to save lives. The regulations are a necessary response to the seriousness of the situation and the imminent threat to public health that is posed by the spread of covid-19, which is why they were brought into effect under the emergency procedure approved by Parliament for such measures.

It is important that the Committee is able to scrutinise the regulations through this debate. Further amendments were made to the regulations to extend the requirement to wear a face covering to a wider list of indoor settings that are now open to members of the public. Those amendments will be debated at a later date. This debate will therefore focus only on the regulations as they were originally made in July. This country has been, and still is, engaged in a national effort to beat the coronavirus, thanks to the hard work and sacrifice of the British people. Guided by the science, this progress has allowed us to cautiously ease lockdown restrictions, allowing sections of the economy, such as the retail and hospitality sector, to reopen.

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[Graham Stringer]

I am grateful to the Minister, who is as ever being generous. I think she is reading directly from the explanatory memorandum. I wonder if she would be good enough to point the Committee to the evidence she is referring to.

[Ms Dorries]

I will come to explain that a little further in my speech, but we take the evidence on face coverings from a variety of sources: not only the Scientific Advisory Group for Emergencies but the behavioural insights team at the Department of Health and the New and Emerging Respiratory Virus Threats Advisory Group.

When the retail sector reopened and footfall increased, we wanted to enhance protections for members of the public and ensure we were taking the necessary steps to build on the progress we continued to make in reducing the transmission of the virus. That is why we have made it mandatory to wear face coverings in indoor places such as shops, supermarkets and enclosed shopping centres. Similar measures have been adopted in Scotland and Northern Ireland and internationally in countries such as France, Germany and Spain, to name just a few.

I will now outline what the regulations do and set out the policies and processes underlying their development, implementation, monitoring and review. As I have said, the regulations introduced a requirement on members of the public to wear a face covering in relevant places such as a shop, supermarket, enclosed shopping centre and indoor transport hub unless they are exempt or have reasonable excuse not to. The regulations do not apply to employees working in those settings. The wearing of any protective clothing or personal protective equipment by the workforce is a matter for employers following a risk assessment and is part of their health and safety responsibilities. Definitions of shops and transport hubs are included in the regulations, as well as a list of premises that are excluded and where a face covering is not mandatory: for example, restaurants and bars.

The list of settings included reflected the premises that were open to the public at the time of making the regulations. As more settings reopened to members of the public, the regulations were amended to include additional indoor settings and provide more clarity to members of the public on where face coverings must be worn. Those amendments will be debated in due course.

Guidance on gov.uk describes a face covering as a covering of any type covering the wearer’s nose and mouth. People should make or buy their own. Guidance has been published online on how to make and wear a face covering. We are asking people not to use medical-grade PPE as that should be reserved for health and care workers. However, someone wearing PPE would be compliant with the regulations.

While the Government expect the vast majority of people to comply with the rules, as they have done throughout the pandemic, the regulations give powers to the police and Transport for London officers to ensure the requirements to wear a face covering. This could include denying entry to the relevant place and/or directing members of the public to wear a face covering. The police will use the usual four Es approach: explaining engaging and encouraging—and enforcing only as a last resort. In the event that a person fails to comply with a direction from a police officer or a Transport for London officer, a police constable is able to remove the member of the public from the relevant place.

The regulations also include powers for police constables, police community support officers or a TfL officer in relation to the relevant transport hub, to issue a fixed penalty notice to anyone over the age of 18 who is in breach of the law. At the time of making the regulations, that was a fixed penalty of £100, reduced to £50 if paid within 14 days of the notice being issued. Since making the regulations, we have made amendments to the penalty structure, with increased fines for repeat offenders. That is in line with the enforcement provisions in other coronavirus regulations. Parliament will have the opportunity to debate that amendment at a later date.

Although we want as many people as possible to wear a face covering, we recognise that some people are not able to wear one, for a variety of reasons. The regulations exempt children under the age of 11, employees or officials acting in the course of their employment in these premises, and emergency responders. There is no general exception on health or disability grounds. To reiterate, we recognise that, for some, wearing a face covering is not possible or would cause distress or difficulty, and there are certain situations in which wearing a face covering is not practical or reasonable.

The regulations provide a non-exhaustive list of circumstances that constitute a reasonable excuse, pursuant to regulation 3(1), for not complying with the legal requirement to wear a face covering in a relevant place. Such circumstances include where a person is unable to put on or wear a face covering because of physical or mental illness or impairment, or disability; where a face covering needs to be removed for communication through lip reading; where a person needs to remove their face covering because it is reasonably necessary to eat or drink; or where a person is required to remove a face covering for identification purposes. There is comprehensive guidance on what might constitute a reasonable excuse, including circumstances that are not expressly included in the regulations—for example, when a person is speaking to or providing assistance to someone who relies on facial expressions to communicate, or where a person needs to remove a face covering to exercise.

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[Graham Stringer]

It is a genuine pleasure to see you in the Chair this evening, Mr Twigg. This is first time I have served under your chairmanship, and I look forward to doing so on many further occasions.

There are a number of things I would like to say about this statutory instrument. Some relate to process, some to science and some are political. On the process, the Minister, for whom I have every respect, made the point that these regulations last for only 12 months, which is absolutely right. However, the downside is that when regulations last for only 12 months, no regulatory impact assessment is required. A regulatory impact assessment would of course have answered some of the questions asked by the right hon. Member for Elmet and Rothwell, as well as by my right hon. Friend the Member for North Durham, my hon. Friend the Member for Warwick and Leamington and my hon. Friend the shadow Minister. That is to be regretted, but it is part of a bigger lack of scrutiny, which I will come to in a minute.

First, I want to make a very general point. I do not envy the Secretary of State for Health and Social Care, any Health Minister, or, indeed, any Minister from other parts of the Government who has to deal with these issues. They are really difficult. People have died. It is difficult to know what to do. When Ministers and the public pray in aid science—of course science should be looked at—I think people sometimes misunderstand its capabilities. If someone wanted to find the escape velocity of a rocket to leave the earth’s gravitational pull, they should go to an astrophysicist, who would give the exact figures. If they are given the weight of the rocket, they will be able to say the force required to reach that velocity, because physics in that sense is an exact science.

The science surrounding this pandemic is not exact and cannot be exact, partly because it is a new virus and people do not know anything. I suspect it will surprise members of the Committee to know that, as far as I am aware, in real situations or in laboratories, no experiments have taken place on covid-19. We are relying on experiments on other germs, bugs, viruses and bacteria, and on other kinds of experiments.

I will come back to the science, but the biggest point, on which I think I am in agreement with the right hon. Member for Elmet and Rothwell, is that there should be much more scrutiny of this legislation. I recently read the Lords Hansard from when the Coronavirus Act 2020 was passed. In that debate, phrases were used such as, “It would normally be anathema to a democratic Parliament to pass these regulations,” and, “Unprecedented powers are being given to the Government.”

The Minister in the Lords gave all the assurances one would have expected him to give: at the appropriate time, when these wide and extensive powers were used, there would be proper parliamentary scrutiny. It is not just about this SI—there have been many such statutory instruments laid and used, in terms of levels of fines and what is and is not against the law, that have yet to receive parliamentary scrutiny. We have been back here for some time. That is a breach of trust, given that all the parties gave the Government support for the Coronavirus Act 2020.

To go back to the science, one problem Ministers have is that most of them do not have a scientific background and, therefore, have not challenged the scientific advice, which cannot be that precise. In early April, the deputy chief medical officer said that masks should not be worn and that they even have a negative effect. I can understand why Ministers followed that. A few days later, on 16 April, the Secretary of State for Transport said that wearing masks would have a negative effect. In the next month, masks were introduced on transport and now we have them in shops and all sorts of places. Challenging the advice and asking for its source in the first place might have led Ministers to reach different decisions earlier, and even to different decisions leading to this SI.

Most of the evidence on masks has come from experiments with mannequins, which are difficult to do, conducted in laboratory settings, not real settings, so when the Government’s scientific adviser and other scientists say that there is no evidence that masks work, they are right, partly because no experiments have been done on this virus. Also, in the experiments and work that have been done we have not had the scientific gold standard of being able to test one experiment against a double-blind experiment.

That is part of the science background. The Government now come along and said that there is some evidence to suggest that, when used correctly, face coverings might have some benefit in reducing the likelihood of getting the virus, but common sense and the non-covid experiments tell us that. The Government advise putting a scarf over one’s face or getting a mask, which is actually not in line with the World Health Organisation’s recommendations. Following experiments conducted not on the virus but by firing laser beams at masks in Australia, published in the Thorax journal, the World Health Organisation recommended that three-layer masks are better than two-layer masks. The Welsh Government have followed that recommendation of having three layers. Our Government say that two is probably okay, but people can do anything they want. Having moved from saying that masks were of no use to saying they are now of some use, they are not using the best scientific advice, which the Welsh Government are using, to advise on which masks should be worn. I think that is a mistake. We have to go one way or the other. It is understandable that Ministers do not always challenge the advice.

When I asked what the latest evidence was, I expected the Minister to say that there was a large meta-study done by Professor Melinda Mills of the Leverhulme Centre in Oxford. It was not fundamental research, but the study looked across the board at all the papers that had been done and found that 120 countries were advising on masks, so we would have been massively out of step not to follow the advice. I realise that the original advice was not in accordance with that, but the Government could probably have moved earlier and more effectively, with parliamentary scrutiny, to the conclusion that they have reached. The Lancet, which has criticised the Government’s tardiness and slowness on this matter, and could have argued with Professor Van-Tam and any of the other advisers, has pointed out that lack of evidence does not mean the evidence is not there. They could quite easily have challenged those things.

Finally, on the point that my right hon. Friend the Member for North Durham made, I was at a meeting at the weekend with leaders of local authorities and some of the Greater Manchester MPs and there was no support from anybody for the Government’s proposals on marshals. Will the Minister guarantee to the Committee that untrained marshals will not be given enforcement powers that would normally lie with well-trained public health officials or the police? The last thing we want is busybody marshals upsetting members of the public by being over-officious. The confusion of the Government’s messages in this and other areas has meant that many members of the public, particularly younger people, have lost trust in the Government’s message and are no longer following it. What would make that situation worse was if we had untrained marshals throwing their weight about and upsetting the public so that there was even less support for what might well be necessary regulations.

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[Ms Dorries]

No, because every policy dealing with covid has to be based on evidence and scientific facts. We have always followed the science and we are still doing that today.

[Graham Stringer]

Is the Minister saying that the advice given to the Welsh Government was different from that given to the United Kingdom Government, dealing with England in this case? Secondly, we on the Science and Technology Committee have had all the scientific advisers before us on a number of occasions and they have been clear that they lay the evidence before Ministers and they may give advice, but, in the final analysis, it is for Ministers to take the decision, which may differ from the detail of the advice, or the advice may have to be interpreted. They are clear that it is not their decision. Does she agree with that?

[Ms Dorries]

On the hon. Member’s point about who advises the Welsh Government, I have no idea. I would imagine it is their chief medical officer. On whether the scientists take the decision about whether people wear masks, no, they do not. That is not their responsibility. Their responsibility is to evaluate and assimilate evidence and provide us with that evidence.

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[Ms Dorries]

I want to be absolutely clear myself before I give a response, so I will come back to the hon. Member on that in the morning.

[Graham Stringer]

I want to make a point similar to the one I made in the Minister’s opening contribution. What was the evidence, when was it given to Ministers, and what meant we had to wait until recess before the decision was taken? That is key to me. I am sure that if she was in opposition, she would be making exactly the same point.

[Ms Dorries]

We know each other too well.

I want to ensure that what I give the hon. Gentleman is an absolutely accurate statement; therefore, I will give it to him in the morning in writing.

I will stick to the substance of the issues that were raised. On the comments about transport police, the British Transport police outside London have the authority and they use their four Es: engagement, encouragement—