Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020

Justin Madders Excerpts

Thursday 16th July 2020 General Committees

[Justin Madders (Ellesmere Port and Neston) (Lab)]

It is a pleasure to see you in the Chair, Mrs Murray. I hope that your début is memorable for all the right reasons.

I thank the Minister for her introduction. As we know, this is the fifth iteration of the lockdown restrictions, although it is only the fourth time that we are actually debating them. In that lies a tale, which highlights the far from satisfactory approach to parliamentary scrutiny that has been a feature of the Government’s response to the pandemic.

[Maria Eagle]

Is my hon. Friend content that we are discussing today a set of regulations that have already come into force and that have since been changed? However one describes scrutiny, that is a strange definition.

[Justin Madders]

I will be expanding at length on the unsatisfactory nature of the way these regulations have been dealt with from the start. I think it is fair to say that at the start of the pandemic we understood why it was not possible to debate the regulations straightaway, but there is no longer any reason why regulations cannot now be debated in an orderly fashion, before they are formally made law.

Nearly a fortnight ago we saw the reopening of pubs, restaurants and hairdressers, among other businesses. I am sure that many of us were very pleased to be able to support those businesses in our constituencies, but I am sure that we are all equally concerned at the scenes we now regularly see where social distancing appears to have gone out the window. The chairman of the Police Federation, John Apter, commented that it was “crystal clear” that

“drunk people can’t/won’t socially distance.”

That rather begs the question of what consultation was going on before the regulations came into force. On the face of it, they are creating additional risks.

To be clear, none of the regulations has ever stopped people from being closer than 2 metres. That has never been a law that could be enforced, but it is an important element of the guidance designed to help stop the spread of the virus, so changes to the regulations should always consider whether they make social distancing easier or harder to adhere to.

Unfortunately, the Government do not seem to have learned from their experience, because we know that the police were not consulted on the face mask announcement that was made on Tuesday either. That is just one reason why it is frankly ridiculous that we are not debating the regulations before they are introduced.

The Minister was gracious enough to acknowledge the concerns that we have raised on every occasion about the timing of these debates; when we debate the regulations is getting a little bit closer to the due date—next week we will get even closer—but the fact is that we are debating changes that came into effect nearly two weeks ago, and a new set of regulations have already been introduced. That makes a mockery of the parliamentary process for approving legislation.

That brings me to the previous amendment to the regulations, which we were due to debate last Monday—well after they were first introduced, of course. In the end, we did not actually get to debate them at all, because a few hours before the Committee was due to meet, we were told that the sitting had been cancelled—the reason being, apparently, that the regulations had already been superseded and there was no need to debate them. Well, I respectfully disagree with that analysis.

Parliamentary scrutiny is not something that can be ditched because it is inconvenient or the dates do not match. It is why we are here and why we have parliamentary debates, especially for regulations that have huge ramifications. It is not only right but essential that we debate them in Committee. I believe that we should find the time and make it a priority. These issues are too important not to be debated; they demand timely and full parliamentary scrutiny. I make the plea to the Minister, as I have done on previous occasions, that whoever timetables parliamentary business should be made absolutely aware that the Opposition believe that contempt is being shown towards parliamentary scrutiny.

The fact that we were not able to debate the last set of regulations matters because they included what can only be described as a most remarkable and disorderly U-turn, as they enabled outdoor areas, aquariums, visitor farms, zoos and safari parks, as well as drive-in cinemas, to reopen. Members may well wonder why that is a particularly memorable U-turn, given that we have seen quite a few of them in recent weeks. It is because the last set of these regulations that we debated included laws to close those places down. The debate on those regulations took place on the same day that the next set of regulations came into force to open those places up again. We ended up debating one set of laws that had been expunged by another set of laws that Parliament was not debating. If that is democracy, it is a farce. It was all the more remarkable that at no point during the debate did anyone on the Government Benches point out that that was happening.

Even if the Government are not making it up as they go along, they are doing a very good job of creating the impression that they are. As I have said previously, of course we accept that the initial regulations had to be hurriedly introduced in response to the rising number of infections, but since that time the House has been up and running for more than two months and Members on both sides and in the other place have expressed concern about time not being provided to ensure that future changes are debated before they are made. I see no good reason for the Government to continue in this way.

Paragraph 3.1 of the explanatory memorandum states:

“It is the opinion of the Secretary of State that, by reason of urgency, it is necessary to make the regulations without a draft being so laid and approved so that public health measures can be taken in response to the serious and imminent threat to public health which is posed by the incidence and spread of severe acute respiratory syndrome coronavirus 2”.

I think that was a perfectly reasonable thing to say at the start of the crisis, but we are now four months on and it really ought to be possible for there to be a little more formality and order to these things.

The regulations require there to be a review at regular intervals—it was every three weeks, but it is now every four weeks. That is because the Secretary of State has a duty to terminate any regulations that are not necessary or proportionate to control the transmission of the virus. That also means that, from the introduction of the first set of regulations, we have had a clear timetable for when new regulations might be created, and therefore a clear opportunity to factor in parliamentary time for their scrutiny. There is therefore no excuse for us to debate the measures late once again, and neither is it acceptable for us to debate them without the full extent of the information upon which the Government have based their decisions.

[Matt Western (Warwick and Leamington) (Lab)]

My hon. Friend, as always, is making some extremely important points. To go back to his point about the frustration with the enforcement of the regulations as laws, the difficulty for businesses and members of the public is not just in keeping up to date with the laws, but in trying to understand if they will be enforced and how seriously. As he said, the police are totally frustrated by these pieces of legislation because they do not really know what their powers are. Likewise, local authorities do not know what they should be doing. If they do not know, there is no chance of anyone taking this seriously.

[Justin Madders]

My hon. Friend is absolutely right about the blurring of the lines between what is guidance, and therefore advisory, and what is the law. It is important that people do not act unlawfully or, indeed, against the guidance. The police do not enforce issues in which there is only guidance, rather than law.

For example, we know that it was advised that face masks should be worn on public transport back on 11 May, but that only became a legal requirement approximately one month later. The police have been clear that they do not see it as their role to enforce that, which poses the question of who exactly will enforce such rules. We will see the same issues with face masks in shops. It is important not only to have clear sight of what is lawful or not, but that the bodies charged with enforcing the rules and laws have the necessary resources and power to ensure that they are adhered to.

In a previous debate, I asked the Minister to commit to the review of 25 June and the introduction of more relaxations being debated before implementation. Obviously, as we can see from the fact that we are in Committee today, that was not possible. I am grateful that the Minister acknowledges the concern, but it really should not be happening. In previous debates, I asked the Minister why the legally required reviews of 16 April, 7 May and 28 May have not been published. I ask the same question again in respect of the review of 25 June, which again we have not seen.

It is not only me who thinks that that is a problem. On 25 June, the Secondary Legislation Scrutiny Committee specifically expressed concerns about the Government’s refusal to publish reviews, stating that

“it would assist the House and the Committee if the Explanatory Memorandum in such cases included specific information about how and where the outcome of any review is to be promulgated and… We expect Government departments to ensure that in future this information is always provided.”

We have no review and all we have published alongside the regulations is an explanatory note telling us that no consultation has been carried out, no regulatory impact assessment has been undertaken and, worryingly, this time, no declaration that scientific advisers agree that the changes are likely to have an acceptably small impact on transmission rates. That is important, because there are no SAGE minutes to state that such matters have been considered.

In fact, not only do the regulations not state that they will have an acceptably small impact on transmission rates; they actually state that there is recognition that the changes may lead to an increase in transmission rates and will continue to be kept under review. As we have not seen the scientific evidence, will the Minister please give us more detail on that important statement? Is she able to provide clarity about which measures, individually or collectively, are considered likely to lead to an increase in transmission rates? That, above anything else that she says today, has to be the most important thing for us to hear from the Government Benches on this piece of legislation.

It would be better if the review of the regulations were published in full, alongside the full scientific evidence and a full impact assessment, but unfortunately we have none of that. I hope that the Minister will be able to come back to us on some of those concerns before the end of the Committee.

As we heard yesterday, the Imperial College research data commissioned by the Government showed that lockdown significantly reduced the rate of coronavirus infection in the community. The study did not cover care homes or hospital places, which is where we know there has been a significant issue with transmission throughout. Will the Minister confirm when the findings for June—when we saw the easing of lockdown restrictions—will be available? Have those findings been taken into account as part of the consideration in the review of the regulations today?

That is particularly important for public confidence, given that a whole raft of new measures are included in the regulations, as outlined by the Minister. As we have heard, they allow for the reopening of indoor and outdoor public houses, restaurants, cafés and bars, hairdressers, barbers, holiday accommodation, and several leisure and recreational attractions.

The regulations also impose restrictions that require certain businesses to remain closed, including night clubs, dance halls, discothèques, sexual entertainment venues, hostess bars, casinos, nail bars, tanning booths, spas, beauty salons, massage and tattoo parlours, and piercing services. Certain leisure and recreational facilities must also remain closed, including indoor skating rinks, indoor and outdoor swimming pools, water parks, indoor play areas and soft play areas, indoor fitness and dance studios, indoor gyms and sports courts and facilities, and bowling alleys. Conference centres and exhibition halls must also remain closed to external bookings.

As we have already touched on, Members will notice that that list is now out of date, following the amendments to the restrictions that came into effect on 11 and 13 July: those now allow swimming pools and water parks, nail bars, tanning booths, spas, beauty salons, massage and tattoo parlours, and skin piercing services to reopen. That re-emphasises the point about the confusion and lack of clarity about what is and is not permissible. We will be back here on Monday to debate those changes, so I will not go into more detail now, except to reinforce the point that it is wrong for us to be debating regulations to be brought into law to close these places down after they have already reopened.

The regulations significantly change the rules around gatherings. They prohibit gatherings of more than 30 people in private dwellings or on a ship or boat, other than for public transport, or in unmanaged outdoor spaces, save for a small number of exceptions. There is prohibition on indoor raves involving more than 30 individuals. Gatherings of more than 30 people are permitted where reasonably necessary for work, for voluntary or charitable services to provide emergency assistance, to avoid injury or illness, to escape from harm, for education or childcare, or to fulfil a person’s legal obligations.

These are now the only restrictions on people gathering together. Gone completely are the regulations about who people can meet, where and when. Those rules have now become guidance. The guidance on seeing friends and family is still that people should only be socialising in groups of up to two households indoors or up to six people from different households outdoors, but it is only against the law for gatherings of more than 30 people to take place in private homes. I am not sure everyone could fit that many people in their homes anyway, but there is clearly a difference between what the law says and what the guidance says.

It is particularly unfortunate that the Government website that lists what people can and cannot do has not been updated since 9 July, despite the new regulations coming into force on 11 and 13 July. We need clear and consistent messaging from Government on the rules, the laws and the changes that lie ahead. The confusion we have seen this week around face masks proves that there is still some way to go on consistent and clear public messaging.

With regards to compliance, following the scenes of overcrowding and poor social distancing on Bournemouth beach and at other locations, I note that these regulations also provide the Secretary of State with the power to restrict or prohibit access to a specified public outdoor place or public outdoor places of a specified description, in order to prevent, protect against, control or provide a public health response to the incidence or spread of covid-19. I am sure local authorities will welcome that support as we enter the summer holiday period, but they may also be wondering why on earth this was not put in place prior to the easing of lockdown restrictions last month. Can the Minister set out what procedure and consultation will take place with local councils and police forces before such decisions are taken? Presumably, they will be the ones tasked with enforcing the measures.

Finally, as with previous regulations, these regulations provide that fixed-penalty notices may be issued by authorised persons to persons over 18 whom they reasonably believe have committed an offence under the regulations. I have some questions about that, too, as there is a lack of transparency in those situations where fines are issued for a breach of the regulations.

I understand that the Crown Prosecution Service is doing a monthly review of every charge, sentence and conviction under emergency powers in England and Wales, during which it has found that eight wrongful charges were brought under the regulations in May. That figure is proportionately worse than the previous month, with a 10% rate of unlawful charges, increasing from 6% in April. Those failures included the charging of four homeless people and two people in England who were charged under the Welsh regulations. The lack of any appeals process means that the risk of miscarriages of justice is greater.

It is a concern that the regulations appear to be disproportionately impacting the BAME community. Some 12% of fixed-penalty notices were issued to those identifying as Asian, who represent 7.8% of the population in England, and 35% of the fixed-penalty notices were issued to those identifying as black, despite the fact that they represent 3.5% of the population in England. Analysis by Liberty Investigates and the Guardian found that BAME people were 54% more likely to be fined than white people. What are the Government doing to deal with regulations that appear to be being applied in a discriminatory manner?

We will not oppose the regulations today, because we want people to be able to get back to work and to see their families and loved ones; we also want children back at school and the economy to reopen. However, that does not mean that we do not have concerns. Relaxation must be carefully planned and clearly communicated. The country cannot afford for the Government to get this process wrong, but what we have seen through these regulations from the start is an alarming lack of clarity and a disorderly approach to changing the rules.

We also know that an essential component of the successful relaxation of the lockdown will be a fully functioning test, track and trace system. However, instead of the “world-beating” system that the Prime Minister promised on 1 June, we have a system that still has a long way to go because the Government have got the planning wrong and have been too slow in putting matters right.

We have serious questions about these measures that the Minister needs to answer. Why, for example, are a quarter of people still not being contacted by the test and trace system? Why is the current system not reaching about two thirds of those who are suspected of having covid-19? Why are more than a quarter of people who are being tested at regional testing stations waiting more than 24 hours to get their results back? Home tests are even worse, with virtually everyone who takes one waiting longer than 24 hours for their results.

We have also heard today about the problems with the Randox tests. Can the Minister please set out, if possible, what the issue is? The risks around this process are too great to be underestimated. The risks associated with a failure to develop an app in time can be highlighted by the fact that about half of those who have had close contact with someone who has tested positive are not being reached. That is an awful lot of people who will potentially go on to infect others.

These are not minor points; they are integral to developing an effective system to combat the spread of the virus. We need greater candour about the problems in meeting the targets and a little more detail about what is being done to put matters right.

Finally, I hope that the Government will implement as a matter of urgency all the recommendations in the Academy of Medical Sciences report, which was discussed at Prime Minister’s questions yesterday. The report stressed the importance of an effective test and trace system. When the Minister responds, I hope that she will be able to confirm that that report and all its recommendations will be implemented in full as a matter of priority.

--- Later in debate ---

[Justin Madders]

The Minister will be aware that some 3 million tests are unaccounted for. Is she able to advise what the understanding is on where those have gone?

[Jo Churchill]

As the shadow Minister well knows, some of the tests that are sent out are counted on the out and we do not have the ability to ensure that the test is used and sent back to us. As I said, I will write to him with full and comprehensive details on testing.

The hon. Gentleman may or may not be aware that in the Leicester local lockdown, we are going door-to-door in order to ensure that asymptomatic testing and testing throughout Leicester is ramped up. We are also using translation services, both on the doorstep and on some of the phone lines.

This has been an unprecedented situation. We are dealing with a new virus and we have ensured that each time we have taken the learning and tried to deliver an enhanced service. It is well recognised that the numbers we are testing have grown. It was a stretching target and we have matched it. We are now providing one of the most comprehensive testing systems—across mobile testing, satellite testing, the Lighthouse testing, home testing, testing in care homes and hospitals, which now stretches out into asymptomatic as well as symptomatic testing—ensuring that anyone is now able to ring and get a test.

On testing information, pillar 2 is being fed back into local areas so that they have a much clearer idea of what their locality looks like, as per the number of tests.

[Justin Madders]

It is indisputable that the number of tests has significantly increased, but what has happened to the false negative rate? We heard earlier on that it was about 30%. Is it still in that area?

[Jo Churchill]

If the hon. Gentleman will forgive me, I have said that I will write to him on testing. I fear that we are straying slightly from the point of today’s debate on the regulations. I thank everyone for their contribution—

[Justin Madders]

The Minister is about to finish, but it is really important that we hear from her about the statement in paragraph 7.4 of the explanatory notes, which says:

“There is recognition that these changes may lead to an increase in transmission rates”.

What is the scientific advice in relation to that risk? How is the Minister going to be able to report back and monitor that, particularly in terms of parliamentary scrutiny?

[Jo Churchill]

As far as the R rate is concerned, as the hon. Gentleman knows, the Secretary of State meets regularly with the chief scientific adviser and the chief medical officer, plus SAGE, the new and emerging respiratory virus threats advisory group—NERVTAG—and the Joint Biosecurity Council. All that information is fed back into the decisions that are then made in and around the R number. If he will forgive me, I am going to push on, because I feel we are straying off into areas away from the regulations.

We will continue to keep the restrictions placed on individuals, businesses and society under continual review over the coming weeks and months. The new regulations debated here today have been a major step in the gradual return to normality for individuals, businesses and society as a whole, and, as we have heard, that is something we welcome.

I am pleased that, as of 10 July, we have continued to take those steps and have made further amendments to reduce restrictions in a safe way. We appreciate that restrictions have placed a significant strain on individuals. The Government will only continue to impose restrictions that are necessary and proportionate, but we remain prepared to impose further restrictions should that become necessary.

Today’s debate has provided an opportunity for hon. Members to debate the range of activity that the Government have undertaken in response to coronavirus. I commend the regulations to the Committee.

Question put and agreed to.

Resolved,

That the Committee has considered the Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020 (S.I., 2020, No. 684).