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

Justin Madders Excerpts

Monday 14th September 2020 General Committees

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

It is a pleasure to see you in the Chair, Mr Twigg. I thank the Minister for her detailed introduction. As she said, the instrument requires members of the public to wear a face covering when in the relevant place. It came into effect on 24 July.

I will be clear from the outset that we support the instrument. As the Minister said, it is an exceptional measure, but we are in exceptional times and we all have to play our part in beating the virus. Unless someone has an exemption, it is important that, where advised to wear a mask, we all should. That is important for not just keeping each other safe, but opening up the economy and saving people’s livelihoods.

As the Minister outlined, the regulations define a relevant place as a shop, including shops, supermarkets and enclosed shopping centres. It does not include areas of shops and shopping centres that are provided for the consumption of food and drink, such as seating areas provided in coffee shops, supermarket cafés and food court areas in shopping centres. It covers transport hubs, including any enclosed stations, terminals, ports or other similar premises from or to which a public transport service operates.

[Mr Kevan Jones (North Durham) (Lab)]

The regulations do include transport hubs, and they are clear about TfL having the powers to issue fines in London, but they are sketchy on other transport hubs, many of which, civil servants may wish to know, exist outside London.

[Justin Madders]

As we have commented from time to time, it seems that to this place, there is not much life outside London. Of course there are a number of transport operators operating up and down the country that the regulations do not cover. For example, my public transport operator on the railways, Merseyrail, has said that it does not currently have the powers for its staff to be able to enforce the regulations. That will certainly need to be ironed out in future regulations.

The regulations that require a person to wear a face covering unless they have a reasonable excuse also set out the categories of people to whom the requirement does not apply. They include children under the age of 11, shop employees in the course of their employment, and a non-exhaustive list of what may constitute a reasonable excuse.

I have some questions about some of the specific provisions in regulation 3 in relation to the requirement to wear a face covering, particularly regulation 3(2)(b) where the requirement does not apply to someone working in the course of their employment. The Minister set out that the regulations are not intended to cover workplaces, because employers are expected to deal with that. I appreciate that employers have a legal responsibility to create covid-secure environments, but there will be occasions when the workplace or the nature of the work mean that that is not possible. Will the Minister explain the Government’s position in respect of those situations, especially given that they are encouraging people to return to work where possible?

Regulation 3(2)(c) says that the requirement does not apply to

“any other person providing services in the relevant place under arrangements made with the person responsible for a relevant place”.

That is catchy; it trips off the tongue. The list of relevant places is in part 1 of schedule 1, but will the Minister explain who

“any other person providing services”

is intended to cover?

Part 2 of schedule 1 contains a list of premises where there is an exemption to the requirement for face coverings. Some, such as dentists, are obvious, but others, such as cinemas, theatres and libraries, require a little further explanation as to why they are exempt.

Will the Minister say a little more on that point?

These regulations were laid before Parliament on 23 July —the day after the House adjourned for the summer—despite the fact that they were announced on 14 July and, as my hon. Friend the Member for Blackley and Broughton pointed out, were discussed extensively for many weeks previously. As the Minister is acutely aware, the Opposition have repeatedly called for regulations to be debated before they come into force. I have raised the issue of new regulations being introduced and not debated until weeks later on every occasion that we have discussed coronavirus regulations. It is seven weeks later in this instance.

It was acknowledged when we were debating a previous set of regulations that the Government are aware of Parliament’s concerns about allowing the timely scrutiny of regulations, particularly in relation to the timing of the debates. The Government indicated that they would endeavour to hold the debate as soon as possible after the regulations were laid before Parliament. I have made it clear on numerous occasions that we accept that the initial coronavirus regulations had to be introduced hurriedly in response to the initial threat from the rising number of infections from what was, at the time, a new, unknown disease.

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

To elaborate on the point about the timing, we understand that these things have to be introduced rapidly, and therefore it is not necessarily possible to carry out the legislative process quickly, but a debate is very important, as the right hon. Member for Elmet and Rothwell said. To return to paragraph 3.1 of the explanatory memorandum, the point is that these regulations were introduced in response to a serious and imminent threat to public health. The peak of the first wave was on 11 April —three and a half months earlier.

[Justin Madders]

My hon. Friend is absolutely right. We have, for now at least, got over the peak, although it seems that that may be changing. The explanation that the Government put forward at the time for the way these regulations were being introduced no longer applies. We have been dealing with this virus in this country for more than six months, and we really should be able to deal with legislation before it comes into force.

Members on both sides of the House and in the other place have repeatedly expressed their desire for these debates to be held in a timelier way to ensure full parliamentary scrutiny. Despite those multiple pleas and the Government’s assurances that they have listened to those concerns and are working hard to address the problem, it seems that, every time, we are still facing a rubber-stamping exercise seven weeks down the line. The Government think that that is enough to meet their democratic obligations; well, I disagree. Parliamentary scrutiny cannot be ditched because the timing is inconvenient. These regulations are too important not to be debated and given full and timely parliamentary scrutiny before they become law.

Senior Government Members raised concerns about the way legislation is being introduced, in response to the statement of the Secretary of State for Health and Social Care last Thursday. The weekend was full of senior Government Members raising concerns about the regulations that are coming into force today—again, without parliamentary scrutiny. It was not until about 11.45 pm last night—15 minutes before the regulations became law—that a copy of the new regulations appeared online. That gave people no time to examine them before they came into force, let alone allowing any opportunity for debate or scrutiny. That is no way to manage legislation or to govern. The Government’s handling of this pandemic has been too slow throughout, and they cannot continue to be slow in the way legislation is scrutinised.

I make this plea, as I have done on a number of other occasions: the Government should be aware that we remain extremely concerned about the continuing contempt being shown for parliamentary scrutiny. They can and should make the time to debate regulations before they become law. This week, former leaders of the Conservative party have been lining up to express their concerns about the Government’s proposals to act outside the law. Debating these issues before they become law is one way to restore public trust. It would say to people that the rule of law matters in this country, that the rules apply to everyone, that these restrictions are serious, not an optional extra, and that the Government do not consider themselves to be above the law.

We believe it is possible to arrange through the usual channels for these Committees to be set up at short notice, so that important regulations such as these are debated in a proper manner before they become law. If necessary, I will clear my diary to ensure the Opposition play their part in ensuring proper scrutiny and accountability for such regulations. We really do need to restore that—to get back to a position in which the rule of law is important in this country.

There also remains a question about why there was such a length of time between the announcement that these regulations were coming in and the laying of them. If the Government were really endeavouring to show they had listened, why did they not lay the regulations sooner, to ensure they were debated before recess and before they came into force? This concern was echoed in the other place, where a regret motion was tabled by Baroness Thornton. That motion said

“that this House welcomes the introduction of the Regulations, but regrets the delay in bringing forward the Regulations as Her Majesty’s Government has advised the public to wear face coverings in enclosed public spaces since 11 May, announced that face coverings would be mandatory in shops from 24 July on 14 July, and laid these Regulations under the made affirmative procedure on 23 July; further regrets that this delay has caused confusion over where people will have to wear face coverings due to the absence of detailed legal requirements being available in advance; and notes the concerns of the Secondary Legislation Scrutiny Committee in its 19th Report, published on 25 June, which urged Her Majesty’s Government ‘to ensure that the legislation follows on more closely from any announcement that they have made.’”

That sums up our concerns very neatly.

That regret motion also picks up on another issue that I am keen to raise, which is why it took so long for the Government to advise the public to wear face coverings, when the risks associated with airborne transmission were already known. As my hon. Friend the Member for Blackley and Broughton said earlier, these matters were being debated for several months before they became law. The World Health Organisation has long recommended wearing face masks; the Secretary of State himself has warned about asymptomatic transmission, and his own advice, published on 11 May, advised in favour of wearing face masks.

[Alec Shelbrooke]

I want to pick the hon. Gentleman up on that point about the WHO recommending face masks, because it was not clear. It was a movable feast. Personally, I question the way in which face masks are being used, and I would like to see the issue debated, but that is a debate for another day. However, in defence of the decisions that were taken, I would challenge the hon. Gentleman on that particular point. I do not think the information from the WHO was entirely black and white; I think it was changing as it went along.

[Justin Madders]

I thank the right hon. Gentleman for his intervention. He is correct that the WHO position was not absolutely certain to start with, but it crystallised at a much earlier point than when these regulations were introduced. It is also the case that the Government’s own advice from 11 May was that face coverings ought to be worn, so the question is why it took two months to make this advice mandatory, and another 11 days for this measure to come into force. Given that the Government’s own guidance issued in May advised in favour of face coverings, one can presume that, at that point, it had been decided that the science told the Government that it was in the interests of public health to wear face coverings. I am therefore at a loss to understand why it took so long to make that advice mandatory. I hope that when the Minister responds, she is able to shed some light on that.

[Matt Western]

On that point, surely that was an inconsistency? If health professionals were being told to wear face masks in clinical settings, they surely had a purpose, did they not?

[Justin Madders]

It is fair to say that there is a difference between dealing with someone in a clinical setting and dealing with them on a day-to-day basis, but there is no doubt that, at a very early stage, there was evidence to suggest that the virus would be transmitting through the air. I think the reason it took so long to get where we ended up is to do with the question of how effective face coverings would be outside of a clinical setting. Nevertheless, the Government’s position was very clear from early May, yet it has taken until now for us to debate these regulations.

The regret motion also rightly raises concerns about the confusion that was caused regarding where people were required to wear face coverings, due to detailed legal requirements not having being made available in advance. I am sure the Minister will acknowledge that there was confusion at the time, given that Cabinet Ministers themselves appeared to be confused by the mixed messages. We all remember the debate on the Pret paradox that the Chancellor of the Duchy of Lancaster was involved in. Within three days, the Prime Minister said he favoured face coverings, the Chancellor of the Duchy of Lancaster said he did not and the Justice Secretary said he was not sure, but he was perhaps in favour. That kind of conflicting advice and those confusing statements from Government are not helpful in our fight against the virus. We need clear communication from the Government. That is vital in combatting the spread of covid-19.

We needed it then, and we need it now. Going forward, clear and consistent messages about the wearing of face coverings are absolutely required. Clarity was also missing in the situation concerning schools reopening, with another 11th-hour U-turn from the Government on secondary school pupils being required to wear face coverings in school corridors in local lockdown areas in England—an announcement that was made just days before schools returned. Even then, new guidance that allows headteachers in any secondary school the flexibility to introduce masks in their schools was half-baked, leaving the National Education Union describing the way the decision had been reached as “slow” and “incoherent” and saying that it would not inspire confidence from parents or teachers. The National Association of Headteachers said:

“It is neither helpful nor fair to ask school leaders to make individual decisions about face coverings in their school.”

It has been reported that some universities require face coverings to be worn in all shared indoor spaces, including study settings, while others do not. Again, that responsibility should not be placed on individual institutions. Universities have been calling for clear national guidance on the use of face masks on campus to help reduce the spread of the virus. As many students have already returned to university, can the Minister say whether there will be any last-minute guidance for universities?

The regulations permit a relevant person, namely a police constable, a police community support officer or a TfL officer in

“any transport hub from or to which a TfL public transport service is provided”

to deny a person entry to the relevant place, or to direct members of the public to wear a face covering or to leave the relevant place if they are not wearing a face covering.

[Mr Jones]

It is actually worse than that. I have no problem with a community support officer or a police officer issuing someone with a fixed-penalty fine, because they have the training and expertise to do that. It does not sit comfortably with me that these regulations extend those powers to a large number of people who would not normally have the authority to give out such fines.

[Justin Madders]

The issue is that the police are not in a position to enforce this. That has been clear from what we have heard already.

[Mr Jones]

No, it is worse than that. I am comfortable with a police officer being able to issue the fine, but these regulations do not define what a TfL officer is. It could be anyone TfL decides. There is a catch-all later in the regulations that says they are

“a person designated by the Secretary of State.”

Surely, extending the ability to be able to issue a fine in that way is pretty draconian.

[Justin Madders]

It is an important point that we are giving, to use my right hon. Friend’s term, draconian powers to people, but that is deemed necessary to fight the spread of the virus. The issue that we on the Front Bench have is whether the resources and the appropriate training are following those powers. At the moment, it seems there is a huge gap.

Turning back to the powers, and the ability to issue fines and require people to move on, we need clarity on how those requirements will be enforced, as my right hon. Friend said in his intervention. When the legal requirement to wear a face covering when using public transport was introduced in June, and then in shops the following month, it clearly appeared that the police did not see it as their role to enforce that. I know from my own constituency that there is little enforcement happening on public transport. I have had multiple constituents complaining that when they go on buses and trains, some travellers seem able to travel without face coverings and are not being challenged. Bus companies say they will not put their drivers at risk. I mentioned Merseyrail earlier, which operates in my constituency on the railways, and it says that it has not been given the powers to intervene.

We have this strange situation where, as my right hon. Friend the Member for North Durham says, there seem to be very broad powers being given to a wide range of people, yet other people, who we would think are pretty obviously the right people to have them, have not been given them.

[Mr Jones]

As I said earlier, these are very London-centric regulations, because they refer to TfL but do not refer to other types of transport operators. However, the catch-all is in regulation 7(11)(d), which talks about the people who can give fines. It says that the authorised person will be

“a person designated by the Secretary of State for the purposes of this regulation.”

There is no list in the explanatory memorandum of the people who could be authorised. Is there any guidance on that? There is nothing at all in the explanatory memorandum to say who is being given those powers. It could potentially be anybody.

[Justin Madders]

My right hon. Friend makes a very fair point. I do not know whether that power relates to the announcement last week about covid marshals; we are still waiting for further information on them. I hope that the Minister will be able to clarify who that particular measure relates to and whether that power has been exercised at all so far, because, clearly, one of the things that we do not want to see, in terms of public confidence in and adherence to the rules, is people about whom we have had no warning or indication that they have the power to enforce these rules coming along and starting to do so. That will create friction, tension and uncertainty. We absolutely need crystal clear clarity from Government about who is able to enforce these rules and the circumstances in which they are able to do so.

I was referring to the problems on public transport, in particular, but the same problems arise in the retail sector. Many of the major supermarkets—Sainsbury’s, Asda, Morrisons and the Co-op—have all said they will not ask their staff to police the rule, but will instead urge shoppers to play their part, through signs and public address announcements in store. Of course, it is absolutely right that most people do play their part, and that many people have legitimate reasons for not wearing a face covering, but it remains the case that there is an element out there who will not wear a face covering on a point of principle. I am not sure what that principle is, but it is causing difficulty.

A survey of shop workers carried out last month by the Union of Shop, Distributive and Allied Workers found that 75% of shop workers had been abused by customers who were asked to socially distance, and almost half had experienced abuse as a result of asking shoppers to wear face masks. That is totally unacceptable; nobody should face abuse for asking people to comply with public health measures.

At the moment, however, I am concerned that such reprehensible behaviour by members of the public is going unpunished. In July, the Prime Minister increased the pressure on the police to uphold face mask laws. It was a task that was described as “impossible” by the national chair of the Police Federation, who said that forces did not have the staff or the resources to ensure compliance. We all know the pressures on the police and the reduction in their numbers that has happened over the last decade, so it is not enough for them to be handed additional responsibilities if those responsibilities are not accompanied by sufficient resources for them to be able to do their job. When the Minister responds, will she therefore set out what resources have been handed to the police to ensure that these measures are complied with?

Of course, as we have already referred to, the Prime Minister has announced that there will be covid marshals to enforce the new rule of six. Local council leaders, who it is assumed will take over responsibility for such marshals, have already said that they are not in a position to resource them, having already faced a significant multi-million pound shortfall in their finances this year. When the Minister responds, will she confirm whether covid marshals will be required to enforce the wearing of face coverings, as is possibly implied by the regulations, and if so, how will they be funded?

I understand absolutely the Government’s desire to try to get the economy moving again and to encourage people to go back to work and to shop, but those efforts will go unrewarded if people do not feel confident enough to go out because they feel, and indeed see, that the rules on face coverings are not being properly enforced.

In her opening speech, the Minister talked about the importance of confidence for people returning to the workplace and for retail. It is really important that that confidence is supported by a rigorous and universal enforcement regime. In that regard, I would be grateful if the Minister could set out how many fixed penalty notices have been issued so far under these regulations, and whether she has any details of the geographical areas or physical settings where penalties have been issued in greater numbers.

Finally, I will say a few words on the converse situation—people who are exempted from wearing coverings and why. I am sure that many Members will have been contacted by concerned constituents who, when they have been shopping, felt uncomfortable at the numbers of people not wearing a mask, or who have actually been confronted with abuse as a result of not doing so. We see stories in the press about people unable to comply with wearing a face covering for health reasons being challenged and abused and then being afraid to go out. Many charities, including Mind, Dementia UK, the National Autistic Society, Mencap, Asthma UK and Sense, have called on the Government to mount a public awareness campaign about hidden disabilities and the mask exemption rules, which allow for those who find it difficult because of physical or mental illness or disability, those who assist someone who relies on lip reading to communicate and those for whom wearing a mask could cause severe distress to be exempted from wearing a face covering in shops or on public transport. The Minister said in her opening remarks that there had been a public awareness campaign, and indicated that it might be “ramped up”, to use her terminology, so I will be grateful if she could advise on when we are likely to see that, given that these rules are likely to be in place for some time to come.

I will also be grateful if the Minister could say a little about the “severe distress” exemption. I do not want to spell out some of the reasons why people may need to rely on such an exemption, but as it is a subjective and broad exemption, it is open to misuse. Is the Minister aware of individuals who, when challenged, have sought to rely on such an exemption inappropriately, and the response of the enforcement body?

On the point of being able to communicate, as we heard from the right hon. Member for Elmet and Rothwell, I am sure that many of us have been contacted by constituents concerned about the impact of the use of face coverings on deaf people and those with hearing loss who rely on lip reading and facial expressions to communicate. Back in June, the Government confirmed that they had been in discussion with audiologists in the NHS about the use of face coverings and what can be done to reduce the impact on those who rely on lip reading, so can the Minister update us on what steps the Government are taking to ensure all their face covering policies are inclusive for people who may have hearing loss?

In conclusion, we will not seek to divide the Committee on these regulations, but, as I hope I have shown in raising a number of issues, I believe that our democratic process deserves better than for such an important law to be debated so long after it has come into force. I hope the Government finally act on those concerns and hand back control to this Parliament.

--- Later in debate ---

[Ms Dorries]

This is the decision. That is what we are here debating—the decision to introduce the wearing of face coverings in public places. We have taken the decision; that is what we are doing right now.

I was asked why we were so slow to react to the wearing of face masks. It is because, to come here and introduce legislation, we needed evidence that wearing face masks works. As I think the hon. Member for Blackley and Broughton said, this is a new virus—globally, not just for the UK—and all over the world countries have taken their own decisions on the basis of whatever evidence they could gather over a short period and in a short timeframe. We have now got to the point where we believe the evidence is such that wearing a mask will provide protection even if the wearer is asymptomatic, not showing symptoms of coronavirus and not coughing. Therefore, we are introducing the regulations.

[Justin Madders]

I am grateful to the Minister for giving way. I appreciate that these things do take some time, but it is the case, is it not, that recommendations were made on 11 May about the wearing of face coverings, but they did not become law until 24 July? What is the reason for that long delay?

[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.

--- Later in debate ---

[Ms Dorries]

It was an honest offer, and I will ensure that the hon. Gentleman receives that information.

[Justin Madders]

I thank the Minister for giving way, and I promise that I will not intervene again.

What we have heard today from various Members is clear evidence of why it is important that regulations are debated before they become law. There is a whole series of questions in relation to covid marshals, in particular, and their powers and training and the data protection requirements that we are not able to answer. The point has been made by several Members that it is really important for public buy-in to the concept of those marshals that the powers are clear and they have democratic consent because they have been transparently debated, so can the Minister make a commitment today that any new powers given to marshals, whoever they end up being, will be debated in this House before they become law?

[Ms Dorries]

No, I cannot; I apologise. I will obtain the list of those who have the authority and ensure that the hon. Member for Warwick and Leamington has that tomorrow. The hon. Member for Ellesmere Port and Neston, I am sure, was trying his hand when he asked his question. He did so knowing very well that that is not something that I can commit to.