HEALTH PROTECTION (CORONAVIRUS, RESTRICTIONS) (ALL TIERS) (ENGLAND) (AMENDMENT) REGULATIONS 2021 HEALTH PROTECTION (CORONAVIRUS, RESTRICTIONS) (ALL TIERS AND SELF-ISOLATION) (ENGLAND) (AMENDMENT) REGULATIONS 2021

Justin Madders Excerpts

Monday 8th February 2021 General Committees

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

It is a pleasure to serve under your chairmanship, Sir David. No room is gloomy when you are in it.

I thank the Minister for her introduction, and I pay tribute to our NHS and social care staff, and indeed all key workers, who have done so much, and continue to do so much, to fight through this incredibly difficult period for our nation. As we know, we have sadly passed the tragic milestone of 100,000 people having died from covid-19. As of yesterday, 111,634 people have died, over a third of them since the start of this year. Those truly shocking figures show us how far we still have to go in this fight. We have the highest number of covid deaths in Europe, and every step should be taken to fight the virus.

We are here to discuss two sets of regulations, as the Minister set out. The first set came into force several weeks ago on 20 January. As we heard from the Minister, they make minor amendments and corrections to the all tiers regulations to clarify that the exemption to leave home to collect goods from businesses operating click and collect also applies to libraries; that elite sports competitions are permitted; that cafés and canteens in all post-16 education and training settings can remain open; and that marriages and conversions under the Marriage (Same Sex Couples) Act 2013 are permitted.

The Opposition do not oppose these regulations, but I have some observations and questions for the Minister. As I have said many times, we are once again retrospectively approving legislation, particularly regulations that have a dramatic impact on individuals’ liberty, as well as an economic impact. We have discussed these issues many times. These regulations should not be approved after the event, and I thought that there had been a commitment given that regulations of national significance would be debated in advance. Although it could be argued that the first set of regulations, which primarily make corrections, is not within the ambit of that promise, the second set of regulations certainly is, so will the Minister set out why that commitment has not been honoured on this occasion?

The first set of regulations deals with errors and oversights from earlier regulations. This is not the first time that we have had to address this. Of course, we are in a rapidly evolving situation, but we are on the third lockdown, so one would expect enough experience to have been gathered for there not to be a need to come back and make such corrections. The instrument states that it

“is being issued free of charge to all known recipients of those Regulations.”

Will the Minister tell us how many organisations that is, and what the cost of this error is to the taxpayer? What is the legal position of people who were fined for attending the premises concerned before the regulations came into force? Does the Minister know whether anyone has been erroneously fined as a result of the drafting error? And what about the businesses that have been affected? Have any indicated that they have lost profit or income for that period when they were erroneously told they could not operate? Mistakes have consequences, and there have been too many. A proper explanation ought to be forthcoming about why we are having to deal with these things after the event. They should not be dealt with in this way when people’s lives and livelihoods are involved.

I will move on to the second set of regulations that came into effect on 29 January. They concern self-isolation requirements and, as we have heard, gatherings of more than 15 people in a private dwelling, in educational accommodation, or at an indoor rave. I thank the Minister for Care for writing to me regarding this instrument to outline what the amendments primarily concern, particularly in terms of the enforcement of offences and allowing police to receive additional information, as the Minister said, so that they can verify those individuals who are under a legal duty to self-isolate.

The right hon. Member for Forest of Dean (Mr Harper) made an interesting point about whether the regulation covers those who have been advised by an individual in their household that they have a duty to self-isolate. That has had a dramatic impact on the performance figures for Test and Trace, but it raises a series of difficult questions about enforcement. I hope the Minister can clarify whether those notified outside the system, so to speak, are also covered by the regulations. I suspect that they will not be, and I think the issue of how a person is notified will cause all sorts of evidential difficulties, particularly if they are not in a household that is a family unit. It would certainly make for awkward dinner conversations if such issues arose.

In her letter to me, the Minister for Care stated that

“sharing this additional information is both necessary and proportionate in order to give the police the information they need to effectively enforce the law.”

That may well be the case, but it begs the question why, a year into this pandemic, that has only just been acted on.

As we have heard, the statutory instrument increases the fixed penalty notice for those caught attending illegal gatherings, such as house parties, of more than 15 people. Unlike the fines for gatherings of more than 30, this fine applies to both organisers and attendees, although one assumes that attendees and organisers of gatherings of more than 30 would be covered, given that that is more than 15. I would be grateful if the Minister could confirm that.

Considering the fines first, it is fair to say that the announcement was met with a little bit of scepticism. Most of the debate that I saw was about why gatherings of 14 would not attract fines. I do not know if this is an unintended boost for unauthorised seven-a-side football matches, but it looks like 15 has been chosen arbitrarily. I am not sure that was the message the Government were hoping to send. Of course, the most important thing is the message that people should stay at home and not organise gatherings of any nature. That message on compliance is absolutely critical to our getting through this.

However, in order for that message to be most effective, we need to hear very clearly why 15 is the magic number. When the policy was announced, the Home Secretary said, “The science is clear”, but is it? There is clear scientific evidence on the impact of indoor gatherings on transmission, but not having seen the scientific modelling for this particular set of regulations, I would be grateful if the Minister could explain why the regulations set the number of people at 15. We had similar debates over why the rule of six was six and whether children were included. Will the Minister advise whether children are included within the 15? However, what we really want to know is why it is 15.

We also want to know why this is so urgent. Surely the time to have looked at this would have been over the Christmas and new year period, when one would have naturally expected there to have been a greater risk of large gatherings taking place. I hope I am not being overly cynical when I say it appears to me that the regulations seem to have been introduced in response to that period of the year and the number of illegal gatherings that took place, rather than being part of a strategic approach to the issue.

The timing is interesting, because the statutory instrument was laid before Parliament at 11 am on 29 January 2021 and then came into force at 5 pm—the same day. Why was it rushed so quickly on the same day? Was there a specific reason why it needed to be introduced on 29 January? There have been many instances of regulations being published and then introduced at incredibly short notice, and while there have been occasions when that could be justified, I simply do not see why such speed and such disregard for parliamentary scrutiny were necessary on this occasion. The Minister referred to the critical situation that we were in in January, with the number of infections and hospitalisations, but by 29 January we were clearly on a downward trend. Anything the Minister could say to clarify why this had to be rushed through on 29 January would be appreciated.

We agree with Martin Hewitt, chair of the National Police Chiefs’ Council, that increased fines will act as a disincentive for people thinking of attending or organising such events. Was there specific intelligence about 29 January? Was there something on that date to suggest that groups of 15 people or more would gather more? I hope that the response justifies the need for speed on this occasion.

I will now turn to the sharing of data, on which I have several questions. We all know that the self-isolation regulations impose certain requirements on individuals to self-isolate. As the Minister outlined, the statutory instrument amends the information that needs to be disclosed. Of course we can see why sharing that information might be helpful, particularly for the police in verifying an individual and helping to carry out self-isolation enforcement, but I have a few questions. Lord Bethell, a Health Minister, said that the police are accessing

“isolation information, not health information.”—[Official Report, House of Lords, 20 October 2020; Vol. 806, c. 1418.]

There is concern that that is not the case, because whether an individual is required to self-isolate is, to all intents and purposes, health information. I hope the Minister can see that a rather fine distinction is being made. I draw attention to that because health data is highly sensitive and therefore falls under a special category of data under the general data protection regulation rules. Concerns have been raised about that. Given that medical privacy is the bedrock of a functioning public health system, its disclosure should be subject to full parliamentary scrutiny before it is enacted.

There are also concerns that the broad definition of who the information can be shared with means that it can be provided not only to the police, but to anyone else the Government enlist to uphold the rules. We do not have any particular concerns about public health officials, but we need clarity about who can receive this information and who is entitled to see it under the regulations. It could be the covid marshals we used to talk about a lot but do not hear so much about anymore. If the Minister can advise us who exactly is entitled to receive this information, that would be helpful.

There are also concerns about whether the police are permitted to use this information for the purposes of these regulations. Some people have expressed concerns that it could be used for other investigations that they are conducting. I have had the benefit of visiting my local police station, as I am sure many Members have, and seeing how access to personal information has been used to aid their investigations, but the police have done that with very clear safeguards in place. In order to ensure confidence in the uptake of the test and trace system, it is important that we have confirmation that that information will be used only for the purposes of these regulations.

I turn briefly to the app. Can the Minister advise us whether those notified by the app to self-isolate will be covered by these regulations? They were not covered by the original self-isolation regulations, which in my opinion was a huge oversight. If that has not been rectified, why not?

How will the police powers that have been provided under these regulations be resourced? Last month, John Apter, chairman of the Police Federation of England and Wales, said that some forces in England have as many as 15% of staff off. Since these regulations came into force at the end of last month, we have heard that the police will be expected to play a role in the enforcement of hotel quarantine. Our police officers have worked incredibly hard throughout this pandemic, and they face very difficult circumstances. Can we have some assurances from the Minister that they will be adequately resourced to take on the additional responsibilities that they have been given?

On the subject of public confidence, there is concern about the lack of transparency over the memorandum of understanding between the police and the Department. In a Delegated Legislation Committee on 19 October 2020, the right hon. Member for Forest of Dean asked the Minister for Care about the memorandum of understanding, and she said:

“It has not been yet, but it will be.”—[Official Report, Fourth Delegated Legislation Committee, 19 October 2020; c. 25.]

Hon. Members can see a clearer response from the Minister for Care in Hansard, but we still have not seen that memorandum of understanding. I understand that a freedom of information request for sight of the memorandum was refused on 15 December, on the basis that it was intended for future publication. I ask the Minister what is going on here. Can she confirm when exactly we will see the memorandum? Why has there been a delay in its publication? Can she also confirm whether these regulations have led to a new memorandum of understanding and whether that will be available for public scrutiny?

At the heart of this is a question of public trust. We need assurances that sensitive health data will be kept private. Many people could be unwilling to take a coronavirus test or engage with the Department’s contact tracers, particularly if there is a threat of harsh punishment, if they are not given those assurances. Many public figures have raised concerns along those lines. The British Medical Association says it is concerned that some people are deterred from being tested because they are anxious about a loss of income should they need to self-isolate, and it is worried that police involvement will add to that.

Professor Chris Whitty has also expressed concerns. Professor Susan Michie, the Scientific Advisory Group for Emergencies’ behavioural science adviser, has said that the move could cause further distrust in the Government, which is a massive problem for adherence to the regulations. Those are serious concerns from very respected people. Can the Minister give us an assurance that the data-sharing arrangements will not deter people from giving information to contact tracers or, indeed, giving their own information? These are all essential to combatting the spread of the virus.

We know that compliance rates for self-isolation are already low, so everything must be done to ensure that the message and the practical help is there, to encourage as many people to self-isolate when they are required to do so. We want to get as high a compliance rate as possible. Anything the Minister can say to address those concerns would be appreciated.

There are practical steps that the Department can take too. The Government have known for many months that rates of self-isolation remain too low and there is a gaping hole in the system, because not everyone can work at home or comfortably isolate themselves. The system still expects families to go hungry to stop spreading the infection. We have seen the serious side effects of this at the weekend, with evidence that the rates at which cases of covid-19 have fallen since the start of the year are dramatically lower in some of the UK’s poorest regions when compared with wealthier areas.

Figures show that the number of cases of covid-19 infections per 100,000 people remained markedly higher in the last full week of January in many poorer parliamentary constituencies than in more affluent ones. For example, in Preston, infection rates fell by just 9% in January, and in Bradford they fell by just 14%, but in more affluent areas, such as Oxford West and Abingdon, and Saffron Walden, cases declined by 72%. Does the Minister agree that these stark differences demonstrate the serious consequences of the failure to offer financial support to help people on lower incomes with the self-isolation requirements?

The Government have been too slow to address this. Even Baroness Harding recognised last week that there was a big flaw in the Government’s approach to self-isolation support. She said that 20,000 people a day were not self-isolating when they should be. That is simply an unsustainable figure, if we are ever going to see some of the relaxations of current measures that we all wish to see.

On self-isolation, these regulations deal with the stick, but they do not address the deficiencies in the carrot. I again urge the Government to fix the payments regime so that it does not act as a disincentive to people who want to do the right thing and self-isolate. We have said this many times before, but I will make no apology for saying it again: the £500 test and trace support payment is not reaching enough people. Seven out of eight people do not qualify for it. Rejection rates in councils are over 70%. At the time it was announced, the amount given by the Government to councils to continue the fund for a further two months would only have been enough to cover everyone who tested positive on one day. That is not good enough.

In conclusion, we are in our third lockdown. This is extremely difficult. The British people have done their part, staying at home and helping to keep the virus under control. But it is incumbent on the Government to do the right thing by them as well, by ensuring that support for self-isolation and for test and trace genuinely supports people, as well as by dealing with those who do not comply.

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[Ms Dorries]

That was a large number of questions covering a number of points. I know that officials are furiously trying to group them at the moment. I will do my best to answer them as well as I can. If there are any that I do not answer, I give the hon. Member for Ellesmere Port and Neston and my right hon. Friend the Member for Forest of Dean absolute assurance that they will be written to quickly with more detailed answers.

The first point raised by the hon. Gentleman was about why the regulations have come in after the event. Public health underpins what we are doing today. My right hon. Friend’s last question was about this being a public health initiative, and not a stick or a means of taking away people’s freedoms for the sake of it. That is absolutely not what the regulations are about; they are very much a response to the South African variant. We need to do what we can to ensure that people self-isolate when they are supposed to, that they are deterred from gathering in groups and that we do as much as we possibly can, using the instrument of the law, to protect the health of the nation.

Coronavirus is a brand-new virus, and we knew nothing of its biology or pathology when it landed on our shores this time last year. One thing that I have learned since then as a Health Minister is that when the virus mutates—there have so far been more than 10,000 mutations—the figures go in only one direction when they start to rise. They do not rise to small numbers and then suddenly drop off and disappear without very restrictive action, such as that taken in China and other countries where there is a much stronger social contract with the population.

We move very quickly, but the virus moves faster. It would be wrong of us, as a Government, to see a variant such as the South African one and not look at what further public health measures we can put in place now to protect the health of the nation and stop the variant rising.

[Justin Madders]

I am grateful for the Minister’s answer. I only wish that such action had been extended to quarantining international arrivals for the South African variant. Does that explanation also apply to the question of gatherings? Does anything about that variant apply to large gatherings and explain why the regulations were brought in as they were?

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[Ms Dorries]

Our police are very responsible individuals. If they receive a report that somebody is believed to be breaking regulations, or breaking isolation, they will not automatically ask Test and Trace for the individual’s information before they have carried out an assessment of the situation. They would need to clarify for themselves whether a breach was actually taking place, such as a breach of the numbers—for example, if it was not a single-household individual mixing within their bubble. They would have to assess the situation and see if the regulations were being broken. If they were being broken, the police would have the right to revert to Test and Trace to ask for clarification on the individual’s details.

Both my right hon. Friend and the hon. Gentleman are pursuing a definition—as my right hon. Friend knows well—in legal terms within the legislation. I will need to seek legal clarification and write to both of them with the details on that point.

[Justin Madders]

I appreciate the Minister’s valiant efforts to explain how this all works in practice. I think that the answer, as the right hon. Member for Forest of Dean said, is to publish the memorandum of understanding. That is the way that we will all gain clarity on how this all works—I hope.

I will just go back to what the Minister’s colleague, the Minister for Care, said on 19 October last year. When asked if the memorandum of understanding would be published, she said, “It will be.” The Minister seemed to be backtracking a little from that tonight. Can she confirm whether we will actually get sight of it?

[Ms Dorries]

I am aware that it exists as a working understanding, as I said, between DHSC and policing. Obviously I will consider both points about transparency and take them both on board. However, I need to seek further clarification—if, why, legally, and how?—around the memorandum of understanding. The hon. Gentleman’s points have been well made today and have been noted. I will take the process further and explore the options, then get back to him with an answer.

[Justin Madders]

I am sorry to press the point, but one of the Minister’s colleagues said on the record that it will be published and she is now saying that that is not, or might not be, the case. That is not acceptable. We must have things said by Ministers on the record adhered to.

[Ms Dorries]

I completely agree. I have just been informed, in the form of our old notes, that the memorandum of understanding is currently being updated to reflect feedback from the Information Commissioner’s Office and the recent changes made by this SI.

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[Justin Madders]

I am grateful for the Minister’s explanation. It seems that, as we would expect, this decision is based on scientific advice. Would the Minister be able to publish that, so that we can see it in full?

[Ms Dorries]

I am sure that the hon. Gentleman’s request has been listened to—he knows that publishing the advice from SAGE is above my pay grade.

As I said, fixed penalty notices for those caught attending illegal gatherings, such as house parties, of more than 15 people will double for each successive offence, up to a maximum of £6,400. These amendments to the all tiers and self-isolation regulations will provide the police with the enhanced powers that they need to tackle egregious breaches of the law.

Unfortunately, covid-19 has forced us to balance the increasing social contact restrictions with the protection of public health. These decisions are not easy ones to make, but with alarming epidemiological evidence suggesting that the new variant is much more transmissible, urgent action has become appropriate. We will continue to work alongside scientific and medical experts to ensure we have decision making appropriate to the circumstance at each stage of this crisis, and we will review the regulations regularly, assessing them in the light of the latest science and other data. I commend the regulations to the Committee.