Health Protection (Coronavirus, Restrictions) (Steps and Local Authority Enforcement Powers) (England) (Amendment) Regulations 2021

Justin Madders Excerpts

Monday 26th April 2021 General Committees

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

It is a pleasure to serve under your chairmanship, Mr Gray. I thank the Minister for her introduction to this instrument, which, as she said, came into force on 12 April. It amends both the original steps regulations and the local authority enforcement powers regulations. I join her in thanking all those who have contributed to the national effort so far in our struggle against the virus. I echo what she said about the great commitment that has been shown by so many. I also agree that we are not out of the woods yet.

We do not oppose these regulations, but I do of course have some observations and questions for the Minister on the various amendments in this instrument. Let me start with the amendments relating to the steps regulations. As we heard, this instrument primarily amends those regulations to move all of England into step 2, as per the Prime Minister’s road map. It also includes amendments to allow businesses or services otherwise permitted to open at step 2 also to open at self-contained accommodation, caravan parks and campsites.

According to the explanatory memorandum, the instrument also makes

“minor drafting changes to remove superfluous wording and to amend references.”

I was particularly struck by that last assertion, which, it is fair to say, somewhat underplays the utter mess that was made of the original steps regulations when they were drafted. I have never seen such a harsh report as the 46th report of the Session from the Joint Committee on Statutory Instruments, which said that the original steps regulations that this instrument amends needed to be highlighted because of a number of serious concerns: first, because of their unusual or unexpected use of enabling powers; secondly, because of defective drafting; thirdly, because they required elucidation; and, fourthly, because they fail to comply with proper legislative practice.

Those are not just a couple of minor errors, but systematic failures throughout the document. The Joint Committee report identifies that those regulations make unusual or unexpected use of the enabling powers in two respects, are defectively drafted in relation to nine issues, require elucidation in relation to five issues, and fail to comply with proper legislative practice in one respect. That is quite a damning list of failures for one statutory instrument, whose purpose is to see us safely opening up society following lockdown. As we have said many times before, how can we expect people to follow the rules if they are not clearly communicated?

These regulations do not deal with all of the Joint Committee’s concerns, but, be in no doubt, we will be dealing with the consequences of them all for some time to come. If a Committee of legislative experts is unsure what is or is not meant by certain regulations and does not believe they give sufficient certainty and clarity, how can we expect the average person to understand them? In one instance, the regulations are so unclear that the Joint Committee said that the law being laid down was unsatisfactory in terms of the rule of law. I am sure the Minister will agree that such statements are pretty damning. It is just not good enough. Who in Government will be responsible for dealing with all the litigation that arises from the inevitable legal challenges to the unsatisfactory drafting of these regulations? Will the cost come from the Department of Health and Social Care’s budget? Who will be paying for the mistakes?

To take one example, regulation 2(2)(b) before us today amends the definition of “private dwelling” in regulation 2(5)(i)(ii) of the Health Protection (Coronavirus, Restrictions) (Steps) (England) Regulations 2021, which is a list of exceptions and includes the magic words “as otherwise specified”. When the Joint Committee asked the Department to identify those “as otherwise specified” exceptions, the Department replied that there were none—hence the amendment made by the regulations before the Committee.

That begs the question whether there have been arguments or challenges to the regulations based on exceptions that turn out not to have existed. I should appreciate it if the Minister would explain why those words were included in the first place when they were clearly not needed, and whether there has been any cost to the public purse from what I have outlined. That is just one error that is rectified by the regulations that we are considering today.

Another concern of the Joint Committee appears to have been overlooked altogether. As we know, the regulations make a number of amendments relating to businesses, including allowing businesses or services otherwise permitted to open at step 2 also to open at self-contained accommodation, caravan parks and campsites, including public toilets, baby changing rooms and communal areas. Of course, as part of the road map, those changes have been known about for some time, and there are restrictions. Those who can stay in the accommodation are limited to those in the same or linked households.

There has not, however, been clarity in relation to one of the concerns that the Joint Committee picked up: how the providers of holiday accommodation are expected to know with certainty whether people occupying their accommodation are linked householders. That matters because there remains a question whether the provider of the accommodation could unwittingly commit a criminal offence if they were led to believe that households were linked on the basis of false evidence submitted by a household.

In its memorandum, the Department asserts that it

“would expect a provider of holiday accommodation to take reasonable steps to ascertain whether persons for whom holiday accommodation was booked were from the same household or linked households”.

It adds that a provider who is misled by the submission of false evidence

“may well have a reasonable excuse for having breached the regulations but this will depend on the facts”.

That hardly gives us much clarity or reassurance, does it? What might those reasonable steps be, and why is nothing set out anywhere about that?

As the Joint Committee said, providers of accommodation could have been made the subject of a statutory duty to carry out a verification process, or the regulations could have set out another process for them to follow. Compliance would then have been clear, and there would have been a clear defence to a prosecution. With the regulations in their present form, there is no compulsory or voluntary statutory process, and the evidential burden of proving linked households seems to be a trap for the unwitting to fall into.

As we are talking about a criminal offence—a serious matter—who is policing it? Many people who own self-catering accommodation market it through a third party—usually an internet service. Where does the responsibility lie in that situation for verifying the households of the occupants? That is important, and we need clarity on it if possible.

The regulations also clarify that individuals may enter indoor premises that serve alcohol for the purposes of paying for food and drink, as that was not in the original regulations. Businesses have obviously been preparing for the 12 April reopening for some time, so it is quite possible that, until that last-minute change was made, preparations were being made on the basis that customers would not be able to enter the premises. Is the Minister aware of whether additional unnecessary costs have been incurred by businesses because of that oversight?

As the Minister outlined, the statutory instrument also amends the Health Protection (Coronavirus, Restrictions) (Local Authority Enforcement Powers and Amendment) (England) Regulations 2020. The Joint Committee also reported on those regulations, in its 36th report of the Session, where it again raised the matter of defective drafting on a number of counts.

The regulations before the Committee amend the 2020 regulations to clarify that coronavirus improvement notices and coronavirus restrictions notices that require businesses to remedy unsafe practices within a set period or, where rapid action is needed, to close and address an issue before reopening may be issued in relation to the restrictions on accommodation venues as set out in step 2.

The Minister will be aware that, earlier this month, the Secretary of State for Housing, Communities and Local Government wrote to all council leaders in England urging them to ensure that they work with pubs and bars that are trying to open safely and within the rules. He said that official guidance on what is defined as an outdoor shelter had to be

“applied proportionately and consistently in your areas to support businesses to reopen safely and to avoid overzealous interpretations of the rules”.

He also said that

“if a disproportionate regulatory approach is taken, it risks driving residents into unregulated activity and premises which may be far less Covid-secure and/or illegal.”

That sounds to me as though the Secretary of State believes the Government’s guidance is open to misinterpretation. Does the Minister agree that we really must have clear criteria for our local authorities and local businesses? We are too far down the line now for there to be any confusion about what the rules are and how they should be applied. That is totally unfair on the people on the ground who have to enforce the rules and on the businesses that are trying their best to get on their feet again.

On the powers to issue notices, we are only two weeks into step 2, so it is perhaps unsurprising that I did not find any figures on how many notices have been issued under the step 2 regulations. However, it was a surprise that no data seem to exist for any notices issued under the original regulations, which had been in force since December. That is an awful long time for there to be no record of how the powers have been used. I am sure hon. Members will be aware of local examples of where notices have been issued, but it is not clear whether there is intended to be any collation or publication of figures across the board. If local authorities are not publishing the data, and if the figures are not collected centrally, how are the Government measuring the effectiveness of such notices in relation to enforcement?

I hope the Minister is able to shed some light on that and on whether the Government have plans to collate and publish the figures in future, because we need to know whether the regulations are working—not just whether the timetable in the road map is being adhered to, but whether the restrictions and the draconian powers that we have handed to the state are being used effectively and proportionately and how they play into our shared objective of keeping case numbers and hospitalisations down. Too often there has been a failure to do a proper analysis of the measures taken, as well as a lack of willingness, frankly, to engage with the systemic underlying issues and to ensure that people who are sick with the virus are properly supported financially to do the right thing when they test positive.

I will make a few comments on the general process, which I hope the Minister will reflect on. She will know much of what I am going to say, because I have been saying it for the last 12 months. The SI that we are debating today is yet another example of what is wrong with the Government’s approach, because we are once again retrospectively approving legislation. The regulations have a dramatic impact on individual liberty, as well as an economic impact, and they should not be approved after the event.

The regulations were laid before Parliament on 9 April, before coming into force on 12 April—that is just three days’ notice of their introduction. Although that is actually an improvement on the three hours’ notice that we have had for some other regulations in the past, it is still a pretty poor show that these regulations arrive so late in the day, especially when a large part of this SI essentially deals with errors and oversights from earlier regulations. Again, that is not for the first time either.

On where this legislation sits on the road map, we know that the road map has been in place for several months now, so why are we debating elements of it only now? That suggests to me that there is continuing indifference to the importance of parliamentary scrutiny, disdain in the corridors of power for the impact of the rules on those affected by them, and carelessness about the clarity and accuracy of the laws governing this country. I would have expected enough experience to have been gathered by now for there to be no need to come back and correct errors time and again, especially when dealing with regulations of this nature. After all, we are a year into the pandemic. This is the third time that we have come out of lockdown, yet we still see basic errors being made. Mistakes have consequences and, frankly, there have been too many of them. I really think a proper explanation ought to be forthcoming about why we are having to deal with these things as an afterthought. They should not be an afterthought, because we are talking about people’s livelihoods.

What is the urgency for the SI? The regulations state that

“the Secretary of State is of the opinion that, by reason of urgency, it is necessary to make this instrument without a draft having been laid before, and approved by a resolution of, each House”.

That is plainly wrong. As I have already said, the Prime Minister set out the road map more than two months ago. There is nothing in the regulations, or in what has been said by the Minister today, to justify the Government once again claiming urgency to ride roughshod over proper procedures and processes. It is little wonder that we have so many errors in the regulations if they are not subject to proper scrutiny before they become law.

The Government have got into bad habits and do not think the rules apply to them. Yes, they had to act quickly at the start of the pandemic—in an emergency, that is understandable—but that is no excuse for standards to drop, for transparency to be jettisoned and for scrutiny to be considered an inconvenience to them. There can be no justification at this point for normal procedures to continue to be ignored and the claim that regulations needed to be introduced urgently. That is simply a sticking plaster for an Administration who have found that they rather like not having to bother with the norms of going through good governance. This Government have found that having to explain and debate laws before they become law is all a bit inconvenient. We should be better than that, and I think the Minister knows that we should be doing better than that.

History is full of temporary arrangements and powers that somehow became permanent because Governments found that they actually rather liked doing things that way. I will not stop raising this issue until the Government stop using the pandemic as a cover to get away with things that no self-respecting democrat would consider acceptable. I really hope that this is the last time I have to make these comments, because once the slide away from a liberal democracy starts, it can be very hard to stop.