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

Lord Beamish 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.

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[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.

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[Mr Jones]

It is a pleasure to serve under your chairmanship, Mr Twigg. I agree with my hon. Friend the Member for Blackley and Broughton on the lack of scrutiny of much of this legislation, and even a cursory glance at the regulations shows that we are extending quite draconian powers to people who, in my opinion, should not have them.

My hon. Friend just referred to mixed messages. Well, we are putting mixed messages in legislation here, and I have to say, if it had been properly debated, some of those things would have been questioned. He mentioned marshals, for example, which I will come to in a minute.

I want to pick up on the issue of sign language, which was mentioned by the right hon. Member for Elmet and Rothwell. It is referred to in the legislation under reasonable excuses, but it is portrayed in a very strange way. Regulation 4(b) states that a person—“P”—has a reasonable excuse if:

“P is accompanying, or providing assistance to, another person (“B”) and B relies on lip reading to communicate with P”.

Are we saying that anybody who lipreads needs someone else and they must go around in twos? Clearly, if someone lipreads, they often do it when they are on their own. Is the legislation saying that the only time that they would be exempt is when they had someone with them? Is that what the Minister is saying? That, frankly, is bonkers.

I know a lot of people who lipread and they do not need someone accompanying them all the time to go about their business. To put that in the regulations just shows sloppiness—reading some of the things in the instrument, this is like shooting fish in a barrel. I find it disturbing, to be honest, that that is being written into the legislation as “reasonable”. A reasonable excuse should be that someone relies on lip reading, for example.

I will come to some of the other things that I think are draconian. I do not consider myself a libertarian, but I question when the state starts interfering in people’s lives to such an extent where I do not think it needs to and whereby, in doing so, it causes the opposite effect from what the Government are trying to achieve, which is to stop the transmission of the virus.

That brings me to my transport theme, which I will start with the definition of transport hubs in regulation 2(4):

“In these Regulations, ‘transport hub’ means any premises used as a station, terminal, port or other similar premises from or to which a public transport service operates”.

That is pretty straightforward—I think we would all agree with that—but then it goes on to an interesting point. It says that that does not include

“(a) an area which is not open to the public;

(b) an area where seating or tables are made available for the consumption of food and drink”,

so, does that mean that a transport hub with tables where people can have cups of coffee from the kiosk is not a transport hub? By this definition, it does. I can think of quite a few transport hubs that have cafés and kiosks selling teas and coffees, and seating areas where people sit to eat and drink, but if I am reading the legislation correctly, those are not classified as transport hubs.

Then we come on to the draconian measures of actually dishing fines out. Again, as I said earlier, the measure is London-centric. I would like the Minister to clarify the role of police officers, which here is quite strange. The regulations refer to “a constable”,

“a police community support officer”,

and

“in relation to any transport hub from or to which a TfL public transport service is provided, a TfL officer”.

Finally, they specify

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

Those are the four categories.

First, as to the category of constable, not all police officers are constables. There are sergeants and inspectors. Does that definition cover all those? Is it only someone of the rank of constable who can issue a fine? Community support officers are defined in legislation. I served on the Bill Committee many years ago, when the Conservative party opposed them.

What is the definition of a Transport for London officer? Who are they? Is it left to TfL to decide who they are, or is it only certain people who already have enforcement powers? Finally, there is the

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

There is no list of those individuals in the explanatory notes, which brings us back to the point made by my hon. Friend the Member for Blackley and Broughton about marshals. Will they be given such powers?

As an example, let me take Durham city bus station, which is run by the county council. I think that it is open to the public but on private land. There are operatives there who clean the area and operate the bus station. They clearly do not have the same powers as TfL. Nor do I imagine do the people at many other bus stations. It concerns me not only that definition is lacking on TfL, but that there is a long list of other people who could have quite draconian powers to hand out fines.

Even if the Minister cannot provide it tonight, I would like a list of the individuals who are covered. That would make a difference: as my hon. Friend said, we have no problem with police officers enforcing laws—or community support officers, for that matter—because they have the training and expertise to issue fixed penalty fines and other things, but it sits uncomfortably with me that some person designated by TfL could suddenly have those powers, or, for that matter, anyone else the Secretary of State deems fit to give them to. Again, this is going against what the Government are trying to do.

I agree with my hon. Friend about the science around face masks. In the past months and weeks, the Government have said they are following the science, but are clearly not; they send contradictory messages—and so do the regulations, all over the place. These measures will give individuals powers that I do not think we should give them, and it would have been better if the Government had gone down the route of saying, “What is common sense?”

Clearly, there is currently a spike in cases, but people are not wearing masks in pubs and restaurants, are they, in large numbers? That is why we have had the nonsense this weekend about the rule of six. The important point is that if we are going to bring in measures, they must be proportional—but they must also be explained to people. I do not think that the Government have done that. They have made things worse, with contradictory bits of advice. Frankly, if the public knew the Government were going to give powers to untrained individuals to issue fixed penalty fines, then, no. The sensible approach to face masks is surely advice and support, rather than going down this route.

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[Ms Dorries]

On the point about covid marshals and data protection, we will get back to my right hon. Friend. A number of points have been made in a holistic and wide-ranging way by different people, and I will try to answer the specifics as much as I can. If I do not cover them all, hon. Members can shout at me; we will certainly ensure that they receive answers by tomorrow.

I will first address some of the wider points about lip reading, because there is some kind of misinterpretation of this. Somebody who has a disability, including deafness, does not have to wear a mask, nor does the person assisting someone. If a deaf person goes up to somebody in a shop and asks for help, the shop worker can remove their mask to provide assistance if they are told, “I can only lip read.” The assistant helping somebody with a disability or helping somebody to find their way—whatever need they have—can remove their mask. I wanted to make that clear.

Reference has been made to the fact that people are not wearing masks in pubs and restaurants, but they are socially distancing. There are hand sanitisers when people enter. As pubs and restaurants are keeping their staff safe, they are being very careful about how their clientele use their premises. I want to reiterate a point that I made in my opening speech: 96% of people wear masks.

On the question of why this took so long and the scientific evidence—a question that has been raised in a number of ways—we as politicians did not decide that it was now time for people to start wearing masks. That information comes to the Government and to politicians via a number of filters. It comes from SAGE. It then goes to the chief medical officer, the deputy chief medical officers—Jenny Harries and Jonathan Van-Tam—and, I think, Professor Stringer, our chief scientific officer. We then take the advice from the Behavioural Insights Team; we take the advice that we are given by the scientists.

The Welsh Government have been mentioned. They have their own chief medical officer and their own advisers. They take their advice; they are devolved. We do not tell them when people in Wales should start wearing masks, and they do not tell us. We have our own established scientific body of advice. We do not say to SAGE, “We don’t like your advice today. We’ll go and take it from somewhere else.” We are consistently advised by SAGE and by NERVTAG. When they tell us that the evidence now is such that people should start wearing masks because there will be some benefits, we will take it. In fact, people were wearing masks before we brought in the legislation. The public had already made their mind up, whether they had the scientific evidence or not, that they would start wearing masks, and indeed they were.

That is where we add. As politicians, we do not say, “Do you know what? It is time for everyone to start wearing masks.” We do not have the authority, the scientific background or the evidence—

[Mr Jones]

Yes, you do.

[Ms Dorries]

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

[Ms Dorries]

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

[Mr Jones]

Personally, I have no problem with wearing masks; neither, I think, do the public—

[Ms Dorries]

I would never have guessed.

[Mr Jones]

I am sorry if the Minister wants to be flippant, but it is my job to look at the legislation and scrutinise it. She said that 96% have no problems with it. I never believe in putting forward legislation if there is no need.

I am sorry, but the Minister is wrong in what she just said. It is down to politicians to make the ultimate decision. I have been a Minister, and there are occasions when advice can be ignored—that is a political decision. It is no good hiding behind the scientists, which is what the Government have done all the way through the crisis.

[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.

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[Ms Dorries]

We know each other too well.

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

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

[Mr Jones]

Are the British Transport police covered by this legislation, because there is no reference in it to them?

[Ms Dorries]

Again, I will clarify that. They might not be in these regulations, but this is about not just Transport for London, but British Transport police across the UK.

On the point about people eating in cafeterias in transport hubs, of course people cannot eat through a mask. When people are purchasing food, or are sitting at a table eating and drinking, they obviously do not have to wear a mask.

[Mr Jones]

I am sorry, but that is not what the regulations say. It is in the definition of what a transport hub is. I will read it again:

“In these Regulations, “transport hub” means any…premises used as a station, terminal, port or other similar premises from or to which a public transport service operates, but does not include…an area which is not open to the public;…an area where seating or tables are made available for the consumption of food and drink”.

Surely a transport hub that has tables for food and drink is not classed as a transport hub under the definition in the regulations.

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[Ms Dorries]

I give way to Mr Jones.

[Mr Jones]

I am old-fashioned. I thought that in Committee we are referred to by constituency, not by name. I have been here too long. Could we have the Secretary of State’s list of the other people who can issue fixed-penalty fines?

[Ms Dorries]

I have already asked for that.

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[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.

[Mr Jones]

The reason why the Minister cannot do so is that this measure gives carte blanche to the Secretary of State to give those powers to anybody.

[Ms Dorries]

In this new world of coronavirus and covid-19, we as a Government have to have the right to respond, both urgently and in the case of an emergency, when we need to keep the public safe and to save lives. We have to retain the ability to do that.

The hon. Member for Ellesmere Port and Neston raised one other point that I would like to address. He talked about universities and further education and face coverings. Actually, this has been really interesting, because many universities are very enthusiastic about developing their own policies. They are keen to get their students back in. They are keen to get up and running in a way that is as “back to normal” as it can be in the context of social distancing, and the wearing of a face mask is something that many universities have themselves required. They have done their own messaging to students. I have seen some of this. “Don’t kill your nan” was quite extreme; that was at one university in my own home city. Universities have very much taken on board the fact that they want to keep their campuses safe, and they are launching their own campaigns.