Coronavirus Act 2020: Temporary Provisions

Lord Bethell Excerpts

Monday 28th September 2020 Lords Chamber

Moved by

[Lord Bethell]

That this House takes note of the temporary provisions of the Coronavirus Act 2020 six months after the Act received Royal Assent.

[The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Bethell) (Con)]

My Lords, six months feels like about the right time to check in on the workings of this important piece of legislation. The check-in points on the legislation were built into the legislation itself, alongside the requirement to report every two months on the status of each provision of the Act. It is also an opportunity to remind ourselves of the work this House came together to legislate in a spirit of remarkable cross-party collaboration six months ago. It was a time of intense pressure and uncertainty, when we were just starting to understand the scale of measures needed to contain the disease and how our ways of working needed to adapt to create a Covid-secure workplace. The degree of co-operation and collegiality displayed then showed Parliament at its best, and I hope that today we can debate the future of this Act in the same spirit.

Your Lordships will recall that, during the debates on the passage of this Act in March, we devoted significant time to consideration of the necessary safeguards around the use of the powers. The Government listened to concerns and, in response, built new measures into the Act. Although we have recently been debating the local and national lockdown regulations, it is worth stating two obvious points. The Coronavirus Act is not in itself the repository of powers to tackle the actual disease—that is the role of the Public Health Act 1984. The use of the “made affirmative” procedure” is exactly what one would expect for public health legislation designed to manage a live incident. It gives us powers to vary interventions in a way that responds dynamically to the incident, but also to take account of local sensitivities of geography and local ethos and return these emergency regulations to Parliament for scrutiny within 28 days.

Secondly, we cannot use the Civil Contingencies Act, as was raised in the original debate. That Act and the emergency powers it contains are tools to prevent, control or mitigate an aspect or effect of an emergency that it has not been possible to anticipate or plan for. The triple lock of urgency, necessity and proportionality ensures that the CCA is used only when there is no other option.

So why did we need the Coronavirus Act at all? The Act provides public agencies across the UK with new powers, almost all strictly time-limited, and enables them to mount an effective response to the Covid-19 pandemic. I shall run through a few. First, on the return of public sector workers, some of the provisions in the Act ensure that there are enough workers in the health and social care sector to continue to provide key services. This includes allowing the emergency registration of certain health professionals and students and supporting recently retired NHS staff and local workers in returning to work without any negative repercussions for their pensions. These measures to support volunteers ease pressure on front-line NHS staff and social care staff. The measures had great impact. They enabled the NHS Bring Back Staff scheme, which attracted 65,000 registrations from former professionals and, as at 31 July 2020, 2,140 returning staff in England were redeployed in front-line positions or used in remote roles such as NHS 111 and test and trace.

Secondly, and very importantly, the financial support provisions provide direct support for those in economic need caused by the virus because they are shielding, isolating or otherwise prevented from working. This includes hugely important financial measures touching millions of lives called for during the Second Reading of this Act by noble Lords from all Benches. These include halting the eviction of tenants, making it easier to claim statutory sick pay and increasing working tax credits. Again, these have had great impact. To date, statutory sick pay has been extended to individuals displaying the symptoms of Covid, individuals required to shield, individuals asked to isolate following a test-and-trace notification or members of their household. A range of support is in place under the Act for those who do not receive statutory sick pay: we increased the standard rate of universal credit, meaning that claimants will be £1,040 better off each year, and we have a wide range of measures to support businesses and individuals, including the job retention scheme, the Self-employment Income Support Scheme and an enormous £330 billion worth of guaranteed loans to support businesses in accessing the finances they need.

Thirdly, there are provisions to lighten burdens on front-line staff. Some provisions enable vital services to carry on by temporarily easing some of the burdens on front-line staff. Good examples are making better use of video links in the court services; enabling the Government to order ports to close if there are insufficient customs and immigration staff; and reducing the regulatory burden in death management. These have had impact. At present 60% to 65% of hearings each day include one or two parties joining remotely. As a result, we are investing £142 million to upgrade our technology. Soon all courts will be digitally enabled, and they will never look back.

Fourthly, there are the containment provisions. Some provisions are designed to reduce the risk of spread. A couple of examples are postponing this year’s elections and taking the power to ban mass gatherings and powers for public health officers to quarantine the symptomatic and non-compliant. These provisions have been used judiciously. For instance, we have largely found that engagement is sufficiently persuasive—most people want to do the right thing—but interventions have sometimes been necessary and, as of 31 July, public health officers have used their powers fewer than 10 times.

I have heard it said that we should be using the Civil Contingencies Act instead as Ministers could have the same powers but with the additional safeguard of requiring periodic parliamentary renewal. Even if true, that simply would not do. The Civil Contingencies Act is a provision of last resort. It contains strict tests to ensure that it is used only when there are no other legislative options. In this case there were legislative options so it was not necessary or appropriate. Although the measures in the Coronavirus Act were urgent on this occasion, there was time to pass conventional legislation.

The Coronavirus Act deserves an assessment. Our assessment is that it has meant an enormous amount to the lives of people. It has meant that they have known where their next meal was coming from, thanks to the furlough scheme and the easement around the claiming of benefits that the Act has facilitated. It has encouraged a feeling of security in their own home, thanks to the additional protection from eviction that the Act has created; a feeling of more confidence that their job will exist, thanks to the support for industry and business that the Act has allowed the Government to set up; a feeling of knowing that there is access to justice, the bedrock of freedom under the law, because the Act has enabled courts to operate remotely; and a feeling of safety from harm, knowing that the NHS and social care workforce can maintain capacity thanks to the registration, indemnity and pension changes that the Act enabled the Government to put in place.

There have also been some perhaps less obvious benefits that are none the less essential to the workings of government—for example, the continuation of local democracy, allowing councils to meet virtually; the continuation of death management services by easing the burdens on providers; the continuation of judicial oversight of interception warrants; and the enabling of biometrics held for national security purposes to be retained for an additional period due to the effects of coronavirus on the police.

I do not want the current debate on lockdown legislation to distract from the achievement of the Coronavirus Act. It was a Bill born of an emergency but shaped by Parliament, and Parliament should be justifiably proud of that achievement. None the less I completely acknowledge that aspects of the Act will rightly trigger concern, and I am sure they will be raised in the debate ahead. For instance, it allows one rather than two doctors to detain a patient under the Mental Health Act. That provision has not been commenced but I recognise that it remains one of the most sensitive potential powers in the Act. The Act allows the easing of local authorities’ Care Act responsibilities. These provisions were used in some parts of the country but those eight local authorities had all ceased doing so by the end of June.

The Act allows the power to close ports, including our major airports. That power has never been used, thank goodness. The power to require non-compliant infectious people to self-isolate, or to attend for screening or assessment, has been used fewer than 10 times. Lastly, the police and crime commissioner elections, local elections and by-elections planned for this year were, sadly, postponed, but we hope for normal service to be resumed next May.

The Government have used these powers only when necessary, and we have not used them at all when we have been able to avoid doing so. We have kept Parliament and the public fully informed via our two-monthly reports. The Coronavirus Act is not directly a response to an emergency; it is instead the mechanism to support our response. For that reason, emergency powers are not suitable nor, given the necessarily temporary nature of those powers, would they give people the long-term certainty that they need.

The wording of the Motion is to encourage the continuation of the

“temporary provisions of the … Act”.

What are the non-temporary provisions? They are just ones that cannot be temporary if they are to work. For instance, the indemnity provisions cannot be temporary, although the period in which they can be incurred will be. Cremation certificates under the Act will be permanent, although disapplying the requirement for a confirmatory certificate will be temporary.

However, I cannot offer your Lordships any reliable estimate of when the crisis will be over. It will, as we recognised six months ago, ebb and flow. That is why we took the facility to spend live provisions if and when they are no longer needed and the facility to revive them as the course of the pandemic dictates. The Act will expire after two years unless renewed by Parliament. We all hope that we can dispense with it long before then, but we can be optimistic in our aspiration as long as we are realistic in our planning.

Therefore, can we permanently sunset the unused provision? No, we cannot. The response evolves over time as the course of the disease changes, but the need to be able to deploy support mechanisms remains constant. Of course, we keep the situation under review, and the built-in review mechanisms do provide opportunities to test whether any or all of the provisions are still needed. The people of this country have made great sacrifices in the struggle against this virus. They deserve the support and protection that the Coronavirus Act provides. I look forward to hearing your Lordships’ contributions in the course of this debate, and I hope to able to respond to any concerns raised. I beg to move.

--- Later in debate ---

[Lord Bethell (Con)]

My Lords, I should like to say a profound thank you to all noble Lords who have engaged in this important debate. It has been extremely thoughtful and I have a huge amount to take away with me. I express my sincere apologies for not being able to cover all the points made by every Peer in the Chamber. I start by applauding three of the most powerful maiden speeches that I have ever heard. The noble Baroness, Lady Clark of Kilwinning, laid out a really clear ground for herself, speaking on behalf of the disadvantaged, the vulnerable and those lucky enough to live in the beautiful county of Ayr, which I know and greatly admire. My noble and learned friend Lord Clarke of Nottingham gave a complete masterclass in note-free, elegantly phrased gravitas of the kind that made him envied in the other place and will, I fear, set a new bar for us here. My noble friend Lady Morrissey gave us an absolutely clear set of evidence of why she was such an illustrious figure in the City and will no doubt be an effective standard bearer for Britain’s transition from the EU.

Perhaps I may start with the Act because sometimes I think it is slightly the orphan child of this debate. But it is why we are here and I would like to reflect on the Act itself. A large number of comments, not all complimentary, have been made about it, but my ultimate reflection is that it has been a great achievement. I well remember when it was put together and I offer thanks in retrospect to the noble Baronesses, Lady Thornton and Lady Barker, my noble friend Lady Penn and the noble Lords, Lord Scriven and Lord Hunt, as well as everyone else involved in the drafting of the Bill under extremely difficult circumstances. I think we caught the spirit of the times and it has delivered a profound and positive effect on the country’s healthcare, provision for the vulnerable and the poor, and the massive provisions to support jobs and businesses. It has also contributed to the containment of the virus. I shall talk about the strategy for that in a moment.

Noble Lords have reflected on some aspects of the Act and I recognise completely the comments made about the benefits of a three-monthly review, as suggested by the noble and learned Lord, Lord Judge. I will take back to the department the value of the two-monthly reviews and how those are crafted. I note also the comments of the noble Baroness, Lady Barker, on the analysis. Comments were also made by the noble Baronesses, Lady Jones and Lady Chakrabarti, on Section 21. It is true that the CPS reviewed some of the convictions and as a result issued new guidelines. Those changes have worked to the extent that no further reviews have been necessary. I do not hide from the fact that parts of Section 21 are very severe, but they have hardly been used. I hope that reflects on the responsible and thoughtful way in which the measures of the Act have been applied.

The noble Baroness, Lady Bennett, asked about elections. They have been moved to 6 May 2021 and I would just reflect on the great efforts made by the parliamentary services to keep this Parliament open and to put those elections next May in place.

It has been suggested that it is time to change the law. On reflection, the Government consider that the Act has been of huge benefit in our fight against the virus and it is not the time to change, although that may come in the future. It is in fact a landmark and demonstrates the power of collaboration.

If I can move on, a number of noble Lords reflected on that power of collaboration, and I hear loud and clear the remarks made in the Chamber on authoritarianism, totalitarianism and the role of Parliament in the measures introduced to fight the pandemic. There is undoubtedly palpable frustration at the way in which measures are introduced, and I hear those concerns loud and clear. They largely reflect on the public health Act 1984, a piece of legislation that was deliberately put in place to address epidemics such as this one. I completely agree with the those who say that we are stronger when we work together. When measures are put in front of Parliament and communities are engaged, we end up with something much more powerful. I think we will all reflect on the importance of that message.

However, in mitigation, I will mention a few practical things. The speed of this virus has been absolutely astonishing. I could give your Lordships dozens of examples, but the July outbreaks after the lifting of the lockdown caught us all off guard and showed how violent and powerful the virus is. We have had dozens of regulations, but many of them are tweaks and have addressed small subjects such as tattoo parlours. The ability of this end of our Parliament to process legislation at a time when it is under a huge amount of pressure from the legislative agenda and from dealing with Covid-friendly processes is one of the reasons why things have been slow. I would also mention the very large number of engagements: Statements, SIs, debates, OPQs, UQs, PNQs and Bills. There have been 73 since the beginning of March, and I would be happy to run through that list with anyone who would care to reminisce with me.

I also remind noble Lords that, on the whole, despite some penalties for some things, we have applied the principle of consent in all we have done with regard to Covid, wherever possible. We have enjoyed a large amount of public support—I note the comments of my noble friend Lord Randall on that. We have also listened to these debates, whether on masks, social care, local engagement and local councils—the noble Baroness, Lady Barker, was a champion of that—and on sharing data and enforcement, which my noble friend Lord Blencathra has been a champion of. On all these measures, the debate that occurred here has been taken to the rooms where decisions have been made, the points made in this Chamber have been reflected in that decision-making process, and Parliament has played a leadership role.

The noble and learned Lord, Lord Judge, scared us all when he talked about mobilising the military and cancelling Christmas. These are headlines, not government policy. It is our intention to do everything we can to avoid exactly these kinds of measures, and we have applied the principle of consent wherever we can; whether on quarantine, isolation, masks or anything else, that has been our watchword.

I reassure my noble friend Lord Forsyth that the Civil Contingencies Act was looked at seriously. A huge amount of work went into looking at that as an alternative. I completely agree with him that there are definitely benefits to the kind of parliamentary scrutiny that the CCA offers, which have been rightly described in this Chamber as being around collaboration and people being brought into the process. My noble friend is right about that. But the government lawyers, who are the best you can get, were adamant that the threat of judicial review was considered too high and the public health Act 1984 was a much better vehicle.

By way of conclusion on this point, I completely acknowledge the strong feelings and the thoughtful arguments that have been made in this Chamber on parliamentary scrutiny and the role of Parliament. I completely acknowledge the point made by my noble friend Lord Robathan, who has articulated the case extremely forcefully and thoughtfully. We definitely need to reflect on these points. However, I note that my right honourable friend the Secretary of State for Health said earlier today in another place that the Government are looking at

“further ways to ensure that the House can be properly involved in the process—in advance, where possible.”

That commitment is felt earnestly, we are working our hardest to try to move on it, and for that reason and the reasons I gave previously, I sincerely ask my noble friend Lord Robathan to withdraw his Motion of Regret and to support the way in which we have to do things under the current framework of our legislation.

A lot of the comment today was not about the Act at all; it was about the Government’s strategy. I do not duck from discussing that. I cannot go through every aspect of the strategy, in all its detail, but will make a few comments. I start by completely sympathising with the noble Lord, Lord Blunkett, and the daughter of the noble Earl, Lord Erroll, as the science around this horrible virus is extremely frustrating and challenging. It is one of the reasons why both the public and I find it difficult. There are huge mysteries on immunity. We are confused about and collecting data on long Covid, and do not always know for sure how transmission works. The noble Lord, Lord Blunkett, said that maybe we should get rid of SAGE to try to calm the debate. I do not agree. I embrace the scientific debate. Although it is rough and tumble, and we do not always come out from it well, it is the role of scientists to probe and challenge, and that is how we have made progress.

But there are some things we know, and I say these uncomfortable things in challenge to some of the comments made in the Chamber. We know this virus kills. It is a horrible death, and those it does not kill it can maim. Those it maims can be the young or people who did not know they had the disease. The evidence emerging is that around 10% of those who had Covid will live with some kind of long-term affliction. The evidence suggests that around 10% of the country are seropositive. This is not some light flu that you will get over and walk away from. For many people, this is either a death sentence or something with which they will live for all their lives. I say this not to scare or to freak anyone out. I say it because it is the realistic assessment, and it is the story that I see, from my desk, every day at the department of health. It is as contagious as it ever was. Sometimes diseases calm down and fade away. This one may, but has not done yet.

On the positive side, the progress that the Vaccine Taskforce is making is tremendous. This is not just the Oxford vaccine, but another 10 lined up behind it. For those who are not able to take the vaccine, neutralising antibodies and other therapeutic drugs show great promise in protecting those we love.

Mass testing is not ready yet. I hardly need tell noble Lords that we are not quite there yet, but it offers hope. In the meantime, the measures that we have put in place are saving lives. It is completely illogical to condemn the measures that we have put in place as not working, because the death rate is so low. The death rate is so low because, by and large, the measures work.

That is not to say that there are no challenges. I completely recognise the points made by my noble friends Lord Lamont, Lord Bridges, Lady Stroud and Lady Noakes. The impact on the economy is absolutely horrific. At every step of taking any decision, we have that in mind. I recognise the point on impact assessments, and will take that back to quiz the department on whether we could or should be looking harder at doing that. I guess it may be one for BEIS or the Treasury.

It is unarguable that lockdowns hit jobs, but viruses hit jobs harder. If the deaths mount, we will have to hit the virus harder, for longer. That was the lesson of 1918 and of epidemics before and after, and is the lesson of today’s epidemic. We are not casual about these measures; we are absolutely serious. If public confidence goes, the social fabric cracks, supply chains break down and social trust dissipates, we will not have an economy left at all. That is why we pursue this route.

Several noble Lords talked about education and students. Can I be really clear about our approach? On testing students, we are pro spit, pro breath and pro poo. We are using every single bit of your body to test the hell out of you, and we are going to do whatever we can to test pupils and students. In terms of Christmas, we are doing everything we can to ensure that pupils and students get back from their universities and schools.

In response to my noble friend Lord Vaizey and the noble Baroness, Lady Thornton, I say that we are absolutely determined to keep the schools open. That is not just mainstream schools—it includes special schools. The role of schools in our community is not just to educate the children, although that is essential; it is to keep families going and protect vulnerable children.

A number of noble Lords mentioned health, including my noble friends Lord Lansley and Lady Manzoor. I reassure all noble Lords that the bounce-back is happening. Radiotherapies were back up to what they were in June. We have already halved the backlog. In July, there were 180,000 oncology checks, and 90% of them were within two weeks. We have a massive campaign on the blocks, and the winter plan for social care and PPE is incredibly important. I reiterate the comments made by the noble Baroness, Lady Barker, on the role of environmental health inspectors and the unsung heroes of public health.

The noble Baroness, Lady Clark, spoke very movingly about the poor and vulnerable. One of the most important aspects of the Act and our measures was to help those who were going to be hit hardest by this disease. That came out on Second Reading of the then Coronavirus Bill; it was one of the most moving and decisive parts of that process. We listened, we moved and we put in measures, which has enabled massive support for people.

By way of conclusion, I say that there are some very serious accusations on the table. The noble Lord, Lord Foulkes, spoke about failure and my noble friend Lord Naseby talked about incompetence. I completely acknowledge the frustration; not everything has run as smoothly as I would like. There have been challenges in test and trace, social care, shielding and other areas. But the House knows how I think: those frustrations and challenges are also matched by enormous achievements. We are the country that brought the first therapeutic drug to patients, in dexamethasone. We are probably the front-runner for a vaccine with the Oxford vaccine. The Nightingale hospital was put up in nine days and brought huge capacity to the NHS. Telemedicine has brought both mental health and primary care to people who would be left on their own. We have done 20 million tests until today—that was the record that we made today—and there have been 12 million app downloads.

The consequences of the regulations that we have introduced are tough—the rule of six is tough, and my noble friend Lady Neville-Rolfe spoke movingly on that—but they have worked. We are determined to use local lockdowns and the advances of technology wherever we can to fight this virus until we have a vaccine, mass testing and therapeutics to beat it.

I completely and utterly hear and understand the words on parliamentary scrutiny from my noble friends Lord Robathan and Lord Lamont as well as the noble Baroness, Lady Chakrabarti. But my noble and learned friend Lord Clarke put it very well in his grave and wise comments: we need to strike the right balance. We think that we have hit the right balance; it will not keep everyone happy, but we are determined to defeat this virus and get our lives back.

Motion agreed.