Coronavirus Act 2020

Lord Hunt of Kings Heath Excerpts

Tuesday 26th October 2021 Grand Committee

[Lord Hunt of Kings Heath (Lab)]

My Lords, I thank the Minister for his comprehensive introduction to the debate and the statutory instrument. Of course, Covid has brought unequalled challenge to us—a challenge that we have not seen for decades. It has disrupted our lives and many people have died as a result. Of course, the powers that the Government have taken to themselves have been quite exceptional. I do not agree with everything that Big Brother Watch says, but I think it is right to point to the draconian nature of some of those powers. I was very glad the Minister said what he said in relation to Schedules 21 and 22. My understanding is that every single charge made under those schedules was found to be unlawful. As he read out the powers, I shall not repeat them—but they are draconian. They may have been justified, but they were misused. The Minister said that they will be withdrawn. Can he clarify whether they will be withdrawn through a statutory instrument?

The second area I wanted to raise is parliamentary scrutiny. The noble Lord, Lord Cormack, raised during the Urgent Question repeat in the Chamber the point that the Government now seem to announce everything in the media before coming to Parliament. The way in which Parliament has been dealt with over Covid has been very unsatisfactory. We have had more than 500 pieces of secondary legislation; most were rushed out and considered by Parliament retrospectively. The Justice Select Committee reported on this and stated:

“Parliament plays an important role in making sure that the law and any new criminal offences are so far as is possible intelligible, clear and predictable. It is not satisfactory … that Parliament was not … able to fulfil its function when Members were required to consider statutory instruments already superseded”—


this has happened on a number of occasions.

Although it falls to the Commons to vote on the renewal of powers, while we have simply a Take Note approach, the powers are substantial and I must say that I do not think that they should be debated in Grand Committee; they are important enough to be debated in the Chamber and I find it very disappointing that we are here, having to do it in this way.

It is notable that, since we came back in September, there have been hardly any debates on Covid. Again, I find this very worrying, and I would like the Minister to tell me why there have been no Statements. I think the Statement last week was the first one we have had on Covid since we came back. This really is not satisfactory and hardly counts as parliamentary scrutiny.

I also ask the Minister what has happened to SAGE. There has apparently been a downscaling of SAGE’s role. It seems that it now meets only once a month. Can the Minister confirm that and tell me why it is? A government source has been quoted as saying that there is now a lessened demand for scientific advice. Well, I do question whether that is accurate. We are still in a difficult situation: Covid infections are rising and there is a real risk that the booster jab and school vaccinations are behind where they ought to be—hence the Minister’s comments at the end of his introductory speech. My concern is that the Government’s mistakes and, frankly, dubious exceptionalism at the beginning of Covid look like being repeated time and again.

There was another very good joint Select Committee report, from the Health and Social Care and Science and Technology Committees, which was published on 12 October and looked at what has happened over the past 18 months. The report pointed out that the UK was not alone in having suffered badly because of Covid, but we did significantly worse in terms of deaths than many countries, particularly when compared to those in east Asia, even though they were much closer geographically to where the virus first appeared. The report said the UK’s pandemic planning was too narrow and effectively based on a flu model, which failed to learn the lessons from SARS, MERS and Ebola.

Particularly telling was the report’s comment that the Government’s desire to avoid a lockdown because of the harm to the economy that it would entail had a big impact. In the absence of other strategies such as rigorous case isolation, a meaningful test and trace operation and robust border controls, a full lockdown was inevitable and should have come sooner. We saw history repeat itself last autumn, when the Government’s decision not to have a circuit breaker did not follow the scientific advice and Ministers were clearly optimistic in their assumption that the worst was behind us during those summer months.

The question before us today is whether history is repeating itself. We know that our weekly death rate stands at three times the level of other major European nations. We know hospitalisations are rising, and they are certainly at a higher level than in many countries on the continent. The decision to end compulsory mask wearing and to pause plans for vaccine passports in England has made the Government an outlier in their management of the pandemic. By contrast, western European countries such as France, Italy, and in particular Spain, have brought down infection rates to their lowest level since the summer of 2020.

The Government have not been short of advice. When the latest October minutes from SAGE came out, they pointed to current population behaviours being estimated as being closer to pre-pandemic norms than at any point since March 2020—which I think means that people are not wearing masks very much and are not distancing themselves socially. SAGE pointed to early interventions that may reduce the need for more stringent, disruptive and longer-lasting measures to avoid an unacceptable level of hospitalisations.

We have also heard the NHS Confederation calling for not just plan B to be implemented but plan B-plus: calling on the public to mobilise around the NHS and do whatever they can to support front-line services this winter. On the other hand, it has been reported that modelling by the London School of Hygiene & Tropical Medicine has suggested that cases will peak soon and fall away steeply in the winter months. So I ask the Minister to set out current ministerial thinking. I see the temptation to wait and see, in the light of the London School’s modelling. On the other hand, every time the Government have waited and seen, they have turned out to be wrong, so I think at the very least we ought to know today the hard thinking behind the Government’s position in relation to plan B.

[Lord Naseby (Con)]

My Lords, I declare an interest in that I am married to a doctor, a former GP who ran a big practice in Biggleswade.

--- Later in debate ---

[Lord Kamall (Con)]

My Lords—apologies while I remove my mask—I thank all noble Lords for their valuable contributions to this important debate, and for the range of views expressed in the best tradition of our debates. The Government see extending the No. 3 and self-isolation regulations until 24 March next year as vital to allow local authorities to respond to serious and imminent threats from Covid-19, but also to ensure that the self-isolation system continues to protect the public during the challenging winter ahead. I have listened to and have taken on board—and will take on board—many of the concerns raised here today.

The Government believe that the Coronavirus Act continues to be a critical part of our country’s response to this awful virus, which has touched every corner of our society. In terms of parliamentary scrutiny, I understand the points that have been made by many civil libertarians here today. The Government believe that the Coronavirus Act has enabled them to provide help and support to people, businesses and our public services, and to boost the healthcare workforce at a critical time of need. I assure noble Lords that we will continue to review every aspect of coronavirus legislation, but we are now able to expire seven provisions and part of a further power in the Coronavirus Act. I hope this demonstrates the Government’s commitment to, and progress towards, winding down the emergency powers.

The Government see themselves as taking only those powers that are critical to our response and recovery—for example, powers that help make sure that the NHS is properly resourced and that statutory sick pay is available to those who are self-isolating. It is always a very difficult balance; we heard from the noble Baroness, Lady Merron, that she would have preferred us to keep some of the other emergency provisions. The Government’s autumn and winter plan sets out how we hope to sustain and bolster the progress that we have made thus far.

I turn to some of the specific points made by noble Lords; I hope I will have the time to respond to as many as possible. If I do not respond to every point, I will make sure that I write to noble Lords in answer to their specific questions. The noble Lord, Lord Hunt, asked when an SI would be laid. He also talked about unlawful convictions and incorrect charges, as many other noble Lords spoke eloquently about. I thank them for their contributions about the incorrect charging decisions under Schedule 21 to the Act. Of course it is regrettable that 295 incorrect charging decisions have been made under the Coronavirus Act. The primary issue that the Crown Prosecution Service has identified is that individuals were erroneously charged under Schedule 21 rather than under other legislation such as various health protection regulations. Since April 2020, the CPS has agreed to review all prosecutions made under the Coronavirus Act and it continues to do so. I hope, in some ways, that that reassures the noble Lord.

The noble Lords, Lord Hunt and Lord Scriven, my noble friend Lady Foster, and the noble Baronesses, Lady Fox and Lady Brinton, asked about parliamentary scrutiny. I know that this is an issue of concern to many noble Lords. The Government are confident that they have upheld their promise to allow for proper scrutiny and accountability of the powers in the Act. Many criticisms were levelled, which I understand, and I hope that noble Lords will continue to hold us to account on accountability. Maybe I can have some conversations offline with some noble Lords to make sure we do this as much as possible.

My noble friend Lord Balfe talked about living in the same street as former MEPs and doctors. He then went on to say that the doctors were his friends, but he did not say anything about whether the former MEPs were also his friends. I hope so, but I assure him that he still remains my noble friend.

On occasion, it has been necessary to introduce urgent measures to protect the NHS and save lives. The Government have committed to debates in advance of regulations coming into force wherever possible for measures of national significance. This included Parliament being recalled to debate the national lockdown in January, and debates and votes on regulations covering the tiers system; the steps regulations in March, which set the path for implementing the Government’s road map out of lockdown; and, in June, pausing the move to the next step of the road map.

The noble Baroness, Lady Fox, talked about impact assessments. On the evidence for decision-making, a full regulatory impact assessment was not prepared for many coronavirus regulations, as they fell under the civil contingencies exclusions of the better regulation framework. The Better Regulation Executive will not seek to enforce the current administrative requirement for validating impacts for temporary coronavirus legislation in advance of the wider reform of the better regulation framework.

The noble Baroness, Lady Brinton, and the noble Lords, Lord Hunt and Lord Scriven, accused us of ignoring the scientific advice by not implementing plan B now and asked who is advising us and what the trigger points are. Our approach has always been informed by scientific and medical evidence, and by the latest data. We take evidence from the Chief Scientific Adviser, the Chief Medical Officer, SAGE, of course, as part of that, the UK Health Security Agency, the NHS and others. They remain valuable when we balance the evidence of scientific opinion. Scientific experts have contributed directly to ministerial discussions.

As we have heard in this debate, many noble Lords have contested the science or referenced certain reports. It shows that, even around this area, science is contestable. That has been revealed in the way the Government assess all these trade-offs. What is also interesting is that many people in other parts of the health sector are concerned about some of the provisions, such as the impact on mental health and other unintended consequences. All these have to be balanced. The Government have benefited from the expertise of their science and medical advisers through the pandemic and remain deeply grateful for the role they have played in saving lives and protecting the NHS.

In our debate on Thursday last, I mentioned the work of Professor Mark Pennington, professor of political economy at King’s College London, who talked about the response to the pandemic via decision-making. He talked about the situation being almost a Hayekian, complex system, with many individuals having incomplete knowledge or, as Hayek said, the conceit of knowledge. That expresses and shows the difference of opinion. This is a case where we have to weigh up many different views, particularly among the scientific community, and, in addition, some of the papers referenced today by many noble Lords.

Noble Lords have asked what the set threshold is. The Government and our scientific advisers monitor a wide range of Covid-19 health data, including on cases, immunity, the ratio of cases to hospitalisations, the proportion of admissions due to infection, the rate of growth in cases and hospital admissions in the over-65s, vaccine efficacy and the global distribution and characteristics of variants of concern. In assessing the risks to the NHS, the key metrics include: hospital occupancy for Covid-19 and non-Covid-19 patients; intensive care unit capacity; admissions of vaccinated individuals; and the rate of growth of admissions. The Government also track the economic and societal impacts of the virus to ensure that any response takes those wider effects—that is, socioeconomic effects as well as those in the medical and scientific professions—into account and assesses that range of views. It is not necessarily a binary decision but a range of views that must be considered and weighed up. Noble Lords have expressed eloquently in this debate the range of scientific views and papers on Covid.

A number of noble Lords, including the noble Lord, Lord Hunt, and the noble Baroness, Lady Brinton —forgive me if I do not remember the others—asked how regularly SAGE meets. Throughout the pandemic, SAGE has been a vital source of co-ordinated scientific advice and technical support to help guide the Government’s response. However, as I have said previously, we also consider other bits of scientific advice. Committee members utilise the latest scientific research, insight and analysis from across government, academia and industry. As new evidence or data emerges, SAGE updates its advice accordingly. As Covid-19 was completely unknown to us less than two years ago, this means that some of the guidance provided in the earlier stages of the pandemic has now been superseded or amended to reflect our ever-evolving understanding of the virus.

The noble Lord, Lord Scriven, asked about face coverings—

[Lord Hunt of Kings Heath (Lab)]

I am grateful to the Minister for explaining the Government’s approach to SAGE, but I have to say that it is rather confusing since SAGE clearly encompasses a wide range of scientific views. The Minister seems to be saying that it has been given a subordinated role, meeting only monthly, and, in essence, the Government are looking for other bits of scientific advice. I would like clarification on this because, for me at least, this is clearly a significant change in policy and practice.

[Lord Kamall (Con)]

I thank the noble Lord for that question. As I laid out earlier and have said formerly, the Government listen to a range of scientific advice, including from SAGE but also from the Chief Scientific Adviser, the Chief Medical Officer, the NHS and a range of other views.

[Lord Hunt of Kings Heath (Lab)]

I am sorry to pursue this but it seems to me that the Minister has made a very significant statement because all those people are on SAGE, as far as I am aware from looking at the minutes. I do not think that the Government can get away with simply saying, “We listen to a whole range of advice, including from SAGE”. Surely SAGE is the primary place from which the Government get advice.

[Lord Kamall (Con)]

I can only repeat what I have said previously but I will look at this in more detail and respond to the noble Lord if he is not satisfied with my response. I will try to make sure that I send a satisfactory response.

A number of noble Lords talked about the evidence around face coverings. Some noble Lords said that they definitely work. Others said, “No, there is no evidence that they work”. Others said, “Actually, they are useful as part of an overall package of other measures”. If the data suggests that the NHS is likely to come under unsustainable pressure, the Government will implement their prepared plan B. That is why we have explained it in advance: so that we cannot be accused of doing things at the last minute. Plan B would include legally mandating face coverings in certain settings, but we are not yet at that stage. The continued efforts of the public in practising safe behaviours and getting fully vaccinated will be critical to ensuring that the NHS does not come under unsustainable pressure.