Health Protection (Coronavirus) (Restrictions) (England) (No. 4) Regulations 2020

Lord Lilley Excerpts

Wednesday 4th November 2020 Lords Chamber

[Lord Lilley (Con)]

My Lords, these measures involve grave restrictions on the economy and our liberties. They may be necessary, but we should take them only on the basis of sound law and solid data. Unfortunately, they are based on dubious law and dodgy data. So, I have tabled a Motion that

“this House regrets that the Regulations have been laid under the Public Health (Control of Disease) Act 1984, which does not give specific powers to Her Majesty’s Government to impose restrictions on uninfected persons, and not the Civil Contingencies Act 2004, which does.”

I am not a lawyer, but I know a man who is: Lord Sumption. He has spelled out that the Public Health (Control of Disease) Act 1984 empowers Governments only to confine infected persons, not to confine the population as a whole, the vast majority of whom are not infected, and still less to close down large swathes of the economy. None the less, the Government could lawfully do all they seek to do in these and other regulations if they invoke the Civil Contingencies Act 2004. In that case, however, they would be subject to much closer parliamentary scrutiny than has been the case. In my own ministerial experience, parliamentary scrutiny invariably led to better decision-making, if only because officials had to work to satisfy all conceivable criticisms, not just those that their Minister could envisage.

The noble Lord, Lord Anderson, contacted me to say that he, too, considers it regrettable from the point of view of parliamentary scrutiny and arguably unlawful that the Public Health Act 1984 was selected in preference to the Civil Contingencies Act, though he took the view that the courts might find a plausible legal argument for upholding regulations made on this basis. Will the Minister either provide a convincing rebuttal of Lord Sumption’s critique, or use the Civil Contingencies Act in future?

I may not be a lawyer, but I did take the Institute of Statisticians’ exams half a century ago and I have been allergic ever since to statistical jiggery-pokery. Noble Lords may recall the gang in Oxford Street which I used to watch fleecing gullible passers by using the three-card trick. They were eventually exposed when a covertly taken film, played back in slow motion, revealed how the trick was done. Ed Conway of Sky News has performed a similar public service by showing, slowly and methodically, how official sleight of hand has misused the figures to justify this lockdown by creating a scarier illusion than they warrant. I urge every noble Lord to google: “Ed Conway: Why doesn’t the Government give us all the information” to see how this trick has been performed.

In brief, we were told at the weekend that the Government’s case for the lockdown rests on the fact that the virus is now spreading even faster than the Government’s reasonable worst-case scenario. Most of us assumed that that referred to the scary projection by Sir Patrick Vallance in mid-September showing reported cases doubling every seven days, to reach 49,000 a day by the end of last month. Far from spreading faster, reported cases are growing less than half as fast—just 20,000 per day. Sir Jeremy Farrar, of SAGE, rushed to Patrick Vallance’s rescue, claiming that his projection has been met, citing the Office for National Statistics’ figures that new infections are running at about 50,000 a day. However, to compare new infections with reported cases is comparing oranges with pumpkins. New infections include non-symptomatic cases and are typically two and a half times as numerous as reported cases, which Patrick Vallance was using.

The Government then claimed that Vallance’s projection was not the realistic worst case. It was certainly never realistic, and it has proved far worse than reality, but the Government refused their actual realistic worst case. Fortunately, the Spectator got hold of an official realistic worst-case scenario for projected deaths. It assumed that the second wave would not begin until mid-November, apparently unaware that students return, the weather gets colder and evenings darker, well before then. Stark data apart, the curve of deaths that have actually happened during the real second wave has followed closely the curve of the projected one. It does not overshoot the scenario for which the NHS has been planning. In short, instead of evidence-based policy, we have seen policy-based evidence.

I am not claiming that a second wave is not serious; it is. I am not suggesting that no action is required; it may be. But using a weak legal base and playing fast and loose with the statistics can only undermine trust in what is proposed in these regulations.

--- Later in debate ---

Tabled by

[Lord Lilley]

At end insert “but that this House regrets that the Regulations have been laid under the Public Health (Control of Disease) Act 1984, which does not give specific powers to Her Majesty’s Government to impose restrictions on uninfected persons, and not the Civil Contingencies Act 2004, which does.”

Lord Lilley’s amendment to the Motion not moved.