HEALTH PROTECTION (CORONAVIRUS, RESTRICTIONS) (ALL TIERS) (ENGLAND) (AMENDMENT) REGULATIONS 2021 HEALTH PROTECTION (CORONAVIRUS, RESTRICTIONS) (ALL TIERS AND SELF-ISOLATION) (ENGLAND) (AMENDMENT) REGULATIONS 2021
Debate between Mark Harper and Nadine Dorries(3 years, 10 months ago)
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Ms Dorries
It is a great pleasure to serve under your chairmanship, Sir David. I hope that the Committee will approve the regulations, which are in the name of my right hon. Friend the Secretary of State for Health and Social Care. I will briefly explain each statutory instrument.
SI No. 2021/53 amends the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 and came into force on 20 January 2021. The need for the changes in it was identified in the ongoing review of regulations. It provides for minor and technical clarifications, including of the fact that competitive sport can continue, that cafés and canteens in all post-16 education and training settings are able to remain open, and that marriages and conversions under the Marriage (Same Sex Couples) Act 2013 are permitted. These changes provide legal certainty that these activities are permitted.
SI No. 2021/97 amends the all tiers regulations and the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020, and came into force on 29 January 2021. It allows for additional data to be shared between NHS Test and Trace and the police for the purpose of effective enforcement of the self-isolation regulations. The statutory instrument also amends the all tiers regulations to introduce a new, higher fixed penalty notice to persons aged 18 or over participating in a gathering of more than 15 people in a private dwelling, in education accommodation, or at an indoor rave. The first penalty is £800, reduced to £400 with early repayment. Subsequent offences double the size of the fixed penalty, to a maximum of £6,400.
I will now outline in further detail the main changes made by SI No. 2021/97. As I noted, the main amendment it makes to the all tiers regulations is that it provides for FPNs that can be levied against individuals who participate in gatherings of more than 15 people in a range of settings. We have introduced a new fixed penalty notice, because although the majority of people follow covid regulations and guidance, it is important that the police have the right tools to take action against the small number of people who break the rules. We know that the virus is transmitted through close contact; as a result, larger gatherings of people who do not live together pose an increased risk of transmission. The existing regulations already penalise people who organise unlawful gatherings of 30 or more people, but there was no enhanced penalty for those attending, other than the £200 FPN for breaching social contact and gathering rules. This new, larger fixed penalty notice will support wider efforts to improve compliance with the regulations, thereby helping to bring transmission rates down.
I will now focus on changes to the self-isolation regulations, as I am aware that many Members are most interested in this. The self-isolation regulations came into force on 28 September 2020 and make self-isolation a legal requirement for individuals who have been notified by NHS Test and Trace that they have tested positive for covid-19 or are a close contact of such a person, subject to a number of exemptions. Non-adherence to the regulations can result in an FPN ranging from £1,000 to £10,000, and failure to pay the FPN can result in court action and conviction. The SIs being debated today do not change those levels of FPN.
In order for police to issue FPNs, they need sufficient information about the suspected breach, and evidence that the individual is supposed to be self-isolating and has received a notification from NHS Test and Trace to do so. This SI allows for the minimum necessary information to be shared with the police in order for them to enforce self-isolation. Four key changes have been made. The first is the addition of date of birth and email address, which will help strengthen the evidential base by enabling the police to verify the identity of someone who is suspected of a breach. Secondly, information on whether the individual is participating in coronavirus-related research will be used, where available, to determine whether the subject is permitted to leave their place of self-isolation under an exemption in the regulations. Thirdly, the SI permits the sharing of notification information, including the method of notification, the contact details—
Mr Mark Harper (Forest of Dean) (Con)
On the point of notification information, I understand that now, to improve the contact rates, if Test and Trace notifies someone that they have to self-isolate, and there are other members of the household, that person is asked to notify those members and confirm that they have been notified. For the purposes of the regulations, if someone has notified members of their household, does that count as a notification that makes those members legally have to self-isolate? Is the information that someone has passed on to them communicated to the police in some way, so that they can take action under the regulations?
Ms Dorries
The only time the police would contact a person would be if a breach had taken place. On the point about the relatives, household members or close contacts of somebody who has been notified by NHS Test and Trace that they are positive, my right hon. Friend asks whether the data of those people who the person has taken on the responsibility to notify will be transferred to the police. I will ensure that I get a swift response to that question.
Ms Dorries
I would say yes to the second half of my right hon. Friend’s question. Again, I will seek legal clarification on this issue, but if someone has been notified that they have been in close contact with somebody who has tested positive, they have a responsibility to self-isolate. On whether that person’s details are put on the NHS Test and Trace database, and on whether the police can therefore be notified if they breach the social contract that we have with Test and Trace, I will need to find out for my right hon. Friend.
Mr Harper
This will be the last question. I am pressing her because it was very clear that the initial self-isolation regulations, which, for the avoidance of doubt, I strongly support, applied only to people whom the Test and Trace service had notified. There was no legal requirement for a person to self-isolate if, for example, the app told them to. That is why I want to be clear. I completely agree that people should self-isolate, but there is a real difference between whether someone should, and whether there is a legal duty on them to do so or face criminal action from the police.
Ms Dorries
I take my right hon. Friend’s point entirely. It is a legal point, and I will get legal clarification for him swiftly, if not before the end of the debate. I will certainly make sure that question is answered, because there is a legal nuance on where the legal responsibility lies. I welcome his intervention—in fact, interventions from Members on both sides of the House—because they challenge us on how we deal with this new virus, and the world of covid regulations and social distancing. They challenge us all the time to think about these points and to do things better.
Thirdly, the SI permits the sharing of notification information, including the method of notification, the contact details, and a copy of the notification issued to the person informing them of their duty to self-isolate. As my right hon. Friend pointed out, that happens when someone is informed by NHS Test and Trace that they have to self-isolate. That is so that the police can confirm that the individual received a notification to self-isolate and was aware of their legal duty to do so. If required, the police can use that copy to remind the individual, as I have said.
Finally, the SI allows information to be shared on whether the suspected breach is a positive case or a close contact. The police require a distinction to be made between the two types of cases—I think I am answering my right hon. Friend’s question; perhaps I am not—and the relative circumstances may need to be evidenced by the police in criminal proceedings. It is crucial that the police know the precise circumstances and the chain of events that may need to be investigated and evidenced in each individual case.
That data will primarily be shared with the police where there is a reported breach of self-isolation regulations. This is for the purpose of access. The police do not have direct access to the NHS Test and Trace database and its details on all individuals who need to self-isolate, and that will remain the case. Sharing this additional information is both necessary and proportionate, as it gives the police the information that they need to effectively enforce the law. The police have a role in upholding and enforcing the regulations, and we must ensure that they have the tools necessary to carry out their job efficiently and speedily, so that we can deter people from breaching self-isolation at a time when adherence to self-isolation requirements is crucial.
Above all else, the self-isolation regulations are a safety measure designed to drive up compliance among those most at risk of spreading the virus. Any improvement to the way the regulations are upheld will have a positive impact on the public health of the country as a whole by bringing down rates of transmission, protecting the most vulnerable, reducing pressures on healthcare and aiding a return to normality for us all.
Both statutory instruments were introduced using emergency powers, so that we could respond quickly to the threat to public health posed by covid-19. The urgency of SI No. 2021/97 stems from the critical national situation, the need for the police to be able to conduct their duties efficiently in this context, and the crucial impact that it should have on improving compliance with self-isolation and bringing down the R number.
The SIs demonstrate our willingness to take tougher action against the most serious breaches of the rules. They are designed to protect us all. We keep wider regulations under ongoing review and clarify them as appropriate. We also understand that it is crucial to take steps to allow people to return to a more normal way of life. The most effective way of doing that is by reducing transmission of the virus while we continue to deliver our vaccination programme. The SIs set out to achieve that, and should therefore remain in force. We are committed to ensuring that the measures are in place only for as long as is necessary. I commend the regulations to the Committee.
Mr Harper
It is a pleasure to serve under your chairmanship, Sir David. It is also a great pleasure to see the Minister in her place. I know that she is assiduous in her duties. I am pleased that she answered my earlier intervention in the right spirit, which is the spirit in which I am asking the questions. I genuinely believe that asking questions, which Ministers have to answer, means that you get better laws and regulations, and a good Minister should never be afraid of scrutiny. I am grateful to her for taking my intervention in that spirit.
By way of opening, I should say that I support the principle that people who test positive for coronavirus, or who are contacts of people who test positive, should self-isolate, to protect those around them and reduce the rate of infection. The real question that faces us and is at the heart of these enforcement powers is this: how do we more effectively get people to self-isolate? Is it with the stick or the carrot? That is why I have some concerns about the approach set out in this SI. I am particularly concerned that sharing information with law enforcement authorities does not lead to the best public health response.
I asked the Minister a question, and she kindly said that she would get back to me with a response. There is a second part to my question, which the hon. Member for Ellesmere Port and Neston touched on. I think I am right in saying—I am very happy to be corrected if I am not—that one of the qualification criteria for the isolation payment, which is very important for people on lower incomes, is that someone has been notified by Test and Trace that they have to self-isolate.
Part of the reason I was pressing the Minister on the legal position was not just from the point of view of enforcement and the police’s ability to enforce self-isolation. If someone is in a household where another person is notified that either they have tested positive or they have to self-isolate, they notify that person. If someone is on a low income and needs the isolation payment but has not been told to self-isolate by Test and Trace, I think I am right in saying that they do not qualify for the payment. One of things I am trying to test is whether the way that the test and trace system has changed the rules on how it notifies people has inadvertently led to more people not qualifying for the payment, which is therefore driving down the rates of self-isolation.
Ms Dorries
Just to save my right hon. Friend having to elongate that point, I have had information that I need to clarify the legal nuance—the point that he raised last time. Where a positive case undertakes to inform their household contacts of their duty to self-isolate, NHS Test and Trace takes details of those contacts and will separately SMS or email them, so that they are in the system and are notified. I do not know whether that makes it any clearer. I would imagine that applies to the points that my right hon. Friend raised about financial remuneration, but also in respect of the legalities about whom the SI applies to and what powers the police have to enforce the SI.
Mr Harper
I am grateful. That should therefore deal with the payment issue.
My second point comes back to the point that the hon. Member for Ellesmere Port and Neston raised about my question in October about the memorandum of understanding. One of the issues that concerns people is the scope of the information that is to be shared and the basis on which it is shared by the Department. If the Department were to publish the memorandum of understanding—the Minister will obviously tell me if it has been published—I cannot see what the problem would be. It seems to be that if there is nothing to hide, if the rules for sharing information are as set out in the explanatory note in the regulations and as the Minister set out, and if there are good, clear reasons for doing these things, that would help allay people’s genuine concerns.
People also have concerns about things for the sake of having concerns about them, and publishing the information and being transparent allays those concerns. It also stops people being able to whip up scare stories. We know there are people who deliberately set out to spread anti-vaxx nonsense, and to scare people about taking the vaccine or getting tested. The more the Government are transparent and open, the more we reduce the opportunity for people to do that.
Can the Minister confirm that the memorandum of understanding has been published? If it has not been published, and given that the House will be asked to approve the regulations—I presume that once the Committee has considered them, they will be on the Order Paper tomorrow—it would be outrageous if the memorandum of understanding was not available to the House at the point at which it was asked to take a decision on the regulations. It seems to me that that would be less than satisfactory.
Can I probe a point that the hon. Member for Ellesmere Port and Neston raised about the necessity to use the emergency procedure to lay the regulations? I completely accept that both at the early stage of the pandemic and at certain stages throughout it, there have been times when it has been necessary for Ministers, even subsequent to their commitment to coming to the House in advance, to legislate using the emergency powers under section 45R of the Public Health (Control of Disease) Act 1984 and then get Parliament to sign them off afterwards.
An obvious example was when we saw the new variant spreading very quickly. It was, I think, after Parliament had risen for Christmas. I agree it was necessary for the Government to take steps and then get the House to sign them off. To be fair, the Government did so. They recalled Parliament and held a debate at the earliest opportunity, and that was absolutely right.
In the present case, I do not understand what the urgency was when the need for the regulations was identified. Why was it not possible, a few days later, simply to have them debated by the House? I ask that because paragraph 3.3 of the explanatory memorandum states that
“it has become clear that changes around data sharing are necessary to strengthen the effectiveness of the current system.”
However, no further details are given.
Later, under the heading of “Policy background”, paragraph 7.4 includes the words:
“Feedback from policing suggests additional data”.
I should welcome more clarity from the Minister about what exactly suggested to the Department that more data was needed. What information did the Department get from policing? The memorandum is a bit vague about what “policing” means. It does not say whether it means the National Police Chiefs’ Council, individual police forces, or what.
What information was received from the police to suggest that they needed more data? When did that take place? Why was it necessary for the regulations to be made by Ministers and to come into force a few hours after they were made, before Parliament was given the opportunity to debate them?
The issue is important because it is important that the regulations be proportionate. The Minister used that word several times, and the statutory instrument states that the Secretary of State considers them a “proportionate” response. We need to know what evidence there is of people not following their legal duty to self-isolate. How many people, for example, who were under a legal duty to self-isolate were not doing so, and what is the evidence from behavioural science—the hon. Member for Ellesmere Port and Neston quoted a member of SPI-M, part of the SAGE committee, about that—that the changes in the regulations will improve compliance and lead to more people self-isolating than the opposite?
The Secretary of State is said to be satisfied on the legal test that the provisions are a proportionate response, and in order to be satisfied about that he must have data about it available to him. It would be helpful if the Minister would furnish the Committee with that information. That would also enable us to judge whether it was appropriate for the measures to be made in advance and put into law before the House had a chance to consider them.
Having discussed the background, I have some specific questions about what information can be shared, and in what circumstances. Some of those would be answered if the memorandum of understanding were available. The Minister set out clearly that it would include information on the individual’s date of birth, the means by which they were notified—whether their postal address, telephone number or email address was used—and whether they are participating in coronavirus-related research. I would be grateful if she would confirm that that means just the fact of participation in the research, with no further details about what the research is. The final aspect was about whether someone had to self-isolate because of receiving a positive test, or being a contact. The reason why that is important, and why the regulations have caused some concern, is that if someone tests positive, that is health information. As the hon. Member for Ellesmere Port and Neston highlighted, under data protection regulations, health information is a specific category that is very sensitive.
Members of Parliament know that there is a general assumption, set out in law, that when we contact organisations on behalf of our constituents, those organisations are entitled to presume that we have the constituents’ consent, and that a specific document is not required as evidence of that in each case; however, quite often with health data, the NHS will insist on a specific piece of information, showing a constituent’s explicit consent, before it will disclose health information. That is, rightly, because the health information is very sensitive. I want to know why Ministers feel that disclosing health information to the police is essential to carrying out this law enforcement, and whether it is proportionate to the problem that was being encountered when the information could not be disclosed. That is the implicit assumption.
I am also concerned about the uses to which the police can put the information, and how they get it, which would again be covered by the memorandum of understanding. First, it is not clear what the mechanism is for the police to get the information. Does the NHS choose information to send to the police—such as information about people who have tested positive or have positive contacts—for the police to do proactive enforcement work, or do the police have to approach the Department of Health and Social Care if they receive information about an individual that leads them to believe that the individual has a duty to self-isolate but is not doing so? I assume that it is the Department, as opposed to individual NHS bodies; it is presumably the Department and NHS Test and Trace, which is part of the Department of Health.
Do the police have to ask for the information on that individual, and what information does the Department ask for to evidence the fact that the police have a reasonable basis for wanting that health information? In other words, can the police choose anybody they feel like, contact NHS Test and Trace and say, “Can I have information about whether this individual has tested positive for coronavirus?” or do they have to have some information that gives them reasonable grounds for thinking that a criminal offence is taking place?
That is really important, because it would put people’s minds at rest. If a large-scale piece of data was being transferred, that might not put their minds at rest, but it is something that Parliament should know about. Is the information proactively sent from Test and Trace to the police for enforcement, or do the police have to ask for it, and are they able to do so—and will the Department release it—only if there are good grounds for suspecting that a criminal offence is being committed?
The final area concerns contacts, and the extent to which the police can use the information to go enforcing down the chain of contacts. In other words, if they get information that someone has tested positive for coronavirus, can they then make inquiries about whether that person’s contacts have a legal duty to self-isolate, or does responsibility for that sit with Test and Trace?
I ask those questions because there is anecdotal information that some people are worried about the impact of the legal duty on their contacts, in terms of their not being able to work and not having enough income. Let us be frank: there are people who engage with the police on, as it were, a professional basis for reasons not to do with coronavirus who may well feel that they do not want to go anywhere near the police, and therefore will not do what they should under a public health remit. If they thought that the police could go fishing around their contacts and get information about who they meet and when they meet them, they would not disclose it to Test and Trace. They would not engage with any of the public health information at all, and by introducing these measures we would have made ourselves not safer, but less safe.
A very good example, which I support, is what the Government have announced today. As a former Immigration Minister, I welcome the fact that the Government have said that even people who are in the United Kingdom unlawfully should contact the NHS and get a vaccine, and no steps will be taken, as a result of their doing so, to deal with the fact that they are in the country unlawfully. It is in all our interests that that essential public health measure, rather than the legal need to deal with the fact that they are in the country unlawfully, comes first, so Ministers have made the right choice. That is why I want to understand whether there is the right balance in the regulations, and I want to know that we are focusing on public health and reducing the effective transmission of the virus rather than inadvertently putting sticks in place—to use the words of the hon. Member for Ellesmere Port and Neston—and making things worse rather than better. I would be grateful if the Minister could answer those few questions.
Ms Dorries
That was a large number of questions covering a number of points. I know that officials are furiously trying to group them at the moment. I will do my best to answer them as well as I can. If there are any that I do not answer, I give the hon. Member for Ellesmere Port and Neston and my right hon. Friend the Member for Forest of Dean absolute assurance that they will be written to quickly with more detailed answers.
The first point raised by the hon. Gentleman was about why the regulations have come in after the event. Public health underpins what we are doing today. My right hon. Friend’s last question was about this being a public health initiative, and not a stick or a means of taking away people’s freedoms for the sake of it. That is absolutely not what the regulations are about; they are very much a response to the South African variant. We need to do what we can to ensure that people self-isolate when they are supposed to, that they are deterred from gathering in groups and that we do as much as we possibly can, using the instrument of the law, to protect the health of the nation.
Coronavirus is a brand-new virus, and we knew nothing of its biology or pathology when it landed on our shores this time last year. One thing that I have learned since then as a Health Minister is that when the virus mutates—there have so far been more than 10,000 mutations—the figures go in only one direction when they start to rise. They do not rise to small numbers and then suddenly drop off and disappear without very restrictive action, such as that taken in China and other countries where there is a much stronger social contract with the population.
We move very quickly, but the virus moves faster. It would be wrong of us, as a Government, to see a variant such as the South African one and not look at what further public health measures we can put in place now to protect the health of the nation and stop the variant rising.
Ms Dorries
As I said in my opening remarks, we know that the virus, in whatever mutation, transmits well indoors with groups of people who are not socially distancing and who are close to each other. That is true whether it is the South African variant or the current dominant variant in the UK. We know from experience, from weddings and other gatherings, that it transmits when people are together indoors in numbers. Our objective is to stop the virus transmitting and to keep the R number low.
The hon. Member for Ellesmere Port and Neston raised a number of points about the police. He asked what information we had about the police wanting the measures to be put in place. The National Police Chiefs’ Council fed back to us that police needed more information on someone to whom they may need to issue a fixed penalty notice. If they do not have the information to say, “Yes, this person has a legal responsibility to self-isolate,” it puts them in a very difficult position. This information is not used in the pursuit of any other crimes, or in any other way whatsoever. It is used for the purpose of a FPN, in order to deter others from breaking their legal responsibility to self-isolate when they have been identified as testing positive.
The hon. Gentleman asked whether there was additional funding for the police to carry out this work. We have given them over £30 million, again in consultation with the NPCC. We are responding to a request from the police. They do not want to issue fixed penalty notices to someone who is telling them, “No, this is a mistake; I don’t have a responsibility to self-isolate. No, I’m not covid positive. No, I haven’t been in contact.” They need the evidence. They need to be able to say, “We know that you are somebody who has been asked to self-isolate.”
Ms Dorries
I will just finish my point to the hon. Member for Ellesmere Port and Neston. On his comments about stick and carrot, the police have had a great deal of extra responsibility put on their shoulders. There have been times when they have exercised what they call the four Es. It is not about enforcement and a heavy hand.
As the hon. Gentleman knows, because we have discussed this before, it is about encouragement, explaining and helping people to understand their social responsibility, both towards the people that they are with and in terms of keeping the virus down. It is not a case of the police going in and handing out fixed penalty notices. It is about explaining to people what is expected of them once they have received a notification that they are a close contact or they have tested positive, and their responsibility is to self-isolate. This is about encouraging people to comply with the regulations more than it is about hitting people with a stick.
Both my right hon. Friend and the hon. Gentleman spoke about the memorandum of understanding. I understand that it is between the Department of Health and Social Care and the Home Office. I will make some further inquiries about how that stands. I am not fully aware of the details, and I will get back to my right hon. Friend and the hon. Gentleman about that.
I was asked if the police had to request information on an individual or if they had access to the database. My understanding is that the police do not have open access to the Test and Trace database. This is about information on a need to know basis, when the police have been given information or when they are aware, or they suspect, that people are breaking the law. The police do not just access the database and take the information from it. My right hon. Friend and I have been in this place for a long time together, so he should know that I would not be happy with such a situation, purely from the point of view of civil liberties; I know he would not be happy with it either. The police have access to data that they request. I will write to him with further information on that, because there are many legal points around it. I know how thorough he is, and he will want those questions answered.
Mr Harper
Can I press the Minister on that? I am not sure that her answer has helped, because she said that the memorandum of understanding was between the DHSC and the Home Office. I presume that individual police forces, not the Home Office, access the information, although I do not know that because we have not seen the memorandum. That is the whole point about publishing the MOU—it would reassure us.
I think the Minister has confirmed that the police would have to suspect an offence was being carried out in order to get information. We are still not clear about who asks for the information, who discloses it and who makes the decision about whether to disclose it, to whom and what other information is disclosed.
Those are the things that are worrying people; if we can all be reassured about them, I think a lot of people will then stop being worried about them. The Minister herself is an experienced medical practitioner—a trained and qualified nurse—so she will know how important it is that medical information is not disclosed beyond the needs for which it was ascertained in the first place, and also how sensitive such information is.
Ms Dorries
We are totally in tune on that. In terms of the present system of information, I misspoke: it is a memorandum of understanding between the Department of Health and Social Care and policing, not the Home Office—I should be quite clear on that. My apologies—I misspoke there.
The present system of information-sharing with the police is reactive; as I said, it is based on the police receiving information from Test and Trace following a report of a suspected breach of the regulations—I probably said that more clumsily in my previous answer. It is when somebody has contacted the police to say that they believe somebody is breaking the regulations, or when there is a gathering of people—I think we called it a “rave” in the regulations—and somebody has reported that a gathering is taking place, and some of those people should be isolating.
Mr Harper
Just to be clear—I hope this will be my last question for the Minister—if, say, somebody’s neighbour rings up the police and says, “I think Mrs Bloggins has tested positive for coronavirus and isn’t self-isolating,” is that sufficient grounds for the police then to be given confidential health information about Mrs Bloggins, or does there have to be a bit more to it than somebody just ringing up and telling them something? I ask that because I think this is the bit that people are worried about—the basis on which the police asked for this information and the basis on which the DHSC will then give it to them. Again, it may be that all these questions are answered in the memorandum of understanding, in which case I really do think that if the Minister published it everyone would probably let out a big sigh of relief and would not be very worried about this—I hope that that is what we would find.
Ms Dorries
Our police are very responsible individuals. If they receive a report that somebody is believed to be breaking regulations, or breaking isolation, they will not automatically ask Test and Trace for the individual’s information before they have carried out an assessment of the situation. They would need to clarify for themselves whether a breach was actually taking place, such as a breach of the numbers—for example, if it was not a single-household individual mixing within their bubble. They would have to assess the situation and see if the regulations were being broken. If they were being broken, the police would have the right to revert to Test and Trace to ask for clarification on the individual’s details.
Both my right hon. Friend and the hon. Gentleman are pursuing a definition—as my right hon. Friend knows well—in legal terms within the legislation. I will need to seek legal clarification and write to both of them with the details on that point.
Ms Dorries
I completely agree. I have just been informed, in the form of our old notes, that the memorandum of understanding is currently being updated to reflect feedback from the Information Commissioner’s Office and the recent changes made by this SI.
Mr Harper
This is my final point, and it is probably less for the Minister and more for her colleagues in the Whips’ Office. There are a number of complex legal questions, which the Minister says she will write to the Committee about. That is perfectly understandable, but may I ask for an assurance, either from her or from those who are listening, that the House will not be asked to take a decision on this statutory instrument until the memorandum of understanding has been published and she has furnished the Committee, and indeed the House, with answers to the questions that have been asked? It would not be acceptable for us to ask questions and for her reasonably to go off and make inquiries, and then for the House to be asked to make a decision tomorrow before Members have been furnished with that information. That would not be an appropriate way to behave, especially as the regulations have come into force before being debated by the House. If she cannot give that assurance, I hope that others are listening and will feed that request back through the usual channels.
Ms Dorries
I thank my right hon. Friend for his points. As a former Chief Whip, he knows that these conversations will be taking place through the usual channels. I am glad that his comment was not directed toward me, because, as he also knows, the decision does not rest with me.
My closing remarks will cover some of the points that have been raised, but if I do not have the answers to any of them now, I will, as always, respond in writing. I really do thank both my right hon. Friend and the hon. Gentleman for the important contributions they have made today. The hon. Gentleman did not go too far outside the scope of the SI this time, as he often does. He usually goes miles off-piste, but today he was very well behaved, and I thank him for that. I absolutely take on board the point made by my right hon. Friend. When we are fighting a virus, with the Department of Health, public health bodies, SAGE and everyone else involved, the probing questions asked here help to create better laws and a better process. Hopefully, we are all trying to do the same thing—to get back to normal as soon as it is safely possible to do so. Anyone’s efforts as part of this process are as valuable as everyone else’s, so I thank my right hon. Friend and the hon. Gentleman for their probing questions and for pushing me on certain points, because that will create better answers.
The Government have always been clear that the highest priority is managing this national crisis, protecting the public and saving lives. As I stated in my opening remarks, the amendments in the SIs are necessary and proportionate for legal coherence and clarification. [Interruption.] Don’t worry, I haven’t got covid; I coughed because I have been talking so long. The ability to enforce more effectively and issue enhanced FPNs will ensure that we limit the spread of the virus and increase compliance, protect the NHS and safeguard public health.
Coronavirus remains a serious threat. The current level of confirmed cases and the identification of new, more transmissible variants of covid-19 have reinforced existing patterns. As during the first peak, we are witnessing a high number of infections, hospital and intensive care unit admissions and, sadly, high mortality rates. Even when mortality rates are not high—there are dips—that does not mean that our ICU beds are not full of people being treated for covid. If we are managing to keep people alive, that is a good thing, but it does not mean that beds are not full or that we are not trying to protect our NHS and prevent it from falling over. We continue to mitigate the threat to our NHS before it becomes overwhelmed, and strive to give it the best ability to provide a safe and effective service for all. Protecting our NHS is about keeping beds available and enough staff on the wards to treat people when they come in and need that treatment in order to save their lives.
It has been necessary to make a number of minor technical amendments to the all tiers regulations to provide coherency and ensure that there is no confusion about these measures, all of which have been implemented to limit transmission and reduce the spread of the virus.
As set out previously, the intentions of the amendments to the all tiers and self-isolation regulations are threefold: to reduce contact between people who do not live together, to drive down transmission; to increase fixed penalty notices for those caught attending illegal gatherings, to increase compliance; and to enhance data-sharing with the police to improve the evidentiary chain, to support effective enforcement against those who breach their duty to self-isolate. To issue a fixed penalty notice, the police need to be satisfied that they are engaging with the right person—this comes back to the substantive point that was raised a number of times during this debate: they need to be sure that they are engaging with, and issuing the FPN to, the right person—that the person is aware of their duty to self-isolate, and that the person has indeed breached that legal requirement. These changes to the self-isolation regulations will support the police in taking effective enforcement action when that is appropriate.
Fixed penalty notices for those caught attending illegal gatherings, such as house parties, of more than 15 people will double for each successive offence, up to a maximum of £6,400. There is one point on which I will not have to write to the hon. Member for Ellesmere Port and Neston. He asked, “Why 15? Why is that the number?” This will just take the number of questions to be answered down by one. This is the new fine for attending larger gatherings, where there is a higher risk of spreading the virus, which goes back to my point that we know how and where the virus travels and where it is most transmissible. It was the scientists who decided this: it was seen as the right level, balancing public health risk versus social impact—for example, the impact on larger households. There continues to be a fine for breaching covid regulations, including by attending a gathering of 15 or fewer.
HEALTH PROTECTION (CORONAVIRUS, RESTRICTIONS) (ALL TIERS) (ENGLAND) (AMENDMENT) REGULATIONS 2021
HEALTH PROTECTION (CORONAVIRUS, RESTRICTIONS) (ALL TIERS AND SELF-ISOLATION) (ENGLAND) (AMENDMENT) REGULATIONS 2021
Debate between Mark Harper and Nadine Dorries(3 years, 10 months ago)
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Ms Dorries
It is a great pleasure to serve under your chairmanship, Sir David. I hope that the Committee will approve the regulations, which are in the name of my right hon. Friend the Secretary of State for Health and Social Care. I will briefly explain each statutory instrument.
SI No. 2021/53 amends the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 and came into force on 20 January 2021. The need for the changes in it was identified in the ongoing review of regulations. It provides for minor and technical clarifications, including of the fact that competitive sport can continue, that cafés and canteens in all post-16 education and training settings are able to remain open, and that marriages and conversions under the Marriage (Same Sex Couples) Act 2013 are permitted. These changes provide legal certainty that these activities are permitted.
SI No. 2021/97 amends the all tiers regulations and the Health Protection (Coronavirus, Restrictions) (Self-Isolation) (England) Regulations 2020, and came into force on 29 January 2021. It allows for additional data to be shared between NHS Test and Trace and the police for the purpose of effective enforcement of the self-isolation regulations. The statutory instrument also amends the all tiers regulations to introduce a new, higher fixed penalty notice to persons aged 18 or over participating in a gathering of more than 15 people in a private dwelling, in education accommodation, or at an indoor rave. The first penalty is £800, reduced to £400 with early repayment. Subsequent offences double the size of the fixed penalty, to a maximum of £6,400.
I will now outline in further detail the main changes made by SI No. 2021/97. As I noted, the main amendment it makes to the all tiers regulations is that it provides for FPNs that can be levied against individuals who participate in gatherings of more than 15 people in a range of settings. We have introduced a new fixed penalty notice, because although the majority of people follow covid regulations and guidance, it is important that the police have the right tools to take action against the small number of people who break the rules. We know that the virus is transmitted through close contact; as a result, larger gatherings of people who do not live together pose an increased risk of transmission. The existing regulations already penalise people who organise unlawful gatherings of 30 or more people, but there was no enhanced penalty for those attending, other than the £200 FPN for breaching social contact and gathering rules. This new, larger fixed penalty notice will support wider efforts to improve compliance with the regulations, thereby helping to bring transmission rates down.
I will now focus on changes to the self-isolation regulations, as I am aware that many Members are most interested in this. The self-isolation regulations came into force on 28 September 2020 and make self-isolation a legal requirement for individuals who have been notified by NHS Test and Trace that they have tested positive for covid-19 or are a close contact of such a person, subject to a number of exemptions. Non-adherence to the regulations can result in an FPN ranging from £1,000 to £10,000, and failure to pay the FPN can result in court action and conviction. The SIs being debated today do not change those levels of FPN.
In order for police to issue FPNs, they need sufficient information about the suspected breach, and evidence that the individual is supposed to be self-isolating and has received a notification from NHS Test and Trace to do so. This SI allows for the minimum necessary information to be shared with the police in order for them to enforce self-isolation. Four key changes have been made. The first is the addition of date of birth and email address, which will help strengthen the evidential base by enabling the police to verify the identity of someone who is suspected of a breach. Secondly, information on whether the individual is participating in coronavirus-related research will be used, where available, to determine whether the subject is permitted to leave their place of self-isolation under an exemption in the regulations. Thirdly, the SI permits the sharing of notification information, including the method of notification, the contact details—
Mr Mark Harper (Forest of Dean) (Con)
On the point of notification information, I understand that now, to improve the contact rates, if Test and Trace notifies someone that they have to self-isolate, and there are other members of the household, that person is asked to notify those members and confirm that they have been notified. For the purposes of the regulations, if someone has notified members of their household, does that count as a notification that makes those members legally have to self-isolate? Is the information that someone has passed on to them communicated to the police in some way, so that they can take action under the regulations?
Ms Dorries
The only time the police would contact a person would be if a breach had taken place. On the point about the relatives, household members or close contacts of somebody who has been notified by NHS Test and Trace that they are positive, my right hon. Friend asks whether the data of those people who the person has taken on the responsibility to notify will be transferred to the police. I will ensure that I get a swift response to that question.
Ms Dorries
I would say yes to the second half of my right hon. Friend’s question. Again, I will seek legal clarification on this issue, but if someone has been notified that they have been in close contact with somebody who has tested positive, they have a responsibility to self-isolate. On whether that person’s details are put on the NHS Test and Trace database, and on whether the police can therefore be notified if they breach the social contract that we have with Test and Trace, I will need to find out for my right hon. Friend.
Mr Harper
This will be the last question. I am pressing her because it was very clear that the initial self-isolation regulations, which, for the avoidance of doubt, I strongly support, applied only to people whom the Test and Trace service had notified. There was no legal requirement for a person to self-isolate if, for example, the app told them to. That is why I want to be clear. I completely agree that people should self-isolate, but there is a real difference between whether someone should, and whether there is a legal duty on them to do so or face criminal action from the police.
Ms Dorries
I take my right hon. Friend’s point entirely. It is a legal point, and I will get legal clarification for him swiftly, if not before the end of the debate. I will certainly make sure that question is answered, because there is a legal nuance on where the legal responsibility lies. I welcome his intervention—in fact, interventions from Members on both sides of the House—because they challenge us on how we deal with this new virus, and the world of covid regulations and social distancing. They challenge us all the time to think about these points and to do things better.
Thirdly, the SI permits the sharing of notification information, including the method of notification, the contact details, and a copy of the notification issued to the person informing them of their duty to self-isolate. As my right hon. Friend pointed out, that happens when someone is informed by NHS Test and Trace that they have to self-isolate. That is so that the police can confirm that the individual received a notification to self-isolate and was aware of their legal duty to do so. If required, the police can use that copy to remind the individual, as I have said.
Finally, the SI allows information to be shared on whether the suspected breach is a positive case or a close contact. The police require a distinction to be made between the two types of cases—I think I am answering my right hon. Friend’s question; perhaps I am not—and the relative circumstances may need to be evidenced by the police in criminal proceedings. It is crucial that the police know the precise circumstances and the chain of events that may need to be investigated and evidenced in each individual case.
That data will primarily be shared with the police where there is a reported breach of self-isolation regulations. This is for the purpose of access. The police do not have direct access to the NHS Test and Trace database and its details on all individuals who need to self-isolate, and that will remain the case. Sharing this additional information is both necessary and proportionate, as it gives the police the information that they need to effectively enforce the law. The police have a role in upholding and enforcing the regulations, and we must ensure that they have the tools necessary to carry out their job efficiently and speedily, so that we can deter people from breaching self-isolation at a time when adherence to self-isolation requirements is crucial.
Above all else, the self-isolation regulations are a safety measure designed to drive up compliance among those most at risk of spreading the virus. Any improvement to the way the regulations are upheld will have a positive impact on the public health of the country as a whole by bringing down rates of transmission, protecting the most vulnerable, reducing pressures on healthcare and aiding a return to normality for us all.
Both statutory instruments were introduced using emergency powers, so that we could respond quickly to the threat to public health posed by covid-19. The urgency of SI No. 2021/97 stems from the critical national situation, the need for the police to be able to conduct their duties efficiently in this context, and the crucial impact that it should have on improving compliance with self-isolation and bringing down the R number.
The SIs demonstrate our willingness to take tougher action against the most serious breaches of the rules. They are designed to protect us all. We keep wider regulations under ongoing review and clarify them as appropriate. We also understand that it is crucial to take steps to allow people to return to a more normal way of life. The most effective way of doing that is by reducing transmission of the virus while we continue to deliver our vaccination programme. The SIs set out to achieve that, and should therefore remain in force. We are committed to ensuring that the measures are in place only for as long as is necessary. I commend the regulations to the Committee.
Mr Harper
It is a pleasure to serve under your chairmanship, Sir David. It is also a great pleasure to see the Minister in her place. I know that she is assiduous in her duties. I am pleased that she answered my earlier intervention in the right spirit, which is the spirit in which I am asking the questions. I genuinely believe that asking questions, which Ministers have to answer, means that you get better laws and regulations, and a good Minister should never be afraid of scrutiny. I am grateful to her for taking my intervention in that spirit.
By way of opening, I should say that I support the principle that people who test positive for coronavirus, or who are contacts of people who test positive, should self-isolate, to protect those around them and reduce the rate of infection. The real question that faces us and is at the heart of these enforcement powers is this: how do we more effectively get people to self-isolate? Is it with the stick or the carrot? That is why I have some concerns about the approach set out in this SI. I am particularly concerned that sharing information with law enforcement authorities does not lead to the best public health response.
I asked the Minister a question, and she kindly said that she would get back to me with a response. There is a second part to my question, which the hon. Member for Ellesmere Port and Neston touched on. I think I am right in saying—I am very happy to be corrected if I am not—that one of the qualification criteria for the isolation payment, which is very important for people on lower incomes, is that someone has been notified by Test and Trace that they have to self-isolate.
Part of the reason I was pressing the Minister on the legal position was not just from the point of view of enforcement and the police’s ability to enforce self-isolation. If someone is in a household where another person is notified that either they have tested positive or they have to self-isolate, they notify that person. If someone is on a low income and needs the isolation payment but has not been told to self-isolate by Test and Trace, I think I am right in saying that they do not qualify for the payment. One of things I am trying to test is whether the way that the test and trace system has changed the rules on how it notifies people has inadvertently led to more people not qualifying for the payment, which is therefore driving down the rates of self-isolation.
Ms Dorries
Just to save my right hon. Friend having to elongate that point, I have had information that I need to clarify the legal nuance—the point that he raised last time. Where a positive case undertakes to inform their household contacts of their duty to self-isolate, NHS Test and Trace takes details of those contacts and will separately SMS or email them, so that they are in the system and are notified. I do not know whether that makes it any clearer. I would imagine that applies to the points that my right hon. Friend raised about financial remuneration, but also in respect of the legalities about whom the SI applies to and what powers the police have to enforce the SI.
Mr Harper
I am grateful. That should therefore deal with the payment issue.
My second point comes back to the point that the hon. Member for Ellesmere Port and Neston raised about my question in October about the memorandum of understanding. One of the issues that concerns people is the scope of the information that is to be shared and the basis on which it is shared by the Department. If the Department were to publish the memorandum of understanding—the Minister will obviously tell me if it has been published—I cannot see what the problem would be. It seems to be that if there is nothing to hide, if the rules for sharing information are as set out in the explanatory note in the regulations and as the Minister set out, and if there are good, clear reasons for doing these things, that would help allay people’s genuine concerns.
People also have concerns about things for the sake of having concerns about them, and publishing the information and being transparent allays those concerns. It also stops people being able to whip up scare stories. We know there are people who deliberately set out to spread anti-vaxx nonsense, and to scare people about taking the vaccine or getting tested. The more the Government are transparent and open, the more we reduce the opportunity for people to do that.
Can the Minister confirm that the memorandum of understanding has been published? If it has not been published, and given that the House will be asked to approve the regulations—I presume that once the Committee has considered them, they will be on the Order Paper tomorrow—it would be outrageous if the memorandum of understanding was not available to the House at the point at which it was asked to take a decision on the regulations. It seems to me that that would be less than satisfactory.
Can I probe a point that the hon. Member for Ellesmere Port and Neston raised about the necessity to use the emergency procedure to lay the regulations? I completely accept that both at the early stage of the pandemic and at certain stages throughout it, there have been times when it has been necessary for Ministers, even subsequent to their commitment to coming to the House in advance, to legislate using the emergency powers under section 45R of the Public Health (Control of Disease) Act 1984 and then get Parliament to sign them off afterwards.
An obvious example was when we saw the new variant spreading very quickly. It was, I think, after Parliament had risen for Christmas. I agree it was necessary for the Government to take steps and then get the House to sign them off. To be fair, the Government did so. They recalled Parliament and held a debate at the earliest opportunity, and that was absolutely right.
In the present case, I do not understand what the urgency was when the need for the regulations was identified. Why was it not possible, a few days later, simply to have them debated by the House? I ask that because paragraph 3.3 of the explanatory memorandum states that
“it has become clear that changes around data sharing are necessary to strengthen the effectiveness of the current system.”
However, no further details are given.
Later, under the heading of “Policy background”, paragraph 7.4 includes the words:
“Feedback from policing suggests additional data”.
I should welcome more clarity from the Minister about what exactly suggested to the Department that more data was needed. What information did the Department get from policing? The memorandum is a bit vague about what “policing” means. It does not say whether it means the National Police Chiefs’ Council, individual police forces, or what.
What information was received from the police to suggest that they needed more data? When did that take place? Why was it necessary for the regulations to be made by Ministers and to come into force a few hours after they were made, before Parliament was given the opportunity to debate them?
The issue is important because it is important that the regulations be proportionate. The Minister used that word several times, and the statutory instrument states that the Secretary of State considers them a “proportionate” response. We need to know what evidence there is of people not following their legal duty to self-isolate. How many people, for example, who were under a legal duty to self-isolate were not doing so, and what is the evidence from behavioural science—the hon. Member for Ellesmere Port and Neston quoted a member of SPI-M, part of the SAGE committee, about that—that the changes in the regulations will improve compliance and lead to more people self-isolating than the opposite?
The Secretary of State is said to be satisfied on the legal test that the provisions are a proportionate response, and in order to be satisfied about that he must have data about it available to him. It would be helpful if the Minister would furnish the Committee with that information. That would also enable us to judge whether it was appropriate for the measures to be made in advance and put into law before the House had a chance to consider them.
Having discussed the background, I have some specific questions about what information can be shared, and in what circumstances. Some of those would be answered if the memorandum of understanding were available. The Minister set out clearly that it would include information on the individual’s date of birth, the means by which they were notified—whether their postal address, telephone number or email address was used—and whether they are participating in coronavirus-related research. I would be grateful if she would confirm that that means just the fact of participation in the research, with no further details about what the research is. The final aspect was about whether someone had to self-isolate because of receiving a positive test, or being a contact. The reason why that is important, and why the regulations have caused some concern, is that if someone tests positive, that is health information. As the hon. Member for Ellesmere Port and Neston highlighted, under data protection regulations, health information is a specific category that is very sensitive.
Members of Parliament know that there is a general assumption, set out in law, that when we contact organisations on behalf of our constituents, those organisations are entitled to presume that we have the constituents’ consent, and that a specific document is not required as evidence of that in each case; however, quite often with health data, the NHS will insist on a specific piece of information, showing a constituent’s explicit consent, before it will disclose health information. That is, rightly, because the health information is very sensitive. I want to know why Ministers feel that disclosing health information to the police is essential to carrying out this law enforcement, and whether it is proportionate to the problem that was being encountered when the information could not be disclosed. That is the implicit assumption.
I am also concerned about the uses to which the police can put the information, and how they get it, which would again be covered by the memorandum of understanding. First, it is not clear what the mechanism is for the police to get the information. Does the NHS choose information to send to the police—such as information about people who have tested positive or have positive contacts—for the police to do proactive enforcement work, or do the police have to approach the Department of Health and Social Care if they receive information about an individual that leads them to believe that the individual has a duty to self-isolate but is not doing so? I assume that it is the Department, as opposed to individual NHS bodies; it is presumably the Department and NHS Test and Trace, which is part of the Department of Health.
Do the police have to ask for the information on that individual, and what information does the Department ask for to evidence the fact that the police have a reasonable basis for wanting that health information? In other words, can the police choose anybody they feel like, contact NHS Test and Trace and say, “Can I have information about whether this individual has tested positive for coronavirus?” or do they have to have some information that gives them reasonable grounds for thinking that a criminal offence is taking place?
That is really important, because it would put people’s minds at rest. If a large-scale piece of data was being transferred, that might not put their minds at rest, but it is something that Parliament should know about. Is the information proactively sent from Test and Trace to the police for enforcement, or do the police have to ask for it, and are they able to do so—and will the Department release it—only if there are good grounds for suspecting that a criminal offence is being committed?
The final area concerns contacts, and the extent to which the police can use the information to go enforcing down the chain of contacts. In other words, if they get information that someone has tested positive for coronavirus, can they then make inquiries about whether that person’s contacts have a legal duty to self-isolate, or does responsibility for that sit with Test and Trace?
I ask those questions because there is anecdotal information that some people are worried about the impact of the legal duty on their contacts, in terms of their not being able to work and not having enough income. Let us be frank: there are people who engage with the police on, as it were, a professional basis for reasons not to do with coronavirus who may well feel that they do not want to go anywhere near the police, and therefore will not do what they should under a public health remit. If they thought that the police could go fishing around their contacts and get information about who they meet and when they meet them, they would not disclose it to Test and Trace. They would not engage with any of the public health information at all, and by introducing these measures we would have made ourselves not safer, but less safe.
A very good example, which I support, is what the Government have announced today. As a former Immigration Minister, I welcome the fact that the Government have said that even people who are in the United Kingdom unlawfully should contact the NHS and get a vaccine, and no steps will be taken, as a result of their doing so, to deal with the fact that they are in the country unlawfully. It is in all our interests that that essential public health measure, rather than the legal need to deal with the fact that they are in the country unlawfully, comes first, so Ministers have made the right choice. That is why I want to understand whether there is the right balance in the regulations, and I want to know that we are focusing on public health and reducing the effective transmission of the virus rather than inadvertently putting sticks in place—to use the words of the hon. Member for Ellesmere Port and Neston—and making things worse rather than better. I would be grateful if the Minister could answer those few questions.
Ms Dorries
As I said in my opening remarks, we know that the virus, in whatever mutation, transmits well indoors with groups of people who are not socially distancing and who are close to each other. That is true whether it is the South African variant or the current dominant variant in the UK. We know from experience, from weddings and other gatherings, that it transmits when people are together indoors in numbers. Our objective is to stop the virus transmitting and to keep the R number low.
The hon. Member for Ellesmere Port and Neston raised a number of points about the police. He asked what information we had about the police wanting the measures to be put in place. The National Police Chiefs’ Council fed back to us that police needed more information on someone to whom they may need to issue a fixed penalty notice. If they do not have the information to say, “Yes, this person has a legal responsibility to self-isolate,” it puts them in a very difficult position. This information is not used in the pursuit of any other crimes, or in any other way whatsoever. It is used for the purpose of a FPN, in order to deter others from breaking their legal responsibility to self-isolate when they have been identified as testing positive.
The hon. Gentleman asked whether there was additional funding for the police to carry out this work. We have given them over £30 million, again in consultation with the NPCC. We are responding to a request from the police. They do not want to issue fixed penalty notices to someone who is telling them, “No, this is a mistake; I don’t have a responsibility to self-isolate. No, I’m not covid positive. No, I haven’t been in contact.” They need the evidence. They need to be able to say, “We know that you are somebody who has been asked to self-isolate.”
Ms Dorries
I will just finish my point to the hon. Member for Ellesmere Port and Neston. On his comments about stick and carrot, the police have had a great deal of extra responsibility put on their shoulders. There have been times when they have exercised what they call the four Es. It is not about enforcement and a heavy hand.
As the hon. Gentleman knows, because we have discussed this before, it is about encouragement, explaining and helping people to understand their social responsibility, both towards the people that they are with and in terms of keeping the virus down. It is not a case of the police going in and handing out fixed penalty notices. It is about explaining to people what is expected of them once they have received a notification that they are a close contact or they have tested positive, and their responsibility is to self-isolate. This is about encouraging people to comply with the regulations more than it is about hitting people with a stick.
Both my right hon. Friend and the hon. Gentleman spoke about the memorandum of understanding. I understand that it is between the Department of Health and Social Care and the Home Office. I will make some further inquiries about how that stands. I am not fully aware of the details, and I will get back to my right hon. Friend and the hon. Gentleman about that.
I was asked if the police had to request information on an individual or if they had access to the database. My understanding is that the police do not have open access to the Test and Trace database. This is about information on a need to know basis, when the police have been given information or when they are aware, or they suspect, that people are breaking the law. The police do not just access the database and take the information from it. My right hon. Friend and I have been in this place for a long time together, so he should know that I would not be happy with such a situation, purely from the point of view of civil liberties; I know he would not be happy with it either. The police have access to data that they request. I will write to him with further information on that, because there are many legal points around it. I know how thorough he is, and he will want those questions answered.
Mr Harper
Can I press the Minister on that? I am not sure that her answer has helped, because she said that the memorandum of understanding was between the DHSC and the Home Office. I presume that individual police forces, not the Home Office, access the information, although I do not know that because we have not seen the memorandum. That is the whole point about publishing the MOU—it would reassure us.
I think the Minister has confirmed that the police would have to suspect an offence was being carried out in order to get information. We are still not clear about who asks for the information, who discloses it and who makes the decision about whether to disclose it, to whom and what other information is disclosed.
Those are the things that are worrying people; if we can all be reassured about them, I think a lot of people will then stop being worried about them. The Minister herself is an experienced medical practitioner—a trained and qualified nurse—so she will know how important it is that medical information is not disclosed beyond the needs for which it was ascertained in the first place, and also how sensitive such information is.
Ms Dorries
We are totally in tune on that. In terms of the present system of information, I misspoke: it is a memorandum of understanding between the Department of Health and Social Care and policing, not the Home Office—I should be quite clear on that. My apologies—I misspoke there.
The present system of information-sharing with the police is reactive; as I said, it is based on the police receiving information from Test and Trace following a report of a suspected breach of the regulations—I probably said that more clumsily in my previous answer. It is when somebody has contacted the police to say that they believe somebody is breaking the regulations, or when there is a gathering of people—I think we called it a “rave” in the regulations—and somebody has reported that a gathering is taking place, and some of those people should be isolating.
Mr Harper
Just to be clear—I hope this will be my last question for the Minister—if, say, somebody’s neighbour rings up the police and says, “I think Mrs Bloggins has tested positive for coronavirus and isn’t self-isolating,” is that sufficient grounds for the police then to be given confidential health information about Mrs Bloggins, or does there have to be a bit more to it than somebody just ringing up and telling them something? I ask that because I think this is the bit that people are worried about—the basis on which the police asked for this information and the basis on which the DHSC will then give it to them. Again, it may be that all these questions are answered in the memorandum of understanding, in which case I really do think that if the Minister published it everyone would probably let out a big sigh of relief and would not be very worried about this—I hope that that is what we would find.
Ms Dorries
Our police are very responsible individuals. If they receive a report that somebody is believed to be breaking regulations, or breaking isolation, they will not automatically ask Test and Trace for the individual’s information before they have carried out an assessment of the situation. They would need to clarify for themselves whether a breach was actually taking place, such as a breach of the numbers—for example, if it was not a single-household individual mixing within their bubble. They would have to assess the situation and see if the regulations were being broken. If they were being broken, the police would have the right to revert to Test and Trace to ask for clarification on the individual’s details.
Both my right hon. Friend and the hon. Gentleman are pursuing a definition—as my right hon. Friend knows well—in legal terms within the legislation. I will need to seek legal clarification and write to both of them with the details on that point.
Ms Dorries
I completely agree. I have just been informed, in the form of our old notes, that the memorandum of understanding is currently being updated to reflect feedback from the Information Commissioner’s Office and the recent changes made by this SI.
Mr Harper
This is my final point, and it is probably less for the Minister and more for her colleagues in the Whips’ Office. There are a number of complex legal questions, which the Minister says she will write to the Committee about. That is perfectly understandable, but may I ask for an assurance, either from her or from those who are listening, that the House will not be asked to take a decision on this statutory instrument until the memorandum of understanding has been published and she has furnished the Committee, and indeed the House, with answers to the questions that have been asked? It would not be acceptable for us to ask questions and for her reasonably to go off and make inquiries, and then for the House to be asked to make a decision tomorrow before Members have been furnished with that information. That would not be an appropriate way to behave, especially as the regulations have come into force before being debated by the House. If she cannot give that assurance, I hope that others are listening and will feed that request back through the usual channels.
Ms Dorries
I thank my right hon. Friend for his points. As a former Chief Whip, he knows that these conversations will be taking place through the usual channels. I am glad that his comment was not directed toward me, because, as he also knows, the decision does not rest with me.
My closing remarks will cover some of the points that have been raised, but if I do not have the answers to any of them now, I will, as always, respond in writing. I really do thank both my right hon. Friend and the hon. Gentleman for the important contributions they have made today. The hon. Gentleman did not go too far outside the scope of the SI this time, as he often does. He usually goes miles off-piste, but today he was very well behaved, and I thank him for that. I absolutely take on board the point made by my right hon. Friend. When we are fighting a virus, with the Department of Health, public health bodies, SAGE and everyone else involved, the probing questions asked here help to create better laws and a better process. Hopefully, we are all trying to do the same thing—to get back to normal as soon as it is safely possible to do so. Anyone’s efforts as part of this process are as valuable as everyone else’s, so I thank my right hon. Friend and the hon. Gentleman for their probing questions and for pushing me on certain points, because that will create better answers.
The Government have always been clear that the highest priority is managing this national crisis, protecting the public and saving lives. As I stated in my opening remarks, the amendments in the SIs are necessary and proportionate for legal coherence and clarification. [Interruption.] Don’t worry, I haven’t got covid; I coughed because I have been talking so long. The ability to enforce more effectively and issue enhanced FPNs will ensure that we limit the spread of the virus and increase compliance, protect the NHS and safeguard public health.
Coronavirus remains a serious threat. The current level of confirmed cases and the identification of new, more transmissible variants of covid-19 have reinforced existing patterns. As during the first peak, we are witnessing a high number of infections, hospital and intensive care unit admissions and, sadly, high mortality rates. Even when mortality rates are not high—there are dips—that does not mean that our ICU beds are not full of people being treated for covid. If we are managing to keep people alive, that is a good thing, but it does not mean that beds are not full or that we are not trying to protect our NHS and prevent it from falling over. We continue to mitigate the threat to our NHS before it becomes overwhelmed, and strive to give it the best ability to provide a safe and effective service for all. Protecting our NHS is about keeping beds available and enough staff on the wards to treat people when they come in and need that treatment in order to save their lives.
It has been necessary to make a number of minor technical amendments to the all tiers regulations to provide coherency and ensure that there is no confusion about these measures, all of which have been implemented to limit transmission and reduce the spread of the virus.
As set out previously, the intentions of the amendments to the all tiers and self-isolation regulations are threefold: to reduce contact between people who do not live together, to drive down transmission; to increase fixed penalty notices for those caught attending illegal gatherings, to increase compliance; and to enhance data-sharing with the police to improve the evidentiary chain, to support effective enforcement against those who breach their duty to self-isolate. To issue a fixed penalty notice, the police need to be satisfied that they are engaging with the right person—this comes back to the substantive point that was raised a number of times during this debate: they need to be sure that they are engaging with, and issuing the FPN to, the right person—that the person is aware of their duty to self-isolate, and that the person has indeed breached that legal requirement. These changes to the self-isolation regulations will support the police in taking effective enforcement action when that is appropriate.
Fixed penalty notices for those caught attending illegal gatherings, such as house parties, of more than 15 people will double for each successive offence, up to a maximum of £6,400. There is one point on which I will not have to write to the hon. Member for Ellesmere Port and Neston. He asked, “Why 15? Why is that the number?” This will just take the number of questions to be answered down by one. This is the new fine for attending larger gatherings, where there is a higher risk of spreading the virus, which goes back to my point that we know how and where the virus travels and where it is most transmissible. It was the scientists who decided this: it was seen as the right level, balancing public health risk versus social impact—for example, the impact on larger households. There continues to be a fine for breaching covid regulations, including by attending a gathering of 15 or fewer.[Official Report, 22 February 2021, Vol. 689, c. 4MC.]