Health Protection (Coronavirus, Restrictions) (England) (No.3) Regulations 2020

Matt Western Excerpts

Monday 7th September 2020 General Committees

[Justin Madders (Ellesmere Port and Neston) (Lab)]

It is a pleasure to see you in the Chair, Ms Ali. I hope that your debut here is as memorable for you as it is for everyone else, and for all the right reasons.

I thank the Minister for her introduction. There was some acknowledgment that we are not yet out of the woods. Yesterday’s Government data showed the number of cases reported in the UK—2,988—was the highest on any single day since 22 May. That was a rise of 1,175 on the previous day. I understand that a similar figure of 2,948 cases has been reported on the Government website today. That trend is going in the wrong direction in terms of what we want to see.

I was surprised that we did not get a statement from the Secretary of State in the House on this today, although I understand he managed to put himself through the rough and tumble of an interview on “Newsbeat” earlier on. If the Minister can comment on the current position and, more importantly, on whether any additional measures are envisaged in relation to this recent rise, I would be grateful if she would set those out in her response. Indeed, if she anticipates a statement from the Secretary of State to the House, I would be grateful if she would indicate that that is the case.

As the Minister said, the regulations came into force on 18 July and give local authorities additional legal powers to those found under public health, environmental health, and health and safety legislation, which enable them to fully implement whatever measures are needed to prevent, protect against, delay or control the incidence or spread of coronavirus in their own areas. As the Minister outlined, this new set of regulations is intended to provide powers to allow local authority decision makers to take action to mitigate against local covid-19 outbreaks, a recognition, perhaps belatedly, that local public health teams know their areas best and are best equipped to deal with local outbreaks.

There are, of course, broad and sweeping powers in these regulations. Everyone understands the enormity of the challenge this country faces. That is why these regulations and powers continue to be necessary. Since the first coronavirus regulations were laid on 10 February, nearly seven months ago, more than 50 different pieces of legislation, including many restricting aspects of our daily lives, including how we live, gather, work and travel, have been introduced. The British people have made enormous personal sacrifices to adhere to them, sometimes at great cost to themselves, their families, their loved ones, their colleagues and their employees.

As we know, even after the figures have been adjusted down, we still have over 41,000 people who have sadly lost their life to this virus. Each life lost is a tragedy and our thoughts remain with their friends and families. It is a measure of the pervasiveness of this virus that despite all the restrictions introduced, legislation passed and efforts made by all around the country we still have such a significant death toll.

As the Minister correctly said, we know that this is far from over. The virus has not gone away. In fact, as I mentioned, the situation appears to be deteriorating. It is clear that despite covid-19 remaining an ongoing threat to public health, we will require regulations to protect our citizens now and for the foreseeable future. Given the future outlook and the desire of Government to avoid another national lockdown, the regulations will allow local restrictions to be introduced. It is right that we look at the suite of powers made available to local authorities, but the powers available are only part of the story; how those powers are exercised and how local councils, businesses and individuals are supported also matter.

Therefore I will again raise our concern that, as in all previous debates on coronavirus regulations, we are debating regulations weeks after they have come into effect—more than six weeks later in this case, as these regulations came into force before the summer recess. As we have said many times, we of course accept that the initial regulations had to be introduced hurriedly, in response to the rising number of infections, but the House has been up and running for many months now, and with Members on both sides of this House and in the other place raising concerns about why time is not being provided to ensure that future changes are debated and therefore have democratic consent before they are introduced, we see no good reason why the Government continue to act in the way they do.

These regulations are too important to be dealt with as an afterthought. They demand full parliamentary scrutiny. The Minister gave assurances that the Government had listened to our concerns and indicated that time was being made to debate the regulations as soon as possible, but I still think that we are behind the curve and I ask her again to feed back to the people who make the decisions on when these matters are debated that we still do not believe that that is being done in a way that respects parliamentary scrutiny.

Equally, it remains unacceptable that we are debating further regulations without the full information regarding any assessment of their impact. Once again, all we have seen published alongside the regulations is an explanatory note telling us that no consultation has been carried out and no regulatory impact assessment undertaken. All new regulations should involve advance warning to allow planning; they should also involve consultation with regions, local authorities and elected Mayors. These regulations provide local public health bodies with significant powers. It seems obvious that they would have a view on those powers, their scope and the resources that they might need to implement them, so it is disappointing to hear that the first time the Local Government Association saw the regulations was when they were published.

The way in which regulations are brought in matters. The Government should not announce changes or restrictions suddenly, with very little notice. It is fine to give local authorities these powers, but what assessment has been made of the financial resources that they may need to actually exercise them? We know that most local authorities, having already suffered years of central Government funding cuts, are struggling with their finances, and that the additional costs associated with covid-19 have not been met in full by Government, so what is the plan to provide assistance to a local authority that may find it necessary to issue dozens of notices in a short space of time? Issuing notices in itself takes some resource, but properly monitoring and enforcing the notices must put an extra burden on local authorities, for which they have not yet received funding, so what resources will the Minister make available in those circumstances?

[Matt Western (Warwick and Leamington) (Lab)]

My hon. Friend is making an important point. As I understand it, other countries such as Greece, which we were discussing in the Chamber a moment ago, have in place penalties that are much higher and much tougher. They seem to me much more ambitious about containing this disease in their communities. Does my hon. Friend agree with me that perhaps this Government lack the ambition to really get to grips with this?

[Justin Madders]

It is not a question of ambition; it is a question of trusting local government and giving it the resources to do the job that it is clearly the most suited, out of everyone in the country, to do. We absolutely can learn from other countries. There are many examples around the world of how different approaches have produced different results.

It is also worth noting that the fines under this regulation for an initial offence are pretty small. Although there is a multiplier effect, a business might decide that it is worth pursuing its activities until the fines reach a level at which that is no longer economic. We will have to see how that works in practice. As we have seen with other coronavirus regulations, the Government have stepped in to increase the fines through statutory instruments, so perhaps that will happen again if we see a problem with this regulation as well.

As I understand it, there is no statutory review clause for the regulations, so they will not even be reviewed at regular intervals. How can that be right? These are new and far-reaching regulations with potentially massive resource implications for local authorities. Although we know that any directions made by local authorities under the powers in this instrument must themselves be reviewed every seven days—a sensible measure that we support—any local restrictions must also have a clear evidence base and rationale behind them, and should be regularly reviewed. That in itself is resource-intensive activity and is not the same as the Government undertaking a detailed and thorough review of whether the regulations themselves are proportionate and effective. Will the Minister commit to reviewing the regulations in due course? Will she commit to producing impact assessments and publishing them alongside such reviews? Most important, will she commit to bringing any future regulations to the House before they come into force?

I do not intend to go into the details of each regulation within the instrument, but as the regulations have been in place for approaching two months now, I want to discuss the issues that local authorities have experienced in implementing them and in the general approach to interactions with local authorities, as it is vital that the Government listen and take urgent steps to learn from their mistakes—and mistakes have been made. As we know, the Government were too slow to act in Leicester, and its local authorities have raised ongoing concerns about the way the Government have handled the situation there. It is widely believed that if Leicester had been able to access the testing data much sooner—I will come back to the wider issues with testing data later— it could have avoided a lockdown, but that did not happen.

The situation in Leicester was flagged in Government on 8 June, but another 10 days passed before the Health Secretary announced that Leicester had a problem, and it was not until 30 June that Leicester went into lockdown for two weeks. Following that, although the lockdown was extended for another two weeks in mid-July, it was not until the end of July, following ongoing pressure from Members, that the Government announced additional funding for Leicester businesses. As we know, Leicester was the first place to go into a local lockdown, but a month later, when areas in the north of England—in Greater Manchester, Lancashire and West Yorkshire—were placed into local lockdown on 30 July, it was clear at that point that lessons had not been learned. Again, the Government’s communication was chaotic and caused widespread confusion and anxiety.

The Government announced new restrictions on 30 July, the eve of Eid, less than three hours before the rules came into force. Understandably, Greater Manchester’s Mayor and deputy Mayor, along with council leaders, raised concerns about how the changes were announced by the Government. It is not acceptable to announce local restrictions late at night on Twitter, just hours before they are due to come into place. The public deserve clear and timely communication of changes and decisions that affect the everyday life of individuals, families and businesses. Importantly, there needs to be transparency about the reasons and thresholds for introducing and easing local restrictions. It is not fair to leave local areas in the dark. I hope we can avoid a repeat of that approach, although it is noted that the powers of the Secretary of State under regulation 3(5) do not require him to consult with a local authority before giving a direction. Perhaps the Minister will provide some assurances on that point.

There is an issue not only with powers being exercised centrally, but with information. Local directors of public health and local authority leaders have been asking for access to detailed data since the launch of test and trace at the end of May. Starting from July, councils were given access to weekly postcode data for their area, but it only showed positive test results and did not contain granular data on where people live or work, and was often out of date by the time it arrived. Data on local outbreaks needs not only to be shared in a timely way, but to be comprehensive and include information such as addresses, workplaces and ethnicity, which still is not routinely being shared. I hope the Minister will outline in her response what is being done to ensure that those vital details are being shared with local authorities to help them to tackle infection rates. The powers in the regulations will not be effective unless local authorities have the information in the first place to act on them.

Additionally, local authorities are concerned that the centralised Government test and trace operation has failed to reach many of the most vulnerable residents, leading to a number of councils setting up their own localised test and trace systems. That is the biggest vote of no confidence in the privatised national system of test and trace that the Government set up. Perhaps the Government heard those criticisms, because on 14 August they announced they would assign dedicated teams of contact tracers to more than 10 local authorities, after trials in Leicester, Luton, and Blackburn with Darwen. Will the Minister update us on when they expect those teams to be up and running?

It is vital that the scope of restrictions under these regulations and other laws is easily understood by local people. That is key to maintaining the public buy-in and trust that is needed for restrictions to be effective. They must also make sense. As a group of Manchester MPs highlighted in a letter to the Health Secretary on 18 August, the scope of local restrictions must make sense for local communities: where people go to work or school, socialise and shop are all important considerations, as people tend not to organise their lives around geographical administrative boundaries.

Communication also matters. Clear public health messaging is more vital than ever at this time. That is particularly so when different areas are subject to different measures. Tougher measures have been introduced in Bolton this weekend, as the infection rate has risen to 99 cases per 100,000 per week—the highest in England. The restrictions include not mixing with other households in any setting, indoors or outdoors. Those are different from some of the other restrictions in Greater Manchester.

Clear messaging matters. For example, just last week the borough found itself in what the Mayor of Greater Manchester described as a “completely unsustainable position” in which the Government planned to release restrictions despite a rising number of cases. That was, of course, before an 11th-hour U-turn. I empathise with the Mayor. Restrictions are hard enough to explain to the public without their being introduced in such a completely illogical way.

That is why it is vital that each local area must have a clear plan in place detailing steps to take in the event of an increase in cases. Those restrictions must be easily understood by local people. Telling people that they can go to the pub but not visit their family is a message that is hard to explain in public health terms and risks damaging public trust. That is why it is vital to ensure that restrictions are effective. I understand that people in Leicester, for example, are still being told they are not allowed to meet other people in their own back gardens, yet they can meet people in a pub. I should like the Minister to set out—in writing if she cannot respond now—the public health reason for that distinction.

Where councils are on the Government’s watchlist and there is a clear and imminent public health ground to take action, I think it is fair to say they feel they can take enforcement action under the regulations. However, where there is not an increase in covid cases, councils are less certain whether they can take action. It would assist them if there were a clearer steer from Government on the circumstances in which is acceptable to use the regulations. There is no accompanying guidance to the regulations to advise councils on the factors that they should consider when contemplating action. That is also an important issue for any business that might be affected by a council decision. After all, what use is the ability to challenge a decision in the magistrates court if there is no detail on the basis on which that can be done?

If a local authority were concerned that, unless a premises took account of the need to socially distance customers, the situation would lead to an increase in the spread of covid-19, would that be enough for it to take enforcement action under the regulations? Is that the baseline for action? What factors may a magistrates court take into account when considering an appeal against such a decision? I would not expect local businesses to have access to the epidemiological data that might lead to such a decision, but is the impact on a business’s viability a relevant factor? What would the timescale be for a magistrates court to hear such an appeal? It is no good having a hearing on the issue months after the event. The business might have gone bust in the meantime.

The one positive from debating the regulations so long after they were introduced is the fact that we have the opportunity to look in a little more detail at how they have worked in practice. I am grateful that the Minister has said that already 61 directions have been issued under the regulations. Can she confirm, for each of those directions, whether the Secretary of State was notified as soon as possible, and within 24 hours of the issuing of the direction, as per the guidance? I understand that one direction was appealed to the Secretary of State, and representations were made. What was the timescale for that? It would be useful for individuals who might be affected to know the timescales for decisions. How many fines have been issued under the regulations to date, for breaches of the directions issued by local authorities?

As we heard from the Minister, the regulations give the Secretary of State the power to require a local authority to make or revoke a direction, after consulting the chief medical officer or a deputy chief medical officer. I heard from the Minister that the Secretary of State has so far not given any such direction, and I hope that we can move forward, in the sense that local authorities use the power when the Secretary of State considers it appropriate. I should be grateful for more detail regarding the dialogue and processes that should happen before the Secretary of State issues such a direction. Will the Minister also explain how this set of regulations interacts with Government guidance and other legislative regimes? We are hearing from councils that they are struggling to understand that, and it would be helpful for them to have a clear set of guidelines about when the directions apply and how they interact with other restrictions.

What is the role of Members of Parliament in terms of these regulations, particularly in respect of introducing and easing restrictions? There is nothing in the regulations that requires a Member of Parliament to be consulted, but we have heard many outbursts in the media from hon. Members about their concerns about restrictions in their local areas. Will the Minister confirm that there will be an opportunity for all hon. Members, including Opposition Members, to make representations directly to the Department should consideration be given to issuing directions in their area?

A story appeared in The Observer yesterday about a report apparently prepared by Public Health England that stated that the national lockdown in parts of the north of England had little effect on the level of infections. The story says that when comparing other English regions, the study says:

“Each region has experienced its own epidemic journey with the north peaking later and the North West, Yorkshire and Humber and East Midlands failing to return to a near zero Covid status even during lockdown, unlike the other regions which have been able to return to a near pre-Covid state.”

It also questions why anyone should expect fresh local lockdowns to work in these areas now, and asks:

“If we accept the premise that in some areas the infection is now endemic - how does this change our strategy? If these areas were not able to attain near zero-Covid status during full lockdown, how realistic is it that we can expect current restriction escalations to work?”

Given the content of today’s regulations, I can only assume that the view expressed in that report is not shared by the Department. Can the Minister shed any light on the report and what assessment the Department has made of the effectiveness to date of the powers given to local authorities under these regulations? It is important that we clear that up.

Let us talk about what is not in these regulations, as well as what is in them. Perhaps the most glaring omission is financial support for those affected. The Government cannot continue to turn a blind eye to the devastating economic impact of these restrictions. They must acknowledge the economic consequences of putting certain areas or businesses back into lockdown. There are still no clear plans in place to provide targeted economic support to areas of the country that are forced to increase restrictions or become subject to local lockdowns. A tailored approach to support businesses and employment in affected areas is needed, and that must take local circumstances into account and include adequate support for those who need to self-isolate. Effective local lockdowns depend on people self-isolating when they are supposed to. We have been warning for months that the Government need to ensure that people who need to self-isolate can afford to do the right thing, but once again the Government have been too slow to recognise the problem.

The Government recently announced plans to address the issue, but that will unfortunately apply only to a limited number of areas with high rates of covid-19, meaning that only one in eight workers will be covered by the scheme. That does not make sense when the instruction to self-isolate applies to everyone in the country. If the Government accept that additional support is needed for people to self-isolate in some areas, then they should accept that it is needed everywhere. Everyone should get the support they need to self-isolate, and there is no logical reason why such a distinction is being made.

In any event, £13 a day does not go anywhere near far enough to support the lowest earners who need to self-isolate. Even the Health Secretary must agree with that, given that he has previously said that statutory sick pay in the UK is not enough to live on. Can the Minister explain how the Government have arrived at a solution that offers only some people a level of support that the Secretary of State has already acknowledged is not enough? It is not acceptable that so far into the pandemic the Government do not have a strategy on that. The Government were eventually forced to provide support in Leicester, but they have been unclear about whether they would do the same in other areas. Individuals and businesses deserve clarity and support.

And what about schools? We know that missing school is bad for child development and widens existing inequalities. Indeed, the Education Policy Institute report published at the end of last month found that the attainment gap between disadvantaged pupils and their peers has actually stopped closing for the first time in a decade. With many schools returning last week, and more set to return this week, we have been clear that keeping schools open should be prioritised in the event of local restrictions being introduced to ensure that children’s education is not disrupted again. Will the Minister provide clarity on what steps the Government will take to prioritise schools in the event of local restrictions being introduced? What plans are there to ensure the continuation of education should exceptional circumstances mean that some children cannot attend school in person?

To come back to test and trace, without a vaccine, getting an effective test, track and isolate system is the only way to safely reopen society. It is vital to minimise the need to introduce wide-ranging local restrictions wherever possible and to effectively manage local outbreaks where they occur. Right now, however, the Government’s approach is failing and people have lost confidence in the system. With cases on the increase and the Government pushing for everyone to return to work, it is more important than ever that test and trace is working to its full potential, yet we hear of new issues with it almost every day.

The Government seem to have completely taken their eye off the ball when it comes to ensuring that tests are readily available and quickly administered. The latest figures are not encouraging. The percentage of people reached by the system decreased again last week, with the proportion of close contacts of people who tested positive for covid-19 being reached through the test and trace programme at its lowest level since the system was launched—down from 77.1% in the previous week to just 69.4%. The number of cases handled online or by call centres is even lower, at just 59.8%—a staggering 37% lower than the 97.3% of contacts reached by local health protection teams.

It is also taking longer for people to get their results. Although an improvement on the previous week, only 49.3% of tests taken at regional test sites, and 59.9% taken at mobile testing units, received their test results within 24 hours. The number of satellite tests and home tests receiving a result within 48 hours fell to just 8.1% and 17.6% respectively. Home testing kits and satellite test centres both saw an increase in the median time taken from taking a test to receiving the results, with satellite test centres increasing from 65 hours to 76 hours, and home testing kits increasing from 76 hours to 86 hours.

There are also still issues with capacity. More than 100,000 tests lie unused every day, yet at the end of last month, England and Scotland ran out of home testing kits. Last week we heard that, once again, there are clearly problems with the testing infrastructure as people across the country are being sent hundreds of miles away for testing appointments. In spite of all that, the Government seem determined to reward the private sector companies, which are still not reaching more than half the contacts of those who test positive, by renewing their contracts.

These are unprecedented times and it was always going to be challenging, but surely we can do better than that. The Government’s own scientific experts have been clear. We need tests to be done quickly. We were promised a 24-hour turnaround for test results by the end of June, but it is now September and the numbers are still nowhere near that.