Health Protection (Coronavirus, Restrictions) (England) Regulations 2020

Motion to Consider

Moved by

That the Virtual Proceedings do consider the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020.

The Motion was considered in a Virtual Proceeding via video call.

My Lords, I will outline what the regulations we are considering do, then set out the policies and processes underlying their development, their implementation and finally their monitoring and review. However, first, I will recap the Prime Minister’s announcement.

Informed by scientific evidence and advice, on 10 May, the Prime Minister announced that there will be further changes to the regulations. These will come into effect on Wednesday 13 May. Your Lordships will hear the details of the Statement later today, but in summary there are further regulation clarifications. First, it is permitted for a hotel or other accommodation to provide services to a worker in a critical sector whose need for accommodation is connected to their work. Secondly, additional reasonable excuses to leave or be outside the home will now include visiting a shop that is otherwise closed to collect goods or visiting a local waste or recycling centre.

In addition, there are changes affecting businesses and venues. First, the regulations expand the list of reasonable excuses to leave or be outside the home to include outdoor recreation, including but not limited to exercise, as is currently the case. Secondly, there is an amendment to allow people to spend time outdoors alone, with members of their household or with one member of another household. Thirdly, there are amendments to enable the reopening of garden centres and outdoor sports courts.

The regulations to effect these changes will be for Parliament to approve and I hope that we can use the excellent facilities of this virtual Chamber to do so more speedily. I also add that, unfortunately, our original Explanatory Memorandum contained two typographical errors which, regrettably, we did not spot until after publication. First, it said that the first review would take place on 15 April, not 16 April. Secondly, it said that Parliament would need to approve the instrument within 20 days, when in fact it should have read 28 days.

My Lords, I thank the Minister for his introduction to these statutory instruments. The Prime Minister’s Statement will be debated later, so I will focus on these regulations. As the Minister said, they give considerable power to Ministers to make significant demands on us: to stay at home as far as possible, closing many businesses and stopping gatherings of more than two people in public. As Liberty points out, although the regulations expire in six months, Parliament has to approve them only once, yet Ministers are required to review them every three weeks. Ministers can change the guidance and, through a ministerial direction, can terminate a requirement or restriction contained in these instruments. The Minister said that the regulations get the balance right, but Ministers are given huge authority. Liberty suggests that, as a minimum, the regulations should be remade under the Civil Contingencies Act, as opposed to the Public Health Act. This would enable regular parliamentary scrutiny. Will the Minister look at this again?

The other point which I want to raise, which the Minister touched on, is the use of police powers. Overall, the police have responded magnificently to the incredible challenge they have been given. However, there has been confusion, not least over the extent to which people are permitted to exercise and gather outside. As Liberty says, the combination of sweeping powers, haste in drafting legislation and mixed communication strategies is in part to blame for some of the police confusion. This is likely to grow, given the Prime Minister’s Statement and fears among doctors and police chiefs that the new message to stay alert rather than to stay at home may confuse the public and make it harder to enforce the restrictions.

Liberty recommends that any guidance published to supplement the regulations should distinguish between what is law and what is best practice advice to the public. The Lords Scrutiny Committee made similar points and worried about the confusion between the law and the guidelines. It is keen to ensure that the police are aware of the scope of these regulations, as distinct from the guidance. Given the road map laid out by the Government for lifting the restrictions, we are likely to see changes to the guidelines on a regular basis. I hope that the Minister can assure me that all will be done to make clear to the police just what the law is in the regulations that we are asked to approve today.

My Lords, these regulations are about the management of public health, not how to uphold public order. It is, therefore, a great pity that, due to the way that the Government have introduced them, the debate has become mainly about public order. Confusion was initially due to the words and grand statements of Ministers which were, at times, at odds with the actual provisions of the statutory instrument. On exercise, Ministers said, “Once a day, close to home”. Yet the SI does not restrict individuals to that. We had police stopping people unnecessarily and Derbyshire police using drones to shame people walking legally. There were issues around shopping, with Ministers talking about what “essential items” were. Yet the SI does not define essential or non-essential items; it states the law on where you can buy them. We had trolley spying by some police forces and the famous Easter egg debate. None of these was to do with public health issues around Covid-19. The police college had to send out guidance to cut through ministerial soundbites and state what was actually law within the SI. We are taking note of them again but tomorrow, as the Minister said, some of the provisions will change, due to them being out of date and as the new, graduated, measures to release lockdown start.

However, confusion has started again as we debate, not the science of public health, but the words and confusions of Ministers on public order issues. For example, public health advice indicates that you have a low transmission risk if you meet one other person outside your household outdoors and stay two metres apart. Yet the debate is now about the difference between meeting in a park or in your garden. The public health message is again getting lost: it makes no difference to public health, or the transmission of the virus, whether you meet one person outside, at a distance of two metres, in a garden or a park. Are we going to have police tiptoeing over people’s garden fences to see whether they are meeting one other person outside their household?

My Lords, I want to sort of start my comments by congratulating the Government and the police on showing incredible restraint in acting under huge pressure in what has been an incredibly difficult period. The amendments to these regulations are welcome because they start to allow people to get more exercise and get the economy going. It is easy for us out here to sort of criticise, but I congratulate the Minister on what he and his team have been doing under huge pressure.

The Prime Minister has talked about the importance of common sense, and we now need to start thinking about these regulations and our whole approach to the response to Covid, using common sense, and involving other parties in this. I would be keen to hear from the Minister how we can start to involve the public in the way that these regulations evolve moving forward. For example, there is data at a local level about how many people are infected with Covid. Instead of using law and regulations all the time to shape behaviour, which can be a crude instrument, are there ways almost to gamify and allow citizens to understand the situation in their local area, understand what might be causing it locally and start to adapt their behaviour according to where they are, in the country or in a city such as London?

Secondly, understandably, we have had to bring in these regulations, but they are a huge infringement on civil liberties. So far we have had to take into account the needs of the NHS and public health in shaping these regulations, but do we also need to think about the enforceability of these regulations and laws? For example, on the new change that will allow people to meet one other person from outside the household, do we believe that the police have the resources to check every time they see people in the park whether an additional member has joined that household or whether they are part of the same family? Could we not start to work together with experts in this House, in the police and in the legal system, to shape laws based on natural law and common-law principles that are more tailored and risk-based? For example, we do not seem to have the resources to shut down large gatherings when they appear, so how will we be able to focus on policing individual families?

My Lords, we understand that the regulations require a review every three weeks. However, it is of the utmost importance that this review should include a range of engagements and practical, meaningful discussions with the opposition parties, trade unions, and, not least, the First Ministers of the devolved Governments. Mark Drakeford said recently that he does not think there has been “sufficient” communication. He said that it has been three weeks since he wrote to Michael Gove asking for a “regular pattern of engagement” between devolved Administrations and the UK Government. He said:

“We didn’t have, in my mind, that reliable rhythm of contact … Where we had it, it was good. But as I said before it was in fits and starts”—

and he did not think that that was sufficient. Does the Minister agree that three weeks is far too long for one Government to receive a communication from another? Therefore, in the light of these comments, will he assure the House that he will engage with the Government so that Mr Drakeford’s request for a regular pattern of engagement with UK Ministers becomes the norm and not the exception?

What are we doing in Wales to protect the population from the pandemic? Mark Drakeford announced on Saturday that the Welsh Labour Government would extend the stay-at-home regulations for a further three weeks, albeit with some modest adjustments, becoming the first UK leader to do that formally. Wales currently has six regional drive-through testing centres and eight mobile testing units operating across the country. Together with the ongoing rollout of an online portal for booking tests and the planned introduction of new home testing kits, that will help significantly to increase daily testing in Wales. The message remains the same: stay home, protect the NHS and save lives. The Health Minister gave a further public update on the outbreak in Wales earlier today.

My Lords, the justification for not providing Parliament with a draft of these regulations, as is usual, has been

“the serious and imminent threat to public health”.

Notwithstanding that, the noble Lord, Lord Hunt of Kings Heath, is right to say that our duty is to ask awkward questions and to scrutinise. I will use my three short minutes to do that.

Confusingly, while these regulations impose restrictions and fines for members of the public breaking the lockdown, a Cabinet Minister has said of Covid-19, “let it run hot”. Our Minister, who replies for the whole Government, says that it was not his department that said this, but which of these strategies—carefully cautious or “let it rip”—is the Government’s position? When will he publish the scientific evidence behind the use of that phrase?

The Care Quality Commission is to investigate whether hospitals, some here in the north of England, might have broken the law by sending patients with Covid-19 back to care homes, where more than a quarter of Covid deaths have occurred. Managers and staff were not told that the patients being discharged were infected, triggering new fatal outbreaks among other residents. Will the Minister confirm that, in doing this, the law was indeed broken? When do the Government anticipate that the CQC will publish its report? Will the findings be presented to Parliament?

Will the Minister confirm that levels of coronavirus infection are probably at least five times higher among hospital and care home staff than in the wider population —I declare an interest in that one of my sons is an A&E doctor working in a hospital with Covid patients—and that coronavirus outbreaks in care homes are now leaking back into the community and driving the epidemic? Sir Ian Diamond, the head of the Office for National Statistics, says that the R number, referred to earlier by the noble Lord,

My Lords, I declare my interest with the Dispensing Doctors’ Association. These emergency measures were brought in at comparatively short notice, so I welcome the chance to review them, and congratulate the Government on what they have achieved in a very short time.

As my noble friend the Minister pointed out at the outset, the success of the regulations will depend on the clarity of the message and the collaboration and co-operation of the public. My concern is that the level of trust shown by the public may fall as time goes on and they become less patient. We should also note that the latest guidance, which is being issued and emerging this week, is perhaps more clouded and less clear.

There are inconsistencies in the guidance; for example, people are urged to go to work but may not have access to public transport, or have been advised not to use public transport but alternatives are simply not feasible. Those with children may have no childcare available, making it difficult for them to leave home and return to work.

Will my noble friend consider the difficulties of policing? Will the Government consider talking about physical distance rather than social distance, so that people really pay attention to the two-metre rule?

I understand that the sunset provision is not due to come in until 10 February 2022. Will my noble friend confirm that? As others have done, I urge him to really focus on the clarification required to differentiate between the regulations before us today, which are legally binding instruments, and the guidance, which is not, to ensure that the police have the very best understanding of the scope and that the regulations do not become a charter for neighbours to grass on their neighbours.

My noble friend is familiar with my interest in Regulation 61 of the National Health Service (Pharmaceutical and Local Pharmaceutical Services) Regulations 2013. This is particularly appropriate in rural areas. It allows NHS England to commission a dispensing doctor’s surgery to provide services to all—that is, not just its own registered dispensing patients—where a pharmacy is temporarily closed. This decision can be national or regional, but so far it has not been used in either circumstance. Why not? Having urged us all to avoid all but essential travel, will the Government consider keeping this under constant review and ask NHS England, both nationally and regionally, why this regulation, which permits dispensing doctors to dispense these medicines, is not being used to facilitate the lives of patients and allow dispensing doctors to do their work?