Delegated Legislation Committee
HEALTH PROTECTION (CORONAVIRUS, RESTRICTIONS) (NO. 2) (ENGLAND) (AMENDMENT) (NO. 2) REGULATIONS 2020
The Committee consisted of the following Members:
Chair: Yvonne Fovargue
† Aiken, Nickie (Cities of London and Westminster) (Con)
Benn, Hilary (Leeds Central) (Lab)
† Clarkson, Chris (Heywood and Middleton) (Con)
† Crosbie, Virginia (Ynys Môn) (Con)
Eagle, Maria (Garston and Halewood) (Lab)
† Madders, Justin (Ellesmere Port and Neston) (Lab)
† Mak, Alan (Havant) (Con)
† Marson, Julie (Hertford and Stortford) (Con)
† Moore, Robbie (Keighley) (Con)
† Richardson, Angela (Guildford) (Con)
† Smith, Greg (Buckingham) (Con)
† Throup, Maggie (Lord Commissioner of Her Majesty's Treasury)
† Twigg, Derek (Halton) (Lab)
† Western, Matt (Warwick and Leamington) (Lab)
† Whately, Helen (Minister for Care)
† Whittome, Nadia (Nottingham East) (Lab)
† Yasin, Mohammad (Bedford) (Lab)
Huw Yardley, Committee Clerk
† attended the Committee
First Delegated Legislation Committee
Monday 14 September 2020
[Yvonne Fovargue in the Chair]
Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 2) Regulations 2020
I beg to move,
That the Committee has considered the Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 2) Regulations 2020 (S.I. 2020, No.788).
It is a pleasure to serve under your chairmanship, Ms Fovargue. I will start by summarising the changes to the regulations. The Health Protection (Coronavirus, Restrictions) (No.2) (England) Regulations 2020, which I will refer to as the national regulations, came into force on 4 July. There have been five changes to the national regulations, the first of which was debated in and approved by both Houses before recess. The focus of this debate is the second amendment to the regulations.
These amendments permitted from 25 July the reopening of the following businesses and venues: indoor swimming pools, including water parks; indoor fitness and dance studios; and indoor gyms, sports courts and facilities. Alongside those changes, the Government produced supporting guidance advising that the most high-risk activities within those businesses and venues, such as saunas and steam rooms, should not reopen. Those easings did not apply to the city of Leicester boundaries and the borough of Oadby and Wigston.
We have needed to use the emergency power to amend these regulations so that we can respond quickly to the serious and imminent threat to public health posed by coronavirus. I know that these national regulations have caused real disruption to people’s lives. They have placed restrictions on who people can see, what they can do and where they can work. Just as the Secretary of State has the legal obligation to protect public health, he is also obligated to ease restrictions as soon as it is safe to do so.
The first three changes to the regulations opened businesses and venues that had been required to close, and covid-secure guidance was developed with industry and medical advice to ensure that they opened safely. That means that now only nightclubs, dancehalls, discotheques, sexual entertainment venues and hostess bars are required to remain closed, as they are considered to pose a high risk of transmission because of the close proximity of members of staff and customers. That shows the Government’s commitment to ensuring that restrictions are in place only as long as necessary, and an evolution in our understanding and approach to tackling the virus.
Over the summer recess, we have combined the tightening of restrictions in areas where there are outbreaks with the easing of business restrictions nationally. We have given local authorities powers to act quickly in response to local outbreaks by closing specific premises, shutting public outdoor spaces and cancelling events. We asked all councils to develop dedicated local outbreak plans, and we gave them £300 million of new funding to support that. We published the contain framework, providing further guidance on managing local outbreaks.
Where regulations have been required, the Government have worked with local partners to develop tailored and proportionate restrictions based on the best scientific evidence available, in areas varying from a single factory to an entire region, such as the north of England. These interventions have been underpinned by scientific advice and local data provided by a combination of Public Heath England, the Joint Biosecurity Centre and NHS Test and Trace.
Colleagues will have seen that today the rule of six comes into effect. This change brought the gathering policy from guidance into regulation, mandating that people can only gather in groups of six, and it applies both indoors and outdoors. Single households or support bubbles of more than six are still able to gather together, and there are a small number of exemptions, such as for work, schools, weddings and organised sports activities. People should continue to follow social distancing rules with those outside their household or support bubble. As the Prime Minister announced last week, these measures are not a second national lockdown but are aimed at preventing the need for one.
It is thanks to the public and their continued effort that we have been able to slow the spread of the virus and have started cautiously to return to life as normal. Now, with winter approaching and covid rates rising again, we must keep doing whatever it takes to keep it under control, guided by our ever-increasing knowledge of how covid is spreading and what interventions are effective.
I am grateful to colleagues from across the House for their valuable contributions to these debates and for continuing to challenge us to do better in this vital area of public policy. I believe that we have met the bar set for us. These regulations are a proportionate and necessary use of the powers that Parliament has asked us to use, and I commend them to the Committee.
It is a pleasure to see you in the Chair, Ms Fovargue. I thank the Minister for introducing the regulations. As she said, they amend the Health Protection (Coronavirus, Restrictions) (No. 2) (England) Regulations 2020, which dealt primarily with the reopening of the hospitality sector and came into force on 4 July. Those regulations were amended to allow further easing of restrictions, including the opening of outdoor swimming pools and water parks from 11 July, and nail bars and salons, tanning booths and salons, spas and beauty salons, massage parlours, tattoo parlours, and body and skin piercing services from 13 July. As she outlined, those amendments, which came into effect on 25 July, further allowed the reopening of indoor swimming pools, indoor facilities at water parks, indoor fitness and dance studios, and indoor gyms and sports courts and facilities.
I have several issues to raise about these regulations, starting with the fact that they came into effect on 25 July, which is now seven weeks ago. The Minister will not be surprised to hear that my first concern is that, once again, we are debating the regulations too late. It is, regrettably, not the first time I have raised the matter; in fact, I have had to raise it each and every time we have debated the health protection regulations in Committee, because we have not yet managed to debate one of these statutory instruments before it has come into force. That is despite the fact that we are now many months down the line from the initial crisis. As I have made clear on numerous occasions, we accepted that initial regulations had to be introduced hurriedly in response to the initial threat and the rising number of infections of a new and unknown disease, but that is no longer the situation.
I am not the only person to raise concerns about the Government continuing to table business without providing time to ensure that proposed changes are debated before they become law. Members on both sides of the House and in the other place have repeatedly expressed their desire for timely debates to ensure that such proposals are subject to full parliamentary scrutiny. Despite multiple pleas and assurances that the Government had listened to those concerns and were working hard to address the problem, they still appear to believe that a rubber-stamping exercise seven weeks down the line is sufficient to meet their democratic obligations, but I disagree. Parliamentary scrutiny cannot be ditched because the timing is inconvenient. The regulations are too important not to be debated and given timely and full parliamentary scrutiny.
Senior Conservative Members raised these issues in the Chamber only last Thursday, when the Secretary of State for Health and Social Care gave his statement. Over the weekend, the airwaves were full of Members expressing their concerns about the Health Protection (Coronavirus, Restrictions) (No. 2) (England) (Amendment) (No. 4) Regulations 2020, which have come into force today without any parliamentary scrutiny. In fact, it was not until 11.45 pm last night—15 minutes before those regulations became law—that a copy of them became available to look at online. That gave people no time to examine them before they came into force, let alone any opportunity for debate or scrutiny. Will those regulations be debated in seven weeks’ time? Although we no longer have a recess to contend with, more than 17 other regulations have come into effect but have not yet been debated—and that does not include four that came into effect and were revoked without ever being debated. That is no way to manage legislation, and that is no way to govern.
The Government’s handling of the pandemic has been too slow throughout, and they continue to be too slow in bringing legislation to the House to be scrutinised. I again plead with the Minister, as I have done on numerous occasions, that the Government should be made aware, in the strongest possible terms, that the Opposition remain extremely concerned about the continuing contempt that is being shown for parliamentary scrutiny. The Government can and should make time to debate these regulations properly.
Of course, the Opposition want these measures to work and for us to beat the virus. The Minister must surely agree that high levels of compliance are key to our success in achieving that aim. She will be aware that there are stirrings of discontent about the continuing restrictions that are being placed on our lives. However, some people are using perfectly reasonable concerns about the lack of democratic legitimacy surrounding these restrictions to bolster their outright opposition to the measures. Let us not give them that opportunity. Let us show them that we understand the concerns about the personal implications of such restrictions, and that we take those concerns seriously, by having a full and robust debate before the restrictions are introduced. The rubber-stamping exercises that we go through in Committee weeks after the event cannot engender confidence that the measures are introduced after full consideration and deliberation.
My hon. Friend is, as usual, making a powerful point. The hon. Member for Altrincham and Sale West (Sir Graham Brady) has been particularly vocal. The challenge for us all is ensuring that we take the public with us, be they businesses or constituents. The real criticism is that if we do get the opportunity to debate the restrictions, the public increasingly will not support them.
I thank my hon. Friend for his intervention. I hope that that does not prove to be the case but, as I say, we should not give those who want to disobey the rules the opportunity to look for reasons to do so. That is why the rule of law, Parliamentary scrutiny and timely debate are important. I understand that the situation is rapidly changing and that the Government need to act quickly, but I believe that they can act quickly and transparently at the same time. I do not see any contradiction between those two objectives.
As my hon. Friend mentioned, Conservative Members have expressed concerns about this Government’s approach to legislation. In a week when former leaders of the Conservative party have queued up to express their concerns about the Government’s proposals to act outside the law, timely debate is one way to restore public trust. It is a way of saying that the rule of law matters in this country; that rules apply to everyone; that the restrictions are serious, not an optional extra; and that the Government do not consider themselves to be above the law.
It should not be beyond the wit of even this Government to arrange, through the usual channels, for Committees to be set up at short notice so that these important regulations are debated properly before they become law. I stand ready to clear my diary, if necessary, to ensure the Opposition plays its part in providing proper scrutiny and accountability for these regulations.
My second concern, which arises as a consequence of our debating these regulations too late, is whether the scientific advice that underpins them is now out of date. If I were to take something positive from our debating the regulations so long after their introduction, it would be that we have the opportunity to look in detail at how they have worked in practice. The explanatory memorandum reminds us that the Government announced the opening of the hospitality sector from 4 July, saying that such action was possible
“due to the continuing falling of the transmission rate”.
That was consistent with the chief medical officers’ down- grading of the UK’s covid alert level from four to three, which meant that we no longer faced the exponential spread of the virus, although it remained in general circulation.
As we probably all know, it seems that that is, sadly, no longer correct. Case numbers have risen sharply in recent days. Numbers soared on Friday, with the highest rise we have seen in four months, and that continued over the weekend. The R number has gone above 1, and it is estimated to be between 1.0 and 1.2. That means that transmission is rising, not falling, contrary to what is stated in the explanatory memorandum. That is despite the fact that people cannot get tests, so we cannot even ascertain the seriousness of the problem. We know that things are deteriorating, but we cannot assess the scale of the problem because we do not have the data to measure to it.
Whatever the true scale of the increase in cases, we are in a very different position from where we were in July. It matters that we are debating, and being asked to decide whether we support, regulations that do not reflect the latest scientific evidence. I do not doubt that the advice was right at the time, but the situation has clearly moved on. Can the Minister update us on the latest scientific advice in relation to the measures in these regulations?
It is something of a nonsense that we are today debating regulations that were introduced when the picture was markedly different. Would we still be introducing these relaxations if they were due to come into force today? I would like to hear what the Minister has to say about that. What is the latest advice on whether any of the relaxations should be reversed? Can the Minister update us on whether the UK’s covid alert level will change, given the increase in the number of cases and the R number?
There is another reason why the regulations are out of date, and why any debate on them now does not lend itself to proper scrutiny. As the Minister said, the Government are moving away from national restrictions across sectors, which was the strategy when the regulations were introduced, to more localised measures. In a number of areas that were subject to local lockdown restrictions, businesses that the explanatory note acknowledges were the last to open because the transmission risk was considered to be higher did not reopen on 25 July. That was the case in Leicester, for example, which went into the first local lockdown on 22 July, as well as in Blackburn with Darwen and in Luton, which were subject to extra restrictions from 25 July.
To debate whether those relaxations should go ahead now, when they did not go ahead at the time in some local areas because of a spike in infections, is to make a mockery of the process. Granted, it is not as bad as debating the Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 3) Regulations, which closed down zoos and safari parks, on the same day as another set of regulations came into force that opened them up again, but we are not too far away from that. This shows again the importance of debating future regulations in the House before they come into force.
It is a matter of considerable regret that we are being asked to debate these regulations without the full information on which the Government based their decisions. It is not the first time that has happened. The scientific evidence behind the decision to ease the restrictions is not readily available, and that is an issue when the key question that we must ask is whether the regulations will increase the spread of the virus.
The explanatory memorandum that accompanied the original No. 2 amendment regulations stated:
“There is recognition that these changes may lead to an increase in transmission rates and will continue to be kept under review.”
I have previously asked the Minister to clarify which measures, individually or collectively, were considered to be likely to lead to an increase in transmission rates. We still have not had any clarity on that, and that is not reassuring when we hear that the Government have based their legislation on the science.
The explanatory memorandum for the original No. 2 amendment regulations shared some of the scientific advice from the Scientific Pandemic Influenza Group on Modelling on why some measures could be relaxed, but this explanatory memorandum provided no such advice. It may be that the advice no longer holds good for the reasons that I have already outlined, but unless we have complete transparency on that, we are not in a position to judge its strength or relevance. Was the decision to reopen these businesses and venues based on advice from scientific advisers? How is the risk quantified? Were any elements of the relaxation considered to be riskier than others? What, if any, mitigating measures were recommended?
As I have highlighted to the Minister on several occasions, we have not seen the legally required reviews of the regulations. We know that the Secretary of State is required to review them every 28 days. The first review was due by 31 July, which means that a second was due by the end of August. Why have we not seen the findings of those reviews to inform our decision making today? The Secondary Legislation Scrutiny Committee has called on the Government to ensure that that information is provided. Without those reviews, all that has been published alongside the regulations is an explanatory note telling us that no consultation has been carried out and no regulatory impact assessment has been undertaken. Will the Minister commit to publishing the review of the regulations alongside the full scientific evidence and full impact assessment?
We will not press the regulations to a Division, but I hope that the Minister has got the message loud and clear that the continual failure to debate these regulations in a timely manner is unacceptable. If the Government really want to live up to their ambition of Parliament taking back control, they should start by acting in a way that allows it to do so.
I thank the hon. Member for Ellesmere Port and Neston for his response, some of which, as he mentioned, he has said before. I will address his comments head-on.
The hon. Gentleman said that he would like us to have debated these regulations sooner, and we absolutely recognise that timely scrutiny is important. There is substantial scrutiny of the Government’s decisions. For instance, there have been multiple oral statements, and numerous urgent questions have been responded to by Government Ministers. There is a great deal of challenge to decisions that are made.
However, throughout the pandemic and up to the present, we continue to need to act rapidly. We need to take rapid decisions to make restrictions to people’s normal way of living, unfortunately, when we see growing risks of the spread of the disease. We also want to be able to take rapid decisions to reduce those restrictions, recognising the difficulties that they cause for people going about their lives, whether in their family relationships, social relationships or livelihoods.
The hon. Gentleman has said that we are now at a different time, and things are different now. Yes, we have done a huge amount to bring the virus under control since the peak in the spring, and we now have a vast quantity of testing relative to the amount we had earlier on, although I fully recognise that its capacity is challenged at the moment because of the great deal of demand for it. However, we are continuing to learn all the time from the greater data we now have about how people are catching the virus—how it is spreading, but also how it is not spreading—so it is still the case that we need to be able to move quickly.
The hon. Gentleman asked about the scientific context for this, and whether because time has moved on, these easements are still the right thing to do. The restrictions are continuously reviewed, looking at what new restrictions may be appropriate and what easements might need to be introduced. As he has acknowledged, in some areas where there have been local outbreaks, restrictions have either not been lifted or have been reintroduced. We are able to do that because, thanks to the operation of Test and Trace and the Joint Biosecurity Centre, we have much more data about how the virus is spreading. For instance, we know that the virus is largely spreading through people’s social interactions. For the most part, it is not spreading in workplaces, and the risk for children in schools is very low, but we have a particular challenge with social contact. Therefore, we are, in general, able to maintain the easements that have been brought in, but are introducing the rule of six today to limit the social contact through which covid is spreading.
In some areas of the country where there are greater rates of covid, there are greater restrictions on household gatherings and even on the rule of six, because we have evidence that in some places, it is particularly spreading through households mingling in a home setting. The whole point is that having greater data and scientific insight, and following scientific advice, means that the restrictions we now have in place can be more tightly targeted, and can avoid restricting people’s lives in ways that are not essential while targeting the ways in which we know the virus is being spread. I assure the hon. Gentleman that we will continue to review the situation, including whether we need to impose further restrictions. Clearly, that would be done with great reluctance, but we cannot get to a situation that is the same as the one we were in earlier in the year. We must continue to be vigilant.
I am grateful to the Minister for explaining in a little more detail some of the work that is taking place to understand how the virus is spreading. Is it the case that the relaxations we have talked about today are not contributing to an increase in transmission?
As I said, the work that is carried out by the Joint Biosecurity Centre, drawing on the information from NHS Test and Trace and other sources of data, looks at the main sources of spread. We know that the main source of spread is through social contact, rather than in more controlled settings. In business settings, we are seeing, for the most part, businesses taking great care to ensure their setting is covid secure, for which they should be commended.
I feel that this is the moment to bring the debate to a conclusion, and I commend the regulations to the Committee.
Question put and agreed to.
DRAFT REHABILITATION OF OFFENDERS ACT 1974 (EXCEPTIONS) ORDER 1975 (AMENDMENT) (ENGLAND AND WALES) ORDER 2020 DRAFT POLICE ACT 1997 (CRIMINAL RECORD CERTIFICATES: RELEVANT MATTERS) (AMENDMENT) (ENGLAND AND WALES) ORDER 2020
The Committee consisted of the following Members:
Chair: Ms Nusrat Ghani
† Anderson, Stuart (Wolverhampton South West) (Con)
† Atkins, Victoria (Parliamentary Under-Secretary of State for the Home Department)
† Bradley, Ben (Mansfield) (Con)
Butler, Dawn (Brent Central) (Lab)
Cadbury, Ruth (Brentford and Isleworth) (Lab)
† Cates, Miriam (Penistone and Stocksbridge) (Con)
† Charalambous, Bambos (Enfield, Southgate) (Lab)
† Davies, Dr James (Vale of Clwyd) (Con)
Hughes, Eddie (Walsall North) (Con)
† Lammy, Mr David (Tottenham) (Lab)
Lewell-Buck, Mrs Emma (South Shields) (Lab)
† Pursglove, Tom (Corby) (Con)
† Russell, Dean (Watford) (Con)
† Spellar, John (Warley) (Lab)
† Timpson, Edward (Eddisbury) (Con)
Trickett, Jon (Hemsworth) (Lab)
† Wood, Mike (Dudley South) (Con)
Yohanna Sallberg, Seb Newman, Committee Clerks
† attended the Committee
Second Delegated Legislation Committee
Monday 14 September 2020
[Ms Nusrat Ghani in the Chair]
Draft Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2020
I beg to move,
That the Committee has considered the draft Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2020.
With this it will be convenient to consider the draft Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2020.
What a pleasure it is to serve under your chairmanship, Ms Ghani. I suspect that you are the first of the 2015 intake to serve on the Panel of Chairs—that is a real and well-deserved privilege.
The orders, which were laid before Parliament on 9 July, are two very technical but important because they relate to the requirements for a person to self-disclose criminal records when applying for roles that are eligible for standard and enhanced criminal records checks, and to the rules for disclosure of criminal convictions and cautions on a standard or enhanced criminal record certificate issued by the Disclosure and Barring Service. As criminal record disclosure is a devolved matter, the orders apply only to England and Wales.
As hon. Members may be aware, in January 2019, the Supreme Court handed down its judgment in the case of P, G and W. Overall, the Court found that a rules-based disclosure regime for criminal record certificates is justifiable and in accordance with the law. However, that judgment also determined that certain aspects of the current disclosure rules are incompatible with article 8 of the European convention on human rights—namely, the right to a private life.
There were two areas of concern. First, the multiple conviction rule, under which all convictions, regardless of their nature, are disclosed when an individual has more than one, was found to be unnecessary and disproportionate in terms of indicating a propensity to offend. Secondly, the disclosure of out-of-court disposals administered to young offenders was found to be “an error of principle”, given the instructive purpose of the disposals, so the Court found against the automatic disclosure of youth reprimands and warnings.
Surely both propositions are absolutely self-evident. Why did we drag it all the way through the Court of Appeal and up to the Supreme Court—wasting years carrying on with it—when the Court actually applied a common-sense approach on both counts and said, “This is wrong”? Why could Ministers and civil servants not have done that years ago, rather than taking it all the way through that elongated process?
I am so pleased that the right hon. Gentleman has raised that point. He has a particular interest in this matter, and I answer many of his parliamentary questions on it, so I know that it is an area in which he is an expert and to which he is very committed.
Although I do not want to go into the details of all the cases that were joined together, the reason that the Government took those cases to the Supreme Court was that there were many important principles of law to be tested. All along, we have reviewed those rules and done as we thought right. We cannot hide from the fact that the reason that the Disclosure and Barring Service regime and its predecessor were set up in the first place was to protect the most vulnerable in our society. It is right that the Supreme Court was asked to look at the regime as a whole. It found that the regime was satisfactory and within the bounds of article 8 and other measures within the convention, but it drew two points to our attention. We have gone into great detail to ensure that we can bring about a system to enact the observations in the ruling by the Supreme Court, but to do so in a way that keeps the purpose of the regime in place.
The orders before the Committee will not change the purpose of the disclosure regime. The disclosure rules will continue to ensure that children and vulnerable people are protected from dangerous offenders. However, the Supreme Court judgment made it clear that these two areas of concern are disproportionate as currently framed, so the orders will ensure that there is a balance between the safeguarding aims and supporting people who have offended in the past to move into employment and move on with their lives.
I very much welcome these orders—not least for people who had a difficult childhood, potentially in care, and who carried with them through to adulthood a criminal history that has followed them ever since, potentially disproportionately, for the reasons that we have heard. Can the Minister enlighten me about the impact on businesses? Have the Government considered whether the orders will give businesses more reasons to look harder at the potential of employing people who in the past would have had their criminal history disclosed?
Forgive me, five years. My Hon. Friend had an incredibly positive effect on the lives of many thousands of children across our country, including the most vulnerable. He is absolutely right to raise the issue of businesses, because the disclosure regime—both the order that we are dealing with, in terms of people having to disclose their convictions, and the Disclosure and Barring Service regime itself—is about putting the responsibility for making considered employment decisions on employers. With the exception of the barred list, it is not for the DBS to say, “This person shouldn’t be employed in this particular role.” It is for the employer to make that assessment.
Frankly, I hope that having this debate and the debates we have in the House and in the media really helps to highlight the vital role that employers play in giving young people a second chance, which we all know is so key to their rehabilitating and moving on with their lives. As I say, I am very pleased that the orders will have the effect that, unless affected by other disclosure rules, youth cautions and multiple convictions no longer have to be disclosed when a person is asked about them, and they will no longer be subject to automatic disclosure on standard and enhanced criminal record certificates.
I turn now to the technical parts of the orders. The draft Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2020 amends articles 2(2) and (4) of the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 to change the definition of a “protected caution” to include all those given where a person was under 18 at the time. The order also amends articles 2(5) and (6) to change the definition of a “protected conviction” by removing the multiple conviction rule exemption from the scope of the definition. The effect of the order is that an individual with a youth reprimand, warning or caution, or those with more than one conviction, will no longer have to self-disclose their criminal record when applying for a role that is eligible for a standard or enhanced DBS check, unless one of the other disclosure rules in engaged.
The draft Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2020 amends the definition of “relevant matter” by excluding the multiple conviction rule and youth cautions, including reprimands and warnings, from the scope of that definition. A “relevant matter” is a matter that must be disclosed by the Disclosure and Barring Service in response to an application for a standard or enhanced criminal record certificate. The effect of the order is that, where not affected by any other rule, youth reprimands, warnings and cautions and multiple convictions will no longer be subject to automatic disclosure in criminal record certificates issued by the DBS.
I emphasise, however, that the Government are clear on their responsibilities to safeguard the public, particularly children and vulnerable adults. Where an offence has been committed, we will want to ensure that the public are adequately safeguarded by enabling employers to make informed recruitment decisions through the disclosure of appropriate and relevant information, particularly for roles that involve close contact with children and vulnerable adults or a high level of public trust.
Convictions and adult cautions will still be disclosed on DBS certificates if they are recent; if they were received for a specified violent or sexual offence; or if a custodial sentence was imposed. Furthermore, the statutory disclosure regime enables chief police officers to disclose any information they consider to be relevant to the purpose of the certificate and in the chief officer’s opinion ought to be included in the certificate. To that end, we intend to publish the associated Home Office statutory guidance for the police alongside this legislative change, to reflect that information about convictions and cautions not automatically disclosed under the rules can, in principle, be included in a certificate in the same way as other police information reasonably believed to be relevant for the purpose for which the certificate is sought.
We are confident that these changes, if agreed, will still enable employers to make informed recruitment decisions, but in a way that enables those who committed minor offences and who offended long ago to move away from their past and on with their lives. This will particularly benefit those with childhood cautions.
I hope the Committee will support the two orders to ensure compatibility with article 8 while continuing to support effective protection for children and vulnerable adults. I commend these orders to the Committee.
It is great to see you in the Chair for the first time, Ms Ghani. I thank the Minister for a call last week about these provisions, for which I was very grateful. I also thank my right hon. Friend the Member for Warley for his persistent pursuit of this subject over many years in Parliament and for being distinguished in pressing the Prime Minister on this at three consecutive Prime Minister’s questions. The result of the Supreme Court decision is why we are here this afternoon.
There are currently more than 11 million people in the UK with a criminal record. Nearly three quarters of ex-offenders are unemployed on release from prison, and 50% of employers say they would not consider hiring an ex-offender. At its worst, the criminal records regime is a second sentence for those who have already served their time, trapping offenders in a cycle of reoffending. In my review into the criminal justice system, which I was asked to do by the then Prime Minister, David Cameron, I singled out the criminal records regime as an area that most desperately needed reform.
If we are to break the endless loop of reoffending, ex- offenders must have an opportunity to move on with their lives. That means, in effect, having support and services, but there is also the need to get a job. A job removes dependence on criminality for income; a job gives an opportunity for education and training; a job gives ex-offenders a belief in their own future; and a job gives them a stake in society. Prisoners who find work on release are less likely to reoffend than those who do not.
That is shown in the disparities between different ethnic groups. Ethnic groups with higher unemployment rates also have higher reoffending rates. In my review, I found that, two years after a caution, conviction or release from custody, 28% of those with an Asian background were unemployed, compared with 40% unemployment among black ex-offenders. That is why I took the issue so seriously. I am happy that we are today discussing modest but progressive reform of the criminal records regime, which will have a positive effect on people’s lives and wider society.
The changes proposed are to the filtering rules applied by the DBS to determine which convictions and cautions should no longer be disclosed on standard and enhanced criminal record checks in England and Wales. The Supreme Court judgment that forced the Government to act required two specific changes—that multiple offences become eligible for filtering, so long as they are not disclosable under other rules, and that youth cautions, reprimands and final warnings be immediately filtered. Currently, if a person has multiple convictions, these cannot be filtered out, even if the individual offences would be. The Supreme Court judgment was right to condemn this approach as “capricious”, “disproportionate” and counterproductive.
The new regime will allow each offence to be treated separately and filtered out as appropriate for the individual offence. Right now, reprimands, warnings and youth cautions are filtered only after two years, causing huge damage to young people’s ability to enter education and training, with some barred from training in certain professions entirely until their record is filtered. The whole purpose of warnings and reprimands is to avoid prosecution, and in doing so to improve a young offender’s future prospects. However, the Court found that disclosing warnings and reprimands to potential employers had the opposite effect. The Opposition are pleased that the new filtering rules mean that all three things will be immediately filtered. These changes will have a real and positive impact on thousands of young lives, which in turn will reap huge benefits for society as a whole.
However, these changes should make us pause and consider the case for broader and deeper reform of the criminal records regime. The changes do not make a judgment on the filtering system as a whole or assess whether it is providing the right balance between harm and protection. It is still the case that very minor criminal records acquired in teenage years can continue to haunt someone’s career prospects well into their 30s and 40s. As the Taylor review of youth justice acknowledged, the evidence is that most young people grow out of crime. Maturity comes at different ages for young people, but on average an individual is significantly less likely to reoffend in their mid-20s than they were just a few years earlier.
The present filtering regime suggests a clear and morally relevant dividing line between those who receive a custodial sentence and those who receive a community order. A custodial sentence is never eligible for filtering, but a community order always is. However, the sentence that each offender receives is often driven more by demographic, geography and other arbitrary factors, not the seriousness of the crime itself. It is a great shame that, in 2020, I have to point out the elephant in the room: whether someone receives a community order, which is eligible for filtering, or a custodial sentence, which is not, can often depend, sadly, on their having a minority background.
That is precisely why the then Prime Minister and current Minister for the Cabinet Office asked me to lead a review into this area and why, in looking at these issues, I recommended the sealing of criminal records. I emphasise that that is not sealing from the criminal justice system—it would always be the case that the courts, prosecutors, police, the probation service and others have access to criminal records—but, where appropriate, from employers, aside from particular cases where it is necessary for the employer to have access to that record.
At the end of the hearing, the court is able to weigh up different factors, including the problems for the applicant arising from their criminal record, evidence of rehabilitation years later indicating that the applicant would take proper advantage of their record being sealed, relevant circumstances at the time of the offence that suggest that the applicant will not reoffend and the passage of time since the offence. All these issues are relevant, and we ought to come up with an administrative process—it may well be that applicants have to pay for the process—whereby we are able to seal criminal records and ensure much higher employment rates for former offenders.
The Opposition believe in second chances. I should hope that Conservatives believe in second chances, so I hope that the Government will come forward with wider plans. In that regard, I look to the sentencing reforms that the Lord Chancellor indicated at the weekend and hope that we might see further progress there.
It is a pleasure to serve under your chairmanship, Ms Ghani. I thank the Minister not only for writing to me, but for an informal briefing on the subject under discussion today. The changes are welcome, but long overdue. I have just delved into my files and I have a letter from the Ministry of Justice, from the then Minister, dated 20 April 2013:
“I am writing further to Andrew Lansley’s”—
“response to your Business Question on 18 April, asking for an early debate to discuss the impact of including cautions and minor convictions in disclosures issued by the Disclosure and Barring Service.”
That was in response to a
“recent Court of Appeal judgment in the case of R.”
This has been going on and on.
The changes today are welcome, as my right hon. Friend the Member for Tottenham said, but they still do not go far enough. It is still the case that, if people commit slightly more serious offences in their teen years, that dogs them all through their life. Indeed, some of the Supreme Court cases demonstrate that. These anomalies and problems will emerge, and I would hope, without too much expectation, that the Department might respond much more quickly than it has. The situation has gone on far too long.
It has become clear in the exchanges we have had that the issue is not even one that divides the parties, uniting those on the right of the Conservative party and the left of the Labour party. That is not, by the way, unique to the United Kingdom. In the United States, right-wing Republicans and left-wing Democrats have united in working together to introduce schemes for the rehabilitation of offenders, recognising a major social problem and an economic issue.
It is only the Department, and the stubbornness of officials, that have held things back. I have had agreement in the past between the Secretary of State for Justice and the Home Secretary. The trouble was they got moved, and we had to start all over again. At the same time, the matter was dragged back by the officials, who would not move.
That is not unprecedented, by the way, in dealing with such issues. It took something like 10 or 15 years to get changes to wheel clamping, which had been abolished in Scotland by one legal decision. Yet again, after going all the way through the Home Office, the issue finally got transferred to the Department for Transport and we managed to get the changes and prevent wheel clamping on private land.
We cannot afford to behave like that, because the issue is extremely important. Everyone accepts that an essential condition for rehabilitation, which I think we all accept is desirable, just and necessary, enabling offenders to play their part in a law-abiding society, is to have a job and a stable relationship—the second of which is often dependent on the first—as well as being able to move into that job fairly rapidly.
I was interested in the intervention by the hon. Member for Eddisbury, and I pay tribute to the incredible work done by the company that he is associated with, precisely in recognising that. I only wish that more employers would follow through in the same way. He made an important point and asked that employers should look at the person.
Unfortunately, that is where I think the Minister was slightly naive. All that many employers look at is whether the boxes are ticked. Is the age box ticked? If someone is over a certain age, employers do not even look at them. There is a new way of doing that: employers ask for qualifications. For jobs where there is no reason to want A-levels, they want them. Alternatively, they require a degree-level person for a job. What does that say? It says that older people need not apply, because we look at the increase in the number of people taking A-levels and degrees, and we will see that there is a very definite age bias, so again they are excluded.
As for people with a disability, regardless of whether or not that disability prevents them from doing the job, too many employers—including some in the public sector, for all their pretensions—will not look at the person and think, “They can’t take this particular exam; they can’t do the job.” I once had a case of a constituent who had been doing a civil service job on a temporary basis for about four years. Their union reps tried everything to get them the job, but no, because the civil service rules said that they first had to take an exam, but because of their disability, which was a mental disability, they could not do that, but they had worked out a coping mechanism.
This behaviour is immoral, unjust and incredibly economically inefficient. However, there is another factor coming in. For quite a while now, we have had the issue that for too many employers the easy option has been not to look at the person but just to say, “Well, they have got some conviction.” They will then pick up the phone to the agency, which will pick up the phone to Warsaw, and all they will do is just import labour to do the work. Now, with the rapid increase in unemployment—we are already seeing that feeding through into reducing wage rates, indicating a surplus of supply over demand—we will be seeing the same thing, with employers taking the easy route. If somebody cannot tick the box, the employer does not even look at them. I think we will have to return to this issue, although this measure actually enables us to make decent progress.
I take issue with the Minister’s point about timeliness. The Lammy report, which my right hon. Friend the Member for Tottenham himself referred to very modestly, was a seminal report produced at the request of the then Conservative Prime Minister in 2017. The Minister referred to the Supreme Court’s judgment of January 2019. We are now in September 2020. Why has it taken the Department so long, given that they knew all the issues that were involved, because they had been dealt with by the Court of Appeal? All that was being asked for was some final validation by the Supreme Court.
I return to the issue I raised. Given the details of the cases involved, why did the Home Office not move? I have to say that I find it truly extraordinary, when we have a lot of complaints about judges trying to make law rather than interpreting the law and adjudicating on it. Actually, we seem to have abdicated that responsibility, leaving it to judges to make the law. I had thought that it was the job of Parliament, Ministers and the civil service to identify problems and see whether they can be resolved within existing law, and then—if the law needs changing—to bring that change to Parliament. Why abdicate that to judges?
Let us look at one or two of the cases that were part of the Supreme Court’s judgment. P received a caution on 26 July 1999 for the theft of a sandwich from a shop. Three months later, on 1 November 1999, she was convicted at Oxford magistrates court of the theft of a book worth 99p and failing to surrender to the bail granted to her after arrest for that offence. She received a conditional discharge for both offences. At the time of the offences, she was 28, homeless and suffering from undiagnosed schizophrenia, which is now under control. She has now qualified as a teaching assistant and has committed no further offences, but she has been unable to find employment. That is a scandal. Why would the Home Office not respond to that and say, “This cannot be and this should not be”?
W was convicted by Dewsbury magistrates court on 26 November 1982 of assault occasioning actual bodily harm. At the time of the offence, he was 16 and the assault occurred in the course of a fight between a number of boys on their way home from school. He received a conditional discharge and has not offended since. He is now 47 and has difficulty obtaining a teaching job.
In 1996, Lorraine Gallagher was convicted at Londonderry magistrates court of one count of driving without wearing a seatbelt and three counts of carrying a child under 14 years old without a seatbelt, and there was a subsequent case in 1998. She has no other convictions. She qualified as a social carer and was admitted to the Northern Ireland Social Care Council register, and then she was rejected for employment as a result of failing the test. There are many other cases—I am sure many Members of Parliament have had them.
Frankly, it is scandalous that this issue has not been dealt with up to now. I doubt that, had I not had the luck of getting a question to the Prime Minister three weeks in a row—no, I did not tip the winner of the St Leger—it would even have got here by now. Why was the Prime Minister, certainly on the second occasion, not able to trump me and say, “This has all been sorted out”? This has been a saga of dither and delay.
A further problem is that the system finds it very difficult to cope with so many cases. Anybody who has moved from one conurbation to another—I get people who have moved from London to the midlands—have to get DBS checks from two police forces, and the record of the Metropolitan police has not been glowing in that regard. Month after month goes by, and those people are not able to get into employment. They are denied the ability to provide for themselves. That is partly to do with the efficiency of those forces, and partly about why these things cannot be done in parallel, rather than in series. It is also because we are overloading the system with so many unnecessary cases.
The Security Industry Authority is another one that has considerable problems. Those who remember the first police and crime commissioner elections know that those who had very minor convictions or cautions in their teenage years—they were often in their 50s or 60s —were denied the right to run as police and crime commissioners even if they were major figures in their local societies. This mindset at the Home Office must change.
I think, therefore, that colleagues on both sides of the House need to consider, as we approach Brexit and this country needs to be firing on four, not two, cylinders, whether we can afford this dithering, delay and obstruction that goes on regularly in so many Departments. Is it not holding back our country, as well as individuals? There is a real economic price to pay, quite apart from the social justice case. If we keep people in enforced unemployment or working in jobs that are below their capability and potential, that is not just bad for them but significantly bad for the country. Therefore, there needs to be a reflection particularly about the Home Office but also about the civil service generally.
We have had too many cases of this in the Home Office. We had the Windrush scandal, in which year after year, decent, hard-working citizens were deprived of their rights, treated with contempt, pushed around and treated scandalously. Even after it was exposed, very few of them received compensation—although, I do not know what the appropriate compensation would be for having their lives ruined. Some have already died, including one who used to work in the House of Commons, yet they rejected her claim. We have more and more delay and obstruction. I do not know how many people are still stuck, but my right hon. Friend the Member for Tottenham might.
Five thousand people are still stuck in the system, which will not give way. Frankly, it is that indifference—that contempt for ordinary people—that, bluntly, in previous eras of the civil service, led to the Irish and Bengal famines. This is a welcome change. It needs to go further, but there also needs to be a root-and-branch change in Government.
We were getting on so well! Hon. Members in other parts of the Palace may be heatedly debating certain issues, but I was hoping, from the constructive speech of the right hon. Member for Tottenham, that we could find agreement. Indeed, I acknowledge that he kindly indicated that the orders will not be subject to a vote, for which I thank him.
I also thank the right hon. Gentleman for his work on the Lammy review, on which he continues to keep a laser-like focus. Only recently, in answer to an urgent question, the Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham (Alex Chalk), updated the Chamber that, of the right hon. Gentleman’s recommendations, 16 have been completed, two have been rejected and 17 are in progress. I very much hope that he considers this measure to be one of the recommendations in progress that we hope to be finalised by the end of the year.
The hon. Member for Warley—
Forgive me. The right hon. Gentleman took a slightly different approach in his advocacy, but we acknowledge the passion that he brings to the subject. I merely confirm and reassure him that his PMQs will have been considered carefully by the Prime Minister, and that the Government will of course continue to consider carefully the Supreme Court ruling. It is precisely because we have been careful to ensure that we are following the guidance in that ruling that we have arrived at these orders.
I will clarify a couple of points in relation to the case that was argued, because the right hon. Member for Warley put a great deal of emphasis on the fact that common sense would have dictated that the Government change the policy before the Supreme Court ruling on the four cases that were joined. In fact, in the case of P, her convictions stood to be disclosed under the multiple conviction rule. W wanted to teach English, but as actual bodily harm is on the specified offences list, it will always be disclosed, and indeed, that decision was upheld by the Supreme Court. The case of Gallagher was again a case of the multiple conviction rule, and will be corrected by virtue of these orders.
The fourth case, which I do not think the right hon. Gentleman mentioned, was that of G, who received two reprimands aged 13 for sexually assaulting two younger boys, both aged nine. G claimed that the acts were consensual. He would have had the reprimand disclosed under the serious offences rule. The Supreme Court was content with that course of action. I hope that shows that, although one may have an instinct as to how certain rules should be applied, the Government must none the less take each case and be clear as to the consequences, intended and unintended, of changing the safeguarding regime.
If we take the case of W, the Supreme Court would have said, “As we understand the law, as the law is, this is what you should do.” The Minister said that the Supreme Court gave approval for the way the Government acted in the case of W. It then falls back to the Minister to justify how a conditional discharge that a 16-year-old received after a fight between a number of boys on their way home from school in 1982, since when he has not offended, should blight his life in his 40s. That is not a job for the judge, who has to work on the basis of the law at that moment. Why did Ministers not take from that example that they should change the law?
I am so grateful to the right hon. Gentleman because, although I am not sure that he realises it, he is supporting my argument, which is that the national framework that applies across England and Wales has to be drafted in such a way that is compatible with the law, and indeed the Supreme Court upheld that element of the regime. Of course, the case-by-case application of the regime is a matter for employers—that is the point made by my hon. Friend the Member for Eddisbury. Under this regime, in very vulnerable cases, and with the exception of the barred list, it is a matter for employers.
I emphasise that this does not apply to every single job out there; it applies to those that fall under the criteria of the regime—namely, jobs that deal with the most vulnerable in our society and that require high levels of trust and responsibility, including the security industry, for example. The Supreme Court has done exactly as it should have by reviewing the regime and saying that the specified offences list is within the rule of the law and the ECHR, so it is for employers to apply it to the individual cases. As the right hon. Gentleman for Warley knows full well, we in this place—with the best will in the world—cannot possibly imagine every which way that people conduct their lives or what misfortunes and troubles they may have, so we have to provide a framework that employers can apply and apply well.
The right hon. Gentleman for Warley mentioned the delay. To reassure the Committee, part of the work that we have been doing since the Supreme Court judgment has been to understand the likely effects of those changes. Analysts in the Home Office undertook detailed analysis of how the rule changes, if applied retrospectively, would have affected applicants for DBS certificates. The year 2015-16 was chosen because that was the last year for which we had full records at the time that the report was researched.
A peer-reviewed analytical report, which was published on 9 September, summarises the main results of the work. It shows that the changes affected a higher proportion of applicants for DBS certificates who received convictions or cautions while under the age of 18 than of applicants who received convictions fully during their adult lives. Some 85% of applicants with youth convictions or cautions would see at least one offence removed from their list of disclosed offences, while 32% see all their convictions and cautions removed. I give those figures as an indication of the thought and care that has gone into bringing the orders forward.
The right hon. Member for Tottenham urged the Government to go further. He will know that we are publishing the sentencing White Paper, which will contain further proposals for reform of the Rehabilitation of Offenders Act 1974 where the rules apply to non-sensitive roles. We are supportive of reducing the number of people who have previously offended who are required to disclose their convictions as part of basic employment checks. Of course, we need to consider safeguarding concerns, but I very much look forward to contributions from him and others as the sentencing White Paper is analysed and discussed.
The right hon. Gentleman for Tottenham also raised childhood rehabilitation periods, which will be considered along with potential changes to adult rehabilitation periods under the 1974 Act, where the rules apply to non-sensitive roles. Ministry of Justice officials have met charities with an interest in supporting children and adults who have offended in the past, as well as employer representatives, to discuss our approach. Again, the sentencing White Paper is very much part of that landscape. We have of course taken into consideration recommendations on this issue from the Justice Committee and from other reports.
I hope that I have responded to the questions that have been posed this afternoon. We are confident that the regime will still help employers to make informed recruitment decisions, particularly for roles involving children and vulnerable adults, but in a way that now enables those with old and minor offences to move away from their pasts. I commend the draft instruments to the Committee.
Question put and agreed to.
That the Committee has considered the draft Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2020.
Draft Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2020
That the Committee has considered the draft Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order 2020.—(Victoria Atkins.)
Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020
The Committee consisted of the following Members:
Chair: Derek Twigg
Aiken, Nickie (Cities of London and Westminster) (Con)
† Atherton, Sarah (Wrexham) (Con)
† Browne, Anthony (South Cambridgeshire) (Con)
† Crosbie, Virginia (Ynys Môn) (Con)
† Dorries, Ms Nadine (Minister for Patient Safety, Mental Health and Suicide Prevention)
Jarvis, Dan (Barnsley Central) (Lab)
† Jones, Mr Kevan (North Durham) (Lab)
† Madders, Justin (Ellesmere Port and Neston) (Lab)
† Nici, Lia (Great Grimsby) (Con)
Sheerman, Mr Barry (Huddersfield) (Lab/Co-op)
† Shelbrooke, Alec (Elmet and Rothwell) (Con)
† Stringer, Graham (Blackley and Broughton) (Lab)
† Sunderland, James (Bracknell) (Con)
† Throup, Maggie (Lord Commissioner of Her Majesty's Treasury)
† Vickers, Martin (Cleethorpes) (Con)
† Western, Matt (Warwick and Leamington) (Lab)
† Whittome, Nadia (Nottingham East) (Lab)
Bradley Albrow, Committee Clerk
† attended the Committee
Third Delegated Legislation Committee
Monday 14 September 2020
[Derek Twigg in the Chair]
Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020
I beg to move,
That the Committee has considered the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020 (S.I. 2020, No. 791).
It is a pleasure to serve under your chairmanship, Mr Twigg. The regulations were made by the Secretary of State on 23 July and came into force on 24 July. We introduced the regulations to make it mandatory to wear face coverings in some indoor settings in England, such as shops, supermarkets and indoor transport hubs. The regulations are exceptional measures that have been brought forward to mitigate the unprecedented impact of the covid-19 pandemic, and they comply with all the Government’s obligations in relation to human rights.
I am grateful to the Minister for giving way so early in the debate. My intervention is relevant to the first point that she made. Paragraph 3.1 of the explanatory memorandum says that the order was laid on 23 July “by reason of urgency”. What was the urgency at that time, when this matter had been under debate for at least three months?
I will look further into what the urgency was, but I imagine that the evidence that we were getting at the time was that face coverings could prevent people who might be asymptomatic from spreading or contracting the virus. Any measure that can stop an increase in the incidence of coronavirus would have been deemed necessary to halt coronavirus, to stop it increasing in the community and to save lives. I will come back to the hon. Gentleman with further information on that.
The regulations are exceptional measures that have been brought forward to mitigate the unprecedented impact of the covid-19 pandemic, and they comply with all the Government’s obligations in relation to human rights. Above all, the regulations can help to save lives. I urge the Committee to approve the regulations, so that we may continue to use these powers to save lives. The regulations are a necessary response to the seriousness of the situation and the imminent threat to public health that is posed by the spread of covid-19, which is why they were brought into effect under the emergency procedure approved by Parliament for such measures.
It is important that the Committee is able to scrutinise the regulations through this debate. Further amendments were made to the regulations to extend the requirement to wear a face covering to a wider list of indoor settings that are now open to members of the public. Those amendments will be debated at a later date. This debate will therefore focus only on the regulations as they were originally made in July. This country has been, and still is, engaged in a national effort to beat the coronavirus, thanks to the hard work and sacrifice of the British people. Guided by the science, this progress has allowed us to cautiously ease lockdown restrictions, allowing sections of the economy, such as the retail and hospitality sector, to reopen.
I am grateful to my hon. Friend; she is being very generous with her time.
I want to return to my hon. Friend’s comment about the regulations being debated in the House at a later time. Is she saying that we will eventually debate them in the House? I will support the regulations, so she need not worry. We are where we are, but there is a lot of debate about whether face coverings are necessary, and it needs to take place on the Floor of the House. Is the intention that the regulations will be debated on the Floor of the House?
These regulations are up for debate every six months anyway, because they are only temporary. Even at that point, they would be up for debate. I cannot tell my right hon. Friend when they will come before the House, but they certainly will do at some stage, particularly as we have an obligation in law to bring them to the House for debate.
To coincide with the easement of some restrictions, we introduced the regulations to give members of the public the confidence to visit public indoor spaces safely, and to enhance protections for people working in such settings. This was explained by the Secretary of State when he addressed Parliament on 14 July and announced the measures.
There has been support for the policy in the retail sector. For example, the chief executive of the British Retail Consortium said that, together with other social distancing measures, face coverings can make shoppers feel even more confident about returning to the high street. Additionally, the chair of the Federation of Small Businesses said:
“As mandatory face coverings are introduced, small firms know that they have a part to play in the nation’s recovery both physically and financially, and I’m sure this will be welcomed by them.”
Therefore, we are confident that this was the right step to take.
The Government have continually reviewed and refined their advice on face coverings, led by the latest scientific evidence. Prior to the regulations, the Government were already advising the wearing of face coverings in enclosed spaces where people might find it difficult to maintain social distance and might come into contact with others they would not usually meet. Furthermore, face coverings have been mandatory on public transport in England since 15 June. While face coverings are not a substitute for social distancing and good hand hygiene, the scientific evidence suggests that, when used correctly, face coverings may have some benefit in reducing the likelihood of those with the infection passing it on to others, particularly if they are asymptomatic.
I will come to explain that a little further in my speech, but we take the evidence on face coverings from a variety of sources: not only the Scientific Advisory Group for Emergencies but the behavioural insights team at the Department of Health and the New and Emerging Respiratory Virus Threats Advisory Group.
When the retail sector reopened and footfall increased, we wanted to enhance protections for members of the public and ensure we were taking the necessary steps to build on the progress we continued to make in reducing the transmission of the virus. That is why we have made it mandatory to wear face coverings in indoor places such as shops, supermarkets and enclosed shopping centres. Similar measures have been adopted in Scotland and Northern Ireland and internationally in countries such as France, Germany and Spain, to name just a few.
I will now outline what the regulations do and set out the policies and processes underlying their development, implementation, monitoring and review. As I have said, the regulations introduced a requirement on members of the public to wear a face covering in relevant places such as a shop, supermarket, enclosed shopping centre and indoor transport hub unless they are exempt or have reasonable excuse not to. The regulations do not apply to employees working in those settings. The wearing of any protective clothing or personal protective equipment by the workforce is a matter for employers following a risk assessment and is part of their health and safety responsibilities. Definitions of shops and transport hubs are included in the regulations, as well as a list of premises that are excluded and where a face covering is not mandatory: for example, restaurants and bars.
The list of settings included reflected the premises that were open to the public at the time of making the regulations. As more settings reopened to members of the public, the regulations were amended to include additional indoor settings and provide more clarity to members of the public on where face coverings must be worn. Those amendments will be debated in due course.
Guidance on gov.uk describes a face covering as a covering of any type covering the wearer’s nose and mouth. People should make or buy their own. Guidance has been published online on how to make and wear a face covering. We are asking people not to use medical-grade PPE as that should be reserved for health and care workers. However, someone wearing PPE would be compliant with the regulations.
While the Government expect the vast majority of people to comply with the rules, as they have done throughout the pandemic, the regulations give powers to the police and Transport for London officers to ensure the requirements to wear a face covering. This could include denying entry to the relevant place and/or directing members of the public to wear a face covering. The police will use the usual four Es approach: explaining engaging and encouraging—and enforcing only as a last resort. In the event that a person fails to comply with a direction from a police officer or a Transport for London officer, a police constable is able to remove the member of the public from the relevant place.
The regulations also include powers for police constables, police community support officers or a TfL officer in relation to the relevant transport hub, to issue a fixed penalty notice to anyone over the age of 18 who is in breach of the law. At the time of making the regulations, that was a fixed penalty of £100, reduced to £50 if paid within 14 days of the notice being issued. Since making the regulations, we have made amendments to the penalty structure, with increased fines for repeat offenders. That is in line with the enforcement provisions in other coronavirus regulations. Parliament will have the opportunity to debate that amendment at a later date.
Although we want as many people as possible to wear a face covering, we recognise that some people are not able to wear one, for a variety of reasons. The regulations exempt children under the age of 11, employees or officials acting in the course of their employment in these premises, and emergency responders. There is no general exception on health or disability grounds. To reiterate, we recognise that, for some, wearing a face covering is not possible or would cause distress or difficulty, and there are certain situations in which wearing a face covering is not practical or reasonable.
The regulations provide a non-exhaustive list of circumstances that constitute a reasonable excuse, pursuant to regulation 3(1), for not complying with the legal requirement to wear a face covering in a relevant place. Such circumstances include where a person is unable to put on or wear a face covering because of physical or mental illness or impairment, or disability; where a face covering needs to be removed for communication through lip reading; where a person needs to remove their face covering because it is reasonably necessary to eat or drink; or where a person is required to remove a face covering for identification purposes. There is comprehensive guidance on what might constitute a reasonable excuse, including circumstances that are not expressly included in the regulations—for example, when a person is speaking to or providing assistance to someone who relies on facial expressions to communicate, or where a person needs to remove a face covering to exercise.
I just want to build on that point. My hon. Friend will be well aware that I myself have impaired hearing. It is incredible, but what I have discovered is that you may think that you can hear someone, but unless you can see their lips moving, you cannot hear them. And that is in the normal context—I can hear everything perfectly well in this room right now, but if it is a busy area, I cannot. I am therefore grateful to my hon. Friend for making that clarification. I think that there should perhaps be a little more emphasis, for the understanding of people outside the House, that actually even those of us who are not registered deaf or anything like that do rely on seeing lip movement to hear people in a crowded room.
Having known my right hon. Friend for some years now, I of course do know that, and my own mother is almost totally deaf. It is incredibly distressing, particularly for the elderly who are deaf and can no longer hear/see what people are saying to them. I take on board my right hon. Friend’s point about deafness and face coverings. Taking all that into account, and even with my own personal life experience of how it affects people, I am still absolutely supportive of the fact that, on the basis of scientific evidence and recommendations to us, this is a necessary move, one that we have to undertake, to stop the increase of the virus within communities.
We have been working with stakeholders to ensure that staff are aware of the exemptions in place and that some people will not be able to wear a face covering. We are also clear that people do not need to prove that they are exempt from, or have a reasonable excuse regarding, the requirement to wear a face covering, and they should not be challenged about that. These regulations have been supported by a communications campaign explaining where face coverings are mandatory—I take my right hon. Friend’s point; that may need to be ramped up—how to wear one safely and encouraging understanding and awareness of those who may not be able to wear a face covering. We have set out the full details of this policy in our guidance.
As expected, reports indicate widespread compliance with the requirement to wear a face covering in relevant indoor settings, and surveys suggest that there is significant public support. The Office for National Statistics public survey showed that, in the period from 29 July to 4 September, at least 96% of adults in England had worn a face covering when shopping. The figure has remained consistently high. However, we should not expect participation to reach 100%, as there will always be those people who are exempt or have valid reasons why they should not be wearing a face covering.
Included in the regulations is a review clause requiring a review of the need for the requirements imposed by the regulations at six months—to answer the question about that. A sunset clause is included, so the regulations will expire at the end of 12 months after the day they come into force.
We will continue to monitor the impact and effectiveness of the policy in the weeks and months ahead, and we will develop our approach of enforcement and communicating the policy as necessary. I am grateful to all hon. Members for their continued engagement in this challenging process and in the scrutiny of the regulations. We will of course reflect on the debate to come. I commend the regulations to the Committee.
It is a pleasure to see you in the Chair, Mr Twigg. I thank the Minister for her detailed introduction. As she said, the instrument requires members of the public to wear a face covering when in the relevant place. It came into effect on 24 July.
I will be clear from the outset that we support the instrument. As the Minister said, it is an exceptional measure, but we are in exceptional times and we all have to play our part in beating the virus. Unless someone has an exemption, it is important that, where advised to wear a mask, we all should. That is important for not just keeping each other safe, but opening up the economy and saving people’s livelihoods.
As the Minister outlined, the regulations define a relevant place as a shop, including shops, supermarkets and enclosed shopping centres. It does not include areas of shops and shopping centres that are provided for the consumption of food and drink, such as seating areas provided in coffee shops, supermarket cafés and food court areas in shopping centres. It covers transport hubs, including any enclosed stations, terminals, ports or other similar premises from or to which a public transport service operates.
The regulations do include transport hubs, and they are clear about TfL having the powers to issue fines in London, but they are sketchy on other transport hubs, many of which, civil servants may wish to know, exist outside London.
As we have commented from time to time, it seems that to this place, there is not much life outside London. Of course there are a number of transport operators operating up and down the country that the regulations do not cover. For example, my public transport operator on the railways, Merseyrail, has said that it does not currently have the powers for its staff to be able to enforce the regulations. That will certainly need to be ironed out in future regulations.
The regulations that require a person to wear a face covering unless they have a reasonable excuse also set out the categories of people to whom the requirement does not apply. They include children under the age of 11, shop employees in the course of their employment, and a non-exhaustive list of what may constitute a reasonable excuse.
I have some questions about some of the specific provisions in regulation 3 in relation to the requirement to wear a face covering, particularly regulation 3(2)(b) where the requirement does not apply to someone working in the course of their employment. The Minister set out that the regulations are not intended to cover workplaces, because employers are expected to deal with that. I appreciate that employers have a legal responsibility to create covid-secure environments, but there will be occasions when the workplace or the nature of the work mean that that is not possible. Will the Minister explain the Government’s position in respect of those situations, especially given that they are encouraging people to return to work where possible?
Regulation 3(2)(c) says that the requirement does not apply to
“any other person providing services in the relevant place under arrangements made with the person responsible for a relevant place”.
That is catchy; it trips off the tongue. The list of relevant places is in part 1 of schedule 1, but will the Minister explain who
“any other person providing services”
is intended to cover?
Part 2 of schedule 1 contains a list of premises where there is an exemption to the requirement for face coverings. Some, such as dentists, are obvious, but others, such as cinemas, theatres and libraries, require a little further explanation as to why they are exempt.
Will the Minister say a little more on that point?
These regulations were laid before Parliament on 23 July —the day after the House adjourned for the summer—despite the fact that they were announced on 14 July and, as my hon. Friend the Member for Blackley and Broughton pointed out, were discussed extensively for many weeks previously. As the Minister is acutely aware, the Opposition have repeatedly called for regulations to be debated before they come into force. I have raised the issue of new regulations being introduced and not debated until weeks later on every occasion that we have discussed coronavirus regulations. It is seven weeks later in this instance.
It was acknowledged when we were debating a previous set of regulations that the Government are aware of Parliament’s concerns about allowing the timely scrutiny of regulations, particularly in relation to the timing of the debates. The Government indicated that they would endeavour to hold the debate as soon as possible after the regulations were laid before Parliament. I have made it clear on numerous occasions that we accept that the initial coronavirus regulations had to be introduced hurriedly in response to the initial threat from the rising number of infections from what was, at the time, a new, unknown disease.
To elaborate on the point about the timing, we understand that these things have to be introduced rapidly, and therefore it is not necessarily possible to carry out the legislative process quickly, but a debate is very important, as the right hon. Member for Elmet and Rothwell said. To return to paragraph 3.1 of the explanatory memorandum, the point is that these regulations were introduced in response to a serious and imminent threat to public health. The peak of the first wave was on 11 April —three and a half months earlier.
My hon. Friend is absolutely right. We have, for now at least, got over the peak, although it seems that that may be changing. The explanation that the Government put forward at the time for the way these regulations were being introduced no longer applies. We have been dealing with this virus in this country for more than six months, and we really should be able to deal with legislation before it comes into force.
Members on both sides of the House and in the other place have repeatedly expressed their desire for these debates to be held in a timelier way to ensure full parliamentary scrutiny. Despite those multiple pleas and the Government’s assurances that they have listened to those concerns and are working hard to address the problem, it seems that, every time, we are still facing a rubber-stamping exercise seven weeks down the line. The Government think that that is enough to meet their democratic obligations; well, I disagree. Parliamentary scrutiny cannot be ditched because the timing is inconvenient. These regulations are too important not to be debated and given full and timely parliamentary scrutiny before they become law.
Senior Government Members raised concerns about the way legislation is being introduced, in response to the statement of the Secretary of State for Health and Social Care last Thursday. The weekend was full of senior Government Members raising concerns about the regulations that are coming into force today—again, without parliamentary scrutiny. It was not until about 11.45 pm last night—15 minutes before the regulations became law—that a copy of the new regulations appeared online. That gave people no time to examine them before they came into force, let alone allowing any opportunity for debate or scrutiny. That is no way to manage legislation or to govern. The Government’s handling of this pandemic has been too slow throughout, and they cannot continue to be slow in the way legislation is scrutinised.
I make this plea, as I have done on a number of other occasions: the Government should be aware that we remain extremely concerned about the continuing contempt being shown for parliamentary scrutiny. They can and should make the time to debate regulations before they become law. This week, former leaders of the Conservative party have been lining up to express their concerns about the Government’s proposals to act outside the law. Debating these issues before they become law is one way to restore public trust. It would say to people that the rule of law matters in this country, that the rules apply to everyone, that these restrictions are serious, not an optional extra, and that the Government do not consider themselves to be above the law.
We believe it is possible to arrange through the usual channels for these Committees to be set up at short notice, so that important regulations such as these are debated in a proper manner before they become law. If necessary, I will clear my diary to ensure the Opposition play their part in ensuring proper scrutiny and accountability for such regulations. We really do need to restore that—to get back to a position in which the rule of law is important in this country.
There also remains a question about why there was such a length of time between the announcement that these regulations were coming in and the laying of them. If the Government were really endeavouring to show they had listened, why did they not lay the regulations sooner, to ensure they were debated before recess and before they came into force? This concern was echoed in the other place, where a regret motion was tabled by Baroness Thornton. That motion said
“that this House welcomes the introduction of the Regulations, but regrets the delay in bringing forward the Regulations as Her Majesty’s Government has advised the public to wear face coverings in enclosed public spaces since 11 May, announced that face coverings would be mandatory in shops from 24 July on 14 July, and laid these Regulations under the made affirmative procedure on 23 July; further regrets that this delay has caused confusion over where people will have to wear face coverings due to the absence of detailed legal requirements being available in advance; and notes the concerns of the Secondary Legislation Scrutiny Committee in its 19th Report, published on 25 June, which urged Her Majesty’s Government ‘to ensure that the legislation follows on more closely from any announcement that they have made.’”
That sums up our concerns very neatly.
That regret motion also picks up on another issue that I am keen to raise, which is why it took so long for the Government to advise the public to wear face coverings, when the risks associated with airborne transmission were already known. As my hon. Friend the Member for Blackley and Broughton said earlier, these matters were being debated for several months before they became law. The World Health Organisation has long recommended wearing face masks; the Secretary of State himself has warned about asymptomatic transmission, and his own advice, published on 11 May, advised in favour of wearing face masks.
I want to pick the hon. Gentleman up on that point about the WHO recommending face masks, because it was not clear. It was a movable feast. Personally, I question the way in which face masks are being used, and I would like to see the issue debated, but that is a debate for another day. However, in defence of the decisions that were taken, I would challenge the hon. Gentleman on that particular point. I do not think the information from the WHO was entirely black and white; I think it was changing as it went along.
I thank the right hon. Gentleman for his intervention. He is correct that the WHO position was not absolutely certain to start with, but it crystallised at a much earlier point than when these regulations were introduced. It is also the case that the Government’s own advice from 11 May was that face coverings ought to be worn, so the question is why it took two months to make this advice mandatory, and another 11 days for this measure to come into force. Given that the Government’s own guidance issued in May advised in favour of face coverings, one can presume that, at that point, it had been decided that the science told the Government that it was in the interests of public health to wear face coverings. I am therefore at a loss to understand why it took so long to make that advice mandatory. I hope that when the Minister responds, she is able to shed some light on that.
It is fair to say that there is a difference between dealing with someone in a clinical setting and dealing with them on a day-to-day basis, but there is no doubt that, at a very early stage, there was evidence to suggest that the virus would be transmitting through the air. I think the reason it took so long to get where we ended up is to do with the question of how effective face coverings would be outside of a clinical setting. Nevertheless, the Government’s position was very clear from early May, yet it has taken until now for us to debate these regulations.
The regret motion also rightly raises concerns about the confusion that was caused regarding where people were required to wear face coverings, due to detailed legal requirements not having being made available in advance. I am sure the Minister will acknowledge that there was confusion at the time, given that Cabinet Ministers themselves appeared to be confused by the mixed messages. We all remember the debate on the Pret paradox that the Chancellor of the Duchy of Lancaster was involved in. Within three days, the Prime Minister said he favoured face coverings, the Chancellor of the Duchy of Lancaster said he did not and the Justice Secretary said he was not sure, but he was perhaps in favour. That kind of conflicting advice and those confusing statements from Government are not helpful in our fight against the virus. We need clear communication from the Government. That is vital in combatting the spread of covid-19.
We needed it then, and we need it now. Going forward, clear and consistent messages about the wearing of face coverings are absolutely required. Clarity was also missing in the situation concerning schools reopening, with another 11th-hour U-turn from the Government on secondary school pupils being required to wear face coverings in school corridors in local lockdown areas in England—an announcement that was made just days before schools returned. Even then, new guidance that allows headteachers in any secondary school the flexibility to introduce masks in their schools was half-baked, leaving the National Education Union describing the way the decision had been reached as “slow” and “incoherent” and saying that it would not inspire confidence from parents or teachers. The National Association of Headteachers said:
“It is neither helpful nor fair to ask school leaders to make individual decisions about face coverings in their school.”
It has been reported that some universities require face coverings to be worn in all shared indoor spaces, including study settings, while others do not. Again, that responsibility should not be placed on individual institutions. Universities have been calling for clear national guidance on the use of face masks on campus to help reduce the spread of the virus. As many students have already returned to university, can the Minister say whether there will be any last-minute guidance for universities?
The regulations permit a relevant person, namely a police constable, a police community support officer or a TfL officer in
“any transport hub from or to which a TfL public transport service is provided”
to deny a person entry to the relevant place, or to direct members of the public to wear a face covering or to leave the relevant place if they are not wearing a face covering.
It is actually worse than that. I have no problem with a community support officer or a police officer issuing someone with a fixed-penalty fine, because they have the training and expertise to do that. It does not sit comfortably with me that these regulations extend those powers to a large number of people who would not normally have the authority to give out such fines.
No, it is worse than that. I am comfortable with a police officer being able to issue the fine, but these regulations do not define what a TfL officer is. It could be anyone TfL decides. There is a catch-all later in the regulations that says they are
“a person designated by the Secretary of State.”
Surely, extending the ability to be able to issue a fine in that way is pretty draconian.
It is an important point that we are giving, to use my right hon. Friend’s term, draconian powers to people, but that is deemed necessary to fight the spread of the virus. The issue that we on the Front Bench have is whether the resources and the appropriate training are following those powers. At the moment, it seems there is a huge gap.
Turning back to the powers, and the ability to issue fines and require people to move on, we need clarity on how those requirements will be enforced, as my right hon. Friend said in his intervention. When the legal requirement to wear a face covering when using public transport was introduced in June, and then in shops the following month, it clearly appeared that the police did not see it as their role to enforce that. I know from my own constituency that there is little enforcement happening on public transport. I have had multiple constituents complaining that when they go on buses and trains, some travellers seem able to travel without face coverings and are not being challenged. Bus companies say they will not put their drivers at risk. I mentioned Merseyrail earlier, which operates in my constituency on the railways, and it says that it has not been given the powers to intervene.
We have this strange situation where, as my right hon. Friend the Member for North Durham says, there seem to be very broad powers being given to a wide range of people, yet other people, who we would think are pretty obviously the right people to have them, have not been given them.
As I said earlier, these are very London-centric regulations, because they refer to TfL but do not refer to other types of transport operators. However, the catch-all is in regulation 7(11)(d), which talks about the people who can give fines. It says that the authorised person will be
“a person designated by the Secretary of State for the purposes of this regulation.”
There is no list in the explanatory memorandum of the people who could be authorised. Is there any guidance on that? There is nothing at all in the explanatory memorandum to say who is being given those powers. It could potentially be anybody.
My right hon. Friend makes a very fair point. I do not know whether that power relates to the announcement last week about covid marshals; we are still waiting for further information on them. I hope that the Minister will be able to clarify who that particular measure relates to and whether that power has been exercised at all so far, because, clearly, one of the things that we do not want to see, in terms of public confidence in and adherence to the rules, is people about whom we have had no warning or indication that they have the power to enforce these rules coming along and starting to do so. That will create friction, tension and uncertainty. We absolutely need crystal clear clarity from Government about who is able to enforce these rules and the circumstances in which they are able to do so.
I was referring to the problems on public transport, in particular, but the same problems arise in the retail sector. Many of the major supermarkets—Sainsbury’s, Asda, Morrisons and the Co-op—have all said they will not ask their staff to police the rule, but will instead urge shoppers to play their part, through signs and public address announcements in store. Of course, it is absolutely right that most people do play their part, and that many people have legitimate reasons for not wearing a face covering, but it remains the case that there is an element out there who will not wear a face covering on a point of principle. I am not sure what that principle is, but it is causing difficulty.
A survey of shop workers carried out last month by the Union of Shop, Distributive and Allied Workers found that 75% of shop workers had been abused by customers who were asked to socially distance, and almost half had experienced abuse as a result of asking shoppers to wear face masks. That is totally unacceptable; nobody should face abuse for asking people to comply with public health measures.
At the moment, however, I am concerned that such reprehensible behaviour by members of the public is going unpunished. In July, the Prime Minister increased the pressure on the police to uphold face mask laws. It was a task that was described as “impossible” by the national chair of the Police Federation, who said that forces did not have the staff or the resources to ensure compliance. We all know the pressures on the police and the reduction in their numbers that has happened over the last decade, so it is not enough for them to be handed additional responsibilities if those responsibilities are not accompanied by sufficient resources for them to be able to do their job. When the Minister responds, will she therefore set out what resources have been handed to the police to ensure that these measures are complied with?
Of course, as we have already referred to, the Prime Minister has announced that there will be covid marshals to enforce the new rule of six. Local council leaders, who it is assumed will take over responsibility for such marshals, have already said that they are not in a position to resource them, having already faced a significant multi-million pound shortfall in their finances this year. When the Minister responds, will she confirm whether covid marshals will be required to enforce the wearing of face coverings, as is possibly implied by the regulations, and if so, how will they be funded?
I understand absolutely the Government’s desire to try to get the economy moving again and to encourage people to go back to work and to shop, but those efforts will go unrewarded if people do not feel confident enough to go out because they feel, and indeed see, that the rules on face coverings are not being properly enforced.
In her opening speech, the Minister talked about the importance of confidence for people returning to the workplace and for retail. It is really important that that confidence is supported by a rigorous and universal enforcement regime. In that regard, I would be grateful if the Minister could set out how many fixed penalty notices have been issued so far under these regulations, and whether she has any details of the geographical areas or physical settings where penalties have been issued in greater numbers.
Finally, I will say a few words on the converse situation—people who are exempted from wearing coverings and why. I am sure that many Members will have been contacted by concerned constituents who, when they have been shopping, felt uncomfortable at the numbers of people not wearing a mask, or who have actually been confronted with abuse as a result of not doing so. We see stories in the press about people unable to comply with wearing a face covering for health reasons being challenged and abused and then being afraid to go out. Many charities, including Mind, Dementia UK, the National Autistic Society, Mencap, Asthma UK and Sense, have called on the Government to mount a public awareness campaign about hidden disabilities and the mask exemption rules, which allow for those who find it difficult because of physical or mental illness or disability, those who assist someone who relies on lip reading to communicate and those for whom wearing a mask could cause severe distress to be exempted from wearing a face covering in shops or on public transport. The Minister said in her opening remarks that there had been a public awareness campaign, and indicated that it might be “ramped up”, to use her terminology, so I will be grateful if she could advise on when we are likely to see that, given that these rules are likely to be in place for some time to come.
I will also be grateful if the Minister could say a little about the “severe distress” exemption. I do not want to spell out some of the reasons why people may need to rely on such an exemption, but as it is a subjective and broad exemption, it is open to misuse. Is the Minister aware of individuals who, when challenged, have sought to rely on such an exemption inappropriately, and the response of the enforcement body?
On the point of being able to communicate, as we heard from the right hon. Member for Elmet and Rothwell, I am sure that many of us have been contacted by constituents concerned about the impact of the use of face coverings on deaf people and those with hearing loss who rely on lip reading and facial expressions to communicate. Back in June, the Government confirmed that they had been in discussion with audiologists in the NHS about the use of face coverings and what can be done to reduce the impact on those who rely on lip reading, so can the Minister update us on what steps the Government are taking to ensure all their face covering policies are inclusive for people who may have hearing loss?
In conclusion, we will not seek to divide the Committee on these regulations, but, as I hope I have shown in raising a number of issues, I believe that our democratic process deserves better than for such an important law to be debated so long after it has come into force. I hope the Government finally act on those concerns and hand back control to this Parliament.
It is a genuine pleasure to see you in the Chair this evening, Mr Twigg. This is first time I have served under your chairmanship, and I look forward to doing so on many further occasions.
There are a number of things I would like to say about this statutory instrument. Some relate to process, some to science and some are political. On the process, the Minister, for whom I have every respect, made the point that these regulations last for only 12 months, which is absolutely right. However, the downside is that when regulations last for only 12 months, no regulatory impact assessment is required. A regulatory impact assessment would of course have answered some of the questions asked by the right hon. Member for Elmet and Rothwell, as well as by my right hon. Friend the Member for North Durham, my hon. Friend the Member for Warwick and Leamington and my hon. Friend the shadow Minister. That is to be regretted, but it is part of a bigger lack of scrutiny, which I will come to in a minute.
First, I want to make a very general point. I do not envy the Secretary of State for Health and Social Care, any Health Minister, or, indeed, any Minister from other parts of the Government who has to deal with these issues. They are really difficult. People have died. It is difficult to know what to do. When Ministers and the public pray in aid science—of course science should be looked at—I think people sometimes misunderstand its capabilities. If someone wanted to find the escape velocity of a rocket to leave the earth’s gravitational pull, they should go to an astrophysicist, who would give the exact figures. If they are given the weight of the rocket, they will be able to say the force required to reach that velocity, because physics in that sense is an exact science.
The science surrounding this pandemic is not exact and cannot be exact, partly because it is a new virus and people do not know anything. I suspect it will surprise members of the Committee to know that, as far as I am aware, in real situations or in laboratories, no experiments have taken place on covid-19. We are relying on experiments on other germs, bugs, viruses and bacteria, and on other kinds of experiments.
I will come back to the science, but the biggest point, on which I think I am in agreement with the right hon. Member for Elmet and Rothwell, is that there should be much more scrutiny of this legislation. I recently read the Lords Hansard from when the Coronavirus Act 2020 was passed. In that debate, phrases were used such as, “It would normally be anathema to a democratic Parliament to pass these regulations,” and, “Unprecedented powers are being given to the Government.”
The Minister in the Lords gave all the assurances one would have expected him to give: at the appropriate time, when these wide and extensive powers were used, there would be proper parliamentary scrutiny. It is not just about this SI—there have been many such statutory instruments laid and used, in terms of levels of fines and what is and is not against the law, that have yet to receive parliamentary scrutiny. We have been back here for some time. That is a breach of trust, given that all the parties gave the Government support for the Coronavirus Act 2020.
To go back to the science, one problem Ministers have is that most of them do not have a scientific background and, therefore, have not challenged the scientific advice, which cannot be that precise. In early April, the deputy chief medical officer said that masks should not be worn and that they even have a negative effect. I can understand why Ministers followed that. A few days later, on 16 April, the Secretary of State for Transport said that wearing masks would have a negative effect. In the next month, masks were introduced on transport and now we have them in shops and all sorts of places. Challenging the advice and asking for its source in the first place might have led Ministers to reach different decisions earlier, and even to different decisions leading to this SI.
Most of the evidence on masks has come from experiments with mannequins, which are difficult to do, conducted in laboratory settings, not real settings, so when the Government’s scientific adviser and other scientists say that there is no evidence that masks work, they are right, partly because no experiments have been done on this virus. Also, in the experiments and work that have been done we have not had the scientific gold standard of being able to test one experiment against a double-blind experiment.
That is part of the science background. The Government now come along and said that there is some evidence to suggest that, when used correctly, face coverings might have some benefit in reducing the likelihood of getting the virus, but common sense and the non-covid experiments tell us that. The Government advise putting a scarf over one’s face or getting a mask, which is actually not in line with the World Health Organisation’s recommendations. Following experiments conducted not on the virus but by firing laser beams at masks in Australia, published in the Thorax journal, the World Health Organisation recommended that three-layer masks are better than two-layer masks. The Welsh Government have followed that recommendation of having three layers. Our Government say that two is probably okay, but people can do anything they want. Having moved from saying that masks were of no use to saying they are now of some use, they are not using the best scientific advice, which the Welsh Government are using, to advise on which masks should be worn. I think that is a mistake. We have to go one way or the other. It is understandable that Ministers do not always challenge the advice.
When I asked what the latest evidence was, I expected the Minister to say that there was a large meta-study done by Professor Melinda Mills of the Leverhulme Centre in Oxford. It was not fundamental research, but the study looked across the board at all the papers that had been done and found that 120 countries were advising on masks, so we would have been massively out of step not to follow the advice. I realise that the original advice was not in accordance with that, but the Government could probably have moved earlier and more effectively, with parliamentary scrutiny, to the conclusion that they have reached. The Lancet, which has criticised the Government’s tardiness and slowness on this matter, and could have argued with Professor Van-Tam and any of the other advisers, has pointed out that lack of evidence does not mean the evidence is not there. They could quite easily have challenged those things.
Finally, on the point that my right hon. Friend the Member for North Durham made, I was at a meeting at the weekend with leaders of local authorities and some of the Greater Manchester MPs and there was no support from anybody for the Government’s proposals on marshals. Will the Minister guarantee to the Committee that untrained marshals will not be given enforcement powers that would normally lie with well-trained public health officials or the police? The last thing we want is busybody marshals upsetting members of the public by being over-officious. The confusion of the Government’s messages in this and other areas has meant that many members of the public, particularly younger people, have lost trust in the Government’s message and are no longer following it. What would make that situation worse was if we had untrained marshals throwing their weight about and upsetting the public so that there was even less support for what might well be necessary regulations.
It is a pleasure to serve under your chairmanship, Mr Twigg. I agree with my hon. Friend the Member for Blackley and Broughton on the lack of scrutiny of much of this legislation, and even a cursory glance at the regulations shows that we are extending quite draconian powers to people who, in my opinion, should not have them.
My hon. Friend just referred to mixed messages. Well, we are putting mixed messages in legislation here, and I have to say, if it had been properly debated, some of those things would have been questioned. He mentioned marshals, for example, which I will come to in a minute.
I want to pick up on the issue of sign language, which was mentioned by the right hon. Member for Elmet and Rothwell. It is referred to in the legislation under reasonable excuses, but it is portrayed in a very strange way. Regulation 4(b) states that a person—“P”—has a reasonable excuse if:
“P is accompanying, or providing assistance to, another person (“B”) and B relies on lip reading to communicate with P”.
Are we saying that anybody who lipreads needs someone else and they must go around in twos? Clearly, if someone lipreads, they often do it when they are on their own. Is the legislation saying that the only time that they would be exempt is when they had someone with them? Is that what the Minister is saying? That, frankly, is bonkers.
I know a lot of people who lipread and they do not need someone accompanying them all the time to go about their business. To put that in the regulations just shows sloppiness—reading some of the things in the instrument, this is like shooting fish in a barrel. I find it disturbing, to be honest, that that is being written into the legislation as “reasonable”. A reasonable excuse should be that someone relies on lip reading, for example.
I will come to some of the other things that I think are draconian. I do not consider myself a libertarian, but I question when the state starts interfering in people’s lives to such an extent where I do not think it needs to and whereby, in doing so, it causes the opposite effect from what the Government are trying to achieve, which is to stop the transmission of the virus.
That brings me to my transport theme, which I will start with the definition of transport hubs in regulation 2(4):
“In these Regulations, ‘transport hub’ means any premises used as a station, terminal, port or other similar premises from or to which a public transport service operates”.
That is pretty straightforward—I think we would all agree with that—but then it goes on to an interesting point. It says that that does not include
“(a) an area which is not open to the public;
(b) an area where seating or tables are made available for the consumption of food and drink”,
so, does that mean that a transport hub with tables where people can have cups of coffee from the kiosk is not a transport hub? By this definition, it does. I can think of quite a few transport hubs that have cafés and kiosks selling teas and coffees, and seating areas where people sit to eat and drink, but if I am reading the legislation correctly, those are not classified as transport hubs.
Then we come on to the draconian measures of actually dishing fines out. Again, as I said earlier, the measure is London-centric. I would like the Minister to clarify the role of police officers, which here is quite strange. The regulations refer to “a constable”,
“a police community support officer”,
“in relation to any transport hub from or to which a TfL public transport service is provided, a TfL officer”.
Finally, they specify
“a person designated by the Secretary of State for the purposes of this regulation.”
Those are the four categories.
First, as to the category of constable, not all police officers are constables. There are sergeants and inspectors. Does that definition cover all those? Is it only someone of the rank of constable who can issue a fine? Community support officers are defined in legislation. I served on the Bill Committee many years ago, when the Conservative party opposed them.
What is the definition of a Transport for London officer? Who are they? Is it left to TfL to decide who they are, or is it only certain people who already have enforcement powers? Finally, there is the
“person designated by the Secretary of State for the purposes of this regulation.”
There is no list of those individuals in the explanatory notes, which brings us back to the point made by my hon. Friend the Member for Blackley and Broughton about marshals. Will they be given such powers?
As an example, let me take Durham city bus station, which is run by the county council. I think that it is open to the public but on private land. There are operatives there who clean the area and operate the bus station. They clearly do not have the same powers as TfL. Nor do I imagine do the people at many other bus stations. It concerns me not only that definition is lacking on TfL, but that there is a long list of other people who could have quite draconian powers to hand out fines.
Even if the Minister cannot provide it tonight, I would like a list of the individuals who are covered. That would make a difference: as my hon. Friend said, we have no problem with police officers enforcing laws—or community support officers, for that matter—because they have the training and expertise to issue fixed penalty fines and other things, but it sits uncomfortably with me that some person designated by TfL could suddenly have those powers, or, for that matter, anyone else the Secretary of State deems fit to give them to. Again, this is going against what the Government are trying to do.
I agree with my hon. Friend about the science around face masks. In the past months and weeks, the Government have said they are following the science, but are clearly not; they send contradictory messages—and so do the regulations, all over the place. These measures will give individuals powers that I do not think we should give them, and it would have been better if the Government had gone down the route of saying, “What is common sense?”
Clearly, there is currently a spike in cases, but people are not wearing masks in pubs and restaurants, are they, in large numbers? That is why we have had the nonsense this weekend about the rule of six. The important point is that if we are going to bring in measures, they must be proportional—but they must also be explained to people. I do not think that the Government have done that. They have made things worse, with contradictory bits of advice. Frankly, if the public knew the Government were going to give powers to untrained individuals to issue fixed penalty fines, then, no. The sensible approach to face masks is surely advice and support, rather than going down this route.
I will take a few moments to say some things to the Minister. I genuinely mean them as helpful comments, and I do not expect her to be able to answer them today. I will let her off the hook with that, and there are things to take away. I have a concern that has been explored slightly with the discussion of covid marshals, and it relates to data protection. We do not have the information on how some people will become covid marshals. Is it something that they volunteer for?
In my village, there is somebody—I will not name names—who has a very respectable profession but is known throughout the village for stealing personal information. He steals people’s personal phones, downloads the information and then causes trouble by texting and all sorts of things like that. We all know who it is. They could use their profession to become a covid marshal, and then they would get such data. I want to make a point to the Minister to take back to the Department and the Government, because I know she cannot answer my question today. What data protection provisions will be put in place for covid marshals? I assume that people will have to hand over quite a lot of personal data if they are stopped by somebody, and I have a genuine concern about the protection of that data.
On the point about covid marshals and data protection, we will get back to my right hon. Friend. A number of points have been made in a holistic and wide-ranging way by different people, and I will try to answer the specifics as much as I can. If I do not cover them all, hon. Members can shout at me; we will certainly ensure that they receive answers by tomorrow.
I will first address some of the wider points about lip reading, because there is some kind of misinterpretation of this. Somebody who has a disability, including deafness, does not have to wear a mask, nor does the person assisting someone. If a deaf person goes up to somebody in a shop and asks for help, the shop worker can remove their mask to provide assistance if they are told, “I can only lip read.” The assistant helping somebody with a disability or helping somebody to find their way—whatever need they have—can remove their mask. I wanted to make that clear.
Reference has been made to the fact that people are not wearing masks in pubs and restaurants, but they are socially distancing. There are hand sanitisers when people enter. As pubs and restaurants are keeping their staff safe, they are being very careful about how their clientele use their premises. I want to reiterate a point that I made in my opening speech: 96% of people wear masks.
On the question of why this took so long and the scientific evidence—a question that has been raised in a number of ways—we as politicians did not decide that it was now time for people to start wearing masks. That information comes to the Government and to politicians via a number of filters. It comes from SAGE. It then goes to the chief medical officer, the deputy chief medical officers—Jenny Harries and Jonathan Van-Tam—and, I think, Professor Stringer, our chief scientific officer. We then take the advice from the Behavioural Insights Team; we take the advice that we are given by the scientists.
The Welsh Government have been mentioned. They have their own chief medical officer and their own advisers. They take their advice; they are devolved. We do not tell them when people in Wales should start wearing masks, and they do not tell us. We have our own established scientific body of advice. We do not say to SAGE, “We don’t like your advice today. We’ll go and take it from somewhere else.” We are consistently advised by SAGE and by NERVTAG. When they tell us that the evidence now is such that people should start wearing masks because there will be some benefits, we will take it. In fact, people were wearing masks before we brought in the legislation. The public had already made their mind up, whether they had the scientific evidence or not, that they would start wearing masks, and indeed they were.
That is where we add. As politicians, we do not say, “Do you know what? It is time for everyone to start wearing masks.” We do not have the authority, the scientific background or the evidence—
Is the Minister saying that the advice given to the Welsh Government was different from that given to the United Kingdom Government, dealing with England in this case? Secondly, we on the Science and Technology Committee have had all the scientific advisers before us on a number of occasions and they have been clear that they lay the evidence before Ministers and they may give advice, but, in the final analysis, it is for Ministers to take the decision, which may differ from the detail of the advice, or the advice may have to be interpreted. They are clear that it is not their decision. Does she agree with that?
On the hon. Member’s point about who advises the Welsh Government, I have no idea. I would imagine it is their chief medical officer. On whether the scientists take the decision about whether people wear masks, no, they do not. That is not their responsibility. Their responsibility is to evaluate and assimilate evidence and provide us with that evidence.
I am sorry if the Minister wants to be flippant, but it is my job to look at the legislation and scrutinise it. She said that 96% have no problems with it. I never believe in putting forward legislation if there is no need.
I am sorry, but the Minister is wrong in what she just said. It is down to politicians to make the ultimate decision. I have been a Minister, and there are occasions when advice can be ignored—that is a political decision. It is no good hiding behind the scientists, which is what the Government have done all the way through the crisis.
This is the decision. That is what we are here debating—the decision to introduce the wearing of face coverings in public places. We have taken the decision; that is what we are doing right now.
I was asked why we were so slow to react to the wearing of face masks. It is because, to come here and introduce legislation, we needed evidence that wearing face masks works. As I think the hon. Member for Blackley and Broughton said, this is a new virus—globally, not just for the UK—and all over the world countries have taken their own decisions on the basis of whatever evidence they could gather over a short period and in a short timeframe. We have now got to the point where we believe the evidence is such that wearing a mask will provide protection even if the wearer is asymptomatic, not showing symptoms of coronavirus and not coughing. Therefore, we are introducing the regulations.
I am grateful to the Minister for giving way. I appreciate that these things do take some time, but it is the case, is it not, that recommendations were made on 11 May about the wearing of face coverings, but they did not become law until 24 July? What is the reason for that long delay?
I want to make a point similar to the one I made in the Minister’s opening contribution. What was the evidence, when was it given to Ministers, and what meant we had to wait until recess before the decision was taken? That is key to me. I am sure that if she was in opposition, she would be making exactly the same point.
We know each other too well.
I want to ensure that what I give the hon. Gentleman is an absolutely accurate statement; therefore, I will give it to him in the morning in writing.
I will stick to the substance of the issues that were raised. On the comments about transport police, the British Transport police outside London have the authority and they use their four Es: engagement, encouragement—
Again, I will clarify that. They might not be in these regulations, but this is about not just Transport for London, but British Transport police across the UK.
On the point about people eating in cafeterias in transport hubs, of course people cannot eat through a mask. When people are purchasing food, or are sitting at a table eating and drinking, they obviously do not have to wear a mask.
I am sorry, but that is not what the regulations say. It is in the definition of what a transport hub is. I will read it again:
“In these Regulations, “transport hub” means any…premises used as a station, terminal, port or other similar premises from or to which a public transport service operates, but does not include…an area which is not open to the public;…an area where seating or tables are made available for the consumption of food and drink”.
Surely a transport hub that has tables for food and drink is not classed as a transport hub under the definition in the regulations.
Areas that are open to the public, where people are purchasing food, drink or refreshments, do not require the wearing of a mask. Again, I will clarify the wording to the right hon. Gentleman in writing, but that is the advice that I have been given. It beggars belief that anybody could consume food or drink while wearing a mask, but I will ensure that I clarify that information to him.
On reading this, I think it is very clear. If I dare say so, the right hon. Member for North Durham is misunderstanding what the Government policy is. Areas where there is food and drink in a transport hub are excluded from these regulations, so people do not have to wear a mask there them. I think it is really quite straightforward.
They are exempt.
The shadow Minister raised the issue of regulation 3(2)(c), which is intended to capture contractors working on site, medical practices, and those who are best placed to advise about their own medical practices—both people working in the medical practices and patients.
I would like to thank hon. Members. If there are any points that require a more detailed response, we will ensure—
The Minister is being very generous in giving way. In response to her honest offer, I am sure everyone would welcome urgent clarification about the role of covid marshals and the powers that they will have. Clearly, they are referred to under regulation 7(11)(d). Quite how they will be funded and what the powers are is a separate issue. The emphasis that the Prime Minister and the Government are giving to the new covid marshals seems disproportionate to the reality of what will happen on the street. I do not believe that the authorities will actually be able to deliver that, and they will rely on the police.
I thank the Minister for giving way, and I promise that I will not intervene again.
What we have heard today from various Members is clear evidence of why it is important that regulations are debated before they become law. There is a whole series of questions in relation to covid marshals, in particular, and their powers and training and the data protection requirements that we are not able to answer. The point has been made by several Members that it is really important for public buy-in to the concept of those marshals that the powers are clear and they have democratic consent because they have been transparently debated, so can the Minister make a commitment today that any new powers given to marshals, whoever they end up being, will be debated in this House before they become law?
No, I cannot; I apologise. I will obtain the list of those who have the authority and ensure that the hon. Member for Warwick and Leamington has that tomorrow. The hon. Member for Ellesmere Port and Neston, I am sure, was trying his hand when he asked his question. He did so knowing very well that that is not something that I can commit to.
In this new world of coronavirus and covid-19, we as a Government have to have the right to respond, both urgently and in the case of an emergency, when we need to keep the public safe and to save lives. We have to retain the ability to do that.
The hon. Member for Ellesmere Port and Neston raised one other point that I would like to address. He talked about universities and further education and face coverings. Actually, this has been really interesting, because many universities are very enthusiastic about developing their own policies. They are keen to get their students back in. They are keen to get up and running in a way that is as “back to normal” as it can be in the context of social distancing, and the wearing of a face mask is something that many universities have themselves required. They have done their own messaging to students. I have seen some of this. “Don’t kill your nan” was quite extreme; that was at one university in my own home city. Universities have very much taken on board the fact that they want to keep their campuses safe, and they are launching their own campaigns.
I echo those points. For example, the University of Warwick has done a terrific job in terms of its preparation on campus and is doing its very best to ensure safety among the community off campus. However, this then comes back to what is beyond their remit and what actually happens in communities such as Durham, probably, or Warwick and Leamington—my community—where students quite rightly will be back for the new term; some will be starting and will be there for the first time, and they will be out, in among the population. That is why these sorts of enforcement measures are so important.
The measures that we are taking to ensure the wearing of face masks in public places are to ensure that we try to contain the virus as much as we can, in the light of the fact that of course students do move from their university. They travel back home at the weekend. They move back into the community. They will be in student houses. Their community mixes. They have house parties, as they do. These are the kinds of thing that we are trying to prevent with the regulations that we are bringing in, so that those students can keep attending university and keep learning. The universities have taken responsibility for what happens on campus; we have taken responsibility for what happens off campus via the rule of six, the new legislation that we have introduced as of today, and via the measures such as the one that we are debating today on the wearing of face coverings. Keeping everybody safe is the only objective of anything that the Government are doing in terms of the legislation that they are introducing. None of this is political. It is about keeping people safe. That is the bottom line with everything we introduce in terms of regulations and any measures to do with coronavirus and covid-19.
I thank hon. Members for their contributions to this important debate. They have been many and interesting, and we will respond to those that I have not been able to answer. The Government have always been clear that their highest priority in managing this national crisis is protecting our public and saving lives. I am satisfied that the requirements imposed by the regulations and the enforcement powers given to police and Transport for London are reasonable and proportionate, with regulations specifying appropriate exemptions and reasonable excuses.
Our guidance has consistently set out to the public that to protect themselves, they must continue to follow the social distancing measures, wash their hands regularly and adhere to the isolation guidance. The current guidance from Government states that people should also wear a face covering in enclosed public spaces where social distancing is more difficult to maintain and where people may come into contact with others that they do not normally meet.
The debate today has provided an opportunity for the Government to hear hon. Members’ concerns through the contributions made during the debate. Parliamentary scrutiny is obviously vital as part of the regulation-making process.
I would just like to correct the point that I made to my right hon. Friend the Member for Elmet and Rothwell earlier. It is not necessary for this regulation to be debated in six months; it will be reviewed in six months, but will fall anyway 12 months after 24 July, when the regulations were made. I hope that the Committee has found this debate informative and that it will join me in supporting the regulations.
Question put and agreed to.
That the Committee has considered the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) Regulations 2020 (S.I. 2020, No 791).