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General Committees

Debated on Monday 25 January 2021

Delegated Legislation Committee

Health Protection (Coronavirus, Restrictions) (All Tiers) (England) (Amendment) (No. 4) Regulations 2020

The Committee consisted of the following Members:

Chair: Mark Pritchard

Andrew, Stuart (Treasurer of Her Majesty's Household)

† Argar, Edward (Minister for Health)

Davison, Dehenna (Bishop Auckland) (Con)

Double, Steve (St Austell and Newquay) (Con)

Duguid, David (Parliamentary Under-Secretary of State for Scotland)

† Fletcher, Colleen (Coventry North East) (Lab)

Freer, Mike (Comptroller of Her Majesty's Household)

† Harris, Rebecca (Lord Commissioner of Her Majesty's Treasury)

Johnston, David (Wantage) (Con)

† Madders, Justin (Ellesmere Port and Neston) (Lab)

Morris, James (Lord Commissioner of Her Majesty's Treasury)

Osamor, Kate (Edmonton) (Lab/Co-op)

Rees, Christina (Neath) (Lab/Co-op)

Sharma, Mr Virendra (Ealing, Southall) (Lab)

Sheerman, Mr Barry (Huddersfield) (Lab/Co-op)

† Throup, Maggie (Lord Commissioner of Her Majesty's Treasury)

Trickett, Jon (Hemsworth) (Lab)

Liam Laurence Smyth, Committee Clerk

† attended the Committee

First Delegated Legislation Committee

Monday 25 January 2021

[Mark Pritchard in the Chair]

Health Protection (Coronavirus, Restrictions) (All Tiers) (England) (Amendment) (No. 4) Regulations 2020

I beg to move,

That the Committee has considered the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) (Amendment) (No. 4) Regulations 2020 (S.I. 2020, No. 1654).

It is a pleasure, Mr Pritchard, to serve under your chairmanship on one of these Committees—for, I think, the first time. At the outset, I pay tribute once again— as the shadow Minister does each time we have these debates—to the work of our health and social care staff and key workers in this country, who continue, day in, day out, to keep people safe, and to keep this country working. They are clearly, for these reasons, the pride of our nation. I also put on the record my thanks to the population of this country for continuing to follow the lockdown rules. We all know that is incredibly difficult and entails huge sacrifice, but the actions everyone is taking are protecting our NHS, buying time for the roll-out of the vaccine, and saving lives.

While our focus remains on vaccine roll-out and the necessary national lockdown, to keep down infection and hospitalisation levels, it is nonetheless important that we bring forward these regulations, even though they make by and large only minor technical amendments to the “All Tiers” regulations, necessary for legal coherence. Those regulations give effect to the 29 December tiering decisions, which of course have been superseded by the national lockdown restrictions, but it is still right that they be debated in this place. To briefly run through the effects of this statutory instrument, it amends regulation 8(4)(b) of the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020, substituting

“the Tier 2 area and the Tier 3 area”


“the Tier 2 area, the Tier 3 area and the Tier 4 area”,

to ensure that the addition of tier 4 is captured. That essentially makes it clear that tier 1 covers every area of England other than those areas in tiers 2, 3 and 4, and therefore that tier 4 restrictions apply only in a tier 4 area. That, of course, is now the whole of England, following the Prime Minister’s announcement of a national lockdown on 4 January. This might seem like nit-picking or a minor clarification, but we feel it is important to remove any scope for misinterpretation from the instrument.

The instrument also makes a further technical amendment to the “All Tiers” regulations, correcting a cross-reference in paragraph 8 of schedule 3A to the “All Tiers” regulations. The larger change in this instrument is the amendment of schedule 4 to the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 to move some local authority areas from tiers 2 and 3 to tiers 3 and 4, although those changes have been superseded by the national move to tier 4.

Given the rapid rise in covid cases in several areas at the time these decisions were made, and the likely progression of the new variant, it was agreed on 29 December 2020 to move these local authority areas between the tiers. Decisions on which tier would apply to each area were initially announced on 2 December, and were based on five key indicators: case detection rates in all age groups; case detection rates in the over-60s; the rate at which cases were rising or falling; the positivity rates—the number of positive cases detected as a percentage of tests taken—and, of course, pressure on the NHS in a particular area, including current and projected occupancy.

Before concluding, I put on the record our regret that the regulations could not be debated until now; obviously, the House did not sit until 11 January. Two weeks after the House came back, we have brought them forward. That is swift, but still, I apologise to the House and to my shadow, the hon. Member for Ellesmere Port and Neston, for the fact that we did not have the opportunity to bring them forward for debate in a more timely fashion. None the less, we feel it is important—indeed, it is required—that we bring them forward at this point for the House to scrutinise and challenge them if it wishes.

Furthermore, we may decide to step areas down through the tiers when it is possible to revert to that approach. Therefore, for consistency in the law and confidence in the tiering system, it is right that these technical amendments and tier allocations be considered.

We should remain cautious about the timetable ahead. If our understanding of the virus does not change dramatically, roll-out of the vaccine continues to be successful, deaths start to fall as the vaccine takes effect, the covid situation in our hospitals improves and everyone plays their part by following the rules, we hope—at the right time, when it is safe to do so—to be able to move out of the national restrictions.

I finish by paying tribute once again to our amazing health and social care staff, who are working tirelessly throughout this pandemic. As always, I remind everyone of the importance of following the rules, which are in place for very good reason, and I commend the regulations to the Committee.

It is a pleasure to serve under your chairmanship, Mr Pritchard —for, I think, the first time, as the Minister said. I declare an interest, in that my wife is a member of Cheshire West and Chester Council, one of the local authorities mentioned in the regulations; I do not think that requires any further expansion, but it needs to be stated for the record.

I thank the Minister for his introduction, and his acknowledgment of the issue to do with the timing of these regulations—a matter that we have debated on many occasions over the past 12 months. I echo his tribute to NHS and social care staff, and indeed all key workers, who continue to do this country proud and see us through this incredibly difficult time.

As we debate these regulations, we must recognise the scale of the challenge we still face. The situation is as serious as it has ever been. We have lost 98,000 people so far to the virus; as we know, the Office for National Statistics shows more than 110,000 excess deaths; and as of yesterday, there were 38,000 people in hospital, some 4,000 of them on ventilation. Those figures are significantly higher than those in the height of the first wave of the pandemic. The climbing, record death rate is a tragic reminder of how devastating the virus is, and behind every statistic is a grieving family. We must therefore leave no stone unturned in our efforts to prevent further loss.

We have come together to discuss these regulations, following their introduction on 30 December, even though, as the Minister says, they have largely been superseded by the national lockdown. As I have said many times, retrospectively approving legislation—in particular, regulations that have a dramatic impact on individual liberty, as well as an economic impact, which we have discussed many times—is no way to go about things.

I will not labour the point, because it has been made many times, but it is worth noting that on the day these regulations were introduced, the House was already debating a number of previous instruments, most of which were also significantly out of date. I know this is a rapidly changing situation, and in December things perhaps changed more quickly than at most other times, but is there any particular reason why these regulations could not have been dealt with at the same time as those others debated on 30 December?

As we heard, today’s instrument amends the “All Tiers” regulations for the fourth time—quite a record, given the latest tier system was in place for one month. Even though we are again in lockdown, as the Minister has said, we will be moving back to a tiered system as restrictions are eased, so it is important that we review the effectiveness of the tiered system when looking at this instrument. Given that the past two attempts at a tiered system ended in lockdowns within a matter of weeks, we need to be confident, and to hear from the Minister about his confidence, that the situation will not repeat itself.

Although whether the tiers proved effective is of fundamental concern, there is little evidence to date to suggest that, on the whole, most of them were working. Another problem with the regulations, and all the regulations that we have dealt with on this matter, is that we are presented with a list of places, which tells us who can do what and where they can do it, but does not tell us why. Of course, at a macro level, we know why, but what we are missing is why one area is in one tier and another area is in another.

We know what the Secretary of State told us about the criteria, which the Minister repeated today, and they are set out in the explanatory memorandum, but they have never been explicitly spelled out in the regulations. Nor, crucially, is there any detail on the point at which those criteria take us from one tier to another. No doubt the Minister will say that it is not as black and white as that, and I am sure that there is some merit in that answer, but there has to be some yardstick and some analysis of the data that matters; otherwise, the process would be entirely random, which it clearly is not.

Although most of that information is publicly available, it is disparate and often not released at the same time. What would make debates such as today’s rather more meaningful is if there were full disclosure of all the information at the time the decisions were made, and the debates took place at the time of those decisions, so that Members on both sides of the room could say to their constituents that there was clarity, and could say that the reason why one area was in one tier and another was in another was debated when the regulations were introduced.

That is particularly relevant to today’s regulations, as it seems that the primary reason for areas moving up tiers this time probably relates to only one of the criteria: NHS occupancy and projected occupancy. That is apparent to us all now, given the figures that we have alluded to, but it probably was not as clear to everyone at the time the regulations were introduced. Moving forward, I ask the Government to, as far as possible, set out in the regulations the data applicable to each area, so that we can objectively judge, when the regulations are introduced and debated, whether the Government have got it right. I think that is what all Members want.

I understand that the measures are presented on a “take it or leave it” basis, and that sometimes events mean that scrutiny lags behind the original decisions, but that should be a reason for more transparency and more debate—not for simply providing us with a list of councils that are moving tiers. The regulations are all concerned with moving areas up to higher tiers, rather than down, albeit for a matter of days before the next lockdown came in. We therefore need to ask, irrespective of whether there is a new variant, whether the tiers have ever been, or will be, effective.

We have asked time and again for the Government to provide us with evidence of what measures work. Some areas have been in a form of lockdown since last summer, as the Minister is well aware from his constituency. There has been plenty of time to gather data on the subject, even if it is to conclude that local restrictions are insufficient. As the Minister will know, last year the Secondary Legislation Scrutiny Committee also highlighted a need for that information to be public, reminding the Government that it is customary, when a scheme is changed after it has been operating for a while, to explain what has worked well and what has been amended because the performance has not always achieved the desired effect.

The Liverpool city region is often cited as an example of an area in the then highest tier—tier 3—where there was a successful attempt to reduce transmission. That was largely attributed to the mass testing regime undertaken there, but infection levels were dropping before that scheme was introduced, and it relied on significant input from the Army that I do not think it would be physically possible to replicate elsewhere. Is that the plan, moving forward, for the highest tiers? We need realistic and resourced plans for such areas because, the tier system having effectively collapsed over Christmas and the new year, people need confidence that any new tier system will work, and that infection rates will not spiral out of control again.

I am sure that the Minister agrees that this lockdown needs to be the last. The Government need to demonstrate that they finally have a grip on localised restrictions that not only enables areas to reduce transmission, but gives areas with low transmission rates the tools to keep them low. To date, that has palpably not been the case. We will not oppose today’s regulations, but we need assurances that when we return to another system of tiers once we exit the national lockdown, they will finally work. We must see, in real time and in full, the advice that the Secretary of State and the Government receive from the Scientific Advisory Group for Emergencies on the restrictions needed before we are asked to make judgments on those decisions.

Thus far, we have seen a tragic failure by the Government to learn from mistakes. That must now change. We must not repeat that with the roll-out of the vaccine. It is widely acknowledged that that is our only way out of this situation. The task is clear. The Government must deliver the vaccine quickly and as safely as possible. We want to see round-the-clock vaccine programmes, 24 hours a day, seven days a week, in every village, town, high street, GP surgery and pharmacy—everywhere possible that we can use to roll out the vaccine.

That goes hand in hand with measures to supress the virus. Not everyone can work at home or comfortably isolate themselves. The system still expects families to go hungry to stop spreading the infection. Again, I urge the Government to fix sick pay and ensure everyone is supported to self-isolate. The Health Secretary, as was mentioned many times, has admitted that he could not live on statutory sick pay, but that is what we still expect hundreds of thousands of people to do each week.

The Government have known for many months that rates of self-isolation compliance are low. That is the gaping hole in the system. I was disappointed that rumours at the end of last week that the Government were due to extend the scope of the £500 self-isolation payment were just that: rumours. I urge the Government to consider extending the payment to all low-income parents self-isolating with children, and to ensure that councils can give discretionary payments to all who need them. When even Baroness Harding recognises that this is a big flaw in the Government’s approach, we need to act.

We know how difficult this lockdown is for millions of families. We are being asked to stay at home for a third time, to help get the virus under control. In return, the Government must not only deliver the vaccine, but ensure that people can self-isolate when required to. The decisions made will be significantly influenced by how quickly people can be vaccinated. Of course, we want roll-out to proceed as soon as possible. Being the first country to approve the vaccine, we should be the first country to roll it out successfully.

I hope that in his closing remarks, the Minister will update us on how the Government plan to reach those communities that are hard to reach. We know that the crisis has had a disproportionate impact on black, Asian and ethnic minority communities, so it is important that the vaccine roll-out does not leave those communities behind. We need to understand how the roll-out relates to the implementation and continuation of the tier system. The Secretary of State has said of easing lockdown measures that there will need to be no more major new variants of covid-19, that hospitalisations must fall, that the daily death rates must fall, and that the vaccination programme should work.

On new variants, the need to secure our borders is clear. I suspect decisions of that nature are above the Minister’s pay grade, though maybe not for long; who knows? Perhaps one day. I hope he will convey our concerns about the daily scenes at our airports, and about the clear need for more robust systems. Lockdown, with the incredible sacrifice that it involves, is a decision that I know weighs heavily on every Member, but to ask our citizens to submit to that while, because of holes in our defences, people enter the country and potentially spread new, dangerous variants is unforgivable. That must be addressed as a matter of urgency.

Two of the criteria are the same as those in the tier system. I want to raise a few points about the vaccination process and how that will relate to the tier system. It seems, as a matter of logic, that if these criteria apply to the lockdown, they will also apply to the tier system. This is the one thing that the Government can control and direct, so it is important that we have transparency about how this will happen

We know how many people daily, by region, receive their first and second dose of vaccine. Those figures are now further broken down to those for each sustainability and transformation partnership footprint, but that does not give us the data that we need to identify whether progress is even, or how that will impact tier systems. For example, the latest data, up to 17 January 2021, tells us that 114,000 people over 80 have received the first dose of the vaccine in Cumbria and the north-east. That is undoubtedly good news, but we do not know the proportion of over-80s, or how those people are spread across the region. Are some parts of the region doing better than others?

I hope the Minister accepts that the public are getting only a partial picture. Moving forward, as we look to adjust the tiers, I suggest that that information needs to be disseminated at local authority level, consistent with the tiers contained within these regulations. For example, Cumbria County Council is described in the regulations as being in the north-west, but in terms of the vaccination process it is in the north-east. We also need to know what percentage of each vulnerable category has been vaccinated and, crucially, how much vaccine has been supplied to each local authority area, ideally expressed as a proportion of the total vulnerable categories.

To date, despite questioning on the subject, we have no specific information about how much vaccine has been supplied to each area. We are only getting information about when it has reached the arm of the patient. That is the most important data, but if one of the criteria used to allocate tiers is progress with the roll-out, we will need to know if there is equity in supply as well. I am sure the Minister will not want to end up in arguments about whether tiers are being decided on the basis of whether the vaccine has been fairly distributed. In the spirit of being helpful, I suggest to him that the best way to avoid getting into those arguments is through total transparency on the numbers and proportions distributed to each area.

Finally, there has been a lot of debate today about schools and the continuing uncertainty about when they may be able to reopen. I am sure we all share the same aim and we want them fully reopened as soon as possible. That begs the question about the possibility that education settings could be treated differently, depending on which tier they are in. Is that being looked at on an area by area basis? There was a spike in September when schools and universities returned. Can that be better contained by more localised decision making in the new tier system?

In conclusion, we believe that there is an awful lot more to be done to demonstrate that tiers are effective, that areas are placed in tiers on a transparent basis, that areas are given sufficient support to reduce transmission of the virus or to prevent it from increasing, and that there is sufficient support for business, recognising that each tier brings with it a different set of challenges, both trading within the tier or having to close the business altogether.

I will endeavour to address the various points raised by the shadow Minister, the hon. Member for Ellesmere Port and Neston. It is a pleasure to serve opposite him in these Committees. He is always measured in his remarks and constructive in the points that he makes. Even when disagree on interpretation, I always welcome his observations and his reasoned challenges.

When the hon. Gentleman mentioned the work that his wife is doing as a local councillor, he kindly did not mention that when paying tribute to our health, social care and key workers, I missed our local authorities. I pay tribute to the officers of those local authorities and to local councillors, who always work very hard but who will be facing an incredibly heavy workload at the moment, serving their communities. In that vein, I pay tribute to them, including the hon. Gentleman’s wife for her work.

The hon. Gentleman is right to highlight the scale of the challenge and the situation that we face, and the number of tragic deaths we have seen. As he rightly said, every one of those is an individual with family and friends, and every one of those deaths is a tragedy. He highlighted that there are 38,000 covid patients hospitalised at the moment, which is well over a third of the beds in our NHS. To demonstrate how rapidly that number has climbed, back in September there were 500 people hospitalised with covid; in October, the number went up to about 2,000; by November, it was 11,000; and, in the past month and a half, we have seen it go up to the current level. The rate of hospitalisation has increased dramatically and he is right to highlight that backdrop to our debate.

The hon. Gentleman mentioned retrospectivity, not in the implementation of the regulations, but in debating them after the for. While that may be in line with what is permitted under parliamentary procedure with statutory instruments of this sort, I take his point that it is better to debate them in a timely fashion, That is what we seek to do, because the House can give its view on them and because the transparent process helps to achieve consent to, and therefore compliance with, the measures. I hope the hon. Gentleman will acknowledge that we have made some significant strides since—well, not since this time last year, but since last spring, now that the House has found a way of speeding up the pace at which we bring statutory instruments before Committees.

The hon. Gentleman asked a specific question about statutory instruments being made on 30 December, a day when the House was sitting. The short answer to his question why they could not be debated that day is because they were only signed and made by the Secretary of State on that day, while the House was sitting, so there was no time to lay them or schedule them for debate. That is why we have brought them forward now, although of course events have slightly superseded them.

On tiering and the effect of tiering, which was the subject of a large part of the hon. Gentleman’s remarks, I have to be very honest. Throughout this pandemic, we have said, “Here is what we are working to achieve, but even now this disease is something that we are still learning more about every day.” The perfectly reasonable and scientifically rational tiering restrictions and regulations in December having to be superseded this month is in large part due to the new variant, with its significantly higher infectiousness. It was not present when the original tiering regulations were put in place. There will always be an element of having to adapt to this disease as the disease itself adapts.

The hon. Gentleman asked what determines whether an area is in a particular tier and how it can move between tiers, and he quite rightly picked up on the five tests, or the five measures, that the Secretary of State has set out. Sadly, he was right to predict that I would say the process is not black and white and is more complex than that. That is because it is the inter-relationship between the factors that matters. For example, the infection rate overall could appear to be plateauing and then coming down, as was the case for a period in my own constituency, while the rate in the over-60s continues to grow. That is a great concern because of the impact of this disease on that age group, and on older people in general,. I fear that it will not be possible to say, “Here is an exact figure for each of these, and if you hit these figures, that moves you from x to y.” A more nuanced and more complex judgment is required

The hon. Gentleman spoke about the importance of data and in particular dashboard data at a localised level, so that people can at least understand the data that is driving these decisions. I hosted a call with colleagues back in December, when we had some of our team in DHSC talk through how we were developing that data dashboard, looking at the data and then subsequently providing ever greater granularity. That work continues and he is absolutely right to highlight it. I suspect that there will always be an appetite for data that we are continuing to chase and trying to keep up with, but we continue to try to put more and more data out. I would argue that, as a country, we have been at the forefront of data transparency and putting information out there. There is always more that we can do, but compared with other countries, on testing rates for example, we were at the forefront of putting data out there, even when that was quite rightly being challenged or questioned by him and by others.

We publish the SAGE papers, but I think what the hon. Gentleman was asking me to pass on to the Secretary of State was a request that those papers are not only published, but published in tandem with recommendations and decisions. I will certainly convey his points to the Secretary of State, as I will to the Transport Secretary. The hon. Gentleman is quite right that those points are above my pay grade in this role, as they relate to borders and travel.

There are three other things that I will touch on very briefly, which I think will cover what the hon. Gentleman asked about: vaccine roll-out, compliance, which he touched on, and bigger-picture elements about when we are likely to see an easing, for want of a better way of putting it, which is the road map argument, including schools as a pathway. I will try to address some of those issues, albeit briefly.

On the vaccine, the hon. Gentleman is absolutely right: we believe, and it has always been part of our strategy, that the vaccine is our way out of this pandemic. It must be delivered quickly and safely, as he said, and I believe that it is being delivered very swiftly and safely across the country, not just by our NHS and our military, but by volunteers who are helping to run the vaccination centres. The huge number of vaccinations that have already taken place is testament to the planning and the work that has been done. As the Secretary of State has always made clear, although we are getting a huge number of people vaccinated, supply is potentially a limiting factor. We will vaccinate as many people as we can get the vaccines for, but there will always be a potential limiting factor there.

On compliance, the hon. Gentleman raised a number of points. The population of this country has been phenomenal in its willingness to comply with incredibly onerous and challenging restrictions. He highlighted support from the Department for Work and Pensions and elsewhere for particular groups, including statutory sick pay and other isolation payments. The Government continue to keep compliance rates and the factors that influence them under review.

The hon. Gentleman’s final question, which is a subject of considerable discussion at the moment, was about the road map for the easing of the national lockdown and how it interacts with the vaccine roll-out. I am afraid that I have to disappoint him slightly. To echo what the Prime Minister said, we all know what we would like to see, and the number of people vaccinated, particularly those in the vulnerable groups, is a key element not just of keeping people safe and being able to ease restrictions, but of decreasing the pressure on the NHS. However, we also know that there is a long lag time between people being infected and then going into hospital and being kept there. Thankfully, with new drugs, we are able to save the lives of people who might have died in the first wave, but they are in hospital longer, so the pressure on NHS capacity will continue for some time.

It would be wrong to set an arbitrary road map and timetable when, as I say, we are constantly learning more about how this disease behaves and moves in the population. We can set out our ambitions in broad terms, but it would not be right to say, “If we hit x number, that equals x date, which equals x change.” It would be premature to do that. It is right that we are open and transparent with the British people, but we are not at that point yet.

I pay tribute to all those involved in the vaccine roll-out. I had the pleasure of visiting my local centre a couple of weeks ago, and it was very well organised. I was trying to gain some understanding from the Minister about whether the vaccine roll-out will be applied to tier decisions, or whether the national picture will be part of the decision. I do not expect him to say, “This number of people receiving a dose is going to mean x, y or z relaxations,” but will that be considered at national or local level?

I am grateful to the shadow Minister for his clarification. If I am being honest, I think it is probably premature at this point for us to speculate about things at that level of detail, but he makes his point well and it is on the record. I will relay it to the Secretary of State as we look at when the time is right for us to start easing the national regulations and potentially move towards a tiering model again. At that point, those sorts of question are of course pertinent, and I will ensure that the Secretary of State is aware of the hon. Gentleman’s comments.

The hon. Gentleman’s final point was, in the context of vaccines, infection rates and hospital pressure, about the need for information to be as local and granular as we can get it. Vaccinations started in earnest in early to mid-December, and we have ramped up at a huge rate the number of people being vaccinated each day. In parallel with that, we have continued to try to increase the amount and granularity of information that we publish on and on the dashboard about vaccinations by region, area and volume. In parallel with actually getting the vaccine in people’s arms, the team continues to look at what more they can do to be as transparent as possible about how that is going, so that people in a local area can understand a bit more about what it means for them.

I hope I have addressed if not all then as many as I can recall of the hon. Gentleman’s questions and points. I commend the regulations to the Committee.

Question put and agreed to.


That the Committee has considered the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) (Amendment) (No. 4) Regulations 2020 (S.I. 2020, No. 1654).

Committee rose.


The Committee consisted of the following Members:

Chair: David Mundell

Andrew, Stuart (Treasurer of Her Majesty's Household)

Brereton, Jack (Stoke-on-Trent South) (Con)

Buchan, Felicity (Kensington) (Con)

† Duguid, David (Lord Commissioner of Her Majesty's Treasury)

Freer, Mike (Comptroller of Her Majesty's Household)

Harris, Rebecca (Lord Commissioner of Her Majesty's Treasury)

Keeley, Barbara (Worsley and Eccles South) (Lab)

Lewis, Clive (Norwich South) (Lab)

† McCarthy, Kerry (Bristol East) (Lab)

† Maclean, Rachel (Parliamentary Under-Secretary of State for Transport)

McDonnell, John (Hayes and Harlington) (Lab)

Mahmood, Shabana (Birmingham, Ladywood) (Lab)

Mohindra, Mr Gagan (South West Hertfordshire) (Con)

† Morris, James (Lord Commissioner of Her Majesty's Treasury)

† Tami, Mark (Alyn and Deeside) (Lab)

Thompson, Owen (Midlothian) (SNP)

Throup, Maggie (Lord Commissioner of Her Majesty's Treasury)

Seb Newman, Committee Clerk

† attended the Committee

Second Delegated Legislation Committee

Monday 25 January 2021

[David Mundell in the Chair]

Drivers' Hours and Tachographs (Amendment) Regulations 2020

Before we begin, I remind Members to observe social distancing and to sit only in the places that are clearly marked. I also remind Members that Mr Speaker has stated that masks should be worn in Committee, except when Members are speaking. Hansard colleagues would be most grateful if Members could send their speaking notes to I call the Minister to move the motion.

I beg to move,

That the Committee has considered the Drivers’ Hours and Tachographs (Amendment) Regulations 2020 (S.I., 2020, No. 1658) (S.I., 2020, No. 1658).

It is a pleasure to serve under your chairmanship, Mr Mundell. Following the UK’s decision to leave the EU in the 2016 referendum, the Government have worked hard to develop a positive future relationship with the EU, and we continue to build on that relationship. As part of this effort, the Department for Transport prepared for a range of potential outcomes of the negotiations. That included making a number of EU exit statutory instruments during the last few years, in order to prepare for a no-deal outcome.

On 24 December 2020, an agreement was successfully reached with the European Union in the form of the EU-UK trade and co-operation agreement. The European Union (Withdrawal) Act 2018 retained directly applicable EU legislation as UK law on implementation period completion day, which was 31 December 2020. That included the EU drivers’ hours and tachograph regulations, providing continuity and certainty to industry and consumers. Some amendments to those regulations were required, to ensure that the legislation continued to function effectively on 31 December 2020, which was the implementation period completion day. That was done via an EU exit statutory instrument: the Drivers’ Hours and Tachographs (Amendment etc.) (EU Exit) Regulations 2019, which amended the retained EU drivers’ hours and tachograph regulations to correct inoperabilities on the implementation period completion day. It also amended domestic legislation to make the retained drivers’ hours and tachograph regulations enforceable.

For the benefit of Members who might not be aware of the detail, I shall make a few remarks about the EU drivers’ hours rules, which have been retained by the European Union (Withdrawal) Act 2018. The rules are central to keeping our roads safe and ensuring driver safety. The rules set maximum driving times, and minimum break and rest times, for most commercial drivers of both lorries and coaches. For example, the rules mean that a driver must take a 45-minute break after 4.5 hours of driving, and daily driving time is normally limited to nine hours.

The consequences of driving any vehicle when fatigued can be catastrophic, and the potential risks associated with heavy commercial vehicles are particularly severe. Drivers’ hours rules are enforced by the Driver and Vehicle Standards Agency and the police at targeted roadside checks, and by visiting operators’ premises. The principal tool used by enforcement officers is the record generated by the tachograph, a device installed in relevant vehicles that records the driving, rest and break times of individual vehicles and their drivers. The retained EU tachograph regulation mandates the use of tachographs by relevant drivers.

The regulations were urgently laid before the House on 31 December under the European Union (Future Relationship) Act 2020. They ensure that rules relating to drivers’ hours and tachographs can continue to be enforced in Great Britain and Northern Ireland in respect of vehicles that are engaged in commercial road transport under the terms of the EU-UK trade and co-operation agreement. The regulations amended domestic legislation to ensure that the roads chapter in the trade and co-operation agreement, which covers the drivers’ hours and tachograph rules that are applicable to journeys between the UK and EU from 1 January 2021, can be enforced. It does so by providing that the EU drivers’ hours regulation and the EU tachographs regulation, which are retained in domestic legislation, will apply to journeys between the UK and EU. The drivers’ hours and tachograph rules are important for public and driver safety, and the statutory instrument is required to ensure that such rules can continue to be enforced effectively. The policy area of drivers’ hours is devolved with respect to Northern Ireland. While, for the sake of efficiency, this SI makes amendments to the retained EU regulations on a UK-wide basis, that does not affect the devolved nature of the policy.

In summary, the regulations are essential to ensuring that the drivers’ hours and tachograph rules applicable to journeys between the UK and EU member states under the trade and co-operation agreement are enforceable. The rules are at the heart of the road safety regime for commercial vehicles. I am sure hon. Members share my desire to avoid any disruption to the proper enforcement of those rules, and I hope they will join me in supporting the regulations, which I commend to the Committee.

Let me say at the outset that we will not oppose the regulations. The Opposition’s priority has always been to ensure that the rights and welfare of drivers are protected, and this amendment to legislation for the UK’s future outside the European Union is an important part of that.

I am pleased that the Government are applying rules regarding the monitoring and enforcement of the hours driven by haulage drivers to domestic journeys in the UK as well as international journeys. It is important to recognise that hauliers have kept this country going during the difficult times of the past year, ensuring that essential supplies of food and medicine have got through —sometimes in difficult circumstances. It is too easy to forget the contribution they make. It is vital for the safety of all of us using UK roads that those driving heavy goods vehicles are rested and can remain vigilant and drive safely. We know how terrible—I think the Minister said “catastrophic”—the consequences can be otherwise: we have all witnessed the accidents that occur sometimes because of driver error or other incidents. Limits on maximum hours driven and requiring rest breaks are the best way to keep us all safe, and it is right that they should continue to be protected in law now that the transition period is over. The regulations will help UK officials properly to enforce any breaches of the rules, so it is important that they are transferred into UK law.

However, the timing of the regulations is somewhat unfortunate, given recent developments. On 22 January, the Government extended the relaxation of enforcement for the retained EU drivers’ hours rules until 31 March. We agree that such measures may be necessary in the short term to avoid immediate chaos at our borders, but to extend the relaxations for more than two months is not exactly an expression of confidence from the Government in their own ability to address the chaotic situation.

Such emergency measures may not have been necessary had the Government negotiated a trade agreement with the EU in a timely manner rather than at the very last minute, or had they taken adequate steps to prepare, such as hiring and training the necessary number of customs agents. That reckless brinkmanship meant hauliers, importers and exporters had little time to prepare for the new customs regime, and the Government have had precious little time to communicate the new rules to them. As the Minister and I have discussed previously, that involves translation into many different languages through the haulier handbook—it is not a simple task to get the information out. As a result, we have seen regular reports of goods rotting in border facilities, UK hauliers facing a significant drop in demand for their services and predictions of shortages of goods in the coming months. In fact, the situation is predicted to get worse before it gets better, as many companies stockpiled before the end of the transition period to avoid being caught up in the chaos we now see.

The general post-Brexit watering down of workers’ rights is also relevant. Contrary to what the Government would like people to believe, being part of the EU never prevented the UK Government from raising their standards and going higher than the level playing field. The freedom we have now, about which many Government Members are so enthusiastic, is a freedom to lower standards and remove workers’ protections. That is why Labour has called an Opposition day debate today on that very topic. I hope the Minister will give the Committee some assurances that she appreciates the importance of legislative protections for drivers in the haulage sector that go above and beyond the regulations under discussion and that she will seek to uphold and, indeed, strengthen them whenever such issues cross her desk.

May I join the hon. Lady in her comments about the importance of hauliers and the road haulage sector? We have all relied on them throughout the pandemic to move goods around the country, and we are all incredibly grateful to them. I further thank her for her support for the regulations which, as she clearly set out, are vital.

The hon. Lady made some broader comments—I am sure they will be well rehearsed in the Opposition day debate that I think is under way in the Chamber right now—and I will merely say that these are temporary measures that absolutely do not represent any watering down or any plans to reduce workers’ rights or protections now that we have left the EU. On the broader picture of the border and how it is operating, it is operating well at the moment, but we continue to work closely with the sector to resolve any issues as they come up. I hope the Committee has found the debate informative and will join me in supporting the regulations.

Question put and agreed to.

Committee rose.

Agricultural Products, Food and Drink (Amendment) (EU Exit) Regulations 2020 Organic Production (Organic Indications) (Amendment) (EU Exit) Regulations 2020

The Committee consisted of the following Members:

Chair: Mr Laurence Robertson

Andrew, Stuart (Treasurer of Her Majesty's Household)

Byrne, Ian (Liverpool, West Derby) (Lab)

Dowd, Peter (Bootle) (Lab)

Duguid, David (Parliamentary Under-Secretary of State for Scotland)

Freer, Mike (Comptroller of Her Majesty's Household)

† Furniss, Gill (Sheffield, Brightside and Hillsborough) (Lab)

Harman, Ms Harriet (Camberwell and Peckham) (Lab)

Harris, Rebecca (Lord Commissioner of Her Majesty's Treasury)

Hendrick, Sir Mark (Preston) (Lab/Co-op)

Hunt, Jane (Loughborough) (Con)

Jones, Fay (Brecon and Radnorshire) (Con)

† Morris, James (Lord Commissioner of Her Majesty's Treasury)

Morrissey, Joy (Beaconsfield) (Con)

† Prentis, Victoria (Parliamentary Under-Secretary of State for Environment, Food and Rural Affairs)

Thompson, Owen (Midlothian) (SNP)

† Throup, Maggie (Lord Commissioner of Her Majesty's Treasury)

† Zeichner, Daniel (Cambridge) (Lab)

Abi Samuels, Committee Clerk

† attended the Committee

Third Delegated Legislation Committee

Monday 25 January 2021

[Mr Laurence Robertson in the Chair]

Agricultural Products, Food and Drink (Amendment) (EU Exit) Regulations 2020

Before we begin, I remind Members to observe social distancing and to sit only in the places that are clearly marked. I also remind Members that Mr Speaker has stated that masks should be worn in Committee, unless speaking. Hansard colleagues would be most grateful if Members could send their speaking notes to In a moment I will call the Minister to move the first motion and speak to both instruments. At the end of the debate I will put the question on the first motion and then ask the Minister to move the remaining motion formally.

With this it will be convenient to consider the Organic Production (Organic Indications) (Amendment) (EU Exit) Regulations 2020.

It is good to serve with you in the Chair again, Mr Robertson. I will deal first with the food and drink regulations.

This instrument was made using the powers in the European Union (Withdrawal) Act 2018 principally to make operability amendments to retained EU law. It is technical and does not introduce new policy. It was made using the made affirmative procedure under the Act to ensure that provisions were in place at the end of the transition period. The provisions could be confirmed only within the timeframe that required an urgent procedure because of the ongoing negotiations with the EU and third countries. The amendments made by this instrument primarily concern geographical indications. This includes transitioning obligations in EU wines and spirits agreements. It also extends to trade between the United Kingdom and the EU of wine and organic products.

GIs, as I am sure the Committee is aware, are a form of intellectual property protection for the names of food, drink and agricultural products that have qualities attributable to the place that they are produced in, or the traditional method by which they are made. They are highly valued in the communities that produce them, and as examples of the range of quality British products that are enjoyed around the world. They are also produced around the world and are an important part of the international trading landscape. The UK has signed a number of trade agreements that ensure continued protection for GIs, such as those that were previously protected under EU trade agreements. In some cases, trade deals were agreed but could not be ratified until the end of the transition period, so this SI concerns the bridging arrangements that were introduced to continue the effects of the previous agreements until ratification. It allows us to continue to protect GIs where bridging arrangements are in place. This ensures that the GIs that are already protected in the UK do not lose their protection because of a long ratification process elsewhere.

The instrument also adds an additional category of GI to ensure that a Japanese GI, Kumamoto Rush, remains protected in the UK. It was previously protected in an EU-Japan trade agreement, but it did not fit with any of the new GI product categories that we inherited from the EU. The addition of this category provides a clear basis on which to continue to protect the GI under our own agreement with Japan.

Turning to spirit drinks, the instrument provides for the continued protection of US product names in the UK to reflect the transitioned US spirit agreement. It does the same for Mexican product names once the agreement has come into force. It also enables the retained spirit drinks regulations for GIs to function correctly with regard to procedure and enforcement. As with the spirits amendments, with respect to the transitioned US wine agreement, this instrument makes retained regulations operable.

There are also a number of non-GI provisions. On wine, the regulations provide for a six-month easement on the new requirement for EU wines imported into the UK to be accompanied by a VI-1 certificate, which provides information on the type and analytical composition of a wine. The easement should minimise the potential for disruption to the UK market by allowing EU imports to arrive on the same commercial documents that were used while the UK was a member state. New, simplified certification arrangements are set out in the UK-EU trade and co-operation agreement, which should cover movements of EU and UK-origin wines.

On organics, we have extended our recognition of the EU and EEA states as equivalent, and we have updated their list of control bodies. We have also ensured that organic products from the EU, EEA and Switzerland are allowed to continue to flow smoothly by providing a six-month easement on the requirement for certificates of inspection for such products.

I turn now to the second SI before us, which amends the legislation that applies to organic product labelling in order to ensure that it was operable at the end of the transition period and continues to be so. More specifically, the SI removes the mandatory requirement for the EU organic logo to be featured on organic products sold in Great Britain, and it provides the legal framework for our organic logo, which I have shared before with previous Committees and with the hon. Member for Cambridge, when we have finished developing it. It is still in discussion, as the Committee knows.

The SI also amends the requirement to include a statement of agricultural origin on packaging, so that it refers to the UK rather than to the EU. Where a product has been only partly farmed in the UK, organic operators should use labelling to show whether it is UK or non-UK agriculture. Failure to approve the SI would put our organic operators at risk of regulatory disruption, which could really affect their ability to trade.

In conclusion, the SIs are essential for smooth transition. Without them, we could not meet some of our international obligations. Retained legislation would not be operable, and vital transitional provisions would not be in place. I urge the Committee to approve the SIs.

It is a pleasure to serve with you in the Chair, Mr Robertson. As ever, I thank the Minister for a full and comprehensive account of the latest pair of statutory instruments that we are discussing, which cover geographical indicators, wine and organics.

Let me start with the SI on agricultural products, which, as the Minister said, is already in effect. We understand why it is in effect: by the end of last year, urgent action was needed. The Prime Minister’s negotiating strategy, based on brinkmanship, determined that, and this weekend’s newspapers were full of the consequences. He said that there would be “no non-tariff barriers”, and the Minister will remember my fury on the day she briefed MPs, just after Christmas, at what I consider to be an outrageous misrepresentation. Everywhere we turn, we see businesses struggling with new rules and complexities. Although it is hard to imagine how much worse it could have been, it could have been even worse, so we understand why the legislation was needed urgently. In many cases, however, these are interim or bridging arrangements, as described in the explanatory memorandum. My fear is that there will be a lot of bridging in the months and years ahead, but we will deal with that as it comes.

The SIs relate to two areas where the Government published specific annexes in the trade and co-operation agreement with the EU: wine and organics. Some of my comments will relate to the interaction between those annexes and these SIs—not least the range of timescales in which things may happen, and the degree of uncertainty that that brings to everyone involved. In some cases there will be changes in a few months, as the Minister mentioned, but in the longest case it will be three years. Of course, there is always change in the world, but it is fair to say that in the last few decades, most businesses have operated in a fairly stable environment, which is what they tend to like. That is no longer the case. That is why it is so important that even if there is no certainty, there is transparency and clarity from the Government so that people have some idea of what to expect.

Geographical indicators are hugely important to our food businesses, and they are much prized. Indeed, reports suggest that they were one of the key areas in the negotiations with the EU. The Minister may wish to comment on whether the UK’s negotiating objectives were achieved. The lack of transparency throughout this entire process is illustrated by the fact that we rely on leaks and speculation, but today is an opportunity. Can we be told what the UK sought, and whether this is it? Personally, I rather doubt it.

Paragraph 7.3 of the explanatory memorandum suggests that the way out of the problem of running out of time and the complexity of ratification procedures in different countries is what would, in other walks of life, be described as “holding it together with some bits of string”. It is euphemistically described here as a “political commitment”. The Minister, as I have observed previously, knows the law well. I would be interested to get her view on what legal standing such political commitments confer, how any challenges might be dealt with and how long such bridging arrangements, supported by political commitments, will be in place. We may not get a clear answer, because I suspect no one knows.

Importantly, the instrument also deals with the rules on wine imports. I am sure the Minister has seen some of the stories in the media in recent days concerning the problems encountered by wine importers. There is a six-month transitional period before the rules in this instrument apply, so one could say that the troubles have only just begun. I am sure she will have seen the coverage of the problems faced by Daniel Lambert, which have been widely reported. He has speculated about the extra costs and what they might translate into. An extra £1 a bottle on a bottle of wine may not slip down well with some Government Members’ constituents, so there may be some explaining to do.

In my constituency, Hal Wilson, who runs the excellent Cambridge Wine Merchants, tells me that it has 19,000 bottles of red wine from Spain currently stuck in the system. I fear from past experience that the Secretary of State will tell us that this is an excellent opportunity for English wine growers, but I would gently say to the Government that it might be worth their while getting this sorted out. Like most people, I want my red wine in a glass, not a warehouse.

The Wine and Spirit Trade Association argues that 99.5% of the wine consumed in the UK is imported, and it therefore makes little sense to roll over EU-based legislation—in the WSTA’s view, the legislation was designed to act as a non-tariff barrier to protect EU wine producers—now that the transition period has ended. The WSTA makes a serious point, and I wonder whether the Minister could comment on it. It says that, even with the new simplified approach to wine import documentation for EU wine imports in the TCA, the requirement is still burdensome for producers and importers alike, while the requirement for the costly VI-1 form for non-EU wine remains.

The WSTA suggests removing the requirement completely. It also says that although the form offers self-certification, it still requires a customs stamp. If that were to be introduced electronically, it would need to be linked to the customs declaration service, and that would take a number of years to implement. Given that there were previously no certification requirements for EU wines coming into the UK, the WSTA argues that it makes no sense to introduce the requirement for a paper-based system when the ultimate goal is to replace it with an electronic system as soon as is practicable. The WSTA therefore recommends deferring the requirement to provide wine import documentation from the EU until the electronic system foreseen in “Trade in Wine”, article 3 of annex TBT-5 to the TCA, can be introduced.

That annex also says that within three years, there will be further discussion between the parties to facilitate trade in wine. In other words, there is absolutely no certainty for the future. Can the Minister tell us what the Government seek to achieve in those discussions? I would welcome her comments, because there is a theme emerging in all our discussions of these detailed statutory instruments. Here we are discussing the law, but in the real world, the practical implementation and the systems are causing the problems. As the Executive, the Government are particularly responsible for the latter.

The interim nature of the arrangements for wine is mirrored in the provisions for organics in the statutory instruments that we are debating. Welcome as they are, many of the timeframes are short. It is just six months before certificates of inspection for imports will be required. The second instrument, on organics, raises a number of questions. Paragraph 2.4 of the explanatory memorandum refers to rules for a UK organic logo “when developed”. As the Minister said, we have looked at the designs previously, but perhaps we can be told when that is likely to happen, and why there are delays.

OF&G Organic certifies more than half the UK organic land, and Roger Kerr, its chief executive officer, tells me that the securing of an organic equivalence within the free trade agreement was welcome. However, this is only for a limited period of time, and unless both the EU and UK recognise the other party as equivalent at the end of the current arrangement, it will fall away, leaving UK operators denied access to the European market. He says:

“This is only 36 months away and leaves UK organic businesses in a position that they will be unable to secure long term supply contracts due to the on-going uncertainty. The delays around securing the FTA and the uncertainty with whether there would be an organic equivalency agreement within that, has already had a negative impact on UK operators through the loss of hard won markets.”

The Minister will remember we discussed that point in an SI debate before Christmas, when that recognition was still in doubt.

I am afraid the problems go further still, as Roger explains. He says:

“The FTA also does not make provision for the ‘selling on’ of unprocessed products that are imported into the UK. For example at the moment organic soya imported into Hull cannot be subsequently shipped to NI under the current terms of the FTA, leaving NI organic livestock producers potentially without the correct balanced rations for their animals. Import/export businesses which currently import products from Europe and then consolidate loads for export again are no longer able to do this. Specialist food manufacturers who have their products packed by specialist packers in Europe and then import the finished product back into the UK for distribution to their customers cannot export these products to their European customers. This will have significant impacts across the UK organic supply chain and needs to be resolved as soon as possible.”

We recognise the importance of having arrangements in place on GIs, on wine and on organics, so we will not oppose these statutory instruments. However, we believe that in too many cases, they are just bridging measures. With so many businesses struggling at the moment, there are many questions to be answered, and I hope that the Minister will be able to provide some answers.

I will do my best. This is not the time or the place for a discussion of the rights and wrongs of Brexit, or indeed the rights and wrongs of the TCA. I am extremely pleased that we were able to agree a tariff-free arrangement for trading with our friends and neighbours in the EU.

The UK GIs are already on the EU register and, as such, they remain protected. We have agreed a review clause in the TCA, so that we can agree the rules with the Commission in future on how we protect GIs. I think that is a perfectly satisfactory arrangement. I have discussed with the hon. Gentleman before how ambitious the Government are in the GI space, and I feel that this system will work well for both sides.

I turn to some specifics. VI-1s are already established for imports from other non-EU sources of wine, of which there are many, as we all know. We have a competitive market for wine in the UK, and we decided that the existing rules should be retained for imports from the EU, rather than establishing a new and specific EU policy. The policy was decided in the interests of treating the wine industry as a whole. Nevertheless, this instrument provides an easement to give traders time to get used to the new arrangements until 1 July. That will allow EU wine to continue to be imported using commercial documentation, as it was when the UK was subject to the previous EU rules.

The hon. Gentleman pressed me about the future. It is true that leaving the EU gives us the ability to look critically at the laws we have inherited from the EU, to ensure that they remain fit for purpose. In a world where we drink wine from all around the world—including from on our own shores—we will consider in due course whether there is a case for revisiting the requirements of the VI-1 certification.

The hon. Gentleman asked about organics. We are committed to the highest organic standards and will carefully consider any enhancements to them. This is the beginning of a new chapter for the UK. We will use the Agriculture Act 2020 to set an ambitious new course for the organic sector. We are working to ensure that organic goods can continue to move freely between Great Britain and Northern Ireland. In terms of movement into Northern Ireland, through the Joint Committee agreement and the UK-EU TCA, we have secured easements to allow time for adjustments to take place. The easement on the requirement of certificates of inspection will ensure the smooth flow of the majority of organic products at the border for three months. During that time, we are engaging heavily with the organics sector, the Northern Ireland Executive, port authorities and others, to help them to prepare for the end of the easement in April. In the light of that, I ask that the Committee approve these statutory instruments.

Question put and agreed to.



That the Committee has considered the Organic Production (Organic Indications) (Amendment) (EU Exit) Regulations 2020 (S.I. 2020, No. 1669.)—(Victoria Prentis.)

Committee rose.