Health Protection (Coronavirus, Restrictions) (England) (Amendment) (No. 2) Regulations 2020

Lord Anderson of Ipswich Excerpts

Monday 15th June 2020 Lords Chamber

[Lord Anderson of Ipswich (CB) [V]]

My Lords, legal constraints and public health advice each have an important place in influencing behaviour, but I shall speak to the importance of distinguishing between the two.

The initial lockdown regulations of 26 March gave 13 acceptable reasons for leaving the home and stated that this was not an exhaustive list, yet the official guidance told us that we should leave the house only for one of four reasons. Two of those reasons—infrequent shopping for basic essentials and one form of exercise per day—were expressed more narrowly than in the rules. The scrutiny committee was sufficiently troubled by this to write to the Health Secretary about it on 22 April. By then, advice and law had become inextricably blurred in the public mind. The daily press briefing of 3 April ended with these words from the Health Secretary:

“I end with the advice we all know. This advice is not a request. It is an instruction. Stay at home, protect lives, and then you will be doing your part.”


Such simplifications certainly had their effect. A survey conducted in the last days of April revealed that 94% of people believed the 2-metre rule to be a legal requirement, which in England it was not and to this day has never been. More worryingly, 32% of respondents did not know that it was permitted to move to another address because of a fear of violence at home.

As the regulations we are debating came into view, this confusion allowed their liberalising significance to be exaggerated. The Prime Minister announced that from the day the regulations entered into force we would be free to drive somewhere to take exercise. In fact, this was already permitted, as the CPS, the NPCC and the College of Policing—correcting for the early excesses of a few forces—had already recognised in guidance.

I can see why blurring the line between advice and instruction—what the scholarly QC Tom Hickman has called “normative ambiguity”—must have seemed appealing to those responsible for the Government’s messaging, but longer term the practice can be as corrosive, in its own way, as the inaccurate presentation of statistics. Its true dangers were illustrated when the Dominic Cummings affair broke, and an infantilised public were not disposed to see any distinction between the breach of a rule and a failure to follow advice. The ensuing narrative of “they make the law; they break the law” damaged public trust not only in the people who govern us but in the system by which we are governed.

We are more likely to respect both the rules and the guidance if we are treated as grown-ups, capable of distinguishing between them. Let us hope for more of that openness as we fight the pandemic together.

Coronavirus Bill

Lord Anderson of Ipswich Excerpts

2nd reading & 2nd reading (Hansard - continued) & 2nd reading (Hansard - continued): House of Lords
Tuesday 24th March 2020 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, to defeat a disease, strong and unpleasant medicine may be required. This Bill is that kind of medicine. Its likely side-effects are alarming, as we have heard today from all sides of the House. However, we must swallow it—and we must try to do so not like a child, with our eyes tight shut, but, as befits parliamentarians, with our eyes wide open.

The medicine is sweetened by two features which we would normally take for granted but which it is reassuring to see in abnormal times: the absence of any attempt to oust the jurisdiction of the courts, and the declaration of compatibility with convention rights that appears as a badge of honour on the front page of the Bill. Given the number of rights engaged, that is a tribute both to the pragmatic flexibility of the ECHR and to the Government for not seeking to derogate from that rather sensible reminder of our basic freedoms, as a few other contracting states have recently done.

Clauses 22 and 23 concern the judicial approval of warrants. Warranted investigatory powers are of course vital to our national security and the fight against crime. But the function of judicial commissioners is not simply to facilitate surveillance; it is to keep it within lawful bounds. To take one example—topical, though hypothetical in this country, so far as I know—they might have to decide the extent to which the location data from our mobile phones may be used for contact tracing, or for the monitoring and enforcement of the movement prohibitions that may be introduced under Schedule 22 to the Bill. These are not straightforward issues, which is why we entrust them only to judges of High Court rank and above.

These clauses strengthen, rather than undermine, the system of judicial approval by allowing for the rapid appointment of assistant or temporary commissioners and extending the time necessary for approving urgent warrants. The reasons are not far to seek: the overwhelming majority of judicial commissioners are over 70 and male, and the highly classified nature of their work requires the use of a secure physical location. The key safeguard, noted by the noble Lord, Lord Bethell, in opening, is that the Secretary of State can make the necessary regulations only if the Investigatory Powers Commissioner—a senior judicial figure—notifies her that this is necessary. That is good enough for me.

Before leaving these clauses, however, I would ask the Minister two questions. First—he can answer in writing, if he prefers—could a temporary commissioner serve under successive regulations for a total period of longer than 12 months, if required? That is a question on the meaning of Clause 22(3). Since it can take a while for judicial commissioners to get fully up to speed in this arcane area—I speak as someone who has done some of their training—I hope that the answer yes.

Secondly, as the Delegated Powers and Regulatory Reform Committee pointed out in its report of yesterday, Clause 22(4) allows the Secretary of State to provide for existing statutes in this area to apply with

“specified omissions or other modifications”.

Why is that Henry VIII power necessary? Could the Minister give examples of the kind of omission or modification that the Government have in mind? Why are these powers subject only to the negative procedure, given that, as the committee explains in its report, a statutory instrument can be made just as expeditiously under the “made affirmative” procedure, under which they would lapse without parliamentary approval?

Finally, on parliamentary review, I welcome the new provision in Clause 98 for a six-month review by the Commons, though, like the noble and learned Lord, Lord Falconer, I would have welcomed it more warmly if the Motion had been amendable. In either case, the effectiveness of review will be linked to the content of the two-monthly reports to be produced under Clause 97. I was encouraged to hear the noble Lord, Lord Bethell, say in opening this debate that the Government would “update Parliament regularly on how these powers have been used across the UK”. However, as presently provided for, the two-monthly reports need contain nothing more than an account of which provisions have been activated, and a statement that the Secretary of State “is satisfied” with that state of affairs; one hopes he will be satisfied, because this clause requires it.

There is a broader point here. My experience of reviewing exceptional powers against terrorism has been that effective review requires basic information to be provided by government. One needs to know not just whether a provision is in force but, as the Minister said, what use has been made of it, what unexpected problems have been encountered in its use, what steps have been needed to enforce compliance, and how effective they are judged to have been. We are all acutely mindful of the need not to overburden the Civil Service with major new reporting obligations. But the Government will, as a matter of course, conduct their own assessment of these exceptional powers, based on experience of their use and an assessment of their effectiveness. I would suggest that they can only benefit—as would we—by the opportunity to communicate their reasoned case in this way to Parliament and to the public.

I tabled a modest amendment on this point this afternoon—not in a critical spirit, but in the hope that the Minister might look on it favourably. It would be, I hope we might all agree, a useful way of generating the trust on which public acceptance of the measures in this Bill will ultimately depend.