HEALTH PROTECTION (CORONAVIRUS, RESTRICTIONS) (SELF-ISOLATION) (ENGLAND) REGULATIONS 2020 HEALTH PROTECTION (CORONAVIRUS, RESTRICTIONS) (NORTH OF ENGLAND, NORTH EAST AND NORTH WEST OF ENGLAND AND OBLIGATIONS OF UNDERTAKINGS (ENGLAND) ETC.) (AMENDMENT) REGULATIONS 2020

Mark Harper Excerpts

Monday 19th October 2020 General Committees

[Helen Whately]

I will briefly explain each statutory instrument in turn.

The regulations on self-isolation, SI 2020, No. 1045, came into force on 28 September 2020. They make it a legal requirement to self-isolate if an individual tests positive for coronavirus, or is contacted by NHS Test and Trace and told to self-isolate. Financial penalties have been introduced for non-compliance with the regulations.

The regulations on the protected areas in the north of England, the north-east and north-west of England, as well as obligations of undertakings, SI 2020, No. 1057, came into force on 22 September 2020. They originally delivered a number of amendments to regulations that have since been replaced by the local covid-19 alert level regulations. Now, only amendments to the Health Protection (Coronavirus, Restrictions) (Obligations of Undertakings) (England) Regulations 2020 still continue to apply. Those amendments include inserting a definition of “indoors” to the obligations of undertakings regulations. They also amend the obligations of undertakings regulations to add a requirement on certain businesses to take all reasonable measures not to take bookings that would not be in line with certain gathering limits. The new requirements were originally related to relevant premises in areas covered by the north-east and north-west of England regulations. Those regulations have been revoked and the amendments made by SI 2020, No. 1057 now apply in relation to relevant premises in areas covered by Health Protection (Coronavirus, Local COVID-19 Alert Level) (Very High) (England) Regulations 2020.

It has been necessary to maintain the regulations to ensure that the requirements on businesses, as provided under the obligations of undertakings regulations, continue to support the covid-19 response. In particular, they align with and support the new local covid-19 alert level regulations.

Both sets of regulations have been introduced to mitigate the unprecedented impact of the covid-19 pandemic, and I urge the Committee to approve them so that we may continue to use those powers to save lives.

As the amended statutory instrument adds only a definition of “indoors” and a requirement on certain businesses to take all reasonable measures not to take bookings, I will now focus primarily on the regulations on self-isolation. The legal duty to self-isolate is one element of a three-part strategy to increase compliance with self-isolation after a person has been infected by, or exposed to, coronavirus. First, we aim to increase to public understanding of the importance of self-isolation to stopping the spread of the virus, and of the circumstances in which individuals must self-isolate. We have put in place a comprehensive media campaign to increase public awareness of NHS Test and Trace, explaining what it is, why it is important and what the public need to do.

Secondly, we are supporting people to comply by providing assistance to those who may have practical difficulties in self-isolating. NHS Test and Trace officials check in with individuals who have tested positive and who are contacts of cases through follow-up phone calls and text messages to reinforce the importance of self-isolation. They also provide advice and ensure that people have access to support that they need. Where a support need is identified, local authorities play a role in encouraging, educating and supporting compliance. In addition, a test and trace support payment has been introduced to help ensure that people on low incomes self-isolate when they test positive or identify as a contact, and to encourage more people to get tested.

Thirdly, we want to reinforce the seriousness of non-compliance. The regulations therefore introduce new legal duties, along with fixed penalty notices, for those who do not follow the rules. Where there is clear evidence that someone is not following the rules, the police will determine what follow-up action to take and, when necessary, issue fixed penalty notices. Fines start at £1,000 and may increase up to £10,000 for repeat offences. For more serious breaches, fines start at £4,000, increasing up to £10,000. Serious breaches may include where an individual comes into close contact with others and is reckless as to the consequences for the health of other people.

[Mr Mark Harper (Forest of Dean) (Con)]

I have listened carefully to what my hon. Friend has said about compliance. Does she have any evidence about how well people are actually complying with the self-isolation requirements? At a SAGE meeting in August, the SPI-B —scientific pandemic influenza group on behaviours—sub-committee was given an action to understand and improve adherence to self-isolation. It would be interesting to judge the regulations before us by understanding the extent to which people are or are not complying with the existing rules.

[Helen Whately]

I thank my right hon. Friend for his question, and I will indeed cite the evidence that we have on the level of compliance with self-isolation later.

The regulations also recognise the importance of employers respecting self-isolation requirements. No employer should prevent an employee from self-isolating or encourage or put pressure on them not to do so. Where an employer is found to be in breach of that obligation, they face a fine. That is in line with fines for other employer covid-19 breaches. Employees who need to self-isolate must also inform their employers of their legal requirement to do so, and a fixed fine of £50 is set for employees who do not inform their employer. There is a clear reciprocal duty between employees and employers about self-isolation, which supports both the opportunity and motivation to comply.

We recognise that there may be exceptional circumstances in which an individual may need to break their self-isolation; for instance, if they are unsafe or if emergency assistance is needed. In those cases, the legal duty would not apply and individuals would not face a penalty. The regulations specify the circumstances in which breaking self-isolation would be permitted.

--- Later in debate ---

[Mr Harper]

It is a pleasure to serve under your chairmanship, Ms Fovargue, and to follow the hon. Member for Ellesmere Port and Neston. I am conscious that we have only 36 minutes left, and I want to give the Minister time to answer the hon. Gentleman’s questions and also those that I have, so I will ensure that I finish speaking in good time.

First, I have some questions about the regulations. The Minister will know, because I made it clear on the Floor of the House when we were debating other regulations, that I also have some questions about the underpinning policy strategy, which I hope she can deal with.

Yesterday, Lady Harding, who runs NHS Test and Trace, made it clear that the test and trace system is not a silver bullet. I agree. It is not the only part of the Government’s strategy, but in the Government’s plan to rebuild which they set out in May, that system is a central part of the strategy in phase 2. Yes, it is true that good hygiene practices—hand washing, face coverings, cleaning and social distancing—are all very important, but reducing infected people’s social contact absolutely depends on the test and trace system. SAGE has made it very clear that an effective test and trace system can have a significant effect on R—the reproduction rate of the virus—and that that should remain a priority. It has also told us what the goal should be for a test and trace system: that at least 80% of contacts of a positive case have to isolate. That rate is set as the floor not as the ceiling. That is the point of the regulations: to make sure that those contacts isolate.

It gives me no pleasure, but I am afraid that I agree with the hon. Gentleman that the performance of the system is not up to the mark. The latest data show that we contacted only 76.8% of those who tested positive and only 62.6% of contacts. The media keep on reporting the 60% and comparing that with the 80%, but that is not correct. We must remember that we reached only 76.8% of the number of people who tested positive. If we multiply those numbers together, the result actually tells us that in the past week the system only reached 48% of the contacts of those who tested positive. Given that the target it 80%, that is a significant deficit.

My question to the Minister is very simple. What is the plan to get from 48% to 80% quickly? My own view, for what it is worth, is that we should lean more towards using our fantastic public health teams locally. Unlike the Opposition, ideologically I have no problem with using the private sector. We have people who are skilled in conducting sensitive conversations about diseases and people’s contacts. They could get that information. They have a tool that one cannot use from a call centre: if they cannot reach someone on the phone, they can go round and see them. The parts of the country that have used that model have had good results. From talking to my own public health team, I understand that we only have a limited window if we are to give them more resources.

In the tier 3 areas we have broadly accepted that that is a sensible plan, and I believe that we have given sums of money to local authorities in those areas so that they can employ the local teams as the first point of contact tracing. Why limit that to tier 3 areas? Why not follow that practice everywhere and give the resources to the directors of public health? I think that they would do a fantastic job and get the numbers up. That is one of the key tools to keep the virus under control in parts of the country like mine where, fortunately, the infection rate remains very low. I note the presence of one or two other members of the Committee who are also in that fortunate position. In areas where we have had to increase the level of controls, particularly at tier 3, it is vital, once we have driven the virus down, to maintain an effective test and trace system to keep the numbers low, potentially for many months to come. That is incredibly important.

[Matt Western]

Just to echo the right hon. Gentleman’s point, the example of Sheffield leads the way in that, does it not?

[Mr Harper]

I am not familiar with that local authority, but from my experience in my own area, I think the local authority in Gloucestershire would do a very good job, and I think that we would get better results.

The hon. Member for Ellesmere Port and Neston referred to data sharing with the police. Some of the headlines at the weekend were perhaps unhelpful, because they had the wrong impact. I do not know whether this was the Government’s thinking, but although one can argue that cranking up the toughness of the regime may have an impact on some people, to suggest that people may get into trouble with police may drive them away from testing and sharing their contact information. When one actually reads the information on the NHS website about how the data will be shared, it seems incredibly reasonable. In the first instance, it is shared with the local authority, and only if the local authority cannot make progress is it shared with the police. If the police are investigating a specific case, they can request it, so the impression of blanket sharing of information with the police was not helpful. I do not know whether that was the Government’s intention, but it was not entirely helpful.

My only question for the Minister is: has the memorandum of understanding between the Department and the National Police Chiefs Council been published? I have investigated but been unable to find it anywhere. It would be better if there was more transparency and we were clear about what information may be shared. We saw one of the potential risks at the weekend when the busy NHS covid-19 app Twitter account had to leap into action to reassure everybody that information from their mobile phones could not make its way to the police. The concern was that that would reduce the uptake and use of the app.

I perhaps hold a different view from the hon. Gentleman, because I was pleased that the Government changed tack and moved away from the central database option for the app and went with Google and Apple API, whereby the information is stored on a phone. A central database might have seemed attractive, but it would have reduced uptake and many people would not have wanted the app. Having more people use the app and being aware if they need to isolate, which is in their interest and that of the community, is better than having a central database and no one using the app because they do not want personal information being stored by the Government.

[Justin Madders]

We agree with that move, but we were trying to address the concerns expressed by the Secondary Legislation Scrutiny Committee about inadvertent discrimination as a result of use of the app.

[Mr Harper]

Point taken.

It is welcome that the regulations create an offence of falsely giving contact information, meaning that someone needlessly has to isolate at some considerable cost to themselves. Self-isolation is the equivalent of house arrest, which under the criminal justice system requires a high bar of evidence.

Under the regulations, if Test and Trace tells someone to self-isolate they must do so, but what procedures are available to challenge that? Some people will not have travelled on public transport or have met the criterion of having been closer to someone than 2 metres for 15 minutes. If they receive a message that they must self-isolate but know they have not been in contact with anyone, is there a mechanism whereby they can challenge that? I suspect the answer is that there is not because of the need of the person who has tested positive to be anonymous, but if that has been considered by Ministers I would like them to say so and accept that it is unfortunate but that there is nothing that can be done about it.

I am concerned about it because for those in this room self-isolation is not a massive burden: we are still paid and can do quite a lot of our job at home. But for some people self-isolation is a real problem, and if it is not necessary in order to keep the community safe I do not want people to have to do it and I do not want anything to damage their confidence in the regulations.

Regulation 2(3)(a)(i) states that somebody must self-isolate in their home or in the home of a friend or family member. When we were debating where university students had to self-isolate, I asked whether, if a university student or anyone else who potentially has more than one home tests positive, they have to self-isolate in their university accommodation. Clearly, they must not do what a Member of this House did and get on public transport to go to another place and put other people at risk. However, if they were able to travel from one location to another in a private car, for example, where they were not going to come into contact with anyone else, and the person they were staying with was perfectly happy for them to do so, is there anything in these regulations that prohibits them from doing that?

The reason I ask is that the Department for Education is putting quite a lot of effort into thinking about what changes might have to take place in the period running up to Christmas to enable students to go home. When I read these regulations, I could not quite see on the face of it any reason why even a student who had tested positive, if they could travel safely, with the agreement of their family and where there was nobody at particular risk, could not just go home anyway and have their period of self-isolation at home, while obviously taking appropriate precautions. I would be grateful if the Minister could clarify that.

The final point I will raise—I think I am perhaps a bit firmer on this than the Labour party—is that I have a particular reason to be unhappy with the enforcement powers in the regulations, particularly giving the power to use “reasonable force” to officers of the state. Let me tell the Committee briefly why I am very concerned about this, to the extent that I have already made it clear on the Floor of the House that I am not satisfied by the Minister’s answers I will seek to vote against these regulations even though I am completely in favour of people’s having to self-isolate.

I became a Minister in the Home Office shortly after some individuals who are being deported had sadly lost their lives as a result of poor restraint procedures on aircraft. We carried out a significant independent inquiry into that and into how to use force, if required, on somebody in a way that kept them safe. I have no problem with powers being given to police constables; they already have the power to use reasonable force and their use of reasonable force is governed not only by a number of pieces of primary legislation, but by common law. A new police officer has a five-day training course specifically on using reasonable force and has to attend a two-day refresher course every year. There is a national decision-making framework that officers are familiar with, which they use to make those decisions, and in all their safety training that they are assessed to ensure they understand how to use reasonable force and what their legal requirements are. They also have to state the length of time since their personal training and refresher course when they use force, and any use of force by a police officer is reviewed by an independent panel.

That part of it I am fine with, but I have a real problem with the other three groups of people being given that power. People may not be aware that police community support officers do not have the power to use reasonable force except to detain someone until a police officer arrives. They do not have the power to use force any more than a member of the public does, and they do not go through all those training procedures that I have just talked about. I have no idea what sorts of people the,

“person designated by the Secretary of State”,

will be, but I want to know who we are thinking of and what training they have undertaken to ensure that this is safe.

The final group is officers designated by the local authority. I do not want local authority employees having the power to use reasonable force. I do not think the Ministry of Housing, Communities and Local Government does either, because if we look at the regulations that the House approved last week on tiers, there are powers to use reasonable force in those, and although they still include the powers to use reasonable force for police community support officers, the powers available to local government employees have been constrained to a specific part of the regulations. They have been narrowed—I am still not happy with them, but they have been narrowed.

The reason why that is important is that we are talking here about using force on people with coronavirus. In itself, that is a risk. Giving the power to use reasonable force to agents of the state is a big deal. We do not generally give state employees the power to use reasonable force to detain and move people. That is a limited power. Because of all the regulatory requirements, where we give that power to police officers, there is a huge number of controls around it, quite properly. Unless the Minister can give me a very good reason why the powers are here, and say what the thinking is behind them and what steps the Government have taken to make sure they will be exercised in a safe manner, I cannot support these regulations.

Not everyone will feel the same way as me, but I have been a Minister with this responsibility, and have seen what happens when powers like these are used inappropriately: they lead to deaths. I do not think they should be here. Frankly, we should take these regulations away and strip those powers out. They should be given only to police officers—people trained to use them, and who know how to use them when all the appropriate safeguards in place. This is incredibly serious. I conclude there, to give the Minister time to answer our questions in the remaining 20 minutes.

[Catherine McKinnell]

rose—

--- Later in debate ---

[Helen Whately]

I thank colleagues for their contributions to the debate, and I will do my best to respond to as many as I can. I might not manage to get to them all, because I do not have much time.

I want to pick up on the comments made by the hon. Member for Ellesmere Port and Neston. I thank him for his overall tone, the approach that he takes to these debates, and the rigour with which he has gone through the regulations and asked totally reasonable questions. I will do my absolute best to respond to them. Like others, he had called for earlier scrutiny of regulations such as the ones we are debating, and I thank him for acknowledging that progress was made last week when we debated changes to regulations. Scrutiny is a valuable part of our democratic process.

The hon. Member for Newcastle upon Tyne North asked whether we could follow the normal processes for introducing and debating legislation, but she will know that we have the extraordinary challenge of the pandemic, which moves at a fast pace. With doubling times and exponential increases in case rates, there is a real trade-off between taking steps that will save lives and spending time debating them. We are constantly trying to get the balance right, so that we can move quickly and allow scrutiny, which, as I say, plays a valuable part in our legislative process.

The hon. Members for Ellesmere Port and Neston, and for Newcastle upon Tyne North, talked about some of the confusion about regulations, which I totally appreciate. We have been through a national lockdown in which the same rules applied to everybody. That was very simple, but it also had an enormous impact on the lives and livelihoods of the whole population. In response to that, the Government committed to trying to be more focused in our interventions, and to ensuring that interventions reflected what was going on locally where Test and Trace has given us information about how the virus is being transmitted. That led to local restrictions, and we worked closely with local authorities on what they felt would make the most difference in their area. That has led to different areas having different regulations. That can lead to confusion, in local authority border areas, about why the restrictions are different for people who live down the road.

We therefore introduced the tiering system—the local alert levels—to achieve more consistency while still allowing for local variation. That recognises that different areas have different infection rates, but it has led to people having to keep up with changes to rules. We are trying to strike the right balance between providing a local response to the virus and making the system as simple as possible. That is absolutely what the Government are trying to do, but it is clearly a difficult situation that we all find ourselves grappling with.

The hon. Member for Ellesmere Port and Neston expressed some confusion about the duration of self-isolation, and he asked about notifications. In general, self-isolation is for 14 days from the onset of symptoms. Clearly, that differs in some circumstances, depending, for instance, on whether we are talking about a member of a household or multiple members of a household, but I will look into the possibility that different things are being communication by Test and Trace, as it needs to be clear to everybody.

If I understood the question correctly, where a notification issued by a contact tracer is withdrawn because new evidence reveals that the person told to self-isolate was not actually a contact, these regulations would mean that the duty to self-isolate no longer applied. The hon. Member asked about close proximity. In general, that is being within 2 metres of somebody for more than 15 minutes, but further details can be found on gov.uk.

The hon. Member for Newcastle upon Tyne North asked about communications to employers. The Department for Business, Energy and Industrial Strategy has contacted major business representatives, such as the Confederation of British Industry and the Federation of Small Businesses, and there is also the ACAS helpline, so there are sources of information for business. I agree with what was said on the efforts that the hospitality sector has made to keep up to date with regulations, and its huge efforts to make premises covid-secure. We should absolutely appreciate what it is doing to keep us all safe.

On the important points made about the responsibilities of employers, it is unacceptable for any employer to discriminate against an employee because they are rightly self-isolating, either because they have tested positive or because they are a contact. The hon. Lady is absolutely right that that should be and is a clear message. It would be completely wrong for an employer to penalise somebody for doing the right thing. We all need to be responsible employers and citizens, supporting each other to do the right thing.

On the questions about annual leave, this is a choice for employees. If an employee faced being on statutory sick pay to self-isolate, but wanted to have full pay, they could choose to take annual leave instead, but that cannot be imposed on them by an employer. I am particularly alive to the financial challenges that this issue—and the pandemic in general—is imposing on people and, as hon. Members will know, the Treasury has made many announcements of support for people, but we are in difficult times.

Of relevance to this debate is the important introduction of that £500 support payment for those on lower incomes who are self-isolating; we know that is important in enabling self-isolation. This brings me directly to the question about research. The one reason why that payment was introduced was because research told us that one of the explanations people gave for not self-isolating was that they could not afford to.

The hon. Member for Ellesmere Port and Neston asked me about the source of the research; the figure I gave earlier of only around 20% of the population reporting compliance was based on the summary of results from around 21 nationally representative surveys. There is ongoing research on compliance, as that will be important in informing the ongoing response.

The hon. Member also spoke about the app; my right hon. Friend the Member for Forest of Dean (Mr Harper) made some of the arguments about its importance, why it is anonymous, and why, as a result, notifications received through the app are treated differently from notifications through the manual contact-tracing system. The hon. Member for Ellesmere Port and Neston also asked about the uptake of self-isolation payments; I can tell him that as of 13 October, 60 payments had been processed.

My right hon. Friend the Member for Forest of Dean talked about Test and Trace and its performance; it is absolutely an important part of our system. If I recall correctly, around 600,000 people have been contacted and asked to isolate as a result of the Test and Trace system, so it is having a material impact. Of course, we would like it to contact absolutely everybody.

[Mr Harper]

Will my hon. Friend give way?

[Helen Whately]

I can, but I have only five minutes left.

[Mr Harper]

I will be brief—and it is mostly my questions that the Minister has not got to yet, so I am only affecting myself. She says Test and Trace is having a material effect, but that is not the view of SAGE, which was clear in its minutes of 21 September that it is not having a material effect. It said that if something does not happen, things are likely to get worse. That is SAGE’s view, not mine.

[Helen Whately]

We have been doing Test and Trace for some months now, and over a period of time, large numbers of people have been contacted through the system about the need to self-isolate.

I turn to the point made by my right hon. Friend and the hon. Member for Newcastle upon Tyne North about the role of local public health teams. Local public health teams are an incredibly important part of our response to the pandemic, both through their support of Test and Trace and—I see this in my work as care Minister—all the work they are doing with the social care sector in care homes. My right hon. Friend the Member for Forest of Dean is right that local authorities’ ability to knock on people’s doors, if we cannot get through to them by phone, is an important part of the response. I note his call for more resources to support that for areas, such as his, in tier 1.

My right hon. Friend asked me whether the MOU had been published. It has not been yet, but it will be. He also asked whether self-isolation can be challenged. An appeals process is being worked on to enable that. He also asked a number of questions about policing and reasonable force, on which I will have to get back to him, because I would not want to give anything other than the correct information. He also asked about the location in which students should self-isolate. In the regulations, as I am sure he is aware, there is a set of exemptions or reasonable excuses for why someone might not be able to self-isolate fully. Those excuses include, as I think was mentioned, taking an animal to the vet, seeking medical assistance, and avoiding risk of harm.

The purpose of the regulations is to make fully clear the importance of self-isolation, to educate people on their obligations, and to support people who are self-isolating; they then provide for enforcement, including fines, for those who knowingly and deliberately choose not to follow the rules. In addition, statutory instrument No. 1057 ensures that the requirements on businesses in the Health Protection (Coronavirus, Restrictions) (North of England, North East and North West of England and Obligations of Undertakings (England) etc.) (Amendment) Regulations 2020 continue to support our covid response, and are in alignment with the new local alert level regulations. We will review the regulations regularly, and continue to assess them in the light of the latest science and other data.

Question put and agreed to.

Resolved,

That the Committee has considered the Health Protection (Coronavirus, Restrictions) (Self-isolation) (England) Regulations 2020 (S.I. 2020, No. 1045).

HEALTH PROTECTION (CORONAVIRUS, RESTRICTIONS) (NORTH OF ENGLAND, NORTH EAST AND NORTH WEST OF ENGLAND AND OBLIGATIONS OF UNDERTAKINGS (ENGLAND) ETC.) (AMENDMENT) REGULATIONS 2020

Resolved,

That the Committee has considered the Health Protection (Coronavirus, Restrictions) (North of England, North East and North West of England and Obligations of Undertakings (England) Etc.) (Amendment) Regulations 2020 (S.I. 2020, No. 1057).—(Helen Whately.)