Lords motion to approve the Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place and on Public Transport) (England) (Amendment) (No. 2) Regulations 2020 - Oct 12

Moved by

Lord Bethell

That the Regulations laid before the House on 22 September be approved.

Relevant document: 28th Report from the Secondary Legislation Scrutiny Committee

The Parliamentary Under-Secretary of State, Department of Health and Social Care (Lord Bethell) (Con)

My Lords, we are all aware of the rising rate of infection, particularly after this morning’s candid briefings, and the risks this poses. Therefore, noble Lords will understand the importance of taking the necessary steps to keep members of the public safe, while continuing to keep the economy running, the schools open and heading off the need for a second lockdown.

We know that some of the rules put in place have become increasingly complex and difficult to enforce. That is why the Prime Minister has set out today how we will further simplify and standardise local rules by introducing a three-tier system of local Covid alert levels in England. This is not the subject of the debate today, nor does it change the legal requirement to wear a face covering, but it should reassure noble Lords that we continue to work with local leaders to tackle outbreaks with more targeted restrictions that are simple and constructive.

The regulations being debated today introduce the requirement that members of the public should wear a face covering in taxis and private hire vehicles. In addition, they should also be worn when inside a premises that provides hospitality—such as a bar, pub or restaurant—except when eating or drinking, for which they must be seated. This means that people must wear a face covering when entering, leaving and moving around inside these premises. Additionally, staff working in certain retail and hospitality settings should wear a face covering if they are in areas that are open to members of the public and are therefore likely to come into contact with members of the public.

I will now set out why this is a necessary measure, and how we have seen public behaviour change since the introduction of the first set of face covering regulations. A review of recent clinical research published in the Lancet in August suggested that face covering usage

“in community settings with reduced physical distancing might be justified.”

But despite this, the paper concluded that for Covid-19 this evidence is of

“low or very low certainty”

due to the nature of the data collection.

Studies published in the journal Nature have shown different degrees of support for face coverings. In an article at the end of September, the publication concluded that the effectiveness of cloth face coverings is not as well established as that for PPE in a clinical setting. This article recognised that face coverings are intended to protect the public from exhaled virus-containing particles, but points out that

“few studies have examined particle emission by mask-wearers into the surrounding air.”

In a news feature a fortnight later, Nature quoted studies suggesting that face coverings might have the capacity to save lives, but the article outlined the difficulty of establishing definitive proof. The BMJ pointed out on 7 September:

“There are large gaps in our knowledge and without clear evidence on the use of cloth masks in the community we may be wearing false reassurance.”

PHE conducted a rapid review in June of 28 studies into face coverings for community usage. At the time it concluded:

“There is weak evidence”

in these studies

“that mask wearing in the community may contribute to reducing the spread of COVID-19”.

There is, however, stronger evidence that the

“beneficial effects of wearing masks may be increased when combined with other non-pharmaceutical interventions, such as hand washing and social distancing.”

SAGE has advised that using cloth masks as a precautionary measure could be at least partially effective in enclosed spaces where social distancing is not always possible.

This is the scientific context for these measures. The Government have mandated the use of face coverings in places where social distancing is difficult and where there is closely shared space. We are not increasing high levels of acceptance that face coverings are gaining among the public. We need to be clear that face coverings are not a panacea; they are not a substitute for the key measures. Face coverings alone will not stop the chain of virus transmission, but to do so we must continue to maintain good hygiene, including when putting on and taking off face coverings, and follow social distancing guidelines and safe self-isolation advice.

As the WHO pointed out this summer, due to the limited evidence of the efficacy of homemade masks,

“their use should always be accompanied by frequent hand hygiene and physical distancing.”

With this in mind, noble Lords may have seen the recommendations published by the BMA this weekend about extending the use of face coverings in more settings, including outdoors.

We know that people are responding positively to these regulations, as it is reflected in data published by the ONS. On 11 May the Government advised the public to wear face coverings in enclosed spaces, and on 5 June ONS data suggested that only 32% of people reported that they had worn a face covering outside of the house. Fast forward to now, and ONS figures published on 9 October show that 98% of people had reported wearing a face covering when they leave the house. YouGov polls from the start of October provide further support for these findings. Data collected for the DHSC on health behaviours also show that since new regulations came into force on 24 September, 84% had worn a face covering in a restaurant, café or pub on some occasion, a rise of 22%.

This instrument is already benefiting members of the public and workers alike. I am enormously grateful to noble Lords for their continued engagement on this challenging process in the scrutiny of these regulations. We will, of course, reflect on this in the debate to come. I beg to move.

The Deputy Speaker (Lord Russell of Liverpool) (CB)

Just for the benefit of noble Lords, let me say that the noble Baroness, Lady Thornton, will not be speaking next; she will be winding up for the Opposition. The noble Lord, Lord Campbell-Savours, will be relieved that he is not winding up for the Opposition, and I call him next.

4.38 pm

Lord Campbell-Savours (Lab) [V]

My Lords, this is the 15th occasion since 9 March on which I have spoken on face masks, and I do not want to repeat much of what I have said in the past. We have made some gains over recent months, and I sense that the noble Lord, Lord Bethell, has certainly influenced events, and for that we are grateful—but there still remains a huge gap in mask policy. These regulations define the circumstances, regulatory requirements, enforceability, penalty and review arrangements, and I broadly support them, limited as they are.

The media criticism of inconsistency in wider virus policy application, which has dominated the national debate, is easy copy. The truth is that it is utterly impossible to avoid inconsistencies—we are in a crisis, and it is inevitable that make-do arrangements will breed inconsistencies. My criticism centres on the general approach to masking. It is quite clear to me, and I have read most of the material, that a more precautionary approach is required over the coming months. I can only repeat my view, held since March, that masks should be mandatory in all conditions of social interaction, apart from in the home. That includes offices, shops, and all public premises and spaces, including the streets, with exemptions for health requirements only. I need only point to the success of masking policies in south-east Asia to make my case.

Furthermore, I remain concerned about the issue of valves, which I raised on 18 September, and to which the noble Lord, Lord Bethell, responded positively. I shall be pressing this issue further, as people are simply not getting the message that masks with valves are suitable only in clinical settings where practitioner wearers are known to be virus-free. The Government have to address this issue at an early stage. Valved masks are still being sold to a wider public, unaware of the danger to others.

However, while concentrating my comments on masking policy, I need to raise the equally controversial and associated issue of herd immunity. I have opposed the herd as premature from the start. The experience of Sweden has been misinterpreted. The problem with the Swedish data is that commentators have sought to equate it with the United Kingdom data, which is a nonsense, as no account is being taken of statistics on population density and income. Population density is critical to the debate—we need only examine population and income stats from within the United Kingdom to see that our worst-affected areas are in our high-population-density industrial and socially deprived heartlands. So I say ignore the Swedish data; the solution is to be found at home.

At this stage, we need to reject the herd and follow a policy of differential regional lockdown, as advocated by the northern mayors—and yes, it should probably be tiered, as was suggested by the Government in the Statement in the Commons half an hour ago. The policy should be reviewed at this year-end. I say that, as we need to take fully into account the legitimate arguments of those who want to move to the herd at an early stage. I believe that their demand is premature, but it should not be completely ruled out in the longer term. We need to give the policy of hot-spot lockdowns time to work.

To embark on the herd has major implications for vulnerable groups. If, in the end, supporters of the herd have their way—and that may well happen, as they are driven by concerns of public expenditure—we will need assurances that a national comprehensive support system for the elderly and vulnerable will be put in place. That needs careful planning. It would be a disaster if the herd were introduced, leaving the elderly exposed to the ravages of the virus in the absence of adequate community support arrangements.

This brings me to why I suggest a year-end review. This is a very fast-moving debate. Today’s Statement in the Commons is a clear indicator of that, although the failure to address masking policy in that Statement is a mistake. In ideal circumstances, we need a bridging strategy between a rundown in government support and the introduction of a vaccine in the gap. Timing is critical. Government planners should be working on that now. In conditions of vaccine failure, the herd will be inevitable. Whatever the eventuality, we need careful planning. In my view, it is inconceivable that we would be driven into a herd strategy without the national mask programme that I advocate. Whether it is differential regional lockdown—which I refer to as DRL—or the herd, there is a clear case for mandatory masking in all social interactions, with the exemptions I already outlined in my contribution today.

4.44 pm

Lord Greaves (LD)

My Lords, it must be hard work for the Minister to have to come here, make speeches and deal with noble Lords all the time. Trying to do this particular one twice must be a nightmare—fortunately, he was rescued from that.

As far as public consent is concerned, masks are one of the few successes of the Government’s policies and strategies on Covid-19. There is a high degree of compliance with mask-wearing, which is to the credit of people in this country.

When we started again in September, I was very concerned—I was frightened—at the prospect of going on the Underground, remembering what it was like in July, so I brought my bicycle down to London and had a wonderful fortnight cycling in, during the day. My daughter told me that if I brought my bicycle to London, it would be stolen, so I took precautions against that. It was not stolen, but somebody had a go at it and tried to smash it up and I had to take it home to be repaired. I took courage into my hands and went on the Underground. I have to say that, at the moment, the Underground is a safe environment. I have been coming down on the west coast main line, as I did this morning, and I worry how long those trains will run for when it is only me in a whole carriage. At least the public transport I use is safe, and almost all the people I see on it are wearing masks and behaving sensibly. That is good.

The problems seem to be in supermarkets and similar retail premises. People go on social media and get all het up about people not wearing masks in those places. The answer of the operators of retail premises is that they cannot force people to wear masks. But what they can do, and sometimes do do, is refuse to serve people. If the rule was that you could not be served in such places unless you were wearing a mask, it would be much easier to enforce. They would simply say, “I am sorry, I am not serving you.” It is not difficult to sort that out, so the Government ought to think about that and do it.

I am not someone who will march along the street behind the Great Barrington banner; I think that they are going overboard in what they are saying, though some parts are quite sensible and ought to be taken on board. Generally, there are too many people, on all sides, who are proclaimed as experts and believe that they are right about every aspect. Whether they are professor this, doctor that, or even professor-doctor something else, everybody in this debate, and everybody going on television, ought to have a great deal more modesty about what they are putting forward. The truth is that we do not know a huge amount about the virus and the illnesses that it causes, and we will not know everything for a long time, if ever. Therefore, instead of saying that this is necessary or this is essential, it would help if people had greater modesty and relied on evidence when we can get it.

The problem is that, increasingly, what is put forward as evidence, including the statistical stuff, varies according to where you go. A great deal of the evidence that we need is simply not there. I look at the PHE surveillance report every week. It is a mass of exciting graphs, many of which are put up on our television screens by various organisations. But the crucial evidence that is not known, which I think the Minister referred to in his speech, is how much of the primary transmission of this virus—the real source of it—comes from different elements out in the community.

We are told that it is almost all community transmission now—that while transmission within the health service has not been eliminated, it has been substantially reduced. We are told that care homes are being dealt with, so the two huge problem areas from before have been dealt with. But do we really know how much is coming from shopping, from hospitality, from sporting events and, if I dare say it, from schools—an area that we are not allowed to talk about—and so on? Also, how much of it is essentially among families? I think that family transmission is secondary and, as the Minister suggested, the virus is being brought into homes and then spread in that way. I do not think we know, and that is because the testing and tracing being done does not look backwards; it looks forwards. Environmental health officers can do the job of finding out where the virus is coming from in the first place. There is a huge amount of evidence about this that the Government really need to look at seriously.

The Deputy Speaker (Lord Russell of Liverpool) (CB)

Since the noble Lord, Lord Bowness, has withdrawn from the debate, I now call the noble Earl, Lord Clancarty.

4.51 pm

The Earl of Clancarty (CB)

My Lords, in Greta Thunberg style, without being scientists in the relevant fields, many of us have asked the Government whether they have looked at particular scientific evidence, or what the scientific evidence is for the decisions they are taking or the decisions that they might take; we have asked these things about face masks. Unfortunately, although we know that the department is very busy and that the Minister, the noble Lord, Lord Bethell, is again very busy today, we often do not get answers to these questions, and when we do, they can be sketchy. Having said that, however, the Minister has given us much more scientific detail today about the arguments for and against the use of face masks. I would say that although it is not an entirely fair appraisal of the scientific material, much of it is very convincing about the effectiveness of their use.

There are two things to consider here. One is that the public need to have confidence that the Government are doing the right thing, and therefore they have to show that they are thinking deeply about these matters. The second is that the public have the right to know what the scientific evidence is, and I would include local authorities in this principle of access. The legal challenges being mounted are surely a direct result of the Government’s secrecy in these matters, which is regrettable, but if the attempts to resolve this crisis were being made primarily through the public sector locally, rather than through private companies, one strongly suspects that there would not be the same concerns.

I would like to ask the Minister about the latest position on the science of face masks, but he has given the answer already. This may seem like going over old ground, although the evidence could be accumulating and may be refined. This is important because while most people in my area of Hampshire are complying with the regulations, there remain a significant minority who do not. This cannot be explained away by exemptions. On my train to and from London, I have had to move seats or even carriages a few times to get away from people not wearing masks. While huge fines are now threatened for not wearing a mask on public transport, I am still not convinced that the Government have won, or have even tried to win, the hearts and minds of people for this measure. Has research been carried out on variations in compliance across the country?

However, most people are complying—or at least they do so in my area. As the noble Baroness, Lady Bowles of Berkhamsted, pointed out in an earlier debate, there is nevertheless a logical and common-sense precautionary aspect to face masks, and perhaps that is fortunate. But there is another reason for asking about the science and being convinced by it. If face masks are significantly effective, as the relevant scientific authorities in other countries believe them to be, we should ask whether their use should be extended much further than it has been. I therefore welcome the extension to shops, pub staff and taxis set out in the SIs we are discussing. Surely the bottom line here is that the combination of social distancing and the wearing of face masks will preclude the spread of the disease in those circumstances where these measures are deployed. I ask the Minister: would it be true to say that where this combination is not deployed or not happening, that is where we see the spread of the disease? Can the use of face masks therefore be extended to both inside and outside environments? I agree very much with what the noble Lord, Lord Campbell-Savours, had to say about that.

Just looking at schools, at the end of September, just over 6% of schools reported being affected by Covid. What is the evidence of transmission within schools or outside the school gates? Should there be regulations about the wearing of masks within schools and what about school buses? Is there now a strong argument for children to wear masks from school to home or school to family car? At certain times of day, it is difficult to avoid large groups of schoolchildren, very few of them wearing masks and all shouting, as is normal, on their way home or to and from the railway station. Are the Government looking at this?

I know that some of these questions have been asked before, but now that schools have been open for a while, there ought to be data about transmission to which the public also have a right to access. Have the Government compared notes with other countries, including Germany, which has comparable statistics as regards Covid in schools?

The last time I participated in a debate on face masks, I asked a question about the effectiveness of visors as opposed to masks, as they are increasingly used as an alternative. I did not receive a reply the first time, so I ask the Government again: have they looked at this and what is their advice to the public?

4.56 pm

Baroness Jones of Moulsecoomb (GP)

My Lords, I declare an interest as a vice-president of the Local Government Association. I support completely the idea of wearing face masks. It is an incredibly sensible option, particularly for most of us here. However, I point out to the Minister that my experience suggests that it is mostly men of a certain age and of a right-wing persuasion who find it most difficult to wear face masks. Then there are those who wear them but do not cover their noses. It makes their noses look huge and I feel that, from the point of view of attractiveness, we should encourage them to put the mask over their noses as well. Quite honestly, I think of this as a public duty. I hope that other people wearing them will protect me and I certainly hope to protect others by wearing mine. If the wearing of masks helps to reduce the spread of the virus, it is an important part of collective action and solidarity between people.

However, perhaps the Government have not always made this completely clear and I am very glad that we are not hearing any more of their August talk about “returning to normal”, which actually means supporting London businesses but not supporting local businesses, which most of us have been doing. The regulations have added yet more complexity to the legal framework, with yet more piecemeal amendments. With the announcement today of a new coronavirus legal framework, would it not be a good idea to start consolidating the regulations as part of the exercise so that it is all made as simple and as clear as it possibly can be? In the past—and possibly still—the Government have muddled up and blurred the lines between guidance, advice and the law. This has resulted in a huge amount of confusion, especially for organisations such as the police.

I feel it is inherent in the regulations that the Government expect the virus to be around for some time. It is therefore time for an economic package that includes a universal basic income for everyone to support them through the next six months, to make sure that people can not only support the economy but feed their children and themselves and lead a reasonable life.

An issue that has exercised me throughout the coronavirus crisis is that the Government have been bypassing Parliament. I know there has been a debate in the other place today and that MPs are going to be able to speak on these new regulations tomorrow and then vote on them, but the vote will be yes or no. That is not a debate. A debate suggests that there is a back and forth, and a vote would then imply voting for amendments and alterations.

Adam Wagner, whom I follow on Twitter, is a human rights barrister and a visiting professor of law at Goldsmiths, University of London. He said yesterday:

“One of the things this crisis has brought home to me is how illiberal outcomes are inevitable when hugely important decisions are made by a small group in secret and without parliamentary scrutiny. Biases and personal preferences of those in the room are inevitably amplified”.

For me, that sums up how these regulations are consistently formed and then imposed on us. It is not just about not bypassing Parliament any more or allowing it a say in improving the regulations; it is about understanding that a small clique of people deciding things for the rest of us is a really unhealthy way of going about things, and is absolutely not democracy.

I support noble Lords who have said that local authorities need to be brought in. The Minister said in his opening remarks something about the Government continuing to work with local authorities. That is the sort of phrase that I say “ahem” to; I do not believe it for a moment, and I think local authorities would agree that it is not what has been happening. Many of us do not trust private companies to have the interests of the population at heart, but we understand that it is the job of local authorities to put our interests first. The Government have to give local authorities the power to test and trace, give local authorities the funding so that they can make that happen, and then give them anything else they need to get the job done properly. Let us face it, Serco and the Government have made the most awful mess of this so far; they have wasted billions and allowed thousands to die.

I did not hear the Minister respond to my noble friend Lady Bennett’s questions in the last debate. I ask that he write to her with the answers so that we can all be clear exactly what the Government are doing.

5.03 pm

Baroness Finlay of Llandaff (CB) [V]

My Lords, I declare that I am on the BMA ethics committee. I want to consider what we know, what we are doing and where our duty in society lies.

Masks are increasingly reported to be protective. I thank the Minister for his brief summary, but I add to it that no evidence has emerged that they are harmful in Covid transmission. The coronavirus is tiny, 0.1 micrometres across, less than one-800th of a human hair in diameter, but it does not leave the body on its own; it relies on aerosols and droplets to spread, and it goes however far that mist takes it. Think of tobacco smoke spreading; once you get beyond two metres and are not downwind, you are less likely to inhale much of it, even though the aerosol lingers in the air for a long time. Do not forget that in indoor spaces that can be for many hours, which is why the BMA wants masks worn in offices even when alone.

This aerosol, often minute droplets of around double the width of the virus itself, is partly caught in the fibres of a mask. Masks made of double layers of tightly woven mixed fabrics, such as silk and fine cotton, seem to decrease aerosol transfer by up to about one-fifth. The standard mask for use in healthcare settings with aerosol-generating procedures is the N95 respirator mask, which is designed to protect the wearer by filtering out 95% of airborne particles that measure 0.3 micrometres or larger. A review of observational studies estimates that such surgical and comparable cloth masks are around 67% effective in protecting the wearer. That figure may be even higher for the G variant of the virus that seems to transmit faster, but we do not yet know that.

The other protective effect of a mask is that it can cut the viral count inhaled by up to 60%. Where masking reduces the dose of virus that a wearer might receive, it seems that the resulting infection is milder or even asymptomatic, whereas a large viral load results in a more aggressive inflammatory response. So wearing the suitable mask protects the wearer as well as protecting others if the wearer is excreting virus. In Hong Kong a new type of reusable fabric mask, CuMask+, will be issued to all citizens. This patented six-layer mask is washable 60 times and incorporates copper as a key filtering component, although there is some dispute over the extent of claims of efficacy.

What of mask deniers? I am afraid that they are still out there. The inconvenience of wearing a mask is tiny for most of us. Those who lipread for whatever reason need to see a person’s mouth and a very small number of people cannot tolerate a mask, so exceptions are appropriate. For the rest of us, it is only a slightly increased effort to breathe through the mask and cope with fogged-up glasses—although proper eye protection is associated with less infection. However, we all have a duty to others—the ethical principles of justice and that we do not cause harm. We have no idea if the person that we passed in the shop, the street or elsewhere is in a high-risk group and should be shielding.

Thin, disposable masks are not adequately protective, and there are now more masks than jellyfish in some seas. It is predicted that 75% of throwaway masks will end up in landfill or in oceans. The ecological effect will be long-lasting, as these masks last 450 years before degrading. What is the Government’s policy to radically decrease mask litter? Why are we not providing advice on how to recycle masks—for example, by hot-ironing cloth ones?

I stress, as I have before and as Distance Aware aims to stress, that the most important measures are social distancing and hand washing. Is the word “space” used simply because it rhymes with “face”? Is there evidence that the public know that this means the two-metre rule? Will the Government make it crystal clear that the two-metre distancing rule is more important than anything else, and that masks can be an adjunct of that but no substitute for it? Other than fines, what is being done to empower those who deserve to be protected when confronted by someone who is simply too selfish to wear a mask properly and thinks it is funny to hang it around their chin or off one ear? I hope we are at the end of mixed messages and that social duty towards each other will define what we do.

5.08 pm

Baroness Ritchie of Downpatrick (Non-Afl) [V]

My Lords, it is a pleasure to follow the noble Baroness, Lady Finlay of Llandaff, who has considerable scientific knowledge about this issue. I thank the Minister for his explanation of the regulations.

I agree with the use of face masks, particularly in relation to these regulations with respect to taxis and the hospitality industry. I note from the learned journal Nature that science supports the use of masks, but it also says that it is difficult to assess how well they work or when to use them. I think we have all been quite clear that wearing face masks protects not only ourselves but everyone else within our space, using social distancing, hand washing and all the other requirements to keep safe.

In relation to all these debates, I take on board the points made by the noble Lord, Lord Campbell-Savours, who has referred to masks in many debates in your Lordships’ House as far back as February, and to herd immunity. Will the Minister say whether the reason the Government, who seem to be followed by the devolved institutions, are not going for a strict lockdown, as back in March, is to build herd immunity? Is that the real reason for all of this?

That brings me to the regulations regarding face coverings. I note that they came into effect on 23 and 24 September without parliamentary scrutiny, that there were errors and that remakes were necessary to provide clarity. I further note that three correcting instruments had to be made within 24 hours, and that the Secondary Legislation Scrutiny Committee noted its surprise that the Government are not doing more to co-ordinate such changes in a more structured way. The committee also stated that it is not helpful to have the law scattered between so many instruments, so I come to the point made by the noble Baroness, Lady Jones of Moulsecoomb, who talked about the probable need for consolidated regulations. There are too many separate amending regulations, and that is where inconsistency and confusion can arise. Will the Minister consider the use of more consolidated legislation, or is that not possible due to the changing nature of the virus? Where is the parliamentary scrutiny in advance of the introduction of such regulations? When will that happen? That point has been made on numerous occasions during various debates in this House, and I recall the regret Motion moved by the noble Baroness, Lady Thornton, to that effect on a Friday about three weeks ago.

Undoubtedly, Northern Ireland will follow suit on these regulations. It is as if a time lapse has taken place, which can cause inconsistency in application, understanding and adherence. In that regard, will the Minister indicate what process is under way to assess the effectiveness of such measures as they relate to society and communities? As a result of that assessment, could best practice be adopted across the UK through the medium of a committee of officials in the devolved Administrations and the Government, so that we have the maximum impact in reducing the rate of transmission and the number of cases, at the same time as protecting all our citizens and our economy?

What assessment has been carried out of the use of face masks? Are there background statistics showing that they are actually being used, and are fines being imposed when they are not? What is the rate of such fines and the rate of malpractice in that regard? If such analysis has been done, what learning has been captured? Could best practice be rolled out through all policy avenues in relation to Covid and these regulations?

5.14 pm

Lord Loomba (CB) [V]

My Lords, I would like to make two points about today’s regulations. The first is regarding the wearing of face masks and the second concerns the amount of legislation being created to deal with the pandemic.

As a country, we were slow to adopt the wearing of face coverings, and there was a huge debate in the early days of the pandemic about the merits or demerits of their protective qualities. This was at a time when PPE was in short supply, and it was generally agreed that NHS and other front-line workers were left vulnerable without the correct PPE, which included wearing masks for complete protection. It is therefore a mystery as to why it did not make sense to endorse the wearing of face masks by the general public in the beginning, given that there was so much evidence of their protective benefits from their use by front-line workers. Perhaps the Minister would like to say why such an oversight took place.

My second point, which has also been noted by the Lords Secondary Legislation Scrutiny Committee, concerns the number of statutory instruments dealing with issues relating to the pandemic. For example, we had two original face covering regulations, which were subsequently amended by three further instruments. Today’s instruments add a further three amendments to the original two, making six in total.

One of today’s instruments includes taxis and private hire vehicles in the definition of public transport in order to make it compulsory for passengers to wear a face mask when using them. That it was not considered necessary to include this form of transport in the beginning means we need a further instrument to deal with the issue. Not only does that add to the legislative burden; it links to my first point about adopting the wearing of masks earlier in the pandemic: not having that regulation may have contributed to many more people being infected, as they were without face masks in a confined space. A second example is the provision that addresses the inadvertent omission from the original instrument of making it compulsory for bar staff to wear face masks.

While we are making fines for non-compliance stiffer, as here with the second regulation, we must make sure the law is accessible and easily understood by the public, or we are in danger of undermining the rule of law. I thoroughly endorse the committee’s view that the Government must take a more structured and, indeed, streamlined approach to the legislation in order to facilitate understanding and compliance, as no doubt the need for more legislation is unlikely to go away in the current situation.

The Deputy Speaker (Lord Palmer of Childs Hill) (LD)

I call the noble Baroness, Lady Uddin.

Baroness Penn (Con)

The noble Baroness might be on mute, so she could try unmuting herself.

The Deputy Speaker (Lord Palmer of Childs Hill) (LD)

I think we will go to the noble Baroness, Lady Wheatcroft.

5.19 pm

Baroness Wheatcroft (Non-Afl) [V]

My Lords, I spoke in the earlier statutory instrument debate so will keep my remarks brief on this one. The noble Lord, Lord Greaves, urged shopkeepers to refuse to serve customers who are not wearing masks, but I have every sympathy with those who serve in shops or work on public transport who see people not wearing masks but are highly reluctant to confront them. They face being told that the people concerned cannot wear a mask but have no evidence of that—they just do not want to wear masks.

The majority of people are playing by the rules, but not everybody. The Government’s advice is that:

“No person needs to seek advice or request a letter from a medical professional about their reason for not wearing a face covering.”

As long as that remains the case, it is difficult for anybody to challenge those who are not wearing face coverings. If the Government believe that it would help in reducing the rate of Covid if everybody who can do so wears a face covering, is it not worth considering making it obligatory—because we are in a time of emergency—so that those who do not want to wear a face covering cannot just decide that they will not?

Those who cannot wear face coverings surely should have no difficulty in getting a GP, or maybe even a pharmacist, to give them something indicating that they are exempt. Then people who are behind the counter, manning the turnstiles or driving a bus would feel confident in challenging those who simply were not wearing a face covering, and insisting that they complied with the rules or would not be served or carried on public transport, et cetera. I would be grateful to hear the thoughts of the Minister on that point.

5.21 pm

Lord Oates (LD)

My Lords, at the outset of the pandemic in Europe, medics from south-east Asia, who had the most experience of the virus and consequently the best understanding of it, made it crystal clear that the wearing of face masks, while no panacea, was one of a number of important measures in combating it and in making people less vulnerable to other seasonal viruses such as the flu. The noble Baroness, Lady Finlay of Llandaff, set out comprehensively how cloth masks in particular can be highly effective as part of a wider approach. She also made an important point about the reduced effectiveness of disposable masks and the ecological damage that they do. For some reason, at the outset of this pandemic we chose to ignore the advice from south-east Asia, preferring to reinvent the wheel because we somehow thought that we knew better.

At a time when the Government were closing businesses, restricting travel, preventing children and grandchildren seeing their parents and grandparents, and confining people to their homes—the greatest interference in British people’s civil liberties since World War II—for some reason they would not take the simple step of requiring, or even just requesting, that people protect themselves and others by enduring the minor inconvenience of wearing a face mask. It was not until 11 May, nearly two months after the lockdown, that the Government first advised the public to wear face coverings. It was not until 15 June that they were made mandatory on public transport, three months after the lockdown began, and it was not until four months later that they were required in shops, supermarkets and transport hubs—and even later in hospitality venues.

The Government preferred to spend their time focusing on grandiose claims about world-beating apps that never arrived, rather than on adopting and enforcing effective infection control, including masks, and, as the Minister said, handwashing and social distancing. They have only recently started focusing their public messaging on these three basics together—“Hands, Face, Space”—when those should have been there from the outset. It is impossible to know how many lives would have been saved if we had listened to advice from our colleagues in south-east Asia much earlier, but what is unforgivable is that today we still lag way behind in the measures we have taken and the means of enforcement.

The regulations we are discussing, which require face coverings to be worn in taxis and private vehicles, came into force only on 24 September. It is extraordinary that it was not a requirement from the outset. The Explanatory Memorandum states:

“Emerging data has demonstrated that taxi and private hire vehicle drivers as more likely to be vulnerable to Covid-19”.

I am very surprised that it has taken over six months to arrive at what seems a reasonably self-evident supposition, because of not only the disproportionate number of drivers from more susceptible groups, as referenced in the Explanatory Memorandum, but the confined space in which they operate. I understand that even under these regulations, the requirement is upon passengers and not drivers. This seems an unfathomable policy decision and I hope that the Minister will be able to explain it in his reply.

The second set of regulations, as we have heard, require face coverings in theatres, bars, restaurants and pubs, except when seated. These did not come into force until a day later—not until 24 September. Again, what was the Government’s rationale in applying such a basic public health measure so late in the day after we started to reopen the economy?

Finally, on enforcement, over the past weeks, the penalties for failure to wear a face covering that are displayed at London railway stations, such as the ones I have seen at Waterloo and Clapham Junction, have moved from £100 one week to £3,200 the next and £6,400 the week after that. Who thinks this sort of thing up? Do they not realise that, far from making the public think that the Government are getting a grip, it makes them think that the law is a joke—doubly so, because they can see that enforcement appears almost entirely absent? I know now, although only from reading the regulations, that the £6,400 figure is a maximum for repeated offences. But as far as I am aware, the public are not avid readers of statutory instruments, so they will not know that. They will regard the fine displayed as frankly absurd—as I did when I saw it. As enforcement seems to be most notable for its absence, it is hard to imagine anyone being challenged enough times for the maximum fine ever to be applied, so what is the point? In that context, can the Minister tell us how many fines of £100—the minimum—have actually been issued and what is the maximum fine that has so far been employed?

As the Minister stressed, face coverings are no panacea, and as my noble friend Lord Greaves said, we often do not have the evidence that we would like when making decisions. But if we are going to get ahead of this disease, we are going to have to act much faster. Sometimes we are going to have to use our common sense and act ahead of having all the evidence that we would want. We need to have an enforcement regime that is proportionate and effective, with a verifiable system of exemptions.

5.28 pm

Baroness Thornton (Lab)

My Lords, the contributors to this debate have asked the Minister pretty much all the questions that need to be asked on this issue. Perhaps I may say to my noble friend Lord Campbell-Savours that I would not have minded if he had been here doing this job, because he is definitely the expert on face masks in the House.

I want to make two procedural points. First, as we move forward to discuss face masks, I cannot see any reason why we would not be discussing them before regulations are made. If there are to be any changes to the regulatory regime around face masks, I cannot see that emergency legislation needs to be used. The House is perfectly capable now of discussing whatever needs to be changed, as the science evolves, prior to enactment rather than several weeks after. Secondly, I cannot resist teasing the Minister about the fact that the Secondary Legislation Scrutiny Committee has asked the Government if they can please take care about not publishing three amended statutory instruments to correct the mistakes that they made in the first one—and they did it within 24 hours. It said:

“The Committee has noticed a recent increase in the number of correcting instruments, with several Coronavirus instruments having to be revoked or amended immediately after laying … We therefore remind all Departments to check all instruments thoroughly before laying them before Parliament”.

I think that probably counts as a B.

The noble Baroness, Lady Finlay, was correct to say that the need to wear masks was about protecting each other. The Prime Minister said last week, concerning the sharp rise in coronavirus cases across the UK, that the country had become blasé about following restrictions designed to bring the pandemic under control, but I think a lack of enforcement is partly to blame. The Prime Minister’s father, former MEP Stanley Johnson, has been pictured three times either not wearing a mask or with one tucked under his chin, in places where face coverings are required: a London shop, a Tube station and an airport.

Therefore, it is legitimate to ask the Government not specifically about Stanley Johnson’s conduct but about what assessment they have made of the levels of compliance and of people’s reasons for not following the rules. Perhaps it is because the rules are changing so quickly and are confusing, or because people are becoming blasé. As I have said, I travel in and out of London on Tubes and buses every day; as the Minister said, the wearing of masks is significantly better than it was a month ago. There is absolutely no question of that. However, there are still people refusing to wear them.

Business enforcement is an issue here. Shops and supermarkets are required by law to inform customers to wear a face covering—unless they have an exemption—which they do through signs or by telling them when they enter the premises. This is enforced by local authorities and businesses risk a fine if they fail to do so. However, there is concern that the Government may not be following through on their own advice. Four retailers—Sainsbury’s, Lidl, Morrisons and B&M, the homeware stores—were issued with warning notices by Barking and Dagenham Council in east London, after their staff were seen failing to enforce mask-wearing and social distancing by customers. After the enforcement notices were issued under anti-social behaviour legislation, stores were understood to have complained to the Department for Business, Energy and Industrial Strategy. It has been reported that a senior official at BEIS then telephoned the council and said that it

“did not have powers to enforce these guidelines using the Government’s Covid-19 emergency powers”

and that

“the action had caused a negative reaction from the operators”,

according to a letter of complaint from the council to Alok Sharma, the Business Secretary.

This is rather important. Can the Minister confirm these reports? If so, does he share my concern that maybe his colleagues are undermining these regulations, and public health? Who will enforce these regulations, and how? As the Minister said, the British Medical Association has called for face masks to be mandatory in busy outdoor areas as well as indoors, and where there is a risk of coming within two metres of other people, including in offices. It is clear that most workplaces were never designed for people to work two metres apart. The Government need to revisit the science and enforcement of wearing face masks. It would be great to have that debate before enactment.

The Deputy Speaker (Lord Palmer of Childs Hill) (LD)

Can we try the noble Baroness, Lady Uddin, again?

5.34 pm

Baroness Uddin (Non-Afl) [V]

My Lords, many of us in this House have consistently called on the Government to make mask-wearing mandatory. I am relieved that they have seen the error of their ways. When masks were gold dust, my wonderful mother started making them, beautifully crafted, for all our family. I have diligently worn them since April, even when I am cooking and baking. We are at a crossroads, with increasing numbers of people being admitted to hospital across the country. No doubt we will have to examine whether mandating masks would have prevented the rising infection rate.

I take this opportunity to acknowledge the decisive action of the Lord Speaker, and the Speaker in the other place, who instructed both Houses in protecting staff. I hope that guidance will also be extended to staff at hospitality venues, including restaurants. It makes no sense for staff not to wear masks while cooking and serving.

Masks are an expensive commodity, priced well beyond the means of those on paltry state benefits and low pay. Can the Government enshrine their commitment to public health and meet the needs of those most vulnerable by making them available free in health service institutions, schools, universities, community centres and places of worship, where people are still allowed to congregate in greater numbers with social distancing?

I went to venues, as I usually do every weekend, to see what was happening and if there were any improvements among young people attending organised events. I was pleased to see increased numbers of young people wearing masks—though still not enough—but social distancing remains a huge gap in public education. The Government must address this and I am sure we will discuss it in due course.

I have just come from a Zoom briefing by the Chinese Information and Advice Centre. Its members have seen an exponential rise in hate crimes against the Chinese communities. Under the outstanding leadership of Edmond Yeo, CIAC’s endeavours have also been outstanding, ensuring that it provides thousands of masks and food parcels to vulnerable families. I have worked with CIAC since April and throughout the summer. Its work is incredible and its commitment outstanding. This community has suffered a huge rise in hate crimes. Can the Minister take this back to his and other departments, and ensure that the Chinese communities are protected on the streets of our country?

5.37 pm

Lord Bethell (Con)

My Lords, I endorse the words of the noble Baroness, Lady Uddin, in thanking the Lord Speaker and noting his words on masks in the House. Who would have believed in February that a Lord Speaker would be sending an email recommending wearing masks in the corridors of the House of Lords? We have indeed come a very long way. I thank the noble Baroness, Lady Finlay, and the noble Lord, Lord Campbell-Savours, for their insight on the wearing of masks. They have both clearly taken deep dives into the scientific evidence, as I have, and have thought to synthesise from the raw data an understanding of how masks and face coverings may or may not protect the wearer and the society around them. The upshot is that it is not always crystal clear, as they both acknowledged, but there is interesting advice there for everyone.

The noble Baroness, Lady Jones, had in some ways the most interesting insight—at least to me. Out of the science comes a very human and important public health observation, which coronavirus has struck us all with: my health is important not only to me but to those who share my space and my health service. If I have coronavirus, it is not just of interest to me but to anyone standing near me. A communicable disease is just that. The clue is in the name. It is shareable with our neighbours. That is why the wearing of masks and face coverings is not only about protecting ourselves, but about protecting our community, our neighbour and our health system.

I take from this debate a real sense of optimism that public attitudes in the UK have massively changed. I note, in response to the noble Baroness, Lady Thornton, the huge endorsement of the wearing of masks: according to recent ONS figures, 98% of people say that they have worn a mask in the last few weeks. The scientific evidence on masks would endorse that spirit. A simple hand-made or cloth mask is a public service rather than a source of self-protection and it is all the more poignant and important for that reason.

We have come a long way since February and March when there was a serious and understandable concern about cannibalisation. As I said in the previous debate, we have tens of millions of items of PPE from hundreds of suppliers covering months of health needs ahead, so cannibalisation is no longer a fear. The example of south-east Asia is important. I note and echo those who observe the role of face coverings and masks in countries that have much to teach us about public health concerns. However, I reiterate some of the practicalities and concerns about inappropriate—and overreliance on—face mask wearing. It can be a displacement activity. For some people, it can be a way of channelling concerns and can lead to unnecessary risk-taking, particularly for those who are seeking to avoid social distancing. For some, it can be a distraction from the important regimens of hygiene. As I said in my opening words, it is absolutely imperative that those wearing masks are conscious of and abide by hygiene protocols—a badly treated face covering, reused over days, can become a vector for infection and a source of contagion.

These are the concerns of the CMO and why we have moved thoughtfully and not rushed into this. As the evidence base builds and public attitudes change, we are putting more and more store in this important area, particularly in those instances where social distancing is difficult and where masks can helpfully control or minimise contagion. There is also an important question of public trust. We do not want to be in a position where we highly recommend something that we cannot quite prove is effective. There are those who say, “Well if it doesn’t hurt, why not give it a go?” It can hurt, however, because if the public suspect that we are not relying on clear scientific evidence, that has an enormous impact on our trust figures.

The noble Baroness, Lady Finlay, mentioned the environment and asked about the measures we are taking to minimise the ecological impact. This is challenging. The best practice for masks is, frankly, to use them frequently. In south-east Asia, pupils bring three masks to school each day—one for the morning, once for lunchtime, one for the afternoon—and each one is thrown away after use. That is an enormous consumption of environmentally damaging disposable goods. I pay tribute to the Keep Britain Tidy campaign, which has done an enormous amount to try to think through the disposal of masks; work is being done to figure out ways of either reusing or recycling them.

I will answer some specific points. I absolutely, categorically and 100% reassure the noble Baroness, Lady Ritchie, that there is no herd immunity strategy. It is not the Government’s strategy and we have no plans to move in that direction. To the noble Earl, Lord Clancarty, I explain that masks are recommended for indoor areas in schools, particularly in places such as corridors where social distancing is impossible. It is up to headmasters to provide specific guidance but this is all explained in the guidelines. The noble Lords, Lord Greaves, and Lord Oates, and my noble friend Lady Wheatcroft spoke about shops. This is a challenging area but we are loath to put shopkeepers and shop workers in the firing line; it is not appropriate or fair to ask someone working behind a counter to police the wearing of masks. However, we are very serious about enforcement. In response to the noble Lord, Lord Oates, I pay tribute to Transport for London. Some 102,856 people were stopped between 4 July and 1 October. Of those, 1,753 were removed from public transport and 430 fixed penalty notices were issued.

The question from the noble Baroness, Lady Thornton, on Barking and Dagenham was very interesting. I do not know the full answer. I will seek it and write to her with whatever answer I can find. The noble Lord, Lord Greaves, asked where the transmission of disease comes from. He was right to say that there are different types of transmission in different categories. As we discussed in the earlier debate, households are where it all ends up. Household contagion is extremely high. Many households will originally be infected from the community, by their neighbours or in places where they socially congregate. The disease is introduced into communities from various distances. That is why we often look at ways of restricting transport, whether within a lockdown area or internationally. Finally, in answer to the noble Earl, Lord Clancarty, visors are not enough to cover mouths and noses; that is why they are not a substitute for a face covering.

Looking to the future, I have said enough on our desire to bring a more regular scrutiny to these kinds of statutory instruments; I completely endorse the words of the noble Baroness, Lady Thornton, on this. I remind noble Lords that it is up to the usual channels to schedule the business of the House. On the Joint Committee on Statutory Instruments corrections, I take note of the noble Baroness’s remarks. I have little to say in mitigation, other than to balance her well-meaning and frank remarks by paying testimony to the legal teams who do this work. I know that the noble Baroness would join me in thanking the legal teams who have the unenviable task of drafting these regulations, often late at night and at the weekend. I can tell noble Lords that this weekend was particularly tough for the legal team, who are doing their best under difficult circumstances. As I said, I pay tribute to their work. With that in mind, I beg to move.

Motion agreed.

Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place and on Public Transport) (England) (Amendment) (No. 3) Regulations 2020

Motion to Approve

5.47 pm

Moved by

Lord Bethell

That the Regulations laid before the House on 23 September be approved.

Relevant document: 28th Report from the Secondary Legislation Scrutiny Committee.

Motion agreed.

Health Protection (Coronavirus, Wearing of Face Coverings in a Relevant Place) (England) (Amendment) (No. 3) Regulations 2020

Motion to Approve

5.48 pm

Moved by

Lord Bethell

That the Regulations laid before the House on 24 September be approved.

Relevant document: 28th Report from the Secondary Legislation Scrutiny Committee

Motion agreed.