Official Report: Minutes of Evidence

The Chairperson (Mr Gildernew): I welcome, by videoconference, Mr Nigel McMahon, Chief Environmental Health Officer, who is no stranger to the Committee at this stage, I might add. Nigel, go ahead and give us a briefing on the two statutory rules (SRs), please.

Mr Nigel McMahon (Department of Health): Good afternoon, Chair and members. Can you hear me OK?

The Chairperson (Mr Gildernew): Yes, we can hear you clearly. Thank you.

Mr McMahon: Thank you. I will give you a quick briefing and then take some questions afterwards, if that is OK.

The Health Protection (Coronavirus, Restrictions) (No. 2) Regulations (Northern Ireland) 2020 were made and commenced on 23 July. The (No. 2) regulations revoke and replace the Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2020, including all the previous amendments to those regulations. The regulations are required to be reviewed every 28 days, with the first review taking place by 21 August 2020. The regulations are due to expire after six months, and that brings us to January 2021.

Today, the Committee is considering the (No. 3) and (No. 4) amendments to the restriction (No. 2) regulations, and I will just remind the Committee about the process around these regulations. Proposals for a change are brought forward by various Departments and considered under an agreed Executive decision-making framework that includes guiding principles, a risk/benefit assessment model, a structured process for assessing and implementing, modifying or withdrawing specific restrictions and requirements, and decisions to introduce, withdraw or amend existing regulations or requirements have been implemented through amendments to the regulations, directions, public messaging and guidance.

If the Chair is content, I will briefly summarise the two statutory rules, and then I will be happy to take any questions that members may have. First, SR 2020/195 is the Health Protection (Coronavirus, Restrictions) (No. 2) (Amendment No. 3) Regulations (Northern Ireland) 2020. The amendment (No. 3) regulations were made on 11 September and were commenced at 11.00 pm on 13 September. The regulations provide for the opening of soft-play areas.

SR 2020/198 is the Health Protection (Coronavirus, Restrictions) (No. 2) (Amendment No. 4) Regulations (Northern Ireland) 2020. The amendment (No. 4) regulations were made on 16 September and came into operation with immediate effect. The regulations, which have become known as the local restrictions regulations, apply restrictions in a defined protected area. The restrictions are: no mixing of households in private dwellings, with some limited exemptions; and no more than six people from no more than two households to gather outdoors at a private dwelling such as, for example, in a private garden.

The regulations introduce an emergency period during which local restrictions may be applied within a defined protected area. The emergency period can be ended by a direction made by the Health Minister. That direction can also be revoked by the Health Minister following consultation with the Chief Medical Officer, the Chief Scientific Adviser or the Deputy Chief Medical Officers, effectively bringing the emergency period into force again.

The protected area is defined by means of postcodes, wards or council areas. The Department must make a list itemising the postcodes, wards or council areas that constitute a protected area and publish that immediately online and subsequently in 'The Belfast Gazette'.

The original list of postcodes was published when the regulations were made. The Health Protection (Coronavirus, Restrictions) (No. 2) Regulations (Northern Ireland) Protected Area Direction No. 1 2020 was made on Friday 18 September and added BT 60 to the list from 5.00 pm that day.

The Health Protection (Coronavirus, Restrictions) (No. 2) Regulations (Northern Ireland) Protected Area Direction No. 2 2020 was made on Monday 21 September and added all Northern Ireland postcodes to the list from 6.00 pm on Tuesday 22 September 2020, effectively meaning that the local restrictions now apply across the whole of Northern Ireland.

Thank you for listening. I am happy to answer any questions that members may have.

The Chairperson (Mr Gildernew): OK, thank you, Nigel. What primary legislative power enables the Department to issue directions? You mentioned that those restrictions can be introduced via a direction from the Health Minister or a number of other senior officials. In what primary legislative power is that ability located?

Mr McMahon: It is located in the regulations themselves, which are secondary legislation. The No. 4 amendment regulations allow the Department to make those directions.

The Chairperson (Mr Gildernew): OK, but I note that the Assembly has no democratic oversight or input in respect of directions. What was the rationale for using that approach to those particular restrictions?

Mr McMahon: From the beginning, in the original restrictions regulations, there was also a power to make directions in relation to the enforcement of parts of the regulations. You might recall that we have had two directions prior to this, the first of which allowed councils to enforce the closure of premises to assist the police. The second direction related to allowing transport service providers' officials to enforce the face-coverings regulations on board public transport. It is a mechanism that has been used previously in the original regulations.

In this case, the rationale was, effectively, that we were reacting to a very rapidly changing situation in terms of the surge in the number of cases of the disease. We were moving quickly, obviously, then, to try to bring something in to allow additional restrictions to be put in place in areas where the rise in the number of cases was causing the most concern and to help to restrict, prevent or reduce the interaction between individuals and, indeed, between households, particularly in a domestic setting.

The regulations were brought in quite quickly to begin with. There was also a feeling that the situation was very fast-moving, and that, of course, has proved to be the case. We needed a mechanism that allowed us to change the area that was covered by the enhanced regulations quite quickly, including areas where the numbers of cases were rising, but that also enabled us to remove areas as soon as possible where the reduction in cases that we would hope to see would mean that they no longer need to have those restrictions applied. It is the same principle that we have applied all along of removing restrictions or requirements at the earliest possible opportunity as soon as the evidence suggests that we can. On a practical level, we were also conscious that in bringing the amendment into the main regulations, if postcodes were to be added in and taken out regularly, without using a mechanism such as directions, we would require a new set of regulations to do that in each case.

It is true to say that we have moved more quickly than any of us originally imagined that we would to cover, effectively, the whole of Northern Ireland with the direction. Of course, that means that we are looking at a situation where we would hope, over time, if the measures have a positive effect, to be able to remove postcodes from the list rather than add them.

On a practical level, it was about avoiding having to make an entire set of regulations and all that goes with that if we were, potentially, adding in and taking postcodes out possibly, as we thought, numerous times over a week, for example, depending on the change in the situation. All that goes with that, of course, includes the Committee having to consider in session whether one or two postcodes were added in or taken out, and there is then an Assembly debate associated with each of those sets. It was about the ability to respond very quickly and being very conscious of the practicalities that changing the regulations each time would have.

The Chairperson (Mr Gildernew): The previous direction to allow councils to enforce regulations was just to designate them as enforcement bodies; it was not to give them the power to make or change regulations. The Committee has been quite flexible and has recognised fully the emergency nature of the situation at times. However, at every given time, we wish to apply the maximum scrutiny. We have facilitated additional meetings, and we would, I think, be happier to do that than to set in train now something that would cut us off from further scrutiny and simply allow an official to designate or not. I am a bit concerned about that element of it, Nigel. I think that, potentially, other members will be.

I will open it up to them. Pam wants to come in first.

Mrs Cameron: Thank you, Nigel. We have, obviously, moved on now from local to countrywide restrictions. We understand that completely. There was an awful lot of confusion when, initially, the local restrictions came in, and then a short time later, seemingly by accident, we — I mean politicians — the media and the public were learning by default that our postcode was included when we did not expect it to be. There was then an awful lot of debate about whether that had come to the Executive and been agreed or not. That is regrettable. With regard to communication and getting that wider public message out, something as important as that should have been announced. Where are we with that? My understanding is that the Executive were not aware of the changes. Maybe you could confirm or deny that.

I wanted to ask you a couple of questions about the exemption that covers caring responsibilities for children. For example, if you have more than one set of grandparents who care for a child on different days, does that exemption apply to them? I want to tag on a question about caring responsibilities for animals and pets. For example, are people who walk somebody's pet while they are at work included? Finally, my last wee question relates to weddings in domestic settings. Are gardens still permitted subject to the proper risk assessment?

Mr McMahon: Thank you. If I could, I will just very briefly jump back to the Chair's last comment about scrutiny. I would like to clarify something, if I may.

I think that you referred, Chair, to officials making designations. I just want to clarify that this was an amendment to the main regulations, so the local restrictions are now part, if you like, of the overall package of main regulations. The process for any amendment or change is no different to that for any other amendment. The process for any proposals for changes, which, in this case, come from the Department of Health to change postcodes, is that, whilst the Health Minister ultimately has the power to make a direction, just as he has the power to change the regulations, they go to the Executive and are discussed and agreed. There would be no changes to the scope, application or geographical coverage of local restrictions without Executive discussion and agreement. I take the point that, because it is a direction and not an SR, it does not come to the Committee in that way. I am more than happy to work with the Committee. As I said in my introduction, the information is published and available online immediately.

I am more than happy to work with the Committee, through the Clerk or whatever mechanism is appropriate, to come up with something where we can make sure that the Committee is advised directly of any change to the list of postcodes in the local restrictions. We are happy to take that off-line and agree something on that.

To come back to your question, there was confusion at the beginning. With regard to the Executive, I am not in a position to say. I am not aware of what was discussed and agreed, and there may or may not have been a difference of opinion about what was agreed.

I acknowledge that communications were far from perfect. We do not get it right all the time. From my perspective, the problem arose in communicating the decision initially, and in trying to use the sort of language that people might better understand, rather than talking about particular postcodes.

It is difficult when you are using phrases like, "Belfast", "greater Belfast" or "the town of Ballymena". It might mean more to people, but the difficulty for those of us making the legislation is that those terms have little or no meaning in law. According to our legal advice, the regulations require that the legal definition of the area must be by way of postcodes, wards or council areas. They are all defined legally. Our sense was that people might not know which ward they are in. They are much more likely to know which postcode they are in, or which council area. However, some of the council areas might not match the map of the areas with the highest rates of infection. Therefore, we went for postcodes. However, a long list of postcodes is a difficult thing to communicate. The first list ended up having 10,000 postcodes, covering 54 pages on the website. It is a bit of a challenge to communicate that in language that people fully understand. I appreciate that, initially, we did not get that right.

We worked with Ordnance Survey, and you may have seen an interactive map online that shows the areas. That does not have any legal standing, but it was an attempt to assist people to go to the map to see whether they were included. Hopefully, we will get better at this as time goes on.

The Chairperson (Mr Gildernew): We are under some time pressure. Here is a suggestion, members. In the light of that concern around the issue of directions and the fact that Nigel has committed himself to working with us, I propose that we defer that. Maybe that will allow those questions and that SR to be deferred until next week. We could take further questions and maybe have more time on that. Are members content with that?

Ms Bradshaw: I have to leave, Chair. I have the Ad Hoc Bill of Rights Committee at 2.00 pm. Are you doing any more work on these today?

The Chairperson (Mr Gildernew): Yes, we have more work to complete, which I will continue with now. We can defer this SR, and go back to the SR on soft-play areas. Are there any other questions for Nigel on the soft-play SR only?

Mrs Cameron: Could I have answers on my other questions?

The Chairperson (Mr Gildernew): Could you, as quickly as possible, answer Pam's other questions about carers, Nigel, please?

Mr McMahon: Although we are talking about the (No. 4) amendment regulation today, the (No. 5) amendment regulation that came in this week, expanded or clarified the issue of childcare, so that any informal childcare would be included as an exemption.

The subject of pets is not something that has specifically been raised with me so far, but there is an exemption for things like supported living arrangements and for people who are vulnerable. Whether they are able to take out their pets themselves, I imagine that that may well be covered by that. It is something we may need to think about a bit more.

I believe that if you are talking about a wedding in a large garden, the six persons from two households rule would still apply in that scenario. The best advice would be not to hold your wedding in your garden, given the current local restrictions.

Outside your private garden, the normal restrictions will apply. The risk assessment is for more than 15 people, and, as was the case before, that will continue to apply.

That was very brief, but I hope that it answers your questions.

Ms Bradshaw: I have correspondence from constituents stating that it is taking up to a week for the contract tracing unit to contact them. By then, their memory of whom they were in contact with and where they were before their symptoms appeared has faded. When you come back to the Committee, will you give us an indication of how the information that you get from the contact tracing unit influences these restrictions and your deliberations on them?

Mr McMahon: Do you want me to say something on that now?

The Chairperson (Mr Gildernew): No, just give that some consideration for next week, Nigel, please.

Mr McMahon: OK. Thank you.

The Chairperson (Mr Gildernew): We need to see you again next week, Nigel. We will give further consideration to statutory rule 195. Thank you for attending.