Instruments drawn to the special attention of the House
Health Protection (Coronavirus, Wearing of Face Coverings on Public Transport) (England) Regulations 2020 (SI 2020/592)
Date made: 14 June 2020
Parliamentary procedure: made affirmative
These Department for Transport (DfT) Regulations require all passengers on public transport in England to wear a face covering, subject to certain exemptions. Failure to do so when asked is an offence subject to a fine and non-compliant people can be refused carriage or removed from the vehicle. We have received a submission from Dr M. Reynolds expressing particular concern about how those with a disability may be treated under these provisions. We are once again critical of the timing of these Regulations which were laid after they had taken effect and too long after the initial announcement. We commend the DfT’s evidence-based approach but it appears to us that they need to find a better balance between their own processes and the information needs of external parties.
These Regulations are drawn to the special attention of the House on the ground that they are politically or legally important or give rise to issues of public policy likely to be of interest to the House.
1.These Regulations have been laid by the Department for Transport (DfT) and are accompanied by an Explanatory Memorandum (EM). They require all passengers on public transport in England to wear a face covering, subject to certain exemptions. Failure to do so when asked is an offence subject to a fine and non-compliant people can be refused carriage or removed from the vehicle. We have received a submission from Dr M. Reynolds expressing particular concern about how those with a disability may be treated under these provisions.1
2.The Secretary of State is required to review the need for these Regulations within six months of their coming into force, and the Regulations expire after 12 months.
Content
3.Regulation 3 states that no person may, without reasonable excuse, use a public transport service without wearing a face covering. A mask is not specified: “face covering” in the Regulations means “a covering of any type which covers a person’s nose and mouth”. Exemptions to those requirements set out in regulation 4 include transport staff, the emergency services, children under the age of 11 and those who cannot put on, wear or remove a face covering:
(a)because of any physical or mental illness or impairment, or disability (within the meaning of section 6 of the Equality Act 2010), or
(b)without severe distress.
4.We asked why voluntary compliance was thought to be inadequate— paragraph 7.5 of the EM cites SAGE’s (Scientific Advisory Group for Emergencies) advice in relation to the London Underground system—and what evidence DfT had to indicate that legislation would achieve a higher level of compliance. DfT responded:
“Evidence from transport operators showed that use of face coverings was not high across their networks. For example, self-reported data from the Office of National Statistics (ONS) showed reported compliance with our existing recommendation to use face coverings at 45% (data collected 4–7 June), rising to 62% the following week (11–14 June). We have not set a target for compliance with the regulation—as there are a series of exemptions to the regulations—but we would expect to see significantly higher compliance via the ONS survey in coming data releases. We note that since the regulation was introduced reported compliance from transport operators is extremely high.”
Enforcement
5.The enforcement powers are quite strong: regulation 5 states that where a relevant person (that is, staff of the transport company or a police officer) considers that the passenger is not wearing a face covering, they may direct that person to wear such a covering; direct them to disembark from the relevant vehicle or deny them boarding. If passengers fail to comply with operators’ encouragement and instructions, without a legitimate exemption, these Regulations give the police and Transport for London enforcement officers new powers to issue a fixed penalty notice. A constable may also remove someone who refuses to comply from the relevant vehicle using reasonable force if necessary.
6.We asked what monitoring is being done to see whether these powers are being used appropriately. DfT replied:
“There are a range of powers available, but we have been clear in our guidance2 and comm[unnication]s that using the stronger powers should be the last resort, after engaging passengers, explaining the importance of using face coverings and encouraging their use. We also suggest that operators should consider enabling compliance by making face coverings available, if they can, for example in vending machines. We note that operators, in particular TfL and on National Rail, have been handing out free coverings.
The regulation is clear that directing someone to leave a vehicle, or forcibly removing them, should only be done where it is necessary and proportionate.
We are also ensuring that we get regular updates and consistent data from the police and TfL on their enforcement activity.”
7.Dr Reynolds’ submission asked what is being done to prevent public “vigilantes” seeking to eject those who are not wearing masks—as the public will not be subject to the same guidelines as transport staff. DfT replied:
“Our guidance is clear that exemptions (in some cases referred to as a ‘reasonable excuse’ in the regulations) apply to the requirement on health, disability and age grounds. This is now included in all DfT campaign materials on face coverings, and we have been clear with operators they should amplify this message too. As with all other behavioural rules on transport (e.g. the alcohol ban on TfL) we do not expect the public to take the rules into their own hands, but will monitor any instances of this closely.”
Disability
8.We note that DfT guidance reminds staff that not all disabilities are visible:
“Where a passenger seeks to rely on an exemption from the requirement to wear a face covering, those seeking to enforce the requirement should take a proportionate approach to the evidence they require in support of that reliance. By way of example, it is not envisaged that people relying on an age, health or disability related exemption will routinely be required to produce any written evidence in support of their reliance.”
9.We asked whether any consultation was conducted with those organisations who represent people with disabilities about their ability to comply. DfT responded that they had consulted the Department’s disabled persons transport advisory committee (DPTAC) and made significant changes both to the guidance and the drafting of the regulations as a result.
Timing
10.These Regulations follow the made affirmative procedure, which allows them to be brought into effect immediately and allows 28 days for them to be approved retrospectively by Parliament. The announcement was made at the Daily Briefing on 4 June, but the instrument was not laid before Parliament until after it had come into effect on 15 June. We asked why the Regulations were not laid earlier, DfT replied:
“After the policy was announced, we were keen to engage operators and devolved authorities on what implementation would mean for them. The announcement of the intention allowed us to do this in a more open way. We were also keen to get the drafting of the regulation right, and did not want to rush any of the related checks and processes to ensure we were able to do that.”
11.While sympathetic to DfT’s motives, it is usually regarded as best practice to conduct such consultation before a policy is announced. Also, as we commented in our 19th report,3 laying the Regulations in this way not only deprived Parliament of the ability to scrutinise them before they came into effect but also prevented those affected being able to prepare after seeing the detailed requirements of the law rather than just the headline announcement. Even a short gap before implementation would have enabled this. We commend the DfT’s evidence-based approach but it appears to us that they need to find a better balance between their own processes and the information needs of external parties.