Part of the debate – in the Senedd at 2:51 pm on 26 August 2020.
Thank you very much, Llywydd, and I speak as temporary Chair of the Legislation, Justice and Constitution Committee, as you have just noted.
The Health Protection (Coronavirus Restrictions) (No. 2) (Wales) Regulations 2020 are the principal regulations on coronavirus in Wales. The Senedd approved these regulations on 5 August this year, together with two sets of amending regulations. On 24 August, we reported on three further sets of amending regulations which are the subject of today's debate. The No. 3 amending regulations permitted restaurants, cafes, bars and public houses to open indoors, and bingo halls, bowling alleys and auction houses to open also. However, measures must be taken to minimise the risk of exposure to coronavirus. The No. 3 amending regulations also relaxed the restrictions on gatherings, so that any outdoor gathering of no more than 30 people is permitted, whether it involves organised outdoor activities or not. Our report on the No. 3 amending regulations drew attention to the absence of a public consultation and a regulatory impact assessment on the regulations, as a consequence of the current circumstances clearly.
The No. 4 amending regulations permitted community centres, swimming pools, fitness studios, gyms, spas, leisure centres and indoor play areas to open. But, again, measures must be taken to minimise the risk of exposure to coronavirus on the premises. They also confer new powers on local authority enforcement officers to ensure that measures are taken to minimise the risk of exposure to coronavirus at workplaces and other premises that are open.
We raised technical and merits points in relation to the No. 4 amending regulations. First, as regards the technical points, we highlighted the inclusion of a potential six months' imprisonment in respect of new offences relating to premises closure notices, and I've heard the Minister's comments on this issue. However, this would be irregular, of course, because the Act under which the regulations are made, namely the Public Health (Control of Disease) Act 1984, does not permit such offences to be punishable by imprisonment. Whilst we note that the Welsh Government has already addressed this matter in the No. 5 amending regulations by making it clear that such offences are punishable only by a fine, the provision relating to imprisonment was in force between 10 August 2020 and 17 August 2020. We are therefore writing to the First Minister seeking confirmation that the provision had no practical impact during that time. Again, I have heard the Minister's comments today.
Our report also sought clarification on the application of regulation 18(7) that relates to the information that may be requested by an enforcement officer and how it can be used in proceedings. As regards the merits points, our report seeks clarity on the Welsh Government's approach to enforcement, and also on how the Government is working with enforcement officers in local authorities, given that the restrictions that apply to individuals and businesses in Wales have now been made and amended 17 times. This is an important point because the frequency of changes to reflect the changing nature of the pandemic makes it difficult for individuals and businesses to keep up with what they are required to do. This, in turn, raises questions as to how the restrictions have been enforced.
We are also seeking information about the resources required to carry out these enforcement activities. In our view, it would have been helpful if information about the enforcement system could have been included in the explanatory memorandum.
Whilst no points were raised by us in our report on the No. 5 amending regulations, we will be writing to the First Minister because we have since become aware of the Welsh Government's guidance on the No. 5 regulations. In particular, the guidance says that it is a legal obligation on the hospitality sector, cinemas, gyms, et cetera, to collect and retain customer information. However, the regulations say that all businesses, open premises, workplaces, et cetera, including the hospitality sector, cinemas and gyms, must take reasonable measures to deal with the virus. While it may be reasonable in a large majority of cases for the hospitality sector and gyms, et cetera, to collect and retain information, we do not believe that this amounts to a blanket legal obligation. Each case should be decided on its facts, and, as we know, the law cannot be declared in guidance. The law is what is set out in the regulations themselves.
I will turn now to the final point on the No. 5 regulations. The guidance seems to say that customer information may be collected and retained for the purposes of reducing the risk of any person who
'has been on the premises'— and I quote there—spreading the virus. But, the regulations say that customer information may be collected for different purposes of minimising the risk of exposure 'at the premises'. And, again, I quote.
I would be grateful, therefore, if the Government could clarify whether there is any inconsistency between the guidance and the regulations on this particular point. Thank you very much.