I call on the Minister for Health and Social Services, Eluned Morgan, to move the motions. Thank you.

Motion NDM7873 Lesley Griffiths

To propose that the Senedd, in accordance with Standing Order 27.5:

1. Approves The Health Protection (Coronavirus Restrictions) (No. 5) (Wales) (Amendment) (No. 22) Regulations 2021 laid in the Table Office on 10 December 2021.

Motion NNDM7874 Lesley Griffiths

To propose that the Senedd, in accordance with Standing Order 27.5:

1. Approves The Health Protection (Coronavirus Restrictions) (No. 5) (Wales) (Amendment) (No. 23) Regulations 2021 laid in the Table Office on 17 December 2021.

Motion NNDM7875 Lesley Griffiths

To propose that the Senedd, in accordance with Standing Order 27.5:

1. Approves The Health Protection (Coronavirus Restrictions) (No. 5) (Wales) (Amendment) (No. 25) Regulations 2021 laid in the Table Office on 23 December 2021.

Motions moved.

Llywydd, I move the motions before us. As the First Minister set out last week, omicron is now the dominant form of the virus in Wales and cases have been rising sharply. Cases are far higher now than they were at the peak of the previous waves. Omicron is already putting significant pressure on the NHS at the busiest time of year, not just from rising hospital admissions, but through staff absences. Staff sickness levels are similarly rising in other public services. Before us today are three sets of amendment regulations. These stem from Cabinet having moved to a weekly review of the coronavirus regulations following the arrival and spread of the omicron variant.

Firstly, No. 22 amendments from 11 December clarified face masks must be worn in theatres, cinemas and concert halls. They also made face coverings a legal requirement during professional driving lessons and practical tests in Wales. From 15 December, prior recovery or natural immunity was removed as a way of demonstrating COVID-19 status for the purposes of the COVID pass.

Secondly, before us today are the No. 23 amendments. From 20 December, these placed a legal duty on employers to allow their employees to work from home where this would be a reasonable measure to take, and on employees to do the same where practicable. The importance of working from home as a mitigation measure has been set out repeatedly by SAGE and TAG. This is particularly important when case rates in the community are high. Contacts in the workplace can be a significant driver of transmission. A specific duty on the individual is intended to support employees by providing them with the requirement to point to if there is a dispute with an employer who is making people go to work when it is not necessary or reasonable. This is not a new provision; it was formerly a legal requirement up until July 2020 with the same sanctions applying then as now. We're not aware of any fixed-penalty notices being issued to individuals throughout the whole period that this was in law during 2020. It is expected that the same proportionate approach will be taken by enforcement bodies of educating and advising individuals prior to taking any enforcement actions. I think it's worth saying that if these are not supported, then these regulations will cease to have effect from the end of today and there will be fewer measures in place to protect workers.

Members will be aware that Wales moved to alert level 2 on Boxing Day. These changes were made through the No. 25 regulations before us today. These include a general requirement for businesses to put measures in place to ensure social distancing of 2m in all regulated premises, including workplaces where that is reasonable. There is a rule of six for gatherings in pubs and restaurants and in cinemas and theatres. Every regulated and licensed premises must take appropriate measures to safeguard customers and staff, including table service. Face coverings are a requirement in hospitality areas at all times, apart from when people are seated. Large events are not allowed; the maximum number of people who can gather at an indoor event is 30, with 50 in open-air venues, and it's a requirement for nightclubs to close.

I can assure Members that we don't take these steps lightly. The omicron wave, however, has provided further evidence that this pandemic is not over. These measures are important to safeguard Wales. Thank you, Llywydd.

I call now on the Chair of the Legislation, Justice and Constitution Committee, Huw Irranca-Davies.

Thank you, Llywydd, and thank you, Minister. We considered these regulations at our meeting yesterday, and our reports to the Senedd containing merits reporting points on each of these regulations were laid immediately afterwards.

Now, sometimes, I'm aware that colleagues occasionally find our observations a little dry as we try to shed light, rather than heat, but bear with us, as we hope that our comments will help this Senedd in its job of scrutiny and help the Government by improving the legislation and the regulations and the explanations it brings forward.

Now, our reports on these regulations raise what Members will now recognise as quite familiar merits points under Standing Order 21.3, namely the highlighting of any potential interference with human rights and the lack of formal consultation. We have acknowledged the Welsh Government's justification in relation to these points, as set out in the explanatory memoranda.

Now, further to these reporting points, we have also identified additional reporting points for the No. 22 and No. 23 regulations. With regard to the No. 22 regulations, we noted that there is no equality impact assessment. We therefore asked the Welsh Government to explain what arrangements it has made in respect of these regulations to publish reports of equality impact assessments in accordance with regulation 8(1)(d) of the Equality Act 2010 (Statutory Duties) (Wales) Regulations 2011.

In addition, and as stated in the No. 22 regulations, from 15 December 2021, natural immunity as a way of demonstrating COVID-19 status was removed for the purposes of the COVID pass. The explanatory memorandum to the regulations states that

'summary impact assessments have been published previously which include impacts relating to face coverings.'

However, no reference is made to equality impact assessments relating to regulation changes that exclude natural immunity as a way of demonstrating COVID-19 status for the purposes of the COVID pass. 

Now, the Welsh Government has now confirmed that an updated impact assessment will be published shortly, and we welcome that. But, given that these regulations have been in force since mid December, as we speak, we hope that the Minister will agree with us that these updates should be published, where they can, in a more timely fashion and, indeed, that this will be done in future, wherever possible.

So, in relation to the exclusion of prior recovery, i.e. natural immunity, the explanatory memorandum notes that this purpose

'is justified on public health grounds' as well as representing

'a strengthening of the requirements as previously proposed by the Technical Advisory Group and is supported by the Chief Medical Officer.'

However, there is no reference made to the evidence on which the Welsh Government has relied to make this provision. So, we therefore asked the Welsh Government to set out the evidence that shows that excluding natural immunity as a way of demonstrating COVID-19 status for the purposes of the COVID pass is, in quotes, 'justified on public health grounds'.

The Welsh Government has, and we thank them for this, since shared further information with us, including the minutes of the SAGE 99 meeting held on 16 December 2021, and which is noted in our report. So, Minister, in welcoming that additional information, we just respectfully and gently remind Welsh Government that, if we have more fulsome and early information in the explanatory memorandum that accompanies the regulations when laid before the Senedd, it would be beneficial to scrutiny and helpful to all of us.

We also sought a response from the Welsh Government with regard to two merits points raised in our report on the No. 23 regulations, which, as Members will know, change the provisions around working from home. Again, we asked the Welsh Government to explain what arrangements it has made in respect of these regulations to publish reports of equality impact assessments in accordance with the Equality Act 2010 (Statutory Duties) (Wales) Regulations 2011.

In addition, the explanatory memorandum accompanying the No. 23 regulations states, and I quote,

'summary impact assessments are in preparation which will include impacts relating to working from home.'

However, it is unclear whether these assessments will include an equality impact assessment. As these assessments are yet to be published, the public, as well as the Senedd, are also unable to assess the equalities impact of the new provision being introduced by these regulations.  

Now, the Government indeed responded to our report earlier today, and, in respect of this point, we have been told that the Welsh Government routinely prepares and publishes summary impact assessments in relation to changes in the coronavirus regulations, in quotes,

'at the earliest opportunity after each review period.'

So, I will again simply reiterate a point I've already made, that it would help us all if these should be published as early as possible in a timely fashion. And, indeed, we think they should be.

Our last reporting point relates to the creation of an offence for individuals who breach the requirement to work from home where it is reasonably practicable for them to do so. Now, once again, the explanatory memorandum does not set out or link to any specific evidence on which the Welsh Government relies when making this provision, so we have asked the Welsh Government to set out the relevant evidence that supports the significant tightening of restriction around home working at this time.

And, in the response we received today around lunchtime, the Welsh Government has pointed us to the Scientific Pandemic Influenza Group on Modelling operational sub-group for SAGE from June 2021, and the technical advisory cell advice from December 2021. The Welsh Government's response also states that survey and mobility data at the point the decision was made indicated that guidance and messaging was not having the desired effect in shifting the proportion of people working from home in Wales to minimise the spread of COVID, and we note that response and we thank the Minister for that response.

So, Minister, at the risk of repetition and in conclusion, our committee, again, whilst recognising the emergency nature of these successive regulations relating to coronavirus, simply asks that fuller information should be available at the outset whenever possible when regulations are laid before the Senedd, because it would be better for scrutiny by the Senedd and by the public, but also better for the Government in making their case. Diolch yn fawr iawn.

Can I say, Minister, I think it is entirely unacceptable at this point in the pandemic that we are voting on these regulations retrospectively? This was, of course, understood nearly two years ago at the beginning of the pandemic, but we are now in a virtual meeting, where meetings can be requested more easily, and we are now in a position where the regulations should be debated first before the regulations come into being. We also, I think, need to see the scientific evidence that's behind the regulations being provided much earlier, not late as they have been in the instance of these regulations as well.

And there are a number of anomalies, I think, in the current set of regulations, Minister. There's been quite a bit of discussion today on parkruns, for example, during First Minister's questions and the last item as well. I think a ban on outdoor events, such as parkruns, which attract over and above 50 people as a maximum attendance, as you've set out, is inappropriate. I've heard, Minister, your explanation in the previous item, but other Members mentioned the practicalities in regard to overcoming some of the issues. You, I think, Minister, in the last item, talked about there being some give and take from the organisers. Well, I would suggest there's give and take from you, Minister, in regard to the regulations and in regard to the review of the regulations later this week. I hear what you say in regard to parkruns, Minister, but I think it is absurd that in a recent Caerphilly rugby match, there were 50 spectators on the touchline, but 140 in the clubhouse. So, this points to significant aspects of the regulations not being proportionate. And, of course, these regulations, especially in regard to outdoor sporting events, have a significant impact on people's mental health and well-being as well. Of course, I point out today that restrictions on large outdoor events in Scotland will come to an end from Monday.

The last technical advice group evidence was published on 17 December, which doesn't quite take into account the evidence coming out now. We, as Welsh Conservatives, Minister, will not be supporting these regulations today. There are quite a number of aspects of the regulations that we do support, particularly in regard to the various requirements for face masks and other aspects as well. You will be aware, Minister, that we've previously supported the vast majority of the Welsh Government's regulations, even though we've had concerns about aspects of those regulations, but I'm afraid, on this occasion, there are more anomalies that, on balance, make it not appropriate for the Welsh Conservatives to give their support to the regulations.

You've outlined, Minister, that if these regulations are not supported today, the regulations will then cease and there'll be fewer restrictions in Wales. What I would say to that, Minister, is that the regulations need to come forward and be debated before they come into force, along with the scientific evidence being published at that time as well, and then we would not be in the position as you set out. Diolch.

Thank you for the opportunity to outline Plaid Cymru's views on these regulations. I will take them in order, starting with the easiest, the No. 22 regulations. I don't see that there is much that is contentious here; they are minor changes, in reality, in terms of some definitions around the COVID pass and the use of face coverings, and we're happy to support them. The only thing that I would highlight at this point, as I and others have done many times before over almost two years now, is that these regulations are ones that have been laid for over a month. They came into force exactly a month ago. Yes, there have been reasons throughout this pandemic why action has been taken quickly, but it reflects poorly democratically on us as a Senedd that we haven't had an opportunity to vote on these for a month after they've come into force. Practically, it doesn't matter as much with these regulations as we support them, as I've said.

But things aren't quite as straightforward with the second set, which are the No. 23 regulations. The central aim here—we're very happy with it—is the regulations on working from home. That made sense and it followed clear advice from scientific and technical advisers to the Government. But there are elements of these regulations that we're uncomfortable with, namely the element of the threat of fines for individual workers if they don't work from home where that is possible. For us, for the TUC—and I'm grateful for the work that the TUC has done on this—and for many people who have raised concerns about this, this is not acceptable. The First Minister explained that this provides safeguards to workers in some way, and I don't accept that viewpoint. He said that this reflects rules that were in force earlier in the pandemic. The Minister reiterated that today and we've heard that nobody has been penalised. Well, that doesn't justify what is unfair and unjust here in principle, I don't think. It's a matter of providing safety in the workplace. This is what we're talking about, and for us it's not acceptable to place the onus on individual employees to ensure their own safety in the workplace; it's the employer that should carry that responsibility. That's the reasonable basis for individuals relating to workplace safety. And whilst I don't want fines to be given to employers either—I want people to adhere to the regulations—it's right that the employer should face that threat of sanction if the regulations are not adhered to.

The Government has changed some of the guidance around these regulations, but the fundamental regulations remain as they were. So, as things stand, we will be voting against these regulations. However, I will listen very carefully to what the Minister has to say. If we can be given clearer assurances that workers will not be penalised, that that threat will cease to exist and, more importantly, that new regulations will be drawn up as a matter of urgency that will place the onus on the employer rather than the employee—making that clear—then we would be willing to abstain in order to retain that centrally important element in terms of homeworking, although, of course, I do hope that we are approaching the lifting of that restriction too. But as I say, I will listen very carefully to the Minister's response.

Finally, I turn to the No. 25 regulations. These aren't simple either. We strongly support the core principle that raising the alert level was a sensible step to take in light of the evidence that we had at that time prior to Christmas in terms of the threat that we were facing, but there is an element of these regulations that we don't agree with—we raised that before they were introduced; it is something that I and others have raised a number of times today and it's been done across the political spectrum—and that's the number of people who can gather outdoors, including for sporting events. We don't believe that a maximum of 50 was proportionate, and being proportionate and appearing to be fair has to be an essential part of regulation. In responding to demands to scrap those requirements on allowing crowds in sports events, the Government said that the biggest factor, perhaps, with these events is not watching the match itself, but the things related to that—the numbers travelling on public transport or the numbers gathering in pubs before and after a game. Well, perhaps that is true with the major events—even with those, I would want to see the Government lifting restrictions as soon as possible so that we can continue with six nations matches, for example—but if we look at the lower levels in terms of sport—football matches, rugby matches at a local level or a national level that attract hundreds rather than tens of thousands of people—well, sorry, but the arguments regarding large-scale infections on public transport and in pubs clearly don't hold water in the same way.

Now, because we are agreed with the core principle of raising the alert level, we won't oppose these regulations, but our decision to abstain on this today does reflect the feeling that we could have refined things around sporting events particularly, and sends a message once again that we, once again, ask the Minister to look at that issue, be it sports events, sports games or parkruns and so on and so forth. Thank you.

It won't come as a surprise to the Minister that I have deep concerns relating to the fines on workers in regulation No. 23, and I’m not alone, of course—as Rhun ap Iorwerth highlighted, the TUC and other Members have raised concerns. As I set out when the Senedd was recalled, the Government’s memorandum of understanding shows quite clearly that the Government believes that the relationship is balanced between workers and employers, which is so far from the truth. There was a point made by the First Minister on the record during the recall debate that these fines give workers extra protection, and a hypothetical scenario was played out, and I quote directly from the Record here,

'they are able to say to the employer, "I cannot come to work on those terms, because, if I were to do so, I would be committing an offence, and you cannot put me in that position."'

With the greatest respect, I have to say this is a completely naive position. I could probably give several examples of how that conversation would actually play out from when I worked in minimum-wage jobs before coming to this place, but I appreciate, of course, we’re tight for time.

The Government is also emphasising the fact that no worker has been fined yet. This indicates to me that the Government doesn’t want workers to be fined in the first place, and if this is the case, then I’m struggling to understand why the Government wants to proceed with the fines on workers at all. To conclude, Llywydd, the onus should be on employers and not workers. The employer is responsible for workplace safety, and we’re not talking about a balanced relationship here.

The regulations and guidance brought forward by Government over the past almost two years have, generally, been widely supported, but this support is waning, and this is following the decision to prevent more than 50 people attending outdoor events. Coronavirus, from the common cold to COVID-19, does spread at this time of year because people are gathering indoors. But, under the current regulations, people can view matches on televisions in clubs and pubs, as we've already heard, but they can't watch a match in the open air. Now, one understands the need to regulate the major sporting events with thousands of people using public transport and going into pubs, as I mentioned myself during the autumn internationals. And one understands, of course, the need to regulate and control that. But, these current rules that prevent games such as Llanuwchllyn against Porthmadog in the football, for example, are regulations that are disproportionate and, as I said, they put at risk the wide-scale support for the regulations that there has been in the past. So, will you review this element and, as Llyr Gruffydd mentioned earlier today, look at increasing that maximum for attendance at open-air sporting events and participation in parkruns, and do so as soon as possible, please?

Firstly, I want to register my thanks to the Minister and also her team for all of their work at this very pressurised time. Thank you for your dedication to keeping us safe. I'm also grateful to you for your time in meeting with me. I just want to make a brief contribution to the discussion on amendment 23 to the COVID regulations.

I'm very much in line with contributions from Plaid Cymru here. As you know, I am concerned to see the Government continuing to pursue this amendment, which could see workers fined £60 for being in breach of this law. I would be happy to support the amendment with the fine on employees being removed whilst maintaining the penalties on the employers.

I have on the whole supported, and continue to support, the pragmatic approach this Government has taken, but I cannot support fining workers for a decision that is completely out of their control. I look forward to hearing your thoughts on this, Minister, and wondered if you could clarify if amendment 23 relates only to those requirements on individual workers to work from home, and not provisions to fine employers who do not make provisions for individuals to safely work from home. If these regulations were not to be approved by the Senedd, would the provision to fine employers be removed from the regulations?

Finally, will you commit to bringing forward amended regulations at the earliest possible opportunity that remove the provision to fine workers? Thank you. Diolch yn fawr iawn.

The health Minister now to reply to the debate.

Diolch yn fawr. Thank you for that interesting debate. It's really important that we focus on the detail of some of the points that Members have set out today. 

On the issue of outdoor sports, I just want to make it clear that we have heard very clearly the views of people in relation to outdoor sports, and I'm sure you heard me earlier on today suggest that we will, obviously, try and dismantle those rules as soon as it is safe to do so. Clearly, as we're heading towards the peak, this is not the time to do that.

I want to focus my response, if you don't mind, on regulation 23. I think it is important that Members understand that, as a Labour Government, we are absolutely keen to make sure that we've set measures in place that protect workers within our communities. It is important that Members note that, if there is no support for this particular regulation today, then those rules that have been in place for a month now will cease to have effect from the end of today. So, tomorrow there would be no explicit requirement to support people to work from home, and there will be fewer protections for workers in Wales. I hope that Members will reflect very carefully on this before casting their vote. 

To answer specifically Jane Dodds's question, that fine for employers would also be removed from tomorrow. I think it is important to note again that this was a mitigating measure that has been set out repeatedly by both SAGE and TAG, and has been a baseline measure in guidance since we've moved to alert level 0. I want to emphasise that we've heard the concerns of Members about the fines on individual employees, but I would like to note that I believe that the way to resolve this is not to defeat the regulations today—it is to allow the regulations to pass and for discussions on these matters to continue. I'd like to make a commitment that, if the regulations go through, we will discuss further whether there should be further amendments to these points. 

Having a specific duty on an individual is intended to support employees. I just want to make that point. That's why we've put them in place. It provides that reference in law should there be a dispute with an employer who is making people return to the workplace when it's not necessary nor reasonable. 

If I could interrupt the Minister, I see that Rhun ap Iorwerth wishes to intervene. If the Minister is willing to take that intervention, I will allow it.

I'd be happy to do so.

Thank you, Minister, for taking this intervention. I do take what I have heard from the Minister there as a positive step, that she is willing to discuss this issue. I think one of our demands is that this should happen as a matter of urgency. Can we get a stronger commitment in terms of your willingness to move very quickly on this? Because I do think it is necessary, if there is a change that can be introduced, that that happens as soon as is possible and that the necessary legal advice is taken as a matter of urgency. 

Rhun, I can give you that commitment, because we're hoping that we're getting to the peak and people, we hope, will be going back to work at some point very soon. So, if we're going to make any changes, then it makes sense to understand that we would have to make them very quickly in order for them to make any sense at all. So, I can give you that commitment. 

I think what is important—and I note the points made by Luke—is the reality of what happens on the ground here, in terms of the power that employees have. I think it's really important for people to read the guidance. I hope that, if people are voting on this today, they have read the guidance, because the guidance makes it absolutely clear that all the pressure here is on employers, not employees, and the flexibility for employees is really quite great. And so I do hope that people who have hesitation here are doing it with the full knowledge of what is in that guidance, because that guidance is very clear and very specific, and I hope would give some assurances to people.

If I can, once again, cut across the Minister, Huw Irranca-Davies would like to make an intervention, if that's acceptable to the Minister. 

Sure. Yes. 

Minister, I thank you very much for that assurance. I'm not speaking as Chair of the committee here, I'm just speaking as a humble backbencher, but many of us are union members and have been since our earliest days there. I welcome the reassurances that she's just given in response to the question by Rhun about discussions, but also the focus on employers here, which I think is important. And on that basis, I really hope the Minister will agree with me that Rhun and others, and Jane and others, will be able to support these and have those urgent discussions, so that we clarify that the weight is on the employer, not on employees here. 

I do hope that if people did feel able to support these measures today, they would then have the opportunity to really look at the detail of what we've set out in that guidance. Thank you for that intervention, Huw.

Certainly, what we've found is that we did have guidance in place, but as the threat of omicron became clearer, it was clear that we needed to strengthen the protections, because what we found was that the mobility data that we were seeing suggested that, actually, people weren't taking the 'work at home' guidance seriously. I do think it's important that people understand that the guidance for employees makes it absolutely clear that people can go to work for well-being reasons, and it provides advice to employees also to make sure that they understand that they can get additional support and advice from their unions or the trade union movement.

Currently, fixed-penalty notices can be issued in respect of any offence, and enforcement officers can issue a fine to a person who has committed an offence. But what concerns me is that, if the provision were to be removed in relation to working from home, it could unintentionally signal that the requirement to work from home is seen as somehow a lesser obligation to all other requirements in the regulations, and it could weaken that requirement to a point where it would no longer be effective. So, I would like to just reiterate the point that we've heard the views in terms of individuals being fined. We are committed to certainly look at this, but the way to resolve this, I would like to underline, is not to defeat the regulations today; it's to allow those regulations to go through, to allow that discussion to continue. I would urge Members to support the regulations before us today. Diolch. 

The proposal is to agree the motion under item 5. Does any Member object? [Objection.] Yes, I see that there is an objection, therefore we will defer voting on item 5 until voting time. 

Voting deferred until voting time.

The next proposal is to agree the motion under item 6. Does any Member object? [Objection.] There is again an objection. We will therefore defer voting on item 6. 

Voting deferred until voting time.

And finally, the proposal is to agree the motion under item 7. Does any Member object? [Objection.] Yes, there is an objection, so we will defer that vote until voting time, too. 

Voting deferred until voting time.