This update covers Regulations made on the 30th and 31st of March, except for the Prohibitions on Movement Amendment Regulations, which I have already discussed.
The first addresses the recurring theme of building capacity to deal with the crisis, by providing for emergency volunteering leave. The Volunteers Regulations provide an entitlement to be absent from work on emergency volunteering leave for those undertaking a voluntary role in health or social care (r.6). The entitlement does not apply to workers in businesses with less than 10 staff, the emergency services, crew of a vessel, or such other persons as may be specified by the Cabinet Office (r.7).
The worker is required to notify their employer in writing in advance, the application being accompanied by a copy of a certificate from the DHSC (r.6(4)). Provision is made to ensure agency workers can also use the right (r.18). Such leave may be for between two and four consecutive weeks (r.8). Upon the end of the leave, the worker is entitled to return as if they had not been absent (r.10). Pension rights are dealt with specifically, with the Regulation reading in a rule that the leave is treated the same as time not on the leave into every occupational pension scheme (r.11). There is an exception to this in relation to salary – if a worker is not paid as normal during their emergency leave, the Regulation does not require payment into the scheme on any basis other than their actual pay (r.11(7)). The Employment Act 2006 is modified to protect employees who take advantage of the new right to take emergency volunteering leave (r.13-17).
Although while on leave the worker is entitled to the benefits of employment generally, this explicitly does not include wages or salary – in other words, this is not leave paid for by the employer (r.9). Instead, the Council of Ministers is under a duty to make arrangements for the payment of compensation to emergency volunteers (r.19(1)). Volunteers are to be entitled to compensation for both loss of earnings and travel and subsistence (r.19(9)), but the requirement that the former be for loss of earnings caused by volunteering means that this does not provide for payment of volunteers generally (r.19(3)).
The remaining two amend existing Regulations, as it became clear that the original – appropriately swiftly drafted – Regulations could be improved. In Tynwald on the 31st of March, the Chief Minister explained that this was likely to be a recurrent element of the Emergency Powers Regulations, and a way in which Tynwald members could help to improve legislation by scrutiny. Strikingly, an Amendment may already have been approved by the Governor before the original Regulation has been laid before Tynwald for approval – in such case knowing that the base Regulation has already been improved in a particular way has allowed members to vote for approval. Should Tynwald on a later date choose to reject the amending Regulation, however, the Regulation as passed will remain law.
The Entry Restrictions Amendment Regulations make a number of changes to the Entry Restrictions Regulations which I have already discussed. The most important change is that the Department of Infrastructure or Council of Ministers may exempt, under the original r.6, a company or other body (new r.6(1A)) As the Chief Minister explained in Tynwald, this provision is not intended to give companies a broad right to allow exemptions, but rather to allow IOMG to exempt groups of employees rather than named individuals –so “the crew of the Ben-My-Chree” rather than the 119 crew by name. The Regulation also requires an exemption issued by the Council of Ministers to state whether it permits entry on more than one occasion (new r.6(ca)).
The Closure of Businesses and Other Premises Amendment Regulations primarily amend the Closure of Businesses and Other Premises Regulations, although they also make consequential amendments to the Prohibitions on Movement Regulation. Both have been noted already.
In relation to the Closure of Business Regulations, there is a replacement Schedule of the three types of businesses (Part 1, must close; Part 2, may remain in operation subject to conditions; Part 3, may remain in operation). In revising the Schedule, the Regulation has introduced a definitional subtlety. Part 1 originally ended “Any other business that is not permitted to continue in operation under Part 2 or Part 3”. It now reads “Any other retail business …” (Schedule, Part 1(26)). Part 3 businesses now include “Any other business that is not listed in this Schedule” (Schedule, Part 3(37)). The interaction of these two provisions is important – a retail business not specified in the Schedule must close, while a non-retail business not specified in the Schedule may remain open without any conditions. So where a particular sector has not been specified, the old Regulations would have required closure, but the new Regulations treat retail and non-retail businesses quite differently.
There are a substantial number of detailed changes in the Schedule, which I will not summarise here. In relation to the illustrative examples in my earlier blog, the purposes for which a place of worship may operate now include broadcasting of a service of religious worship, whereas the Schedule formerly only specified broadcasting of a funeral (although it was lawful for a minister to travel to the place of worship to broadcast a service); and the definition of immediate family for funerals is considerably expanded, in particular now including spouse, civil partner, or “person living in an enduring family relationship” (new r.3(1)). I indicated that the earlier Regulations did not provide for emergency work to preserve life if two tradespersons were required to work closer than 2m to each other. This has now been amended by requiring tradespersons carrying out such emergency work to comply with guidance on “Carrying out emergency repairs in people’s homes” which, amongst other things, lays out the 2m rule only in relation to occupants of the household.
It is worth noting that this change, while sensible in substance, has created a situation where a tradesperson can commit a criminal offence potentially leading to imprisonment for failing to comply with a website published by IOMG, which we might expect to change from time to time without any oversight by Tynwald; while a constable may enter premises and use reasonable force to ensure compliance with this website. Part 2 of the revised Schedule uses this mechanism both in relation to repairs in homes, and keeping of stock.
The Regulation also makes a small number of changes to the Prohibitions on Movement Regulations – broadening the exception for allowing children to be moved between two households where that is the existing arrangement for contact between child and parents (new r.5(1)(f)), and expanding the definition of immediate family for allowing travel to and from a funeral (new r.5(4)). The Regulation does not, however, address the anomaly I noted earlier that it is lawful to carry out a funeral with a friend of the deceased present if no immediate family are available, but it is not lawful for that friend to travel to the funeral.
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