Three Regulations were created in this period, all amending other Regulations which have already been amended – so a number 2 (completely replacing an earlier amendment Regulation), an amendment number 3, and an amendment number 5.
The Entry Restrictions (no.2) Regulations completely replace the earlier Entry Restrictions Regulation, although permits etc made under the previous Regulations continue to have effect (reg.15(2)). The Regulation starts from the position that the prohibition on entry into the Isle of Man continues (reg.5). This is subject to five categories of exemption.
Firstly, key workers who have been certified by the relevant Department as vital to critical national infrastructure (Manx or UK), supply of goods or services essential to Manx health or infrastructure, service as a Manx police or fire officer (although interestingly not a prison officer), or a medical expert or professional whose skills are essential to the medical infrastructure and the health of the (Manx or UK) community (reg.6(1)(a)). Where the certification is for UK interests, this allows a Manx resident to return to the Isle of Man after providing services in the UK (reg.6(3), (4)). Certification, although not for police and fire officers, may be for companies as well as individuals (reg.6(5)). The Chief Secretary may also exempt any person (reg.6(1)(b) and reg.6(7)). This allows the Chief Secretary to admit key workers not specified in the Regulation.
There is an interesting distinction between the power of the Chief Secretary and the Departments. The Chief Secretary may only issue an exemption if they consider that failure to issue an exemption “poses a greater risk to public safety and the life of the community, as a direct or indirect result of the incidence or transmission of Coronavirus”; while the Departments may exempt only if they consider that “such measures are put in place as are reasonably practicable to mitigate any risks” (reg.6(8)), which exclude measures which give risk to human life or health, or the environment (reg.3(2)(b)). So the Chief Secretary’s power to make exemptions on a case-by-case basis require a case-by-case risk analysis, while the Department’s power to specify individuals fall within the Regulations categories does not require any consideration of the benefits of allowing an exemption. In either case, allowing entry of a key worker can specify arrangements which must be made in order to minimise the incidence or transmission of Coronavirus (reg.6(10)(e)).
Secondly, returning Manx residents (defined in reg.7(9)). This covers both those returning to the Island after essential medical treatment (reg.7(1)(a)), and those who have an exemption notice from the Chief Secretary (reg.7(1)(b)). The rules around those returning from essential medical treatment are fairly straightforward (see reg.7(2)), but appear to have extended financial liability to those returning from essential medical treatment – which it will be recalled are provided very often in a normal year by the Manx health service contracting for treatment in the UK. A certificate for a person returning from essential medical treatment, as for residents with exemption notices (discussed below) must specify a range of details and conditions (reg.7(12)). The Regulation tells us that an “exempt person” covers individuals who are both covered by medical return rule, and the exemption notice system (reg.7(12)(a)); and that “the conditions on which the exempt individual is permitted to travel to the Island” (reg.7(12)(f)) must include the condition that “the exempt individual” (which but for reg.7(12)(a) might have read as being limited to the exemption regime, but is difficult to limit to that given reg.7(12)(a)), “is liable to pay all the costs incurred and associated with his or her re-entry into the Island including … travel to the Island” (reg.7(13)). On the face of it, as this covers medical returnees, it requires them to pay the very substantial costs which can be involved in medical transfer. To be neither lawyerly nor academic for a moment, this must be wrong.
The main concern of reg.7 is the return to the Island of residents with an exemption issued by the Chief Secretary (the reg.7(1)(b) ground). The Chief Secretary must generally be satisfied that the resident left the Island before 27 March 2020; but this limit does not apply to those who left the Island but remained in the territorial sea for a business or leisure activity (reg.7(4)), or who left the territorial sea but did not enter any other country or territory (note, entering the territorial sea of another country or territory is permitted, see reg.7(8)) for a business activity (reg.7(4)(b)); or who left the Isle of Man but remained within Manx airspace where the flight was necessary to comply with guidelines on the aircraft engine, or licensing requirements or guidelines for the flight crew (reg.7(6)). These Regulations amend the Prohibition on Movement Regulations to explicitly allow pilots or crew members for whom such an exemption has been issued to travel to or from an airport or landing strip (reg.14, creating a new reg.5(1)(t)).
Thirdly, an exemption for individuals employed or engaged in emergency search and rescue services, and air ambulance services (reg.8)). Unlike other exemptions, this does not require any certification by any Manx authority.
Fourthly, those who have left the Island on compassionate grounds (defined to include attending a funeral of an immediate family member, or travelling with their remains to a post-mortem by reg.3). The Regulation contains an exemption in reg.7 for those who had travelled to the UK or Ireland on compassionate grounds before these Regulations came into effect (reg.7(5)). This is a transitional provision. For the future, the Chief Secretary may give written consent to Manx residents to leave and then re-enter the Island “on compassionate grounds”, so long as they travel only to the UK or Republic or Ireland (reg.10). Many of the detailed requirements in reg.7 apply to those with permission to travel for compassionate grounds, as if an exemption notice had been given (reg.10(4) applying reg.7(6)-(16)).
Fifthly, and a shift away from the focus on the individual elsewhere in the Regulation, the Department of Infrastructure may by direction create “an exempt area that is secured for the purpose of transportation”, and an individual who enters an exempt area and remains within it until they leave the Island is not covered by the prohibition (reg.9).
These Regulations are supported by criminal offences, with a fine and/or imprisonment being possible for breaching the general limit on entry to the Isle of Man, or failing to comply with a certificate, exemption, or consent or any conditions contained in it, or knowingly provides false or misleading information (reg.13). The fixed penalty notice regime, which was not applied to the earlier Regulation concerning border control, does not apply to this one.
The Events and Gatherings (Amendment no.3) Regulations addresses enforcement of the Events and Gathering Regulation. It adds the power for a constable to stop and question to determine whether a person or a member of their household is taking part in a gathering, and if so for what purpose (new reg.7(4)), a duty to answer such questions if reasonable (new reg.7(5)), and a power by a constable to require a person to leave any premises if they believe the risk of coming within 2m of a person not in their household is greater than if they do not leave, and that coming into such contact would not be permitted under an EPR (new reg.7(6)). These are identical to the no.2 Regulations which were not laid before Tynwald, and so ceased to take effect. The second set of changes are different from the no.2 Regulations however – the criminal offence under the Events and Gathering Regulation is replaced with an offence committed if a person fails without reasonable excuse to: comply with a direction under the Regulations, answer questions put to them by a constable under their new power, or leave premises when ordered to (replacement reg.8, addressing a concern about criminal offences noted in relation to the no.2 Regulations). The fixed penalty notice regime applies to all of these offences (amendment to Schedule to Fixed Penalty Regulations 2020). The no.2 Amendment made it a distinct criminal offence to intentionally take part in a gathering which was not permitted under the EPR or for court attendance – this has now been omitted, so that the offence is not intentionally taking part in a gathering, but failing without reasonable excuse to comply with a direction given under this Regulation.
The Closure of Businesses and Other Premises (Amendment no 5) Regulations makes one specific amendment to the closure of businesses regime. Under Part 2 of the Schedule, which specifies businesses that may remain open for restricted purposes, the entry for garden retail shops – garden centres –has been amended. Garden retail shops were formerly able to open only for delivery or collection or pre-ordered goods by the public, but premises could be open for normal sales to businesses. This amendment allows garden retail shops to open for any purpose, so allowing the public to shop on site, but food or drink must not be supplied for consumption on or adjacent to the premises, but may be sold to take away (reg.3(2) amending Schedule Part 2).
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