Continuing the trend of EPRs being amending existing Regulations, the 14th of may saw two amendments to the Closure of Businesses Regulation, and one to the Prohibitions on Movement Regulation.
The Closure of Businesses and Other Premises (Amendment no.6) Regulations introduces an important distinction between businesses and sporting facilities. Sporting facilities are “any premises used for or at which sporting activities are played, held, or otherwise take place and includes facilities which serve such premises” (reg. 3(2) amending reg.3). Rather than continue to treat sporting facilities under the existing scheme of business that must close (reg.4), and those which may continue to operate under conditions for their sector, or without conditions (reg.5), this Amendment adds a new category through a new reg.5A (added by reg.3(3)). This allows the Department of Education, Sport and Culture to give a direction applying to sporting facilities (either generally, specifically, or of a particular kind), as to opening and closure – including for instance taking steps the Department deems reasonable (new reg.5A(3)(a)). A sporting facility which is permitted to open must operate so far as reasonably practicable to “reduce the risk of a person being infected with Coronavirus” – a general duty detailed with specific requirements such as ensuing regular and frequent cleaning (new reg.5A(4)(b)). Contravening an applicable direction is a criminal offence under Reg.7 (as amended), and an operator can be punished under the fixed penalty regime for contravention, without reasonable excuse, of reg.4, 5 or a direction under 5A (Fixed Penalty Regulations 2020 Sch as amended by reg.4). The principal effect of this is to move treatment of sporting facilities out of the explicit scope of a Regulation approved by Tynwald, into the scope of directives issued by the Department on www.gov.im (new Reg.5A(5)). It will be interesting to see if this a trend as the IOMG moves out of the strictest phase of lockdown – suggesting a view that easing temporary restrictions needs less democratic oversight than imposing them.
As IOMG contemplates reducing the stringency of restriction on businesses, the Closure of Businesses and Other Premises (Amendment no7) addresses the issue of a business which has been required to close or restrict its activity, but needs to prepare for reopening. Under a new reg.5B the Chief Minister may formally announce that a type of business currently closed, or subject to conditions, will be permitted to reopen with or without restrictions (new reg.5B(1),(2)). The business may reopen and permit the presence of employees to prepare it for the change (new reg.5B(3), so long as it complies with Department for Enterprise “guidance” issued on www.gov.im (new reg. 5B(5)(b)). A person who does not comply with reg.5B constitutes an offence punishable by a fixed penalty notice, a fine, or imprisonment (reg.3(5) amending reg.7; misnumbered second reg.3 amending Fixed Penalthy Regulations 2020). I am perhaps being pedantic in querying whether a statement which must be complied with subject to penal sanctions is best described as guidance.
The Prohibitions on Movement (Amendment no.5) Regulations is primarily concerned with leisure activities, extending the definition to activities in a vessel which, in the case of a pleasure craft, comply with Department of Infrastructure Guidance; and to “visiting a friend or family member” providing doing so complies with a direction made under the Events and Gatherings Regulations (reg.3, amending reg.3). It will be recalled that the Chief Minister indicated that the latter was lawful, and that he intended to do so, some time in advance of this Regulation being created. These Regulations also make it clear that necessary travel for a purpose specified in reg.5 of is permitted, but keeping the existing restrictions on car and taxi sharing (reg.3(3) amending reg.5(7)).
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