A new amendment to the PHRs, Amendment no.5, was created by CoMin subject to later approval by Tynwald, coming into effect on 1 February, and made on the 28^th of January. A gap between creation and coming into effect is to be welcomed.

The purpose of this amendment is to tidy up the end of the January lockdown. Much of the winding back from the lockdown takes effect because of the expiry of the GCs noted earlier in this blog.

The principal changes, as noted in the guidance notes, are around expiry date and revision. As may be recalled, the original PHR (which was to provide the framework for the pandemic response after the EPA became unusable) had a comparatively long expiry date, with a review point built in. These were removed by the amendments to the PHR in January. This amendment changes the expiry of the PHRs to the 25^th of June (amending reg.4(1)), and requires CoMin to review the need for the regulations on the 25^th of March (adding reg 43A).

The other changes restore the default right to leave home (reg.26B), subject to any prohibition notice created by CoMin (reg.26C); the default right to gather in a public or private place (reg.33B), subject to any prohibition created by CoMin (reg.33C, but note the restriction on the power to create such prohibitions under reg.33b(2)).

The PHR (no.4) Regulation primarily amends border control. As with its predecessors, CoMin has indicated that it needed to come into operation before approved by Tynwald – at least, unlike the latest changes to the Immigration Regulations, they came into effect after being made.

The details of how the Chief Secretary may modify self-isolation rules are changed – such modification is now made more clearly distinct from a direction to self-isolate by being renamed “written self-isolation modification”, and made more widely applicable,  but to balance this the role of the Chief Secretary as acting in accordance with published guidance from CoMin is made much clearer (amended reg,10). The difficult issue of households with a mix of Category A persons and other persons is addressed: certain types of Category A persons may share households if they elect to provide biological samples – this is open to Category A persons who have entered on compassionate grounds, is a Manx resident, or is a Manx resident and a key worker (new reg.12(2A)). The latter seems an odd distinction, but a non-key worker Manx resident must meet the definition of paragraph 6 of the Schedule to the Regulation, while a key worker must simply be “resident”.

Two grounds for entry are reintroduced – compassionate grounds as the basis upon which a person may be permitted to enter the Isle of Man (Schedule, para 8; with a definition provided in the amended reg.5); and contractual obligations (Schedule, para 9).

On a separate point, there is also an additional Direction regarding educational institutions, GC 2021/0019. It extends the operation of the Direction from 28 January to 1 February (in line with other GCs). More substantially, the GC eliminates the category of Hub School, which previously was fundamental to the closure regime, and effectively makes it lawful for all schools to be open, but not to everyone. All schools are closed except to “specified persons” – being vulnerable children, children of on-Island essential workers, pupils residing in an educational institution, and staff as required (para.2). The reference to residential schools, allowing boarding schools to teach all boarders, is new (although some recognition of them was in former rules allowing them to house, but not educate, boarders).

A busy day on the 22^nd January – a change to the PHR, and new GCs on each of the key areas of the lockdown.

The Public Health Protection (Coronavirus) (Amendment) (no.3) Regulations 2021, amended reg.20(2), dealing with Category C persons who are members of a household with a Category A person. It replaces reg.20(2) in its entirety, but the significant change is extending the self-isolation period for such a person in line with any extension to that person’s period of self-isolation following a positive test. I think this regulation should be read as referring to the Category A person as an identifier, rather than their status, so that these rules continue to apply even when they are recategorised as Category B per reg.13A(11)).

This Amendment also moves the specific list of grounds upon which a person may leave their home out of the PHR, into the Direction (reg.5, amending reg.26C). This is described in the guidance notes as ensuring that all exceptions to the prohibitions on movement are “contained in an exception notice making the position clearer for the reader”. It also has the effect of removing these exceptions from the level of Regulation subject to the control of Tynwald, to a Direction.

At the level of Direction, key areas of the lockdown have new GCs which, as before, entirely replace their predecessors. There is a slight extension in the anticipated duration of each, from 28^th January to 1^st February. For GC 2021/0015, replacing the rules on child care service providers, I was unable to identify any other changes. For the other three GCs, each dealing with a major area of lockdown regulation, the extension is combined with changes.

GC 2021/0018 covers exceptions to movement – note that with the change to the PHR, this is now the definitive source for when you may leave home. Accordingly, we see a number of “new” grounds, which have just been moved from the PHR into the GC without any substantive change. These include accompanying a child to a parents home (ground (h)), conducting or attending a funeral (ground (j)), providing emergency services (ground (a)), performing duties of office or employment (ground (b)), for the purposes of an office or employment (ground (k)), moving house (ground (l)), shopping for basic necessities (ground (c)), attending to medical needs (including those of pets) (ground (e)), going to a place to be cared for if vulnerable (ground (g)), going to the home of a parent or guardian (ground (i)), and entering closed premises to prepare them for reopening (ground (n)) or in case of an emergency (ground (m)).

There is a reordering of the other grounds, which makes comparison quite fiddly, but there are some key things to note.

Firstly, some of the changes made in the last iteration, which stood out as curious, have been retained. So grandparents can provide overnight childcare for essential workers, but no one else (now ground para3(1)(y)). It is not clear to me how this interacts with the right to travel in order to care for “the child of a person who provides an essential service” (ground f(ii)). It seems to suggest that having a friend come to you to look after your child overnight while you provide an essential service is acceptable; but the child cannot be taken to them unless they are the grandparent.  On a separate point, the constituency duties of MLCs remain a ground for them to leave the house (now ground (ii); which is between grounds (hh) and (jj) rather than grounds (i) and (iii)). I remain unclear what is meant; but hope we don’t see any litigation on this which clarifies who an MLC’s constituency is.

Secondly, we see more invocation of binding government guidance. Care visits to a vulnerable person are retained, but now must, “where reasonably practicable”, observe any guidance published on the government website (ground (gg)). Visits by a tradeperson to carry out essential work are similarly now required to conform with guidance on the website (ground (cc)).

Finally, we see a significant change in the right to exercise. This was taken from the PHR into a new ground (d), covering exercise alone or with others providing that appropriate social distancing is observed with any person who is not a member of the same household. Formerly, this was limited to members of the same household, and for one period of exercise per day. Now an unlimited number of persons from an unlimited number of households can exercise together, for an unlimited number of times per day.

GC 2021/0017 similarly replaces the rules on gatherings. In the absence of a move down from the PHR, the textual changes are less significant. Two specific exceptions are fine-tuned. Indoor funerals may be attended by ten persons rather than nine, and face coverings are no longer mandatory (para.6).  The existing exception for gatherings with members of the same household only is significantly changed – outdoor gatherings may take place so long as the venue is not closed, no person gathering is subject to a self-isolation or similar requirement, and members of different households remain socially distanced from one another (para.10). So outdoor gatherings by an unlimited number of persons, from an unlimited number of households, are now permitted.

The combination of these two changes indicates that there is no upper limit on the number of persons who may attend a funeral service outside. The limit on the numbers for the funeral is specifically “in an indoor place” (a change new to this iteration). In the absence of a specific restriction on the para.10 right, I think this change shows a deliberate removal of the limit on numbers for outdoor funerals.

The exclusion of advertent congregation from responding to an emergency, which I queried in an earlier blog, is retained (para. 11); as is the requirement for people sharing a car in relation to collecting a child to wear masks, but not those sharing a car commuting into work (para.14).

GC 2021/0016 similarly replaces the rules on closure of premises, again with less significant textual changes. There are no changes to the  main body of the text, with changes limited to the Schedule which sets out which premises must close (and when they may remain open in a limited way), and which may open (but subject to restrictions). The hot-water bottle anomaly, pointed out in the different treatment of chemists and supermarkets, has been retained. The only change is the move of construction, building and maintenance sites from the closed list to the open list. Opening is permitted subject to four conditions, including compliance with guidance on the IOMG website (final entry, Schedule).

Two new documents made under the PHR on 20^th of January, both coming into effect at midnight on the 20^th.

GC 2021/0013 replaces the old direction on when persons may gather outside their household. As with other GCs under the PHR, it entirely replaces its predecessor. A line by line comparison shows some minor drafting changes (an improvement in the wording of paragraph 8 in relation to emergency services; using a shop or business premises permitted to be open; gathering with own household). There are more significant changes.

There has been a change to the emergency response rule which does not seem an improvement (paragraph 11), although an ambiguity I noted earlier has usefully been resolved. The paragraph applies to an emergency where persons (not in the emergency services, as they are covered specifically elsewhere) “may inadvertently congregate”. “Inadvertently” is new, and it seems odd to exclude a response to an emergency where the rescuers deliberately congregate. It would seem an arbitrary distinction to allow two people to rush to a car crash from different directions; but not to allow two people to plan to pull on the same rope to life a person from oncoming waters. It may be worth removing “inadvertently” from any future revision.

There has also been a rewriting of the care for children or vulnerable persons exemption (para.12 and 13). One of the practical strengths of the GCs has been their relative clarity and lack of legislative style language and techniques. The old para.12 was not grammatical, but the meaning was fairly clear. The new paragraph 12 and 13 read much more like legislation (including cross-references to documents which are not included in the GC).

There is a new exception for vehicle sharing, which shares the same style as the new para.12 and 13 (para.14). It allows vehicle sharing by employees of the same employer – implicitly but not explicitly travelling to work together at the same premises (para.14(a)); and also sharing for purposes in the Exception Notice on Movement such as collecting a child (para.14(b)). The latter requires social distancing as far as reasonably practicable and (I think a separate requirement, but the text could be read differently), “face coverings are worn by all persons in the vehicle”. On my reading of paragraph 14, employees lift sharing are not required to wear face coverings as they share a car going to a workplace where they may be required under the closure direction to wear face coverings. This seems wrong.

GC 2021/0014 replaces the old direction on when persons may leave their home. The biggest change is a new limitation on the instances when a person is permitted to leave home – all are now subject to “continuing to comply with the Regulations and any applicable direction or notice made under them or in guidance published on www.gov.im and to mitigate any risks associated with leaving the person’s home” (para.3(4)). Checking government guidance to avoid criminal liability is now something that has moved onto everyone considering leaving the house. It is worth noting that the duty to conform with guidance is additional to the undefined duty “to mitigate any risks” – I am not sure what the latter may cover, why it is necessary on top of the GC and guidance, and why it is not a duty “to mitigate as far as reasonably practicable”.

In relation to the instances when going out is permitted, there is a new ground of moving in on a temporary basis to provide care to an assisted person, subject to a list of specific criteria that need to be met (para.3(1)(e)). It allows a person to move in with a person subject to restrictions under the PHR (para.3(1)(e)(iii-iv)). There is also a new ground allowing a person to move to other accommodation in a list of urgent circumstances including avoiding domestic abuse, having lost the entitlement to remain in their accommodation, medical grounds, or “the situation is an emergency and it is necessary for the person to move” (para.3(1)(f)). There is, relatedly,  new group for collecting a vulnerable person in order to avoid a risk of harm, which can include overnight care (para.3(1)(r)).

There is a new ground allowing Members of Tynwald “to undertake essential constituency duties which cannot be undertaken otherwise than by the Member leaving his or her home to do so” (para.3(1)(u)). It is clear what the constituency of an MHK is – much much less clear what the constituency of a member of the Council is (and let us leave that aside for another day!). If the view of the drafters is that only MHKs have constituencies (and so qualify) it would have been better to state MHK rather than Members of Tynwald.

There is a new ground allowing visits to a person receiving end of life care (para.3(1)(v)).

There is a very specific change to the permission to take a child to a family member to be cared for in order to allow the parent to work in a place not closed under the PHR. A new permission for the child to remain with a carer overnight. This is very specific – “where provided by a grandparent in respect of a grandchild whose parent is a person who provides essential services, may be overnight” (para.3(1)(k)(ii)). Providing for overnight childcare for essential workers seems eminently sensible, limiting it to grandparents rather than a household “where the household member would normally look after the child” is not. Consider the (not wildly hypothetical) position of two nurses who have routinely cared for one another’s children during the others night shift. They would not be able to continue this practice, but could continue any established practice during the day.

In the first Manx lockdown, there were two, and occasionally three, layers of rules which could culminate in criminal liability, including the possibility in many cases of a prison sentence.

• The Emergency Powers Act (primary legislation which had been approved by the normal legislative process of Tynwald); allowing …
• Emergency Powers Regulations (secondary legislation created by the executive which had to be approved by Tynwald within a certain period or cease to have effect); referring to …
• Government Guidance (typically on the website).

I wrote critically of the over-use of reference to government guidance in the first lockdown. I am still unconvinced that failure to follow a rule posted by whoever has been given responsibility for maintaining that part of the government website should be the basis for criminal liability.

In the new lockdown, another layer is added.

• The Public Health Act (primary legislation which had been approved by the normal legislative process of Tynwald); allowing …
• Public Health Regulations (secondary legislation created by the executive which has to be approved by Tynwald or cease to have effect); relying for the details of the rules upon …
• Directions (created formally as Government Circulars); referring to …
• Government guidance (typically on the website).

So a retail grocery shop which does not adhere to the government “guidance”, published on the government website, on how to limit access to non-essential goods faces criminal liability because of a rule which gains its force from an Act (Public Health Act 1990 s.51B, s.51C) which allowed a Regulation (Public Health Protection (Coronavirus) Regulations 2020, reg.30) which allowed a Direction (GC 2021/0011) which allowed Guidance (I would assume this leaflet, although it does not cover the changes in the latest direction).

This is some distance from democratic accountability via Tynwald. Given the pace, and ease, of creation of Directions, is there a pressing need for guidance to be given penal force too?

On the 13^th of January another closure of premises direction was made – GC 2021/0011. As with its predecessors, it entirely replaces the earlier direction on this topic; so can be read without reference to the earlier directions. Comparing the two:

There is a slight redrafting of the scope of the direction, with a clarification of the scope of the direction, and a useful new terminology – Closed Premises and Open Premises (para.5). There is a slight misphrasing in para.6 (which was present in the previous direction): the passage “where this Direction, or any other Direction made under the Regulations” seems to be missing a final phrase. The requirement on premises to ensure employees work from home where possible is clarified but not substantively changed (para.6(b)).

There is a substantive change to the section dealing with the duty on premises to maintain appropriate social distancing and adequate hygiene measures – there is now an express duty to “as far as possible, ensure others at the premises maintain appropriate social distancing” (para.6(c)) – on my reading covering not only employees, but also customers. There is a slight ambiguity in the section as to whether this also applies to adequate hygiene measures “including face coverings” –  the different wording between the social distancing rule (“as far as possible”) and the hygiene rule (“where reasonably practicable”) suggests not. If the intention is, for instance, for retailers to have a duty to ensure customers wear face masks, this might usefully be made clearer in the next version.

The Schedule, as with the predecessor, distinguish between Closed Premises (which may be permitted to open for some purposes), and Open Premises (which may be required to meet special conditions).

In relation to Closed Premises, one significant addition is explicit permission for non-essential premises to “deliver goods or offer a pre-booked contactless collection service, providing they minimise any public access to the premises” (Schedule 1, part 1). Another is the closure of garden centres, except for delivery or pre-booked contactless collection (Schedule 1, part 1).

In relation to Open Premises, the most significant change is in relation to non-essential goods being sold in a retailer open for essential goods (the obvious example is a supermarket or corner shop). A new qualification states “Non-essential goods sold by a retailer or wholesaler that are not in the immediate vicinity of essential goods should be restricted from public access where it is practicable to do so (i.e. restrict access to parts of the store or take otherwise reasonably practicable steps to minimise public access (including the amount of time spent and numbers of persons) and must adhere to any guidance issued by the Isle of Man Government” (Schedule 1, part 2). This is wrestling with the thorny issue of a specialist shop being required to close because it offers only non-essential goods, while a supermarket is allowed to open and sell the same goods. Strikingly, this new qualification applies only to premises open for the supply of essential food and groceries. The section allowing chemist and pharmacy premises to open is not subject to the same qualification. So a supermarket needs to show why it was not reasonably practicable to remove a hot water bottle from sale; while a chemist is under no such duty.

Additionally, merchant suppliers are now limited to in person sales to trades, although they may carry out domestic business by delivery or pre-booked contactless collection. The exception for forestry operations now excludes non-governmental forestry operations.

One of the differences between Lockdown 1.0 and Lockdown 2.0 is the relative importance of directions and similar government circulars under the new lockdown. All GCs made under the PHRs are, very usefully, collected on the Tynwald Covid-19 Public Health Regulations page.

In my earlier blog, I covered the five initial GCs, issued on the 7^th of January. Between the 7^th and the 12^th, another four have been issued; replacing four of those created on the 7^th. This seems a lot, but one of the good features of the GCs is that they replace the earlier documents in their entirety, rather than amending them – this makes them much more accessible. It is important to make sure you are looking at the current GC, but Tynwald Library has helpfully listed them with the newest at the top of the section. It might also be helpful if a “tracked changes” version was hosted.

GC 2021/007 covers the closure of premises, replacing the earlier GC. All premises permitted to open, including those permitted qualified opening, are under a duty to ensure that employees work from home where possible, and minimise the number of people at the premises; maintain appropriate social distancing (defined in the Regs as 2m), and “face coverings or other PPE at all times where reasonably practicable”); and adopt any measures reasonably practicable to reduce the risk of infection (para.7). The GC lists in detail premises which must close – although in many cases there are conditions which would allow them to open for limited purposes (such as cafes being required to close, but allowed to provide take-away or delivery) (Schedule Part 1). It also lists premises which can remain open, albeit in some case subject to conditions (Schedule Part 2). One feature is slightly complicated, but sensible. Under Schedule 1 Part 1, non-essential premises must close, but there is a qualified opening condition for “premises which require the attendance of on-Island essential workers, where such office is providing critical national infrastructure or a key public service”. The list of “On-Island essential workers” is included in an Annex to the Schedule, and is taken from the list of workers who children will be prioritised for education provision.

GC 2021/0010 covers freedom of movement, replacing the earlier GC. The provision allowing a person to leave home to provide assistance to immediate family is extended to “if there are no immediate family available to provide the assistance required” (which presumably allows one to help people without immediate family available), and clarified to allow entry into a garden or drive, so long as the property itself is not entered (para.3(c)). The provision allowing travel to (closed) doggy day care, queried in my last note, has been removed. The provision allowing travel to drop a child off where they would be cared for has been modified in two ways: recognition of normal care in a household of someone who is not a family member is recognised, but the travel may only be in order to allow a person to work in a workplace not closed under the Regulations (para.3(i)). So taking a child to be looked after while working at home is no longer permitted. Working in non-closed premises is now explicitly covered (para 3(o)). Emergency care of child or vulnerable person is now covered (para 3(p),(q)), as is accessing veterinary services (para 3(r)). The GC ends with a reminder that “for the avoidance of doubt, Regulation 36(1) of the Regulations provides that it is an offence to fail to comply with a Direction given under the Regulations, without reasonable excuse” (para.6).

GC 2021/008 covers events and gatherings, replacing the earlier GC. Events and gatherings in public or private are prohibited unless permitted (para.4). Permitted gatherings include funerals with 9 or fewer persons wearing face coverings (para.6); delivering emergency services (para.8); gathering at premises permitted to be open (para.9); gatherings with members of the same household only (para.10); caring for a vulnerable person (para.12); and responding to an emergency, so long as appropriate social distancing is adhered to, and masks are worn where reasonably practicable (para.11). The latter is not ideally drafted – at the moment it seems to mean than appropriate social distancing must always be adhered to, and masks worn where reasonably practicable. This would seem to rule out, for instance touching a person in order to render first aid. It might be better to state “provided that appropriate social distancing and the wearing of face masks is, where reasonably practicable, undertaken”.

GC 2021/009 covers educational institutions, replacing the earlier GC. The changes are comparatively minor. The UCM library is permitted to remain open (covered in both 2b and 2d(9), as are educational institutions providing residential accommodation, the latter not being permitted to be open for educational purposes (new 2b, final entry on table). The closure of an educational institution does not prevent it providing online learning (para. 2d(10)).

On the 9^th of January, another amendment was made to the Public Health Regulations, by the Public Health Protection (Coronavirus) Amendment (no.2) Regulations 2021. As with the recent predecessors, for reasons of urgency they came into effect before approved by Tynwald. Tynwald will, accordingly, be required to consider the recent amendments together.

The amendment adds a definition of “household” (reg 4, amending reg 5(1)) which applies to the entire Regulation, rather than just part 7A (reg.11, deleting household definition from reg.33A). It also adds a definition of vulnerable child and vulnerable person (ref.4, adding new reg 5(2A)). Although the guidance note suggests that, with one exception, these are clarifications, there are substantive changes, particularly in relation to freedom of movement. Dealing with other changes by the themes in my earlier note:

Border control.

Self-isolation for Category A persons is changed to normally require such a person to self-isolate for 21 days in a place identified by the Chief Secretary, not normally shared with anyone other than other Category A persons that entered the Island together (reg.5, amending reg.12). A Category A person may only self-isolate in a place occupied by a non-category A person if one is a vulnerable person or vulnerable child and it is necessary that they share accommodation (amended reg.12(2)(b)).  

Provision for testing is amended again (reg.10 amending reg.13A), with clarification of when fees are payable, and some minor corrections of drafting (primarily to more clearly take account of multiple tests, with the fee covering all testing required, but also correcting a misreference to an inconclusive result to point to the intended negative result). The slightly unclear reference to testing after the 6^th of 7^th day of arrival is clarified to after the 6^th day (reg.13A(4)). The right of a Category A person who has tested negative at that point to leave their house to exercise for one hour per day with members of their household is slightly reduced – they may only exercise with Category A persons in their household who meet the same criteria (reg.13(6)). This is largely in line with the changes to where Category A persons can self-isolate, but does not cover a permitted cohabitation with a non-Category A person (discussed in the paragraph above). So a Category A vulnerable child living with a non-category A adult caregiver could not use this clause to exercise outside the house – perhaps intention, perhaps an oversight.  Greater flexibility of self-isolation for category B persons is introduced (reg.8 amending reg.17).

Prohibition on movement and gatherings.

The list of emergency services is extended slightly, to include the Isle of Man Civil Defence Corps, Isle of Man Coastguard, and Isle of Man Search and Rescue Dog Association (reg.9, amending reg,26A).

More significant changes are made to reg.26C, which provides the list of general exceptions from the freedom of movement restriction. Formerly, the exceptions applied only to asymptomatic persons – this limit is removed (amended reg.26C(1)). The right to exercise, formerly unlimited, is now limited to “one period of exercise per day (of unlimited duration)” (amended reg.26C(e)). The requirement that an adult or child would otherwise suffer avoidable harm if the person did not leave their house is removed, but the exception is now limited to vulnerable adults and vulnerable children only (amended reg.26C(g)(i)). New reasons for leaving the house are introduced to deal with an emergency in premises that have been required to close (new reg.26C(l)), or prepare premises for reopening following a notice from the Council of Ministers (new reg.26C(m)). A person who leaves their home to participate in provision of emergency services, to carry out employment in an essential service as specified by CoMin, or other employment permitted, “may take his or her child to a place where the child can be looked after to enable the person to undertake his or her work” (new reg.26C(1A)).

1. Make sure you want to do a PhD, rather than something else. PhDs vary greatly from country to country. An excellent introduction to the UK PhD is Philips and Pugh, “How to get a PhD: A handbook for students and supervisors”. Available from lots of places, but you can buy on Amazon: https://www.amazon.co.uk/How-Get-Phd-Handbook-Supervisors-dp-0335264123/dp/0335264123/ref=dp_ob_title_bk I can’t recommend this book highly enough.

2. Think about a topic you are prepared to spend vast amounts of mental and emotional energy on for years. This can come from a lot of places, but if you aren’t in love with your project going in, you are going to find Year 2 grim. You might want to have a look at what other people wrote their PhDs on (and indeed read some). EThOS is a fantastic database, and includes large numbers of downloadable theses so you can see what they look like in your discipline. Interested in Manx music? You’ll find three theses here:  ethos.bl.uk

3. Think about where you want to do it. Often, would-be students start with their dream supervisor and go from there. If you don’t know enough about your topic to see who this would be, you need to learn more about your topic first. Lots of academics will be happy to talk about your ideas when they are in their field, and you show you had a particular reason for talking to them (do not email an entire Department of academics …). If they aren’t, or if their website says they will only talk about your ideas if you submit a formal pitch in a particular format, that is useful information in itself.

4. Think about where you want to do it. Found your dream supervisor? Great. What if they turn out to be a nightmare, or die while supervising you, or leave? Make sure there is expertise in depth too: a named research cluster or Master’s level programme in the broader field is often a good indicator of multiple scholars working in the field.

5. Think about how you are going to pay for it. This can be a major problem for good students, and I’ve worked with one who knew exactly what his PhD was going to be, and then worked for two years to secure the funding for it (this story had a happy ending!). For Manx students, the IOMG commendably supports PhD study. More info here: https://www.gov.im/categories/education-training-and-careers/student-awards/eligibility-for-grantsloans/

6. Think about what you are going to do after the PhD before you start it. Some would-be students see it as the natural progression from excellent undergraduate and Master’s study. It’s quite different, and like Master’s level study does not automatically mean your future career will be enhanced. Think about this as specifically as you can – it really varies from sector to sector. But not every PhD is part of a career plan – post-retirement PhDs are a thing!

Two PHRs were made in 2020, and another early in January 2021, made at 23.59 on the 6^th of January, and coming into force at 00:01 on 7 January – before it was available via the usual website to the public, or circulated to Tynwald members. A law which creates new criminal liability, potentially carrying a prison sentence, should not come into effect before those subject to it could possibly have become aware of it.

All three are stated as having been made under s.51B, 51C, and 51F of the Public Health Act 1990. The reference to s.51F is slightly odd – this section expands how the powers under s.51B and s.51C are to be exercised, and would apply to any exercise of the powers even if not named – but does no harm.

The first, the Public Health Protection (Coronavirus) Regulations 2020, created the fundamental structures for the post-Emergency powers response to the pandemic. It came into effect after consideration by Tynwald. The second, the Public Health Protection (Coronavirus) (Amendment) Regulations 2020, and the third, the Public Health Protection (Coronavirus) (Amendment) Regulations 2021 were made with the additional note that “by reason of urgency, it is necessary for these Regulations to come into operation before they are approved” – required under s.51Q if a PHR is to have effect before approval by Tynwald. The first set of Amending Regulations, hereafter the December Amendment, was focussed largely on border control: changing the classes of individuals who would be permitted to apply for entry to the Isle of Man, extending the standard self-isolation period from 14 days to 21 days, and introducing mechanisms for testing twice. The second set, hereafter the January Amendment, continued to modify border control and self-isolation rules, but created important new restrictions on the general public around internal movement and events and gatherings.

The first Regulation came into effect immediately upon the cessation of the EPA Continuation Regulations (reg.2), and applied whenever a declaration by the Council of Ministers that Coronavirus posed a serious and imminent threat to public health had been made (reg.3(1)). As passed, the Regulation would cease to have effect six months after the cessation of the EPA Continuation Regulations (reg.4), but the need for them must be reviewed by the Council of Ministers after three months (reg.43). The January Amendment reduced the life of these Regulations to one month following the sitting of Tynwald to which the Amendment was submitted for approval (likely the 19^th of January), and removed the mid-term review (January Amendment, reg.4; January Amendment, reg.16).

The guidance notes to the January Amendment state that it inserts “a requirement for all direction notices made under these the principal regulations to be laid before Tynwald”. Given constitutional concerns about key decisions being made increasingly distant from the normal legislative process, this would be a very positive move. My reading of the January Amendment does not match this however. The January Amendment requires directions issued under the Regulation to be laid before Tynwald “as soon as practicable after it is made” in relation to regulation 10, which governs directions in relation to self-isolation  (January Amendment reg.7 for reg.10). Unfortunately there are individual direction notices for self-isolation which do not depend upon, or refer to, reg.10 – contract traced persons under reg.15 and persons required to be assessed under reg.16. There are also other important powers to issue documents described as “directions” –the power to create travel corridors under reg.25; and the power to close premises under Part 7, including the power of CoMin to close classes of business under reg.30.

Given that failure to comply with a direction across the Regulation can constitute a criminal offence carrying a prison sentence, involving Tynwald in directives that are effectively general regulations (rather than orders targeted at a specific individual, business, or building) is very desirable. If this is the intention of the January Amendment, it needs amending to give it effect.

The PHR regulation as amended covers a wide range of topics, which I will cover in very broad outline thematically. No doubt a consolidated version of the current Regulation will follow shortly, and should be referred to for detail.

Border control.

In relation to border control, the Regulation allows restrictions on private vessels seeking to dock (reg.7), and on private aircraft seeking to land (reg.8). A person may not enter the Isle of Man unless they are a “Category A” person, or passing through a secure exempt area for the purposes of transportation (reg.11), and may be required to demonstrate proof of their right of entry (reg.22), and refused entry if they cannot (reg.24). The Chief Secretary may direct Category A persons to self-isolate for a specified period, and exempt individual persons from such a requirement (reg.10; with different criteria for key workers and residents added by the January Amendment, reg.7). This period, initially 14 days, was raised to 21 days by the December Amendment (December Amendment, reg.9), and clarified as applying to all persons entering the Isle of Man – whether residents or key workers, by the January Amendment (January Amendment, reg.8)

Not all Category A persons are the same. Category A is specified in the Schedule, and has changed with the later amendments. Initially, Category A consisted of non-resident key workers (para.1-5) including specifically those involved in planning appeals (para.11) and transporters of furniture, personal effects and personal property services (para.12), and emergency services personnel (para.8); persons under a contractual obligation (para.10); and residents of the Island generally (para.6), returning residents who travelled off-Island for (broadly) key purposes for the Isle of Man (para.7(2)(a)-(d)), and patients who travelled off-Island for medical treatment (para.7(4)), and their escorts (para.7(5)). Paragraph 9 included within Category A persons who have been given prior leave to enter the Isle of Man on compassionate grounds (para.9), defined in the Regulations as attending the funeral of specified family members, or accompanying their remains back from a UK post-mortem, but with an open-ended inclusion of “the grounds set out in guidance (if any) published by the Council of Ministers (reg.5).

The compassionate ground was removed by the December Amendment, (December Amendment, reg.5 and reg.17), along with the specific coverage of emergency services personnel, persons under a contractual obligation, those involved in planning appeals, and movers (para.8-12 of the Schedule, removed by December Amendment reg.17). With the December Amendment, the power under reg.10 to exempt persons from self-isolation requirements was limited only to those not covered by paragraph 6 and 7 of the Schedule: with the other changes, the non-resident key workers covered in para.1-5. The January Amendment distinguished between key-workers and persons to whom a public interest exception applied (January Amendment, reg.17).  

Initially, residents were divided into those covered by paragraph 6, and those covered by paragraph 7. The latter could be given permission to attend a facility for testing (reg.12), and were entitled to exemption from the remainder of their self-isolation if a test indicated that they were not infected (reg.12(8)). Such a person was, however, still prohibited from activities such as non-essential shopping, going to a pub or café, attending a school, attending a gathering of more than ten people, and the like (reg.12(9)). Other Category A persons could be tested, and if positive could be required to self-isolate for a further period or in a particular place; but unlike A(7) persons would not be permitted to leave self-isolation early following a negative test.

The December Amendment reduced the distinction between residents, with those in paragraph 6 and paragraph 7 both required to self-isolate for 21 days upon returning to the Island (December Amendment, reg.8).. Residents under both paragraphs could choose to pay for a test within 48 hours of entering the Island, and non-residents “in order to comply with the conditions of the entry certificate issued to the person, shall” be tested (December Amendment, reg.10, creating new reg.13A; modified by the January Amendment reg.10). Either could then choose to test again on or after the 13^th day of entering the Isle of Man. If the test was negative, they would then be exempt from the 14^th day after entering the Island. If the test was positive, they would be required to self-isolate for a further period, and be treated as a category B person (see below). The January Amendment allows a person who test negative initially, to take a second test six or seven days after entering the Island, and if they test negative to leave their house for the purpose of exercise for one hour per day, and on or after the 13^th day test a third time –  if they test negative they may stop self-isolating after 21 days (January Amendment, reg.10).

CoMin has the power to create travel corridors along which a person may enter the Isle of Man from a specified location (reg.25) without needing to self-isolate upon return.

Spread within the Isle of Man.

In relation to spread of coronavirus within the Isle of Man, the Regulation allowed the Director of Public Health to require a person to provide them with contact tracing information (reg.9; on the use of data obtained under the Regulations generally see reg.34). Persons contact traced or assessed  as possibly infected (Category B persons) could be required to undergo assessment, or required to self-isolate (reg.14-17; amended by January Amendment, reg.9). As with most Category A persons, a test may be taken, and a negative test would not allow a person to leave self-isolation early. Category C persons were those residing with A or B persons required to self-isolate (reg.18). Category C persons could be required to self-isolate (reg.18-21): the December Amendment clarified that this could be a requirement imposed upon a class, rather individuals separately (December Amendment, reg.14).

Self-isolation for all three categories can be checked by unscheduled visits and calls (reg.23), and enforced by a constable (reg.26).

Closure of premises.

The Regulations allow for closure directions to be made over “any indoor or outdoor place to which the public have access whether on payment or otherwise” (reg.27), excluding critical national infrastructure, and public transport or haulage vehicles (ref.32(2)). The slightly confusingly named closure direction can be made to close or restrict use of such premises – so a closure direction may creation conditions “about the entry into, departure from, or location of persons in, the premises” (reg.32(1)), including for instance the number of persons in the premises, the purposes for which they are there, and the facilities in the premises (reg.32(5)). Closure directions may be enforced by a constable, using reasonable force (reg.33). There are two types of closure directions. CoMin may issue directions governing premises of a particular class or type (reg.30) while the Cabinet Office or DEFA – after the January amendment the Director of Public Health – may issues directions governing an individual set of premises (reg.31; amended by January Amendment reg.13). In both cases, the order must be reviewed every seven days (reg.29).

On the 7^th of January CoMin issued a directive under reg.30 closing many educational institutions (GC 2021/002), and restricting the remaining “hub schools” to specified persons – being vulnerable children, and children of essential workers (listed in some detail in guidance attached to the directive).

At the same time, CoMin issued a directive under reg.30 closing other premises (GC 2021/005). Businesses except as specified in the direction are classed as non-essential, and must be closed. Hospitality venues must close, but may offer take-away or delivery. Lifestyle services, pet grooming services, sporting and leisure facilities except outdoor facilities freely accessible to the public, entertainment hubs, social and amenity premises, outdoor building sites (except those seen as necessary by the Department of Infrastructure), and vehicle showrooms are specifically closed. Legal, accounting, financial, insurance, estate agency and banking services may remain open; as may food retailers and wholesalers, chemists, petrol garages and vehicle services, funeral homes, storage and distribution services, taxi and private hire cab providers, laundrettes, public toilets, communications, merchant suppliers, vets, healthcare providers,

Prohibition on Movement and Gatherings.

The January Amendment created a new Part 6A dealing with internal movement in the Isle of Man by persons who are not covered by the self-isolation regime (January Amendment, reg.11). No person, other than a person exempted by the Chief Secretary in writing, may leave their home except in accordance with this part of the Regulations (new s.26B). An asymptomatic person may leave for a range of specified purposes listed in reg.26C(1): including shopping for basic necessities, moving house, exercise, medical reasons, care-giving and funerals, and work (if the employer is still open, and attendance at the place of work is necessary). CoMin may issue further exception orders, either general or specific.

The new part gives a definition of “appropriate social distancing” as 2m, but the term does not appear anywhere in the Regulations as amended. It is, however, used in the exception notice issued by CoMin in January (GC 2021/004). These apply to persons not required to socially isolate, and cover a range of everyday activities (listed in detail in paragraph 3), and essential services (listed in detail in the Schedule). Anomalously, this includes taking a pet dog to and from dog day care and grooming, while such services were ordered closed on the same day (para.3(i)). There is also a typographical error in relation to ministers of worship, with the current paragraph seeming to give a general right to attend a place of publish worship, or the purposes of recording etc (para.3(o)).

The January Amendment also created a new Part 7A dealing with events and gatherings (January Amendment, reg.14).  Gatherings, defined as any assembly of two or more persons, are generally prohibited in both public and private (new reg.33B). CoMin may exempt an event or gathering from this rule (new reg.33C).

In January, CoMin issued a directive under this Part (GC 2021/006). Up to nine persons may attend a funeral, so long as they keep social distancing and wear face coverings at all times; persons may enter a shop permitted to be open; and “inadvertently congregate to expedite” addressing an emergency. An opaque provision allows gathering “in a public place where other persons may be present in accordance with any other permitted Direction and not in contradiction of any Direction or the Regulations in relation to household groups or social distancing or permitted outside exercise allowance” (paragraph 9).

Right of appeal and sanctions.

The Regulations include a provision allowing appeal either to the High Bailiff or to any summary court, against restrictions on a person or a person’s premises (reg.35).

The Regulation creates a number of offences, the most general of which is the failure, without reasonable excuse, to comply with a restriction, or the terms of an exemption, given under the Regulations (reg.36(1); clarified to include failure to comply with the Regulations themselves by December Amendment, reg.16). All offences are punishable on summary conviction for a term not exceeding 3 months, or a fine not exceeding £40,000 (reg.36(8)). The power to create a penalty accruing for each day the defendant remains in default has not been exercised.

All offences under the Regulation may, instead of prosecution, lead to a fixed penalty notice (reg.37). These can be issued by constables (reg.38), and give the receipient the option to pay the fixed penalty instead of facing prosecution (reg.39). The fixed penalty is set at £150 if paid within 14 days, rising to £250 thereafter (reg.41).