The GCs, which power the third Manx lockdown, are now available on the dedicated Tynwald page. There is a slight jump in GC number, for 0022, to 0027. This does not indicate that there are unpublished GCs – as Tynwald Library has kindly confirmed, GC numbers are issued to Departments upon request, and not all numbers are used.
Closure of premises.
GC 2021/0029 deals with closure of premises more generally. Comparing it with GC 2021/0016, there are some differences in drafting. The definition of premises is usefully repeated from the PHR, improving the ability of the GC to act as a “one stop shop” document for businesses (para.4).
There are significant changes to the details of the closure of premises. The distinction between open and closed premises is removed, with a new term of “Affected Premises” which are allowed to open (in some cases with serious restrictions), but must comply with a range of safety measures (para.6; substantively identical to the old para. 6). There is provision for outdoor workers, unchanged from the previous GC (para.7 in both). Although not clear until the Schedule, any premises which are *not* listed as Affected Premises are “closed to the public”, and may be staffed only to “maintain essential operations, or to prepare the business for reopening in line with any Government directions” (cross reference to para.6(f) from the Schedule) – as I will show in a moment, this is less draconian than it appears.
The Schedule makes a number of specific changes to particular sectors, for instance the new GC specifically allows a place of worship to open “for the purposes of installing equipment for the live streaming, recording or broadcast of worship services”.
Businesses such as lifestyle businesses, formerly listed as Closed Premises with no conditions under which they could operate, are now not mentioned at all. This is more than a cosmetic change (sorry), as they now fall under the important residual category of “Non-Essential premises (including all professional offices, businesses, retail and wholesale premises (not selling essential food, fuel or groceries) to which a person may have access in the normal course of business not listed in this Schedule))”. As a result, they are entitled to “deliver goods or offer a pre-booked contactless collection service, provided they minimise any public access to the premises”.
Operators of business premises might want to read the Schedule closely, and if their business is not listed, consider this very capacious “non-essential premises” category. Specific categories are typically less restricted than this non-essential premises category. For instance, the non-essential premises category includes “all professional offices”, but the category of “Professional practices including legal, accounting, financial, insurance, estate agency and banks or banking services” has no specific restrictions on opening.
Leaving home and attending gatherings.
GC 2021/0031 deals with gatherings outside of the household. Comparing it with GC 2021/0017, the general prohibition is put differently. Events or gatherings in a public or private place may take place unless prohibited by a direction made under regulation 33C (which is the basis for this GC) (para.4); however “all events and gatherings are prohibited subject to the exceptions specified in part 3 of this Direction” (para.5). Gatherings no longer need to comply with government guidance to be lawful (the second clause of para.5 in the earlier GC has been omitted).
The permitted exceptions are broadly the same, but there are changes in details. Formerly, funerals were limited to 10 socially distancing persons; now funerals of more than 10 may occur, so long as persons responsible for the place of the funeral and the Director of Public Health have carried out a risk assessment (para.6-8). Although not explicit, I think a risk assessment of a premises for a number of attendees, rather than a risk assessment of each funeral service separately, would suffice. Employment and Emergency Services remain substantively unchanged, as do customer and service users, and the emergency response protection for those who inadvertently congregate to preserve life or property. Exercising with members of the same household where others may be present, for instance a park, has been redrafted but not substantively changed (para.11); as has care for children of vulnerable persons (para. 13-14). Vehicle sharing, as in the earlier GC, is permitted and, as in the earlier GC, it looks to me as if two work mates required to wear masks when working together are not required to wear masks on the journey to work.
It will be recalled that when Lockdown 2 ended, provision was made to continue a restriction on gatherings to preserve self-isolation. This has now been folded into the general restrictions on entering dwellings. There is an important change here.
There is a new, and striking, general restriction. Entering a household where any other person resides is a prohibited gathering “unless the person is returning to his or her usual place of residence having completed a period of self-isolation imposed by a direction notice” (para.16). This could be read as not permitting a person who has lawfully left their house to return to it if any other person resides – so someone going into a lawfully open workplace could not return. This literal reading would be a manifest absurdity (I am not being obnoxious, but invoking a rule of interpretation), and the clause might have been better if it had simply read “unless the person is returning to his or her usual place of residence”. This would, however, still have the consequence of making it an unlawful gathering if a tradesperson entered a residence to carry out essential work as permitted under the GCs elsewhere (GC 2021/0030 para.4(dd)).
Para 17-21 deal with entering a residence where a self-isolating person resides. This restriction includes a number of exceptions to the restriction, making it less restrictive than the general restriction in paragraph 16. It also has an odd reference to “purposes as set out in Part 4 of this Direction Notice” (para.17), when Part 4 does not set out any purposes.
Para 16 is an important part of these GCs. By prohibiting people entering other’s households, it covers a lot of the ground addressed previously by a specific restriction of movement GC rather elegantly. It would benefit from revision.
Given the new prohibition on entering a residence, the restrictions on gatherings outside, and the restriction on premises, individual movement is already substantially restricted. GC 2021/0030 deals with this specifically. Comparing it with GC 2021/0018, there are minor redrafts (e.g. para.3). The reasons why a person who is not self-isolating may leave their home are very similar to those in the last draft (but now listed in para.4 not para.3). The right to exercise is now limited to exercise with members of the same household, rather than with others subject to social distancing (para.4(d)). The right to attend a funeral is now subject to agreement with any risk assessment (a sensible provision given the potential increase of the cap on numbers attending noted above) (para.4(j)). The right to leave a house to move house and essential appointments is now restricted to where the person has a contractual obligation to move when the notice was issued (para.4(l)) – notably less generous than in the last lockdown (as per old para 3(l)). Specific, less restrictive, provision is made for those escaping domestic abuse (para.4(t)). The requirement to comply with guidance on the government website when leaving home for any reason remains (para.4(4)).
Child care and schools.
GC 2021/0027 deals with child care service providers. Comparing it with GC 2021/0015, there are very minor typographical changes (e.g. Schedule b, 2 b change of “2 a.” to “2(a)”. The GC itself is otherwise entirely unchanged. It includes a reference to Guidance by the DHSC, an initial version of which is attached to the GC. This is also unchanged. There are no changes to the child care restrictions in Lockdown 2.0 and Lockdown 3.0. GC 2021/0028 deals with educational institutions. Comparing it with GC 2021/0019, the GC which discontinued the use of hub schools, the two are identical. There are no changes to the child care restrictions in the later part of Lockdown 2.0 (Lockdown 2.3?) and Lockdown 3.0.
Some broader thoughts.
As with previous lockdowns, these are tremendously intrusive and damaging restrictions on the life of the Isle of Man, justified by the damage which they seek to avert. An obvious approach to balancing substantial harms is to seek to minimise the harm – to maximise the utility of all, seeking to promote the greatest happiness of the greatest number.
Taking utilitarianism as a starting point, however, there is an important divergence between act utilitarianism, and rule utilitarianism. Act utilitarianism requires us to determine the greatest net utility on a case by case basis. Rule utilitarianism moves consideration of utility maximisation to the rules which apply to a situation, rather than to each situation covered by the rule. One advantage of rule utilitarianism put forward by its proponents is that it helps to maintain trust in the exercise of power; another is that assessing the utility of every act carries with it a cost, and that this needs to be factored in to the maximising utility equation; a third that evaluating utility at the level of a rule covering a multitude of actual transactions allows more critical and reflective evaluation (and so a more accurate understanding of the costs and benefits).
A rule utilitarian approach may give weight to the benefits of having the same rules apply when needed to deal with similar situations. Post Spanish-flu, the Isle of Man repeatedly introduced measures (primarily emphasising what we would now call social distancing) to deal with outbreaks of influenza through the 20s and 30s. To quote Mr Crellin MHK in 1933, “The regulations are the usual regulations issued when there is an influenza epidemic in the Island”. The benefit here is not so much to the drafters, but to the general public seeking to understand the rules with which they must comply. If there is a possibility of repeat lockdowns in the years to come, the value of “the usual regulations” should not be overlooked.
But let me finish with some poetry (not mine, you will be pleased to know). From “The Parliamentary Draftsman” by James Comyn:
I’m the parliamentary draftsman,
And they tell me it’s a fact
That I often make a muddle
Of a simple little Act.
I’m a target for the critics,
And they take me in their stride.
Oh, how nice to be a critic
Of a job you’ve never tried.
Peter Edge's Law Blog. 