Lockdown 3.2 – changes on 5th March.

Closure of Premises.

GC 2021/0038 replaces the previous GC on closure of premises. There are minor refinements to drafting (e.g. para.5,7), but the substantive changes are in the Schedule which describes the conditions under which particular types of premises may operate.

The conditions upon which tourist premises may open now include persons “who must lawfully leave their household in accordance with the Regulations or any Direction or Notice”, including in particular a person unable to reside in their ordinary residence due to a member of their household receiving a direction to self-isolate.

Essential food and groceries has now been expanded to include “drink (including alcoholic drinks)”.

The GC includes an Annex of work sectors where “your children will be prioritised for education provision”. This is unchanged from GC 2021/0035; and so includes “staff needed for essential financial services provision (including but not limited to workers in banks, building societies and financial market infrastructure), and “call centre staff”. As discussed below, this entire Annex is deleted from the GCs dealing with schools and child care; it is important not to be misled by this heading. On the positive side, it may mean that the GC does not need to be amended should schools and child care re-open for children on the priority list.  

Schools and Child Care.

As will be recalled, IOMG announced the closure of all schools and child care settings for Friday 5^th March. No GC was published for that day, making it unclear what the legal basis was for the day’s closure – more significant for private providers than state organisations.

Two new GCs have been published dealing with educational institutions and child care. I  would normally compare them with the preceding GCs on the two topics, highlighting differences only, but this is – concerningly – not possible in this case.

GC 2020/0039 which deals with educational institutions, revoked GC 2021/0037, described as “in relation to Educational Institutions”. GC 2021/0040, which deals with child care service providers, revoked GC 2021/0036, described as “in relation to child care service providers”. Neither GC is available on the dedicated PHR page maintained by Tynwald Library, nor in the running order list of GCs on the same site. Members of the general public, those seeking to act in compliance with the law, and legal advisers have not had access to these documents which – because of the PHA/PHR/GC structure I have described earlier – have legal force. Generally applicable laws should be generally available; it is unfortunate when they are not available in advance of coming into effect, but not being available at all is a new development.

 As a result, I have compared these GCs with their last publicly available predecessors.

Comparing GC 2020/0039 with GC 2020/0028, the GC no longer has a definition of permitted pupils or permitted staff, specified persons permitted to attend educational institutions, and vulnerable children. This is because the definitions are no longer needed under the GC. Formerly, educational institutions closed expect for specified persons. The new GC closes all educational institutions “except for persons who reside on any educational institution premises or whose presence is required for essential maintenance of essential operations” (para.2.1). Additionally, the Annex on workers whose children would be prioritised in educational provision has also been deleted.

Comparing GC 2021/0040 with GC 2020/2027, the GC no longer has a definition of “specified person”, for similar reasons to the educational institutional GC. Formerly, child care services were closed except for specified persons. The new GC probably closes all child care for customers, and deletes the Annex on workers whose children would be prioritised in educational provision.

Para 2 is largely modelled on the GC closing schools. The difficulty I am having in deciding between two very different meanings is that the paragraph seems to blur discussion of the premises required to close and permission to enter premises required to close in a single, overlapping, sentence. I will reproduce the paragraph in full, with text addressing the first issue in italics, and in bold that addressing the second:

“All premises providing child care services shall be closed in accordance with this Closure Direction to all persons save for those with a responsible body residing on the premises or whose presence is required for essential maintenance of essential operations”.

Similarly to the educational institution GC, the premises are not closed to those “whose presence is required for essential maintenance of essential operations”. More opaquely, however, the premises are not closed to “those with a responsible body residing on the premises” (para.2). Responsible body is defined as “the childminder, or in the case of a child day care centre, the persons or body of premises responsible for the management of a child care centre” (para.1).

One reading is that the most likely meaning is the responsible body may enter their premises. Most pertinently childminders who work from their own home are able to continue to reside there. If this is the meaning of the paragraph, it does raise a query as to other members of the childminder’s family. If without this proviso, the child minder would be unable to enter their own home, does this mean the family members are unable to do so?

An alternative reading is that child care services whose responsible body lives in the premises are not closed by the GC – so a child minder may continue to offer child care services in their own home (perhaps mixing a number of households as a result?). This would be a significant exception to the blanket policy in effect until 8 March.