Three new GCs on the 8th of March, and published overnight. None of them expressly revoke their predecessors, but all three of these predecessors stated their expire at the moment its replacement is stated as beginning. There is thus, no need to rely upon implied repeal to explain the relationship between the earlier and the later GCs.
GC 2021/0047 deals with educational institutions. Apart from one minor punctuation correction, there are no changes.
GC 2021/0048 deals with child care service providers. There are no changes. I am still finding it very difficult to understand paragraph 2, which provides (in full): “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”.
GC 2021/0049 deals with restriction of movement. There is one useful clarification in para.3, making it explicit that a category A-C person may leave their house in accordance with the Regulations as well as with a direction notice, and some minor tidying.
There is an important addition in relation to childcare. The provisions allowing an essential worker whose work place is not closed to take their child to be cared for formerly applied to children who would be cared for at a family member’s home, or a household where they were normally cared for. Taking a child to “the premises of a person providing education or childcare to whom paragraph 2 of the Schedule applies” (para.5(1)(z)(i)), last seen in GC 2021/0033) has been restored. The conditions for care in a household remain the same – so only overnight care for essential workers by a grandparent, and there is a requirement that “no other children attend that residence or household, other than children who normally reside there”. These conditions do not apply to the premises under para.5(1)(z)(i) – opening up the possibility of caring for children from multiple households. The right of a student to leave home to attend educational premises, is restored, again with a reference to para 2 of the Schedule (para.5(1)(aa), again last seen in GC 2021/0033).
So paragraph 2 of the Schedule is doing some significant work. Unfortunately, it is not quite the work it was originally drafted to do – an issue that has been in the GCs for some time and which I had not picked up before this restoration. The Schedule is the list of essential services, cross-referenced to para.5(1)(b) which states that a person may leave home “to perform the duties of his or her office or employment in the provision of an essential service as defined in Part 3 of this Prohibition Notice”; which then defines “essential service” in part to mean “a service or business described in the Schedule” (para.6(a)). So para.2 of the Schedule is one of the essential services which justify a person leaving home to deliver. It covers:
“Persons providing childcare, and essential education support, teachers and educational social workers and other associated professionals whose work is essential in order to support children who need it during the period that this Prohibition Notice remains in force but only to the extent permitted and in accordance with any Closure Directions made under the Regulations in relation to educational institutions and child care service providers”.
So para 2 does not apply to particular premises, but to persons delivering particular services – which of course may be delivered separately from a particular premises. The best way to resolve this is to read the reference in the GC to premises at which these persons typically deliver these particular services.
This *does not* reopen child care and educational institutions. It is intended to mean that when they reopen for particular purposes and under particular restrictions, the restriction on movement GC will not need amending to allow children of workers to go to the newly open institutions. All workers whose workplace is not closed may take their children to the premises, family member or usual household where they are cared for under para.5(1)(z); students may “attend the premises of a person providing education to whom paragraph 2 of the Schedule applies” (para.5(1)(aa)); and “the child of a person who provides an essential service” may leave home “to go to a place to be cared for (para.5(1)(g)). What of children of non-essential workers? If childcare settings opened for those children, and we did not read student and education as including recipients of childcare as well as education (and remember, both are covered by paragraph 2 of the Schedule), it is difficult to see an explicit ground allowing that child to leave home to go to childcare (as opposed to their parent, who may leave home to take them there). So the best reading is that para (aa) covers both sets of provision.
Peter Edge's Law Blog. 