As is usual, the GCs replace entirely predecessor GCs on the same topic. Unusually, however, the new GCs do not revoke the previous ones. In three cases, this is because the previous GCs already incorporated an expiry of 00:01 on 8 March, the moment the new GCs come into effect. GC 2021/0041, however, had an expiry of 00:01 on 20th March; while its replacement GC comes into effect at 00:01 on 8 March, and does not revoke its predecessor. To apply the doctrine of implied repeal to a government circular, however, I think that the new GC revokes (as has been the case in previous GCs on the topic) its predecessor.
GC 2021/0043 covers educational institutions. There are no changes.
GC 2021/0045 covers restrictions on movement. There are no changes.
GC 2021/0046 covers closure of premises. The only changes are in the schedule relating to conditions for the opening of premises.
Parks have been removed from the express list of outdoor leisure, exercise and recreation venues allowed to open. The list is “including but not limited to”, so there may be an argument that parks can remain open even after removal from the explicit list. Against that, choosing to remove “parks” suggests some change was envisaged.
The list of essential workers whose children will be prioritised in education provision, which survived the closure of educational provision in the last set of GCs, has now been deleted. The concept of “essential worker” is, however, still retained in the GCs, in relation to the Government Department category. This now stands to be interpreted without a definition set out in the GCs – there is unlikely to be much practical difference; and the GCs now do not have a (potentially misleading) reference to priority in education provision.
GC 2021/0041 replaces the former provisions dealing with closure of premises. Comparing it with its immediate predecessor, there are no changes to the main body of the text, but changes to two parts of the schedule which outlines conditions under which particular sorts of premises may open.
The conditions surrounding construction work – perhaps only construction work carried out otherwise than by the DoI and MuA (this point remains unclear) – are tightened up, in particular by the creation of new limits on the number of persons who may work together. “Building and other trade sites which are worked on by more than two persons are closed”. Work carried out wholly outdoors must be carried out alone, or by a maximum of two persons, and only with “full mitigations in place following clear risk assessments”. Indoor work may be carried out in vacant premises which are not occupied by the normal residents, again by a maximum of two persons with full mitigations.
The category defined as “Professional practices including legal, accounting, financial, insurance, estate agency and banks or banking services” now appears to be defined as “Financial Services”. Banks may remain open for cashier service, but all other Financial Services – by which I take to mean the rest of this category –must implement work from home measures, and comply with the general rules of para 6, “other than the minimum number of staff required to maintain essential operations”. This cross-reference to para.6, which lays down the conditions that apply to every premises, is not very clear. Para 6(f) allows premises to have a minimum number of staff to maintain essential operations; this part of the Schedule appears to exempt Financial Services from this part of 6(f). What is intended by an exemption to an exemption – does it mean Financial Services may not have the minimum number of staff required to maintain essential operations? Or that in order to maintain essential operations Financial Services (but not other premises) may have more than the minimum number of staff.
Freedom of movement.
GC 2021/42 replaces the former provisions restricting freedom of movement. There are a small number of changes to specific circumstances justifying leaving home, but the most important changes are new, overarching, conditions which must be met for every circumstance, laid down in para.4.
Paragraph 4 provides that a person may only leave their home for one of the specific purposes if “it is not reasonably practicable to achieve the purpose from the person’s home” (para 4(a)). This has potentially very wide implications. For instance exercise remains a valid reason to leave home (now in para.5(1)(d)). In what circumstances is it not reasonably practicable to achieve the purpose of exercise without leaving home? The paragraph also requires that the person leaving home complies with Regulations, Directions, guidance published on www.gov.im; specific conditions associated with particular purposes allowing the leaving of hom; and “must take all reasonable steps to mitigate any risks associated with leaving the person’s home” (para. 4(c)). This is a very important change, making leaving home very much more conditional than in previous iterations.
Turning to specific grounds:
One restriction is linked to the change in child care facilities. Formerly, a good reason to leave home was for a vulnerable person or child to go to a place to be cared for; this has now been restricted to a vulnerable person or “a child of a person who provides an essential service” (para. 5(1)(g)). The provision allowing a person to leave home to take their child for child care by family members, or other usual carers, so that they may attend a workplace is subject to an important new restriction. This is now usable only where “no other children attend that residence or household, other than children who ordinarily reside there” (para. 5(1)(z)(iii)). Reading these together, children of essential workers only may be taken to another household to be cared for (because they may not leave the house to be cared for unless their parent is an essential worker), but not if any children except those who already live there will be present. So a grandparent who would otherwise care for two different sets of grandchildren to allow their parents to carry out essential work will no longer be able to.
The attending work justification has been greatly simplified, the only requirement remaining being that no more persons are present at any one time than is necessary for the effective operation of the business (para.5(1)(k)).
As may be expected, with the closure of educational institutions, there are knock on effects. The right of a student to leave home to attend an educational institution has been removed. The list of essential services, which continue to allow a person to leave home to deliver, now excludes education and child care, but otherwise is unchanged.
Finally, I had suggested in relation to gathering rules that funerals of more than 10 people may be permitted on a risk assessment of premises, rather than each event individually. This is confirmed by a change to the attending funeral ground, which allows attendance of a funeral provided “in respect of the premises at which the funeral is held” a risk assessment has been agreed (para.5(1)(j)).
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 5th 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.
Change to isolation rules for those living with track and trace contacts.
An amendment was made to the PHR. The PHR (Amendment) (no.8) 2021 has added new rules in relation to a Category C person where they are sharing a household with a Category B person (there are no changes to a Category C person sharing a household with a Category A person. So these changes relate to a person residing with someone who has been required to self-isolate as a result of having been contact traced or assessed (PHR reg.14); rather than a person residing with someone who has entered the Isle of Man (PHR reg.11).
Such persons may be required to self-isolate, and if so may leave their notified place (typically their home) only to receive emergency medical treatment, when required by the emergency services, or with written permission by the Director of Public Health (new reg.21(4)). If they leave this notified place, they must wear a mask and retain social distancing if leaving because of the two emergency criteria; and if given written permission comply “with any condition specified in the permission” (new reg.21(6)). The Guidance note to the PHR does not quite match the content of the PHR. The PHR specifies different requirements for the two emergency criteria and the written permission criteria (although one would anticipate written permission to require masking and social distancing), while the Guidance note (which is not part of the PHR) indicates that masking and social distancing is required “at all times when lawfully absent from a person’s place of self-isolation”.
There are also three new GCs. As with last lockdown, each GC replaces a predecessor covering the same topic.
Freedom of movement.
GC 2021/0033 covers restriction of movement. There are minor refinements of drafting (e.g. changing “vulnerable child or vulnerable adult” to “vulnerable person” at para. 4(1)(f)). The only substantive change to the main body of the GC which I can identify is a minor change to the ground for leaving a home in order to move house, with the time for the contractual obligation allowing this reset (para.4(1)(l)).
This is a very narrow, and unusually specific, change. The earlier GC’s relevant section referred to “in cases where as at the date of giving this notice, the person has a contractual obligation to do so, in order to move house and to attend essential appointments in connection with moving house” (para. 4(1)(l)) – that GC coming into effect at 00:01 on the 3rd of March. The new provision refers to “cases where, as at 4th March 2021, the person has a contractual obligation to do so, in order to move house and to attend essential appointments in connection with moving house” (para.4(1)(l)). Not every GC issued on the 3rd has been refreshed, so presumably CoMin identified a mischief which needed to be addressed by the new GC. The class of individuals who may benefit from the change to their ability to leave their house as a result must be very small indeed – the new GC does not revert to the old lockdown rules which allowed a person to move house even if the contract was agreed after the lockdown had started.
Gatherings.
GC 2021/0034 covers gatherings. The main change is in relation to masks and social distancing. All exceptions ro to the ban on gatherings are now subject to any specific restrictions in any GC or PHR, and most significantly to “taking appropriate measures to mitigate the risk of transmission of infection with Coronavirus are adhered to, which shall include any protective wear, face coverings, social distancing, or other public heath guidance published on http://www.gov.im” (para.21(b)). Although not grammatical, the meaning is clear enough. It also gives more authority to government guidance that then previous GC, which laid down some specified rules for particular exceptions (e.g. 2 metres distancing at funerals). This requirement to comply with guidance includes the lift sharing by employees exception under para.15(a), eliminating the problem I had pointed out earlier. The problematic para.16 is also improved – the old paragraph referred to “enter a household”, while the language now is “move to a household”, which to me suggests a change of household, rather than the worker returning from work problem I identified earlier.
Closure of premises.
GC 2021/0035 covers closure of premises. The substantive changes are in the Schedule, which it will be recalled details the restrictions upon which types of premises must operate. The drafting is not always clear.
Essential premises, including provision of essential food and groceries, are subject to further restrictons on their activities. No customer seating, or consumption on premises, is permitted. Non-essential goods that are not “in the immediate vicinity” of essential goods should be restricted from public access where it is is practicable to do so. The rest of the clause is difficult to interpret, not helped by an odd number of brackets. To quote the single sentence in full: “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”. If the goal is to restrict supermarkets etc from providing goods which specialist shops are unable to provide because they have had to shut for face to face sales, then the reference to limiting the time and number of persons seems odd. Allowing supermarkets to comply by placing non-essential goods “in the immediate vicinity of essential goods” similarly seems to undermine the policy.
Immediately after non-essential premises generally, premises owned, occupied or operated by a Department, Statutory Board, or Office or other premises providing critical national infrastructure or a key public service now have their own category, allowing them to open “where there is a requirement for attendance of on-Island essential workers and maintenance of essential operations”. This seems identical to the pre-existing category just above “Pet Grooming Services”, which has been retained, although the description of the restrictions differs.
There is an unclear amendment to the construction category. Probably, the construction category now gives the Department of Infrastrastructure and the MUA the right to “undertake works as they deem to be necessary to maintain the critical national infrastructure or otherwise as they deem reasonably necessary” – note that their belief that the work is necessary to maintain critical national infrastructure need not be reasonable; while putting more specific restrictions on other construction sites. An alternative reading would be that only DoI and MuA constructions sites may operate, and when they do, need to meet the more specific restrictions limited – but this is difficult to square with other parts of the GCs allowing tradesmen to work in private dwellings (GC 2021/0033 para 4(1)(dd)). Builders merchants etc are now required to sell only essential and emergency supplies to the trade in person.
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.
The Manx lock-downs so far have shared a focus on border controls, control of internal movement and gatherings, and closure of businesses. Regulations already made under the Public Health Act 1990 continue in effect, but for the moment Directions, made in the form of Government Circulars, do not restrict internal movement and gatherings (except in relation to persons required to self-isolate), or closure of businesses.
It is at least plausible that new restrictions would resemble closely Directions previously in effect to create the January lockdown (the previous, longer, lock-down was dealt with under the Emergency Powers Act, and are a less obvious model). The most relevant are:
Although largely written to stand alone, these three do interact. So the rules against gatherings do not apply to employees or customers accessing premises permitted to be opened; and a person may leave their house to work at a premises permitted to be opened, or to be a customer at a premises permitted to be opened.
There have also been more specific restrictions around educational institutions and child care; but it is less clear what a default “reintroduction” would look like for those specific restrictions.
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