[Apologies for failure to post this properly on the 12^th of March!]

Three amendments were made to the PHRs up to the 12^th of March.

PHR (Amendment) (no.8) came into effect on the 4^th of March. It amended Regulation 21, which deals with restrictions on movement by a Category C person; adding a closed set of grounds on which a Category C person may leave their notified place, and conditions which must be complied with even then. The grounds for leaving are receiving emergency medical treatment, when directed to do so by the emergency services, or if given written permission by the Director of Public Health (reg.21(5) as amended). When they do so, under the first two grounds  the person must wear a face mask or suitable covering, and maintain a distance of at least two metres from any person who is not a member of their household. Note that this is phrased as “must” not “must as far as reasonably practicable” – the latter should however be read into this section, as otherwise emergency medical treatment could only be received at two metres distance.   Under the umbrella category, written permission from the Director of Public Health, they must instead comply with any condition specified in the permission (reg.21(6) as amended).

PHR (Amendment) (no.9) came into effect on the 11^th of March. It amends the contact tracing part of the Regulations to allow the Director of Public Health to require information from a third party to provide information on a person who is reasonably suspect of being infected (reg.9(1A) as amended). The example given in the notes on this Regulation give examples of a school in the case of a student, or an employer in the case of an employee <didn’t this already exist?>. It provides for Category B and Category C persons, subject to negative tests (varying across the categories), to be able to exercise once per day for a period of one hour, subject to social distancing and wearing  a face covering (reg.15(4) as amended, reg.20(5A)  as amended, reg. 21(5A) as amended).

PHR (Amendment) (no.10) which came into effect later  on the 11^th of March, slightly amends these provisions, making it clear that this right to exercise applies only if no other members of the household are infected

There is a very brief period, 00:01 on 17th April to 00:001 on the 19th of April, when modified restrictions on leaving the home and gatherings are put in place before the end of Lockdown 3 at 00:01 on the 19th of April.

Restrictions on movement.

GC 75 deals with restrictions on movement, but only for a short period. It came into effect at 00:01 on the 17^th of April, and will cease to be of effect at 00:01 on the 19^th of April. It makes comparatively minor changes to the restrictions on movement regime.

Most wide rangingly, previous incarnations of the movement GC allowed a person to leave their home for a range of reasons, but only when “it is not reasonably practicable to achieve the purpose from the person’s home”. This pervasive condition has now been removed – so long as you are leaving home for a recognised reason, it does not matter if it could have been achieved while staying home.

There is a change to the gathering justification for leaving home. This was most recently gathering in an outdoor place for exercise, recreation or leisure. That has been amended to gathering as permitted by the gathering GC, “provided that overnight staying (including but not limited to camping or overnight staying) is permitted” (para.5(1)(e)). Overnight staying is permitted under the new gathering GC; as we will see gathering for any purpose is also permitted.

Gatherings.

GC 78 deals with events or gatherings, again for only a short period. It came into effect at 00:01 on the 17^th of April, and will cease to be of effect on the 19^th of April.

The former ground allowing gathering with one’s own household for exercise has been deleted.

The support bubble ground has been amended slightly. Formerly, it was limited to two paired households, and once a pair had been created, the ability to form a support bubble disappeared. This provision has now been deleted – for this short period a succession of support bubbles may be formed, made use of, and then moved on from so long as each one is valid in itself.

The ground allowing up to 10 persons to gather outdoors for exercise, recreation or leisure has been substantially amended. It has been extended to indoor places, and there is no longer a requirement to keep socially distant from other households (or the exhortation to wear masks) (para.13). Significantly, it no longer has to be for exercise, leisure, or recreation: “For the avoidance of doubt, vehicle sharing, provision of care to another person, overnight staying and all other purposes for such gathering shall be permitted”. The important limit here is the number of persons who may gather – gatherings of more than 10 persons remain prohibited. Inadvertent gatherings of more than ten to deal with an emergency are permitted (para.14).

Tradespersons, delivery persons, and property professionals may still enter dwellings, but there is a new restriction – the total number of persons in the dwelling must not, except in the case of emergency, exceed 10 (para.23). I had earlier noted that dwelling was not defined for this ground – the definition applicable elsewhere in the GC has been extended to it (para.25).

From the 19th of April.

GC 78 will enjoy only a short life, and its successor, GC 79, has already been created. GC 79 comes into effect as GC 78 expires, and will remain in force until 00:01 on 25 June 2021. The only ongoing restriction on gatherings is gathering “in or on a dwelling (including the curtilage or garden of such  dwelling) where a person is in self-isolation” (para.6). Even this restriction has a number of exceptions: permission granted by other PHRs (para.7); self-contained apartments (para.9); to provide urgent emergency care for a child or vulnerable adult in the dwelling (para.10 – the bar is set high “required to enter the dwelling for the purposes of preserving life or property”) , . The reference to entering the dwelling to collect items not being permitted except for general refuse, which confused me in its earlier version, has been restored (para.8). I still think explicit discussion of deliveries to a self-isolating home would be useful.

The rest of the ending of lockdown is effected simply by letting a GC with an expiry date expire on that date. Closure of premises expires at 00:01 on 19^th April 2021, and the specific GCs on education and childcare had already been allowed to expire, as they were folded into this last closure of premises GC.

The external facing part of the response to the pandemic – border controls and associated self-isolation – remain in place.

GCs covering all the key internal aspects of the lockdown, including a GC that seems to have survived less than one minute before being repealed.

Gatherings.

GC 2021/0072 covers gatherings. It comes into effect on the 12^th of April, replacing GC 2021/0070 from that date. It makes two changes related to property.

Firstly, it will be recalled that earlier GCs allowed viewing of properties only in relation to emergency moves. This has now been changed – a person may enter a vacant dwelling for the purposes specified in para.5(1)(v) and of the restriction on movement GCs (para.25). I discuss this fully in relation to the restriction on movement GC.

Secondly, a number of tradespersons may enter dwellings for reasons related to their trade. These are “a tradesperson” to carry out work to the property, and a delivery person to take a delivery into the property (note there is no mention of a delivery person collecting from the dwelling) (para.27(1)); and a property professional including “a surveyor, estate agent or photographer” for purposes connected with the sale or letting of the property (para.27(2)). In both cases, the tradesperson must comply with the GCs dealing with closure of premises, as well as the normal conditions applicable to all lawful gatherings under para.28). The exact scope of this is not completely clear – the definition of dwelling applicable elsewhere is not applied to this section (para.29, which includes a definition of dwelling, remains applicable only to para.20-24); and the discussion of closure of premises suggests that dwelling should be read broadly – certainly that a business premises which is also a dwelling is included.

Restriction on movement.

GC 2021/0073 deals with restriction on movement; like the gathering GC coming into effect on the 12^th of April. A significant theme in the GC is the moving away from a requirement that leaving home to access a particular service is essential.

One change is in relation to the shopping ground – formerly limited to shopping for basic necessities, under the new GC, going shopping “at any retail premises which is not required to close” under the closure GC is permitted (para.5(1)(c)). There is a similar move away from essential in relation to tradespersons coming to your home. Permission for tradespersons to leave home to carry out work in the home of another is amended to remove the need for the work to be essential (para.5(1)(gg)). Similarly, the former ground allowing access to veterinary services and other critical animal welfare services is amended to include “grooming services provided that the person does not remain inside the premises while the services are being provided” (para.5(1)(kk)). It is not clear to me whether the need to wait outside applies to the services which were already permitted – if so, that is a new restriction on how an animal owner accesses veterinary services for instance.

Finally, we see the same theme in relation to viewing properties for sale or rent. The earlier GC limited this to possible renters who were permitted to make an emergency move; the new GC allows any person to meet an estate agent, landlord or letting agent a vacant property to which they are considering moving (para.5(1)(v)). In most ways this is a notable relaxation – the meeting may be for a non-emergency move, and may be for house purchase as well as house rental. The previous GC, however, did not require that the property be vacant (a problem I noted here). A matching permission for estate agents, landlords, or letting agents to meet prospective buyers or tenants at the property has been similarly extended to non-emergency rentals and purchases (para.5(1)(w)).

Closure of premises.

Turning to closure of premises, there is an oddity to the two GCs created to update this area. GC 2021/0074 was signed at 16:31 on the 9^th of April: exactly the same time, we are told in the signature line, as GC 2021/0071. It specifically revokes GC 2021/0071. GC 2021/0071, then, was good law for less than a minute. Given GC 2021/0071 would not have come into effect until the 12^th of April, it is unclear why it was created at all; unless perhaps the times in at least one of the signature lines are not accurate, and the error in GC 2021/0071 was spotted only after it had been created, requiring amendment.

GC 2021/0071 had replaced GC 2021/0066, making substantial changes to the closure of premises rules; as usual in the detailed Schedule. These important changes will be given effect by GC 2021/0074.

Outdoor leisure, exercise and recreation was formerly limited to outdoor places which were not enclosed, with play and other exercise equipment not be used. These limits are removed – if an outdoor place is not closed by any other PHR or GC, and “any specific guidance relating to organised activities and sport is adhered to”, it may be open. This opens up, for instance, tennis courts and outdoor play areas.

The rules permitting work inside an occupied premises formerly limited work to essential work; this limit is retained “where a person is shielding (including a person subject to a Direction given under the Regulations or clinical advice to self-isolate or is a vulnerable adult)” but not otherwise. The first two seem sensible enough, but it is less clear why (say) a household with an adult with a “physical or mental disability” (part of a fuller definition of vulnerable adult in para.8) should be unable to have non essential work carried out. Work in an occupied premises must still follow government guidance on mitigating of risk, but a specific reference to face coverings and social distancing has been removed.

Pet grooming services are permitted to reopen, but only for drop-off grooming and, matching the movement GC, owners may not remain on the premises. Libraries may offer not only online lending services, but may now provide “for the collection and delivery of books”’; not for browsing or reading.

Hardware stores are now to be treated the same way as garden centres; including any in-house café (if any reader can give me an example of a Manx hardware store with an in-house café I would be interested both for this blog, and to add to my growing list of must-do’s for when the borders open).

A novelty to this GC is the addition of educational institutions to the list. Formerly these have been dealt with under their own GC, but they are now referred to as premises; with fairly detailed discussion of when they may be accessed. The specific Educational Institution and Childcare GCs are not expressly revoked by this GC, but their current versions run out at 00:01 on 12^th April, when this GC commences. It will be interesting to see if they are replaced, or the fairly compact discussion of educational institutions and childcare in this GC is left to do all the work. A reference in this GC to DPH and DESC dealing with who may access both in directions makes me think that we will see these in due course.

GC2021/0074 is identical to GC 2021/0071 except that it fixes an error in GC 2021/0071 regarding work on work sites. GC 2021/0071 had – I assume inadvertently – removed permission for work carried out “wholly outdoors”. GC 2021/0074 restored it.

I am grateful to Daphne Caine MHK for letting me have the GCs signed on the 1^st of April, but not published on the normal website until 5th April. I have revised this blog to link to the documents there.

Closure of premises.

GC66 was made on the 1^st of April, but does not come into effect until the 6^th of April, when the previous GC dealing with closure of premises expires. The changes are all in the Schedule.

There is a change to the detail of the list of persons who a tourist premise may open for, with a former reference to persons described in Part 2 para4(r) and 4(t) in the Prohibition Notice on Movement being replaced with a reference to persons described in part 2, para5(1)(s) and (u) (see below for my comment on reordering in this paragraph). There is no substantial change.

The instances when construction work is permitted has expanded. The former GC stated that “Building and other trade sites which are worked on or occupied by more than two persons are closed”; this has now been deleted. Formerly, even outdoor construction work was limited to a maximum of two persons, and even then they were required to “work with full mitigations in place following clear risk assessments” – these limits have now been removed. Outdoor work is not limited to two workers at a location, and there is no need for a risk assessment or “full mitigations”. The general duties – applicable to all premises under para. 6  – to maintain social distancing and adequate hygiene, and to adopt any measures reasonably practicable to reduce the risk of infection remain. Indoor work, on the other hand, has a new restriction. Two persons may work together in a premises consisting of only one room (such to full mitigations etc), but if there is more than one room, only one person may work in each room. Thus, jobs requiring two persons to carry out are permitted if the premises is one (small) room, but not if it is two (large) rooms.

Garden Centres are given more flexibility, amounting to nearly complete opening. Formerly they were required to minimise public access to the premises. This limit is now gone, and although a garden centre café may not serve food or drink for consumption on the premises, it can sell it for consumption off site.  

I mentioned earlier that it was odd to have childcare rules in the premises GC, but the provision of the national Childcare Hub has been retained here, and the scope changed.

Formerly, Part 2 of the Schedule dealt with provision of childcare for DHSC workers only. Although deliberately not publicised, the Hub was at one point operated for DHSC workers only. This has now been amended to “critical workers”. This continues to include DHSC workers, but has been expanded to employees, contractors, or agents for the Department of Home Affairs – “including for the avoidance of doubt any person employed or stationed with the Isle of Man Constabulary”. Otherwise, the legal framework for provision of a national Childcare Hub at the NSC is unchanged.

Child care and education.

GC 67 was made on the 1^st of April, but does not come into effect until the 6^th of April, when the preceding GC dealing with child care service providers expires. There are no changes (the only change not concerned with dates is the addition of a full stop at the end of a paragraph).

GC 68 was made on the 1^st of April, but does not come into effect until the 6^th of April, when the preceding GC dealing with educational institutions expires. There are no changes (the only change not concerned with dates is the remove of an accurate, but not necessary, paragraph identifier).

Movement and gatherings.

GC 69 was made on the 1^st of April, and came into effect at 00:01 on 2^nd of April – some days before it was published to the general public required to abide by it. GC69 deals with restrictions on movement, and replaces GC 64, which would otherwise have run until the 6^th of April.

Category A,B, and C persons – the reference to permission to leave in accordance with para.5(1)(t) is changed to 5(1)(u), as part of a general renumbering required as noted below..

The existing right to leave home to exercise alone or with your household remains, but there is a new right “in order to gather in an outdoor place for exercise, recreation, or leisure” (new para.5(1)(e)). Because this was added to the middle of the list, this changes the numbering of later grounds (necessitating the two changes noted above). Additionally, an explicit right has been removed. Formerly, members of Tynwald could leave home “to undertake essential constituency duties”. This has now been deleted. Members of Tynwald remain, however, defined as “Key public services” in the Schedule, and so entitled to leave home “to perform the duties of his or her office or employment in the provision of an essential service” (para.5(1)(b)).

So this GC allows you to leave home to gather outdoors for exercise, recreation, or leisure. As might be expected, we have a new gathering GC, GC 70, made on the 1^st of April and taking effect at 00:01 on 2^nd of April – again some days before published to the general public required to abide by it. There are two significant changes.

Firstly, there is a new paragraph dealing with gathering in an outdoor place for exercise, recreation, or leisure. Under para.10 this gathering may consist of 10 persons or fewer, from an unlimited number of households, in an outdoor place “where other persons may be present” (para.14). The other persons referred to must be a reference to those not in the 10 person gathering (you could, for instance, exercise with your household where others were present already). So could 10 groups of 10 people lawfully gather on – for a wild hypothetical – a beach? The answer is not deliberately. If you agree for a group of 10 to gather on the beach, and there happen to be other groups of 10 that have had the same idea, then the separate gatherings of 10 people are lawful. If you have arranged with the other groups to all be there, that is a gathering of 100 people (not 10 gatherings of 10 people), and so unlawful.

This right is subject to some specific conditions. The outdoor place must not have been closed under the PHR (para.14.1), no person who is part of the gathering may be restricted by self-isolation requirements or other restrictions (para.14.2), the general conditions in part 4 must be complied with (para.14.3), and – in a striking piece of drafting – “social distancing (being no closer in proximity than two (2) metres to another person) is maintained at all times by all persons present other than members of the same household and the wearing of face coverings is strongly advised” (para.14.4).

The section in bold, surely, has no legal force. For guidance to have legal force under this GC it must, per Part 4, be “published on www.gov.im”. If the intention is for persons exercising this new right to be required to wear face coverings, that could be mandated in the law. If that is not the intention, it should not appear in the body of a  legal rule, violation of which can result in criminal prosecution and imprisonment. The section in bold should be deleted as soon as possible.

The other change is more straightforward. Construction sites will, from the 6^th of April, be able to operate with unlimited numbers of persons working outdoors. This GC has been amended by a new para.26 to allow them to gather at such sites.