PHRs before Tynwald, 17 June 2021.

Two PHRs are to be laid before Tynwald today, both requiring approval by Tynwald before coming into effect. The first, PHR (Amendment) (no.14) changes the expiry date of the Regulations from 25 June 2021 to 26 October 2021. The second, PHR (Amendment) (no.15) makes very substantial changes to a number of areas of the PHR regime, most significantly introducing a new exemption for vaccinated travellers..

Cross-border travel without isolation for vaccinated persons.

A new category of 2+2 vaccine exemption is created under reg. 5A. To be covered by this exemption, the uninfected person must have:

• received two qualifying vaccinations (currently Pfizer, Moderna and AZ, but with the power for CoMin to add to, or remove from, the list),
• received the second vaccination at least two weeks before;
• had both administered in a qualifying country (currently every country in the CTA, but again with the power for CoMin to add to, or remove from, the list);
• not travelled outside of the common travel area in the ten days before their travel to the Isle of Man.

A person who meets the 2+2 criteria “is not required to self-isolate and need not provide a biological sample”, but “must not until the tenth day after their arrival, attend at any health or social care premises except to receive emergency treatment”.

Although the new reg.5A refers to persons, rather than adults, there is accommodation for the difficulty of a child complying with the 2+2 criteria. On balance, despite residents ceasing to be children for one part of the regs at 16 (reg.6(17)), a child is a person under 18 years (PHR reg.5(1)). The child must not have travelled outside the CTA within ten days, must not be a Category A person, must not be covered by reg.5A, and must have travelled “to the Island with an adult parent or guardian to whom the vaccination exemption does apply” (note the specificity – the adult must be parent or guardian). In such circumstances, a child under the age of 5 is not required to self-isolate or provide a biological sample, but a child of 5 and over must self-isolate (as suggested by reg.5B(3)(a)) and provide a sample within 48 hours of their arrival and a second on the sixth day following their arrival. If the first sample is negative, such a child is not required to continue to self-isolate. They may not, however, attend any health or social care premises except to receive emergency treatment until the tenth day after their arrival, and must provide the second sample on the sixth day.

To fall under either of these exceptions, the vaccinated person or child must not have travelled outside the CTA within ten days. There is, however, an additional, wider,  restriction in relation to travel from “red list” (Category 3) areas. Reg.11 as amended provides a prohibition on persons entering the Island unless they are a Category A person, they are passing through a secure exempt area under reg.10(5), or they are covered by one of these two new vaccination related exemptions. None of these persons, however, may enter the Isle of Man unless at least ten days have passed since they were in a Category 3 country or territory, and “they have complied with any self-isolation or equivalent requirements (however expressed) of that country or territory or any other country or territory they have or intend to transit through, or embark from in travelling to the Island” (reg.11(2(b)).  There is not a freestanding Manx definition of Category 3 – red list – countries or territories. Instead, the term is to have the same meaning “as it has from time to time” in the relevant English Regulations Tying into the changing judgment of the English executive on this point is likely to be controversial.

This is potentially a significant amount of information being provided to gain the exemption, particularly if the person has at any time been in a Category 3 country or territory. Remember, they must show that at least 10 days have passed since they were in a Category 3 country or territory, and they have complied with a range of foreign law requirements. For instance, if three months ago they had been in Greece, and then travelled one month ago to Bangladesh (Greece being a 14 day hotel quarantine country for Bangladesh), and then onto a CTA country such as Ireland (Bangladesh being a Category 2 country with mandatory hotel quarantine), they would need to show that they had complied with the relevant legal restrictions in Greek, Bangladeshi, and Irish, law. An outer timelimit beyond which information was not needed to be provided on historic presence in a Category 3 country may have been useful; particular as the time in which countries have had border controls and self-isolation rules in relation to coronavirus lengthens.

In any case, even a much simpler case is going to require a substantial amount of information to consider. This is covered by the Reg itself, requiring not only the completion of a landing card “fully and truthfully” answered, at least 48 hours before their scheduled arrival in the Island (made standard for any Manx resident arriving in the Island by a different part of the Reg), but also providing the Chief Secretary or Director of Public Health “with such information as they may reasonably require for the purposes of this Regulation”.

Other changes to isolation rules.

As in the last change to the isolation rules, Schedule 2 has been replaced in its entirety. It should be remembered that persons who fall under the 2+2 exemption (meaning both the vaccinated person, and their eligible child travelling with them), do not need to comply with Schedule 2. The 2+2 vaccinated person has no testing or self-isolation requirements; the testing and self-isolation requirements for the associated child over 5 years is contained in the body of reg.5B. The Schedule has been made clearer and more usable. The key thing to use it is to identify what “Category of Person” in column 1 applies to you – this then gives information on how consent to enter the Island has been granted, where isolation can be carried out, default isolation period, and the voluntary testing regime and its consequences.

The Schedule provides a default isolation period (frequently 21 days), and the opportunity to reduce this by voluntarily choosing to be tested. Adults under the 2+2 exemption cannot alter their position by testing: they do not need to self-isolate for any period. Children accompanying them under 5 are not subject to Schedule 2 (reg.12(2A) as amended). Children over 5 under reg.5B, however, are detailed only if they take tests. There is no consideration in reg.5B for a child, accompanying a vaccinated person, who refuses to take a test; but neither do they have their own default period of self-isolation if they refuse to take test (some of the categories may be applicable to a particular child, but not every instance a child could enter the Island under reg.5B is covered). It is not at all clear to me what the position of an unvaccinated child over 5 years of age, accompanying a vaccinated parent, is, should they refuse to comply with the testing regime. 

Changes to isolation rules during the House of Keys election period.

As noted frequently in this blog, the PHR lockdowns were implemented almost entirely by Government Circulars rather than changes to the PHR through amending PHRs made by CoMin. Border control and related self-isolation was, however, primarily dealt with by amending PHRs – this has been one of the most controversial topics throughout the pandemic, and perhaps one which was therefore best dealt with at PHR level. A new section of the PHR, reg.9A, provides for CoMin to issue directions (which I assume will be GCs) covering very substantial variations to self-isolation requirements. This is not, however, completely adopting GCs for this aspect of the pandemic response. Reg.9A may “only be issued where the House of Keys stands dissolved”, and lasts only “until the first sitting of Tynwald following the day on which the House of Keys is first assembled after its preceding dissolution”, unless that Tynwald resolves to continue it in operation.

Strictly speaking this provision was not necessary. PHRs do not require approval by Tynwald within a set time, and ministers remain ministers even when they are no longer in Tynwald, until their successor is appointed (Council of Ministers Act 1990 s.4). PHRs can come into effect immediately, subject to approval by Tynwald within 14 days of being made (s.51Q(5)). If the President is not able to summon Tynwald within 14 days, the PHR remains in effect until a sitting is possible (s.51Q(5B, 5C)). So the ability of CoMin to implement urgent policy changes seems clear even over the Election Period, so long as the policy change can be implemented by a PHR. If the policy change could not be made by a PHR this provision, made under a PHR, would not make it possible to do so.

Voluntary Community Testing.

A new regulation, reg.16A, provides that the Director of Public Health may request that a particular Category B person, two or more persons, or a particular group of such persons “or all such persons” voluntarily provide a biological sample. On my reading, such a request under this section can only be made to Category B persons; but it is not clear why the section is needed at all, unless there is a general limit to the ability of the Director of Public Health to ask for people to voluntarily provide a biological sample. It is not, in any case, unlawful for such persons to choose not to voluntarily provide a biological sample.