Omicron 1.0: Legal changes with effect from 30 November 2021.

The PHR (Amendment) (no.19) came into effect before approval by Tynwald: at 04.00 on 30 November 2021 (having been signed at 22.15 the night before). Assuming they are approved, the principal Regulations will now expire on the 31^st of March 2022, as opposed to the 20^th of January 2022 (amending reg.4).

As would be expected the changes are responding to the potential dangers posed by the  Omicron variant.

Border control.

The vaccination exemption to border control (under reg.5A) and natural immunity exemption (under reg.5C) are now both subject to qualification in (new) regs. 11A and 11B, which as a result apply to both vaccinated and unvaccinated travellers.

Reg.11A applies to persons arriving from outside the Common Travel Area, who must self-isolate, and take a PCR within 48 hours of arrival. Reg.11B apples to persons arriving from within the Common Travel Area. On arrival they must agree in writing to self-administer a lateral flow test within 12 hours, and to share the results of the test with the Chief Secretary.  

The amendment also slightly changes the definition of Category B persons (amending reg.14(1)(a)).  

Face coverings.

A new set of regulations now impose requirements to wear face coverings.

Reg.6A requires a person travelling “on a vehicle used to provide a public transport service” to wear a face covering. A public transport service means the use, for transporting one or more members of the public, of a vessel, motorised vehicle, tram, train, public transport vehicle, aircraft, and “any other conveyance” whether or not for hire (reg.6A(6)). It does not include such a vehicle when being used for private purposes and not at the time transporting a member of the public (reg.6A(7)). This might suggest that “travelling” includes “driving”, so putting PHR face covering duties on bus drivers for instance, but it is phrased as “for the avoidance of doubt” so is ambiguous. Operators of public transport services must provide information about the new requirements on their vehicles (reg.6A(5)).

This duty to wear a face covering is subject to two exceptions – “exemptions” and “reasonable excuses”.

An important exemption is age: a traveller who is a child under 12 is exempt. The other exemptions are based on the nature of the vehicle. Exemptions apply where the vehicle is: a ferry where the part open to passengers is entirely outdoors; a vehicle which does not land, take off, or dock on the Island; a cruise ship; has an allocated cabin where the person is alone or only with members of their household or a carer; or – similarly – is carrying a vehicle within itself where the traveller will remain for the entire journey. The distinction between the cabin and the vehicle-within-a-vehicle rule is that the cabin using traveller is required to wear a mask outside the cabin, but may leave it; while the vehicle-within-a-vehicle traveller must stay within the vehicle. It seems an odd distinction to draw, but follows from the different drafting of reg.6A(3)(d) and reg. 6A(3)(e).

There is a list of reasonable excuses in reg.6A(4). The guidance note to this PHR state that it is not intended to be an exhaustive list. Determining whether a list in a statute is intended to be exhaustive is notoriously difficult, so it might have been useful to state this in a legally binding form in the PHR itself. Reasonable excuses specified include some characteristics of the traveller, but also particular circumstances and activities. They are: the traveller is unable to wear a face covering because of a physical or mental illness, impairment or disability; where the traveller has to remove a face covering to communicate with a person who has difficulty communicating (so covering communicating with a lip reader); where the traveller “has to remove the face covering in order to avoid harm or injury, or the risk of harm or injury, to [themself] or others”; where the traveller “is travelling to avoid injury, or to escape a risk of harm, and does not have a face covering”; where the traveller has to take medication, or eat or drink (if allowed on the vehicle and reasonably necessary); or where asked to remove it by a police officer or the operator of the public transport service.

Reg 6B, on the other hand, requires a person to “wear a face covering in a relevant place”. The Council of Ministers are empowered to issue GCs defining “relevant place” (reg. 6B(4)) – essential as the term is not defined in either the principal PHR, or the amending PHR. Shifting this definition down to GC rather than PHR suggests anticipating a need for rapid flexibility in defining where face coverings must be worn. For the moment GC 2021/0094 has defined relevant place as “health and social care premises”, which “shall include but are not limited to any indoor premises where health or social care services are provided to the public, including a hospital, GP surgery, dental practice, opticians or optometrist practice, pharmacy, residential home, care home, vaccination hub or other premises at which vaccinations are administered, or testing centre for the purpose of administering tests for Coronavirus”.

This is not required for children under 12, or where the person has a reasonable excuse (reg.6B(2)). There then follows a list of reasonable excuses almost identical to those discussed above in relation to travel. There are however two additional grounds here: “where [the person] is undertaking an activity and wearing a face covering during that activity may be considered to be a risk to [the person’s] health”, and “where [the person] is seated in premises where food or drink is sold, or otherwise provided, for consumption on the premises”. Note that the latter is very specific – you must be seated to be allowed to remove your mask. So visitors to Nobles, if the coffee shop is open, may remove their masks when seated for their coffee, but not before.

The inclusion of residential home and care homes is striking, as this part of the Regs do not include a cabin exemption which allows a person to remove a mask when “allocated a cabin, berth or other similar accommodation on the vehicle, at any time where P is in that accommodation — (i) alone; (ii) only with members of P’s household or a member of the household’s carer”. If the intention is not to require care home residents to wear a mask at all times, something like this might usefully be added; although it may be that we will find “reasonable excuse” read as encompassing care home residents alone.  The Chief Secretary has the power to issue guidance relevant to both of these Regulations, and a person to whom the guidance applies “must have regard to that guidance” – this might also deal with this point.

So, what happens if you don’t wear a face covering, and do not qualify under the exemptions or reasonable excuse provisions? The amending Regulations are silent, which means that the general PHR section on offences applies. A person commits an offence if they fail without reasonable excuse – which even if the lists in reg.6A and reg.6B were exhaustive is not limited to the excuses set out there – to comply with the PHR or GCs issued under it (reg.36(1)). Such an offence is punishable by up to three months imprisonment, or a £40,000 fine (reg.36(8)). As an alternative a constable may issue, to an adult, a fixed penalty notice of £150 (rising to £250 if not paid within fourteen days) under reg.37-42.

Personally, I feel that the general upper limit of punishment for offences under the PHR should have been lowered significantly for not wearing a face covering – even for repeat offenders, even when obviously dangerous. On the specific issue of care home residents, I would suggest that being a resident in a care home who does not wish to wear a mask when alone in your residence constitutes a reasonable excuse under reg.36, even if not reg.6B, and so could not be the basis for a prosecution or fixed penalty notice.