The Chief Secretary has issued a five page guidance in relation to face coverings, under Regulation 6C of the PHR. Under that regulation, a person to whom Regulation 6A or 6B applies “must have regard to that guidance”. This is not the strongest possible phrasing for the effect of Reg 6C guidance – in particular, it does not suggest that the guidance can alter the effect of either Regulation 6A or Regulation 6B. In practice, however, a person who does not wear a face covering because of their having regard to the guidance is likely to be able to claim a reasonable excuse. To me, then, guidance which restricts prima facie liability under Regulation 6A or 6B is more robust than guidance which extends it.
Much of the guidance is a repetition of the content of the PHR. In a number of areas, the guidance usefully makes it clear that particular circumstances would justify a reasonable excuse for not wearing a face covering.
There was already a reasonable excuse for eating and drinking while travelling, and eating and drinking in a premises where food is provided. Paragraph 4.1(e)(ii) explains that this applies “where eating and drinking is an essential element of that journey (i.e. provision of a dining experience…)”.
The guidance, “for the avoidance of doubt” states that a patient undergoing treatment in a health and social care setting who removes their face covering to facilitate treatment or recovery has a reasonable excuse (para.7.2). Similarly, and addressing a concern I raised in my original commentary, “In circumstances where a resident of a Care or Residential Home is alone, and is within the confines of their own room, or is with another person and for reasons of receiving health or care treatment or support does not wear a face covering, this will be considered a reasonable excuse for the purposes of the Regulations” (para.7.3).
The guidance, also, however, seeks to regulate operators of public transport in relation to mask wearing. I am not convinced that the structure of reg.6A-6C supports the use of reg.6C to do this. In particular, reg.6A and reg.6B are phrased as duties on those on public transport or in health case settings to wear face coverings. The guidance suggests a further duty on operators of public transport.
The public transport face covering rule applies to vehicles not operated by Isle of Man Transport – for instance taxis. Paragraph 2.7 states that “passengers who do not wear a face covering because they are exempt or have a reasonable excuse should not be refused access to transport services”. If this “should” is intended to constitute a legal duty on private taxi operators not to operate terms and conditions which differ from the Regulations, it seems good policy, but one right on the edge (or perhaps over it) for the scope of reg.6C – the “person” to whom reg 6A is directed is consistently an occupant of the vehicle, rather than the operator. The operator is only given a duty to inform, under reg. 6A(5), which does not use the language of person used throughout the section to mean occupant of a public transport vehicle. Similarly, a user of public transport who is requested to remove their face covering by the operator has a reasonable excuse under the PHR. In the guidance this is recast as a power by the operator to request removal, and then limited – to an employee removing their face covering subject to certain conditions, or to a brief confirmation of the identity of the user (para.4.2).
I would have preferred to see this regulation of public transport operators dealt with by an amendment to the PHR. Partly this is because of my concerns about whether reg.6C really reaches as far as regulation of operators of public transport, as opposed to guidance on how to comply with duties as an occupant. It is also, however, because of my preference for PHRs over GCs. One of the very positive moves of the new administration was to frame their response to the changing challenges of coronavirus through amendment to the Public Health Regulations, and so subject to scrutiny by Tynwald. This would have been a better way to deal with regulation of non-state public transport operators.
Peter Edge's Law Blog. 