The formal notice of poll has now been issued for each constituency. I’ve done a quick gender breakdown, and comparison with the notice of poll for the last General Election in 2016.

Constituency	Total 2021	M/W 2021	Total 2016	M/W 2016
Arbory	4	4/0	7	6/1
Ayre	8	6/2	6	5/1
Douglas Cent	4	2/2	6	3/3
Douglas East	7	3/4	8	5/3
Douglas Nor	4	4/0	5	3/2
Douglas Sou	4	2/2	4	3/1
Garff	5	4/1	5	4/1
Glenfaba	7	6/1	3	3/0
Middle	5	3/2	4	4/0
Onchan	5	4/1	5	4/1
Ramsey	8	7/1	5	5/0
Rushen	4	3/1	5	5/0
TOTALS	65	48/17	63	50/13

Compared with the last General Election, nationally, a very similar number of candidates for the 24 seats, with a modestly higher proportion of women candidates (26% as opposed to 21%). Considering conversion from candidates to MHKs, the numbers are very small, and small changes in particular constituencies can have a big effect – for instance, if there had been a 42 vote swing in one constituency in  2011, 12.5% of the Keys would have been women, as opposed to the 8.33% who were elected (against 11% of candidates in that election being women). Nonetheless, the 2016 and 2011 elections had women candidates elected at very much the same rate as men. It will be interesting to see if something similar happens in September.

The elections are resolved in constituencies, rather than nationally, and so it is worth breaking those national figures down a little. The number of constituencies with no women standing has reduced substantially, from 4 to 2. In one constituency (Douglas East) there are more women than men standing. This is, perhaps surprisingly, not the first time this has happened in an election to the Keys. Marion Shimmin, the first woman MHK, was elected unopposed at a by-election in 1933 (so would be 0/1 on my table). In 2001 both candidates for the single seat in Peel were women (so would be 0/2 on my table). In two other Douglas constituencies there are the same number of men and women standing – Douglas Central (which was in this position in 2011) being joined by Douglas South. In both elections, there are 5 constituencies with only one woman on the ballot for the two seats.

The response to a useful Freedom of Information Request has now been published by the Isle of Man Government, on the freedom of information site. This link should lead to the response from the Department of Home Affairs.

The data provided covers March 2020 through to March 2021. In that period there were 215 arrests for coronavirus offences (which from the question asked, means offences under the EPR and PHR), 35 being arrests of juveniles. Seventy-one persons received a custodial sentence for breach of the EPR/PHR. Thirty-seven fixed penalty notices were issued.

The report by the Chief Constable, referred to in the FOI response, provides useful additional data.

• The 215 arrests were clustered, unsurprisingly, around the three lockdowns, with 84 in the first lockdown, 42 in the second, and 27 in the third, for a total of 153, or 70% of the total.
•  Coronavirus arrests outside of lockdowns never reached 9% of the total arrests in non-lockdown months. During lockdown one, nearly 50% of arrests were coronavirus arrests, dropping to under 30% in both lockdown two and lockdown three.
• The 215 arrests represent arrests of 190 different individuals (overwhelmingly, male adults). Seventeen were arrested twice, and four arrested three times (including three juveniles).
• The report includes data on convictions, which puts the seventy-one custodial sentences in context. At the time of the report, 87 offences had resulted in conviction. Although this isn’t broken down into multiple offences prosecuted against the same person, 20 of the 134 offences were part of “multiple cases brought against … 9 individuals”. If we are conservative, and assume that the 87 convictions were all in relation to different individuals, 81% of coronavirus prosecutions resulted in a custodial sentence.
• A total of 2361 reports were made from the public relating to coronavirus incidents. In the lockdown only (which is the focus of the report), there were 1968 reports. In the three lockdowns, 767 individuals were warned for breaching the coronavirus regulations.

A couple of final comments.

Firstly, fixed penalty notices were not available until late in April 2020. The biggest month for coronavirus arrests (April 2020, with 54 of 131 arrests equalling more than 40% of all arrests) had already been and gone. Nonetheless, it is striking how many more people were imprisoned for breaches of the PHR than received fixed penalty notices for these breaches. Not every PHR offence could be dealt with by a fixed penalty notice, but I would still have expected to see them having a bigger role. It may be, however, that the police chose to give warnings rather than fixed penalty notices wherever possible; so that a situation which was viewed as too serious for a warning was often also too serious for a fixed penalty notice. I think fixed penalty notices have an important role to play if we return to more legal intervention in the transmission of coronavirus in the Manx community, but it would be worth reflecting on why did not receive much more significant use in the past.

Secondly, 81% of convictions for a broad category of offences resulting in custodial sentences is striking. If someone has access to the Manx custodial sentences breakdown I would be very grateful for it, and will update the blog accordingly. In the meantime, a comparison with 2020 in England and Wales might be useful. A custody rate of 34% across all indictable offences (i.e. the more serious criminal offences) was noted as “the highest in a decade”. A useful public access overview from 2017, by Civitas, breaks down the percentage of offenders who received a custodial sentence by broad category of offence. The Manx EPR/PHR custodial sentence rate is higher every offence in Graph 2 of the report, which includes robbery (described in the report as having the highest custody rate, but other lawyers, like me, would want to finesse that to take account of the mandatory life sentence for murder), sexual offences, and violence against the person.

That the custody rate for EPR/PHR violations was extraordinarily high will not come as any surprise, and may spark another round of international interest in Manx sentencing policy. One of my ongoing criticisms of the EPR/PHR is that the power to create criminal offences under the Regulations was used too bluntly. Those creating offences under the Regulations invariably set the maximum sentence at the maximum allowed by law. Setting a different range of maximum sentences would have allowed communication to the judiciary of different degrees of seriousness for different violations. If there is a return to more legal intervention to deal with coronavirus, it would be useful for any criminal offences created as part of that intervention to reflect differing degrees of seriousness by differing maximum sentences. Knowingly violating a self-isolation direction following a positive test, for instance, feels to me a different order of magnitude of seriousness from failing to require customers to wear face masks in your shop.

At the end of July a GC moved France out of the standard UK based category, into Category 3 for adults seeking the vaccine exemption, and Category 2 for children using the secondary vaccine exemption.

GC 2021/89 has cancelled this, so that for Manx purposes France is, once again, categorised as decided by the English government.

At the end of July CoMin issued four directions under the new powers under the PHR to specify details for the vaccination exemption.

GC 2021/0084 adds Johnson and Johnson’s Janssen to the list of qualifying vaccination, with a two week period required following the full completion of the course of vaccination.

GC 2021/0086 departs from the English categories 1-3 by classing France as a category 3 country for the purposes of regulation 5A (so making travellers from France unable to use the vaccination exemption; but perhaps not invalidating vaccinations received in France – in any  case see below), and category 2 for the purposes of 5B (allowing children travelling with adults to whom the vaccination exemption applies). My reading of this is that a child who has been in France within ten days of entering the Isle of Man can make use of the secondary vaccination exemption so long as the fully vaccinated parent or guardian with who they travel has not been in France within ten days. So a fully vaccinated parent could travel to the UK to collect a child who has been, say, on a school trip in France; but could not collect them directly from France without losing the vaccination exemption.

GC 2021/0087 adds four clinical trials to the vaccination exemption, allowing those who have completed vaccination with Valneva, Novovax, Com-COV and Com-COV 2 more than 14 days before entering the Isle of Man to make use of the vaccination exemption.

 GC 2021/0088 deals with the issue of where a qualifying vaccination is received. The Regulations limit the vaccination exemption to vaccinations received in “relevant countries”. This direction defines relevant country as “any country”. So, so long as the other requirements for the vaccination exemption are met, the location in which the vaccine was received is no longer significant. This seems sensible, but does mean that vaccinations received in any of the more than 190 countries of the world will satisfy the exemption, which may pose administrative problems. Bhutan for instance, has been very active in providing its population with complete courses of vaccinations accepted by the PHRs. I have no idea what Bhutan’s proof of vaccination looks like.

The PHR (Amendment) no.16 makes significant changes to a number of aspects of the PHR. Unusually for PHRs, it was put before Tynwald before it was planned to come into effect on the 24^th of July. The July Tynwald was tremendously busy, however, and this item was placed as the only substantive item on a supplementary order paper. A vote to suspend standing orders to allow this supplementary order paper, and so voting on this PHR, failed. Tynwald returned to it – for technical reasons as PHR no.17 – on the 23rd of July. After a long debate, the amendment passed.

A number of minor drafting errors are corrected, for instance replacing “in accordance” with the better “in accordance with”. A number of substantial changes are made however.

One criticised element of the initial version of the vaccination exemption for entry into the Isle of Man was that it was based on an unnecessarily narrow idea of what fully vaccinated could be, assuming as it did 2 doses of a vaccine being required. The Amendment changes the “2+2 vaccination exemption” to the “vaccination exemption”, making substantial changes in the process.

Formerly, the “2+2 vaccination exemption”, did not recognise single dose vaccines. The vaccination exemption now requires completing “the full course of a qualifying vaccination” (reg.5A(2)(a)), followed by the passing of “the relevant period” (formerly a set two weeks). Additionally, the vaccination exemption now applies to those participating in a qualifying clinical trial (reg.5A(2)(a), to be recognised by CoMin under reg.5A(3)(c)). The vaccination or trial must have taken place in a “relevant country” (formerly qualifying country). This continues to include the Common Travel Area, but is extended to Category 1 or 2 territories (which I discuss in a moment), and any other country specified by CoMin. There is no power for CoMin to declare a country that meets these requirements is not a relevant country – so CoMin could expand the list, but not restrict it. In fact, a different feature of the PHR means this is not a problem.

Formerly, the exemption was only available to those who had not travelled outside the common travel area in the 10 days preceding their arrival in the Island. This has been expanded beyond the Common Travel Area to the CTA “or a category 1 or Category 2 country or territory” (reg.5A(2)(c)). The list of Category 1-3 territories is tied to the relevant English Regulations, but CoMin can by direction vary these categories, for instance deciding that a territory in Category 3 in the English Regulations is to be treated as Category 2 (new reg.5(10)). This means, obliquely, that CoMin can remove a territory from being a relevant country for vaccinations, by moving it out of Category 1 or 2. The power to vary category can apply to “any part” of the PHR as well as the PHR as a whole. So if, for instance, CoMin wished to allow travel from Malta, but not recognise Maltese vaccinations for some reason, the power could be exercised only for the relevant country element.

The exemption still requires that a person not have travelled outside this expanded area in the ten days before they entered the Isle of Man, regardless of when that was. I still think it would be useful to think about how to deal with non-travelling vaccination exemptions.

In relation to children travelling with parents and guardians entitled to the vaccination exemption, changes bring it in line with the changes to the vaccination exemption (for instance the expansion beyond the Common Travel Area). The most significant change, however, is in relation to age, with the upper limit for a child to take advantage of this exception without any testing being raised from 5 to 12 (the exclusion of Category A persons under 5 years from Schedule 2 is similarly moved to 12 year olds). A child of 12 or over could take advantage of this exception only with testing within 48 hours of arrival and then again on the sixth day following arrival. The problem I pointed out earlier, that there was no discussion of the situation of a child who refused to test, has been dealt with: a child who does not provide a biological sample “must self-isolate as directed by the Director of Public Health” (new reg.5B(5)).

A change of age is also to be found in relation to contact tracing. Under the Amendment, the Director of Public Health can no longer require a person under 12 to self-isolate under reg.15 (reg.15(1)(b) as amended). In giving a direction notice requiring self-isolation, the Director of Public Health would now insert the relevant information from Schedule 2 into that direction notice (reg.15(12)). Once a direction notice has been issued, the Director of Public Health is able to revoke or amend it – a power I think implicit in this section already, but as it appears to have been one that has been exercised as a result of the policy shift in relation to self-isolation under track and trace, one whose explicit inclusion is understandable (new reg.15(4)). Similar changes can be found in the requirement to isolate when suspected to be infected, a power which the Director retains for those under 12 (reg.16); and to the power to require a Category C person to self-isolate, which however, no longer extends to those under 12 years of age (reg.18(2) as amended).

The House of Keys election.

Two points discussed in the July Tynwald, only one under this PHR.

It will be recalled that the last amendment to the PHR specifically dealt with the amendment of the PHR while the House of Keys was dissolved, and so Tynwald could not necessarily approve amendments of a PHR. This power was initially limited to self-isolation requirements and periods, and samples and analysis. This has been expanded to allow a direction to “vary the application of any part of these Regulations” (new reg.9A(3A)). It remains limited to the period during which the Keys is dissolved, and subject to consideration at the first sitting of Tynwald following the day on which the House of Keys is first assembled.

In the same sitting, Tynwald approved the Elections (Keys) (Amendment) Regulations 2021. Existing regulations meant that an application for a proxy vote justified by a medical emergency had to be received by Friday 17 September. Mid-pandemic, however, a medical emergency might arise for a number of electors after this date, but before polling day. These Regulation would allow a person to appoint a proxy to vote on his or her behalf up until 22 September – the day before the elections.

Schedule 2.

During the Tynwald debate, there was some discussion of the detailed changes to Schedule 2, so I have added this (detailed) discussion here.

A number of changes were made in Schedule 2. A common theme is the removal of restrictions in the Schedule on non-emergency access to health and social care settings – this is not to say, of course, that individual direction notices may not include restrictions effectively recreating this limit.

Category A persons (residents of the Isle of Man returning from the Common Travel Area), are expanded to include those returning from Category 1 countries or territories. Category B persons are similarly redefined to exclude residents who have not travelled outside the CTA or Category 1 territories. Both types of returning residents would no longer be restricted in attending health or social care premises within ten days of their return.

Category C persons (non-residents permitted to enter who have not travelled outside the Common Travel Area), are expanded to include those returning from Category 1 countries or territories. Category D persons are similarly redefined to exclude those who who had travelled only in Category 1 countries or territories. In both cases, the person would no longer be restricted in attending health or social care premises within ten days of their return.

Category I persons – that is persons who are reasonably suspected of being infected – have the default self-isolation period dropped from 21 days to 10 days, and may test on the day of being given a direction notice to self-isolate, rather than on or after the ninth day of being given the direction notice. A Category I person who tests negative is no longer required to self-isolate.

Category J persons (contact traced persons who share a household with an infected person) similarly have the default self-isolation dropped to 10 days, and may test on the day of being given a direction notice, rather than on or after the ninth day. Where the sample is negative, the person may exercise, but otherwise must self-isolate as directed by the Director of Public Health. The explicit restriction on attending health or social care premises within ten days of their test would no longer apply. A Category J person, and their household, who has tested positive must self-isolate as directed by the Director of Public Health.

Category K persons (contact traced persons who do not share a household with an infected person) similarly have the default self-isolation dropped to 10 days, and need only test once. If they test negative, they may exercise, but otherwise must self-isolate as directed by the Director of Public Health. There was formerly a reference to the consequences of a positive test, but this has now been deleted.

The PHR (Amendment) no.16 makes significant changes to a number of aspects of the PHR. Unusually for PHRs, it was put before Tynwald before it was planned to come into effect on the 24^th of July. The July Tynwald was tremendously busy, however, and this item was placed as the only substantive item on a supplementary order paper. A vote to suspend standing orders to allow this supplementary order paper, and so voting on this PHR, failed.

So what would this PHR do if successful in Tynwald at some point? A number of minor drafting errors are corrected, for instance replacing “in accordance” with the better “in accordance with”. A number of substantial changes would, however, be made.

One criticised element of the initial version of the vaccination exemption for entry into the Isle of Man was that it was based on an unnecessarily narrow idea of what fully vaccinated could be, assuming as it did 2 doses of a vaccine being required. The Amendment would change the “2+2 vaccination exemption” to the “vaccination exemption”, making substantial changes in the process.

Formerly, the “2+2 vaccination exemption”, did not recognise single dose vaccines. The vaccination exemption would now require completing “the full course of a qualifying vaccination” (reg.5A(2)(a)), followed by the passing of “the relevant period” (formerly a set two weeks). Additionally, the vaccination exemption would now apply to those participating in a qualifying clinical trial (reg.5A(2)(a), to be recognised by CoMin under reg.5A(3)(c)). The vaccination or trial must have taken place in a “relevant country” (formerly qualifying country). This would remain including the Common Travel Area, but would be extended to Category 1 or 2 territories (which I discuss in a moment), and any other country specified by CoMin. There is no power for CoMin to declare a country that meets these requirements is not a relevant country – so CoMin could expand the list, but not restrict it. In fact, a different feature of the PHR would mean this was not a problem.

Formerly, the exemption was only available to those who had not travelled outside the common travel area in the 10 days preceding their arrival in the Island. This would be expanded beyond the Common Travel Area to the CTA “or a category 1 or Category 2 country or territory” (reg.5A(2)(c)). The list of Category 1-3 territories is tied to the relevant English Regulations, but CoMin could by direction vary these categories, for instance deciding that a territory in Category 3 in the English Regulations is to be treated as Category 2 (new reg.5(10)). This would mean, obliquely, that CoMin could remove a territory from being a relevant country for vaccinations, by moving it out of Category 1 or 2. The power to vary category can apply to “any part” of the PHR as well as the PHR as a whole. So if, for instance, CoMin wished to allow travel from Malta, but not recognise Maltese vaccinations for some reason, the power could be exercised only for the relevant country element.

The exemption would still require that a person not have travelled outside this expanded area in the ten days before they entered the Isle of Man, regardless of when that was. I still think it would be useful to think about how to deal with non-travelling vaccination exemptions.

In relation to children travelling with parents and guardians entitled to the vaccination exemption, changes would be made to bring it in line with the changes to the vaccination exemption (for instance the expansion beyond the Common Travel Area). The most significant change, however, is in relation to age, with the upper limit for a child to take advantage of this exception without any testing being raised from 5 to 12 (the exclusion of Category A persons under 5 years from Schedule 2 is similarly moved to 12 year olds). A child of 12 or over could take advantage of this exception only with testing within 48 hours of arrival and then again on the sixth day following arrival. The problem I pointed out earlier, that there was no discussion of the situation of a child who refused to test, would now be dealt with: a child who does not provide a biological sample “must self-isolate as directed by the Director of Public Health” (new reg.5B(5)).

A change of age is also to be found in relation to contact tracing. Under the proposed PHR, the Director of Public Health could no longer require a person under 12 to self-isolate (reg.15(1)(b) as amended). In giving a direction notice requiring self-isolation, the Director of Public Health would now insert the relevant information from Schedule 2 into that direction notice (reg.15(12)). Once a direction notice has been issued, the Director of Public Health would be able to revoke or amend it – a power I think implicit in this section already, but as it appears to have been one that has been exercised as a result of the policy shift in relation to self-isolation under track and trace, one whose explicit inclusion is understandable (new reg.15(4)). Similar changes can be found in the requirement to isolate when suspected to be infected, a power which the Director would retain for those under 12 (reg.16); and to the power to require a Category C person to self-isolate, which however, would no longer extend to those under 12 years of age (reg.18(2) as amended).

The House of Keys election.

Two points discussed in the July Tynwald, only one under this PHR.

It will be recalled that the last amendment to the PHR specifically dealt with the amendment of the PHR while the House of Keys was dissolved, and so Tynwald could not necessarily approve amendments of a PHR. This power was initially limited to self-isolation requirements and periods, and samples and analysis. This would be expanded to allow a direction to “vary the application of any part of these Regulations” (new reg.9A(3A)). It would remain limited to the period during which the Keys is dissolved, and subject to consideration at the first sitting of Tynwald following the day on which the House of Keys is first assembled.

In the same sitting, Tynwald approved the Elections (Keys) (Amendment) Regulations 2021. Existing regulations meant that an application for a proxy vote justified by a medical emergency had to be received by Friday 17 September. Mid-pandemic, however, a medical emergency might arise for a number of electors after this date, but before polling day. These Regulation would allow a person to appoint a proxy to vote on his or her behalf up until 22 September – the day before the elections.

Schedule 2.

A number of changes were made in Schedule 2. A common theme is the removal of restrictions in the Schedule on non-emergency access to health and social care settings – this is not to say, of course, that individual direction notices may not include restrictions.

Category A persons (residents of the Isle of Man returning from the Common Travel Area), are expanded to include those returning from Category 1 countries or territories. Category B persons are similarly redefined to exclude residents who have not travelled outside the CTA or Category 1 territories. Both types of returning residents would no longer be restricted in attending health or social care premises within ten days of their return.

Category C persons (non-residents permitted to enter who have not travelled outside the Common Travel Area), are expanded to include those returning from Category 1 countries or territories. Category D persons are similarly redefined to exclude those who who had travelled only in Category 1 countries or territories. In both cases, the person would no longer be restricted in attending health or social care premises within ten days of their return.

Category I persons – that is persons who are reasonably suspected of being infected – have the default self-isolation period dropped from 21 days to 10 days, and may test on the day of being given a direction notice to self-isolate, rather than on or after the ninth day of being given the direction notice. A Category I person who tests negative is no longer required to self-isolate.

Category J persons (contact traced persons who share a household with an infected person) similarly have the default self-isolation dropped to 10 days, and may test on the day of being given a direction notice, rather than on or after the ninth day. Where the sample is negative, the person may exercise, but otherwise must self-isolate as directed by the Director of Public Health. The explicit restriction on attending health or social care premises within ten days of their test would no longer apply. A Category J person, and their household, who has tested positive must self-isolate as directed by the Director of Public Health.

Category K persons (contact traced persons who do not share a household with an infected person) similarly have the default self-isolation dropped to 10 days, and need only test once. If they test negative, they may exercise, but otherwise must self-isolate as directed by the Director of Public Health. There was formerly a reference to the consequences of a positive test, but this has now been deleted.

In earlier blogs I’ve suggested that the Public Health Regulations definition of fully vaccinated (2+2) has been written for border control, but has an element of internal regulation (around self-isolation); and also that we might expect to see differential treatment between vaccinated and non-vaccinated people beyond the PHRs themselves.

Thanks to Trish McDonough (@trish1400) for sharing this from the Heritage Railways

There is no distinction between fully vaccinated and other Manx residents, but there is between fully vaccinated visitors, and other visitors. It is possible for adult visitors to the Isle of Man who fall under one of the Category A groups to enter the Isle of Man without being fully vaccinated – for instance a non-resident who was allowed to enter the Isle of Man on compassionate grounds. Such a visitor’s quickest route out of self-isolation is to give a negative biological sample within 48 hours of arrival, followed up by a second negative sample on the sixth day after their arrival. Such a visitor could be moving freely, but not on the Heritage Railways, after the negative results of their first sample. It is also possible for child visitors to the Isle of Man accompanying vaccinated parents or guardians to move freely on the same basis – again, not on the Heritage Railways.

I’ve suggested earlier some of the factors relevant to whether treating a non-vaccinated person differently is proportionate. I think a restriction like this on Heritage Railways is more likely to be justified than if the restriction were expanded to Manx public transport more broadly.

The big news in the Chief Minister’s statement of the 17^th of June was the change to border controls, and in particular the change to access for non-residents, and the testing regime for residents, who met the 2+2 vaccination criteria. The Chief Minister also commented on contact tracing:

“The protection offered by 2 + 2 means that we can now also take vaccination status into account as part of contact tracing where we have cases of the virus on-Island. If someone is fully vaccinated then, from 28 June they will no longer be required to isolate if they are identified as a close contact of someone with the virus. This will significantly reduce the impact on our society during an outbreak.”

The PHR (Amendment) (no.15), commented on earlier in this blog, comes into effect on the 28^th of June. It clearly gives effect to the border changes announced by the Chief Minister, but it is less clear how it impacts on contact tracing.

The principal section on the 2+2 vaccine exemption is the new reg.5A. For those covered by reg.5A, there is a good argument for saying that self-isolation requirements do not apply. Reg 5A(6) states: “A person to whom the 2 + 2 vaccination exemption applies — (a) is not required to self-isolate and need not provide a biological sample (and accordingly Schedule 2 does not apply to such a person where that person would otherwise be a Category A person and subject to that Schedule)”. Schedule 2 deals with border control, but there is a good case for arguing that this section applies to self-isolation requirements in general. It does not, however, apply to a person who is infected or reasonably suspected of being infected (reg.5A(2)(c)(i)).

Unfortunately, reg.5A has been drafted very much to address border control, and not as a free-standing section on vaccination status in the abstract, which can easily be applied to other contexts. In particular the definition of this regulation excludes a person who has “travelled outside the common travel area in the 10 days preceding their arrival in the Island” (reg.5A(2)(c)(ii)). A fully vaccinated person whose last journey outside the Isle of Man was outside the Common Travel Area (for instance to Spain in 2019) and did not spend 10 days in the CTA before they continued back to the Isle of Man does not fall within the definition of a 2+2 vaccinated person under reg.5A. Accordingly, if reg.5A is being relied upon to remove self-isolation requirements on 2+2 vaccinated persons, it will not cover every Manx resident who has had two qualifying vaccinations more than two weeks earlier.

It may be that other routes are intended to give effect to this policy, for instance by individual decisions on persons who would otherwise be required to self-isolate (reg.15(1)). Dealing with 2+2 vaccinated persons under two quite different parts of the PHRs based on whether they had travelled outside the CTA within ten days of their (perhaps historic) last entry to the Isle of Man would not be ideal.  In any case, if 2+2 status becomes more important for activities other than leaving and returning to the Island, an amendment of reg.5A to deal with the person whose last journey outside the Isle of Man was some time ago would be worth considering.

The full academic article with this title will be appearing in Amicus Curiae later in 2021. This is an open access academic journal, which means that the full text will be freely available here once it appears. In the meantime, here is the abstract of the paper – which except for the incorrigible law nerds, may be more than enough!

The Isle of Man, a self-governing Crown Dependency, developed its own response to the global pandemic, including strict border controls and periods of lockdown. In 2020, this was given legal effect through the declaration of a formal state of emergency, while in 2021 similar measures were implemented under public health legislation without a state of emergency. Framing the 2021 lockdowns as a public health crisis led to a more tightly focussed response than the 2020 framing as a national emergency. Within this narrower range, however, the structure of the public health legislation as implemented provided less democratic accountability than the emergency powers legislation, and reduced the emphasis given to the rules as laws, leading to a decrease in formality in relation to both creation and publication of these legal rules, and exacerbating a blurring between law and advice. These disadvantages were not, however, intrinsic to the public health legislation itself, and if corrected the public health response is to be preferred.

With the introduction of a distinction between those who are fully vaccinated and those who are not, the latest iteration of the Public Health Regulations marks a significant shift. One concern expressed, including in Tynwald, was that such a distinction is discrimination; another was concern over an element of compulsion. In this slightly more abstract blog, I will discuss some of the issues raised by this shift.

Mandatory vaccination policies are, globally, extremely common. A 2020 survey identified more than 100 countries with a nationwide mandatory vaccination policy, with 59% of those backed by penalties against those who do not comply, with financial and educational penalties (typically refusal of school enrolment, for instance in France) the most common. A number of countries distinguish between vaccinated and non-vaccinated travellers either by requiring vaccination to enter from a high risk country (for instance in Spain), or by altering isolation periods for fully vaccinated persons (for instance in Canada).

What limits are there on incorporating vaccination status into the Manx legal response to the pandemic?

The absolute limit on requiring vaccination under the PHA.

The Public Health Act 1990 s.51(E) prohibits PHRs made under s.51B (which allows PHRs regulating  international travel including quarantine and prohibiting the entry of persons) and s.51C (which allows PHRs creating other restrictions on persons, things or premises) from “requiring a person to undergo medical treatment”. Medical treatment “includes vaccination and other prophylactic treatment”. This provision is closely modelled on the UKs Public Health (Control of Disease) Act 1984 s.45E. Neither have been the subject of judicial consideration, which makes interpretation more difficult.

I think there is a distinction for this section between “required to” and “required in order to”. A PHR which required particular classes of person to undertake vaccination, and imposed criminal sanctions for persons who refuse, would be prohibited under s.51(E) – even if proportionate to the public health challenges. A PHR which required persons to undertake vaccination in order to do something, however, would not fall under this absolute requirement, although as discussed below it might fall foul of other, qualified, requirements.

If this view of the scope of s.51(E) is right, then distinguishing clearly in the PHRs between a requirement to, and a requirement in order to, would reduce the risk of a challenge under this provision of Manx law. As noted, however, neither this provision nor the UK equivalent has been explored by the courts, even in passing. If there is significant doubt about the correct interpretation of s.51(E), it may be worth a clarifying amendment to the section.

Limits on requiring vaccination in order to do something else: Fundamental rights.

It is still possible, however, for a “requirement in order to” to constitute a breach of fundamental rights protected by law. The WHO has recently recognised that “threats of imposing restrictions in cases of non compliance … [limiting] individual choice in non-trivial ways by making vaccination a condition of, for example, attending school or working in particular industries or settings” can constitute mandatory vaccination. This type of mandatory vaccination can raise issues when it imposes a burden on a fundamental right.

The Human Rights Act 2001, and the European Convention on Human Rights to which it refers, could be the basis for a number of arguments around for instance Article 8 (the right to privacy) and Article 11 (the right to association). In relation to compulsory childhood vaccination, failure resulting in exclusion from school, the European Court of Human Rights has very recently shown considerable deference to the decisions of the state. A requirement for vaccination in order to do something would be likely to survive ECHR challenge if it could be viewed as proportionate. I return to proportionality below.

Limits on requiring vaccination in order to do something else: Discrimination.

The PHRs now clearly distinguish between vaccinated and non-vaccinated persons, but not every distinction is discrimination. The same PHRs, and their predecessor EPRs, distinguish between people who are infected with coronavirus and those who are not for instance; and in the penal sections between those who have been found guilty of an offence and those who have not. Concerns about discrimination are not so much about the drawing of a distinction per se, but that it is either not lawful, or not just, to do so.

An important point to make here is that we find guarantees against these sorts of distinction across the Manx legal order. Equality norms pervade the legal order, and manifest in particular laws such as the Equality Act 2017, and the Human Rights Act 2001, and can have a subtler impact through the influence of international law. When someone suggests that a particular piece of policy is against the Equality Act 2017 they do not necessarily mean that the Equality Act prevents that policy making; rather they mean that the policy is incompatible with the equality norms it exemplifies (and which are to a large extent also exemplified in the Human Rights Act).

That said, groups protected by the Equality Act, and understandings of discrimination based on the Equality Act, are particularly potent. They also usefully illustrate the importance of proportionality in considering these issues.

Arguments that the unvaccinated per se legally constitute a group capable of being discriminated against are likely to be explored globally. The importance of this is that discriminating against someone because they are a member of a group sharing a protected characteristic is normally characterised as “direct discrimination”. Direct discrimination is very difficult to justify, and the Equality Act only allows justification of most direct discrimination in very narrow circumstances. If vaccinated people are not characterised as a group, however, the idea of “indirect discrimination” is much more important.

Under the Equality Act, indirect discrimination is when a generally applied policy puts those sharing a protected characteristic “at a particular disadvantage” and it is not shown “to be a proportionate means of achieving a legitimate aim” (Equality Act 2017 s.20(2)). To dodge a distraction into the reach of the Equality Act into the PHRs, let us imagine that a restaurant adopts a policy of only allowing 2+2 vaccinated persons access to a confined dining area. Could that be indirect discrimination?

One line of argument would be that the restaurant is indirectly discriminating on grounds of age and of disability. If it is impossible for almost any 18 year old to secure a vaccine , and an 18 year old is refused entry because they are not vaccinated, this could be indirect age discrimination. If a person who is unable because of their disability safely to be vaccinated is similarly refused, this could raise issues of indirect disability discrimination. In both cases, however, the restaurant could seek to “show it to be a proportionate means of achieving a legitimate aim”.

So whether our concern is the impact of distinguishing between vaccinated and non-vaccinated persons in their exercise of fundamental rights, or on indirect discrimination, the central issue is likely to be whether the impact is proportionate.

Proportionality.

This emphasis on proportionality means that accepting a distinction between vaccinated and non-vaccinated persons is not a single decision. Every time the distinction is drawn, consideration needs to be given to whether it is a disproportionate burden on the exercise of fundamental rights, or on a group sharing a protected characteristic. How should this consideration proceed?

The Council of Europe Committee on Bioethics has suggested:

“One should also take into account those individuals who, for medical or other reasons, cannot be vaccinated, and keep in mind that test results (and in the case of travel also quarantine) provide alternative means to vaccination certificates when withdrawal of some public health measures is considered. Furthermore, as underlined in our statement on “COVID-19 and vaccine”, referring to the principle of equitable access to healthcare laid down in Article 3 of the Oviedo Convention, particular attention must be paid to individuals in vulnerable situations and to the exacerbation of inequalities within such groups due to the public health crisis, including in their access to vaccination.”

Every “requirement in order to” laid down in the pandemic laws should be scrutinised carefully with these principles in mind, particularly in relation to the protected characteristics under the Equality Act 2017. Scrutiny should be particularly close where the impact on the non-vaccinated individual is more serious – so to my mind requiring vaccination to go to a nightclub is easier to justify than requiring vaccination to practise a particular profession. It should also be particularly close where there is no alternative route to the same end – so to my mind a requirement that all persons entering the Island be fully-vaccinated would require stronger justification than one which imposes differing isolation.