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.

Two PHRs were made in April 2021.

PHR (Amendment) (no.11) was made on the 26^th of April. It amended the Regulations to apply the voluntary samples rules under reg.17 to be applied to Category B, as well as Category A, persons. This had a brief existence however, with reg.17 itself being removed by PHR (Amendment) (no.12) on 30^th of April.

The latter amendment made significant changes around border control. Some of these were backward looking, for instance providing for refund of testing fees for a person who had travelled to the Island sufficiently recently as to be in self-isolation (reg.2A). The principal amendments to the main PHR, however, introduced a regime where a person subject to a default period of self-isolation (reg.12) may elect to provide biological samples (reg.13A) and in doing so may satisfy the requirements of their direction notice or entry certificate allowing them or their household more freedom of action during the remainder of their isolation. This is laid out clearly in Schedule 2, which is not simply a (good) communication of the legal position, but rather the legal position itself (referred to as it is in reg.12 for Category A persons; reg.15 and reg.16 for Category B persons; and reg.18 for Category  persons). Given the nuances in the border control introduced by the changes – which had the general effect of reducing burdens on residents – this is particularly welcome.

 A further PHR was made on the 18^th of May 2021. The PHR (Amendment) (no.13) modified Schedule 2 to amend the requirements imposed on Category A persons in relation to self-isolation, and the provision and effects of a biological sample. Perhaps taking a leaf from the GC good practice of replicating an entire set of rules, rather than making textual amendments, an entirely new Schedule 2 is provided. The most important changes were that PHR (12) allowed exercise by a Manx resident if they tested negative within on arrival, while PHR (13) allowed a Manx resident who had only travelled to the UK to be released from isolation upon their negative test, except “no attendance at health or social care premises except to receive emergency medical treatment until day 10”; subject to a further test on day 6 to remain exempt from isolation.  A similar relaxation for Manx residents who travelled outside of the UK could only happen after a negative day six test.

The Final Report of the Review into the February 2021 coronavirus outbreak and its relation to the Isle of Man Steam Packet Company was published on the 18^th of May. There is a lot in the report, but I am going to concentrate on two legal issues.

Liability of Steam Packet crew for failure to self-isolate.

As the controversy unfolded, it was unclear to me whether there was no liability of crew for failing to self-isolate, or that there was a liability but it was decided not to prosecute. The review sees the criminal obligations upon Manx resident crew as now having been clarified and resolved: the current PHR Regs mean that individual Manx crew members who do not comply with the on-vessel risk management will not satisfy the conditions allowing them to avoid self-isolation (para.5.2.18), and Manx crew are aware of the need to satisfy the conditions.

Nonetheless, I think this is worth discussing at more length. Concerns have been expressed that there has been one law, and approach to enforcement, for Manx residents working for a state-owned concern; and another for normal individuals imprisoned for breaches of the coronavirus regulations under the EPA and the PHA. Unpacking the review shows, I think, that this is not the case.

Back in March 2020, the Manx government advised the Steam Packet that Manx resident crew were not required to self-isolate. Understanding of coronavirus, and the legal response to it, evolved rapidly throughout 2020, and one problem was that substantial weight was given to documents produced right at the start of the crisis, which did not necessarily keep pace with either the legal structures, or the advice of the Director of Public Health; and which were not always clear about the position of Manx resident crew (e.g. para. 2.3.3). In particular, a corporate certificate issued to the IOMSPC and applied to both resident and non-resident crew (para 2.5.4), was reissued even when the law changed to exclude Manx residents from the scope of such a certificate (para.2.5.5-2.5.9). A certificate issued in September 2020, listing both Manx-resident and non-Manx-resident crew, was not valid in relation to Manx crew.

The review argues that Manx resident crew needed to receive individual direction notices to impose self-isolation requirements upon them; so finds that until after the February 2021 outbreak “the official documentation issued did not require for Manx resident crew members to self-isolate” (2.3.7). This was the case even after December 2020, when a condition which seemed to require self-isolation by Manx resident crew was created, but not (in the view of the review) effectively (para. 5.3.12-13). It notes that individual direction notices are now being issued which allow Manx resident crew to avoid self-isolation so long as they adhere to on-board measures (para.5.3.15-.17).     

Manx resident crew then were not required to self-isolate because they had not been given individual direction notices. This raises a further problem, however. The border control rules are not structured so as to permit entry subject only to the restrictions in any individual direction notice. Rather, they prohibit entry unless an exemption is granted. To quote from the most recent version of the PHR, reg.11: “A person may not enter the Island unless that person is a Category A person or a person referred to in regulation 10(5)” (the latter being a person who remains in an area designated as a secure exempt area for the purposes of transportation, such a pilot in a secure waiting area). Category A persons, specified in Schedule 1, include Manx residents who have been registered as a Manx resident, who may travel freely to and from the Island, subject to various requirements including having a direction notice from the Chief Secretary (PHR, Schedule 1, para.6(10)). A direction notice may specify self-isolation (sch.1, para.6(13)), or exempt an individual from self-isolation (sch.1, para.6(14)): in either case, a direction notice is required.

Direction notices were not given to individual Manx crew until after the February 2021 outbreak. Under both the EPR and the PHR, Manx crew should have been individually registered and issued with DN (5.5.8), but this did not happen until after the February outbreak (5.5.9). The review states that there is thus “the risk that entry onto the Island by Manx crew members over that period was not in accordance with the regulations in force at the time” (para. 5.5.2). I think the risk is very substantial. So we seem to be in a position, for part of the pandemic, where there was either no requirement to self-isolate, or one which lacked legal force, but the same mistakes which led to this meant that the Manx crew had no legal right to return to the Isle of Man at all.

There were no prosecutions for crew entry contrary to PHR reg.11. The review explains this in unfortunate terms. According to the review, the Steam Packet and crew “acted in good faith, effectively on the advice of the Isle of Man government, in relation to the documentation required and being issued by the Cabinet Office, and as a result it is unlikely that any action would be enforceable against the company or individual crew members” (para. 2.5.11; repeated at para. 5.5.3).

There are some big issues underpinning this paragraph. The reference to good faith is particularly unfortunate – normally an honest mistake as to your criminal liability will not help with liability (as opposed to the decision to prosecute you or the sentence you receive) – and I can imagine at least some of those imprisoned for breaching self-isolation rules wishing to argue that they too acted in good faith. There are numerous authorities that ignorance of the law is no defence, for instance this 2018 Manx decision, and the rule is found in a wide variety of legal systems. More significant is the reference to the advice of the Manx government – although I do not think the prosecutorial authorities – as to what the obligations of the Steam Packet and crew were. Reference to enforceability is, again, not very helpful here. The impact of the executive appearing to authorise people to commit acts contrary to laws laid down by the legislature, which would be tried before the judiciary, is a very complex one: even leaving aside the current twist of that authorisation being by mistake rather than intent.

Much simpler, I think, would be to root the position of the Steam Packet crew in the Manx Prosecution Code. The decision to prosecute consists of two steps. Firstly, is there sufficient evidence to provide a realistic prospect of conviction against each defendant on each charge (the evidential test)? The review suggests that this test might be met in some cases. There is, however, a second stage. Is it in the public interest to bring a prosecution (the public interest test)? Common factors suggestive of a prosecution are listed in paragraph 17, factors suggestive of a prosecution not being needed are listed in paragraph 18.

Some factors suggestive of prosecution may be present here (for instance, “There is evidence that the offence was carried out by a group”), but the most important feature to me is one arguing against prosecution: “The offence was committed as a result of genuine mistake or misunderstanding (these factors must be balanced against the seriousness of the offence)” (para.18(b)). The weight we give to paragraph 18(b) should be greater where the mistake has been produced as a result of executive government guidance, and required an independent inquiry to nail down, than where a visitor has not read their direction notice properly, or has assumed it is a mere formality.

On the basis of the facts reported by the Review, I think there is a very strong argument that it is not in the public interest to prosecute Manx resident crew: strongest for crew before December 2020, perhaps less strong for any crew who were informed of a putative self-isolation requirement in that month and chose to ignore it. This does not indicate that other prosecutions brought for breaches of border control were, or would be, similarly not in the public interest.

Borders and maritime issues.

One of the points made by the report in section 6 is that the border of the Isle of Man, for entry purposes, is defined differently in different legal regimes, with the EPRs definition replaced with the PHRs (para.6.4-6.5). My feeling is that the pandemic has substantially increased policy and public focus on borders, and ideas similar to “Manx citizenship”. The debates over what entry controls are appropriate to apply to Manx residents, former residents, and those with a family connection to the Isle of Man, show that this is more than just a technical discussion about where Manx laws should be applied. One lasting impact of the pandemic, and one which chimes with the Brexit and post-Brexit period in the UK, may be a tighter focus on what the Manx borders are, and how they are controlled. It will be interesting to see if this comes up during the General Election to the Keys.

Another issue raised is the complexity of maritime issues for the Isle of Man. The focus on the report is on the Steam Packet, but a substantial number of vessels are now Manx registered. Last year, for instance, a Manx registered vessel made the news after it was assisted by HMS Montrose in making way in the Persian Gulf. There is a suggestion that the work of the Registry needs to be better understood within government (para. 5.6.9); but also that the report is not going to explore the complexities of jurisdiction over vessels (para.1.6.3). The Registry is a distinct entity within the Red Ensign Group, and at the moment the UK is the flag state in international law. Given the direction of travel in UK/Manx relations, however, the obligations upon Flag States for vessels on their register may be something to watch for the future.

[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.

Starting in 2002, the Isle of Man began to enter into international agreements under specific, delegated, authority from the UK (Agreement Between the Government of the Isle of Man and Government of the United states of America for the Exchange of Information Relating to Taxes, 3 October 2002)

I am aware of only one pair of linked twentieth century examples of the Isle of Man being given authority by the UK to enter into negotiations on its own behalf In 1952 the Irish Republic and the Isle of Man had entered into a reciprocal agreement in relation to social security. The Manx had accepted a single document for this agreement, which referred to “Ireland” throughout. The UK policy was to use twin texts, the British text referring to “Eire”, in order to recognise the position of Northern Ireland.

This reference to “Ireland”, in an international agreement made by the UK, was controversial at the time. The UK government took a low view of the Manx side of negotiations, privately describing the process as one in which the Manx had “been hoodwinked” by the Irish. When the agreement came to be renewed in 1954, the Manx government were unwilling to do this, instead wishing a single document referring to the “Republic of Ireland”. Morley of the Commonwealth Relations Office, although accepting that this insistence was contrary to the UK practice, explained to the Irish Authorities that the Governor had responsibility for this area, with the advice and consent of a Board of Tynwald, and that he had decided to hold to the decision.

Two new GCs later on the 23 March, all changes concerning moving home.

GC 2021/0064 deals with restrictions on movement. There are a number of changes to particular reasons justifying leaving home, all based on moving home.

Firstly, voluntary moves. It will be recalled that the justification based on a contractual obligation to move house was, with one very specific change of date, only applicable where a contractual obligation existed before lockdown 3 began. This has now been changed. The ground now covers moving to a new home (freehold or leasehold) “where that move is reasonably necessary to avoid financial detriment to the person for failing to comply with a contractual obligation or a term of a mortgage offer” (para.5(1)(l)). So a person may enter into a voluntary contractual obligation during the lockdown, which will then expose them to a financial detriment, that detriment then justifying leaving home to move house. This is the only financial detriment incurred since the start of the lock-down which operates in itself as a justification for leaving home – although we might argue that other grounds which do not refer to financial loss would result in financial loss if not recognised, the link is nowhere near as straightforward. For instance a tradesperson may carry out (paid) work at the home of another person, but only if essential for the safety of the property or the health and wellbeing of the residents (para.5(1)(ff)). Being able to move home having committed to doing so since the start of a lock down is not new (it was the case in January for instance). Previous iterations did not require that moving house would avoid a financial detriment (see for instance GC 2021/0018 para.3(1)(l)) The explicit recognition of financial detriment (which can include loss of profit as well as loss) as the basis for an exception may be controversial.

Secondly, involuntary moves. These are covered by para.5(1)(t), which is unchanged, and allows amongst other things people who reasonably believe themselves at risk of domestic abuse to move to other accommodation. For involuntary moves only meeting a landlord or agent at a rental premises to which the person is considering moving is now justified for both the mover and the landlord/agent (para.5(1)(u) and (v)). It is noteworthy that this section does not require that the premises to be viewed should be vacant.

GC 2021/0065 covers gatherings. The section dealing with support bubbles is tidied slightly (e.g. para 13.1.2). The new ground in the movement GC allowing viewing of properties by involuntary movers is recognising as a justification for meeting, but only in “a vacant dwelling” (para.24). The interaction of this with the new sections discussed just above make me think that an involuntary mover and a landlord may meet outside an occupied dwelling, but may enter a vacant dwelling together.

GC 2021/0063 makes changes to the gathering rules, but only in relation to “gathering for the purposes of support” (a.k.a. support bubbles).

The odd reference to “within their own, or one other household” is removed. A person covered by paragraph 13 may gather “with one other household” (para.12), so long as most of the Part 4 conditions are complied with (discussed in my earlier note), but also subject to specific conditions laid out in paragraph 13.

Paragraph 13 is partly clarificatory, but also makes some substantial changes. In terms of clarification, it now defines X households (being lone adult households entitled to use these provisions), and Y households (being one other household of any size, “provided that every member is usually resident in the Y household”). This “usually resident” is a limit on Y households, not X households. Other rules concerning leaving the house etc should mean that in most cases, every member of a household is usually resident – so what does this limit? One possibility is that households where a separated parent may on occasion have a child (as envisaged by para.5(1)(h) and (i) of the movement GCs)  are not eligible to act as a Y household because one member (the child) is not “usually” resident there.

If right, this does raise an odd outcome. The X household is a single adult with 2 children. The Y household is a larger family consisting of the other parent of the 2 children, and one set of their grandparents. The children can pass between the two households. The X household is entitled to bubble with a *different* household (so long as it does not have anyone who is not normally resident), but not with the household containing one parent and their grandparents.  

The lack of reciprocity I criticised earlier has been addressed – X can gather in the home of Y, for instance, but also “vice versa” (para.13.3). A car share as “necessary” for the gathering to occur is permissible – a useful addition allowing for instance X households to be collected by a member of Y household to be taken to the Y home (para.13.5). The exclusive nature of the X/Y relationship is made clear, but there remains no mechanism for discontinuing an X/Y relationship and starting another one at a later date (para.13.6).

Additionally, the focus on the homes of X and Y is diluted slightly. A gathering “may be within the home of either X household or Y household or outdoors” (para.13.4). So for the purposes of the gathering, the group of X+Y may meet outdoors. The restrictions on movement, however, do not generally allow a person to leave their home just to be outdoors – the nearest is the right to exercise. This has not been amended and it remains “to undertake exercise alone or with other members of his household” (para.5(1)(d); and a linked household is not part of your own household). The support bubble reason for leaving home is also unchanged, and refers explicitly to leaving “in order to visit a person within their own, or one other household for the purposes of support, as provided in paragraphs 12 and 13 [of the gatherings direction]” (para.5(1)(kk)).

It would have been better to amend para.5(1)(kk) to read “to visit a person outdoors, or within their own or one other household …”; but the explicit cross-reference in (kk) to paragraph 12 and 13 may be useful here. We could argue that the paragraph is intended to give effect to the rules in paragraph 12 and 13, and so should be read against their clear textual meaning to do so. If that is right, then a meeting outside between X and Y households is permitted even if mobile.