Five new GCs made, covering key aspecta of the internal response to the pandemic. Each GC extends until 6 April.

GC 2021/0057 concerns closure of educational institutions. There has been no change since GC 2021/0052, made on the 12^th of March. In particular, there has been no restoration of limited school opening for, inter alia, children of essential workers.

GC 2021/0058 concerns closure of child care service providers. There has been no change since GC 2021/0054, made on the 15^th of March. In particular, all child care service providers remain closed except childminders who may open their premises to an essential worker permitted to leave their home (para.2(c)). One might have expected to see provision for the opening of premises for provision of childcare to the children of DHSC workers covered here, but there is no mention of this, which is dealt with exclusively in GC 2021/0059.

GC 2021/0059 concerns closure of premises. The existing Schedule, detailing affected premises, is retitled Part 1, but is essentially reproduced from the earlier version. The only change is in relation to the provision of childcare. Government premises can remain open where there is a requirement for attendance of on-Island essential workers and maintance of essential operations”; but added in this iteration is “in the case of a premises designated by the Department of Education, Sport and Culture a requirement confirmed by the Department of Health and Social Care for the purposes of provision of child care care as set out in Part 2 of this Schedule”.

The new Part 2 then sets out, at much more length than for the other premises discussed in Part 1, what may be open and under what conditions. Key to this is the creation of a new category – “a DHSC worker”. It will be recalled that “essential worker” is a well-established term, appearing in this GC, but also in relation to childcare. DHSC workers are largely a subset of essential worker, being “an employee, contractor, agent or other person working for or on behalf of or carrying out any function or duty for the Department of Health and Social Care” .

Children of DHSC workers may attend designated premises “in order to enable those DHSC workers to perform their duties for the DHSC”.  The only designated premises are “the Childcare Hub”, aka the National Sports Centre. The Childcare Hub may be open subject to risk mitigation measures applicable to all open premises, but also to further conditions. To recap – the general risk mitigation measures require staff to maintain appropriate social distancing, staff to as far as possible ensure others do so; and “ensure that adequate hygiene measures including face coverings or other PPE are put in place and used at all times where reasonably practicable”. The Childcare Hub has a further constraint – children are to be separated into Childcare Groups of no more than eight children, where possible made up of as few households as possible and placing siblings within the same group (note these are different rules). “A Childcare Group may not mix with another Childcare Group”.

One of the features of the GCs in the PHR lockdowns has been the attention which has been given to communicating clearly to the public. A provision purely to do with childcare for DHSC Workers may have been better in the specialist childcare GC. In particular, the interaction of the two could get fiddly if they are ever read as in tension. The new iteration of both GCs was signed at 18.17 on the 19^th of March, so one cannot even easily prioritise the later in time. One way to deal with this tension is to recognise that the childcare GC is dealing with normal childcare services, and this is a special, emergency, service, so that the specific provision in this GC should always take precedence. This interpretation is, perhaps fortuitously, helped by a very slight difference in the language of the GCs – the Childcare Hub is allowed to open for “the provision of child care”; the child care GC governs “child care services” meaning “the services provided at a child care day centre (e.g. a nursery) or by a childminder”.

GC 2021/0060 deals with restrictions on movement. The only substantial change is a new ground permitting a person not in self-isolation to leave their house. Para 5(1)(kk) allows you to leave home “in order to visit a person within their own, or one other household for the purposes of support, as provided for in paragraphs 12 and 13 of the direction notice made under Part 7A of the Regulations in relation to events and gatherings”. I  will return to this in a moment, but it is odd that you can leave home to visit a person not within their own household – given that the term used is “purposes of support”, and not to provide support, I am not sure what would be lost by removing “or one other household” from this section.

So this brings us to GC 2021/0061, dealing with events and gatherings. There are some minor grammatical corrections and clarifications, and two substantial changes, both tying in with changes noted above.

In relation to childcare, it is made clear that “a person may gather at an indoor place at which education or childcare is being provided” (para.17). This was probably not needed, given that this line of GCs has provided for some time that “a person who is a customer or service recipient may attend a shop or business premises not required to close under any other direction notice” (para.10); but it is a useful restatement.

The other change links to the new ground for leaving home for the purposes of support. Single adults living alone, and lone parents (I would take as a necessary implication parents or guardians) and their non-adult children, “may gather within their own, or one other household, for the purposes of support” (para.13). They need comply with only some of the general conditions in part 4 of the GC (para.12). Part 4 usually requires that persons permitted to gather comply with any special restrictions specified in a GC or PHR, “taking appropriate measures to mitigate the risk of transmission of infection with Coronavirus are adhered to, which shall include any protective wear, face coverings, social distancing or other public health guidance published on www.gov.im”. This category of gathering is, however, specifically exempt from the need to wear protective wear or face coverings or to observe social distance.

Unfortunately, this drafting does not really take account of the fact that it takes two to gather. A person covered by para.13 may gather within their own household – with whom? The GC does not address the position of a person who is not covered by para.13. They may also gather within “one other household” – what of the duty of the householders with whom they gather not to form gatherings? It also blurs the idea of a physical house with a social household – I can gather in a house, or with a household, but “within a household” feels something of a strange mix.

These provisions are intended, I think, to implement part of the idea of a linked household, comparatively long-established in the English Regulations. Linked households are much more organic to the English regime however, in particular for many purposes treating the linked households as single household. The GC does not take that approach, so for instance members of a supported household may not exercise outside the house with their supporting household. It may be worth considering whether redefining household to include a linked household across different parts of the PHRs/GCs would work.

The English approach also deals specifically with changing linkages between households. There is no provision for that in the Manx GC. One possible reading is that “one household” means one at a time, so there is no need for provision for separation. Given this would allow a person qualifying as entitled to support to gain it from an unlimited number of households in rapid succession, this seems unlikely on policy grounds; it would also make the reference to “one other household” entirely unnecessary (bi-location aside). More likely the right under para.13 is intended to be exercised only with a single other household for the duration of the GC, or perhaps the GC and its successors. This would match my earlier interpretation of “one household where a household member will look after the child” in the restriction of movement  regs (para. 5(1)(z)(iiii)). The focus on the single-adult household permitted to link, rather than the relationship, also means that the position of a household linked to by two different single-adult households is not considered explicitly. Again, policy would suggest this should be read as an exclusive relationship: no more than two households may be linked.

Two GCs, which between them make important changes to childcare arrangements for essential workers.

GC 2021/0054 deals with child care service providers, and replaces its predecessor. The only substantive change is to paragraph 2, which is notably clearer than the earlier version. The new provision makes it clear that premises providing child care services, while generally closed, may be entered by residents, and by persons required for essential maintenance of essential operations (para.2(a),(b)). Childminders, and childminders only, may also be open to a person who performs an essential service and who is permitted to leave his or her home (para.2(c)). Read literally, this would not allow a child of such a person to be taken to the premises, which would rather defeat the point – so despite the plain words of the paragraph, I think it should be read as including the child of such a person. If that is the case, we need to look to the movement GC to see when a child may be taken to a child minder. So this provision opens childminders for children of essential workers.

GC 2021/0055 deals with restrictions on movement, and replaces its predecessor. The only substantive changes involve childcare and education. Para 5(1)(z) allows a person, in order to attend an open work place, to take a child to and from child-care – note that this requires that the person does so in order to attend a work place not simply to work, so an essential worker who works from home will not be covered. There is an odd bit of drafting in relation to children. Given that para 5(1)(z) is addressed at workers, not their children, it would have been useful to make it clear that children may travel; but what has been added is the right of the parent or guardian, and the person who will care for the child, to accompany the child between (para.5(1)(z)(vi)(a)). The latter is new, and sensible, the former is already in the provision, and might be usefully replaced by an explicit recognition that the child will be travelling to where they will be cared for. Another useful addition to travel is the right of an unaccompanied child to make the journey themselves, “where appropriate” (para.5(1)(z)(vi)(b)).

In relation to the conditions for childcare, it is useful to distinguish between professional education and childcare, and more informal arrangements.

The person can take the child to open education or childcare premises, at the moment (because of GC2021/0054), allowing them to take advantage of a childminder. There is no restriction on household mixing in relation to childminders. So if a childminder is otherwise legally permitted to take two children from different households at the same time, they can continue to do so. Given this is the case, it is obvious they could take children from different households on different days. This is quite a contrast with informal arrangements.

Turning to informal arrangements, the person can take the child to the residence of a family member who will care for the child; or “one household where a household member will look after that child”. The last is a variant of an earlier provision which talked about households where the household member “would normally look after the child”. The new drafting might seem to make redundant the explicit discussion of family members, which formerly allowed family members who were not the usual childcare option to step in. One possibility, however, is that different family members households may care for a child at different times, while there can be only “one” non-family household. “One” has been introduced in favour of the more general “A” in the predecessor, so I think this is probably the right reading. For both informal options, the only other children who can attend that resident or household “at any time” are children who ordinarily reside there (para.5(1)(z)(iv)). The words “at any time” have been added to this version, which I think changes the law – not only may an informal carer not import children from two households at once, but now they may only import children from one household at any time.

GC 2021/0052 covers educational institutions. It does not repeal it’s predecessor, but is intended to come into effect on the 15th of March, when that predecessor expires. It makes no changes.

GC 2021/0053 covers child care institutions. It does not repeal it’s predecessor, but is intended to come into effect on the 15th of March, when that predecessor expires. It makes no changes.

Signed at 21.30 on 10 March, the PHR (Amendment) (no.10) 2021 makes changes to the right to exercise for self-isolating persons which had been created by the PHR (Amendment) (no.9) 2021, signed at 17.40 on 10 March. So my comment on no.9 is accurate for a period of a little less than four hours, and was inaccurate when written (because no.10 had already come into force before it was publicly available).

This PHR adds to all three rights to leave self-isolation to exercise a requirement that no person in the household is infected (new reg.15(5), 20(5B), 21(5AA)). This is described as a clarification, but it is actually a change. The 17.40 amendment specifically stated that a person could exercise in company with a member of their household who is not infected – a limit on the company for exercise, not the right to exercise, which did however consider the position of a person in a household with an infected person. It is a sensible, and clear, change.

This PHR also adds to the category B right to exercise an explicit requirement to wear a face covering and keep a distance of 2m from any person not a member of the household (reg.15(6)). In doing so it brings category B exercise in line with category C – clearly the drafters were influenced by my suggesting this some 10 hours after they had made this change. It is a sensible, and clear, change.

An amendment to the PHR (comparatively unusual in the last two lockdowns, where changes to GCs have tended to make the detailed changes) published overnight. The PHR (Amendment) (no.9) Regulations 2021 makes a number of important changes, as well as some minor changes to phrasing.

Firstly, in relation to contact tracing. Formerly, a person who the Director of Health reasonably suspects might be contaminated could be required to provide the Director with contact tracing information. This amendment extends the power to anyone else who the Director reasonably believes “may hold information which is relevant to contact tracing in relation to” that person (new reg.9(1A)).  Under the existing, generally applicable, sections of the PHR failing without reasonable excuse to comply with the PHR is an offence (reg.36(1)(a)), as is “knowingly or recklessly [providing] false or misleading information” (reg.36(2)(a)). Both offences are punishable by up to 3 months in prison, or a fine of £40,000. Alternatively, constables may offer a fixed penalty notice for failure to disclose the information requested (reg.37). So there is a legal requirement, backed by serious sanctions, for schools, employers, operators of hospitality venues, and private individuals to provide accurate information relevant to contact tracing.

Secondly, in relation to self-isolation, there is now a limited right to exercise for some self-isolating persons. A category B person (i.e contact traced) whose first test has shown that they are not infected may exercise for one period of up to one hour each day, either alone or with a member of their household who is not infected (reg.15(4)). Contrary to the statement in the guidance note, unlike category C persons exercise, which is discussed in the next paragraph, there are no specific rules about mask use and social distancing – slightly odd given that the majority of the persons discussed in the paragraph below derive their status from this category B person. It will be recalled, however, that all exceptions to the restrictions of movement – including the ability to exercise – are subject to overarching limits including taking “all reasonable steps to mitigate any risk associated with leaving the person’s home” (GC 2021/0050, para.4). A person exercising under this part of the PHR would be very well advised to follow the restrictions discussed in the paragraph below. A revision might usefully apply them explicitly to this section, particularly as the guidance note states to be the case already.  

A category C person (i.e. cohabitee with a category A or category B person) who is living with a category A person may do the same, provided that the category A person has been shown in two tests not to be infected (reg.20(5A)). Unlike reg.15(4), there is no explicit limit on exercising with an infected member of your household, but as they are not permitted to leave the house, it is not necessary in either provision. When doing so, they must wear a face covering and maintain a distance of at least two metres from any non-household member (reg.20(8)(a)). The right, and the limit, is largely replicated for a category C person who is living with a category B person, but in this case the category B person need only to have been shown in one case not to be infected (reg.21(5A), 21(6)(a)). It does not, however, apply to a category C person living with a category B person who the Director of Public Health reasonably suspects may be infected (reg.21(5B)). So if your household is self-isolating because of contact tracing, and the contact in your household has tested negative, the right to exercise applies.

GC 2021/0050 deals with restrictions on movement, and repeals its predecessor.

The most substantial change refers to people who are required to be in self-isolation (whether Category A, B, or C) rather than the general public. Such persons were formerly only permitted to leave home in accordance with the Regulations, or conditions of their direction notice. To this is now added as covered by “paragraph 5(1)(t) subject to complying with the conditions in subparagraphs 5(1)(t)(v) and (vi)”. This is an unfortunate departure from the emphasis GCs have given so far on being as straightforward as possible given the need for the public to understand the new restrictions which apply to them as quickly as possible. It might have been better to have stated explicitly what was added to the instances when a self-isolating person could leave home, even at the risk of repetition.

So to be explicit, what has changed is that a self-isolating person who reasonably believes themselves to be at risk of domestic abuse, or is no longer entitled to remain at their home and is required to leave, or reasonably believes that a medical condition means their home is no longer somewhere they can live safely, or where “the situation is an emergency and it is necessary to move” may move to other accommodation, or in case of the last emergency ground “temporarily wait outside their accommodation until the emergency is resolved” (para.5(1)(t)). When doing so, as well as comply with the general conditions in para.4, they must wear a face mask and maintain a distance of 2m from anyone who is not a member of their household (para.5(1)(t)(v)); and if they move to accommodation shared with others, those others become Category C persons (para.5(1)(t)(vi)) (although I am not sure the last point is properly described as a “condition” of the person leaving their home).

In relation to the general public:

Some rights are expanded to incorporate dog walking. The right to undertake exercise alone or with members of your household is amended: “including a pet dog” (para.5(1)(d)) – bearing in mind the general requirement that “it is not reasonably practicable to achieve the purpose from the person’s home” (para.4(a)). Caring for a vulnerable person similarly has added “(including exercising the vulnerable person’s pet dog)” (para.5(1)(f)(i)).  There have not, however, been any changes to the gathering rules about breaching another person’s self-isolation.

Thinking about dogs owned by people in self isolation, there are a range of problems in applying this new ground to exercising their pets. The boundary issue remains for a dog left outside a house (now in GC 2021/0034, rather than the GC I first identified the problem for); and the gathering GC allowing breach of another person’s self-isolation to care for a vulnerable person has not been amended to include exercising a vulnerable person’s pet dog, nor dropping the urgency of the breach below “preserving life or property”. Nor is every self-isolating person a vulnerable person (this is given a specific definition in para.5(3), which requires that the person be less able “to protect himself or herself”). As a result, I think this change is not as wide as was trailed in media reports – it does not apply to exercising the dog of a person in self-isolation.

It looks like there should be guidance on dog walking on the IOMG website suggesting ways to exercise a dog for a self-isolating person (but I cannot find a live link to the detail at the moment). My view is that IOMG guidance can only put conditions on the rights in the GC, not create new ones. To give effect to what appears to be IOMG policy on walking dogs in self-isolating households, the gathering GC would need amending.

The right of a child to go to the home of parent of guardian is, on the other hand, restricted. The child may only do this when the only other children who attend that home are children who ordinarily reside there (para.5(1)(i)). Aimed at preventing household mixing, a narrow reading of this new restriction is that a parent may not bring two households of children into their house at the same time, rather than requiring the parent to choose for the duration of the lockdown (had the paragraph been worded as “ordinarily attend” I would have read this more widely; and the different wording in para.5(1)(z) I think supports this).

The right of a person to move to other accommodation in circumstances of, amongst other things, domestic abuse, is rephrased and expanded. I have already discussed it in relation to self-isolating persons. The broadest ground, an emergency where it is necessary to move, now allows a person to wait outside their accommodation until the emergency is resolved (para.5(1)(t)). There is now a specific condition covering every ground covered by this right – that the person wear a suitable face covering and maintains a distance of at least two metres from anyone who is not a member of their household (para.5(1)(t)(v)).

Three new GCs on the 8^th of March, and published overnight. None of them expressly revoke their predecessors, but all three of these predecessors stated their expire at the moment its replacement is stated as beginning. There is thus, no need to rely upon implied repeal to explain the relationship between the earlier and the later GCs.

GC 2021/0047 deals with educational institutions. Apart from one minor punctuation correction, there are no changes.

GC 2021/0048 deals with child care service providers. There are no changes. I am still finding it very difficult to understand paragraph 2, which provides (in full): “All premises providing child care services shall be closed in accordance with this Closure Direction to all persons save for those with a responsible body residing on the premises or whose presence is required for essential maintenance of essential operations”.

GC 2021/0049 deals with restriction of movement. There is one useful clarification in para.3, making it explicit that a category A-C person may leave their house in accordance with the Regulations as well as with a direction notice, and some minor tidying.

There is an important addition in relation to childcare. The provisions allowing an essential worker whose work place is not closed to take their child to be cared for formerly applied to children who would be cared for at a family member’s home, or a household where they were normally cared for. Taking a child to “the premises of a person providing education or childcare to whom paragraph 2 of the Schedule applies” (para.5(1)(z)(i)), last seen in GC 2021/0033) has been restored. The conditions for care in a household remain the same – so only overnight care for essential workers by a grandparent, and there is a requirement that “no other children attend that residence or household, other than children who normally reside there”. These conditions do not apply to the premises under para.5(1)(z)(i) – opening up the possibility of caring for children from multiple households. The right of a student to leave home to attend educational premises,  is restored, again with a reference to para 2 of the Schedule (para.5(1)(aa), again last seen in GC 2021/0033).

So paragraph 2 of the Schedule is doing some significant work. Unfortunately, it is not quite the work it was originally drafted to do – an issue that has been in the GCs for some time and which I had not picked up before this restoration. The Schedule is the list of essential services, cross-referenced to para.5(1)(b) which states that a person may leave home “to perform the duties of his or her office or employment in the provision of an essential service as defined in Part 3 of this Prohibition Notice”; which then defines “essential service” in part to mean “a service or business described in the Schedule” (para.6(a)). So para.2 of the Schedule is one of the essential services which justify a person leaving home to deliver. It covers:

“Persons providing childcare, and essential education support, teachers and educational social workers and other associated professionals whose work is essential in order to support children who need it during the period that this Prohibition Notice remains in force but only to the extent permitted and in accordance with any Closure Directions made under the Regulations in relation to educational institutions and child care service providers”.

So para 2 does not apply to particular premises, but to persons delivering particular services – which of course may be delivered separately from a particular premises. The best way to resolve this is to read the reference in the GC to premises at which these persons typically deliver these particular services.

This *does not* reopen child care and educational institutions. It is intended to mean that when they reopen for particular purposes and under particular restrictions, the restriction on movement GC will not need amending to allow children of workers to go to the newly open institutions. All workers whose workplace is not closed may take their children to the premises, family member or usual household where they are cared for under para.5(1)(z); students may “attend the premises of a person providing education to whom paragraph 2 of the Schedule applies” (para.5(1)(aa)); and “the child of a person who provides an essential service” may leave home “to go to a place to be cared for (para.5(1)(g)). What of children of non-essential workers? If childcare settings opened for those children, and we did not read student and education as including recipients of childcare as well as education (and remember, both are covered by paragraph 2 of the Schedule), it is difficult to see an explicit ground allowing that child to leave home to go to childcare (as opposed to their parent, who may leave home to take them there). So the best reading is that para (aa) covers both sets of provision.

As is usual, the GCs replace entirely predecessor GCs on the same topic. Unusually, however, the new GCs do not revoke the previous ones. In three cases, this is because the previous GCs already incorporated an expiry of 00:01 on 8 March, the moment the new GCs come into effect. GC 2021/0041, however, had an expiry of 00:01 on 20^th March; while its replacement GC comes into effect at 00:01 on 8 March, and does not revoke its predecessor. To apply the doctrine of implied repeal to a government circular, however, I think that the new GC revokes (as has been the case in previous GCs on the topic) its predecessor.

GC 2021/0043 covers educational institutions. There are no changes.

GC 2021/0044  covers child care providers. There are no changes. This is unfortunate, as para.2 remains very difficult to understand.

GC 2021/0045 covers restrictions on movement. There are no changes.

GC 2021/0046 covers closure of premises. The only changes are in the schedule relating to conditions for the opening of premises.

Parks have been removed from the express list of outdoor leisure, exercise and recreation venues allowed to open. The list is “including but not limited to”, so there may be an argument that parks can remain open even after removal from the explicit list. Against that, choosing to remove “parks” suggests some change was envisaged.

The list of essential workers whose children will be prioritised in education provision, which survived the closure of educational provision in the last set of GCs, has now been deleted. The concept of “essential worker” is, however, still retained in the GCs, in relation to the Government Department category. This now stands to be interpreted without a definition set out in the GCs – there is unlikely to be much practical difference; and the GCs now do not have a (potentially misleading) reference to priority in education provision.

Closure of Premises.

GC 2021/0041 replaces the former provisions dealing with closure of premises. Comparing it with its immediate predecessor, there are no changes to the main body of the text, but changes to two parts of the schedule which outlines conditions under which particular sorts of premises may open.

The conditions surrounding construction work – perhaps only construction work carried out otherwise than by the DoI and MuA (this point remains unclear) – are tightened up, in particular by the creation of new limits on the number of persons who may work together. “Building and other trade sites which are worked on by more than two persons are closed”. Work carried out wholly outdoors must be carried out alone, or by a maximum of two persons, and only with “full mitigations in place following clear risk assessments”. Indoor work may be carried out in vacant premises which are not occupied by the normal residents, again by a maximum of two persons with full mitigations.  

The category defined as “Professional practices including legal, accounting, financial, insurance, estate agency and banks or banking services” now appears to be defined as “Financial Services”. Banks may remain open for cashier service, but all other Financial Services – by which I take to mean the rest of this category –must implement work from home measures, and comply with the general rules of para 6, “other than the minimum number of staff required to maintain essential operations”. This cross-reference to para.6, which lays down the conditions that apply to every premises, is not very clear. Para 6(f) allows premises to have a minimum number of staff to maintain essential operations; this part of the Schedule appears to exempt Financial Services from this part of 6(f). What is intended by an exemption to an exemption – does it mean Financial Services may not have the minimum number of staff required to maintain essential operations? Or that in order to maintain essential operations Financial Services (but not other premises) may have more than the minimum number of staff.

Freedom of movement.

GC 2021/42 replaces the former provisions restricting freedom of movement. There are a small number of changes to specific circumstances justifying leaving home, but the most important changes are new, overarching, conditions which must be met for every circumstance, laid down in para.4.

Paragraph 4 provides that a person may only leave their home for one of the specific purposes if “it is not reasonably practicable to achieve the purpose from the person’s home” (para 4(a)). This has potentially very wide implications. For instance exercise remains a valid reason to leave home (now in para.5(1)(d)). In what circumstances is it not reasonably practicable to achieve the purpose of exercise without leaving home? The paragraph also requires that the person leaving home complies with Regulations, Directions, guidance published on www.gov.im; specific conditions associated with particular purposes allowing the leaving of hom; and “must take all reasonable steps to mitigate any risks associated with leaving the person’s home” (para. 4(c)). This is a very important change, making leaving home very much more conditional than in previous iterations.

Turning to specific grounds:

One restriction is linked to the change in child care facilities. Formerly, a good reason to leave home was for a vulnerable person or child to go to a place to be cared for; this has now been restricted to a vulnerable person or “a child of a person who provides an essential service” (para. 5(1)(g)).  The provision allowing a person to leave home to take their child for child care by family members, or other usual carers, so that they may attend a workplace is subject to an important new restriction. This is now usable only where “no other children attend that residence or household, other than children who ordinarily reside there” (para. 5(1)(z)(iii)). Reading these together, children of essential workers only may be taken to another household to be cared for (because they may not leave the house to be cared for unless their parent is an essential worker), but not if any children except those who already live there will be present. So a grandparent who would otherwise care for two different sets of grandchildren to allow their parents to carry out essential work will no longer be able to.

The attending work justification has been greatly simplified, the only requirement remaining being that no more persons are present at any one time than is necessary for the effective operation of the business (para.5(1)(k)).

As may be expected, with the closure of educational institutions, there are knock on effects. The right of a student to leave home to attend an educational institution has been removed. The list of essential services, which continue to allow a person to leave home to deliver, now excludes education and child care, but otherwise is unchanged.

Finally, I had suggested in relation to gathering rules that funerals of more than 10 people may be permitted on a risk assessment of premises, rather than each event individually. This is confirmed by a change to the attending funeral ground, which allows attendance of a funeral provided “in respect of the premises at which the funeral is held” a risk assessment has been agreed (para.5(1)(j)).

Closure of Premises.

GC 2021/0038 replaces the previous GC on closure of premises. There are minor refinements to drafting (e.g. para.5,7), but the substantive changes are in the Schedule which describes the conditions under which particular types of premises may operate.

The conditions upon which tourist premises may open now include persons “who must lawfully leave their household in accordance with the Regulations or any Direction or Notice”, including in particular a person unable to reside in their ordinary residence due to a member of their household receiving a direction to self-isolate.

Essential food and groceries has now been expanded to include “drink (including alcoholic drinks)”.

The GC includes an Annex of work sectors where “your children will be prioritised for education provision”. This is unchanged from GC 2021/0035; and so includes “staff needed for essential financial services provision (including but not limited to workers in banks, building societies and financial market infrastructure), and “call centre staff”. As discussed below, this entire Annex is deleted from the GCs dealing with schools and child care; it is important not to be misled by this heading. On the positive side, it may mean that the GC does not need to be amended should schools and child care re-open for children on the priority list.  

Schools and Child Care.

As will be recalled, IOMG announced the closure of all schools and child care settings for Friday 5^th March. No GC was published for that day, making it unclear what the legal basis was for the day’s closure – more significant for private providers than state organisations.

Two new GCs have been published dealing with educational institutions and child care. I  would normally compare them with the preceding GCs on the two topics, highlighting differences only, but this is – concerningly – not possible in this case.

GC 2020/0039 which deals with educational institutions, revoked GC 2021/0037, described as “in relation to Educational Institutions”. GC 2021/0040, which deals with child care service providers, revoked GC 2021/0036, described as “in relation to child care service providers”. Neither GC is available on the dedicated PHR page maintained by Tynwald Library, nor in the running order list of GCs on the same site. Members of the general public, those seeking to act in compliance with the law, and legal advisers have not had access to these documents which – because of the PHA/PHR/GC structure I have described earlier – have legal force. Generally applicable laws should be generally available; it is unfortunate when they are not available in advance of coming into effect, but not being available at all is a new development.

 As a result, I have compared these GCs with their last publicly available predecessors.

Comparing GC 2020/0039 with GC 2020/0028, the GC no longer has a definition of permitted pupils or permitted staff, specified persons permitted to attend educational institutions, and vulnerable children. This is because the definitions are no longer needed under the GC. Formerly, educational institutions closed expect for specified persons. The new GC closes all educational institutions “except for persons who reside on any educational institution premises or whose presence is required for essential maintenance of essential operations” (para.2.1). Additionally, the Annex on workers whose children would be prioritised in educational provision has also been deleted.

Comparing GC 2021/0040 with GC 2020/2027, the GC no longer has a definition of “specified person”, for similar reasons to the educational institutional GC. Formerly, child care services were closed except for specified persons. The new GC probably closes all child care for customers, and deletes the Annex on workers whose children would be prioritised in educational provision.

Para 2 is largely modelled on the GC closing schools. The difficulty I am having in deciding between two very different meanings is that the paragraph seems to blur discussion of the premises required to close and permission to enter premises required to close in a single, overlapping, sentence. I will reproduce the paragraph in full, with text addressing the first issue in italics, and in bold that addressing the second:

“All premises providing child care services shall be closed in accordance with this Closure Direction to all persons save for those with a responsible body residing on the premises or whose presence is required for essential maintenance of essential operations”.

Similarly to the educational institution GC, the premises are not closed to those “whose presence is required for essential maintenance of essential operations”. More opaquely, however, the premises are not closed to “those with a responsible body residing on the premises” (para.2). Responsible body is defined as “the childminder, or in the case of a child day care centre, the persons or body of premises responsible for the management of a child care centre” (para.1).

One reading is that the most likely meaning is the responsible body may enter their premises. Most pertinently childminders who work from their own home are able to continue to reside there. If this is the meaning of the paragraph, it does raise a query as to other members of the childminder’s family. If without this proviso, the child minder would be unable to enter their own home, does this mean the family members are unable to do so?

An alternative reading is that child care services whose responsible body lives in the premises are not closed by the GC – so a child minder may continue to offer child care services in their own home (perhaps mixing a number of households as a result?). This would be a significant exception to the blanket policy in effect until 8 March.