Change to isolation rules for those living with track and trace contacts.

An amendment was made to the PHR. The PHR (Amendment) (no.8) 2021 has added new rules in relation to a Category C person where they are sharing a household with a Category B person (there are no changes to a Category C person sharing a household with a Category A person. So these changes relate to a person residing with someone who has been required to self-isolate as a result of having been contact traced or assessed (PHR reg.14); rather than a person residing with someone who has entered the Isle of Man (PHR reg.11).

Such persons may be required to self-isolate, and if so may leave their notified place (typically their home) only to receive emergency medical treatment, when required by the emergency services, or with written permission by the Director of Public Health (new reg.21(4)). If they leave this notified place, they must wear a mask and retain social distancing if leaving because of the two emergency criteria; and if given written permission comply “with any condition specified in the permission” (new reg.21(6)). The Guidance note to the PHR does not quite match the content of the PHR. The PHR specifies different requirements for the two emergency criteria and the written permission criteria (although one would anticipate written permission to require masking and social distancing), while the Guidance note (which is not part of the PHR) indicates that masking and social distancing is required “at all times when lawfully absent from a person’s place of self-isolation”.

There are also three new GCs. As with last lockdown, each GC replaces a predecessor covering the same topic.

Freedom of movement.

GC 2021/0033 covers restriction of movement. There are minor refinements of drafting (e.g. changing “vulnerable child or vulnerable adult” to “vulnerable person” at para. 4(1)(f)). The only substantive change to the main body of the GC which I can identify is a minor change to the ground for leaving a home in order to move house, with the time for the contractual obligation allowing this reset (para.4(1)(l)).

This is a very narrow, and unusually specific, change. The earlier GC’s relevant section referred to “in cases where as at the date of giving this notice, the person has a contractual obligation to do so, in order to move house and to attend essential appointments in
connection with moving house” (para. 4(1)(l)) – that GC coming into effect at 00:01 on the 3rd of March. The new provision refers to “cases where, as at 4th March 2021, the person has a contractual obligation to do so, in order to move house and to attend essential appointments in connection with moving house” (para.4(1)(l)). Not every GC issued on the 3rd has been refreshed, so presumably CoMin identified a mischief which needed to be addressed by the new GC. The class of individuals who may benefit from the change to their ability to leave their house as a result must be very small indeed – the new GC does not revert to the old lockdown rules which allowed a person to move house even if the contract was agreed after the lockdown had started.

Gatherings.

GC 2021/0034 covers gatherings. The main change is in relation to masks and social distancing. All exceptions ro to the ban on gatherings are now subject to any specific restrictions in any GC or PHR, and most significantly to “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 heath guidance published on http://www.gov.im” (para.21(b)). Although not grammatical, the meaning is clear enough. It also gives more authority to government guidance that then previous GC, which laid down some specified rules for particular exceptions (e.g. 2 metres distancing at funerals). This requirement to comply with guidance includes the lift sharing by employees exception under para.15(a), eliminating the problem I had pointed out earlier. The problematic para.16 is also improved – the old paragraph referred to “enter a household”, while the language now is “move to a household”, which to me suggests a change of household, rather than the worker returning from work problem I identified earlier.

Closure of premises.

GC 2021/0035 covers closure of premises. The substantive changes are in the Schedule, which it will be recalled details the restrictions upon which types of premises must operate. The drafting is not always clear.

Essential premises, including provision of essential food and groceries, are subject to further restrictons on their activities. No customer seating, or consumption on premises, is permitted. Non-essential goods that are not “in the immediate vicinity” of essential goods should be restricted from public access where it is is practicable to do so. The rest of the clause is difficult to interpret, not helped by an odd number of brackets. To quote the single sentence in full: “Non-essential goods sold by a retailer or wholesaler that are not in the immediate vicinity of essential goods should be restricted from public access where it is practicable to do so (i.e. restrict access to parts of the store or take otherwise reasonably practicable steps to minimise public access (including the amount of time spent and numbers of persons) and must adhere to any guidance issued by the Isle of Man Government”. If the goal is to restrict supermarkets etc from providing goods which specialist shops are unable to provide because they have had to shut for face to face sales, then the reference to limiting the time and number of persons seems odd. Allowing supermarkets to comply by placing non-essential goods “in the immediate vicinity of essential goods” similarly seems to undermine the policy.

Immediately after non-essential premises generally, premises owned, occupied or operated by a Department, Statutory Board, or Office or other premises providing critical national infrastructure or a key public service now have their own category, allowing them to open “where there is a requirement for attendance of on-Island essential workers and maintenance of essential operations”. This seems identical to the pre-existing category just above “Pet Grooming Services”, which has been retained, although the description of the restrictions differs.

There is an unclear amendment to the construction category. Probably, the construction category now gives the Department of Infrastrastructure and the MUA the right to “undertake works as they deem to be necessary to maintain the critical national infrastructure or otherwise as they deem reasonably necessary” – note that their belief that the work is necessary to maintain critical national infrastructure need not be reasonable; while putting more specific restrictions on other construction sites. An alternative reading would be that only DoI and MuA constructions sites may operate, and when they do, need to meet the more specific restrictions limited – but this is difficult to square with other parts of the GCs allowing tradesmen to work in private dwellings (GC 2021/0033 para 4(1)(dd)). Builders merchants etc are now required to sell only essential and emergency supplies to the trade in person.

The GCs, which power the third Manx lockdown, are now available on the dedicated Tynwald page. There is a slight jump in GC number, for 0022, to 0027. This does not indicate that there are unpublished GCs – as Tynwald Library has kindly confirmed, GC numbers are issued to Departments upon request, and not all numbers are used.

Closure of premises.

GC 2021/0029 deals with closure of premises more generally. Comparing it with GC 2021/0016, there are some differences in drafting. The definition of premises is usefully repeated from the PHR, improving the ability of the GC to act as a “one stop shop” document for businesses (para.4).

There are significant changes to the details of the closure of premises. The distinction between open and closed premises is removed, with a new term of “Affected Premises” which are allowed to open (in some cases with serious restrictions), but must comply with a range of safety measures (para.6; substantively identical to the old para. 6). There is provision for outdoor workers, unchanged from the previous GC (para.7 in both). Although not clear until the Schedule, any premises which are *not* listed as Affected Premises are “closed to the public”, and may be staffed only to “maintain essential operations, or to prepare the business for reopening in line with any Government directions” (cross reference to para.6(f) from the Schedule) – as I will show in a moment, this is less draconian than it appears.

The Schedule makes a number of specific changes to particular sectors, for instance the new GC specifically allows a place of worship to open “for the purposes of installing equipment for the live streaming, recording or broadcast of worship services”.

Businesses such as lifestyle businesses, formerly listed as Closed Premises with no conditions under which they could operate, are now not mentioned at all. This is more than a cosmetic change (sorry), as they now fall under the important residual category of “Non-Essential premises (including all professional offices, businesses, retail and wholesale premises (not selling essential food, fuel or groceries) to which a person may have access in the normal course of business not listed in this Schedule))”. As a result, they are entitled to “deliver goods or offer a pre-booked contactless collection service, provided they minimise any public access to the premises”.

Operators of business premises might want to read the Schedule closely, and if their business is not listed, consider this very capacious “non-essential premises” category. Specific categories are typically less restricted than this non-essential premises category. For instance, the non-essential premises category includes “all professional offices”, but the category of “Professional practices including legal, accounting, financial, insurance, estate agency and banks or banking services” has no specific restrictions on opening.

Leaving home and attending gatherings.

GC 2021/0031 deals with gatherings outside of the household. Comparing it with GC 2021/0017, the general prohibition is put differently. Events or gatherings in a public or private place may take place unless prohibited by a direction made under regulation 33C (which is the basis for this GC) (para.4); however “all events and gatherings are prohibited subject to the exceptions specified in part 3 of this Direction” (para.5). Gatherings no longer need to comply with government guidance to be lawful (the second clause of para.5 in the earlier GC has been omitted).

The permitted exceptions are broadly the same, but there are changes in details. Formerly, funerals were limited to 10 socially distancing persons; now funerals of more than 10 may occur, so long as persons responsible for the place of the funeral and the Director of Public Health have carried out a risk assessment (para.6-8). Although not explicit, I think a risk assessment of a premises for a number of attendees, rather than a risk assessment of each funeral service separately, would suffice. Employment and Emergency Services remain substantively unchanged, as do customer and service users, and the emergency response protection for those who inadvertently congregate to preserve life or property. Exercising with members of the same household where others may be present, for instance a park, has been redrafted but not substantively changed (para.11); as has care for children of vulnerable persons (para. 13-14). Vehicle sharing, as in the earlier GC, is permitted and, as in the earlier GC, it looks to me as if two work mates required to wear masks when working together are not required to wear masks on the journey to work.

It will be recalled that when Lockdown 2 ended, provision was made to continue a restriction on gatherings to preserve self-isolation. This has now been folded into the general restrictions on entering dwellings. There is an important change here.

There is a new, and striking, general restriction. Entering a household where any other person resides is a prohibited gathering “unless the person is returning to his or her usual place of residence having completed a period of self-isolation imposed by a direction notice” (para.16). This could be read as not permitting a person who has lawfully left their house to return to it if any other person resides – so someone going into a lawfully open workplace could not return. This literal reading would be a manifest absurdity (I am not being obnoxious, but invoking a rule of interpretation), and the clause might have been better if it had simply read “unless the person is returning to his or her usual place of residence”. This would, however, still have the consequence of making it an unlawful gathering if a tradesperson entered a residence to carry out essential work as permitted under the GCs elsewhere (GC 2021/0030 para.4(dd)). 

Para 17-21 deal with entering a residence where a self-isolating person resides. This restriction includes a number of exceptions to the restriction, making it less restrictive than the general restriction in paragraph 16. It also has an odd reference to “purposes as set out in Part 4 of this Direction Notice” (para.17), when Part 4 does not set out any purposes.

Para 16 is an important part of these GCs. By prohibiting people entering other’s households, it covers a lot of the ground addressed previously by a specific restriction of movement GC rather elegantly. It would benefit from revision.

Given the new prohibition on entering a residence, the restrictions on gatherings outside, and the restriction on premises, individual movement is already substantially restricted. GC 2021/0030 deals with this specifically. Comparing it with GC 2021/0018, there are minor redrafts (e.g. para.3). The reasons why a person who is not self-isolating may leave their home are very similar to those in the last draft (but now listed in para.4 not para.3). The right to exercise is now limited to exercise with members of the same household, rather than with others subject to social distancing (para.4(d)). The right to attend a funeral is now subject to agreement with any risk assessment (a sensible provision given the potential increase of the cap on numbers attending noted above) (para.4(j)). The right to leave a house to move house and essential appointments is now restricted to where the person has a contractual obligation to move when the notice was issued (para.4(l)) – notably less generous than in the last lockdown (as per old para 3(l)). Specific, less restrictive, provision is made for those escaping domestic abuse (para.4(t)). The requirement to comply with guidance on the government website when leaving home for any reason remains (para.4(4)).

Child care and schools.

GC 2021/0027 deals with child care service providers. Comparing it with GC 2021/0015, there are very minor typographical changes (e.g. Schedule b, 2 b change of “2 a.” to “2(a)”. The GC itself is otherwise entirely unchanged. It includes a reference to Guidance by the DHSC, an initial version of which is attached to the GC. This is also unchanged. There are no changes to the child care restrictions in Lockdown 2.0 and Lockdown 3.0. GC 2021/0028 deals with educational institutions. Comparing it with GC 2021/0019, the GC which discontinued the use of hub schools, the two are identical. There are no changes to the child care restrictions in the later part of Lockdown 2.0 (Lockdown 2.3?) and Lockdown 3.0.

Some broader thoughts.

As with previous lockdowns, these are tremendously intrusive and damaging restrictions on the life of the Isle of Man, justified by the damage which they seek to avert. An obvious approach to balancing substantial harms is to seek to minimise the harm – to maximise the utility of all, seeking to promote the greatest happiness of the greatest number.

Taking utilitarianism as a starting point, however, there is an important divergence between act utilitarianism, and rule utilitarianism. Act utilitarianism requires us to determine the greatest net utility on a case by case basis. Rule utilitarianism moves consideration of utility maximisation to the rules which apply to a situation, rather than to each situation covered by the rule. One advantage of rule utilitarianism put forward by its proponents is that it helps to maintain trust in the exercise of power; another is that assessing the utility of every act carries with it a cost, and that this needs to be factored in to the maximising utility equation; a third that evaluating utility at the level of a rule covering a multitude of actual transactions allows more critical and reflective evaluation (and so a more accurate understanding of the costs and benefits).

A rule utilitarian approach may give weight to the benefits of having the same rules apply when needed to deal with similar situations. Post Spanish-flu, the Isle of Man repeatedly introduced measures (primarily emphasising what we would now call social distancing) to deal with outbreaks of influenza through the 20s and 30s. To quote Mr Crellin MHK in 1933, “The regulations are the usual regulations issued when there is an influenza epidemic in the Island”. The benefit here is not so much to the drafters, but to the general public seeking to understand the rules with which they must comply. If there is a possibility of repeat lockdowns in the years to come, the value of “the usual regulations” should not be overlooked.

But let me finish with some poetry (not mine, you will be pleased to know). From “The Parliamentary Draftsman” by James Comyn:

I’m the parliamentary draftsman,
And they tell me it’s a fact
That I often make a muddle
Of a simple little Act.
I’m a target for the critics,
And they take me in their stride.
Oh, how nice to be a critic
Of a job you’ve never tried.

Current advice from IOMG includes “Be prepared to reintroduce restrictions if required. Stay responsible”. How?

The Manx lock-downs so far have shared a focus on border controls, control of internal movement and gatherings, and closure of businesses. Regulations already made under the Public Health Act 1990 continue in effect, but for the moment Directions, made in the form of Government Circulars, do not restrict internal movement and gatherings (except in relation to persons required to self-isolate), or closure of businesses.

It is at least plausible that new restrictions would resemble closely Directions previously in effect to create the January lockdown (the previous, longer, lock-down was dealt with under the Emergency Powers Act, and are a less obvious model). The most relevant are:

• GC 2021/0017, restricting gatherings.
• GC 2021/0016, restricting opening of premises.
• GC 2021/0014, limiting leaving the home.

Although largely written to stand alone, these three do interact. So the rules against gatherings do not apply to employees or customers accessing premises permitted to be opened; and a person may leave their house to work at a premises permitted to be opened, or to be a customer at a premises permitted to be opened.

There have also been more specific restrictions around educational institutions and child care; but it is less clear what a default “reintroduction” would look like for those specific restrictions.

The Public Health Protection Amendments no.7 make changes to the rules concerning self-isolation where a Category A person shares a household with a person not otherwise required to self-isolate.

The most important of the changes is the giving to the Chief Secretary of a discretion to allow a Category A resident to share accommodation when “there are urgent and exceptional reasons” (amended reg.12(2A)(b); to be clarified by guidance from the Council of Ministers under the new reg.12(2C)), and explicit provision for eligible patients or patient escorts. Except for patients, sharing is dependent upon the Category A person providing one or more biological samples (amended reg.12(2)(b)).

The patient exception is narrow – it may only be relied upon for patients as defined in para.7 of the Schedule, that is a patient who has received treatment off-Island (Schedule, para 7(4)). A person receiving medical care whose doctor confirms that they are not able to give a sample, but who has not travelled off-Island, cannot take advantage of this exception. Nor does the “urgent and exceptional” clause allow the Chief Secretary to exempt them from this requirement. Before this amendment a vulnerable person could self-isolate in a shared household without being required to give biological samples their doctor considered them unable to give (former reg.12(2)(b)).

Does this matter? Possibly. Consider the situation where a person formerly covered by the vulnerable person rule is unable to give a sample due to medical reasons, perhaps related to behaviour and capacity, attested to by their GP. If they have travelled off-Island with a carer in their household, both are Category A upon return and may cohabit together. If, however, they live with a third person who did not travel, only the carer can meet the test requirement allowing the three to live together – so the third person would need to find alternative accommodation.  

There is one other, technical, problem posed by this amendment. The definition of “vulnerable child” was removed from Reg.5 as no longer necessary. The GC dealing with gatherings which break another person’s self-isolation, are still in effect, and not only use the term but refer to Reg.5 for the definition.

The Public Health Protection Regulation Amendment (no.6) has a curious procedural aspect. At the beginning of the Regulation, it is stated that the Council of Ministers is of the opinion that, by reason of urgency, it is necessary for these Regulations to come into operation before they are approved. Reg 2, however, states that “If approved by Tynwald, these Regulations come into operation at 00:01 on 4 February 2021”.  If this means they only come into effect if approved by Tynwald before the 4th (which did not occur), the declaration by CoMin at the beginning of the Regulation is wrong. If not, then I do not understand what this clause adds to predecessors, which omit the “If approved by Tynwald” phrase. *Every* clause of a PHR made pending Tynwald approval is only of (ongoing) effect if approved by Tynwald.

Lack of clarity about a commencement clause is never good. This lack of clarity is particularly unfortunate, as this Regulation makes some quite significant amendments to the PHR regime, intended as it is (per the guidance notes), “to reinstate the categories of person who may enter the Island … as those categories were prior to 23 December 2020”. There is useful tidying up on interpretation (reg.5(1) as amended), provisions in relation to aviation (reg.8(3) as amended, reg.36(6) as amended), exemption from testing fees for students and student escorts (reg.13A as amended). The most significant changes, however, are to the rules governing who may enter the Island, specifically through a revision of the Schedule of Category A persons. The detailed list of non-residents who may be permitted entry (Schedule para.3A as amended) will be familiar from earlier iterations of the border controls, for instance the return of permission for removers to enter (para.12A as amended)

There is also a new GC, GC 2021/0022, which sensibly addresses the application of the rules against gatherings to dwellings where a person is self-isolating. The starting point of unrestricted gatherings is reaffirmed (para.4). Entering a dwelling (with a recognition of the special position of hotels and hostels under para.7) where another person is self-isolating is a prohibited gathering (para.5), unless it is for a reasons permitted “under the Regulations”, or for a number of reasons specified in this Direction. These are local authority general refuse collection, but specifically not otherwise “to collect items from the dwelling or curtilage” (para.6); and caring for a vulnerable adult or vulnerable child (para.8).

Specific consideration of deliveries, especially the delivery of essential food and medicine, would have been useful, as the GCs are at their best when they provide self-contained, comparatively accessible, statements of the legally sanctioned rules. I have gone through the current version of the Regulations (very helpfully maintained by the excellent Tynwald Library here ) and found nothing which would make delivering essential food and medicine a reason permitted “under the Regulations”. One possibility is that it only becomes a gathering if the person making the delivery enters the dwelling, but they are permitted to leave it in the curtilage (e.g. drive or garden). If this were right a delivery person may leave items in the drive, but not take any away (as that would be caught by para.6 which explicitly covers the curtilage). It would also indicate that a self-isolating person could have visitors in their drive and garden.

This interpretation, however, could pose something of a problem for the moment of collection – if the place the shopping is left is not part of the dwelling, is the self-isolating person permitted to leave their house in order to collect it? There may be some wriggle room in the PHR reference to a “place” of self-isolation, but the GC says (unhelpfully) “‘dwelling’ shall be read and construed with reference to the definition of ‘notified place’ under the Regulations”. “Reference to” might indicate that we should read the GC and the PHR together to form a binary division between places where a person must self-isolate, and places other people may enter without constituting a gathering – logical to protect self-isolation, but producing the problem of how to collect a delivery when self-isolating. If we don’t read it so as to create a strict binary divide, are saying that a self-isolating person may move freely in their curtilage, and the general population may do so at the same time?

A revision addressing this specific point might be useful.

A new amendment to the PHRs, Amendment no.5, was created by CoMin subject to later approval by Tynwald, coming into effect on 1 February, and made on the 28^th of January. A gap between creation and coming into effect is to be welcomed.

The purpose of this amendment is to tidy up the end of the January lockdown. Much of the winding back from the lockdown takes effect because of the expiry of the GCs noted earlier in this blog.

The principal changes, as noted in the guidance notes, are around expiry date and revision. As may be recalled, the original PHR (which was to provide the framework for the pandemic response after the EPA became unusable) had a comparatively long expiry date, with a review point built in. These were removed by the amendments to the PHR in January. This amendment changes the expiry of the PHRs to the 25^th of June (amending reg.4(1)), and requires CoMin to review the need for the regulations on the 25^th of March (adding reg 43A).

The other changes restore the default right to leave home (reg.26B), subject to any prohibition notice created by CoMin (reg.26C); the default right to gather in a public or private place (reg.33B), subject to any prohibition created by CoMin (reg.33C, but note the restriction on the power to create such prohibitions under reg.33b(2)).

The PHR (no.4) Regulation primarily amends border control. As with its predecessors, CoMin has indicated that it needed to come into operation before approved by Tynwald – at least, unlike the latest changes to the Immigration Regulations, they came into effect after being made.

The details of how the Chief Secretary may modify self-isolation rules are changed – such modification is now made more clearly distinct from a direction to self-isolate by being renamed “written self-isolation modification”, and made more widely applicable,  but to balance this the role of the Chief Secretary as acting in accordance with published guidance from CoMin is made much clearer (amended reg,10). The difficult issue of households with a mix of Category A persons and other persons is addressed: certain types of Category A persons may share households if they elect to provide biological samples – this is open to Category A persons who have entered on compassionate grounds, is a Manx resident, or is a Manx resident and a key worker (new reg.12(2A)). The latter seems an odd distinction, but a non-key worker Manx resident must meet the definition of paragraph 6 of the Schedule to the Regulation, while a key worker must simply be “resident”.

Two grounds for entry are reintroduced – compassionate grounds as the basis upon which a person may be permitted to enter the Isle of Man (Schedule, para 8; with a definition provided in the amended reg.5); and contractual obligations (Schedule, para 9).

On a separate point, there is also an additional Direction regarding educational institutions, GC 2021/0019. It extends the operation of the Direction from 28 January to 1 February (in line with other GCs). More substantially, the GC eliminates the category of Hub School, which previously was fundamental to the closure regime, and effectively makes it lawful for all schools to be open, but not to everyone. All schools are closed except to “specified persons” – being vulnerable children, children of on-Island essential workers, pupils residing in an educational institution, and staff as required (para.2). The reference to residential schools, allowing boarding schools to teach all boarders, is new (although some recognition of them was in former rules allowing them to house, but not educate, boarders).

A busy day on the 22^nd January – a change to the PHR, and new GCs on each of the key areas of the lockdown.

The Public Health Protection (Coronavirus) (Amendment) (no.3) Regulations 2021, amended reg.20(2), dealing with Category C persons who are members of a household with a Category A person. It replaces reg.20(2) in its entirety, but the significant change is extending the self-isolation period for such a person in line with any extension to that person’s period of self-isolation following a positive test. I think this regulation should be read as referring to the Category A person as an identifier, rather than their status, so that these rules continue to apply even when they are recategorised as Category B per reg.13A(11)).

This Amendment also moves the specific list of grounds upon which a person may leave their home out of the PHR, into the Direction (reg.5, amending reg.26C). This is described in the guidance notes as ensuring that all exceptions to the prohibitions on movement are “contained in an exception notice making the position clearer for the reader”. It also has the effect of removing these exceptions from the level of Regulation subject to the control of Tynwald, to a Direction.

At the level of Direction, key areas of the lockdown have new GCs which, as before, entirely replace their predecessors. There is a slight extension in the anticipated duration of each, from 28^th January to 1^st February. For GC 2021/0015, replacing the rules on child care service providers, I was unable to identify any other changes. For the other three GCs, each dealing with a major area of lockdown regulation, the extension is combined with changes.

GC 2021/0018 covers exceptions to movement – note that with the change to the PHR, this is now the definitive source for when you may leave home. Accordingly, we see a number of “new” grounds, which have just been moved from the PHR into the GC without any substantive change. These include accompanying a child to a parents home (ground (h)), conducting or attending a funeral (ground (j)), providing emergency services (ground (a)), performing duties of office or employment (ground (b)), for the purposes of an office or employment (ground (k)), moving house (ground (l)), shopping for basic necessities (ground (c)), attending to medical needs (including those of pets) (ground (e)), going to a place to be cared for if vulnerable (ground (g)), going to the home of a parent or guardian (ground (i)), and entering closed premises to prepare them for reopening (ground (n)) or in case of an emergency (ground (m)).

There is a reordering of the other grounds, which makes comparison quite fiddly, but there are some key things to note.

Firstly, some of the changes made in the last iteration, which stood out as curious, have been retained. So grandparents can provide overnight childcare for essential workers, but no one else (now ground para3(1)(y)). It is not clear to me how this interacts with the right to travel in order to care for “the child of a person who provides an essential service” (ground f(ii)). It seems to suggest that having a friend come to you to look after your child overnight while you provide an essential service is acceptable; but the child cannot be taken to them unless they are the grandparent.  On a separate point, the constituency duties of MLCs remain a ground for them to leave the house (now ground (ii); which is between grounds (hh) and (jj) rather than grounds (i) and (iii)). I remain unclear what is meant; but hope we don’t see any litigation on this which clarifies who an MLC’s constituency is.

Secondly, we see more invocation of binding government guidance. Care visits to a vulnerable person are retained, but now must, “where reasonably practicable”, observe any guidance published on the government website (ground (gg)). Visits by a tradeperson to carry out essential work are similarly now required to conform with guidance on the website (ground (cc)).

Finally, we see a significant change in the right to exercise. This was taken from the PHR into a new ground (d), covering exercise alone or with others providing that appropriate social distancing is observed with any person who is not a member of the same household. Formerly, this was limited to members of the same household, and for one period of exercise per day. Now an unlimited number of persons from an unlimited number of households can exercise together, for an unlimited number of times per day.

GC 2021/0017 similarly replaces the rules on gatherings. In the absence of a move down from the PHR, the textual changes are less significant. Two specific exceptions are fine-tuned. Indoor funerals may be attended by ten persons rather than nine, and face coverings are no longer mandatory (para.6).  The existing exception for gatherings with members of the same household only is significantly changed – outdoor gatherings may take place so long as the venue is not closed, no person gathering is subject to a self-isolation or similar requirement, and members of different households remain socially distanced from one another (para.10). So outdoor gatherings by an unlimited number of persons, from an unlimited number of households, are now permitted.

The combination of these two changes indicates that there is no upper limit on the number of persons who may attend a funeral service outside. The limit on the numbers for the funeral is specifically “in an indoor place” (a change new to this iteration). In the absence of a specific restriction on the para.10 right, I think this change shows a deliberate removal of the limit on numbers for outdoor funerals.

The exclusion of advertent congregation from responding to an emergency, which I queried in an earlier blog, is retained (para. 11); as is the requirement for people sharing a car in relation to collecting a child to wear masks, but not those sharing a car commuting into work (para.14).

GC 2021/0016 similarly replaces the rules on closure of premises, again with less significant textual changes. There are no changes to the  main body of the text, with changes limited to the Schedule which sets out which premises must close (and when they may remain open in a limited way), and which may open (but subject to restrictions). The hot-water bottle anomaly, pointed out in the different treatment of chemists and supermarkets, has been retained. The only change is the move of construction, building and maintenance sites from the closed list to the open list. Opening is permitted subject to four conditions, including compliance with guidance on the IOMG website (final entry, Schedule).

Two new documents made under the PHR on 20^th of January, both coming into effect at midnight on the 20^th.

GC 2021/0013 replaces the old direction on when persons may gather outside their household. As with other GCs under the PHR, it entirely replaces its predecessor. A line by line comparison shows some minor drafting changes (an improvement in the wording of paragraph 8 in relation to emergency services; using a shop or business premises permitted to be open; gathering with own household). There are more significant changes.

There has been a change to the emergency response rule which does not seem an improvement (paragraph 11), although an ambiguity I noted earlier has usefully been resolved. The paragraph applies to an emergency where persons (not in the emergency services, as they are covered specifically elsewhere) “may inadvertently congregate”. “Inadvertently” is new, and it seems odd to exclude a response to an emergency where the rescuers deliberately congregate. It would seem an arbitrary distinction to allow two people to rush to a car crash from different directions; but not to allow two people to plan to pull on the same rope to life a person from oncoming waters. It may be worth removing “inadvertently” from any future revision.

There has also been a rewriting of the care for children or vulnerable persons exemption (para.12 and 13). One of the practical strengths of the GCs has been their relative clarity and lack of legislative style language and techniques. The old para.12 was not grammatical, but the meaning was fairly clear. The new paragraph 12 and 13 read much more like legislation (including cross-references to documents which are not included in the GC).

There is a new exception for vehicle sharing, which shares the same style as the new para.12 and 13 (para.14). It allows vehicle sharing by employees of the same employer – implicitly but not explicitly travelling to work together at the same premises (para.14(a)); and also sharing for purposes in the Exception Notice on Movement such as collecting a child (para.14(b)). The latter requires social distancing as far as reasonably practicable and (I think a separate requirement, but the text could be read differently), “face coverings are worn by all persons in the vehicle”. On my reading of paragraph 14, employees lift sharing are not required to wear face coverings as they share a car going to a workplace where they may be required under the closure direction to wear face coverings. This seems wrong.

GC 2021/0014 replaces the old direction on when persons may leave their home. The biggest change is a new limitation on the instances when a person is permitted to leave home – all are now subject to “continuing to comply with the Regulations and any applicable direction or notice made under them or in guidance published on www.gov.im and to mitigate any risks associated with leaving the person’s home” (para.3(4)). Checking government guidance to avoid criminal liability is now something that has moved onto everyone considering leaving the house. It is worth noting that the duty to conform with guidance is additional to the undefined duty “to mitigate any risks” – I am not sure what the latter may cover, why it is necessary on top of the GC and guidance, and why it is not a duty “to mitigate as far as reasonably practicable”.

In relation to the instances when going out is permitted, there is a new ground of moving in on a temporary basis to provide care to an assisted person, subject to a list of specific criteria that need to be met (para.3(1)(e)). It allows a person to move in with a person subject to restrictions under the PHR (para.3(1)(e)(iii-iv)). There is also a new ground allowing a person to move to other accommodation in a list of urgent circumstances including avoiding domestic abuse, having lost the entitlement to remain in their accommodation, medical grounds, or “the situation is an emergency and it is necessary for the person to move” (para.3(1)(f)). There is, relatedly,  new group for collecting a vulnerable person in order to avoid a risk of harm, which can include overnight care (para.3(1)(r)).

There is a new ground allowing Members of Tynwald “to undertake essential constituency duties which cannot be undertaken otherwise than by the Member leaving his or her home to do so” (para.3(1)(u)). It is clear what the constituency of an MHK is – much much less clear what the constituency of a member of the Council is (and let us leave that aside for another day!). If the view of the drafters is that only MHKs have constituencies (and so qualify) it would have been better to state MHK rather than Members of Tynwald.

There is a new ground allowing visits to a person receiving end of life care (para.3(1)(v)).

There is a very specific change to the permission to take a child to a family member to be cared for in order to allow the parent to work in a place not closed under the PHR. A new permission for the child to remain with a carer overnight. This is very specific – “where provided by a grandparent in respect of a grandchild whose parent is a person who provides essential services, may be overnight” (para.3(1)(k)(ii)). Providing for overnight childcare for essential workers seems eminently sensible, limiting it to grandparents rather than a household “where the household member would normally look after the child” is not. Consider the (not wildly hypothetical) position of two nurses who have routinely cared for one another’s children during the others night shift. They would not be able to continue this practice, but could continue any established practice during the day.

In the first Manx lockdown, there were two, and occasionally three, layers of rules which could culminate in criminal liability, including the possibility in many cases of a prison sentence.

• The Emergency Powers Act (primary legislation which had been approved by the normal legislative process of Tynwald); allowing …
• Emergency Powers Regulations (secondary legislation created by the executive which had to be approved by Tynwald within a certain period or cease to have effect); referring to …
• Government Guidance (typically on the website).

I wrote critically of the over-use of reference to government guidance in the first lockdown. I am still unconvinced that failure to follow a rule posted by whoever has been given responsibility for maintaining that part of the government website should be the basis for criminal liability.

In the new lockdown, another layer is added.

• The Public Health Act (primary legislation which had been approved by the normal legislative process of Tynwald); allowing …
• Public Health Regulations (secondary legislation created by the executive which has to be approved by Tynwald or cease to have effect); relying for the details of the rules upon …
• Directions (created formally as Government Circulars); referring to …
• Government guidance (typically on the website).

So a retail grocery shop which does not adhere to the government “guidance”, published on the government website, on how to limit access to non-essential goods faces criminal liability because of a rule which gains its force from an Act (Public Health Act 1990 s.51B, s.51C) which allowed a Regulation (Public Health Protection (Coronavirus) Regulations 2020, reg.30) which allowed a Direction (GC 2021/0011) which allowed Guidance (I would assume this leaflet, although it does not cover the changes in the latest direction).

This is some distance from democratic accountability via Tynwald. Given the pace, and ease, of creation of Directions, is there a pressing need for guidance to be given penal force too?