Changes to the PHR Directions, 20 January.

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

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 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.

Changes to the PHR Directions, 20 January.

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