PHR Amendment no.6, and a new GC on breaking another person’s self-isolation.

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.

PHR Amendment no.6, and a new GC on breaking another person’s self-isolation.

One thought on “PHR Amendment no.6, and a new GC on breaking another person’s self-isolation.

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