Emergency Powers Regulations as of 24 March: An Explainer.

On the 24^th of March 2020 Tynwald approved the first set of Regulations under the Emergency Powers Act 1936. Such Regulations can have affect before being approved by Tynwald, but must be approved within seven days of being made or cease to have effect. This is reflected in the motion for each, where Tynwald was asked to “approve the continuance of” each Regulation. All are now available on the Statutory Documents page of Tynwald. Including Regulations made, but not yet approved, there are eleven Regulations in all in this first group, which I will group into six broad categories. I will aim to add further explainers on batches of Regulations as they are made.

Firstly, directly concerning potentially infectious persons. The Potentially Infectious Person Regulations provides powers to deal with potentially infectious persons, defined by the Regulation as a person who is or may be infected with coronavirus with a risk that the person might infect others, or a person who has been in an infected area within 14 days (r.4(1)). There are two distinct categories of restriction available to the DHSC (the Department) under this Regulation.

• There are far reaching powers in relation to an individual where there are reasonable grounds to suspect that they are potentially infectious. There are powers to impose “such requirements on the person as the Department considers necessary and proportionate” (r.6). These requirements may not exceed 14 days, but may be renewed for a further 14 days (r.8) The Regulations give broad powers to require a person to remain in a particular place, and provide information (r.7(1)). In creating these requirements, the Department must have regard to a persons wellbeing and personal circumstances (r.7(2)), and must revoke any requirement if it considers the person is no longer potentially infections (r.8(3)). There is also some judicial oversight, as a person subject to a requirement under r.7 may appeal to a summary court (r.9).
• Separate powers apply to persons who are required by the Department to self-isolate, but are not a specific concern as an individual. A person can be required to self-isolate if they are a potentially infectious person referred to in a notice published by the Department as it considers appropriate (r.10). Such a notice may include requirements in respect of such a person, which can cover movement and information (r.10(4)), and explicitly limit movements or travel, activities including work, and contact with other persons (r.10(8)). In creating these requirements, the Department must have regard to a persons wellbeing and personal circumstances (r.10(6)). There are, unlike the r.6 restrictions, a number of categories of person who the Department may not impose a self-isolation requirement upon – broadly – key workers in the current crisis (for a full list see r.11(1)), and Cabinet Office may expressly exclude from self-isolation any other person (r.11(2)). These exceptions to the exceptions do not apply if a person is or may be infected, and there is a risk that the person might infect others (r.11(3)). There is a statutory definition of self-isolation (r.10(9)). It means, so far as a person is reasonably able to do so, “seclusion of segregation from the population at large”, and from other persons in the same household, but “does not exclude contact with the populace at large or other members of the same household where that is facilitated by other persons, and cannot be reasonably avoided”.

To deal with a fast moving crisis, the Regulations are very flexible in terms of how the Department communicates its legally binding requirements to individuals or to the public. As noted above, self-isolation requirements can be published by the Department “in such manner and at such times as it considers appropriate” (r.10(2)). More broadly any restriction or instruction may be given or imposed orally, in written form,, or electronically (r.13(1)), but oral communications should be backed up as soon as reasonably practical with writing or electronically (r.13(2)).

In terms of enforcement, the most striking provisions are those which give the police power to limit a persons movement and ensure requirements under the Regulations are complied with (r.7(3), r.10(7), r.14). They are supported by a number of offences which carry a maximum penalty of £10,000 fine, or 3 months custody (r.18). As may be expected, these mainly concern failing to comply with a requirement, absconding, knowingly providing false information, or obstructing the exercise of powers under the Regulations. Responsible adults are under a duty “so far as reasonably practicable” to ensure that a child complies with any restriction imposed upon them (r.12).  Perhaps less obviously, but importantly, the regulation penalises anyone who “knowingly or recklessly requires or demands or otherwise unduly pressures a person … who is required to comply with any … requirement … to ignore, contravene or otherwise fail to comply with … the requirement” (r.18(e)). Unduly pressuring a person who should be self-isolating to break that self-isolation is a criminal offence.

Secondly, control of ports of entry. The Port Operations Regulations give the Council of Ministers  the power to order a port of entry to suspend such operation as they specify (r.5(1)). This legislation is directed at a very specific group  – “a person concerned in the management of the port” (r.3). The operations are similarly specialist – “any operation or functions carried out by an operator at a port of entry in relation to (a)  the arrival of or departure of any vessel, aircraft, or other conveyance or vehicle; (b) the entry into the Island of persons or things” (r3). It seems likely that these are alternative operations – so the Regulations could allow restrictions on vessels which did not involve entry into the Island. Interestingly, a failure to comply is to be punished by custody or a £10,000 fine. The Emergency Powers Act 1936 would have allowed a forfeiture penalty of property used in the contravention of the Regulations – perhaps more compelling to large commercial concerns. The very specific Home Affairs Staff Regulations prevent a person employed by the Department of Home Affairs, except a  constable , from leaving the Isle of Man without the permission of the Department  (r.4). Doing so can be punished by custody or a fine. The explanatory notes indicate that constables absence from the Isle of Man is already dealt with under the Police Regulations. This is an unusual provision, tied as it is to particular employment, but does not seem to me to contravene the limit in the Emergency Powers Act prohibiting regulations from punishing strikes.

Thirdly, two regulations close specific sectors, and are directed at those running organisations in those sectors rather than the general public. The Closure of Premises Regulations requires the owner, proprietor or manager of a business covered by the two Schedules to the Regulations to close (r4). Part 1 of the Schedule covers restaurants, cafes, bars, and public houses. It does not apply to cafes at a hospital, care home or school; military and prison canteens; and services providing food and drink to the homeless (Sch 1(2)), or room service at hotels (r.4(2)). Such businesses may offer food or drink for consumption off premises, but may not avoid the restriction by having seating adjacent to the business which customers may use (r.4(3)). Part 2 of the Schedule is simpler – business listed must “cease to carry on that business” (r.4(4)). This applies to cinemas, theatres, nightclubs, bingo halls, concert halls, museums and galleries, casinos, betting shops, spas, massage parlours, indoor skating rinks, and indoor gyms and swimming pools (Sch.1(5-16)). The Schools Regulations gives the Department of Education, Sport and Culture the power to give a temporary closure direction to a named educational institution, all education institutions, or educational institutions of a particular description (r.5(1)). Normal laws concerning the duty to ensure a child is educated do not apply during a closure (r.6)).

Fourthly, the Planning and Regulatory Legislation Regulations allow the Council of Ministers to give written consent for the use of a premises for a specified purpose or activity. Such a use does not a violation of specified planning laws (stated in r.5(1)(b)(i)-(iii)). Most interestingly it also creates a similar immunisation for “a breach or contravention of  any regulatory legislation” (r.5(1)(b)(iv)). Regulatory legislation includes the Licensing Act 1995 and Tourism Act 1975, but is specifically not limited to that legislation (r.3(3)), covering legislation “(a) to which the premises were subject immediately before the consent was given; and (b) which relates to the registration or licensing of, or applies standards in connection with, the use of the premises or a person who operates the premises for that use” (r.3(2)). The example given in the explanatory note is allowing a restaurant to supply food and alcohol on a takeaway basis, but there is no reason this Regulation could not apply to very different areas of the law – subject, always, to written consent by the Council of Ministers and so, ultimately, to democratic control by the House of Keys.

Fifthly, the Food and Fuel Regulations create a power for the Department of Environment, Food and Agriculture to make regulations “to regulate the supply and distribution of food and fuel as it appears to the Department to be necessary to do so for the purposes of maintaining public safety and the life of the community” (r.4(1)). Such Regulations impose criminal sanctions similar to the other Regulations, but again do not refer to the forfeiture power under the Emergency Powers Act. Regulations allowing Regulations raise concerns about accountability, but the Regulations require that any regulations made by the Department must be approved by Tynwald within seven days of being made (r.4(4)) – the same democratic oversight as the Emergency Power Regulations.

I have stressed the importance of democratic oversight of potentially very far reaching powers. This makes the final category two Regulations concerning elections, particularly important. The Local Elections Regulations postpone local elections due on 23 April 2020 until 22 April 2021 (r.4)). Current members of local authorities, except the parish districts of Arbory and Rushen, will remain in office until 1 May 2021 unless they vacate office earlier (r.6). There are special provisions for Arbory and Rushen Parish District (r.11). More constitutionally significant are the Keys Elections – Casual Vacancies Regulations. Where the Governor would normally be required to call a by-election to fill a vacancy in the Keys within two months, an extended time limit of six months is permitted (r.4). The immediate effect of this change is to allow the Governor to defer the by-election for South Douglas, vacant on the death of Bill Malarkey, beyond the normal limit of 24 April. It is not, however, limited to this particular vacancy. To editorialise for a moment, given the importance of the House of Keys to democratic oversight of the Emergency Power legislation, and their relatively new monopoly over removal of the Council of Ministers, it may be worth giving some thought to ways to allow Keys elections without traditional physical polling.