Emergency Powers Regulations: Up to 27th March 2020.

In a previous blog entry I summarised Regulations made under the Emergency Powers Act 1936, outlined here, which were made between the 19^th and 24^th of March. In this blog I do the same for one further Regulation made later on the 24^th of March, and 8 regulations made on the 25^th, 26^th and 27^th of March as of 12 noon. Similarly to the previous blog, I will cover these 9 regulations in six categories.

Firstly, the general restrictions on movement and physical distancing. An amendment was made to the Potentially Infectious Person Regulations. When created on the 24^th of March, this amending Regulation created a restricted right to exercise for those in self-isolation; but this was right was removed by a further Regulation created on the 27^th of March – an illustration of just how fast moving the legislative scene is; a point reinforced by the emerging practice of not only dating but timing the signature bringing each Regulation into effect. The remaining provisions of this Regulation are still in effect. The Regulation creates a duty for a self-isolating person to telephone the Department to give them details of every other member of the household (new r.10(4B)). The limits on the power of the Department to require self-isolation in the original Regulation have now been removed, and replaced with a power to allow “a person, or class of persons, who would otherwise be required to self-isolate not to do so if such conditions (if any) as are specified in the permission are met” (new r.11(1)). This gives more flexibility to those administering the Regulations.

The more significant change, however, is made by the Prohibitions on Movement Regulations, created on the 27^th of March, which create a third category of restriction on movement. The earlier Regulations created two categories: individuals who, for want of a clear descriptor in the earlier Regulations, are in quarantine under the Potentially Infectious Person Regulations r.6; and those who are required to self-isolate under r.10. These new regulations impose a, further, general restriction on everyone unless exempted in writing by the Chief Secretary – “No person, other than an exempt person, may leave his or her ordinary place of residence except in accordance with these Regulations” (r.4). A person who leaves or is absent from their ordinary place of residence, except temporary residents in hotels, caravan sites etc. who are unable to move into an ordinary place of residence (r.6), is subject to a fine and imprisonment unless this absence is in accordance with these Regulations (r.7). A constable has the power to enforce these Regulations (r.8).

So when do these Regulations allow a person to leave their ordinary place of residence?

Under r.5, any person, so long as they are asymptomatic, may leave to: provide an emergency or necessary voluntary service; shop for basic necessities; “undertake one form of exercise per day”, alone or with members of their household (r.1(3)); address a medical need in the household; care for a child or adult who would otherwise be harmed; accompany a child to the home of the child’s other parent; attend a funeral of immediate family (although defined in the Regs under r.1(4), this does not refer to a friend of a deceased person, despite this being envisaged in other Regulations discussed below, creating a situation where a funeral may lawfully be carried out with a minister and a friend physically present, but the friend may not travel to it); carry out work in the home of another person so long as appropriate social distancing is observed with the household, and only in the house of a symptomatic person in order to immediately preserve life or property; for work (so long as the place of work is not closed, attendance in person is necessary, and the minimum of staff are present); and to perform the duties of office or employment in the provision of an essential service (r.5(1)).  Ministers of Religion may further leave their house to broadcast a religious service from a place of religious worship to broadcast a religious service, or to conduct a funeral (r.1(2)).

Essential services are given a broad definition. A list of services is given in the Schedule: health and social care (including the supply chain); education and childcare for essential workers; key public services such as the judiciary, Members of Tynwald and Tynwald staff; local government when required to meet a statutory duty or essential during the outbreak; staff working with the Police, Fire and Rescue Service, Isle of Man Ambulance, Prison and Probation services and border security staff (the actual services, along with other key services such as the RNLI, are covered by the definition of “emergency or necessary voluntary service” in r.3.); transport staff; utilities and information technology staff; and those involved in the conduct of any regulated activity under the Financial Services Act 2008 . Additionally, a service provided “at or from” business, government, or charitable premises which has not been required to close under the Closure of Premises Regulations, is defined as an essential service (r.5(5)(b)).

The breadth and power of these Regulations make the Events and Gathering Regulations, made the previous day, look largely unnecessary. These Regulations give the DHSC new powers to support physical distancing by restricting events or gatherings. Restrictions may be general, in which case they must be publicised on the IOMG website (r.4(1)(a)); or addressed at a particular event or gathering (r.4(1)(b)). The DHSC can, “amongst other things”, prohibit the gathering, or require organisers to inform those planning to come to the gathering of any cancelling or restrictions imposed upon it (r.4(2)). The DHSC also has the power to close premises, or impose restrictions on entry into the premises – for instance in relation to the number of persons allowed on the premises, or time of entry (r.5(1)). It may also require “restrictions in relation to the location of persons in the premises” (r.5(3)(c)) – for instance requiring a shop to keep customers a certain distance from each other. As with the Potentially Infectious Person Regulations these provisions are backed by enforcement powers allowing the use of force (r.7), and a criminal offence (r.8). It may be that, if not needed during the current period of home confinement, the Regulations will be available for use if these are eased during the outbreak. A further provision addresses an issue not covered in the other Regulations. The DHSC, with the concurrence of the Treasury, may “pay compensation to a person adversely affected by or in connection with the giving of a direction under these Regulations” (r.9). It is worth noting that although the Regulation talks about “compensation”, the “may”, combined with the requirement for Treasury approval, suggests to me that it is a power vested in the DHSC rather than a duty. The Regulation does not seem to me clearly to create a right to be compensated, let alone a right to be compensated at a level that completely covers any loss. Nor does it seem to cover losses under the Prohibition of Movement Regulations.

On a larger scale, the Entry Restrictions Regulations prohibit entry to the Island (r.5). There are exceptions for persons who are vital to critical national infrastructure, essential medical experts, and persons returning to the Island after essential medical treatment (r.6(1)). The Council of Ministers may further specify that the prohibition does not apply to a particular person (r.6(3)). In either case, exceptions may only be made where the failure to admit the person poses a greater risk to safety and the life of the community than admitting them, and where such measures as are reasonably practicable to mitigate any risks are in place (r.6(4)). Failure to comply is backed by custody or fine (r.8).

Secondly, the Closure of Businesses and Other Premises Regulations supercede the earlier Closure of Premises Regulations (repealed by r.8), by providing powers for closure and restriction of businesses of all sectors. Businesses are divided into two categories. Part 1 businesses must cease operating immediately, and close their premises (r.4). If a business is not covered by Part 2 or Part 3, then even if not specifically listed it falls within Part 1 (Sch, Part 1(22)).  Part 2 businesses may continue to operate only for specified purposes, and only if any conditions imposed on that sort of business are met (r.5(2)). Part 3 businesses may continue to operate (r.5(3)). All businesses that continue  to operate must take reasonably practicable measures to reduce the risk of infection (r.5(3)). As usual with these Regulations, they are supported by enforcement powers (r.6) and criminal offences (r.7).

The Schedule is long, detailed, and drafted for the non-specialist reader, so the different Parts of the Schedule to the Regulations should be consulted directly. Purely for illustrative purposes I will discuss a small selection from each Part.

Part 1 includes amongst many businesses bars, museums, skating rinks, golf courses, and enclosed spaces in parks. These must all close.

Part 2 includes amongst many other businesses places of worship and business by a tradesperson. Places of worship may be open for funeral services, hosting of essential voluntary or public services, and facilitating blood donation sessions. When open for funeral services the operator must make all reasonable steps to ensure that the funeral is not attended by anyone other the officiating minister, members of the deceased’s immediate family or – if no immediate family are attending –a friend of the deceased (but see my comment above). Tradespersons (which the detailed list in the Schedule suggests are those working in building and related trades) are permitted to carry out any emergency work on any premises which is necessary for the preservation of life; even then the work must be carried out 2 metres or more from any other person. On the face of the Regulation, emergency work to preserve life which requires two tradesmen to work closer together than 2 metres is not permitted.

Part 3 includes amongst many other businesses sweet shops, financial services, businesses primarily concerned with information technology, legal and accounting businesses, public toilets, and storage and distribution facilities. These businesses may remain open without specific restrictions, but must meet the general duty to take all practicable measures to reduce the risk of infection.

Thirdly, two Regulations allow greater flexibility in who provides health care. The Sale or Supply of Medicinal Products and Appliances Regulations allows the DHSC to issue a written Protocol allowing medicinal products and appliances to be sold or supplied by a person otherwise than permitted by the misuse of drugs, national health service and medicines legislation (r.5(1), (2)). This written Protocol must be laid before Tynwald, but does not require Tynwald to approve them (r.5(1)). The Health Service Regulations allows the DHSC to indemnify a person or persons who is not already indemnified (r.4(6)), in respect of some liabilities (r.4(1)). The liabilities covered are those in the civil law area of tort – liabilities to pay damages for death, personal injury or loss arising from a breach of a duty of care (r.4(2)). The power to indemnify applies to those providing direct care for those with Coronavirus (r.4(3)(a)) but also those filling a role in treating other patients where the usual worker is unable to do so because they are providing this direct care, or for some other reason related to Coronavirus (r.4(3)(b), (c))). The purpose of this Regulation is to allow the DHSC to secure health care workers from legal liability for, in effect, medical negligence in relation to changes in their working practices, for instance working in a field that they do not normally work in, caused by the crisis. This does not mean that the victim of such negligence would not have a remedy, but makes it clear that it would be against the DHSC rather than the health care worker.

Fourthly, the Enterprise Act Amendment Regulations make one substantive amendment to the Enterprise Act 2008 (r.4(2)). By deleting s.2(b) the Department of Trade and Industry’s power to provide assistance to eligible businesses does not require that “the assistance is likely to encourage sustainable economic growth in the Island”; thus making it clear that assistance to reduce economic decline is lawful. The Regulation also streamlines the process by which Regulations made under the Enterprise Act are considered by Tynwald, no longer requiring approval by Tynwald before they come into effect, but allowing Tynwald to reject them if it chooses (r.4(3) amending s.8). In doing so, the Regulations provide the foundation for part of the IOMG financial response.

Fifthly, the Protection from Evictions Regulations. These provide for a temporary prohibition on evictions in relation to both private residential accommodation, and property used for commercial or social purposes (r.3(2)). This 90 day moratorium (r.4) prohibits a landlord from evicting for failure to pay some or all of the rent (r.5(1), (2)), but does not protect a tenant from eviction on other grounds, or exempt the tenant from paying in full any arrears of rent which build up during the moratorium (r.5(3)). In making arrangements to claim these arrears at the end of the moratorium, however, the landlord “must make reasonable allowances that take into account the financial circumstances of the tenant that are attributable to any income loss experienced by the tenant on account of any of the effects of the pandemic” (r.6).

Finally, and very specifically, the Road Transport Regulations addresses the locations in which taxis may operate. These Regulations make specific changes to an Act of Tynwald without, unusually, identifying what that Act is – contrast the Enterprise Act Amendment Regulations discussed above. From the content of the Regulation, it must be the Road Transport Act 2001. The Regulations extend a taxi license which has been issued under s.29 of the Act to allow operation anywhere in the Island (r.4) – the 2001 Act required applicants for licenses to specify “the area or areas in which the applicant proposes to use the vehicles” (s.30(1)), and provided for licenses to be limited by district (Sch.2, now suspended by r.5).