Two Regulations were made on the 25^th of April, one of broad significance to the general public, and the other very specific.

With Friday’s change in emphasis between the restrictions on movement regulations, and the restrictions on events and gatherings, the power of the police to issue fixed penalty notices for the latter is of practical importance. The Fixed Penalty (Amendment) Regulations address a problem I identified in my note on the amendment to the Events and Gatherings Regulations, that the fixed penalty regime appeared to apply only to the offence in Regulation 8(1), and not the new offence in Regulation 8(2). This Regulation applies the fixed penalty notice regime to the Regulation 8(2) offence.

The Provision of Temporary Accommodation Regulations allow the Department of Health and Social Care to secure temporary accommodation for persons who do not have a right to occupy any premises (reg.4,5).  If the DHSC concludes that a person has no right to occupy any premises, that person is eligible to be housed: the default is therefore that a person is not eligible under the scheme (reg.6(3)). The person does not need to be a Manx resident, but obviously needs to be present in the Isle of Man (draft license, part A). A person who provides false or misleading information to the DHSC when it is determining whether a person has a right to occupy a property commits an offence punishable by up to 3 months custody and/or a £10,000 fine (reg.6(2)). A person who accepts an offer as a temporary resident must pay a charge for the accommodation, but this may be deducted from a state benefit (reg.8). Accommodation may only be offered on terms set out in a form letter in the Regulations (reg.7): meaning that the law only allows temporary accommodation to be offered in either the Sefton Express Hotel or Athol House Hotel; and that a weekly charge of £192.25 per week including three meals a day be charged. In its current form, therefore, this Regulation is very specific indeed.

A further Regulation signed, and taking effect, yesterday did not appear online until after I had written the earlier explainer: so 23 April Supplemental!

The Prohibitions on Movement (Amendment no.3) Regulations amend the principal Regulations restricting individual freedom of movement. It will be recalled that a general prohibition on movement under the Prohibitions on Movement Regulations noted here,  have a list of exceptions allowing people without symptoms to leave their home, detailed under reg.5. The Amendment revises these on a number of specific, but significant points: (1) leaving the house for shopping does not need to be for purchase of “basic necessities” (amending reg.5(1)(b)), and a visit to take waste to a civic amenity site is now also permitted (adding new reg.5(1)(ba)); (2) leaving the house for exercise no longer needs to be for “one form of exercise per day”, but instead is permitted in order to undertake “exercise or leisure activity” (amending reg.5(1)(c)), leisure activity excluding sporting activities with people outside the household, and activity in an unmoored vessel  (amending reg.3), and requiring that the activity is undertaken, as far as reasonably practicable, with a 2m separation from people who are not a member of that household (amending reg.3(3)); (3) the existing ground of caring for an adult who would otherwise suffer avoidable harm is now supplemented by providing assistance for an immediate family member not in the household, providing that there is no entry to their property (adding new reg.5(1)(fa)); (4) the existing ground of attending a funeral is now supplemented by visiting a grave (amending reg.5(1)(g)). The Regulation is not exclusively about easing the restrictions however, with a new, clarifying, rule that members of different houses may not share private transport or a taxi (new reg.3(7) ).

Three Regulations were signed into law late on the evening of the 23^rd of April, coming into effect immediately, although their content was not published until the next day. Given two of them create new criminal offences, and the third blurs the reach of an existing offence, it might be best if no prosecutions were brought in relation to conduct in the period between the law being created, and it becoming publicly available to citizens as per the general requirement under the European Convention on Human Rights that restrictions on rights be prescribed by law.

The Events and Gatherings (Amendment no.2) Regulations modify the gatherings rules in significant ways. A constable is now empowered to stop a person and ask them questions in order to determine whether they or a member of their household “has taken part, or is taking part, in a gathering and if so, the purpose of the gathering” (reg.3(2), creating new reg.7(4)). If the question asked is reasonable, the person must answer it (new reg.7(5), but see my query below). A constable may require a person or members of the persons household to leave any premises if the constable reasonably believes that remaining at the premises creates a higher risk than leaving the premises of coming within 2m of someone who is not a member of the household, and such a contact would not be permitted under a regulation made under the Emergency Powers Act (new reg.7(6)).

It is unclear how far these new powers and duties are backed by criminal law. The power to ask and require an answer, and the power to require a person to leave premises, are applicable whether or not a direction has been made under the reg.4 or 5 of the original Regulations (new reg.7(3)), suggesting that “direction” in this Regulation means the direction under these sections, rather than the new requirements from a constable. The liability for failing to meet the duty to answer questions by a constable, and for failing to leave a premises, is not specified at any point in the Regulation, and is not clear to me.

The offence under these Regulations has been amended, but, some rephrasing apart, only by adding a new offence of intentionally taking part in a gathering which was not permitted under Emergency Power Regulations, or as part of required attendance at court (new reg.8(2) and (3)). This in turn creates a problem. This new Regulation was passed after the introduction of a fixed penalty notice option for regulation 8. Unfortunately the schedule to the fixed penalty notice regulation has now become ambiguous: the schedule refers to “Regulation 8: failure without reasonable excuse to comply with a direction given under the Regulations”; while other Regulations which create multiple criminal offences in the same section are broken down by sub-section and description for each offence. It is not clear to me that the new offence of intentionally gathering is subject to the fixed penalty regime.

The other Regulation of broad effect passed is the Closure of Businesses and Other Premises (Amendment no.2) Regulations. The broadest changes concern the operation of businesses allowed to continue to operate (under both Part 2 and Part 3 of the Schedule). In relation to safety, the Regulations previously required food businesses to operate in a way consistent with IOMG Guidance (reg.5(4) as amended), but otherwise left the details of how businesses should meet their duty to ensure the business adopted such measures as are reasonably practicable to reduce the risk of infection unspecified (reg.5(3)). The new Regulations specify that this duty includes ensuring so far as practicable that persons can remain at least 2m apart, that premises are regularly cleaned, and that facilities are available for regular handwashing or sanitising (reg.3(2), creating new reg.5(3)(a)-(c)). In relation to the rights of employees, businesses permitted to remain open may only require employees to work on their premises where their “attendance is necessary for the proper performance of” their job (new reg.5(4)(a)); and must ensure that “no more persons are present at any one time than is necessary for the effective operation of the business” (new ref.5(4)(b)).

This Regulation also makes more specific changes to particular types of business. To carry on my illustrative theme from previous notes, places of worship may now be open to install and maintain broadcasting equipment, as well as actually carrying out such a broadcast (reg.5(3), amending Schedule Part 2). Graveyards and cemeteries may be open for “any purpose” without any special restrictions. Construction has also been significantly changed, with any construction, gardening, or landscaping business similarly being allowed to operate for “any purpose” without any special restrictions (reg.5(3), amending Schedule Part 2). Allowing a business to operate for any purpose without any special restriction may have fitted better into in Part 3 (businesses that may remain in operation) rather than Part 2 (businesses and premises that may remain open for restricted purposes).

The criminal offence associated with these Regulations has been given a new twist. As I noted earlier, the offence aimed at persons running a business contrary to the Regulations is not covered by the fixed penalty notice scheme; and carries quite a substantial penalty. In relation to a business which is accused of operating outside the permitted conditions (whether specific to their type of business, or the general duty detailed above), a new clause has blurred the difference between law and guidance: “regard may be given, when determining whether the person is guilty of the offence, as to whether the person operated the business in a way that was inconsistent with any guidance published on http://www.gov.im in relation to the operation of that business” (new reg.7(4)). I have already expressed concern that this approach in relation to specific businesses risks losing democratic oversight for substantial criminal liability under the Regulations. This new provision takes the same approach across any sector upon which IOMG chooses to post guidance, potentially mutable guidance, on their website.

Finally, the Electronic Transmission of Information – Enterprises Regulations allow electronic filing of a range of documents in the Companies Registry (reg.5), and for deferral of payment of fees until one month after the end of the Coronavirus Proclamation period (the latter will in practice require a continuation Regulation) (reg. 9). This electronic filing can include signed documents, in which case an image of the document with relevant signatures (which may themselves be added cumulatively to electronic versions of the document) may be submitted (reg.6(1),(2)). Witnessing of signatures may also be carried out electronically, so long as the signature is added to the document while the witness and signatory can observe each other over a video link (reg.6(3)). The Department of Enterprise and the Registrar retain a residual discretion to accept as signed a document that does not satisfy these requirements (reg.6(4)). Everyone who signs or witnesses a document under these provisions is required to keep documents for two years, and produce them upon request by the Department or Registrar (reg.7). These provisions are backed by the usual possibility of custody or a substantial fine, which applies not only to falsely recording or representing compliance with the provisions, but also a failure to keep the required documents for two years (reg.8(2)). The latter is phrased very broadly – there is no explicit requirement that the failure be dishonest, reckless, or negligent.

 

This note covers the three Regulations made between the 17^th and 22^nd of April.

The Prohibitions on Movement Amendment (no.2) Regulations amends the prohibition on movement regime, principally based on this Regulation,  to create a new exception to the limits on movement to allow a person without coronavirus symptoms (1) to move to a new residence where reasonably necessary, or (2)  temporarily move to other accommodation in order to comply with Emergency Power Regulations, and measures such as self-isolation advised “by a Department or appropriate professional body in connection with the Coronavirus pandemic” (new reg.5(1)(l)). A move is reasonably necessary if for reasons of health (that of the person moving or another member of their household), or finances (new reg. 5(5A)). The Regulation also expands one part of the definition of jobs which involve key public services, and so where movement is permitted in order to carry them out. The original referred to “advocates engaged in ongoing proceedings in the courts” (Sch, reg.3(1)(b)). This has been expanded to include trainee advocates and paralegals; attending prison or a police station in relation to proceedings; preparation of key legal documents such as wills, powers of attorney, and disposition of real property (new Sch, reg.3(1)(b)(i)-(iii)).

Another Regulation also deals with legal business, in considerable detail. The Courts etc Regulations use the new powers under the amendment to the Emergency Powers Act to make a substantial number of modifications to how courts and tribunals operate. These include a number of changes to criminal procedure, which required the consent of the Deemsters. This consent is referred to in the explanatory notes, and as no form is required for giving or recording consent, this would seem sufficient. The Regulation expands on existing rules in the Criminal Justice and Police Courts Act 2007 to allow any person to take part in criminal proceedings through a live audio or video link (reg.6, amending s.30). If the courtroom is not properly equipped, a court may sit for all or some of these proceedings in a place where link facilities are available (reg.8, amending s.32). A witness giving, or required to give, evidence on oath by link may be liable for perjury (reg.9, creating new s.32(A)), but the court is not able to deal with a contempt of court by a person participating by link, not giving evidence  (reg.6, amending s.30(19)). These changes can be applied to criminal proceedings which have already begun (reg. 13, disapplying s.39(1)). There are substantial exclusions to the power to carry out criminal proceedings by link. The most significant is that a court may not allow a juror to take part through a link (reg.6, amending s.30(3)); or require a link to be used for the hearing in an appeal except against sentence only (Sch, art.2(2)). There are more significant limits on audio links, particularly limiting participation by the defendant by audio link (Sch.art.3(2), 4(2)). The Regulations also provide for granting of bail by a custody officer (reg.18, creating new Police Powers and Procedures Act 1998 s.50A), and enforcing of bail conditions (reg.16 and 19 amending s.20 and s.52). Finally, the Regulation provides for the use of live video links and live audio links by tribunals (such as the Advocates Disciplinary Tribunal), so long as it is in the interests of justice to use the link (reg.20).

Finally, a very specific Regulation deals with a very narrow prohibition, but one with obvious application given the current makeup of the House of Keys. The Emergency Assistance by Members of the Keys Regulation temporarily disapply the Representation of the People Act 1995 s.6(6). The 1995 legislation provides that an MHK loses their seat if they “accept an office of profit under the Government of the Island, or the government of any country or territory outside the Island” (s.6(6)). There is an existing exception for an MHK who during “a national emergency” (defined in the Act as relating to war or international disturbance) joins the armed forces (s.6(7)(b)), but not for service during an emergency more broadly, or for other types of emergency. There is a very useful review of “office of profit”, focussed on the Australian Constitution but of broader range, here. A key point is that an office which normally carries a salary remains an office of profit even if the person does not accept that salary.  An MHK may now accept an office of profit, for instance by volunteering for a role which would normally carries a salary,  relating to the health service, fire and rescue services, or ambulance services (reg.5(1)).

Last week’s amendment to the Emergency Powers Act added the power to create fixed penalty notice offences. The Fixed Penalty Regulations implement this.

A fixed penalty notice is a notice “offering the person to whom it is given the opportunity of discharging any liability to conviction for the offence to which the notice relates by payment of a fixed penalty” (reg.3). A constable who reasonably believes that a fixed penalty offence has been committed may give a fixed penalty notice to an adult (reg.6). The recipient then has 21 days to decide whether to pay the penalty, in which case no formal criminal prosecution may be brought (reg.7). If paid within 14 days, the penalty is £150; thereafter £250 (reg.9). A constable is not required to give a person the opportunity to pay a fixed penalty notice: the constable who considers the offence may be sufficiently serious to merit a heavier punishment is not required to give them the option of settling things with payment of a fixed penalty. A recipient who wishes to put before a court the case for their being innocent of an offence is not  prevented from doing so – rejecting a fixed penalty notice is not an appeal, rather, it is reopening the normal prosecution route, with the normal maximum penalties if convicted (thus ensuring these penalties comply with the Emergency Powers Act 1936 s.4(3C) as amended). Finally, accepting a fixed penalty notice is not an admission of guilt, and does not constitute a criminal conviction.

It will be recalled that a substantial number of Emergency Powers Regulations have created criminal offences punishable by a fine of up to £10,000 and/or a prison sentence of up to three months. These Regulations do not apply the fixed penalty regime to all of these offences – so for offences under the Infrastructure Support Regulations, for instance, a constable may not issue a fixed penalty notice; and a person who commits an offence may not exclude formal proceedings by paying a small fixed penalty. Instead, the Schedule to the Regulation specifies offences under four Regulations. Fixed penalty notices are available for: all criminal offences under the Potentially Infectious Persons Regulations; the only criminal offence under the Events and Gatherings Regulations; and the only criminal offence under the Prohibition on Movement Regulations.  Not all offences under the Closure of Business Premises and Other Premises Regulations are covered: contravening those Regulations by a person operating a business is not covered by the fixed-penalty system (the reg.7(1) offence), but obstructing without reasonable excuse a person carrying out a function under the Regulations is (the reg.7(2) offence).

Four Regulations were created from the latter part of the 9^th of April to through to the 15^th of April. Additionally, an earlier noted Regulation has been approved by Tynwald with an amendment.

The Entry Restrictions (Amendment no.2) Regulations were noted earlier. As with the Entry Restrictions which they sought to amend, they were the subject of considerable debate in Tynwald on the 14^th of April. The proposed reg. 6A(3)(c) would not allow the issue of an exemption to a returning resident if they had stayed after the 27^th of March at a dwelling owned by themselves, or a close family member. This restriction was removed; although the controversial requirement that every exemption for returning residents include a condition that they are liable “to pay all the costs incurred and associated with his or her re-entry” was not.

Also created on the 9^th of April, and amended during approval by Tynwald, were the Information Sharing Regulations.  The purpose of the Regulation is to allow the Council of Ministers to direct that information protected by data protection legislation be shared between Departments, or a third party required to disclose information, in order to facilitate “any regulations made under the Emergency Powers Act 1936 which relate to coronavirus” (reg.5). The direction from CoMin may include safeguards, and the Regulation notes that these may be intended to prevent abuse, unlawful access, or further disclosure; and must (not may) “provide for the return, deletion, destruction, or other recovery of date from the person with whom it is shared” (reg.5(4)(b)(ii)). Reg 3(1), defining terms used in the Regulation was amended. Working from the audio transcript of Tynwald, the effect of this amendment was to make it clear that information sharing could involve local authorities: although the breadth of the power to make directions under reg.5(1)(b) looks to have included local authorities in any case.

The Events and Gatherings (Amendment) Regulations add to the original regulations, noted here, a statutory definition of gathering as “any meeting or assembly of two or more persons who are not members of the same household” (reg.3 as amended). This is a useful clarification. It makes it clear, however, that this Regulation does not apply to assembly outside the household of members of the same household. These are governed by the Prohibition on Movement Regulations, noted here, which include justifications for gatherings such as attending a funeral.

The Suspension of Regular Service Licenses Regulations state that section 25 of the Road Traffic Act 2001 “does not apply” to Bus Vannin (reg.4). Section 25 creates a criminal offence where a person uses “a public passenger vehicle for the provision of a regular service unless he is a holder of a license”. The statutory regime for licensing of a regular service is quite detailed, and may require an application for a license to state fares, class of vehicles to be used, operating base for the vehicles used, and the route and timetables of the service (s.26). This Regulation allows Bus Vannin to make changes to regular services without the involvement of a licensing body.

Finally, a Regulation which may turn out to be influential in a variety of contexts. The Planning Committee Regulations adds a new definition of “meeting”, perhaps one we will see again, to the normal statutory document regulating the constitution of the Planning Committee. Meeting is defined as including “a meeting which is conducted in such a way that those who are not present together at the same place may by electronic means participate in it” (reg.5(2), amending original reg.3). Similarly potentially influential in the future, the new Regs remove the original requirement that proceedings “must be held in public” and replace them with “must ordinarily be held in public unless this is not reasonably practicable, when they may be held in private” (reg.5(4), amending original reg.17(2)). This Regulation also adds a power to defer consideration of an application (reg.5(3), amending original reg.15).

The Emergency Powers (Amendment) Act 2020 has now received Royal Assent, and has made a number of changes to the Emergency Powers Act 1936, which is the key legislation being used by IOMG for rapid law-making during the current crisis. I have noted the 1936 legislation as the crisis began, the Bill as originally intended to be put before Tynwald, and the Bill which was actually put before Tynwald. For ease of reference, this note is a restatement of the 1936 Act, now including the amendments.

A state of emergency proclamation has been made under the Emergency Powers Act 1936, an Act of Tynwald. On the 16^th of March the Governor in Council (that is, the Governor acting on the advice and with the concurrence of the Council of Ministers) exercised his powers under s.3 on the basis that “there is a pandemic of Coronavirus … it appears that there is a threat of that disease affecting the Island and causing serious damage to human health on, and the economic well-being of the Island”. This proclamation of emergency may not be in force for more than one month, although it may be renewed before the end of that period (s.3(2)). Showing the age of the legislation, the proclamation has to “forthwith be sent by prepaid post to each member of Tynwald” (s.3(4)).

The finding upon which the Governor exercised his power falls within the damage to human welfare head of the statutory definition of emergency (s.2A). The threat of serious damage to human health is a reference to loss of human life (s.2A(2)(a)), and human illness (s.2A(2)(b)). Economic well-being is less clearly a ground for invoking emergency powers, but may be intended to refer to the risk of homelessness (s.2A(2)(c)), damage to property (ibid, (d)), disruption of supply of money, food, water, energy or fuel (ibid, (e)), disruption of communications or transport (ibid, (f) and (g)), or disruption of services relating to health (ibid, (h)).

The Emergency Proclamation allows the Governor in Council to “make regulations for securing the essentials of life to the community and for the protection of the economic position of the community”. They may confer “on any persons in the employ of the public service of the Isle of Man such powers and duties as the Governor in Council may deem necessary for the preservation of peace, for securing and regulating the supply and distribution of food, water, fuel, light and other necessities for maintaining the means of transport, communications and the supply of services and for any other purposes essential to the public safety and the life of the community” (s.4(1)).

The regulations can create criminal offences, triable by a court of summary jurisdiction, with a maximum penalty of a £10,000 fine (s.4(3)(a) as amended), imprisonment for three months, and forfeiture of “any goods or money in respect of which the offence has been committed” (s.4(3)). Regulations can also create offences punished by fixed penalty notices (often referred to as “on the spot fines”) not exceeding £250 (s.4(3)(b) as amended), but in such case the person fined must be provided with the option to refuse the fine, and proceed to a trial for the offence under the Regulations (s.4(3C) as amended). Any regulation altering existing criminal procedure requires the consent of the Deemsters (s.4(3A)(a) as amended), and no regulation may impose a fine or imprisonment without trial (s.4(3A)(b) as amended). This is tremendously wide ranging, the only explicit limit on the regulations being a prohibition on criminalising taking part in a lock-out or strike, or peacefully persuading others to do so (s.4(1)).

Regulations made under the Emergency Powers Act have legal force only during the period of emergency.  During a period of emergency, the Governor in Council may make continuation Regulations which must be affirmatively approved by Tynwald. Affirmative approval means that these continuation Regulations have effect when drafted, but must be placed before Tynwald as soon as practicable, and if not approved at the next sitting (s.4A(3) as amended), cease to have effect (Legislation Act 2015 s.31). Continuation regulations may provide for the continuation, with or without modification, of any Regulations previously made under the Emergency Powers Act, for up to six months from the end of the period of emergency (s.4A(4)). These continuation Regulations are treated as secondary legislation for the purposes of the Human Rights Act 2001.

There is an element of democratic control. The regulations must be laid before Tynwald within seven days of being made, and shall cease to have effect seven days after being made unless approved by Tynwald (s.4(2)). Ceasing to have effect does not mean that the regulations were invalid – so for instance a fine imposed under the regulations will remain in effect (s.4(4)). As noted above, the proclamation of emergency must be renewed on a monthly basis. Regulations made in any earlier month must be approved by Tynwald at the first sitting in that proclamation period, or cease to have effect (s.4(1A) as amended).

The Emergency Powers Act now places on a statutory basis the postponement of local elections made by Regulations issued under the Act (s.6 as amended).

The 1936 legislation is very similar to the English Emergency Powers Act 1920, both procedurally and in terms of the range of regulations, but the 1920 legislation prohibited regulations amounting to compulsory military service or industrial conscription. The 1920 legislation was used 12 times between 1921 and 1973, in each case to deal with industrial disputes. The 2011 report of the Council of Ministers identifies a number of other emergency powers vested in the Governor, but it is striking that a number of them are based on national emergencies due to a state of war “or international disturbance”. Using these powers in relation to Covid-19 may require a purposive interpretation of “international disturbance” which is not obvious from the legislation. The 2020 Amendment Act is not a systematic updating of the Island’s emergency powers legislation, as a report of the Council of Ministers recommended in 2011, but rather a rapid response to problems which emerged when dealing with the current crisis. During the passage of the Amendment Act, it was made clear that such a systematic updating was planned for a later date.

 

Two of the Regulations issued on the 9th of April concerned entering and leaving the Isle of Man. The Public Sector Employees (Travel Restrictions) (Revocation) Regulations had a very specific purpose, which they had served by the time this note was written. The Public Sector Employees (Travel Restrictions) Regulations have already been noted. These Regulations were made on the 3^rd of April, so without approval of Tynwald would expire on the 10^th of April. They were laid, but not moved, before Tynwald on the 7^th of April – so were intended by IOMG not to continue. Until revoked, or timed out, however Emergency Power Regulations remain law. This Regulation revoked them at 2.45pm on the 9^th, while they would have expired normally at 10.40am on the 10^th of April. This Regulation would only have had practical effect if a person covered by the restriction on public sector employees left the Island without their employers permission in that  20 hour period.

The other Regulation dealing with entry was more substantial, and addressed a point of considerable public interest. The Entry Restrictions (Amendment no.2) Regulations lay out the exemptions to the ban on entry to the Island more clearly, and explicitly provide police officers and fire officers, including those to whom an offer of employment has been made, to be permitted to enter by the DHA (new reg.6(1)(a)(ii)); as well as  a broad category of those who the DHSC “has certified is a supplier of goods and services that are essential for the Island’s infrastructure or the health of its community” (new reg.6(1)(a)(ii)). The Regulations also tidy up penalties in a number of other Regulations. The most important provisions are those under the new reg.6A. The exclusion of Manx residents from entry to the Isle of Man has proven very controversial, and a new reg.6A provides a mechanism for their return as residents.

The original Regulations had an exemption for Manx residents returning after having undergone essential medical treatment, which is retained (new reg. 6A (1)). The new provisions allow the Chief Secretary to issue an exemption for a resident of the Island (defined in new reg 6A(5)), who did not leave on or after 6am on the 27^th of March 2020, who has not since that date “stayed anywhere in the world in a dwelling [where] the individual or a close family member of the individual is the owner”, and where “such measures are put in place as are reasonably practicable to mitigate any risks” (new reg. 6A(3)). A measure is not reasonably practicable if “it gives rise to a risk to human life or health” (new reg. 6A(4)). The Chief Secretary’s exemption must (not may) specify the individual, the time the exemption takes effect, the date or dates on which travel to the Island is permitted, the method by which travel is permitted, the conditions on which they are permitted to travel; as well as other conditions the Chief Secretary choose to impose (new reg.6A(8)). These conditions must (not may) include a condition that the traveller is liable to pay all costs associated with their return to the island, including accommodation and travel off-Island, medical assessment, and “any food or accommodation costs during a period of quarantine in the Island” (new reg.6A(9)). These conditions must, not may, include include provision for health checks before the journey to the Island begins (new reg. 6A(10)).

Another Regulation which is likely to be of public interest covers the compulsory removal of persons from care settings. The Vacation of Departmental Facilities Regulations provides mechanisms for the removal of a person receiving care or treatment in a DHSC health and social care service facility (reg.3)  from that facility. These provisions apply to a person who no longer needs to be accommodated in the facility, or who can be removed to make room for another person to be cared for “without undue risk of harm to [their] health and wellbeing” (reg.4(1)). Reasonable notice must be given (reg.4(2)), but the consent of the person to be removed is not required (reg.4(3)). If practicable, the DHSC must move the person to elsewhere in the same institution or facility (reg.4(4)), but the persons wishes as to where they should be moved to are not to be given effect where it is impracticable to do so, or it would put others “at risk of harm of any kind” (reg.4(5)). If it is not practicable to move the person to another DHSC facility, the removing person must so far as they are able ensure an appropriate care package is in place, or without undue delay notify the relevant social services of a neeed for such a package (reg.4(6)). A constable may be called upon to assist in the removal of the person, and may use reasonable force to do so (reg.4(7)). A person who refuses to be removed commits a criminal offence punishable by fine only (not imprisonment), as does their representative if they obstruct the removal (reg.4(9),(10)). The position of the person executing the removal is interesting – they fall within the Regulation if they have “actual or ostensible authority from the Department to communicate to a person or the person’s representative the decision of the Department requiring that person to vacate”  (reg.3); but the Regulations clearly envisage them forming their own judgement “having taken and considered the advice of those concerned in the care or treatment”of the person (reg.4(1)(b)). The Regulation protects this person from liability for “anything done in good faith for the purposes of, or in connection with, these Regulations” (reg.4(1)(8)). Protecting a person with ostensible, but not actual, authority is interesting: the idea of ostensible authority is often encountered as a way of extending liability for the acts of another, rather than protecting that other from liability (for a recent example, see the Privy Council decision of East Asia Co Ltd v PT Satria [2019] UKC PC). The use of “good faith” is also striking – if it goes so far as to cover an honest belief that the removal is authorised by the Department, no matter how negligently formed that view is, the protection would be very broad, covering for instance an administrator who misreads a name on an instruction from the Department, and on relevant medical and social care notes, and insists on ejecting the wrong resident. It would be difficult to see the protection as going so far as actions by a person who did not consider that they had any authority to decide to remove the person, or who deliberately used that authority through a corrupt motive. Put together, these two elements represent a strong emphasis on protection of the person deciding upon, and then executing, the removal of the person receiving care or treatment.

The final two Regulations are of narrower interest; the first very narrow indeed. The Suspension of the Road Transport Licensing Committee Regulations is a dense Regulation which suspends the Road Transport Licensing Committee, and temporarily transfers its functions to the Department of Environment, Food and Agriculture (reg.5). . The RTLC is “an independent tribunal body of government”; during the crisis its functions will be carried out by a Department of Government. This involves very detailed amendment to the text of primary and secondary legislation in the area. For instance, Regulations provide for bus drivers to at all times display the license badge issued by the Committee: the Emergency Power Regulations  change this to DEFA (reg.8).

Of broader reach, in that it might (hopefully implausibly) be read as introducing compulsory service whenever it involves government resources, is  the Infrastructure Support (Regulations). These allow the Council of Ministers to make government resources available to a third party, or to direct that a Department or Statutory Board may carry out the functions of another Department or Statutory Board (reg.5(1)). When making resources available to a third party, CoMin must specify the purpose for which they are to be used (reg.5(3)(a)). A person to whom these resources are made available “who fails to use those resources for the purpose specified in the direction” commits an offence punishable by the usual Emergency Power Regulations level of fine or imprisonment” (reg.6). This is unusually broad. It obviously covers misuse of resources: for instance using a DHSC vehicle to make deliveries for a separate business. It will also cover wilful failure to use resources which have been made available on the basis of a commitment by the person being prosecuted: for instance agreeing to use the vehicle to make deliveries to those in self-isolation, and then losing interest and not using the vehicles. It does not seem limited to those scenarios however: if CoMin directed that a named taxi driver was to have access to the vehicle to carry out unpaid deliveries without any agreement by the driver that they would do so, and the driver failed to do so, they would seem to be caught by the provision. The requirement that the person be specified, rather than simply identified (reg. 5(3)(a)(iiii)), may act as a brake even here (in my example, CoMin could not issue a single direction for all taxi drivers for instance), but it may have been preferable to focus on misuse of, rather than failure to use, resources.

The Regulations made between the latter part of the 3rd, and the end of the 8th, of April mainly focus on streamlining procedures around health care (to address capacity concerns during the crisis), and post-mortem matters.

The Births and Deaths Modifications Regulations make a number of modifications to the death certificate regime. Those qualified to give information about a death under s.19 and s.20 are expanded beyond relatives and those directly involved with the body to the funeral director responsible for the deceased’s funeral (reg.6). A qualified person is normally required to give information about the death to the Registrar, and sign the Register in the presence of the Registrar, within 5 days of the death (Civil Registration Act 1984 s.19(2), 20(2)). The Regulations allow this to be done by telephone or other method as outlined by the Registrar General, in which case  no signature is required (reg.7(2)-(4)). This alternative may be used when it would be unreasonable to require the normal procedure “whether because of illness, the need to care for others, the risk of infection, staff shortages at the registrar’s office or any other reason” (reg.7(4)). Similarly to the Regulations discussed below, the Regulations also relax requirements as to who may sign a death certificate, allowing any doctor to do so if it is impractical for the doctor who attended the deceased to do so (reg.8).  The Registrar General may also allow any document relating to a birth or death to be delivered electronically, or by other means (reg.9)).

The Medical Evidence for Cremation Regulations modify the Cremation Regulations 2000. Regulation 7 of the 2000 Regulations prohibit a cremation taking place without a written certification of the cause of death  by an attending doctor and a second doctor; or a pathologist  who has carried out a post-mortem examination; or where the cause of death has been recorded by a coroner, or an inquest has been opened and a coroner has authorised a cremation as the cause of death has been determined (reg.7). The need for confirmation by a second doctor does not apply where the deceased was an in-patient in hospital and died there, or a post-mortem had been carried out and the doctor was aware of its findings (reg.7(3)). On the face of it, the new Regulation seems to add to the times when a second doctor is required – the repeated use of “and” in this section is, however, an example of the disjunctive rather than conjunctive use of “and” in legislation. There are now three situations when a second doctor is not required. The Emergency Power Regulations  add a new clause here, also allowing exemption from the need for a second doctor in any case where the medical practitioner signing the death certificate “attributes the death to the primary or contributory condition of Coronavirus, and that cause is accepted by the Medical Referee” (new reg.7(3)(c)). The Medical Referee of the crematorium is a medical practitioner (reg.8) with a range of duties, including a duty not to allow a cremation unless satisfied as to the cause of death (reg.9). Putting this change before Tynwald through the Emergency Powers scheme ensures an element of democratic oversight, and is preferable to using the mechanism within the 2000 Regulations which allows modification of the Regulations by order of the Department “during an epidemic” (reg.12(2)).

The Mental Health Modifications Regulations make a number of changes to the statutory regime under the Mental Health Act 1998. This Act provides sweeping powers to take control of the affairs, and person of, a person with a mental disorder – defined in that Act as a person with a mental illness, arrested or incomplete development of mind, psychopathic disorder, and any other disorder or disability of the mind (Mental Health Act 1998 s.1(2)). These include powers to admit and detain a person in hospital to be assessed (s.2) or treated (s.3). Normally this requires the written recommendation of two doctors – the Regulations reduce that to a single recommendation if it is considered that the normal requirement was “impractical or would involve undesirable delay” (reg.7). Other provisions of the regime involving use of medical practitioners are also relaxed (e.g. reg.11), and a number of tight timelimits are relaxed (e.g. reg.8(2)). The overall impact is to reduce the demands on the health service of this part of its work, at the expense of rules intended to impose a particular set of controls on the exercise of the very broad powers under the Mental Health Act.

On a different matter, but again reducing requirements to comply with, and administer, a developed regulatory regime, the Control of Employment Regulations modifies the work permit system in a number of ways. For holders of a work permit which was in force between the 20^th of February and 16 of April, (reg..3(1)), the permit remains in force until six months after the normal end of the permit (cl.5)). An employee holding a work permit who changed employer during this period is able to rely upon their original work permit for its duration. If they were working without a work permit, because of an exemption the Control of Employment Act 2004 s.7, they can continue to work without a permit for six months after the 16^th of April (reg.6(2)).  For the same six month period, no person is obliged to provide the Department with details which would justify their exemption under the Act (reg.7(1), suspending Control of Regulation Employment Regulations 2017 reg.14).

This covers Regulations made on the 2^nd of April not already noted, and one made on the 3^rd.

Two of the Regulations effectively amend earlier Regulations in order to address possible problems in the way in which they were worded. The Road Transport (no2) Regulation is a repeat, and revocation, of the Road Transport Regulations. As I noted, the earlier Regulations suspended provisions of an Act, while not making it clear in the text of the Regulation what this Act was. The new Regulations address that problem (r.3), but make no other changes. The Child Care Services (Amendment) Regulations make one minor change to the earlier Regulations, noted here. The earlier Regulations limited premises regulated by the Regulation to “any premises used for the provision of child care services by a child day care centre”; this is amended by the new Regulation to remove the reference “by a child day care centre”. The definition of premises is important, as temporary closure directives issued under the Regulation are aimed at attendance at premises, and the original definition might have made enforcing an order against a childminder operating from their own home difficult; although other parts of the Regulation were clearly intended to apply to childminders as opposed to day care centres.

The Public Sector Employees (Travel Restrictions) Regulations extends the strategy of the now-revoked Home Affairs Staff Regulations (discussed here) much more broadly. The original Regulation made it a criminal offence for a fairly narrow range of public sector employees to leave the Isle of Man without the permission of the public sector entity which employed them. This has been retained in the new Regulations (r4), but now extends to any “person who is employed by or holds office within the Public Sector Commission, a Department, Statutory Board, office of Government or other public sector entity” except for judges, law officers, the Clerk of Tynwald and the staff of their office, Ministers and members of Departments, officers and employees of a local authority, members of the police force and a further unclear category to which I will return (r.3). The Explanatory note to the earlier Regulations explained that members of the police force were already covered by their own rules, and so did not need to be included in the original restriction, so their exclusion from the expanded list of public sector employees is unsurprising.

The scope of the exclusions is, however, otherwise not very clear. The definition itself piggy-backs on not one, but two, nested, definitions crafted for purposes very different from justifying making leaving the Isle of Man without permission a criminal offence. The definition of public sector employee in the Regulations excludes those listed in Public Services Commission Act 2015 s.3(3). This section lists Ministers and members of Departments, offices and employees of a local authority, and members of the police force, but it also refers to the Public Sector Pensions Act 2011 s.3(1)(a),(b),(d),(e), and (f); which add the remaining exceptions. These include, in (d) “any person (other than a civil servant) employed by a Department, a Statutory Board, or a Board of Tynwald”. The interaction between the general definition of those who the Regulation is intended to restrict (which addresses “a person who is employed by or holds office within … a Department, Statutory Board, office of government or other public sector entity”) and this very broad exception is unclear. One possibility is that the Regulation is intended to restrict civil servants, but not other government employees of a Department or Board – which could mean that some Home Affairs employees clearly covered in the first Regulation are now not restricted (for the definition of civil servant, see Civil Service Act 1990 s.1; in the UK, around 8.3% of public sector workers are civil servants).  Another possibility is that the reference to the Public Services Commission 2015 s.3(3) was not intended to include the further reference to the 2011 Act – which would mean only those listed in bold above are exempt. Finally, it may be that the exclusion from the Regulations of those referred to in the Public Sector Pensions Act 2011 s3(1)(d) was not intended at all, because the status of the Public Services Commission Act 2015 means that subsection (d) is temporarily in abeyance (Public Services Commission Act 2015 s.12(3), (4); Schedule clause 24). This is not at all patent from the text, and the Public Services Commission Act has an unusually complicated history as to which sections come into effect when. It may have been better for these Regulations to include their own, free standing, definition of public employee.

Although wide-reaching, this is not a return to the pre-1836 Manx law. By customary law any inhabitant of the Island, even the Council, and Keys, required a licence to leave the Island. Leaving the Island without such a licence, or taking an unlicensed person off the Island, was a misdemeanour – a serious but not capital offence. Leaving the Island in one’s own boat, or in a stolen boat, was a felony, so for most of Manx history a capital offence. In 1736 these laws were replaced, with regard to the carrier of unlicensed persons, by a fine. The restrictions on emigration were removed entirely in 1836, although as late as 1831 public notices were being issued, for instance in the Manx Sun of the 2^nd of February, indicating that the law would be enforced against those leaving without a license.  The modern restriction, as well as being temporary, applies only to public sector employees as defined in the Regulation, and does not restrict the ability of an individual to avoid that restriction by resigning their job or office.