Emergency Power Regulations made on 2nd and 3rd of April.

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.