Emergency Powers Regulations 9th of April.

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.