Emergency Powers Regulations made between 17th and 22nd of April 2020.

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)).