Emergency Power Regulations passed on the evening of 23rd April 2020.

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.