Four Regulations were made on the 1^st and 2^nd of April.

Two of these Regulations concern use of the roads. Normally, a person driving a dangerous good vehicle must have completed a basic training course, and for some particularly hazardous loads, more specialised training (more information is here) The Road Vehicles Carrying Dangerous Good Regulations allows the Department of Infrastructure to authorise persons to drive dangerous loads without having the usual certificate, following required training, needed to do so. They can do so by exempting a person from these usual rules (r.6). The Department can issue a certificate to a person who it regards as “vital to the Island’s critical national infrastructure” (r.5(1)), and may impose conditions on any certification (r.5(3)). More broadly the Speed Limits (no.2) Regulations replace the earlier Regulations (noted here). The form of the Regulation which creates a new 40 mile per hour national speed limit is substantially different  (r.4). There are two substantive changes. Firstly, the DTI has flexibility outside town or village districts to set a different speed limit by order – this may be higher or lower than 40 mph (r.4(3)). The earlier Regulation only allowed for an order to set lower speed limits. Secondly, there is an express exemption to the temporary general speed limits outside such districts for “any vehicle operated by, or on behalf of, the Department of Infrastructure, Department of Home Affairs, or the Department of Health and Social Care” (r4(4)). This exemption does not apply to limits created by specific order of the Department of Infrastructure, only to the 40 mile per hour default (Road Traffic Regulation Act 1985 s.23(1)(b) without any modification of the section, per r.4(4)). So if the Department sets a speed limit of 50 mph for a section of road, that limit applies to the vehicles listed. It should be noted, however, that the existing statutory exemption from any speed limit for vehicles used by the emergency services remains intact (Road Traffice Regulation Act 1985 s.27).

The Competition Regulations modify existing competition law. Any agreement or arrangement entered into in order to secure the supply to persons in the Islands of goods or services does not constitute an anti-competitive practice (cl.4(1)), unless the Office of Fair Trading declares that a particular agreement or arrangement of this kind is not in the public interest (cl.4(2)). So, for instance, food retailers could agree to share customers on the basis of efficient delivery routes without the normal implications for competition law. If they were to cooperate in a way the OFT regarded as not in the public interest, however, the normal laws could be enforced against them.

Finally, the Special Constables (no2) Regulation replace the earlier Regulations (noted here). The new Regulation is almost identical to the one it replaces, except with the addition of a detailed Schedule on subsistence and refreshment allowances which, as was noted during the process of approval of the earlier Regulations in Tynwald, was referred to in cl.5(9) but absent from the earlier Regulations. The Schedule explains how the Department must approach these allowances, rather than providing detail on amounts payable. It also provides as, an alternative to being paid the allowance under these Regulations, that a special constable may “be paid a subsistence allowance at such rate as is payable to members of Tynwald and members of the Isle of Man Civil Service” (Schedule, cl3). My reading of the Schedule is that this gives flexibility to the Department as to how it chooses to cover these expenses, not a right by a special constable to choose how their expenses are calculated.

 

A short blog on the Emergency Powers Amendment (no2) Bill, the replacement for the Bill which was withdrawn earlier in the week; and whose content was summarised here.

Two special sittings planned in a single week emphasise the urgency of this legislation. Looking at the Bill, however, it seems to me that the reason for this urgency may be quite specific: the Bill, like its predecessor, will allow Regulations to be created carrying fixed penalties of up to £250, but without requiring formal criminal proceedings unless the recipient chooses to appeal (proposed new s.4(3)(b), 4(3A)(b)). If IOMG wishes to provide for this sort of penalty to back social distancing norms, and other future provisions where quick dispensing of relatively low penalties is desired, this change is essential.

In relation to the power to create offences, these Amendments are very similar to those of the Bill’s predecessors. Offences may be tried in any summary jurisdiction, but not by a non-judicial person appointed in a Regulation (proposed new  s.4(3)(a)). The new Bill will however retain the power to create forfeiture penalties, removing of which I had queried in my commentary on its predecessor (proposed new s.4(3)(a)). A new feature of this version of the Bill is that the former absolute exclusion of a power for Regulations to make changes to criminal procedure has been replaced by a power to do so, subject to “the consent of the Deemsters”, although no Regulation may provide for custody or a financial penalty without trial (proposed new s.4(3A)(a)). As the explanatory notes indicate, there may be a need to change particular rules of procedure, for instance to allow for some offences to be dealt with by live video link rather than in person in court.

Although not the most urgent, arguably the most important provisions are in relation to continuance of Regulations from one period of emergency proclamation to another; and after the end of the emergency. The provisions for continuation of a Regulation have been substantially changed. The Amendment would allow for a Regulation to be continued only if Tynwald votes to continue a Regulation at the first sitting after the start of the new emergency period (new s.4(1A)). The earlier Bill would have allowed Tynwald to render a Regulation invalid at any time, but taken inactivity by Tynwald as allowing the Regulation to continue. The new version, by requiring positive approval from Tynwald at the start of every emergency period, emphasises the importance of democratic oversight.

The new Bill also addresses the issue of how to treat these Regulations after the emergency is over (new s.4A). 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 would have effect when drafted, but must be placed before Tynwald as soon as practicable, and if not approved within two sittings, cease to have effect (Legislation Act 2015 s.31). Given that this element of the Emergency Powers regime is forward looking – looking into the period after the emergency has finished, but only exercisable during the emergency – it may have been better to have required the approval of Tynwald under s.30 of the Legislation Act so that the provisions would not come into effect until approved.

These continuation Regulations may provide for the continuation, with or without amendment, of Emergency Power Regulations for up to 3 months from the end of the emergency. These continuation Regulations are treated as secondary legislation for the purposes of the Human Rights Act 2001. One point of potential interest is the reference to “any regulations … which are in operation during the period of emergency” – clearly a Regulation may be continued which was not in effect for the entire emergency (none have been), but may a Regulation be continued which ceased to be of effect during the period of emergency? In particular, might a Regulation which ceased to be of effect because it was not approved by Tynwald within seven days be continued? If the intention is to allow continuation only of Regulations which were in effect at the end of the emergency, it may be worth amending this clause to make that clearer.

The final provisions, new to the Bill, cover the same ground as the Local Elections Regulations, discussed here. It may be significant that these have been moved into primary legislation while the increase in the power of the Governor to delay filling a vacancy in the House of Keys by a further four months  – contained in the Keys Elections – Casual Vacancies Regulations – has not.

In my commentary on the earlier version of this Bill, I expressed concern that there was no explicit restriction on the power of a Regulation to make changes to Tynwald before a Regulation came to be approved. I suggested that one way to address this concern was to require consent of officers from the legislative branch – the Speaker and the President – before a Regulation by the executive branch making changes to Tynwald could come into effect. This broad strategy has been adopted in the amended Bill, requiring consent of the Deemsters – the chief officers of the judicial branch – if a Regulation of the executive branch is to change criminal procedure. The power of Regulations to affect Tynwald is not, however, covered in this version of the Bill.

One possibility is that IOMG does not consider the Emergency Powers Act gives them the power to change Tynwald by Regulation. Such a view might be based on technical arguments about the intrinsic power of secondary legislation, or on a confidence that a Manx court would find a move to undermine the power of Tynwald “to carry out its constitutional functions” to be unlawful (following the lead of the UK Supreme Court in Miller and Cherry, the key 2019 decision on the power of the Prime Minister to recommend prorogation of Parliament to the Crown). The House of Keys Regulation suggests this is not necessarily so however –the Governor in Council has already used an Emergency Powers Regulation to create up to four additional months when the Keys is composed of 23 rather than 24 members. If IOMG considered that Emergency Regulations could not alter the composition or membership of Tynwald, we might have expected to see the House of Keys Regulations moved into primary legislation alongside the Local Election Regulations.

If Emergency Power Regulations can change Tynwald before they have been approved by Tynwald, I return to my argument in relation to the previous incarnation of the Bill. The wide-ranging restrictions on the individual, and increase in state powers, possible under the Emergency Regulations require democratic oversight by Tynwald. This has been given more weight under this incarnation of the Bill in relation to the continuance of Regulations from month to month. A clause protecting the autonomy of Tynwald would help to delineate the limits of executive power even in this unprecedented emergency which requires swift and wide-ranging action.

This update covers Regulations made on the 30^th and 31^st of March, except for the Prohibitions on Movement Amendment Regulations, which I have already discussed.

The first addresses the recurring theme of building capacity to deal with the crisis, by providing for emergency volunteering leave. The Volunteers Regulations provide an entitlement to be absent from work on emergency volunteering leave for those undertaking a voluntary role in health or social care (r.6). The entitlement does not apply to workers in businesses with less than 10 staff, the emergency services, crew of a vessel, or such other persons as may be specified by the Cabinet Office (r.7).

The worker is required to notify their employer in writing in advance, the application being accompanied by a copy of a certificate from the DHSC  (r.6(4)). Provision is made to ensure agency workers can also use the right (r.18). Such leave may be for between two and four consecutive weeks (r.8). Upon the end of the leave, the worker is entitled to return as if they had not been absent (r.10). Pension rights are dealt with specifically, with the Regulation reading in a rule that the leave is treated the same as time not on the leave into every occupational pension scheme (r.11). There is an exception to this in relation to salary – if a worker is not paid as normal during their emergency leave, the Regulation does not require payment into the scheme on any basis other than their actual pay (r.11(7)). The Employment Act 2006 is modified to protect employees who take advantage of the new right to take emergency volunteering leave (r.13-17).

Although while on leave the worker is entitled to the benefits of employment generally, this explicitly does not include wages or salary – in other words, this is not leave paid for by the employer (r.9). Instead, the Council of Ministers is under a duty to make arrangements for the payment of compensation to emergency volunteers (r.19(1)). Volunteers are to be entitled to compensation for both loss of earnings and travel and subsistence (r.19(9)), but the requirement that the former be for loss of earnings caused by volunteering means that this does not provide for payment of volunteers generally (r.19(3)).

The remaining two amend existing Regulations, as it became clear that the original – appropriately swiftly drafted – Regulations could be improved. In Tynwald on the 31^st of March, the Chief Minister explained that this was likely to be a recurrent element of the Emergency Powers Regulations, and a way in which Tynwald members could help to improve legislation by scrutiny. Strikingly, an Amendment may already have been approved by the Governor before the original Regulation has been laid before Tynwald for approval – in such case knowing that the base Regulation has already been improved in a particular way has allowed members to vote for approval. Should Tynwald on a later date choose to reject the amending Regulation, however, the Regulation as passed will remain law.

The Entry Restrictions Amendment Regulations make a number of changes to the Entry Restrictions Regulations which I have already discussed. The most important change is that the Department of Infrastructure or Council of Ministers may exempt, under the original r.6, a company or other body (new r.6(1A)) As the Chief Minister explained in Tynwald, this provision is not intended to give companies a broad right to allow exemptions, but rather to allow IOMG to exempt groups of employees rather than named individuals –so “the crew of the Ben-My-Chree” rather than the 119 crew by name. The Regulation also requires an exemption issued by the Council of Ministers to state whether it permits entry on more than one occasion (new r.6(ca)).

The Closure of Businesses and Other Premises Amendment Regulations primarily amend the Closure of Businesses and Other Premises Regulations, although they also make consequential amendments to the Prohibitions on Movement Regulation. Both have been noted already.

In relation to the Closure of Business Regulations, there is a replacement Schedule of the three types of businesses (Part 1, must close; Part 2, may remain in operation subject to conditions; Part 3, may remain in operation). In revising the Schedule, the Regulation has introduced a definitional subtlety. Part 1 originally ended “Any other business that is not permitted to continue in operation under Part 2 or Part 3”. It now reads “Any other retail business …” (Schedule, Part 1(26)). Part 3 businesses now include “Any other business that is not listed in this Schedule” (Schedule, Part 3(37)). The interaction of these two provisions is important – a retail business not specified in the Schedule must close, while a non-retail business not specified in the Schedule may remain open without any conditions. So where a particular sector has not been specified, the old Regulations would have required closure, but the new Regulations treat retail and non-retail businesses quite differently.

There are a substantial number of detailed changes in the Schedule, which I will not summarise here. In relation to the illustrative examples in my earlier blog, the purposes for which a place of worship may operate now include broadcasting of a service of religious worship, whereas the Schedule formerly only specified broadcasting of a funeral (although it was lawful for a minister to travel to the place of worship to broadcast a service); and the definition of immediate family for funerals is considerably expanded, in particular now including spouse, civil partner, or “person living in an enduring family relationship” (new r.3(1)). I indicated that the earlier Regulations did not provide for emergency work to preserve life if two tradespersons were required to work closer than 2m to each other. This has now been amended by requiring tradespersons carrying out such emergency work to comply with guidance on “Carrying out emergency repairs in people’s homes” which, amongst other things, lays out the 2m rule only in relation to occupants of the household.

It is worth noting that this change, while sensible in substance, has created a situation where a tradesperson can commit a criminal offence potentially leading to imprisonment for failing to comply with a website published by IOMG, which we might expect to change from time to time without any oversight by Tynwald; while a constable may enter premises and use reasonable force to ensure compliance with this website. Part 2 of the revised Schedule uses this mechanism both in relation to repairs in homes, and keeping of stock.

The Regulation also makes a small number of changes to the Prohibitions on Movement Regulations – broadening the exception for allowing children to be moved between two households where that is the existing arrangement for contact between child and parents (new r.5(1)(f)), and expanding the definition of immediate family for allowing travel to and from a funeral (new r.5(4)). The Regulation does not, however, address the anomaly I noted earlier that it is lawful to carry out a funeral with a friend of the deceased present if no immediate family are available, but it is not lawful for that friend to travel to the funeral.