Parallels are often drawn between the 2020 coronavirus pandemic and the “Spanish Flu” pandemic of 1918-1920. The Isle of Man was affected by this earlier pandemic, with the Isle of Man Examiner reporting from the latter part of 1918 to the end of March 1919 a total of 84 deaths (“Influenza Mortality”, Isle of Man Examiner 29 March 1919), against a population of around 55,000 at the turn of the century.
The legal response to this threat was not under a general Emergency Powers Act (no such Act existed), or Imperial statutes or emergency Acts of Tynwald such as those which had played such a role in the wartime regime, but rather a very specific provision which allowed the creation of Regulations with a view to preventing, mitigating, and guarding against the spreading of epidemic disease. (Local Government Consolidation Act 1916 s.195). These powers were seen as broad enough to allow more substantial restrictions on individuals than English law did, and in particular to be able to encompass controls of gatherings of people, including private parties (Isle of Man Times 25 January 1919) – a speculation which as we will see bore legal fruit a little later. Unusually for such significant powers in this era, these were not exercised by the Lieutenant-Governor, but by the Local Government Board, a Board of Tynwald (see the discussion of this by the Vicar General in Tynwald April 15th 1919). The Board was able to make regulations which took effect immediately, and would be proclaimed by the Lieutenant-Governor, but if not confirmed by Tynwald would cease to have effect.
The Isle of Man responded to the early wave of the pandemic with school closures, restrictions on cinemas and theatres, and cleaning requirements for cinemas, theatres, and public conveyances (Proclamation of 29th October 1918).; but on the 11th of January 1919 the government updated this regulation, adding a duty to disinfect daily for “all factories, workshops and shops” (Proclamation of the Lieutenant-Governor of 11 January 1919). These formal regulations, violation of which could be punished by a fine, were – in a precursor of 2020 – supplemented by guidance. At the same time as publicising these regulations, the Government Secretary added that “The general public is required to cooperate with the authorities in preventing the spread of the epidemic” (B.E. Sargeaunt, 11 January 1919):
“The following instructions should be carefully observed by members of the general public –
- Avoid crowded places, especially dances, parties, and similar forms of amuseument.
- Keep doors and windows open, and sleep in well-ventilated bedrooms.
- Brush teeth frequently, and use antiseptic gargles.
- If headache, shivering, or joint pains are felt, go to bed immediately, and consult a doctor.
- Strict isolation should be enforced in every affected case”.
These restrictions were shortly amended, to clarify that the ban included night schools, to reduce the permitted opening hours for cinemas and theatres, and to extend these limited hours to “all dances, theatres, or other public entertainment in any public hall, boarding-house, or any other place where a charge is made for admission, or a subscription is paid” (reproduced in “The Influenza Epidemic”, Isle of Man Times 25 January 1919). Peel continued to pose particular concerns, however, and on the 22nd of February a further Regulation limited to Peel prohibited all performances in cinemas and theatres; closed all churches, chapels, and schools; and prohibited gatherings – even in private houses – of more than twelve people (Peel District Influenza Epidemic Regulation, 22 February 1919, approved by Tynwald 15 April 1919). The restriction on places of worship was removed on the 7th of March (Peel Destrict Influenza Epidemic Regulation, 7 March 1919), the remaining restrictions expiring as planned later in the month.
The 1916 Act saw regular use through a long lifetime. Regulations to deal with influenza were completely routine during the 1920s and 1930s, albeit much less intrusive than the 1919 set, and rarely subject to scrutiny or query in Tynwald. Mr Crellin, moving approval of one set in 1933, constituted the entire discussion of the motion: “This is rather important, and it won’t take a minute. I beg to move this resolution. The regulations are the usual regulations issued when there is an influenza epidemic in the Island” (Tynwald Court, 27 January 1933). They were not replaced by the Emergency Powers Act 1936 – for instance influenza regulations being issued in January 1937. Regulations under this provision of the Act were made 23 times between 1918 and 1973, principally concerning influenza but also on occasion measles, psittacosis, and scarlet fever.
It may be tempting to see the powers under the 1916 Act as the precursor to the Emergency Powers Act 1936. It is better, however, to see them as the precursors to the Public Health Act 1990, which repealed and replaced the 1916 powers. The Public Health Act 1990 was the legal basis for the first emergency regulations in the current crisis, the Health Protection (Coronavirus) Regulations 2020, created on the 26th of February, and laid before Tynwald on the 24th of March, but as it was not approved by Tynwald at that point, ceasing to have effect on that day (Public Health Act 1990 s.51Q(3)-(5)). Since the 24th of March, Regulations under the Emergency Powers Act 1936 have instead been the primary tool for dealing with the pandemic.
Comparison of the legal structures used to respond to the 1919 and 2020 pandemics raise some interesting lines of inquiry. The 1919 response, in a context where Tynwald was incomparably weaker in relation to the Lieutenant-Governor than today, was by a Board of Tynwald, not the Lieutenant-Governor. Changes in executive government in the Isle of Man have been so profound, however, that this may not be a useful comparison. Perhaps more illuminating will be the possibilities the 1919 experience shows for regulating public behaviour under specific measures aimed at addressing epidemics, rather than emergency powers drafted to deal with a range of possible crises. In this light, the decision made between the 26th of February and the 24th of March 2020 to step away from the powers in the Public Health Act, and instead rely on the Emergency Powers Act even on issues directly related to reducing the spread of the disease, may be particularly significant. The geographical granularity of the 1919 response, with strict special rules for Peel during the broader crisis, does not feel like it would travel well into the 21st century context.
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