Last week in Tynwald, Mr Robertshaw observed: “I am becoming more and more uneasy now as these Regulations reach further and further into detail and complexity. I think actually we are seeing this afternoon the limit of the reach or the ability of emergency regulations to make sense. I think if this continues my degree of unease will grow significantly to the point that I will actually start saying no, and I will no longer support these sorts of regulations. They are getting too complex, we have to think again”. This may be a good point to reflect on the shape of the Emergency Powers Regulations.

Using numbers as a way of understanding laws can be eye catching, but should be approached with serious caution. Not all laws are equally important, and the length of a law is no guide to importance either. A purely numerical approach might take an Act introducing the election of MHKs as being as important as an Act removing the voting rights of the Attorney General in Tynwald. If we reach below the level of Acts to particular sections, a detailed Act amending say the Companies Acts may seem vastly more significant than a short act abolishing capital punishment for murder. With that caveat, some numbers as a way of understanding the EPRs!

The number of Regulations created each week ramped up rapidly at the start of the crisis, and then fairly consistently drop.

 

Regulations amending earlier Regulations begin to pick up after the peak of new Regulations has passed. Some of this is substantive change to policy, but a significant amount of it is fixing problems that had become apparent after the Regulations were drafted and came into effect – notably identified by members of Tynwald during approval of the Regulation.

Unsurprisingly, given the rules for approval of EPRs, we see approval by Tynwald off-set by a week from the creation of the EPRs. The vast majority of EPRs were put to Tynwald for approval. A small number were allowed to lapse, and in one week (12 April) we have Tynwald exercising its powers to approve subject to amendments for two EPRs.

Finally, turning to subject matter, my categories are inevitably subjective, and I have treated each EPR as only falling into one category. I am likely to revise these subjects once the state of emergency has ceased; and, given what the Chief Minister has said about how EPRs are generated, mapping EPRs onto Departmental portfolios may also be useful. For the moment, it does give a sense of the centre of gravity of the EPR response.

Two Regulations amending the Closure of Businesses Regime were created in rapid succession.

The Closure of Businesses and Other Premises (no.3) Regulations adds recycling facilities to civic amenity sites as premises that may remain open for restricted purposes (reg.3(3)(a), amending Sch.1), discussed further below; and makes it clear that the premises identified for provision of temporary accommodation in the early Regulation noted here are permitted to open for that purpose (reg.3(3)(b)).  The more significant changes are to the rules concerning continuation of operation of businesses, added to the new detail added by Closure of Businesses and Other Premises (Amendment no.2) Regulations, discussed here.  The duty on employers to ensure that premises are regularly cleaned is amended to “regularly and frequently cleaned” (reg. 3(2)(a) amending reg.5(3)(b)). The power of an employer to require the presence at the business premises of employees, limited by the no.2 Amendments is clarified to include a power to require presence at “such other premises as the employee would ordinarily be expected to attend” (reg.3(2)(b) amending reg.5(4)(a)). This covers the case of a business whose employees deliver services outside of their own premises – for instance an electrical goods repair service, or provider of temporary office workers.

The Closure of Businesses and Other Premises (no.4) Regulations makes two amendments to Part 1 of the Schedule, that is businesses which must close. Original entry 20 simply closed “golf courses”; this has been amended to close clubhouses serving golf courses, except that if the clubhouse includes a point where members must report prior to playing golf “that part of the clubhouse may remain open for that purpose only” (reg. 3(2)(a), amending Sch.1). Original entry 21 similarly closed “any premises that provide recreational fishing activities”. The amendment reduces the scope of that restriction to fishing from any unmoored vessel, or from premises charging a fee other than a fishing license fee (reg.3(2)(b), amending Sch.1). This amendment continues the trend of blurring an initially clear distinction between Part 1 of the Schedule (“Businesses and Premises that must close”), Part 2 (“Businesses and premises that may remain open for Restricted purposes”), and Part 3 (“Businesses that may remain in operation”).

The question of recycling facilities appears in both of these amending Regulations. The no 3 Regulations added “other facilities for the collection of recyclable” to the permission to open for civic amenity sites (reg.3(3)(a)), amending Sch.1). The no 4 Regulations correct the no.3 Regulations by adding “products” after the word “recyclable” (reg 3(3)) – correcting a purely typographical error, as the guidance to the no.3 Regulations refer explicitly to “recyclable products”.

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 15^th 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 29^th October 1918).; but on the 11^th 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 –

1. Avoid crowded places, especially dances, parties, and similar forms of amuseument.
2. Keep doors and windows open, and sleep in well-ventilated bedrooms.
3. Brush teeth frequently, and use antiseptic gargles.
4. If headache, shivering, or joint pains are felt, go to bed immediately, and consult a doctor.
5. 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 22^nd 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 7^th 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 26^th of February, and laid before Tynwald on the 24^th 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 24^th 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 26^th of February and the 24^th 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.