A very short, punchy, EPR was created at 18.23 on 15 June 2020. The Miscellaneous Revocations Regulations revoked the Events and Gatherings Qualifications Regulations (with immediate effect) and the Closure of Businesses and Other Premises (no.2) Regulations (from the 18^th of June), both discussed here. Along with the earlier demise of the Prohibition on Movement Regulations, this marks the end of three very significant parts of the Manx response to the 2020 pandemic. This EPR also revokes the Speed Limits (no.3) Regulations, with effect from 22 June – an explanatory memorandum to Tynwald explains that this means that speed limits “will be at the same level as prior to the introduction of emergency regulations”.

This Regulation seems likely to be approved by Tynwald. The IOMG view of revocation of an amending EPR, however, is that rejection of the EPR by Tynwald has no effect on the amendment, because of the Emergency Powers Act 1936 s.4(5). If this is the case, it is a feature of the EPA which would repay consideration in any future review of the emergency powers regime. Allowing an EPR which is then rejected by Tynwald to revoke an EPR which has been approved by Tynwald, perhaps very recently, would seem to weaken the extent of democratic oversight by Tynwald.   This is not the case here, since the three Regulations, although all passed on the 12th of June, were not laid before Tynwald until the 16th of June – after this EPR had set the timetable for their revocation.

The Closure of Businesses and Other Premises (no.2) Regulations  expressly revoke the People, Places and Activities Regulations (reg.10). These were made on the 30^th of May, and rejected by Tynwald on the 5^th of May, so were due to expire on the 13^th of June in any case (Emergency Powers Act 1936 s.4(2)), so this EPR revoked them a day early, on the 12 June. Neither this, nor the matching Events and Gathering Regulation made the same day and discussed below, deal with the body of EPRs repealed by the defunct PPAR – the repeals effected by the PPAR, despite it being rejected by Tynwald, must be taken to have stuck. This EPR replaces it with new rules on closure of businesses, and the Events and Gathering Regulation, discussed below, does the same for events and gatherings. The third major EPR which the PPRA sought to consolidate – the Prohibitions on Movement – is simply revoked and not replaced.

This EPR is comparatively simple, but does move a lot of the detail – upon which depends criminal liability – into directives from “a relevant Department”. As a set of regulations aimed at people in relation to their businesses, as opposed to the generality of Manx residents, this seems less objectionable than the PPAR which preceded it – although as I have noted on a number of occasions in this blog, I remain concerned at the details of criminal offences being created by Departments rather than subject to the oversight of Tynwald. A very small list of businesses – nightclubs, swimming pools, cinemas and theatres  –  must remain closed until the Chief Minister announces that they are permitted to reopen (reg.4). Other businesses may open “to the extent, and subject to the conditions referred to in any guidance issued and published by a relevant Department at www.gov.im” (reg.5). Businesses permitted to reopen must adopt such measures as are reasonably practicable to reduce the risk of infection flowing from being on the premises, being in contact with a person from the business or being in contact with an other person on the premises (reg.6(1)). This includes complying with guidance issued by the Department of Enterprise (reg.6(2)). It should be pointed out that there will be two types of guidance under this Regulation: guidance from “relevant Departments” as to the conditions under which a business may reopen, which may include conditions imposed in order to reduce the risk of infection; and guidance from the DoE only on what measures are reasonably practicable to reduce the risk of infection. The guidance from the DoE may include guidance on how to reduce the risk of infection of holding a gathering or event on the business premises (reg.6(3)). These EPRs may be enforced by a constable, or another person designated by either the DHSC or the DHA; and in doing so a constable may enter premises, require a person to leave a business or premises, and use “reasonable force” (reg.7). A person who, without reasonable excuse, fails to comply with sections 4,5, or 6, or obstructs  a person carrying out a function under this EPR, commits a criminal offence (reg.8). This can be be punished by the EPR standard fine and/or imprisonment (reg.8), or a fixed penalty notice (reg.9, amending Fixed Penalty Regulations Schedule).

The Events and Gatherings: Qualification Regulations, provides a freestanding Events and Gatherings regime. The new EPR is simple, and unlike the PPAR, does not provide massive executive discretion over the liability of individuals. The EPR starts from the position that any event or gathering (both defined in reg.3) in a public or private place is permitted (reg.5(1)). Events in public places (by which is meant places “where the public is routinely allowed to enter without the need for prior permission whether on payment or otherwise”) are subject to a maximum size – 10 persons between 6.42pm on 12 June and the 15^th of June, 30 persons thereafter (reg.5(2)). An event or gathering in “any indoor part” of a private place used mainly as a private dwelling must not exceed members of the household, plus two other persons from a single other household (reg.5(3)). An event or gathering “in any outdoor part” of a private place used mainly as a private dwelling is subject to the same maximum size limit for events in public places, but with no limit in relation to the number of households (reg.5(4), with household defined in reg.3). So from the 15^th of June up to 30 people, from up to 30 households, may gather in a public place, or the outdoor part of a private dwelling. A business which is required to stay closed – discussed above – may only allow a gathering of persons to the extent necessary to allow it to prepare to reopen (reg.5(4), referring to Closure of Businesses and Other Premises (no.2) s.4(3)). These Regulations may be enforced by a constable, or other person designated by the DHSC (reg.6(1)). A constable, but not any other person, may enter premises; require one or more person attending an event of gathering to leave; and use “reasonable force” as part of this power of enforcement (reg.6(2)). A person who without reasonable excuse fails to comply with these restrictions, or fails to leave when required to by a constable, or obstructs “any person” carrying out a function under these Regulations, commits a criminal offence (reg.7(1)). This can be punished by the EPR standard of 3 months custody and a fine, or a by a fixed penalty notice (reg.7(2), and reg.8 amending Fixed Penalty Regulations Schedule). There is an harmless error in the latter, as the Fixed Penalty Regulation is amended to included constable’s directions under reg.4,5 and 6 – under this new Regulation, only reg.6 refers to constable’s directions.

The Speed Limits (no.3) Regulations make one change to the EPR speed limits rules. The general speed limit outside of districts or other areas with specific limit, which had been changed to 40 mph by the Speed Limits Regulations, has been changed to 60 mph (reg.4(3) temporarily amending Road Traffic Regulation Act 1985 s.22). This Regulation otherwise duplicates part of the Speed Limits Regulations (no.2), which is revoked (reg.5).

 

A briefer note than usual – other commitments mean my note on the Educational Institutions (Amendment) Regulations comes after it has been rejected by Tynwald. Commenting on a now defunct Regulation which was however law until rejected poses some grammatical challenges – I have opted for the simple active past tense. As this Regulation concerned educational institutions, I anticipate correction!

The principal changes made by this Regulation were in relation to temporary closure directions. The original Regulations provided that parents did not breach the duty to secure education for their child where the school was closed under such a direction. The amendment added that, where such a direction was made, the school did not breach the duty to cover a set curriculum, to provide a religious education, or to make arrangements for collective worship (amending reg.6). Additionally, parents lost the right to have an appeal against a decision considered in person. The definition of behaving in a “disorderly manner” at school was explicitly extended to coughing or spitting at a person. The publication requirement under the Educational Institutions Regulations was made more specific, with the Department being required to publish the directive on the government website (amending reg.7). Temporary closure directives were required to be laid before Tynwald was soon as practicable (new reg.7(1A)).

Since 2000, there has been a substantial amendment to the EPA, and a promise – yet to be fulfilled – of a wide-ranging review of emergency powers.

In 2006, as part of the very wide ranging Criminal Justice, Police and Courts Bill, a clause was proposed to amend the trigger condition under the EPA, adopting a definition of emergency from the UK Civil Contingencies Act 2004. There was some opposition to the change taking place in a portmanteau Bill, with Mr Karran, referring to his personal experience of a near state of emergency, objecting to it being “thrown in as an afterthought” (HK 3 May 2006, 1055 K123).

The passage of the Bill through the Keys is notable for the first pre-pandemic reference to disease and the EPA. Mrs Hannan was primarily concerned about the Governor in Council retaining a role in relation to emergency powers, rather than the Council of Ministers, but in listing circumstances which might lead to the EPA being invoked, she referred to “riot or flooding or bird flu or whatever” (HK 3 May 1054 K123). The focus of the debate was not on the actual change the amendment would effect, but on the continued role of the Governor in Council in the process. This was justified in the discussion of clauses by reference to the role of the Governor in summoning “those elements of the military who would be brought in to assist” (Mr Shimmin, HK 3 May 1057 K123). By the Third Reading in the House of Keys, the mover was able to refer to ongoing discussions between the Chief Minister and the Lieutenant-Governor about this point – transfer would be desirable, but the military assistance issue made this complex (Mr Shimmin, HK 9 May 2006, 1088 K123). A Bill to address this specific issue was under consideration for introduction in 2007 (Mr Shimmin, HK 9 May 2006, 1085 K123).

The mover, Mr Shimmin, reassured the House of Keys that the amendment was “a halfway house to resolving an out-of-date 1936 Act”, and called for it to be supported pending “an amendment more satisfactory than this” (HK 3 May 2006 1057 K123). Although not referred to expressly, Mr Shimmin may have had in mind a report approved by Tynwald in 2005 which had called for “updating of all emergency powers legislation” (see CoMin Report, “Functions of the Lieutenant-Governor under Acts of Tynwald”, (2011) GD 34/11, Appendix).

The Bill became law in 2007. It amended s.3(1) to replace the previous trigger condition with “an emergency has arisen or is likely to arise”, and added a new statutory definition of emergency in s.2A of the EPA (Criminal Justice, Police and Courts Act 2007 s.44, 45). The definition is wider, and less onerous, than the trigger condition which preceded it. An emergency is an event or situation which “threatens serious damage to human welfare” (s.2A(1)(a)), or “threatens serious damage to the environment of the Island” (s.2A(1)(b)), or is “war or terrorism which threatens serious damage to the security of the Island” (s.2A(1)(c)). It is noteworthy that the security ground, new to this Act, is narrower than the other two grounds – an event or situation which is not war or terrorism will not satisfy the security ground.

Damage to human welfare requires that the event or situation threatens loss of human life; human illness or injury; homelessness; damage to property; disruption of supply of money, food, water, energy or fuel; disruption of a system of communication; disruption of facilities for transport; or disruption of services relating to health (s.2A(2)). Damage to the environment requires that the event or situation threatens contamination of land, water, or air with biological, chemical, or radio-active matter; or disruption or destruction of plan life or animal life (s.2A(3)). The Governor in Council may by Order provide that a specified event or situation, or a class of events or situations, falls or does not fall within one of the heads of the definition of emergency;  or within the category of threat to human welfare (s.2A(4)). Such an Order requires the approval of Tynwald to come into effect (s.2A(6)).

One point to stress about the background to the new s.2A is that it was taken from the “UK Civil Contingencies Act 2004” (Minister for Home Affairs, HK 5 February 2008, 287 K123); apart from minor changes to translate it into the Manx context, it is identical to the Civil Contingencies Act 2004 s.19. This 2004 Act repealed the Emergency Powers Act 1920 in its entirety – as I noted earlier, the model for the 1936 Act of Tynwald – and replaced it with a complete emergency powers regime. The 2004 Act includes detailed limits on the power to make Emergency Power Regulations (s.21), the scope of a Regulation (s.22), a requirement that the EPR be proportionate and a bar on EPRs amending the Human Rights Act (s.23), and a hard time limit of 30 days on the lifetime of an EPR, albeit recognising that a new EPR may be made (s.26).

In 2007 then, the reach of the EPA 1936 was extended by adopting part of a model from the UK, while not adopting other clauses from that model which limited the use of power during a state of emergency. As I have noted, the 2007 amendment was seen as a half-way house to a fuller review of the EPA. A Bill was promised for 2007 (Mr Shimmin, HK 9 May 2006 , 1085 K123); and the Minister for Home Affairs in 2008 advised that “it is intended that a review of emergency powers should be undertaken” (HK 5 February 2008). In 2011 CoMin issued a report, called for by Tynwald in 2005, into the functions of the Lieutenant-Governor in Acts of Tynwald (CoMin Report, “Functions of the Lieutenant-Governor under Acts of Tynwald”, (2011) GD 34/11). The Report excluded emergency powers from the scope of the review:

 “Whilst some suggestions are made in respect of the functions of the Governor and the Governor in Council in relation to emergency powers, the Council of Ministers’ Constitutional and External Relations Committee and the Tynwald Committee were of the view that a comprehensive review and updating of the Island’s emergency powers legislation is required. The Council of Ministers agrees with this view. Therefore, any legislative changes to the functions of the Governor and Governor in Council in this area should be progressed as part of this review rather than as a separate exercise” (para 2.4)

In the detailed discussion of individual Acts of Tynwald which created emergency powers, the report recommends that a review “should be progressed at the earliest opportunity” (e.g. p12), including for the EPA itself (p27).

As far as I can ascertain at the moment, that 2011 recommendation, calling for review of the Emergency Powers Act “at the earliest opportunity” is the last discussion of the EPA in Tynwald before the current crisis.

A single, very important, Regulation on the 30^th. The People, Places and Activities Regulations replace three, frequently, amended Regulations central to the internal response to the pandemic: The Prohibitions on Movement Regulations; the Closure of Businesses and Other Premises Regulations; and the Events and Gatherings Regulations.

This new Regulation unifies, and alters, restrictions on movement, gatherings, and operating businesses formerly covered by these three different Regulations. Additionally, it adds a new prohibition on dangerous activity.

Part 2 of the Regulation details five “prohibitions”. Every event and gathering is prohibited except in accordance with a direction (reg.5). Entry to a premises or business, except by a resident or a business “for which the person is the responsible person” (defined in reg.3) is prohibited except in accordance with a direction (reg.6). A responsible person is prohibited from opening premises or a business except in accordance with a direction (reg.7). A person is prohibited from taking part in any activity which is “specified as a dangerous activity” in a direction (reg.8). The prohibition on leaving home is slightly more complicated – it is stated as a right for asymptomatic persons to leave home for any reason “unless prohibited from doing so by a direction” (reg.4(1)); and for an exempt person to leave home “despite any prohibitions in a direction” (reg.4(2)). In the case of children, the home of either of their parents is treated as their home so long as their parents are divorced or separated (reg.3).

Directions are clearly of paramount importance, replacing detailed rules in Regulations subject to the democratic oversight of Tynwald. In sharp contrast to Regulations made under the EPA, which must be approved by Tynwald within seven days of being made or lapse, Directions must be laid before Tynwald as soon as practicable after they are made (reg.9(2)), but are not subject to any form of approval by Tynwald. The power to make directions lies with the Department of Health and Social Care (reg.3) – rather than the Governor on the advice of the Council of Ministers as is the case under the EPA, but it must consult with the Director of Public Health and the Council of Ministers before issuing, amending, or revoking a direction (reg.10(1)). A direction, and any guidance to which the direction applies, must be published on the government website “as soon as reasonably practicable after they are made” (reg.10(3)).

Directions may be made “for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of Coronavirus” (reg.9(1)). A direction must “define the terms used within it” (reg.9(3)) – which must mean particular or peculiar terms used within it, although the Regulation does not say this. Without limiting the scope of the power in reg.9(1), a Direction may make provision for prohibitions on movement under reg.4; prohibitions on dangerous activity under reg.9; exceptions to the prohibitions on events  gatherings in reg.5; exceptions to the prohibitions on entering businesses or premises in reg.6; and exceptions to the prohibitions on opening business in reg.7 (reg.9(4)). A Direction may apply to multiple prohibitions or exceptions, and cover the Island or any part of it (reg.9(5)). It may be “general or specific”; “make different provision for different purposes, or be framed by reference to whatever matters the Department considers appropriate”, and “include such other provision as the Department considers appropriate in connection with the giving of the direction” (reg.9(6)).

The Regulation appears to envisage that exemptions – which are individual exemptions to restrictions on leaving the home – are issued in writing by the Chief Secretary (reg.3), but there is no further discussion of them in the Regulation. It appears that the Chief Secretary can issue an exemption to prohibitions on leaving your home to any person on any ground whatsoever, so long as it is issued in writing.

The Directives are to backed by substantial enforcement powers, and criminal sanctions. A constable may stop a person and ask them questions to establish whether they or a member of their household is in contravention of the Regulations “or a direction” (reg.11(1)). The person asked must answer any reasonable question they are so asked (reg.11(2)). Compliance with the Regulations or a direction may be enforced by a constable, or any other person designated by the Department, and a constable may enter any premises and “if necessary, use reasonable force” to do so (reg.12).

The Regulations are also backed by a criminal penalty of up to three months custody and a fine not exceeding £10,000. An offence is committed if a person, without reasonable excuse (a) fails to comply with regs. 4-8 above; (b) fails to comply with a direction; (c) fails to answer questions put to them under reg.11(1)); (d) fails to comply with an instruction to leave premises (discussed below); (f) or “obstructs any person carrying out a function under these Regulations or a direction” (reg.13(1)). Where a person is alleged to have opened premises contrary to reg.7, “regard may be given … as to whether the person operated the business in a way that was inconsistent with any guidance published on [the government website] in relation to the operation of that business” (reg.13(2)).  The fixed penalty notice regime is applied to all five offences under Regulation 13 (reg.15(1) amending Fixed Penalty Regulations Schedule).

More tangentially, the Regulations also correct a minor problem with the Entry Restrictions (no.2) Regulations which I noted earlier. That Regulation left it unclear whether compassionate grounds to travel to attend a funeral (whether incoming or outgoing) was limited to family funerals. That Regulation has now been amended to make it clear that it is limited to “spouse or civil partner or a person living in an enduring family relationship with [the travelling person], and [the travelling persons] child, parent or grandparent, grandchild, brother, sister, half-brother, half-sister and a child of [the travelling persons] family” (reg.15(2) amending reg.3(1)). They also create a power to order a person to leave any premises, other than their home, if the constable believes they are contravening the Potentially Infectious Persons Regulations, or are “awaiting the result of a test for Coronavirus” (reg.11(3),(4)).

Compared with the three Regulations that this new Regulation replaces it is shorter, simpler, and more consistent. This is at the expense of content. This is effectively an “enabling Regulation” which allows the creation of substantive rules by the DHSC across the areas of internal control formerly regulated by these three detailed Regulations. This enabling Regulation removes not only the democratic oversight by Tynwald required by the Emergency Powers Act, but even the formal control of the making of these rules by the Council of Ministers – that is the responsible, democratically accountable, government of the Isle of Man. This government must be consulted by the DHSC – and presumably the DHSC could find itself with a new minister at speed if the Chief Minister were prepared to remove them during the consultation – but the Council of Ministers does not, itself, have any role in the creation of Directions.

Removing the content of the three preceding Regulations from the democratic oversight of Tynwald is an extremely odd move at this point in the crisis, and not fully consonant with an emphasis on consensus in Tynwald which has been presented in Tynwald debates. This problem could be ameliorated by requiring not only that Directions be laid before Tynwald, but that they be subject to an approval process – ideally the positive resolution process which would allow them to come into force but require that they are to be approved at either the next sitting, or the sitting following, if they are to remain in force. If our emphasis is on democratic accountability, it may be better still to keep the content that this Regulation envisages as moving into Directions in the EPRs, subject to approval by Tynwald within seven days.