A single, very important, Regulation on the 30th. 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.
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