The period of Emergency ended at 6pm on the 26^th of June, with the proclamation by the Governor in Council that “A state of emergency no longer exists on the Isle of Man and accordingly the proclamation made on 15^th June 2020 shall cease to have effect on the coming into operation of this proclamation”. On the 17^th of July the Governor in Council created the Continuation (no.2) Amendment Regulations, which were laid before Tynwald on the 21 July 2020. These Regulations are on their face made “under section 4A of the Emergency Powers Act 1936”; although Tynwald members were provided with an explanatory memorandum, which refers to section 4 of the Emergency Powers Act as being the basis for the regulation, explicitly referring to the power of the Governor in Council “during the period in which a proclamation of emergency is in force”. This is not the section which the Regulation bases its authority upon, so our focus needs to be on section 4A.

It will be recalled that s.4A was added to the 1936 Act in 2020. Section 4A covers continuation regulations, and was used towards the end of the Emergency Period to continue a number of EPRs. The Attorney General has indicated to Tynwald that section 4A provides the basis for these Regulations, and will provide the basis for further changes to continued EPRs. The Attorney General has indicated to Tynwald that “Although the original regulations were required to be made during the period of an emergency proclamation, given the purpose for which continuation regulations are authorised to be made under section 4A, namely to secure the intended effect of the regulations during the 6 month period, there is implied within the section a power to amend to them during that period in the light of changing circumstances”.

I think the Attorney General is clearly right that there is an implied power to amend a continuation regulation under s.4A. The power to amend continuation regulations is not express, but would seem sensible, and was indeed exercised during the state of emergency when the first set of continuation regulations were amended. It is much less clear to me that this gives the power to legislate under the EPA when a state of emergency is no longer in effect.

The problem to me is the explicit provision in section 4A(1) which states “This section applies where a proclamation of emergency is in operation”. A proclamation of emergency is not in operation for the latest EPR, unlike both the original continuation EPR and the amending EPR passed just before the state of emergency ended.  The Attorney General’s view appears to be that this sub-section should be read as not limiting the operation section to during a state of emergency: not simply filling in an omission in the section, but contrary to the clear meaning of the section. This is not about the power to amend a continuation regulation under s.4A – which I think can be robustly argued for – but about the power to create legislation under the Emergency Powers Act 1936 when the express text of the Act limits the creation of such legislation to a state of emergency.

A rebuttal to this might be that the Attorney General is not arguing for the power to continue to create EPRs in the six month period following a state of Emergency, but only to amend existing EPRs. I think this distinction is not firm enough to serve that argument. A textual change to a continuation EPR could for instance reinstate an EPR which was allowed to lapse, with amendments making it more stringent (under s4A(4)), and giving it life during the post-Emergency period. The approach of the Attorney General undermines the important distinction between a state of Emergency – a constitutional enormity which crises such as the pandemic might justify – and the post-Emergency continuation period. It does so because it does not place sufficient emphasis on the difference between the type of power granted under s4A, and the legal context needed for the powers under s4A to be exercised.

The latest EPR, then, may be invalid; so that the border control regime before it was passed remain in force. If that is the case, the way to proceed may be through – pedestrian though it feels in the wake of the Emergency – primary legislation debated and enacted by Tynwald.

 

The state of Emergency ended at 6pm on the 26^th of June 2020. The final set of EPRs were made that day.

The Continuation (no.2) Regulations 2020 replaced in its entirety the first version of continuation regulations, those made on the 23^rd of June (reg 5). The Regulation provides for the continuation of a significant number of EPRs (detailed in the Schedule) for six months after the ending of the state of emergency (reg.3(1)). For the purpose of these continued EPRs, the Coronavirus proclamation period will extend into this continuation period (reg.3(2)). Five of the continuing EPRs are amended: (i)  the Protection from Evictions Regulations are extended to licensees and service charges (reg.3(3)(a)); (ii) the Births and Deaths Modifications Regulations are substantially modified, with only the provisions in relation to death certificates retained (reg.3(3)(b)); (iii) the Control of Employment Regulations are to be interpreted with the application period ending with the state of emergency, rather than the continuation period (reg.3(3)(c) ; (iv) the Fixed Penalty Regulations are modified to omit – perhaps unnecessarily – offences under the Closure of Businesses and Events and Gatherings Regulations (reg.3(3)(d)); (v) the Local Government Regulations are amended to remove a fixed time frame on filling casual vacancies, and to allow a casual vacancy which it was not reasonably practical to fill by election until within six months of the next normal election to remain vacant (reg.3(3)(e)). The final provision applies to existing vacancies, so long as an election had not taken place before this continuation EPR came into effect (reg.4).

These EPRs are no longer subject to the scrutiny of Tynwald, which had the power not to renew EPRs between monthly proclamation periods. The Chief Minister, in introducing the legislation which made continuation EPRs possible, referred to “continuing protection and ensuring the intended effect of emergency measures does not end abruptly”. The strategy in the Continuation EPR raises a number of points of interest. Firstly, all continued EPRs are continued for the same period – the six months which is the maximum permitted by statute. Secondly, a large number of EPRs have been continued in their entirety without modification. Thirdly, the majority of extant EPRs were continued – 18 in all, as opposed to the 13 which ceased to be of effect at the ending of the state of Emergency. This last point should not be over-emphasised – key features of the Emergency period EPRs had already been repealed during the Emergency. It is, nonetheless, striking that a majority of extant EPRs have been retained in this six month post-Emergency period. The Continuation EPR does not suggest that the continued existence of each provision of each EPR was seen as an anomaly which needed to be justified, and even where justified retained for as short a period as practical.

The other EPR, the Entry Restrictions (no.2) Amendment (no.2) Regulations, allows entry as a key worker for persons certified by the Department of Enterprise “as a person whose presence on the Island is in the interests of the economy of the Island” (new reg.6(1)(a)(v)), adds a new exemption for a person who “provides removal or transportation of furniture, personal effects and personal property services into and out of the Island” (new reg.10C), and details the powers to refuse entry and enforce repatriation (new reg.12A). A person may not be refused entry to, or removed from, the Island where they have taken all reasonable steps to obtain permission under the Regulations, and exercised all due diligence to avoid committing an offence related to lack of such permission (new reg.12A(6)). The Regulations do not permit action to be taken against such a person where it would be contrary to their rights under the European Convention on Human Rights: perhaps most likely to arise in relation to Article 8, the right to respect for private and family life, which has been a limit on states’ power to deport individuals in the past. Repatriation to the UK may well, given the non-sovereign status of the Isle of Man, be more straightforward in relation to the ECHR than repatriation to Ireland or elsewhere.

This latter EPR is in an unusual position in the EPR regime, as the only EPR to be continued by the Continuation Regulations without ever having been approved by Tynwald. The Emergency Powers Act 1936 s.4(1A) does not clarify its status, as that subsection is predicated upon a further proclamation of a state of Emergency. Section 4A, however, would seem to suggest that it has been continued, despite never having received separate approval by Tynwald. Section 4A allows for continuation of “any regulations under section 4 which are in operation during the period of emergency”. As I noted in earlier commentary, this wording could allow the continuation of Regulations which had not been approved by Tynwald within seven days; or indeed one of the Regulations which had been rejected by a Tynwald vote. It seems capacious enough to allow the last substantive EPR made during the Emergency to be continued by the vote of Tynwald approving the Continuance Regulations.