The state of Emergency ended at 6pm on the 26th 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 23rd 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.
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