Although many of the rules in the 2021 lockdown are similar to those in the 2020 lockdown, the legal basis is quite different.
The 2020 response to the pandemic was primarily through Emergency Powers Regulations (EPRs) made under the Emergency Powers Act 1936 (the EPA). The EPA only operates during a formally declared state of Emergency. EPRs made during an Emergency can be continued for up to six months after the Emergency ceases. The 2020 Emergency came to an end on the 26th of June 2020. A number of important restrictions were continued, most significantly in relation to isolation rules and border controls, and the government operated on the basis that it could continue to modify these, through EPRs, for the six months following the end of the state of Emergency.
Even if this was the case, it was clear that this could not be relied upon indefinitely. Rather than rely upon a further state of Emergency if necessary, Tynwald amended the Public Health Act 1990 by the Courts, Tribunals and Local Authority Procedures and Miscellaneous Provisions Act 2020. The amended Act is here. The key section for current purposes is Part IIA – Public Health Protection, in particular s.51B-51F. In contrast to the EPA, this does not require a formal state of Emergency to be declared – but neither it is usable in as wide a range of emergencies, nor does it have any application beyond threats to public health. The EPA is intended to cover a wide range of emergencies, and was initially drafted for use in industrial disputes: the only threat it was seriously considered to use it for right up until 2020.
This Part gives the power to the Council of Ministers to make regulations controlling international travel (s.51B), and “preventing, protecting against, controlling or providing a public health response to the incidence, spread or effect of infection or contamination in the Island” (s.51C), which can include “imposing or enabling the imposition of restrictions or requirements on or in relation to persons, things or premises” (s.51C(3)(c)). The latter is most important for non-travellers, and is subject to some specific restrictions: it must not be considered disproportionate by the authority imposing the restriction (s.51D(2)), and must be imposed in response to a serious and imminent threat to public health (s.51D(4)). This section cannot be used to order an individual to submit to medical examination, to be removed or detained in a hospital, or to be kept in isolation or quarantine – the power to do these things is instead vested in a judicial officer (s.51(G)(2)(a)-(d)). Neither power may be used to require a person to undergo medical treatment, including vaccination (s.51E) – which might be read to go so far as not allowing IOMG to distinguish between vaccinated and non-vaccinated persons under the orders, and so restrict any preferential treatment of vaccinated travellers.
These two powers may be used to create health protection regulations (following the style of the actual Regulations made so far, PHRs), with very broad effect (s.51F(2)), including amending primary legislation (s.51F(3)). This can include creating criminal offences punishable by a fine equivalent to 4 times level 5 (as of today, £40,000), custody for a term not exceeding 3 months, and a further fine of up to £100 per day for continued default after conviction (s.51F(5)). Compared with the EPA, there is no provision for forfeiture of property as a punishment, a similar maximum prison sentence, a sharply increased maximum fine, and the possibility of a penalty continuing to accrue so long as the defendant remains in default. PHR offences are triable summarily. Regulations can also create fixed penalty notices (s.51F(2)(i)).
Before exercising these powers, CoMin must consult the Department of Health and Social Care and such other persons as appear to it to be appropriate if practicable to do so (s.51PA). PHRs, unlike EPRs, do not generally come into operation until approved by Tynwald (s.51Q(2)). A PHR may come into effect before Tynwald approval if is it declared, by the person making it, “that, by reason of urgency, it is necessary for it to come into operation before it is approved” (s.51Q(3)). In that case it must be laid before Tynwald, and approved by Tynwald within 14 days (s.51Q(5)), or cease to have effect. There is a little more leeway than under the EPA: the EPA required approval within 7 days (although the expiry period was the same), and had no provision for it proving impossible for the President to summon Tynwald within the period (contained in s.51Q(5A-C)).
Peter Edge's Law Blog. 