Lockdown 2.0: Rules all the way down.

~ pwedge

In the first Manx lockdown, there were two, and occasionally three, layers of rules which could culminate in criminal liability, including the possibility in many cases of a prison sentence.

  • The Emergency Powers Act (primary legislation which had been approved by the normal legislative process of Tynwald); allowing …
  • Emergency Powers Regulations (secondary legislation created by the executive which had to be approved by Tynwald within a certain period or cease to have effect); referring to …
  • Government Guidance (typically on the website).

I wrote critically of the over-use of reference to government guidance in the first lockdown. I am still unconvinced that failure to follow a rule posted by whoever has been given responsibility for maintaining that part of the government website should be the basis for criminal liability.

In the new lockdown, another layer is added.

  • The Public Health Act (primary legislation which had been approved by the normal legislative process of Tynwald); allowing …
  • Public Health Regulations (secondary legislation created by the executive which has to be approved by Tynwald or cease to have effect); relying for the details of the rules upon …
  • Directions (created formally as Government Circulars); referring to …
  • Government guidance (typically on the website).

So a retail grocery shop which does not adhere to the government “guidance”, published on the government website, on how to limit access to non-essential goods faces criminal liability because of a rule which gains its force from an Act (Public Health Act 1990 s.51B, s.51C) which allowed a Regulation (Public Health Protection (Coronavirus) Regulations 2020, reg.30) which allowed a Direction (GC 2021/0011) which allowed Guidance (I would assume this leaflet, although it does not cover the changes in the latest direction).

This is some distance from democratic accountability via Tynwald. Given the pace, and ease, of creation of Directions, is there a pressing need for guidance to be given penal force too?

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