A substantial number of amendments to the Public Health Regulations through the PHR (Amendment) no.18. coming into effect overnight. One unsurprising change is an extension of the PHRs. These were due to expire on the 26^th of October, and will now run until 20 January 2022.

Residents.

The former definition of “registered resident” now becomes “resident” (amended reg.5, amended reg.10, amended reg.12, amended reg.13a, amended Sch.1), defined in Schedule 6, paragraph 1. This is now given a comparatively simple definition. A resident is a person who owns, leases, or occupies a dwelling in the Island as their only or principal home (Sch 1, para.6(2)), or a person aged 12-17 who spends part of their time on the Island living with a parent or guardian (Sch 1, para.6(2A)).

Residents who would otherwise be Category A persons are allowed to enter the Isle of Man without self-isolation or providing a biological sample so long as they have not travelled outside the Common Travel Area in the ten days before returning to the Island (reg. 2A as amended).

Natural immunity exemption.

A new exemption is added to the existing vaccination exemptions, covering persons, including non-residents, with “natural immunity”. As with the vaccination exemptions, a person who qualifies does not need to self-isolate upon entry to the Isle of Man, and does not need to test (new reg.5C(4)). To qualify for this exemption, the person must have had a positive PCR test, taken within the Common Travel Area (CTA), between 11 and 180 days of their arrival in the Isle of Man; and  must not have travelled outside of the CTA within ten days of arrival (new reg.5C(2)). There is one unusual difference between the natural immunity exemption and the primary vaccination exemption (i.e. the exemption for a person who has been vaccinated). The latter requires that the person is not infected or reasonably suspected of being infected (reg.5A(c)), the former does not. This would seem to suggest that a person who has been vaccinated, but is reasonably suspected of being infected, cannot take advantage of that exemption; whereas a person who has tested positive 11 days before entering the Isle of Man, who is reasonably suspected of being infected, can take advantage of this one. Perhaps the clause was omitted on the basis that everyone who can take advantage of the natural immunity clause would be excluded, but I think this would miss the distinction between “is infected” and “has been infected”. Allowing persons with a recent positive test who are reasonably suspected of being infected to enter the Isle of Man would be odd.

Airports and Harbors.

The restriction on private aircraft under Reg.8 is removed (and subsequently removed from the list of offences in reg.36).

The PHR is amended to allow private vessels to dock at Peel as well as Douglas, subject to guidance issued by the Chief Secretary (reg.7(1) as amended).

CoMin has released a summary of their approach to “Learning to Live in a World with Covid-19”. The report stresses that “This document does not create new policy, or a new approach, merely confirming the current approach, much of which has already been discussed through other channels” – an appropriate aspiration in the midst of a general election campaign.

One striking aspect of the report is the level and type of harm required before CoMin considers that legal intervention in the form of mandated, legally backed, mitigation requirements are imposed:

Government will not seek to implement Island wide or society level restrictions other than at the borders, unless the level of threat rises to the extent that there is significant threat to the health and care system of being overwhelmed.

This does not rule out specific restrictions, which may themselves be based on the power of IOMG as a delivery of services rather than specific legal rules (such as visiting of health care settings, and use of public transport). Island wide restrictions in the interests of public health are, however, an ancient part of the Manx legal system, and have been imposed in response to threats considerably below that of overwhelming of health and care systems. Two historical examples first.

Deemster Parr’s Abstract, an authoritative summary of Manx law compiled in the 17^th century, notes that “the killinge and eating of salmon and salmon frea in kipper time was too obnoxious for the endangereing of breeding leprosie and other noysome diseases: it was therefore ordered … that noe salmon or salmon frea should bee killed in any fresh water or salt water in kipper tyme” (para.86). Violations could be punished by destruction of “nets and engines” for a first offence, 3 months imprisonment for a second offence, and 12 months imprisonment for a third.

The Criminal Code 1872 s.342, a section which is still in force, provides:

“Whosoever will wilfully endanger the public personal safety by any unlawful act, or shall do, cause, occasion, promote, maintain, or continue what is noisome and offensive, or manifestly hurtful to the public; or injure or annoy or tend to injure the public in the enjoyment of any public right or privilege, or cause directly, or manifestly tend to cause, any public calamity, mischief, or disorder, or any common injury or damage to the public in respect to their habitations, personal safety, health, or property, the same being without authority or justification by law, shall be guilty of a misdemeanour; and it shall not be essential that any such unlawful act should be to the general injury of all Her Majesty’s subjects, but it shall be held to be sufficient if it injure or prejudice a class only of such subjects; and no act, being a common nuisance within the meaning of this section, shall be deemed justifiable or excusable on the ground that it is productive of some compensating convenience or advantage to the public.”

There are numerous examples of restrictions on individual choice in the interests of public health in current Manx legislation where the harm being averted is considerably less than overwhelming the health and care system. For instance:

• Hygiene and other food safety rules.
• Bans on smoking in private vehicles carrying children, public transport, and in enclosed public places such as pubs and restaurants.
• Restrictions on polluting rivers.

One argument against state intervention in order to protect public health is that it is not practical to enforce every violation of such an intervention. This has not been fatal to the examples noted above. To focus on food safety rules, these are legal rules which can be enforced by the state against food businesses failing to meet the required standard. Two food safety officers investigate complaints about hygiene standards, and carry out food hygiene inspections. They can recommend prosecution or impose prohibitions on a business or equipment, and if there is an imminent risk to consumers, issue an Emergency Prohibition Notice, subject to confirmation by a court. Two food safety officers are clearly not going to be able to check out every shift of every food business on the Island. So, why bother with food safety rules?

Janice Nadler considers the work of law outside of sanctions or direct coercion in this open-access article. She discusses expressive law – “the claim that law influences attitudes and behaviours by what it expresses” – and gives as examples no smoking laws which coordinate expectations (“When law highlights a behavioural choice in a coordination setting, it changes expectations about how others will behave”), and compulsory seat-belt laws which provide additional information (for instance “what legislators collectively know about the risk of not wearing a seat belt”).

Restrictions on individual judgement and choice in the interests of public health are not new to the Isle of Man, and are not restricted to exceptional periods of crisis. What is perhaps exceptional about the use of state sanctions to regulate behaviour during the lockdowns was the severity of the punishment imposed. Mandating mitigations does not, however, necessarily require severe sanctions against individuals. One of my criticisms of the Emergency Powers Regulations, and indeed the Public Health Regulations, was that a single set of maximum penalties was imposed for each type of violation. Failing to obey a mandated mitigation in a vaccinated population would seem closer to established increases of risk to public safety such as a parking violation, than to the pre-vaccination breaches which led to periods of imprisonment. The PHR limits for fixed penalty offences, of £150 rising to £250 if not paid, might serve well.

Living with coronavirus might eventually turn out to be similar to living with dangerous parking, food poisoning, and passive smoking. The next administration might want to begin by looking at the threat of coronavirus in a (thankfully) largely vaccinated population; comparing it with other endemic threats to public health on the Isle of Man, rather than to the level of threat it posed to an entirely unvaccinated population. It may be that the benefits to public health produced by state intervention aimed at this level of harm could justify modest restrictions on behaviour that generates risk, but not prison sentences for breach of these restrictions.

Given that there are, pending the general election, currently no MHKs, it might be a good moment to think about this.

A fundamental challenge for small democracies is striking the balance between democratic legitimacy for all those exercising governance power, avoiding the concentration of power in a small number of hands, and avoiding paying for a disproportionately large number of people to exercise that power.

Sutton has argued that ‘in small societies it is relatively easy for a determined, unscrupulous, individual … to dominate all or most aspects of the country’s life’. With the demise of the plenipotentiary Lieutenant-Governor, the Isle of Man has moved some way from this, but it is clear that constitutional developments have increased the power of the 24 directly
elected members of the House of the Keys.

A comparison with other small democracies suggests that over-concentration may be a genuine problem for Manx democracy. In 2012 Johnston and McLean analysed the population per elected representative in the only or lower houses of all independent and semi-independent territories with a population between 50,000 and 150,000.Of the 22 considered, both the Channel Island jurisdictions analysed were amongst the most generous. Guernsey (1328) and Jersey (1920) were in the most generous five, along with Bermuda (1783), Greenland (1829) and the Marshall Islands (1645). The Isle of Man (3521) was at 13th place of the 22, bracketed by American Samoa (3083), the Cayman Islands (3083), the Federated States of Micronesia (3664), and Tonga (3692). The difference between the other Crown Dependencies and the Isle of Man is striking.

So, to answer the question in the title, I don’t think there are too many MHKs, and indeed there *might* be too few.

One possible way to address this would be to increase the size of the House of Keys. If the Keys was to be returned to its pre-twelfth century size of 32 members, the Manx ratio on Johnson and McLean’s figures would move to 2640, 8th most generous of the 22 small democracies, bracketed by Dominica and the Seychelles. The ratio of representation would remain notably less generous than that of the closest comparators to the Isle of Man – the fellow Crown Dependencies of Jersey and Guernsey. A significant concern over such an expansion of the House of Keys would be cost, both in terms of salary and infrastructure. This could be met by increasing resourcing of Tynwald – a politically sensitive argument, particularly as the Isle of Man continues to deal with very significant economic and fiscal challenges. Reconfiguring the MHK role as part-time, remunerated pro rata, risks, as was discussed during the Lisvane debate, reducing diversity in Tynwald. More significant resources could be freed up by the abolition of the Legislative Council, and a move to a unicameral chamber of the kind already found in Jersey and Guernsey. Unicameralism has been discussed in the Isle of Man for some time, but remains contentious.

Inspired by some great use of Box of Broadcasts in legal teaching, I’ve been looking at suitable “further viewing” for my third year LLB option in Religion and Law. I’ve added a number to this year’s module, but thought it was something that UK law and religion teachers based in the UK (where most of us have access to Box of Broadcasts), might want to share suggestions on!

So my current materials below, by category. Please email me at pwedge@brookes.ac.uk with your suggestions, either in these categories or under new categories, and I will update. If you could keep the same format (so include hyperlink at bob) that would be handy.

Defining Religion.

“Around the World in 80 Faiths” (2019). A TV series exploring a wide range of religious systems around the world. The episodes on the US and Europe are most relevant to the focus of my course.

Freedom of conscience.

“A Man for All Seasons” (1966) Excellent full-length movie around the final years of Thomas More. One of my favourite films, but raises issues of faith in the law, the forum internum, and law and politics.

Equality and inequality.

“Young, Welsh and Pretty Religious” (2019). A 2019 documentary looking at nine young Welsh people of a wide variety of faiths, in this episode looking at their experiences of intolerance. A really thought provoking succession of people talking about a range of inequalities in their lives including a substantial discussion of being LGBT+ Christian; niqab wearing women;  becoming a Hare Krishna monk; and antisemitism (with an interesting point about vegan food and religion). Part of a series of three episodes available on bob.

Marriage.

“The Big Questions”, Episode 8 (2017). A studio discussion show, which at 42 mins in turns to civil partnerships, with an interesting contribution by Peter Tatchell on “Is marriage what you make it?”.  The series covers a lot of religion/society/politics questions.