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 It is much less clear to me that this gives the power to legislate under the EPA when a state of emergency is no longer in effect.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.

A very short, punchy, EPR was created at 18.23 on 15 June 2020. The Miscellaneous Revocations Regulations revoked the Events and Gatherings Qualifications Regulations (with immediate effect) and the Closure of Businesses and Other Premises (no.2) Regulations (from the 18^th of June), both discussed here. Along with the earlier demise of the Prohibition on Movement Regulations, this marks the end of three very significant parts of the Manx response to the 2020 pandemic. This EPR also revokes the Speed Limits (no.3) Regulations, with effect from 22 June – an explanatory memorandum to Tynwald explains that this means that speed limits “will be at the same level as prior to the introduction of emergency regulations”.

This Regulation seems likely to be approved by Tynwald. The IOMG view of revocation of an amending EPR, however, is that rejection of the EPR by Tynwald has no effect on the amendment, because of the Emergency Powers Act 1936 s.4(5). If this is the case, it is a feature of the EPA which would repay consideration in any future review of the emergency powers regime. Allowing an EPR which is then rejected by Tynwald to revoke an EPR which has been approved by Tynwald, perhaps very recently, would seem to weaken the extent of democratic oversight by Tynwald.   This is not the case here, since the three Regulations, although all passed on the 12th of June, were not laid before Tynwald until the 16th of June – after this EPR had set the timetable for their revocation.

The Closure of Businesses and Other Premises (no.2) Regulations  expressly revoke the People, Places and Activities Regulations (reg.10). These were made on the 30^th of May, and rejected by Tynwald on the 5^th of May, so were due to expire on the 13^th of June in any case (Emergency Powers Act 1936 s.4(2)), so this EPR revoked them a day early, on the 12 June. Neither this, nor the matching Events and Gathering Regulation made the same day and discussed below, deal with the body of EPRs repealed by the defunct PPAR – the repeals effected by the PPAR, despite it being rejected by Tynwald, must be taken to have stuck. This EPR replaces it with new rules on closure of businesses, and the Events and Gathering Regulation, discussed below, does the same for events and gatherings. The third major EPR which the PPRA sought to consolidate – the Prohibitions on Movement – is simply revoked and not replaced.

This EPR is comparatively simple, but does move a lot of the detail – upon which depends criminal liability – into directives from “a relevant Department”. As a set of regulations aimed at people in relation to their businesses, as opposed to the generality of Manx residents, this seems less objectionable than the PPAR which preceded it – although as I have noted on a number of occasions in this blog, I remain concerned at the details of criminal offences being created by Departments rather than subject to the oversight of Tynwald. A very small list of businesses – nightclubs, swimming pools, cinemas and theatres  –  must remain closed until the Chief Minister announces that they are permitted to reopen (reg.4). Other businesses may open “to the extent, and subject to the conditions referred to in any guidance issued and published by a relevant Department at www.gov.im” (reg.5). Businesses permitted to reopen must adopt such measures as are reasonably practicable to reduce the risk of infection flowing from being on the premises, being in contact with a person from the business or being in contact with an other person on the premises (reg.6(1)). This includes complying with guidance issued by the Department of Enterprise (reg.6(2)). It should be pointed out that there will be two types of guidance under this Regulation: guidance from “relevant Departments” as to the conditions under which a business may reopen, which may include conditions imposed in order to reduce the risk of infection; and guidance from the DoE only on what measures are reasonably practicable to reduce the risk of infection. The guidance from the DoE may include guidance on how to reduce the risk of infection of holding a gathering or event on the business premises (reg.6(3)). These EPRs may be enforced by a constable, or another person designated by either the DHSC or the DHA; and in doing so a constable may enter premises, require a person to leave a business or premises, and use “reasonable force” (reg.7). A person who, without reasonable excuse, fails to comply with sections 4,5, or 6, or obstructs  a person carrying out a function under this EPR, commits a criminal offence (reg.8). This can be be punished by the EPR standard fine and/or imprisonment (reg.8), or a fixed penalty notice (reg.9, amending Fixed Penalty Regulations Schedule).

The Events and Gatherings: Qualification Regulations, provides a freestanding Events and Gatherings regime. The new EPR is simple, and unlike the PPAR, does not provide massive executive discretion over the liability of individuals. The EPR starts from the position that any event or gathering (both defined in reg.3) in a public or private place is permitted (reg.5(1)). Events in public places (by which is meant places “where the public is routinely allowed to enter without the need for prior permission whether on payment or otherwise”) are subject to a maximum size – 10 persons between 6.42pm on 12 June and the 15^th of June, 30 persons thereafter (reg.5(2)). An event or gathering in “any indoor part” of a private place used mainly as a private dwelling must not exceed members of the household, plus two other persons from a single other household (reg.5(3)). An event or gathering “in any outdoor part” of a private place used mainly as a private dwelling is subject to the same maximum size limit for events in public places, but with no limit in relation to the number of households (reg.5(4), with household defined in reg.3). So from the 15^th of June up to 30 people, from up to 30 households, may gather in a public place, or the outdoor part of a private dwelling. A business which is required to stay closed – discussed above – may only allow a gathering of persons to the extent necessary to allow it to prepare to reopen (reg.5(4), referring to Closure of Businesses and Other Premises (no.2) s.4(3)). These Regulations may be enforced by a constable, or other person designated by the DHSC (reg.6(1)). A constable, but not any other person, may enter premises; require one or more person attending an event of gathering to leave; and use “reasonable force” as part of this power of enforcement (reg.6(2)). A person who without reasonable excuse fails to comply with these restrictions, or fails to leave when required to by a constable, or obstructs “any person” carrying out a function under these Regulations, commits a criminal offence (reg.7(1)). This can be punished by the EPR standard of 3 months custody and a fine, or a by a fixed penalty notice (reg.7(2), and reg.8 amending Fixed Penalty Regulations Schedule). There is an harmless error in the latter, as the Fixed Penalty Regulation is amended to included constable’s directions under reg.4,5 and 6 – under this new Regulation, only reg.6 refers to constable’s directions.

The Speed Limits (no.3) Regulations make one change to the EPR speed limits rules. The general speed limit outside of districts or other areas with specific limit, which had been changed to 40 mph by the Speed Limits Regulations, has been changed to 60 mph (reg.4(3) temporarily amending Road Traffic Regulation Act 1985 s.22). This Regulation otherwise duplicates part of the Speed Limits Regulations (no.2), which is revoked (reg.5).

 

A briefer note than usual – other commitments mean my note on the Educational Institutions (Amendment) Regulations comes after it has been rejected by Tynwald. Commenting on a now defunct Regulation which was however law until rejected poses some grammatical challenges – I have opted for the simple active past tense. As this Regulation concerned educational institutions, I anticipate correction!

The principal changes made by this Regulation were in relation to temporary closure directions. The original Regulations provided that parents did not breach the duty to secure education for their child where the school was closed under such a direction. The amendment added that, where such a direction was made, the school did not breach the duty to cover a set curriculum, to provide a religious education, or to make arrangements for collective worship (amending reg.6). Additionally, parents lost the right to have an appeal against a decision considered in person. The definition of behaving in a “disorderly manner” at school was explicitly extended to coughing or spitting at a person. The publication requirement under the Educational Institutions Regulations was made more specific, with the Department being required to publish the directive on the government website (amending reg.7). Temporary closure directives were required to be laid before Tynwald was soon as practicable (new reg.7(1A)).

Since 2000, there has been a substantial amendment to the EPA, and a promise – yet to be fulfilled – of a wide-ranging review of emergency powers.

In 2006, as part of the very wide ranging Criminal Justice, Police and Courts Bill, a clause was proposed to amend the trigger condition under the EPA, adopting a definition of emergency from the UK Civil Contingencies Act 2004. There was some opposition to the change taking place in a portmanteau Bill, with Mr Karran, referring to his personal experience of a near state of emergency, objecting to it being “thrown in as an afterthought” (HK 3 May 2006, 1055 K123).

The passage of the Bill through the Keys is notable for the first pre-pandemic reference to disease and the EPA. Mrs Hannan was primarily concerned about the Governor in Council retaining a role in relation to emergency powers, rather than the Council of Ministers, but in listing circumstances which might lead to the EPA being invoked, she referred to “riot or flooding or bird flu or whatever” (HK 3 May 1054 K123). The focus of the debate was not on the actual change the amendment would effect, but on the continued role of the Governor in Council in the process. This was justified in the discussion of clauses by reference to the role of the Governor in summoning “those elements of the military who would be brought in to assist” (Mr Shimmin, HK 3 May 1057 K123). By the Third Reading in the House of Keys, the mover was able to refer to ongoing discussions between the Chief Minister and the Lieutenant-Governor about this point – transfer would be desirable, but the military assistance issue made this complex (Mr Shimmin, HK 9 May 2006, 1088 K123). A Bill to address this specific issue was under consideration for introduction in 2007 (Mr Shimmin, HK 9 May 2006, 1085 K123).

The mover, Mr Shimmin, reassured the House of Keys that the amendment was “a halfway house to resolving an out-of-date 1936 Act”, and called for it to be supported pending “an amendment more satisfactory than this” (HK 3 May 2006 1057 K123). Although not referred to expressly, Mr Shimmin may have had in mind a report approved by Tynwald in 2005 which had called for “updating of all emergency powers legislation” (see CoMin Report, “Functions of the Lieutenant-Governor under Acts of Tynwald”, (2011) GD 34/11, Appendix).

The Bill became law in 2007. It amended s.3(1) to replace the previous trigger condition with “an emergency has arisen or is likely to arise”, and added a new statutory definition of emergency in s.2A of the EPA (Criminal Justice, Police and Courts Act 2007 s.44, 45). The definition is wider, and less onerous, than the trigger condition which preceded it. An emergency is an event or situation which “threatens serious damage to human welfare” (s.2A(1)(a)), or “threatens serious damage to the environment of the Island” (s.2A(1)(b)), or is “war or terrorism which threatens serious damage to the security of the Island” (s.2A(1)(c)). It is noteworthy that the security ground, new to this Act, is narrower than the other two grounds – an event or situation which is not war or terrorism will not satisfy the security ground.

Damage to human welfare requires that the event or situation threatens loss of human life; human illness or injury; homelessness; damage to property; disruption of supply of money, food, water, energy or fuel; disruption of a system of communication; disruption of facilities for transport; or disruption of services relating to health (s.2A(2)). Damage to the environment requires that the event or situation threatens contamination of land, water, or air with biological, chemical, or radio-active matter; or disruption or destruction of plan life or animal life (s.2A(3)). The Governor in Council may by Order provide that a specified event or situation, or a class of events or situations, falls or does not fall within one of the heads of the definition of emergency;  or within the category of threat to human welfare (s.2A(4)). Such an Order requires the approval of Tynwald to come into effect (s.2A(6)).

One point to stress about the background to the new s.2A is that it was taken from the “UK Civil Contingencies Act 2004” (Minister for Home Affairs, HK 5 February 2008, 287 K123); apart from minor changes to translate it into the Manx context, it is identical to the Civil Contingencies Act 2004 s.19. This 2004 Act repealed the Emergency Powers Act 1920 in its entirety – as I noted earlier, the model for the 1936 Act of Tynwald – and replaced it with a complete emergency powers regime. The 2004 Act includes detailed limits on the power to make Emergency Power Regulations (s.21), the scope of a Regulation (s.22), a requirement that the EPR be proportionate and a bar on EPRs amending the Human Rights Act (s.23), and a hard time limit of 30 days on the lifetime of an EPR, albeit recognising that a new EPR may be made (s.26).

In 2007 then, the reach of the EPA 1936 was extended by adopting part of a model from the UK, while not adopting other clauses from that model which limited the use of power during a state of emergency. As I have noted, the 2007 amendment was seen as a half-way house to a fuller review of the EPA. A Bill was promised for 2007 (Mr Shimmin, HK 9 May 2006 , 1085 K123); and the Minister for Home Affairs in 2008 advised that “it is intended that a review of emergency powers should be undertaken” (HK 5 February 2008). In 2011 CoMin issued a report, called for by Tynwald in 2005, into the functions of the Lieutenant-Governor in Acts of Tynwald (CoMin Report, “Functions of the Lieutenant-Governor under Acts of Tynwald”, (2011) GD 34/11). The Report excluded emergency powers from the scope of the review:

 “Whilst some suggestions are made in respect of the functions of the Governor and the Governor in Council in relation to emergency powers, the Council of Ministers’ Constitutional and External Relations Committee and the Tynwald Committee were of the view that a comprehensive review and updating of the Island’s emergency powers legislation is required. The Council of Ministers agrees with this view. Therefore, any legislative changes to the functions of the Governor and Governor in Council in this area should be progressed as part of this review rather than as a separate exercise” (para 2.4)

In the detailed discussion of individual Acts of Tynwald which created emergency powers, the report recommends that a review “should be progressed at the earliest opportunity” (e.g. p12), including for the EPA itself (p27).

As far as I can ascertain at the moment, that 2011 recommendation, calling for review of the Emergency Powers Act “at the earliest opportunity” is the last discussion of the EPA in Tynwald before the current crisis.

A single, very important, Regulation on the 30^th. The People, Places and Activities Regulations replace three, frequently, amended Regulations central to the internal response to the pandemic: The Prohibitions on Movement Regulations; the Closure of Businesses and Other Premises Regulations; and the Events and Gatherings Regulations.

This new Regulation unifies, and alters, restrictions on movement, gatherings, and operating businesses formerly covered by these three different Regulations. Additionally, it adds a new prohibition on dangerous activity.

Part 2 of the Regulation details five “prohibitions”. Every event and gathering is prohibited except in accordance with a direction (reg.5). Entry to a premises or business, except by a resident or a business “for which the person is the responsible person” (defined in reg.3) is prohibited except in accordance with a direction (reg.6). A responsible person is prohibited from opening premises or a business except in accordance with a direction (reg.7). A person is prohibited from taking part in any activity which is “specified as a dangerous activity” in a direction (reg.8). The prohibition on leaving home is slightly more complicated – it is stated as a right for asymptomatic persons to leave home for any reason “unless prohibited from doing so by a direction” (reg.4(1)); and for an exempt person to leave home “despite any prohibitions in a direction” (reg.4(2)). In the case of children, the home of either of their parents is treated as their home so long as their parents are divorced or separated (reg.3).

Directions are clearly of paramount importance, replacing detailed rules in Regulations subject to the democratic oversight of Tynwald. In sharp contrast to Regulations made under the EPA, which must be approved by Tynwald within seven days of being made or lapse, Directions must be laid before Tynwald as soon as practicable after they are made (reg.9(2)), but are not subject to any form of approval by Tynwald. The power to make directions lies with the Department of Health and Social Care (reg.3) – rather than the Governor on the advice of the Council of Ministers as is the case under the EPA, but it must consult with the Director of Public Health and the Council of Ministers before issuing, amending, or revoking a direction (reg.10(1)). A direction, and any guidance to which the direction applies, must be published on the government website “as soon as reasonably practicable after they are made” (reg.10(3)).

Directions may be made “for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of Coronavirus” (reg.9(1)). A direction must “define the terms used within it” (reg.9(3)) – which must mean particular or peculiar terms used within it, although the Regulation does not say this. Without limiting the scope of the power in reg.9(1), a Direction may make provision for prohibitions on movement under reg.4; prohibitions on dangerous activity under reg.9; exceptions to the prohibitions on events  gatherings in reg.5; exceptions to the prohibitions on entering businesses or premises in reg.6; and exceptions to the prohibitions on opening business in reg.7 (reg.9(4)). A Direction may apply to multiple prohibitions or exceptions, and cover the Island or any part of it (reg.9(5)). It may be “general or specific”; “make different provision for different purposes, or be framed by reference to whatever matters the Department considers appropriate”, and “include such other provision as the Department considers appropriate in connection with the giving of the direction” (reg.9(6)).

The Regulation appears to envisage that exemptions – which are individual exemptions to restrictions on leaving the home – are issued in writing by the Chief Secretary (reg.3), but there is no further discussion of them in the Regulation. It appears that the Chief Secretary can issue an exemption to prohibitions on leaving your home to any person on any ground whatsoever, so long as it is issued in writing.

The Directives are to backed by substantial enforcement powers, and criminal sanctions. A constable may stop a person and ask them questions to establish whether they or a member of their household is in contravention of the Regulations “or a direction” (reg.11(1)). The person asked must answer any reasonable question they are so asked (reg.11(2)). Compliance with the Regulations or a direction may be enforced by a constable, or any other person designated by the Department, and a constable may enter any premises and “if necessary, use reasonable force” to do so (reg.12).

The Regulations are also backed by a criminal penalty of up to three months custody and a fine not exceeding £10,000. An offence is committed if a person, without reasonable excuse (a) fails to comply with regs. 4-8 above; (b) fails to comply with a direction; (c) fails to answer questions put to them under reg.11(1)); (d) fails to comply with an instruction to leave premises (discussed below); (f) or “obstructs any person carrying out a function under these Regulations or a direction” (reg.13(1)). Where a person is alleged to have opened premises contrary to reg.7, “regard may be given … as to whether the person operated the business in a way that was inconsistent with any guidance published on [the government website] in relation to the operation of that business” (reg.13(2)).  The fixed penalty notice regime is applied to all five offences under Regulation 13 (reg.15(1) amending Fixed Penalty Regulations Schedule).

More tangentially, the Regulations also correct a minor problem with the Entry Restrictions (no.2) Regulations which I noted earlier. That Regulation left it unclear whether compassionate grounds to travel to attend a funeral (whether incoming or outgoing) was limited to family funerals. That Regulation has now been amended to make it clear that it is limited to “spouse or civil partner or a person living in an enduring family relationship with [the travelling person], and [the travelling persons] child, parent or grandparent, grandchild, brother, sister, half-brother, half-sister and a child of [the travelling persons] family” (reg.15(2) amending reg.3(1)). They also create a power to order a person to leave any premises, other than their home, if the constable believes they are contravening the Potentially Infectious Persons Regulations, or are “awaiting the result of a test for Coronavirus” (reg.11(3),(4)).

Compared with the three Regulations that this new Regulation replaces it is shorter, simpler, and more consistent. This is at the expense of content. This is effectively an “enabling Regulation” which allows the creation of substantive rules by the DHSC across the areas of internal control formerly regulated by these three detailed Regulations. This enabling Regulation removes not only the democratic oversight by Tynwald required by the Emergency Powers Act, but even the formal control of the making of these rules by the Council of Ministers – that is the responsible, democratically accountable, government of the Isle of Man. This government must be consulted by the DHSC – and presumably the DHSC could find itself with a new minister at speed if the Chief Minister were prepared to remove them during the consultation – but the Council of Ministers does not, itself, have any role in the creation of Directions.

Removing the content of the three preceding Regulations from the democratic oversight of Tynwald is an extremely odd move at this point in the crisis, and not fully consonant with an emphasis on consensus in Tynwald which has been presented in Tynwald debates. This problem could be ameliorated by requiring not only that Directions be laid before Tynwald, but that they be subject to an approval process – ideally the positive resolution process which would allow them to come into force but require that they are to be approved at either the next sitting, or the sitting following, if they are to remain in force. If our emphasis is on democratic accountability, it may be better still to keep the content that this Regulation envisages as moving into Directions in the EPRs, subject to approval by Tynwald within seven days.

The 1980s started with a significant change to the Emergency Powers Act, which was a minor – and undiscussed – part of a much more significant change in the Manx Constitution. As we have seen earlier, the way in which the EPA put powers into the hands of the Governor was seen as problematic, even in an era when executive government resided primarily with the Governor. The transformation of IOMG after World War Two led to the Governor’s General Functions (Transfer) Act 1980 and the Constitution (Executive Council) (Amendment) Act 1980, which amended the EPA to place the powers in the hands of the “Governor in Council”, that is, the Governor acting on the advice and with the concurrence of, initially, ExCo, and now the Council of Ministers (originally in the Interpretation Act 1976, but now in the Interpretation Act 2015, Schedule). As the Council of Ministers is composed of members of Tynwald, the recurring demands – dating back to the 1920s debates – that members of Tynwald, if not Tynwald as a body, should be involved in Emergency Powers decisions were met in 1980.

The 1980s saw a transnational environmental disaster impacting on the Isle of Man, following the Chernobyl reactor disaster in 1986. The response of Tynwald was the Food (Emergency Provisions) Act 1986 creating new powers to make emergency orders where there is a hazard to health through human consumption of food. The debates do not suggest any hint of invoking the EPA powers instead. Reflecting on future planning for nuclear accidents, following a review prompted by the Chernobyl crisis, the Chief Minister Mr Walker mentioned that interdepartmental communication in case of a nuclear emergency had been clarified:

“The basic outcome of the meeting was that each department of Government should consider whether any situation with which it was dealing was an emergency within the meaning of the Emergency Powers Act 1936 and, if so, through the Government Secretary inform Executive Council, who would decide whether the situation should be proclaimed as an emergency, in which case a public announcement would be made by the Government Secretary and thereafter supplementary information of a technical nature would be issued to the media by the department most concerned. If the situation was not proclaimed as an emergency the department would continue to deal with the situation as it saw fit” (T403).

Later, in 1996, during a discussion of pollution contingency planning one member of Tynwald, Mr Downie, asked whether the Minister of Transport would be prepared to “declare a state of emergency if it was thought that the economic position of the Manx community needed urgent protection from a major oil pollution incident” (TC 20 March 1996 at T574). The Minister did not engage directly with the point, but his reply that the Chief Harbourmaster would have total control under the contingency plan suggests that the EPA was not factored into that plan.

As in previous decades, however, the focus of EPA discussion was around industrial action, and this led to change in the EPA itself.

The sea route between the Isle of Man and the United Kingdom was an ongoing controversy in the mid-1980s, with concerns expressed over the companies operating the route, the logistics of the route, and the impact of industrial disputes between seamen and employers on the Isle of Man generally. Debates in the 1980s repeatedly refer to the especial vulnerability of the Island to this sort of disruption, with Mr Lowey for instance noting that “Our predicament, if you like, is more acute and can be affected much more quickly” (LC 6 December 1988 at C14). Referring generally to events in “recent months”, in 1985, seeking to promote a power to nationalise companies in the national interest, Mr Delaney accused the Chairman of Exco (Mr Edgar Mann) of knowing that “he came within a stroke of signing the Emergency Power Act which would have hit every headline in the world” (TC 22 October 1985, T271).

In 2006, reflecting back on this period, Mr Cannan recalled the key moment in 1985:

“After five days the Island came to a halt – and Members will recall that in England, about two years ago, there was the same situation. At the end of the five days, so serious was the situation in the Isle of Man that, on a Saturday evening, all Members of Tynwald were summoned. Dr Mann was then Chairman of the Executive Council, the Chief Minister, and he told us that at six oʼclock the Lt.-Governor was coming to Tynwald, Tynwald would assemble, and a state of emergency would be declared. The military would come in to move the petrol supplies. A tanker would be escorted into Douglas and unloaded under naval guard. At that point, ten minutes to six, Mr Moffatt and the Trades Union Council signed a deal and it was all off. It was as close as that, and you, Mr Speaker, and Mr Delaney will all recall that.” (HK 3 May 2006, 1056 K123).

Following a strike in November 1986, a committee of Tynwald reported that, although EPA powers had not been needed in that dispute, the legislation might need to be amended to ensure that they could be used in future (discussed by Mr Walker, Chief Minister, HK 8 November 1988 K131). While the Bill was in preparation, but before it had entered Tynwald, a serious strike occurred. Looking back on the seven weeks strike in Tynwald Court, Mr Corrin noted that “it was a point of discussion during this strike of the Government using emergency powers, and the Chief Minister was speaking one morning [on Manx Radio], when he said it was not appropriate. That is not the truth, we do not have emergency powers” (TC 16 February 1988 at T684). This led the Chief Minister, Mr Walker, to explain the position more clearly. He noted the 1986 recommendation that the EPA be amended to allow an Emergency Proclamation where there was “substantial harm to the economic position of the community”, but thought “that even if that had been in place – and it is not – we would have been stretched to pretend that that situation was in fact facing us at any time during this last seven weeks” (ibid T730). The Bill was in draft form for the House of Keys, but “in fact I requested it should not be introduced until after the end of this dispute, because again I thought it would be seen as being provocative, but I had the knowledge that if needed it could have been introduced quite quickly and proceeded with. Manx Radio’s ‘legal adviser’ one morning suggested at one stage that we could enact emergency powers because people were being inconvenienced. That is not the case … we did make a Press statement but in fact the necessities of life need to be at risk” (ibid T730).

After the 1988 strike had been resolved, however, the amendment did come to Tynwald. The Bill would redefine the trigger events allowing declaration of a state of emergency, most importantly adding economic harm, and allow an emergency to declared in relation to “a substantial portion of the community” as opposed to the whole of the Isle of Man (but see my discussion below). Mr Gilbey queried the extension of the trigger event to cover the “supply of any service”, which he thought risked including “all kinds of services one can think of that we could do without, although it might be inconvenient” (HK 8 November 1988 at K131). Mr Walker reassured Mr Gilbey that the fundamental test remained substantial harm, which as he had been advised in the 1988 strike was well above mere inconvenience (at K132). During further discussion in the Keys a query was raised about the power under the EPA to act in anticipation of harm, and the question of how to evaluate substantial harm to the economic position of the community. The Chief Minister replied it would never be exercised lightly, and a Chief Minister would be:

“always, I suppose, aware of the necessity to come and argue the case before Tynwald within a comparatively short period of time, and I suggest a jolly good discipline for anybody who is left with the responsibility … if emergency powers were declared at a time when it was not necessary, it would make it very, very difficult the next time” (K244).

The Bill passed without division in the House of Keys, or in Legislative Council, and became the Emergency Powers (Amendment) Act 1989. What did it change?

Firstly, the trigger for the Governor in Council to be able to declare a state of emergency was changed. The list of events which the Governor in Council had to believe had occurred, or were about to occur, was amended to include events which

“by interfering –

• • with the supply and distribution of food, water, fuel or light; or
  • with any means of transport; or
  • with any means of communication or
  • with the supply of any service

are likely to –

• • deprive the community of the essentials of life; or
  • cause substantial harm to the economic position of the community” (amended s3(1)).”

Some of the change is modernising of language – for instance “transport” rather than “the means of locomotion”. The two more significant changes are to the nature of the threat, and to the harm which is threatened. The nature of the threat was expanded to include both a specific reference to means of communication, and the catch all “the supply of any service”. The harm was expanded beyond depriving the community of the essentials of life, to include – as a direct result of reflection on the maritime strikes of the 1980s – substantial harm to the economic position of the community.

Secondly, a definition of “community” was added to the Act to include “a substantial portion of the community” (amended s.2). The legislative debates indicate that this was seen as an innovation by the 1989 Act (e.g. HK 8 November 1988 K132). The explicit definitional section was, but the substantive change had already occurred in 1964, when the Emergency Powers Act 1964 added “any substantial portion of the community” to those whose deprivation of the essentials of life could trigger a state of emergency (Emergency Powers Act 1964 s.1 amending Emergency Powers Act 1936 s.3(1)). Elsewhere in the 1989 debate, however, we see evidence of confusion as to what was being amended, with a member putting forward a clause to remove hard labour as a punishment, drafted by the legislative draftsman, to be told by the Attorney General that the change had already been effected in 1963 – an exchange the Attorney General described as “obviously unsatisfactory” and promised to look into (HK 29 November 1988 K224). It may be that the implications of the 1964 Act on this point were lost track of during the debate.

I had originally planned to cover the period up to the end of the twentieth century in one, longer blog, but there is enough of interest in the 1980s and 1990s – including substantial amendments to the EPA, discussion of Chernobyl and oil slicks, and a suggestion that the powers were nearly used in the summer of 1985 – that I will discuss the development of the EPA during the twentieth century in two blogs. In this blog, I discuss the development of the EPA from the 1940s through to the end of the 1970s, and the role of the Big Freeze in extending the EPA from human action to natural disasters.

The 1940s and 1950s.

The passage of the Emergency Powers Act 1936 might have been thought to have been just in time for the national emergency represented by World War Two. In fact, as with World War One, this was treated primarily as an Imperial emergency, not a Manx one. Substantial amounts of Imperial legislation, and orders specific to the Isle of Man, were created under the Defence Regulations and associated legislation. These continued well beyond the end of hostilities, with Tynwald forming a Committee to review them at the end of 1949, but even then the moving Attorney-General noted that some regulations would doubtless be allowed to continue (TC 20 December 1949, at 281). In 1954 the continued existence of powers under the Defence Regulations were lamented as “a remarkable thing … after the war has been over for so many years” (HK 30 March 1954 at p.667), and this led to a long list of the Defence Regulations still in force even at that point in the mid-1950s (ibid, at 668), with Defence Regulations provision still being a live issue into the 1970s (e.g. HK 1 November 1977 at K21; HK 3 April 1973; HK 6 February 1979). The emergency regulations from World War Two lingered for a considerable time after the end of the emergency which led to their creation – food for thought perhaps. In 1973, considering the General Control of the Economy Bill, which I discuss briefly below, the Lord Bishop thought “it is quite right that emergency powers should not turn into regular powers” (LC 12 June 1973 at C244).

The 1960s.

Working from Tynwald Hansard, rather than any confidential correspondence or government files, it appears that the EPA came comparatively close to being invoked only twice in the post-war period up to the end of the 1970s, both times in relation to strikes. In 1966, a National Union of Seamen Strike led to the Attorney General proposing a motion to approve the Lieutenant-Governor setting up a committee to monitor the strike, and take action as necessary. Apart from being a further example of an industrial dispute underpinning thinking around the Emergency Powers Act, the 1966 crisis has one feature of particular interest. The Attorney General, arguing successfully for the creation of the Committee, noted:

“I cannot speak for the committee, but I feel sure that if circumstances permit they will take no such drastic steps without coming to Tynwald because in the end it is Tynwald which has to bear the responsibility for the nation’s welfare …I am quite confident that the committee will not lose its head, that it will not use a sledgehammer to crack a nut, but those powers must be there in the case of a very grave emergency arising” (TC 17 May 1966 at 1512).

The idea that the Lieutenant-Governor should involve members of Tynwald in decision making before a proclamation of emergency, a contentious issue in the 1920s which failed to make it into the law in the 1930s, is here underpinning the approach of Tynwald to a crisis where a state of emergency was possible “in such a case as we may find ourselves in, in a relatively short space of time” (ibid, at 1508). On the same day as the Committee was approved, the National Union agreed to a shipment of essential supplies by a volunteer crew (TC 17 May 1966, at 1553), and no state of emergency was proclaimed.

More concretely, the 1960s saw an important amendment made to the Emergency Powers Act 1936. It will be recalled that the 1936 Act originally required action taken or immediately threatened by any person or body of persons, calculated to deprive the community of the essentials of life. The Emergency Powers Act 1964 made two important changes.

Firstly, the trigger allowing the Governor to make an Emergency proclamation ceased to be tied to human action, and instead became that “there have occurred, or are about to occur, events of such a nature”. This change was introduced by the Attorney General as having arisen from a change to the similar legislation in the United Kingdom:

“It occurred to the Home Secretary last winter when the country was getting into a bit of trouble and we were being frozen up that he should have similar powers in the event of matters which are not threatened strikes but nevertheless would interfere with the supply of food, fire, light — something, for example, to cope with a natural phenomena and so on. It is a wise provision to cover a situation which may never happen” (LC 2 June 1964 at 1121).

The UK legislation referred to was the Emergency Powers Act 1964, which made this textual change to the Emergency Powers Act 1920, and received royal assent in June 1964. Introducing the Bill in February 1964, the Home Secretary noted that:

 “It was during the prolonged bad weather of last winter that I first started to think about the limitations on our powers to take emergency action in a national emergency … [currently] it must be a serious emergency and a manmade one … The sort of contingency I have in mind is an unforeseen calamity of a wholly exceptional kind. Flooding on an even more serious scale that the grave East Coast Floods of 1953 is a conceivable possibility … Another possibility is a quite abnormally long freeze-up, worse even than we experienced last winter … There is another contingency which the amendment of the law in Clause 1 will cover. The more highly organised life becomes, the more the country depends on a great variety of supplies which come to us from abroad and so, if there is any interruption of those supplies, we are the more vulnerable. Oil is perhaps the most obvious case” (HC Deb 20 February 1964 vol. 689, cc.1409-1412).

Setting the Attorney General’s comment aside, then, the Home Secretary was inspired by the winter of 1962-3, rather than 1963-4. The winter of 1962-3, commonly referred to as The Big Freeze, was exceptionally severe (for memories and archives in a short video, see here). During passage through Legislative Council discussion shifted, slightly oddly, to industrial action and examples when industrial action might pose a threat to the Isle of Man – for instance a strike by pilots (LC 30 June 1964, at 1211), but the Attorney General stressed that the Bill was not altering the existing position insofar as it applied to strikes, but extending the Act to “a natural calamity” (LC 6 October at 7). It also, although this was not the subject of any discussion, changed the wording in relation to imminency of the threat from “has been taken … or immediately threatened” to “occurred or about to occur”. Arguably, a more direct translation from human action to events would have referred to “immediately about to occur”, but this may be reading too much into the change in wording. The Bill also removed explicit reference to “of such a nature and of so extensive a scale” from the Act.

Secondly, the Bill added “or any substantial portion of the community” to the group which needed to be threatened for the emergency powers to be applied. This provision had existed in UK law to deal with, for instance, a regional threat, and the Attorney General argued for its application simply to bring the Manx law in line with the UK provision upon which it was modeled.

The Bill had a quick and easy passage through the Legislative Council, and even quicker through the Keys.  The Second Reading, including clauses, took less than three columns of Hansard; the Third Reading less than one column. For contrast, and immediately preceding the Second Reading, the Second and Third Reading of the Public Lavatories (Turnstiles) Bill took 12 columns. There was a brief discussion about the implications of adding “substantial portion” (HK 3 November 1964, at 247), and a request for reassurance about the rights of workers in industrial disputes (ibid, at 248), but no substantive discussion at all about adding “natural calamities” to the circumstances that could allow a proclamation of emergency.

I have already suggested that if it had not been for the Manx strike of June 1935, the Emergency Powers Act 1936 may not exist. Once the Manx statute books had a statute based on a UK model then, during this period in particular, a dynamic followed where adopting changes to the legislation to stay in step with the UK legislation seemed a default position. So, when the UK responded to the Big Freeze of 1962-3, the Isle of Man followed. As a result, the extension of the Emergency Powers regime to “natural calamities”, rather than “manmade” was not the subject of contention in the Legislative Council, or any debate at all in the Keys.

The 1970s.

Generally applicable provisions for future crises were not the subject of debate in Tynwald during the 1970s – instead, three more specific issues were discussed.

Firstly, in an explicit recollection of the 1966 strike, a Select Committee of Tynwald was appointed in relation to a postal strike that had started that evening and, as in 1966, the possibility of the Governor using EPA powers “as the last resort if no other course was open to him” was put on the table (TC 19 January 1971, T324). Secondly, as noted above, the UK Home Secretary had foreseen a dependency on oil as a possible cause of a national emergencies. This was dealt with specifically in discussion of the Energy Bill, which would give the Lieutenant-Governor extraordinary powers in case of this specific sort of emergency (LC 4 December 1979; LC 6 November 1979; HK 23 October 1979). This became law as the Energy Act 1980. Thirdly, the General Control of the Economy Bill, which was put forward as a temporary Act to allow the control of inflation by regulating prices and incomes (HK 13 March 1973, HK 3 April 1973, LC 12 June 1973 HK 6 February 1979). This became law as the General Control of the Economy Act 1975.

In the 1980s, however, the shape of broadly applicable Emergency Powers came back on the political, and legislative, agenda. I will discuss this in a future blog.

Three Regulations this time, two making significant changes to two foundational Regulations under the EPR regime: control of entry and closure of businesses.

The Entry Restrictions (no.2) Amendment make extensive amendments to the recently revamped border control regime, including what the Guidance notes describe as a “clarification” that in this Regulation United Kingdom “is to be construed as a reference to the United Kingdom, the Republic of Ireland and the Channel Islands” (new reg.6(12)). This is odd – and given the history of the UK and the Republic of Ireland unfortunate – and given this appears to be the same as the Common Travel Area, changing the scope from UK to CTA may have been preferable.

More substantively, the amendment expands the definition of key workers who are permitted to travel, allowing the DI to certify a member of the merchant navy (amended reg.6(1)(a)(i)) or Manx resident working in the commercial sector of the maritime industry (new reg.6(3A)), expanding the police or fire officer definition to encompass members of the Armed forces (resident on the Island or on active service), members of the Manx judiciary (resident or entering the Island for a judicial purpose), and temporary advocates entering to participate in proceedings before a court,  (amended reg.6(1)(a)(iii) and new reg.6(1A)). The position of a Manx resident who re-enters the Island to provide vital, including medical, infrastructure is addressed (new reg.6(3)(za), 6(4)(za)); as is that of Air Accidents Investigators, who are now brought within the definition of emergency services (new reg.8(c)).

There is a new ground allowing the Chief Secretary to exempt a person from the prohibition on entry, that of contractual obligation (new reg.10A). This applies to a person who the Chief Secretary is satisfied intends to make the Island their main place of residence, and has entered into a legally binding contract in relation to a permanent office or employed position, or the purchase or lease of premises (new reg.10(2)). This is a power, not a duty, so the Chief Secretary could decide not to issue an exemption to – for instance – a person who, purely in order to qualify, created a shell company which then offered them an employed position.

The amendment also amends exemptions for residents of the Island, altering the definition of resident by extending the length of time which can be taken into account of – for instance by allowing residence in an owned Manx dwelling 12 months ago to bring a person within the definition, rather than the former 6 months (amending reg.7(9)), and allowing a tenancy of any term to be taken into account (amending reg.7(9)(b)). The Chief Secretary is now given the power to determine that a person is resident who does not fit even these expanded time frames is, nonetheless, to be treated as a Manx resident (new reg.7(9A)).

The scope of compassionate grounds for entry, by which primarily is meant attending a funeral, under reg.10, is extended, by removing the former requirement that the person applying for entry be a Manx resident (former reg.10(2)). The former Regulations limited compassionate ground travel to leaving the Island to travel to the UK or Ireland, and then returning. The new Regulations have no geographical limit – so individuals from anywhere in the world may be granted permission to the Isle of Man to attend a funeral; and Manx residents may be granted permission to travel anywhere in the world to attend a funeral, and then return.

There is also a related amendment to the Prohibitions on Movement Regulations, which is unclear.  The Entry Restrictions Regulations definition of compassionate grounds refer to “the funeral of a member of the person’s immediate family (within the meaning of the Emergency Powers (Prohibition on Movement) Regulations 2020” (reg.3(1), unchanged). This Amending Regulation amends the attendance of a funeral ground under the Prohibition of Movement Regulations to delete reference to “the funeral of a person who was a member of his or her immediate family”, replacing it simply with “a funeral”. This clearly means Manx residents can attend funerals of anyone in the Isle of Man; but does it mean that compassionate ground exemptions can be granted for funerals of anyone? The text of the Entry Regulation still refers to “a member of a person’s immediate family”, while the Movement Regulations which that definition refers to no longer use the term in relation to funerals. “Immediate family” is used elsewhere in those Regulations however (reg.5(1)(fa)), and remains defined in the Regulation, albeit only in relation to that provision (reg. 5(3)). Amending the Entry Restrictions Regulation itself to delete “immediate” may have been a better way to proceed. There is a more straightforward change, allowing movement by a person permitted to enter the Isle of Man for the purposes for which they were permitted to enter the Island (new reg. 5(1)(ab)).

The Closure of Businesses and Other Premises (Amendment no.9) Regulations make a significant change to businesses generally. Formerly, businesses were only permitted to have on their premises employees who could not properly carry out their duties at home, and were not permitted to allow more persons on their premises than were necessary for the operation of the business, albeit on a sustained basis (former reg.5, 5A, and 5B). These have now been abolished (by reg. 3(2), 3(3), 3(4)(b)). More specifically, self-catering accommodation may now open for members of the same household (amending Part 2 of the Schedule); and attending self-catering accommodation on that basis is now permitted under the Prohibitions on Movement Regulations (by reg.4, creating new reg. 5(1)(ac)). A person who is not a resident of the Isle of Man may use self-catering accommodation: this includes a person attending a funeral, but also “a person who is unable to reside in his or her primary residence”, which I would read as including every person whose primary residence is not in the Isle of Man, but who is in the Isle of Man under one of the (growing) exemptions under the Control of Entry Regulations.

Finally, the Town and Country Planning Procedures Regulations make a substantial number of detailed amendments to the planned regulations; the effect of which is to provide that planning appeals will be considered through written representations only.