I will stop repeating my continuing doubts about the legality of any form of EPR made under the Emergency Powers Act 1936 outside a state of Emergency.

Three Emergency Powers Regulations, all made without a State of Emergency being in effect, are being laid before Tynwald on the 20^th of October . The oldest of these was created on the 10^th of August 2020. In sharp contrast to those EPRs made during the Emergency, more than two months will have passed before it is considered by Tynwald. Continuation EPRs do not need to be approved within a fixed timelimit – unlike normal EPRs – but it is worth stressing that the legislation does not refer to the next routine sitting of Tynwald, but that “the responsible authority for the document must cause the document to be laid before Tynwald as soon as practicable” (Legislation Act 2015 s.31). It will be interesting to see if the responsible Minister takes time to explain why it was not practicable to seek democratic approval of an emergency regulation for two months.

There is one quirk to Continuation Regulations being fitted into the Legislation Act procedure, rather than the free standing Emergency Powers Act procedure. There is a decent case for arguing that amendments made by normal EPRs persist even if rejected (Emergency Powers Act 1936 s.4(5)) – so that rejection of an EPR amending an earlier EPR does not cause the earlier EPR to revert to its older form. But continuation EPRs are governed by a slightly modified s.31 procedure. Under the Legislation Act 2015 s.31 regulations need to be approved by Tynwald at the sitting at which it is laid. If a regulation is not approved then “it ceases to have effect”. There is a clarification in the 2015 legislation as to what legislation under s.31 ceasing to have effect means: “any Manx legislation amended or repealed by the document is revived on the passing of the resolution” (s.33(1)(c)). So if Tynwald were to reject these Continuation EPRs, the law would revert to how it was when an amending EPR was last approved.

The Civil Contingencies Bill 2020, intended to update the Manx emergency powers regime following the 2020 state of Emergency, has now been published, and is open for consultation. This is my response to this initial draft of the Bill.

The proposed Bill is based partly upon UK legislation – the Civil Contingencies Act 2004. The principal provisions of the UK Civil Contingencies Act 2004 (as amended) which are used as a model for the Manx Bill are: s.1, s.20, s.21, s.22, s.23, s.26, s.27, s.28, s.30 and s.31.

There are significant advantages to taking foreign legislation as a starting point. Considerable time and effort has already been put into the drafting process, making adoption comparatively quick and cost-effective. For UK models in particular, the legal context will often be similar in the Isle of Man and the UK, allowing for relatively easy transplantation of the UK legislation – especially where the legislation is making changes to an area where UK legislation has already formed the model for the Isle of Man. Where the legislation has been in effect for some time, it may be possible to draw upon insights from how it has worked in practice, or a body of commentary on the strengths and weaknesses of the legislation, in developing the Manx version. In this case, there is no important case-law, and – apart from a substantial text by Walker and Broderick – little commentary, on the relevant provisions of the UK Act.

Adoption can also have two significant weaknesses. Firstly, in adopting an established UK model, it may be too easy to assume that the model is a sound one, and so legislation may not be subject to sufficiently rigorous scrutiny in the Manx legislative process. We have an example of this in relation to the Emergency Powers Act 1936, where a significant change in the 1960s was made with strikingly little legislative debate – less than 1/3 that of the contemporaneous Public Lavatories (Turnstiles) Bill. Secondly, the legislation may be insufficiently sensitive to differences between the Manx and the UK context. This may be particularly important where, as in this case, the legislation is of a constitutional nature.

My response to the consultation will address two distinct issues: (1) The extent to which the Manx Bill fails to reflect significant differences between the Manx and UK contexts, in particular the challenges posed by emergency powers in a small island democracy; (2) The extent to which the Manx Bill does not take account of lessons which can be learnt from the Manx history of emergency powers, both in relation to the twentieth century development of the Emergency Powers Act, and the state of Emergency of 2020.

 

1.      Significant characteristics of the Manx Context.

A significant feature of the Manx context is the concentration of power in, in absolute terms, a small number of persons. The Bill, even compared with the EPA, exacerbates this.

The creation of Emergency Regulations under the Bill.

The powers under the EPA were exercised by the “Governor in Council”, that is the Governor on the advice and with the concurrence of the Council of Ministers. Previous discussion of the EPA had queried whether the Governor should have any role in the regime, questioning why the powers were not exercised by the Council of Ministers. At one point the Bill appears to be giving a similar priority to the Council of Ministers. Part 2 of the Bill states that the Council of Ministers “is to co-ordinate the planning, organization and implementation generally of measures which are designed to guard against, prevent, reduce, mitigate or overcome the effects or possible effects of any emergency happening” (clause 4). It also has a clause dealing with the exercise of powers or functions by the Council of Ministers, allowing exercise of “any power or function conferred under this Act on the Council of Ministers” by any two or more Ministers, subject to ratification within seven days by the Council of Ministers (clause 5).

The detail of Clause 5 paves the way for a strong role for CoMin, as the centre of the Manx government, in the exercise of emergency powers (as opposed to the function outlined in clause 4). It is surprising, therefore, when the Bill does not give any further powers to CoMin. In relation to powers, Clause 5 would appear only to apply to powers created by Emergency Regulations under the Act, as the only substantive power in the Act – the ability to create Emergency Regulations – is vested not in the CoMin but in the Cabinet Office: “the Cabinet Office may make emergency regulations” (clause 7(1)).

Who is the Cabinet Office? The Cabinet Office was formerly the Chief Secretary’s Office. In 2014, when the office was renamed, an Act of Tynwald made a number of changes to legislation. The Cabinet Office (Legislative Amendments) Act 2014 makes a number of specific amendments to earlier legislation, and provides that “a reference in any enactment to the Chief Secretary’s Office is to be taken as a reference to the Cabinet Office”. (s.6(1)). The Chief Secretary was central to the 2020 response, signing EPRs. This was not because the Cabinet Office had the power to create EPRs, but rather because the Chief Secretary may sign public documents on behalf of the Governor in Council or the Council of Ministers (Interpretation Act 2015 s.74(1)).

In a practical sense, the Cabinet Office is bound to have an important role in responding to an emergency. Its remit includes “leading the development, co-ordination and application of policies that will affect more than one department”, and “giving impartial advice and services to the Chief Minister, the Council of Ministers, and to his Excellency the Lieutenant Governor”. This is very different from creating Emergency Regulation itself. The proposed Bill will replace the EPA focus on the Governor in Council – in practice, the Council of Ministers – with one on the Cabinet Office. In sharp contrast to the Council of Ministers, only one individual responsible to Tynwald is, by definition, a member of Cabinet Office: the Minister for the Cabinet Office, currently a post held by the Chief Minister.

As a further concentration of power in a small democracy, this is an undesirable. It would be better to keep the power to make Emergency Regulations in the hands of the Council of Ministers. Given the useful engagement in practical issues of clause 5, this could be accomplished by replacing “Cabinet Office” with “Council of Ministers” throughout. Given the Interpretation Act 2015 s.74(1), this would not reduce the power of the Chief Secretary to sign Emergency Regulations on behalf of the Council of Ministers.

The democratic primacy of Tynwald.

Tynwald is the paramount democratic institution of the Isle of Man, and the development of democratic accountability for the exercise of governance consists primarily of the transfer of power to Tynwald, or to bodies responsible to Tynwald, and the increased democratisation of Tynwald itself. There is a live debate over the extent to which this development is complete – demonstrated recently by debates over the voting rights of the Lord Bishop of Sodor and Man, the role of MLCs as Departmental Members, and the transfer of control of the Council of Ministers from Tynwald to the House of Keys. Nonetheless, the principal is widely accepted: serious exercise of government power requires democratic legitimacy, which at the national level is focussed in Tynwald.

I have already noted a concern that the Bill gives legislative power to a single member of the Council of Ministers, rather than to the Council of Ministers itself. The Bill, in contrast to the EPA, does not employ the concept of a state of Emergency. I discuss this more fully in the next section, but would note here that the EPA did not require Tynwald to approve a declaration of a State of Emergency. The Bill retains from the EPA a requirement that Tynwald approve the Emergency Regulation within seven days of their being made (cl.11(2)), and at 30 day intervals thereafter (cl.12 and 13). These are positive features.

The Bill does not, however, contain significant protection for Tynwald from the power of Emergency Regulations. Clause 9(5) does require the maker of such regulations to “have regard to the importance of ensuring that Tynwald and the High Court are able to conduct proceedings in connection with the Regulations”. This provision, taken from the UK Act, does not however protect Tynwald itself from the power of the EPR. It is possible for an Emergency Regulation to change the composition of Tynwald, and then secure approval for the modification by the modified Tynwald. During the 2020 Emergency, we saw an extension to a vacancy in the House of Keys, but it would have been equally possible for an EPR to redefine Tynwald or to declare particular seats vacant, or in other ways undermine the democratic basis of Tynwald, subject only to the Human Rights Act. The absence of protection for Tynwald from the reach of Emergency Regulations exercisable, as the Bill is currently drafted, by a single Minister is a flaw.

The form of such a protection could take two different forms. The first, substantive protection, would be to exclude legislation defining the composition and powers of Tynwald from the reach of Emergency Regulations. This could be done by adding further legislation to the list under clause 10(5). The difficulty with this arises if ,for instance, a disaster rendered the functioning of Tynwald under the current law impossible. A disrupted Tynwald would not be able to approve measures intended to allow it to function again. An alternative, procedural protection, would be to require the approval of Tynwald officers not involved in the creation of Emergency Regulations for any such Regulation. The President of Tynwald, already given a role under the Bill, may be an appropriate choice. Although providing less strong protection than the substantive route, this would allow greater flexibility in responding to a crisis where Tynwald is unable to function.

On a smaller point, the EPA and the current Bill would allow prosecution for an offence under an Emergency Regulation which had been rejected by Tynwald. This was queried in Tynwald in the 1920s. The solution was to prevent prosecutions for offences under EPRs which had not been approved by Tynwald. This would not remove every effect of the conduct being criminal – for instance rendering a lawful arrest unlawful – but would prevent a prosecution for an offence which had been rejected by the democratic organ of the Manx constitution.

2. Lessons from the Isle of Man.

The fundamental structure of the Bill is based on a UK model, and does not take advantage of the Manx materials available on emergency powers. In particular, the history of emergency powers legislation in the Isle of Man since the 1918 Pandemic, and the concrete experience of living under an Emergency Powers regime in 2020, are both capable of informing the shape of a future emergency powers regime.

The importance of a state of emergency.

As the Lord Bishop of Sodor and Man noted in debate in 1973, “it is quite right that emergency powers should not turn into regular powers”. The danger of emergency powers is that they seep into business in usual – that compromises acceptable because of an exceptional challenge faced by the nation become a permanent part of the legal and constitutional landscape. The great advantage of a declaration of a formal Emergency is that it marks this exceptional period apart from the normal workings of the state. Although it does not guarantee it, this helps to contain emergency powers to a period of emergency.

The importance of demarcation between an emergency and normalcy is strongly demonstrated by the Manx experience towards, and after the end of, the 2020 Emergency. The Emergency came to an end following clear signs that a growing proportion of Tynwald were concerned that EPRs were being made unnecessarily, and that the necessity for continuing emergency powers no longer existed. Part of the government response to this was to continue to make EPRs after the end of the state of Emergency, creating a dynamic period of continued executive legislative power to engage with the challenges of shifting border control – a period whose legality I have questioned. Recent Manx experience, then, shows the danger of emergency power creep and, thus, the benefits of a formal state of emergency being invoked to allow emergency powers.

The Bill does not take this approach. Instead, it takes the UK approach of allowing emergency powers to be exercised at any time. The Cabinet Office may declare that a specified event or situation is to be treated as falling within the definition of emergency (clause 3(6)), or form the view that one of the large number of events of situations specified in the Bill exists. The Cabinet Office may then proceed to make Emergency Regulations if: satisfied that an emergency has occurred, is occurring, or is about to occur (clause 8(2)); the Regulation is necessary to prevent, control, or mitigate the emergency (clause 8(3)); and is needed urgently (clause 8(4)).

It would be better to retain the EPA structure of a formal declaration of a State of Emergency activating exceptional emergency powers for the duration of an Emergency. The EPA made this declaration purely a matter for the government – the Governor in Council acting on the advice of CoMin. During the 2020 Emergency, Laurie Hooper MHK argued that the declaration of Emergency required the approval of Tynwald. I do not agree with his reading of the EPA, but as a policy recommendation this approach has much to recommend it. In a small democracy such as the Isle of Man, faced with a crisis justifying emergency powers, a significant proportion of the representatives of the people should be involved in this decision. The most straightforward way to ensure this would be to allow a state of emergency to be declared by the Council of Ministers (which under the Bill could involve as few as two ministers, but would require later ratification by a majority), subject to later approval by Tynwald. Allowing an Emergency to come into effect before Tynwald met would allow rapid response to exceptional crises – for instance a radiological incident, or other environmental catastrophe. Requiring approval by Tynwald would emphasise the importance of democratic oversight.

This emphasis on democratic oversight might justify the approval not by Tynwald as a whole, but instead by the House of Keys, who are the directly elected component of the Manx constitution. This would be less of a constitutional innovation than before the change in the appointment of the Chief Minister, which saw the shift from appointment by Tynwald to appointment by the Keys. Those who argue in favour of the Legislative Council as a valuable source of scrutiny and challenge would, however, see these as being particularly important during a national Emergency. The contribution of members of the Council to scrutiny of EPRs in the 2020 Emergency was very significant.

 

The weaknesses of unscrutinised legislation.

The Bill retains the EPA model of executive creation of legislation with immediate effect, subject to approval by Tynwald within seven days. The 2020 Emergency provides some insights into the weaknesses of this model.

One of the notable features of the EPRs is the number of drafting errors in individual EPRs. By drafting errors I mean errors which rendered an EPR incomprehensible, or incoherent in relation to the policy it was intended to implement, rather than EPRs which were implementing a poor policy. Taking for examples only errors which were corrected by a subsequent EPR, this includes omission of a key noun in a description of facilities that could reopen, application of the fixed penalty regime to only one of the offences in a section, failing to identify the primary legislation which an EPR was modifying, excluding child minders from the scope of an EPR which specifically sought to control child minders, and omitting a schedule from an EPR which referred to that schedule for detailed provisions.

Pointing out these errors should not be taken as a criticism of an excellent drafting team who were faced with unprecedented pressure caused by the fast moving nature of the pandemic, and the need for a very high volume of legislation. The strain on limited capacity, inevitable in a small democracy, was exacerbated, however, by the post-creation scrutiny model. Early in the crisis there were complaints that the legislators were not being given sufficient time to consider EPRs before they were debated, leading the President of Tynwald to express concern to CoMin. This problem appears to have been largely addressed, although we find references to the difficulties of timely communication throughout the Emergency. Legislators frequently identified drafting errors both within and outside the legislative chamber, and in some cases voted in favour of an EPR only on the basis that an error would be speedily addressed, or upon receiving an assurance in the chamber that issues raised in debate would be dealt with by further legislation. EPRs which became law only after scrutiny by Tynwald – which given it was meeting weekly for most of the Emergency would not have excessively impeded many of the measures implemented by EPRs  – would have been better drafted EPRs.

Allowing an Emergency Regulation to take effect only after approval by Tynwald could, however, restrict the ability of the government to respond effectively to a crisis. Consider, for instance, a biological attack on the Atlantic Archipeligo, or a major industrial accident causing immediate environmental damage. It may be worthwhile adopting the structure of an existing Act of Tynwald.

Early in the 2020 pandemic, the Department of Environment, Food and Agriculture created the Health Protection (Coronavirus) Regulations 2020. These were created under the Public Health Act 1990, and in particular s.51Q(3). Section 51Q lays down a general rule that a Regulation under the Public Health Protection part of the 1990 Act does not come into effect until approved by Tynwald (Public Health Act 1990 s.51Q(2)). There is an important exception however. Section 51Q(3) provides that a regulation “may come into operation without first being approved by Tynwald if it contains a declaration that the person making it is of the opinion that, by reason of urgency, it is necessary for it to come into operation before it is approved”.

Adopting the model of this 1990 Act of Tynwald would allow government to create Emergency Regulations coming into effect before approval by Tynwald, but would require a defense to Tynwald of why, “by reason of urgency”, it was necessary to do so. Many of the EPRs made in the 2020 Pandemic would not have met this test, and so would have been subject to pre-effect scrutiny by Tynwald.

If some power to create Emergency Regulations which have legal effect before Tynwald has approved them is to be retained, there is a further point to consider. The Bill states that all Emergency Regulations are to come into effect as soon as created, rather than being able to specify a date and time at which they come into effect; as was the case under the EPA (see clause 11(1)(a)). A number of EPRs made in 2020 similarly came into effect when signed. This raises a rule of law question, particularly where an EPR creates a criminal offence. If the Emergency Regulation must come into effect immediately upon creation, it may be some time before those subject to the criminal sanction become aware of its existence. The Tynwald Information Service did a remarkable job of ensuring EPRs were made available to the general public as quickly as possible, but it would usually be good practice to allow a period between an Emergency Regulation being created and it coming into effect to allow it to be made available online to the general public, and individuals affected by the Regulation to be directed to it. The Bill as currently drafted would not only not require this good practice to be implemented, but would prohibit it. Omitting Clause 11(1)(a) would allow the Emergency Regulation itself to state when it came into effect.

Finally, and on a narrow point, the seven day timescale for Tynwald to approve an Emergency Regulation – which might also be adopted for approval of a declaration of Emergency if the suggestion above was adopted – may be longer than is necessary in the context of a small, single island, democracy with well-developed transport and communications infrastructure. MHKs of the 1920s were sceptical that seven days was the proper time for an Emergency Regulation to survive without democratic endorsement. Arguing for a much tighter time-limit, J.D. Clucas MHK referred to the relative ease with which Tynwald could be convened “by means of the telephone and motor cars”. The seven day period within which Tynwald must exercise oversight of powers exercised under the Bill should be reduced.

 

On the 10^th of August, an additional EPR, the Emergency Powers (Coronavirus) (Continuation) (no.2) Amendment (no.2) Regulations 2020 was signed by the Chief Secretary. This is the second purported EPR to be created since the end of the state of Emergency. Once again, the basis for these regulations is the Emergency Powers Act 1936 s4A. Section 4A begins with a limiting sub-section: “This section applies where a proclamation of emergency is in operation”. A literal reading of section 4A is that, as there is no proclamation of emergency in operation, section 4A does not apply.

As I noted earlier, the Attorney General has advised Tynwald that s.4A is to be read to allow amendments to continuation regulations made while the section did apply. I agree with the Attorney General that s.4A carries with it an implied power to make amendment to Continuation EPRs so long as a s.4A power may be exercised.  Where we differ is the extent to which a s.4A power may be exercised where there is no Emergency. My counter to that argument applies to this purported EPR, as to its predecessor. In this note I will briefly expand on two points.

Firstly, my objection in principle to the Attorney General’s reading of s.4A(1) to allow exercise of exceptional executive power, in the form of EPRs, when there is no longer a state of emergency. As de Wilde has argued in his ambitious historical study of emergency powers and constitutional change, allowing emergency powers to seep into the non-emergency legal order risks normalising these exceptional powers. As the Lord Bishop  argued in 1973, “it is quite right that emergency powers should not turn into regular powers” (LC 12 June 1973 at C244). CoMin should not be exercising wide-ranging legislative powers other than in a state of emergency.

Secondly, if help is needed in interpreting s.4A(1) – and I am not sure that it is – then “the purpose of the Act has informed the statutory language, and it is proper to have regard to it if help is needed as to what the words means” (Lord Hope, Attorney General v National Assembly for Wales Commission [2012] UK SC 61 at 80). The repeated purported amendment of the continuation regulations seems, to me, to be treating the continuation period as an extension of the emergency period. This reinforces the impression created by the Continuation EPR, which continued a surprisingly large number of EPRs in toto for the maximum period allowed by the Emergency Powers Act 1936. Was this what was intended by the creation of the s4A during the Emergency?

During the legislative debate itself, the Chief Minister introduced the provision by referring to “ensuring the intended effect of emergency measures does not end abruptly. For instance, it is not helpful to a tenant if they are protected from eviction because they cannot pay their rent during the emergency, but the landlord can evict the tenant immediately after the emergency ends” (HK, 3 April 2020 at 666 K137). The Chief Minister recognised that in instances such as this even a short continuation period may not be enough, but that the continuation period would give time for primary legislation to address the issue in a longer term. Dynamic control of the Isle of Man through s4A after the expiry of a state of emergency was not discussed as part of this legislative process.  Only when regulations made under s.4A were put before Tynwald – by which time of course the legal powers under s.4A have already been granted – did the Chief Minister introduce this concept into debate (TC 26 June 2020, at 2363 T137).

This was not queried in Tynwald at the time, but Mr Chris Thomas asked for an expansion of the authority for a post-Emergency EPR during the consideration of the first such EPR (TC 21 July 2020 at 2480 T137). Such an expansion would be very valuable, particularly if a situation arises where a purported EPR creates additional criminal liability, or modifies civil liability.

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.