Emergency Powers (Amendment) Bill 2020.

A piece of primary legislation amending the Emergency Powers Act 1936 is to be laid before Tynwald. As well as summarising the Bill, I will raise two points of possible concern, not addressed in the Bill.

Clause 2(2) of the Bill will amend the Emergency Powers Act to remove reference to “by Order” in the making of Regulations under the Act. This will bring the EP Regulations in line with modern legislative practice.

The Bill also addresses an issue raised in Tynwald debate. As will be recalled, the Governor may only declare a state of emergency, allowing use of the 1936 Act, for a period of up to a month of a time; but may make repeated Proclamations in order to keep the powers in continuous use for a longer period. Clause 2(3) will make it clear that Regulations will continue between continuous states of emergency “unless Tynwald resolves otherwise”. This is a less stringent restriction than in the creation of the Regulation in the first place, but it must be remembered that Tynwald will have already approved the Regulation for one period of emergency. Although the amendment does not specify how to deal with Regulations made at the end of one period of emergency, my reading of the amended Act as a whole is that the Regulations must be approved within seven days of being made in any case if they are to remain in force. If this is the case, and Regulations must always be approved at least once, then the clause strikes a good balance between ensuring continuity without repeated redrafting and rediscussion, and retaining democratic control. For such continued Regulations, after the proclamation period in which the Regulation was made, it may be rendered invalid by Tynwald at any time. Tynwald does not have the power to cancel a Regulation during the same proclamation period as it was made.

The 1936 Act created the power to make criminal offences in the Regulations under s.4(3). There are a significant number of changes to this power in cl.2(4). Firstly, the Act as it currently stands requires any crimes created to be heard before the High Baliff or any other person appointed by the Governor. The amendment will remove the power of the Governor to appoint persons ad hoc to hear criminal proceedings under a Regulation (for instance allowing a government official to hear criminal offences under a Regulation relevant to their Department), but allow crimes to be prosecuted before any court of summary jurisdiction. Secondly, the Bill removes the power to make Regulations which include as a penalty for a crime forfeiture of “any goods or money in respect of which the offence has been committed”. As I have noted elsewhere, this provision has yet to be used in any of the EP Regulations. It is not clear why the power to do so – which may be appropriate in relation to say a future profiteering or similar regulation – is to be removed. Thirdly, the Bill will add a power to create fixed penalty notice offences. Fixed Penalties are a common way of quickly enforcing relatively low-level punishments, for instance parking violations, and could easily be seen as a good way of enforcing particular Regulations (as is being done for similar regimes elsewhere in the British Isles). Finally, the Act will be amended to allow the creation of Regulations with a fine “not exceeding level 5 on the standard scale”.

This last point is perhaps worth expanding on. There are two ways in which an Act of Tynwald can be amended by a later Act. The most straightforward is when the later Act explicitly amends the earlier Act, in effect putting new text directly into the Act itself. The maximum fine permitted under an Emergency Powers Regulation was amended in this way by the Fines Act 1983 and Criminal Justice (Penalties etc) Act 1993. This gives us the text of the 1936 Act on the legislation website, which allows creation of offences imposing fines up to £5000. Regulations made under the Act, however, often provide for a fine up to standard level 5, which is £10,000. How do we square this?

The position of the drafters, as noted in the Explanatory Notes to the Bill, is that there has been an implied amendment to the 1936 Act by the Interpretation Act 2015, allowing the 1936 Act to create an offence with a fine up to standard level 5. That is to say, the 2015 Act did not refer to the 1936 Act, but it had the effect of changing the meaning of the Act by implication. If the 2015 Act did have this effect, the change is a welcome clarification – something as important as the Emergency Powers Act, which everyone in the Isle of Man will have an interest in, should be as clear and accessible as possible.

I am not completely convinced the 2015 Act did this however. s.55(1) of the 2015 Act created a five point standard scale, which at the time it was passed, had level 5 at the top of scale, with a £5000 fine. Under s.55(4), the scale applies in relation to existing Manx legislation which allows creation of a summary offence allowing a fine. The trouble with applying this to the Emergency Powers Act is that the specified amount “is to be read as reference to the first level in the standard scale that is higher than the specified amount or maximum which was in force immediately before this section comes into operation” (s55(5)). The top of the scale in 2015 was £5000. The Emergency Powers Act could create £5000 fine offences. There is, thus, no point in the 5 point scale which is “higher than” the Emergency Powers Act penalty, and so no point on the scale which s.55(5) caused the Emergency Powers Act to be moved onto. The problem of £5000+ penalties is dealt with specifically for a number of pieces of legislation in s.55(7), but not for the Emergency Powers Act. The Statute Law Revision Act 2017 s.11 increased the size of fines in the scales, moving the top of scale 5 to £10,000 and the top of scale 4 to £5000. Does this mean the Emergency Powers Act then moved onto scale 5, as it was the scale higher than the maximum under the Act? If this has been the sum originally specified in the Act, that would definitely be the case, but s.55(5), which was not amended in 2017, may suggest that the moment to measure this was “immediately before this section comes into operation”, that is, in 2015. The approach taken by the relevant provisions is not unique, and may well have been modelled on s.38 of the Criminal Justice Act 1982 of the UK, but the caselaw on that section does not illuminate this very specific point of Manx law.  A purposive approach to understanding the relation between these three pieces of legislation might well have resolved this in favour of a power to fine up to standard level 5; it is a sensible move to pre-empt any such challenge.

Moving to possible problems which the Bill does not address, these are both concerned with democratic accountability.

Firstly, Emergency Powers Regulations must be laid before Tynwald within seven days  of being made, and if not approved, cease to have legal effect. We have already seen, however, that the seven day approval period can be avoided by a repeated use of the power to make Regulations. The Schools Regulations were made on the 23^rd of March, and by the time they were tabled for the Tynwald session on the 27^th of March had already been revoked by the Educational Institutions Regulations. These Regulations, made on the 27^th, continue pending approval by Tynwald for seven days from the 27^th. The terms of the Emergency Powers Act were complied with – the Schools Regulations “must” be laid before Tynwald and they were, and ceased to have effect when not approved, and they did – but the substance of the Schools Regulation have continued without approval by Tynwald. This could be repeated, in legalistic terms, indefinitely. In practice, a Manx government which did so by design, in order to avoid the democratic oversight built into the Emergency Powers Act, might expect to lose the confidence of the House of Keys.

Secondly, is it possible for Regulations made under the Emergency Powers Act to redefine the composition of Tynwald? This would not contravene any explicit limit in the Emergency Powers Act itself, and we can imagine fairly nightmarish and improbable scenarios in which such a change to the composition of Tynwald may be legitimate. Perhaps as improbable, however, could a Regulation under the EP Act redefine Tynwald to mean “the Governor”? Remembering that Regulations take effect until they fail to be approved by Tynwald, it is not clear to me that approval of these Regulations would require the assent of Tynwald as it was when the Regulation was passed, rather than the newly defined Tynwald. Given the paramount importance of democratic oversight to the exercise of the wide-ranging powers under the Emergency Provisions Act, there may be merit in simply prohibiting Regulations making changes to the composition of Tynwald (as with the existing hardwired rules against changing criminal procedure through an Emergency Powers Regulation). If this was seen as fettering too much the ability to deal with a problem in Tynwald membership, it might be worth adding a control, such as requiring such Regulations to have the written consent of the Speaker (or equivalent) and the President (or equivalent), before coming into effect; as well as the approval of Tynwald within seven days of coming into effect.