Emergency Powers (Amendment) (no.2) Bill.

A short blog on the Emergency Powers Amendment (no2) Bill, the replacement for the Bill which was withdrawn earlier in the week; and whose content was summarised here.

Two special sittings planned in a single week emphasise the urgency of this legislation. Looking at the Bill, however, it seems to me that the reason for this urgency may be quite specific: the Bill, like its predecessor, will allow Regulations to be created carrying fixed penalties of up to £250, but without requiring formal criminal proceedings unless the recipient chooses to appeal (proposed new s.4(3)(b), 4(3A)(b)). If IOMG wishes to provide for this sort of penalty to back social distancing norms, and other future provisions where quick dispensing of relatively low penalties is desired, this change is essential.

In relation to the power to create offences, these Amendments are very similar to those of the Bill’s predecessors. Offences may be tried in any summary jurisdiction, but not by a non-judicial person appointed in a Regulation (proposed new  s.4(3)(a)). The new Bill will however retain the power to create forfeiture penalties, removing of which I had queried in my commentary on its predecessor (proposed new s.4(3)(a)). A new feature of this version of the Bill is that the former absolute exclusion of a power for Regulations to make changes to criminal procedure has been replaced by a power to do so, subject to “the consent of the Deemsters”, although no Regulation may provide for custody or a financial penalty without trial (proposed new s.4(3A)(a)). As the explanatory notes indicate, there may be a need to change particular rules of procedure, for instance to allow for some offences to be dealt with by live video link rather than in person in court.

Although not the most urgent, arguably the most important provisions are in relation to continuance of Regulations from one period of emergency proclamation to another; and after the end of the emergency. The provisions for continuation of a Regulation have been substantially changed. The Amendment would allow for a Regulation to be continued only if Tynwald votes to continue a Regulation at the first sitting after the start of the new emergency period (new s.4(1A)). The earlier Bill would have allowed Tynwald to render a Regulation invalid at any time, but taken inactivity by Tynwald as allowing the Regulation to continue. The new version, by requiring positive approval from Tynwald at the start of every emergency period, emphasises the importance of democratic oversight.

The new Bill also addresses the issue of how to treat these Regulations after the emergency is over (new s.4A). During a period of emergency, the Governor in Council may make continuation Regulations which must be affirmatively approved by Tynwald. Affirmative approval means that these continuation Regulations would have effect when drafted, but must be placed before Tynwald as soon as practicable, and if not approved within two sittings, cease to have effect (Legislation Act 2015 s.31). Given that this element of the Emergency Powers regime is forward looking – looking into the period after the emergency has finished, but only exercisable during the emergency – it may have been better to have required the approval of Tynwald under s.30 of the Legislation Act so that the provisions would not come into effect until approved.

These continuation Regulations may provide for the continuation, with or without amendment, of Emergency Power Regulations for up to 3 months from the end of the emergency. These continuation Regulations are treated as secondary legislation for the purposes of the Human Rights Act 2001. One point of potential interest is the reference to “any regulations … which are in operation during the period of emergency” – clearly a Regulation may be continued which was not in effect for the entire emergency (none have been), but may a Regulation be continued which ceased to be of effect during the period of emergency? In particular, might a Regulation which ceased to be of effect because it was not approved by Tynwald within seven days be continued? If the intention is to allow continuation only of Regulations which were in effect at the end of the emergency, it may be worth amending this clause to make that clearer.

The final provisions, new to the Bill, cover the same ground as the Local Elections Regulations, discussed here. It may be significant that these have been moved into primary legislation while the increase in the power of the Governor to delay filling a vacancy in the House of Keys by a further four months  – contained in the Keys Elections – Casual Vacancies Regulations – has not.

In my commentary on the earlier version of this Bill, I expressed concern that there was no explicit restriction on the power of a Regulation to make changes to Tynwald before a Regulation came to be approved. I suggested that one way to address this concern was to require consent of officers from the legislative branch – the Speaker and the President – before a Regulation by the executive branch making changes to Tynwald could come into effect. This broad strategy has been adopted in the amended Bill, requiring consent of the Deemsters – the chief officers of the judicial branch – if a Regulation of the executive branch is to change criminal procedure. The power of Regulations to affect Tynwald is not, however, covered in this version of the Bill.

One possibility is that IOMG does not consider the Emergency Powers Act gives them the power to change Tynwald by Regulation. Such a view might be based on technical arguments about the intrinsic power of secondary legislation, or on a confidence that a Manx court would find a move to undermine the power of Tynwald “to carry out its constitutional functions” to be unlawful (following the lead of the UK Supreme Court in Miller and Cherry, the key 2019 decision on the power of the Prime Minister to recommend prorogation of Parliament to the Crown). The House of Keys Regulation suggests this is not necessarily so however –the Governor in Council has already used an Emergency Powers Regulation to create up to four additional months when the Keys is composed of 23 rather than 24 members. If IOMG considered that Emergency Regulations could not alter the composition or membership of Tynwald, we might have expected to see the House of Keys Regulations moved into primary legislation alongside the Local Election Regulations.

If Emergency Power Regulations can change Tynwald before they have been approved by Tynwald, I return to my argument in relation to the previous incarnation of the Bill. The wide-ranging restrictions on the individual, and increase in state powers, possible under the Emergency Regulations require democratic oversight by Tynwald. This has been given more weight under this incarnation of the Bill in relation to the continuance of Regulations from month to month. A clause protecting the autonomy of Tynwald would help to delineate the limits of executive power even in this unprecedented emergency which requires swift and wide-ranging action.