The Emergency Powers Act 1936 as amended on the 14th of April 2020.

The Emergency Powers (Amendment) Act 2020 has now received Royal Assent, and has made a number of changes to the Emergency Powers Act 1936, which is the key legislation being used by IOMG for rapid law-making during the current crisis. I have noted the 1936 legislation as the crisis began, the Bill as originally intended to be put before Tynwald, and the Bill which was actually put before Tynwald. For ease of reference, this note is a restatement of the 1936 Act, now including the amendments.

A state of emergency proclamation has been made under the Emergency Powers Act 1936, an Act of Tynwald. On the 16^th of March the Governor in Council (that is, the Governor acting on the advice and with the concurrence of the Council of Ministers) exercised his powers under s.3 on the basis that “there is a pandemic of Coronavirus … it appears that there is a threat of that disease affecting the Island and causing serious damage to human health on, and the economic well-being of the Island”. This proclamation of emergency may not be in force for more than one month, although it may be renewed before the end of that period (s.3(2)). Showing the age of the legislation, the proclamation has to “forthwith be sent by prepaid post to each member of Tynwald” (s.3(4)).

The finding upon which the Governor exercised his power falls within the damage to human welfare head of the statutory definition of emergency (s.2A). The threat of serious damage to human health is a reference to loss of human life (s.2A(2)(a)), and human illness (s.2A(2)(b)). Economic well-being is less clearly a ground for invoking emergency powers, but may be intended to refer to the risk of homelessness (s.2A(2)(c)), damage to property (ibid, (d)), disruption of supply of money, food, water, energy or fuel (ibid, (e)), disruption of communications or transport (ibid, (f) and (g)), or disruption of services relating to health (ibid, (h)).

The Emergency Proclamation allows the Governor in Council to “make regulations for securing the essentials of life to the community and for the protection of the economic position of the community”. They may confer “on any persons in the employ of the public service of the Isle of Man such powers and duties as the Governor in Council may deem necessary for the preservation of peace, for securing and regulating the supply and distribution of food, water, fuel, light and other necessities for maintaining the means of transport, communications and the supply of services and for any other purposes essential to the public safety and the life of the community” (s.4(1)).

The regulations can create criminal offences, triable by a court of summary jurisdiction, with a maximum penalty of a £10,000 fine (s.4(3)(a) as amended), imprisonment for three months, and forfeiture of “any goods or money in respect of which the offence has been committed” (s.4(3)). Regulations can also create offences punished by fixed penalty notices (often referred to as “on the spot fines”) not exceeding £250 (s.4(3)(b) as amended), but in such case the person fined must be provided with the option to refuse the fine, and proceed to a trial for the offence under the Regulations (s.4(3C) as amended). Any regulation altering existing criminal procedure requires the consent of the Deemsters (s.4(3A)(a) as amended), and no regulation may impose a fine or imprisonment without trial (s.4(3A)(b) as amended). This is tremendously wide ranging, the only explicit limit on the regulations being a prohibition on criminalising taking part in a lock-out or strike, or peacefully persuading others to do so (s.4(1)).

Regulations made under the Emergency Powers Act have legal force only during the period of emergency.  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 have effect when drafted, but must be placed before Tynwald as soon as practicable, and if not approved at the next sitting (s.4A(3) as amended), cease to have effect (Legislation Act 2015 s.31). Continuation regulations may provide for the continuation, with or without modification, of any Regulations previously made under the Emergency Powers Act, for up to six months from the end of the period of emergency (s.4A(4)). These continuation Regulations are treated as secondary legislation for the purposes of the Human Rights Act 2001.

There is an element of democratic control. The regulations must be laid before Tynwald within seven days of being made, and shall cease to have effect seven days after being made unless approved by Tynwald (s.4(2)). Ceasing to have effect does not mean that the regulations were invalid – so for instance a fine imposed under the regulations will remain in effect (s.4(4)). As noted above, the proclamation of emergency must be renewed on a monthly basis. Regulations made in any earlier month must be approved by Tynwald at the first sitting in that proclamation period, or cease to have effect (s.4(1A) as amended).

The Emergency Powers Act now places on a statutory basis the postponement of local elections made by Regulations issued under the Act (s.6 as amended).

The 1936 legislation is very similar to the English Emergency Powers Act 1920, both procedurally and in terms of the range of regulations, but the 1920 legislation prohibited regulations amounting to compulsory military service or industrial conscription. The 1920 legislation was used 12 times between 1921 and 1973, in each case to deal with industrial disputes. The 2011 report of the Council of Ministers identifies a number of other emergency powers vested in the Governor, but it is striking that a number of them are based on national emergencies due to a state of war “or international disturbance”. Using these powers in relation to Covid-19 may require a purposive interpretation of “international disturbance” which is not obvious from the legislation. The 2020 Amendment Act is not a systematic updating of the Island’s emergency powers legislation, as a report of the Council of Ministers recommended in 2011, but rather a rapid response to problems which emerged when dealing with the current crisis. During the passage of the Amendment Act, it was made clear that such a systematic updating was planned for a later date.