How not to pass an Emergency Powers Act: the 1920 and 1926 Emergency Powers Bills.

Mr Teare MHK, speaking in 1927, referred to his introduction of an Emergency Powers Bill in the Keys in 1919 (HK, 15 March 1927 at 539). In 1921, Deemster Moore, introducing the second reading of the 1920 Bill, mentioned that “We had a somewhat similar Bill, last year” (LC, 11 February 1921 at 388). Any Emergency Powers Bill of 1919 has failed to leave its mark in Manx Hansard, but the Bills of the 1920s were the subject of fierce controversy and, ultimately, failed to command sufficient support in the House of Keys.

What “emergency” were the 1920s Bills aimed at?

In introducing the 1920 Bill into the Legislative Council, the Governor noted that it was following up from the Defence of the Realm Act (DORA), which had been the basis for emergency powers during World War One, and that it would “deal with these matters in the same way as they have been dealt with in England”. The Governor was very frank about the mischief the Bill would address “it is really to deal with lightning strikes that interfere with the life or health of the community” (LC 11 February 1921 at 38). The Bill would allow the proclamation of a state of emergency “when action is being taken or contemplated by any person or body of persons to deprive the community of food, water or gas, or the other essentials of life”; an emphasis on human action repeated in the 1926 Bill which refers to the situation when “any action has been taken or is immediately threatened by any persons or body of persons”. The only reference to non-human causes of emergencies is a mocking comment by Mr Corrin in debates over the 1926 Bill, where he queried whether “Hon. Members have in mind tornadoes or earthquakes or that sort of thing” (HK 15 March 1927 at 556).

Given the Bills arose from a concern over lightning strikes, this focus on human action was understood by some in the Keys as a focus on working class militancy, a thread to be found throughout the Keys debates over both Bills. Even a supporter of the 1920 Bill, Mr Norris, justified an emphasis on the role of Tynwald because it included “all the classes”, and that “Labour is so well represented” (HK 3 May 1921 at 718-9). Opponents of the 1920 Bill, on the other hand, saw it as a patent instrument of class warfare. Mr Shimmin described it as “a piece of class legislation” (HK 3 May 1921 at 720), while Mr Bridson was concerned that “the authorities will have the power to arrest all the Labour leaders” (HK 3 May 1921 at 722). This concern was raised even more strongly in relation to the the 1926 Bill, for instance with Mr Clucas seeing the Bill as “a prejudice against the working class” (HK 15 March 1927 at 540), Mr Craine seeing it as “directed solely against the workers” (HK 15 March 1927 at 548), and Mr Corrin describing it as “just one more item in the way of working class progress” (HK 15 March 1927 at 554).

So, the mischief of the 1920s Bills was dealing with emergencies created by persons or groups of persons and, in the views of a substantial group of MHKs, emergencies created by a particular class of persons. This framing of the Emergency Powers Bills was a substantial part of why they failed to pass, particularly for the 1926 Bill which failed to secure a second reading in the Keys because the Keys saw it as wrong in principle.

Who did the 1920s Bills empower?

There were two particularly significant constitutional issues in the 1920s debates, one of which was the sole cause of the failure of the 1920 Bill.

The power of the Secretary of State.

The 1920 Bill as originally introduced required the consent of the UK Secretary of State before the Governor could declare a state of emergency. Supporters of the clause noted that the Governor might need to call on Imperial resources, for instance military force, in an emergency (Governor, LC 11 February 1921 at 389); but principle apart the clause had been proposed by the Home Office itself (Governor, LC 11 February 1921 at 389). There was dissent on this point even in the Legislative Council – which is generally much less robust than the Keys in debating these measures. The Receiver General was very firm:

 We can govern ourselves without the interference of the Secretary of State. We are satisfied with the Governor’s control. As a point of self-determination we must insist upon having our own business done by ourselves, so far as the conducting of our Island is concerned. They cannot govern better than we can govern ourselves. I can tell them that. They want to get a finger in the pie. They want to make another Ireland.” (LC 11 February 1921 at 389).

The role of the Secretary of State was controversial in the Keys too, with Mr Norris for instance noting that the Secretary of State “may prevent [the Governor] from doing things which might be detrimental to interests across the water” (HK 3 May 1921 at 719), and Mr Bridson thinking that the prospect of the Secretary of State as a restraint on the Governor “should [not] carry much weight with this House when we know what the Government allows to go on in Ireland” (ibid, at 722).

By the time of the 1926 Bill, however, formal involvement of the UK Home Secretary was no longer seen as necessary, and Mr Teare noted the change as being a significant difference between the 1920 and 1926 Bills (HK 15 March 1927 at 543). The second Bill was more clearly a nationalisation of the type of emergency envisaged by the Bill, with this vestige of the Imperial role removed.

The power of the Lieutenant-Governor.

A dominant theme of the 1920s debates was concern in the Keys, in particular, that they should either be involved in executive government particularly during a state of emergency; or at the very least that their areas of influence and control over the executive should not be infringed. It must be emphasised that Manx executive government in the 1920s was dominated by the (unelected) Governor, rather than by responsible government. This was a difference from the UK context whose significance was recognised by MHKs in particular (e.g. Mr Norris, HK 7 February 1922 at 415; and HK 16 March at 545).

One issue in the 1920s Bill was a requirement that the Governor should consult with an Executive Council, including in deciding whether to make a proclamation of emergency, including some MHK members. The Governor himself was sanguine about consulting with Exco (LC 24 May 1921 at 770), but the failure of a Bill to create an ExCo including MHKs was seen by Mr Norris as a substantial reduction in the safeguards of the Bill (HK 7 February 1922 at 415-6). He returned to this theme in the 1926 Bill, insisting that emergency powers needed to involve an ExCo including MHKs (15 March 1927 at 544). In both the 1920 and 1926 Bill, an ExCo Bill running alongside the Emergency Powers Bill failed during the passage of the Emergency Powers Bill. In the latter, the decision in the Keys as to  whether to give the Bill a second reading was adjourned in order to determine the fate of the ExCo Bill, and once that Bill was lost, the Emergency Power Bill was rejected (HK 22 March 1927).

The 1920 Bill did not fail on this point, but on a more clearcut issue – the established role of Tynwald to exercise control over Man finances. The 1920 Bill was amended in the Keys to add a clause making it clear that Tynwald would need to authorise any expenditure which had been incurred (HK May 10 1921, 751). This amendment was rejected by the Legislative Council (LC 24 May 1921 at 770). A conference between the two Branches followed, with the Keys arguing that representatives of taxpayers should vote on expenditure, and the Council arguing that requiring a vote could result in the Governor being personally responsible for emergency expenditure (reported in HK 7 February 1922). The House of Keys persisted in supporting the clause, with serious concerns that giving up financial control, put most eloquently by Mr Curphy:

“Ever since I have been in this House, and I am one of the oldest members, and long before I became a member, [members] were fighting for power to expend our own money, but today members are wishful to take that power from us, and take from us all we have gained, and give to the Governor power to spend what he wishes according to his own sweet will. After all these years of fighting, and petitions to get control, so that nothing can be spent without the consent of Tynwald, it is now proposed that we should give up that power. This, if we do it, will be taken as a precedent and we will be told that we did so and so in the Emergency Power Bill, and we ought to do the same again”. (HK 7 February 1922 at 422).

The Legislative Council were unable to accept the upheld clause. The Attorney General described the clause as making the Bill impossible to pass, while the Governor said that no Governor could act “held by a bridle like this” (LC 7 February 1922 at 410). The 1920 Bill failed on this ground, and this ground alone.

So, both Bills were entangled with a broader conflict between Keys and Governor over executive power. The failure of the 1920s Bills show a failure to bring the House of Keys along in giving power to the Governor, as the then centre of gravity of executive government in the Isle of Man.

How did the 1920s Bills square emergency powers with democratic values?

Introducing the 1926 Bill, the Attorney General noted that “every safeguard has been introduced which any democratic government can offer” (LC 7 December 1926 at 265). The Keys efforts to have their – elected – members involved in the emergency powers process can be seen as seeking to add a further democratic safeguard, and was seen in that light by some MHKs. What sort of controls did the 1920s Bill have?

A number of the safeguards made their way into the later Emergency Powers Act 1936 – for instance the limit of each proclamation of emergency to one month; and the confirmation of Emergency Powers Regulations by Tynwald. Some of the details in relation to these safeguards were different, and a small number of additional safeguards made their way into one or other of the Bills.

Firstly, in relation to the Proclamation itself, the 1920s Bills required that Tynwald be called within a certain period of the Proclamation being made. There is a suggestion in the debates that Tynwald would be called upon to approve the Proclamation – and presumably that it would lapse if Tynwald did not so approve it (e.g. Mr Norris, HK 3 May 1921 at 716). This was probably overstating the case, but the debates give considerable political weight to the Governor facing timely scrutiny of his decision to declare an Emergency, with discussion in Legislative Council going so far as to say “at the end of five days the responsibility is shifted to Tynwald” (LC 11 February 1921 at 389 per Mr Southwark).

A recurring issue in the passage of the 1920 Bill was how long the Proclamation could exist before Tynwald sat. The Bill as introduced stated a period of five days. MHKs amended the Bill to two days, but the amendment was rejected by the Legislative Council (LC 24 May 1921), leading to it being discussed in conference. Reporting on the conference, Mr Norris noted that “Seeing the Island is so small, we do not see any occasion for this House being kept out of the Tynwald Court, in an emergency of that character for longer than 48 hours” (HK 7 February 1922, at 414). The Legislative Council had been prepared to compromise on 3 days, as being the minimum required notice for a normal calling of Tynwald, but MHKs persisted in the 2 day limit, with Mr Clucas suggesting “really, in times of emergency people would have to look at things a little differently, and they could gather them together by means of the telephone and motor cars” (HK 7 February 1922 at 415).

A related issue was how long Regulations could persist before being approved by Tynwald. On the first point, the 1920 Bill originally envisaged seven days, but the Keys required a three day limit. This, and the reduction in the period during which Tynwald must be called to consider the Proclamation, would probably have been accepted by the Council if it was the only point at which the Bill would fail (see LC 7 February 1922 at 409).  By the 1926 Bill, these compromises had been forgotten or seen as no longer necessary by the Government, and the time limits on the Bill as it entered Tynwald were restored to five days for the proclamation, and seven days for Regulations (LC 7 December 1926, at 265). The need to supplement the normal powers of Tynwald at all was questioned in Council by Mr Caine, who noted that “in this Island we are in an entirely different position to what they are on the other side, where members of Parliament are scattered all over the country. Here Tynwald can be called together in a very few hours” (LC 7 December 1926 at 266), although the Attorney General countered this by reference to the statutory notice period of 3 days (a slightly odd objection in relation to debating a Bill which could reduce that notice period during an Emergency period). During the initial debate of the 1926 Bill in the Legislative Council, it was agreed to change the proclamation period limit from five days to four days, and for Regulations from seven days to four (LC, 18 January 1927). The Keys rejected the Bill before getting to the level of detail discussed in the 1920 Bill, but given concerns about the danger of any period of emergency before Tynwald sat (for instance HK, 22 March 1927 at 561 per Mr Teare), we might have expected to see pressure to reduce these periods still further.

Concern about the exercise of power before the scrutiny of Tynwald can be seen in three other issues. Firstly, as already discussed, the insistence that proved fatal to the 1920s Bill, that Tynwald approve any expenditure which had been made during the Emergency. Secondly, concerns that the Emergency powers would be used to undermine scrutiny of the powers themselves. Mr Bridson was concerned that “the authorities will have had the power to arrest all the Labour leaders, so that the discussion in Tynwald would happen without the Labour men” (HK 3 May 1921 at 722). On the 1926 Bill, Mr Teare went further: “During [the period before Tynwald sits] it will be dangerous for any member of Tynwald Court – or anyone else – to criticise the action of the Governor” (HK 22 March 1927 at 561). Thirdly, concern that Emergency Powers Regulations could create criminal punishments which would apply to a person who offended against a Regulation in the period before it failed to secure approval by Tynwald. Interestingly, this concern was so powerful in relation to the 1920 Bill that an amendment voiding penalties imposed under Regulations not approved by Tynwald was made by the House of Keys (HK 3 May 1921), and accepted by the Legislative Council without need for a conference (LC 24 May 1921). By the 1926 Bill, however, this specific point was dropped from the Bill as introduced in the Legislative Council, and because of the failure of the Bill as a matter of principle, the point was not debated in the Keys, although Mr Shimmin was concerned that “The penalty will remain in operation even though Tynwald disagrees” (HK 15 March 1927 at 557).

Conclusions.

The 1920s Emergency Powers Bills were aimed at emergencies created by human action, and the prospect of extraordinary powers being used to intervene in communal conflict made passing the Bills a difficult prospect in a Tynwald representing, in their own eyes, different classes. This led to some interesting compromises to address concerns over the powers, including the voiding of any criminal penalties under EPRs which were not endorsed by Tynwald. Most striking, looking back from 2020 is the very tight time limits on Tynwald being called following the Proclamation of an Emergency, and on consideration of Regulations. The short time limits were justified by concern over the democratic legitimacy of action without the endorsement of Tynwald, the undesirability of radical action and criminal punishment which could only be disapproved of by Tynwald retrospectively, and the ability of modern technology – “the telephone and motor cars” – to facilitate the rapid involvement of Tynwald. In the 1920s, a virtual Tynwald made possible by technology would have been literally science fiction – HG Wells’ Men like Gods, with its striking combination of voicemail and email, appeared between the two debates. In the 2020s, such a virtual Tynwald raises the question of whether the tight time limits in the 1920s Bill, as it secured the support of the Keys, merit reconsideration.