In a previous blog I discussed how Emergency Powers Bills based on the UK Emergency Powers Act 1920 failed in Tynwald, either due to rejection by the House of Keys or a failure of the Keys and Council to reach agreement. In this blog I will discuss the successful passage of the Emergency Powers Bill 1935, which became the Emergency Powers Act 1936.
The earlier bills were government bills, not only introduced in the Legislative Council rather than in the Keys, but at the initiative of the Lieutenant-Governor. The 1936 Act had a very different origin.
Between the 3rd and 4th June 1935 there was a substantial, and effective, strike in the Isle of Man by the TGWU, covered in a lucid and engaging podcast by Terry Cringle here. The Speaker introduced a resolution into Tynwald which noted that “during the recent strike the public of the Island were deprived of the essential services, the health of the towns was threatened, and no sufficient police protection was available, and requests his Excellency to take such steps as may prevent a recurrence of such conditions” (TC, 13 June 1935 at 496). The Speaker lamented the lack of an Emergency Powers Act, and called upon MHKs in particular to support a speedy Bill, noting that he wanted to avoid the House “whitt[ling] it away in amendments which would emasculate and nullify it so it would be practically useless” (p503-4). Perhaps the strength of Mr Speaker’s feelings can be seen in his suggestion that, if such a Bill failed, it would be appropriate for the Lieutenant-Governor to dissolve the House of Keys and, if a new House remained opposed to it, call for the extension of Imperial legislation to the Isle of Man (p504). The focus of this debate was primarily the details of the strike, leading to mutual recriminations and personal criticism between members of Tynwald which persisted throughout the debate (for instance by Mr Qualtrough against the Speaker, TC, 14 June 1935 at 728). An amendment to the Speaker’s motion added a request that the Lieutenant-Governor should make provision for setting up an Industrial Council on the lines of the Whitley Council operating in the UK (p514), and the amended motion was passed almost unanimously, with four votes against in the Keys.
The Lieutenant-Governor identified three Bills to give effect to this Tynwald motion – two Bills dealing with trade disputes, and the Emergency Powers Bill. He argued that the procedure by which Acts of Tynwald was created was extremely slow, rendering it unsuitable for responding to an emergency (TC 25 October 1935, at 11). The Bill was particular needed now because of what looking back we would see as globalisation: “since, partly owing to the war, and partly by the development of communications, we have been drawn more and more into the main stream of life, the need for the modernisation of our machinery on the lines in force in Great Britain has become apparent” (ibid, at 12). The provisions of the Bill, as characterised by the Lieutenant-Governor, “are general in character, and cover any emergency, and do not refer specifically to trade disputes” (ibid, at 12). Slightly piquantly, writing in 2020, on the same page of Tynwald Debates the Lieutenant-Governor confirms that the cost of building an isolation hospital would be too much to proceed.
Introducing the Bill into the Legislative Council, the Attorney General took up these themes, noting that the Bill did not “primarily deal with labour disputes, or any particular occasion of emergency”; and suggesting that an Act of Tynwald “cannot be done in less than a couple of months” – the inability of Tynwald to legislate quickly for an emergency was the principal reason why the Emergency Powers Bill was needed (LC, 1 November 1935 at 54). I am not sure this was right in 1935, and it obviously was not the case in 2020. The Act of Tynwald amending the Emergency Powers Act 1935, having been circulating in a number of drafts at the start of the week, was passed in a single day on Friday the 3rd of April, despite requiring the Keys to accept amendments from the Legislative Council, and became law on the 14th of April.
In the first occurrence of an important theme in the debates, Mr Corrin – referring to his earlier time in Tynwald as an MHK – explained that he had opposed earlier Bills because no occasion had arisen to justify the legislation but “occasion has [now] arisen, to my mind, to justify the introduction of legislation like this” (ibid, at 56). At the second reading in the Legislative Council, repentance was taken up by the Receiver General, who in 1927 had been the only member of Council to vote against the Bill: “recent events have proved that I was entirely wrong” (LC 19 November 1935 at 87). The extent of change of heart by individual legislators was pointed out in the Keys by Mr Crellin not – as can sometimes be found in Tynwald debates – as the basis for an accusation of inconsistency, but rather to show how the events of June 1935 had shown how much the situation in the Isle of Man had changed (HK December 1935 at 139).
Debate in the Legislative Council was limited. There was some discussion of how to draft the protection of the right to strike (LC 19 November 1935 at 89), and of two constitutional issues. Firstly, whether Regulations should be allowed to persist until Tynwald had decided whether to approve them or not: Deemster Farrant favoured this form in case Tynwald wished to avoid responsibility for a Regulation (ibid, at 90), but he was countered by the Attorney General who saw the need for immediate approval by the legislature as “the constitutional thing” (ibid at 90). Secondly, why the power enabling the Lieutenant-Governor to create criminal offences under Emergency Powers Regulations allowed trial not only by the High Baliff but by another person appointed by the Governor. This was intended to cover “the emergency in the event of the High Baliff being away” (ibid, p90-91). The Bill then moved to the House of Keys.
The debates in the Keys are long, but it is striking how little of the time of Tynwald was taken up with the details of, and implications, of the Bill itself. The debates, as in the originating motion of 1935, were primarily about what happened in the strike, the extent of the disruption, and who was to blame for the disruption which followed. The consensus in favour of the Bill, while unsurprising given this 1935 motion, concerned Mr Norris, who noted that the Bill was passing “practically without debate” (HK 3 December 1935, at 140). The minority of MHKs who opposed the Bill had two principal concerns. Firstly, as in the 1920s debates, the extent to which Emergency Powers would empower a Lieutenant-Governor who was not responsible to Tynwald. Mr Norris tabled an amendment requiring the Lieutenant-Governor to take advice from an ad hoc executive including MHKs. Recognising that a general move to responsible government was not on the cards, Mr Norris sought “a little smattering of representative government in the exercise of these very extreme powers” (ibd, at 145). He narrowly failed to convince the Keys, his amendment being lost by two votes (HK 13 January 1936, at 233). Secondly, again as in the 1920 debates, the extent to which the Bill was, as Mr Kneen put it, “class legislation [with] the main object the breaking down of strikes” directed, as Mr Craine thought, “against the trade organisations of the Island” (HK 4 February 1936, at 261). The Bill was passed in the Keys with a significant majority.
This relative disinterest in the detail of a Bill which had significant support in both Branches means that, in contrast to the 1920s debates, there are few insights into the details of the Bill from the legislative debates. Only one point adds to the 1920s discussions. The power of the Governor to appoint judges other than the High Baliff was queried in the Keys, with Mr Cowin suggesting that there were already other judges of summary jurisdiction who could hear such cases (HK 14 January 1936 at 224): an interesting precursor to the 2020 amendment to the Emergency Powers Act which recognised exactly this.
So, given the close similarities of the 1920s Bills and the 1935 Bill what had changed? Sufficient time had passed for there to be a change in the members of Tynwald, but there is substantial evidence from the debates of members of the legislature having changed their view of the necessity for such legislation. This may reflect tighter integration of the Isle of Man with other parts of the British Islands, both economically and politically. On the latter, a number of members of Tynwald raised a contrast between the 1918 Bread Strike, cast as an indigenous response by a significant part of the nation; and the 1935 strike, cast as a response by a small section of the community strongly influenced by union structures which treated Manx labour as part of a broader British Islands organisation. More specifically, it may reflect a reaction to a particular shock – the action of June 1935. The Emergency Powers Act 1936, the basis for the Manx response to the 2020 pandemic, might well not have existed without the strike of 1935.
The 1936 Act as originally passed shows the influence of the context in which the 1920 UK Act, the failed Bills of the 1920s, and the 1936 Act all arose. The 1936 Act, despite a rather broad description by the Lieutenant-Governor as aimed at “any emergency”, had a very specific definition of “emergency”. The powers of the Governor to make a proclamation of an emergency, as in the 1920s Bill could be exercised if:
“it appears to the Governor that any action has been taken or is immediately threatened by any person or body of persons of such a nature and on so extensive a scale as to be calculated, by interfering with the supply and distribution of food, water, fuel or light, or with the means of locomotion, to deprive the community, of the essentials of life” (Emergency Powers Act 1936 s.3(1) as originally passed).
The scope of the Emergency Powers Act 1936 as passed does not seem to lend itself easily to acting against a public health crisis, such as the 2020 pandemic. What is the action “taken or … immediately threatened by any person or body of persons” where the fundamental concern is the spread of an infectious disease? By 2020 the Act had been amended to depersonalise – by which I mean remove the need for human agency – the emergencies to which it applied, with the long definition of emergency instead emphasising “an event or situation” (Emergency Powers Act 1936 s.2A as amended by the Criminal Justice, Police and Courts Act 2007). A future blog post will examine the post-enactment history of the Emergency Powers Act up until the start of the 2020 pandemic.
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