The Emergency Powers Act in the 2000s: A halfway house.

Since 2000, there has been a substantial amendment to the EPA, and a promise – yet to be fulfilled – of a wide-ranging review of emergency powers.

In 2006, as part of the very wide ranging Criminal Justice, Police and Courts Bill, a clause was proposed to amend the trigger condition under the EPA, adopting a definition of emergency from the UK Civil Contingencies Act 2004. There was some opposition to the change taking place in a portmanteau Bill, with Mr Karran, referring to his personal experience of a near state of emergency, objecting to it being “thrown in as an afterthought” (HK 3 May 2006, 1055 K123).

The passage of the Bill through the Keys is notable for the first pre-pandemic reference to disease and the EPA. Mrs Hannan was primarily concerned about the Governor in Council retaining a role in relation to emergency powers, rather than the Council of Ministers, but in listing circumstances which might lead to the EPA being invoked, she referred to “riot or flooding or bird flu or whatever” (HK 3 May 1054 K123). The focus of the debate was not on the actual change the amendment would effect, but on the continued role of the Governor in Council in the process. This was justified in the discussion of clauses by reference to the role of the Governor in summoning “those elements of the military who would be brought in to assist” (Mr Shimmin, HK 3 May 1057 K123). By the Third Reading in the House of Keys, the mover was able to refer to ongoing discussions between the Chief Minister and the Lieutenant-Governor about this point – transfer would be desirable, but the military assistance issue made this complex (Mr Shimmin, HK 9 May 2006, 1088 K123). A Bill to address this specific issue was under consideration for introduction in 2007 (Mr Shimmin, HK 9 May 2006, 1085 K123).

The mover, Mr Shimmin, reassured the House of Keys that the amendment was “a halfway house to resolving an out-of-date 1936 Act”, and called for it to be supported pending “an amendment more satisfactory than this” (HK 3 May 2006 1057 K123). Although not referred to expressly, Mr Shimmin may have had in mind a report approved by Tynwald in 2005 which had called for “updating of all emergency powers legislation” (see CoMin Report, “Functions of the Lieutenant-Governor under Acts of Tynwald”, (2011) GD 34/11, Appendix).

The Bill became law in 2007. It amended s.3(1) to replace the previous trigger condition with “an emergency has arisen or is likely to arise”, and added a new statutory definition of emergency in s.2A of the EPA (Criminal Justice, Police and Courts Act 2007 s.44, 45). The definition is wider, and less onerous, than the trigger condition which preceded it. An emergency is an event or situation which “threatens serious damage to human welfare” (s.2A(1)(a)), or “threatens serious damage to the environment of the Island” (s.2A(1)(b)), or is “war or terrorism which threatens serious damage to the security of the Island” (s.2A(1)(c)). It is noteworthy that the security ground, new to this Act, is narrower than the other two grounds – an event or situation which is not war or terrorism will not satisfy the security ground.

Damage to human welfare requires that the event or situation threatens loss of human life; human illness or injury; homelessness; damage to property; disruption of supply of money, food, water, energy or fuel; disruption of a system of communication; disruption of facilities for transport; or disruption of services relating to health (s.2A(2)). Damage to the environment requires that the event or situation threatens contamination of land, water, or air with biological, chemical, or radio-active matter; or disruption or destruction of plan life or animal life (s.2A(3)). The Governor in Council may by Order provide that a specified event or situation, or a class of events or situations, falls or does not fall within one of the heads of the definition of emergency;  or within the category of threat to human welfare (s.2A(4)). Such an Order requires the approval of Tynwald to come into effect (s.2A(6)).

One point to stress about the background to the new s.2A is that it was taken from the “UK Civil Contingencies Act 2004” (Minister for Home Affairs, HK 5 February 2008, 287 K123); apart from minor changes to translate it into the Manx context, it is identical to the Civil Contingencies Act 2004 s.19. This 2004 Act repealed the Emergency Powers Act 1920 in its entirety – as I noted earlier, the model for the 1936 Act of Tynwald – and replaced it with a complete emergency powers regime. The 2004 Act includes detailed limits on the power to make Emergency Power Regulations (s.21), the scope of a Regulation (s.22), a requirement that the EPR be proportionate and a bar on EPRs amending the Human Rights Act (s.23), and a hard time limit of 30 days on the lifetime of an EPR, albeit recognising that a new EPR may be made (s.26).

In 2007 then, the reach of the EPA 1936 was extended by adopting part of a model from the UK, while not adopting other clauses from that model which limited the use of power during a state of emergency. As I have noted, the 2007 amendment was seen as a half-way house to a fuller review of the EPA. A Bill was promised for 2007 (Mr Shimmin, HK 9 May 2006 , 1085 K123); and the Minister for Home Affairs in 2008 advised that “it is intended that a review of emergency powers should be undertaken” (HK 5 February 2008). In 2011 CoMin issued a report, called for by Tynwald in 2005, into the functions of the Lieutenant-Governor in Acts of Tynwald (CoMin Report, “Functions of the Lieutenant-Governor under Acts of Tynwald”, (2011) GD 34/11). The Report excluded emergency powers from the scope of the review:

 “Whilst some suggestions are made in respect of the functions of the Governor and the Governor in Council in relation to emergency powers, the Council of Ministers’ Constitutional and External Relations Committee and the Tynwald Committee were of the view that a comprehensive review and updating of the Island’s emergency powers legislation is required. The Council of Ministers agrees with this view. Therefore, any legislative changes to the functions of the Governor and Governor in Council in this area should be progressed as part of this review rather than as a separate exercise” (para 2.4)

In the detailed discussion of individual Acts of Tynwald which created emergency powers, the report recommends that a review “should be progressed at the earliest opportunity” (e.g. p12), including for the EPA itself (p27).

As far as I can ascertain at the moment, that 2011 recommendation, calling for review of the Emergency Powers Act “at the earliest opportunity” is the last discussion of the EPA in Tynwald before the current crisis.