On the 10th of August, an additional EPR, the Emergency Powers (Coronavirus) (Continuation) (no.2) Amendment (no.2) Regulations 2020 was signed by the Chief Secretary. This is the second purported EPR to be created since the end of the state of Emergency. Once again, the basis for these regulations is the Emergency Powers Act 1936 s4A. Section 4A begins with a limiting sub-section: “This section applies where a proclamation of emergency is in operation”. A literal reading of section 4A is that, as there is no proclamation of emergency in operation, section 4A does not apply.
As I noted earlier, the Attorney General has advised Tynwald that s.4A is to be read to allow amendments to continuation regulations made while the section did apply. I agree with the Attorney General that s.4A carries with it an implied power to make amendment to Continuation EPRs so long as a s.4A power may be exercised. Where we differ is the extent to which a s.4A power may be exercised where there is no Emergency. My counter to that argument applies to this purported EPR, as to its predecessor. In this note I will briefly expand on two points.
Firstly, my objection in principle to the Attorney General’s reading of s.4A(1) to allow exercise of exceptional executive power, in the form of EPRs, when there is no longer a state of emergency. As de Wilde has argued in his ambitious historical study of emergency powers and constitutional change, allowing emergency powers to seep into the non-emergency legal order risks normalising these exceptional powers. As the Lord Bishop argued in 1973, “it is quite right that emergency powers should not turn into regular powers” (LC 12 June 1973 at C244). CoMin should not be exercising wide-ranging legislative powers other than in a state of emergency.
Secondly, if help is needed in interpreting s.4A(1) – and I am not sure that it is – then “the purpose of the Act has informed the statutory language, and it is proper to have regard to it if help is needed as to what the words means” (Lord Hope, Attorney General v National Assembly for Wales Commission [2012] UK SC 61 at 80). The repeated purported amendment of the continuation regulations seems, to me, to be treating the continuation period as an extension of the emergency period. This reinforces the impression created by the Continuation EPR, which continued a surprisingly large number of EPRs in toto for the maximum period allowed by the Emergency Powers Act 1936. Was this what was intended by the creation of the s4A during the Emergency?
During the legislative debate itself, the Chief Minister introduced the provision by referring to “ensuring the intended effect of emergency measures does not end abruptly. For instance, it is not helpful to a tenant if they are protected from eviction because they cannot pay their rent during the emergency, but the landlord can evict the tenant immediately after the emergency ends” (HK, 3 April 2020 at 666 K137). The Chief Minister recognised that in instances such as this even a short continuation period may not be enough, but that the continuation period would give time for primary legislation to address the issue in a longer term. Dynamic control of the Isle of Man through s4A after the expiry of a state of emergency was not discussed as part of this legislative process. Only when regulations made under s.4A were put before Tynwald – by which time of course the legal powers under s.4A have already been granted – did the Chief Minister introduce this concept into debate (TC 26 June 2020, at 2363 T137).
This was not queried in Tynwald at the time, but Mr Chris Thomas asked for an expansion of the authority for a post-Emergency EPR during the consideration of the first such EPR (TC 21 July 2020 at 2480 T137). Such an expansion would be very valuable, particularly if a situation arises where a purported EPR creates additional criminal liability, or modifies civil liability.
Peter Edge's Law Blog. 