Four Regulations were made on the 1^st and 2^nd of April.

Two of these Regulations concern use of the roads. Normally, a person driving a dangerous good vehicle must have completed a basic training course, and for some particularly hazardous loads, more specialised training (more information is here) The Road Vehicles Carrying Dangerous Good Regulations allows the Department of Infrastructure to authorise persons to drive dangerous loads without having the usual certificate, following required training, needed to do so. They can do so by exempting a person from these usual rules (r.6). The Department can issue a certificate to a person who it regards as “vital to the Island’s critical national infrastructure” (r.5(1)), and may impose conditions on any certification (r.5(3)). More broadly the Speed Limits (no.2) Regulations replace the earlier Regulations (noted here). The form of the Regulation which creates a new 40 mile per hour national speed limit is substantially different  (r.4). There are two substantive changes. Firstly, the DTI has flexibility outside town or village districts to set a different speed limit by order – this may be higher or lower than 40 mph (r.4(3)). The earlier Regulation only allowed for an order to set lower speed limits. Secondly, there is an express exemption to the temporary general speed limits outside such districts for “any vehicle operated by, or on behalf of, the Department of Infrastructure, Department of Home Affairs, or the Department of Health and Social Care” (r4(4)). This exemption does not apply to limits created by specific order of the Department of Infrastructure, only to the 40 mile per hour default (Road Traffic Regulation Act 1985 s.23(1)(b) without any modification of the section, per r.4(4)). So if the Department sets a speed limit of 50 mph for a section of road, that limit applies to the vehicles listed. It should be noted, however, that the existing statutory exemption from any speed limit for vehicles used by the emergency services remains intact (Road Traffice Regulation Act 1985 s.27).

The Competition Regulations modify existing competition law. Any agreement or arrangement entered into in order to secure the supply to persons in the Islands of goods or services does not constitute an anti-competitive practice (cl.4(1)), unless the Office of Fair Trading declares that a particular agreement or arrangement of this kind is not in the public interest (cl.4(2)). So, for instance, food retailers could agree to share customers on the basis of efficient delivery routes without the normal implications for competition law. If they were to cooperate in a way the OFT regarded as not in the public interest, however, the normal laws could be enforced against them.

Finally, the Special Constables (no2) Regulation replace the earlier Regulations (noted here). The new Regulation is almost identical to the one it replaces, except with the addition of a detailed Schedule on subsistence and refreshment allowances which, as was noted during the process of approval of the earlier Regulations in Tynwald, was referred to in cl.5(9) but absent from the earlier Regulations. The Schedule explains how the Department must approach these allowances, rather than providing detail on amounts payable. It also provides as, an alternative to being paid the allowance under these Regulations, that a special constable may “be paid a subsistence allowance at such rate as is payable to members of Tynwald and members of the Isle of Man Civil Service” (Schedule, cl3). My reading of the Schedule is that this gives flexibility to the Department as to how it chooses to cover these expenses, not a right by a special constable to choose how their expenses are calculated.

 

A short blog on the Emergency Powers Amendment (no2) Bill, the replacement for the Bill which was withdrawn earlier in the week; and whose content was summarised here.

Two special sittings planned in a single week emphasise the urgency of this legislation. Looking at the Bill, however, it seems to me that the reason for this urgency may be quite specific: the Bill, like its predecessor, will allow Regulations to be created carrying fixed penalties of up to £250, but without requiring formal criminal proceedings unless the recipient chooses to appeal (proposed new s.4(3)(b), 4(3A)(b)). If IOMG wishes to provide for this sort of penalty to back social distancing norms, and other future provisions where quick dispensing of relatively low penalties is desired, this change is essential.

In relation to the power to create offences, these Amendments are very similar to those of the Bill’s predecessors. Offences may be tried in any summary jurisdiction, but not by a non-judicial person appointed in a Regulation (proposed new  s.4(3)(a)). The new Bill will however retain the power to create forfeiture penalties, removing of which I had queried in my commentary on its predecessor (proposed new s.4(3)(a)). A new feature of this version of the Bill is that the former absolute exclusion of a power for Regulations to make changes to criminal procedure has been replaced by a power to do so, subject to “the consent of the Deemsters”, although no Regulation may provide for custody or a financial penalty without trial (proposed new s.4(3A)(a)). As the explanatory notes indicate, there may be a need to change particular rules of procedure, for instance to allow for some offences to be dealt with by live video link rather than in person in court.

Although not the most urgent, arguably the most important provisions are in relation to continuance of Regulations from one period of emergency proclamation to another; and after the end of the emergency. The provisions for continuation of a Regulation have been substantially changed. The Amendment would allow for a Regulation to be continued only if Tynwald votes to continue a Regulation at the first sitting after the start of the new emergency period (new s.4(1A)). The earlier Bill would have allowed Tynwald to render a Regulation invalid at any time, but taken inactivity by Tynwald as allowing the Regulation to continue. The new version, by requiring positive approval from Tynwald at the start of every emergency period, emphasises the importance of democratic oversight.

The new Bill also addresses the issue of how to treat these Regulations after the emergency is over (new s.4A). 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 would have effect when drafted, but must be placed before Tynwald as soon as practicable, and if not approved within two sittings, cease to have effect (Legislation Act 2015 s.31). Given that this element of the Emergency Powers regime is forward looking – looking into the period after the emergency has finished, but only exercisable during the emergency – it may have been better to have required the approval of Tynwald under s.30 of the Legislation Act so that the provisions would not come into effect until approved.

These continuation Regulations may provide for the continuation, with or without amendment, of Emergency Power Regulations for up to 3 months from the end of the emergency. These continuation Regulations are treated as secondary legislation for the purposes of the Human Rights Act 2001. One point of potential interest is the reference to “any regulations … which are in operation during the period of emergency” – clearly a Regulation may be continued which was not in effect for the entire emergency (none have been), but may a Regulation be continued which ceased to be of effect during the period of emergency? In particular, might a Regulation which ceased to be of effect because it was not approved by Tynwald within seven days be continued? If the intention is to allow continuation only of Regulations which were in effect at the end of the emergency, it may be worth amending this clause to make that clearer.

The final provisions, new to the Bill, cover the same ground as the Local Elections Regulations, discussed here. It may be significant that these have been moved into primary legislation while the increase in the power of the Governor to delay filling a vacancy in the House of Keys by a further four months  – contained in the Keys Elections – Casual Vacancies Regulations – has not.

In my commentary on the earlier version of this Bill, I expressed concern that there was no explicit restriction on the power of a Regulation to make changes to Tynwald before a Regulation came to be approved. I suggested that one way to address this concern was to require consent of officers from the legislative branch – the Speaker and the President – before a Regulation by the executive branch making changes to Tynwald could come into effect. This broad strategy has been adopted in the amended Bill, requiring consent of the Deemsters – the chief officers of the judicial branch – if a Regulation of the executive branch is to change criminal procedure. The power of Regulations to affect Tynwald is not, however, covered in this version of the Bill.

One possibility is that IOMG does not consider the Emergency Powers Act gives them the power to change Tynwald by Regulation. Such a view might be based on technical arguments about the intrinsic power of secondary legislation, or on a confidence that a Manx court would find a move to undermine the power of Tynwald “to carry out its constitutional functions” to be unlawful (following the lead of the UK Supreme Court in Miller and Cherry, the key 2019 decision on the power of the Prime Minister to recommend prorogation of Parliament to the Crown). The House of Keys Regulation suggests this is not necessarily so however –the Governor in Council has already used an Emergency Powers Regulation to create up to four additional months when the Keys is composed of 23 rather than 24 members. If IOMG considered that Emergency Regulations could not alter the composition or membership of Tynwald, we might have expected to see the House of Keys Regulations moved into primary legislation alongside the Local Election Regulations.

If Emergency Power Regulations can change Tynwald before they have been approved by Tynwald, I return to my argument in relation to the previous incarnation of the Bill. The wide-ranging restrictions on the individual, and increase in state powers, possible under the Emergency Regulations require democratic oversight by Tynwald. This has been given more weight under this incarnation of the Bill in relation to the continuance of Regulations from month to month. A clause protecting the autonomy of Tynwald would help to delineate the limits of executive power even in this unprecedented emergency which requires swift and wide-ranging action.

This update covers Regulations made on the 30^th and 31^st of March, except for the Prohibitions on Movement Amendment Regulations, which I have already discussed.

The first addresses the recurring theme of building capacity to deal with the crisis, by providing for emergency volunteering leave. The Volunteers Regulations provide an entitlement to be absent from work on emergency volunteering leave for those undertaking a voluntary role in health or social care (r.6). The entitlement does not apply to workers in businesses with less than 10 staff, the emergency services, crew of a vessel, or such other persons as may be specified by the Cabinet Office (r.7).

The worker is required to notify their employer in writing in advance, the application being accompanied by a copy of a certificate from the DHSC  (r.6(4)). Provision is made to ensure agency workers can also use the right (r.18). Such leave may be for between two and four consecutive weeks (r.8). Upon the end of the leave, the worker is entitled to return as if they had not been absent (r.10). Pension rights are dealt with specifically, with the Regulation reading in a rule that the leave is treated the same as time not on the leave into every occupational pension scheme (r.11). There is an exception to this in relation to salary – if a worker is not paid as normal during their emergency leave, the Regulation does not require payment into the scheme on any basis other than their actual pay (r.11(7)). The Employment Act 2006 is modified to protect employees who take advantage of the new right to take emergency volunteering leave (r.13-17).

Although while on leave the worker is entitled to the benefits of employment generally, this explicitly does not include wages or salary – in other words, this is not leave paid for by the employer (r.9). Instead, the Council of Ministers is under a duty to make arrangements for the payment of compensation to emergency volunteers (r.19(1)). Volunteers are to be entitled to compensation for both loss of earnings and travel and subsistence (r.19(9)), but the requirement that the former be for loss of earnings caused by volunteering means that this does not provide for payment of volunteers generally (r.19(3)).

The remaining two amend existing Regulations, as it became clear that the original – appropriately swiftly drafted – Regulations could be improved. In Tynwald on the 31^st of March, the Chief Minister explained that this was likely to be a recurrent element of the Emergency Powers Regulations, and a way in which Tynwald members could help to improve legislation by scrutiny. Strikingly, an Amendment may already have been approved by the Governor before the original Regulation has been laid before Tynwald for approval – in such case knowing that the base Regulation has already been improved in a particular way has allowed members to vote for approval. Should Tynwald on a later date choose to reject the amending Regulation, however, the Regulation as passed will remain law.

The Entry Restrictions Amendment Regulations make a number of changes to the Entry Restrictions Regulations which I have already discussed. The most important change is that the Department of Infrastructure or Council of Ministers may exempt, under the original r.6, a company or other body (new r.6(1A)) As the Chief Minister explained in Tynwald, this provision is not intended to give companies a broad right to allow exemptions, but rather to allow IOMG to exempt groups of employees rather than named individuals –so “the crew of the Ben-My-Chree” rather than the 119 crew by name. The Regulation also requires an exemption issued by the Council of Ministers to state whether it permits entry on more than one occasion (new r.6(ca)).

The Closure of Businesses and Other Premises Amendment Regulations primarily amend the Closure of Businesses and Other Premises Regulations, although they also make consequential amendments to the Prohibitions on Movement Regulation. Both have been noted already.

In relation to the Closure of Business Regulations, there is a replacement Schedule of the three types of businesses (Part 1, must close; Part 2, may remain in operation subject to conditions; Part 3, may remain in operation). In revising the Schedule, the Regulation has introduced a definitional subtlety. Part 1 originally ended “Any other business that is not permitted to continue in operation under Part 2 or Part 3”. It now reads “Any other retail business …” (Schedule, Part 1(26)). Part 3 businesses now include “Any other business that is not listed in this Schedule” (Schedule, Part 3(37)). The interaction of these two provisions is important – a retail business not specified in the Schedule must close, while a non-retail business not specified in the Schedule may remain open without any conditions. So where a particular sector has not been specified, the old Regulations would have required closure, but the new Regulations treat retail and non-retail businesses quite differently.

There are a substantial number of detailed changes in the Schedule, which I will not summarise here. In relation to the illustrative examples in my earlier blog, the purposes for which a place of worship may operate now include broadcasting of a service of religious worship, whereas the Schedule formerly only specified broadcasting of a funeral (although it was lawful for a minister to travel to the place of worship to broadcast a service); and the definition of immediate family for funerals is considerably expanded, in particular now including spouse, civil partner, or “person living in an enduring family relationship” (new r.3(1)). I indicated that the earlier Regulations did not provide for emergency work to preserve life if two tradespersons were required to work closer than 2m to each other. This has now been amended by requiring tradespersons carrying out such emergency work to comply with guidance on “Carrying out emergency repairs in people’s homes” which, amongst other things, lays out the 2m rule only in relation to occupants of the household.

It is worth noting that this change, while sensible in substance, has created a situation where a tradesperson can commit a criminal offence potentially leading to imprisonment for failing to comply with a website published by IOMG, which we might expect to change from time to time without any oversight by Tynwald; while a constable may enter premises and use reasonable force to ensure compliance with this website. Part 2 of the revised Schedule uses this mechanism both in relation to repairs in homes, and keeping of stock.

The Regulation also makes a small number of changes to the Prohibitions on Movement Regulations – broadening the exception for allowing children to be moved between two households where that is the existing arrangement for contact between child and parents (new r.5(1)(f)), and expanding the definition of immediate family for allowing travel to and from a funeral (new r.5(4)). The Regulation does not, however, address the anomaly I noted earlier that it is lawful to carry out a funeral with a friend of the deceased present if no immediate family are available, but it is not lawful for that friend to travel to the funeral.

A piece of primary legislation amending the Emergency Powers Act 1936 is to be laid before Tynwald. As well as summarising the Bill, I will raise two points of possible concern, not addressed in the Bill.

Clause 2(2) of the Bill will amend the Emergency Powers Act to remove reference to “by Order” in the making of Regulations under the Act. This will bring the EP Regulations in line with modern legislative practice.

The Bill also addresses an issue raised in Tynwald debate. As will be recalled, the Governor may only declare a state of emergency, allowing use of the 1936 Act, for a period of up to a month of a time; but may make repeated Proclamations in order to keep the powers in continuous use for a longer period. Clause 2(3) will make it clear that Regulations will continue between continuous states of emergency “unless Tynwald resolves otherwise”. This is a less stringent restriction than in the creation of the Regulation in the first place, but it must be remembered that Tynwald will have already approved the Regulation for one period of emergency. Although the amendment does not specify how to deal with Regulations made at the end of one period of emergency, my reading of the amended Act as a whole is that the Regulations must be approved within seven days of being made in any case if they are to remain in force. If this is the case, and Regulations must always be approved at least once, then the clause strikes a good balance between ensuring continuity without repeated redrafting and rediscussion, and retaining democratic control. For such continued Regulations, after the proclamation period in which the Regulation was made, it may be rendered invalid by Tynwald at any time. Tynwald does not have the power to cancel a Regulation during the same proclamation period as it was made.

The 1936 Act created the power to make criminal offences in the Regulations under s.4(3). There are a significant number of changes to this power in cl.2(4). Firstly, the Act as it currently stands requires any crimes created to be heard before the High Baliff or any other person appointed by the Governor. The amendment will remove the power of the Governor to appoint persons ad hoc to hear criminal proceedings under a Regulation (for instance allowing a government official to hear criminal offences under a Regulation relevant to their Department), but allow crimes to be prosecuted before any court of summary jurisdiction. Secondly, the Bill removes the power to make Regulations which include as a penalty for a crime forfeiture of “any goods or money in respect of which the offence has been committed”. As I have noted elsewhere, this provision has yet to be used in any of the EP Regulations. It is not clear why the power to do so – which may be appropriate in relation to say a future profiteering or similar regulation – is to be removed. Thirdly, the Bill will add a power to create fixed penalty notice offences. Fixed Penalties are a common way of quickly enforcing relatively low-level punishments, for instance parking violations, and could easily be seen as a good way of enforcing particular Regulations (as is being done for similar regimes elsewhere in the British Isles). Finally, the Act will be amended to allow the creation of Regulations with a fine “not exceeding level 5 on the standard scale”.

This last point is perhaps worth expanding on. There are two ways in which an Act of Tynwald can be amended by a later Act. The most straightforward is when the later Act explicitly amends the earlier Act, in effect putting new text directly into the Act itself. The maximum fine permitted under an Emergency Powers Regulation was amended in this way by the Fines Act 1983 and Criminal Justice (Penalties etc) Act 1993. This gives us the text of the 1936 Act on the legislation website, which allows creation of offences imposing fines up to £5000. Regulations made under the Act, however, often provide for a fine up to standard level 5, which is £10,000. How do we square this?

The position of the drafters, as noted in the Explanatory Notes to the Bill, is that there has been an implied amendment to the 1936 Act by the Interpretation Act 2015, allowing the 1936 Act to create an offence with a fine up to standard level 5. That is to say, the 2015 Act did not refer to the 1936 Act, but it had the effect of changing the meaning of the Act by implication. If the 2015 Act did have this effect, the change is a welcome clarification – something as important as the Emergency Powers Act, which everyone in the Isle of Man will have an interest in, should be as clear and accessible as possible.

I am not completely convinced the 2015 Act did this however. s.55(1) of the 2015 Act created a five point standard scale, which at the time it was passed, had level 5 at the top of scale, with a £5000 fine. Under s.55(4), the scale applies in relation to existing Manx legislation which allows creation of a summary offence allowing a fine. The trouble with applying this to the Emergency Powers Act is that the specified amount “is to be read as reference to the first level in the standard scale that is higher than the specified amount or maximum which was in force immediately before this section comes into operation” (s55(5)). The top of the scale in 2015 was £5000. The Emergency Powers Act could create £5000 fine offences. There is, thus, no point in the 5 point scale which is “higher than” the Emergency Powers Act penalty, and so no point on the scale which s.55(5) caused the Emergency Powers Act to be moved onto. The problem of £5000+ penalties is dealt with specifically for a number of pieces of legislation in s.55(7), but not for the Emergency Powers Act. The Statute Law Revision Act 2017 s.11 increased the size of fines in the scales, moving the top of scale 5 to £10,000 and the top of scale 4 to £5000. Does this mean the Emergency Powers Act then moved onto scale 5, as it was the scale higher than the maximum under the Act? If this has been the sum originally specified in the Act, that would definitely be the case, but s.55(5), which was not amended in 2017, may suggest that the moment to measure this was “immediately before this section comes into operation”, that is, in 2015. The approach taken by the relevant provisions is not unique, and may well have been modelled on s.38 of the Criminal Justice Act 1982 of the UK, but the caselaw on that section does not illuminate this very specific point of Manx law.  A purposive approach to understanding the relation between these three pieces of legislation might well have resolved this in favour of a power to fine up to standard level 5; it is a sensible move to pre-empt any such challenge.

Moving to possible problems which the Bill does not address, these are both concerned with democratic accountability.

Firstly, Emergency Powers Regulations must be laid before Tynwald within seven days  of being made, and if not approved, cease to have legal effect. We have already seen, however, that the seven day approval period can be avoided by a repeated use of the power to make Regulations. The Schools Regulations were made on the 23^rd of March, and by the time they were tabled for the Tynwald session on the 27^th of March had already been revoked by the Educational Institutions Regulations. These Regulations, made on the 27^th, continue pending approval by Tynwald for seven days from the 27^th. The terms of the Emergency Powers Act were complied with – the Schools Regulations “must” be laid before Tynwald and they were, and ceased to have effect when not approved, and they did – but the substance of the Schools Regulation have continued without approval by Tynwald. This could be repeated, in legalistic terms, indefinitely. In practice, a Manx government which did so by design, in order to avoid the democratic oversight built into the Emergency Powers Act, might expect to lose the confidence of the House of Keys.

Secondly, is it possible for Regulations made under the Emergency Powers Act to redefine the composition of Tynwald? This would not contravene any explicit limit in the Emergency Powers Act itself, and we can imagine fairly nightmarish and improbable scenarios in which such a change to the composition of Tynwald may be legitimate. Perhaps as improbable, however, could a Regulation under the EP Act redefine Tynwald to mean “the Governor”? Remembering that Regulations take effect until they fail to be approved by Tynwald, it is not clear to me that approval of these Regulations would require the assent of Tynwald as it was when the Regulation was passed, rather than the newly defined Tynwald. Given the paramount importance of democratic oversight to the exercise of the wide-ranging powers under the Emergency Provisions Act, there may be merit in simply prohibiting Regulations making changes to the composition of Tynwald (as with the existing hardwired rules against changing criminal procedure through an Emergency Powers Regulation). If this was seen as fettering too much the ability to deal with a problem in Tynwald membership, it might be worth adding a control, such as requiring such Regulations to have the written consent of the Speaker (or equivalent) and the President (or equivalent), before coming into effect; as well as the approval of Tynwald within seven days of coming into effect.

Five further Regulations since noon on the 27^th of March, in two main areas.

Firstly, two Regulations seek, in different ways, to sustain the capacity of public services to deal with the pressures upon them during the crisis. The Speed Limits Regulations create a maximum national speed limit of 40 mile per hour outside of any town or village district, unless a lower speed limit has been specified (r.4(1), r.6). The Council of Ministers are empowered to lower speed limits within a district (r.5). There is no need to display traffic signs to this effect (r.6, disapplying Road Traffic Regulation Act 1985 s.22(2)), The Regulations seem some distance from the pandemic, and are described in the explanatory note as securing the essentials of life to the Manx community and protecting the economy of the Island – in this case best understood as protecting the capacity of the Manx healthcare system in anticipation of unprecedented strain. On a similar note, the Special Constables Regulations provide for the financial support of special constables. As with the Speed Limits Regulations, these are intended to deal with unprecedented strain on a public service – the explanatory notes highlight that “[s]pecial constables will be relied on heavily during the Coronavirus Proclamation period to fill a considerable manpower shortage in the Isle of Man Constabulary”. The Regulations require payment of reasonable out-of-pocket expenses incurred in the execution of a special constables duties, or an allowance in lieu of such reimbursement (r.5(1)); and payment in “loss of remuneration in his or her private employment while required for duty” (r.5(2)(a)). The DHA (although the Department is not specified in the Regulation) must also pay an allowance in respect of “such other matters as the Department may from time to time determine” (r.5(2)(b)). The Regulations deal with very specific issues such as refreshment and subsistence allowances, efficiency allowances, travelling expenses (r.6) and boot allowances (r.5(5)-(13)). Apart from “a nominal fee for performing patrol duties” (r.5(14)), and the compensation for loss of private remuneration as noted above, “a special constable is not to be entitled to any remuneration of his or her services as such” (r.5(15)).  The Regulations also provide for an entitlement to sick pay when a special constable loses remuneration from their private employment as a result of an injury received or disease contracted on duty or while commuting to or from duty (r.7).

Two similarly drafted Regulations provide for closure of providers of collective childcare and education. The Child Care Services Regulations apply to services provided at a child day centre or by a childminder (r.3). Childminding does not include looking after a child for which you are responsible (meaning a child to which you are related, or have parental responsibility for, or are fostering); looking after a child where you are directly employed to look after a child by such a person (so nannys are excluded); or being employed by two different employers looking after children wholly or mainly in the private dwelling of either employer (Regulation of Care Act s.20-21). The DHSC may order named child care service providers, or all child care services, or child care services of a particular location or description, to be temporary closed (r.5) The DHSC has considerable discretion in making such orders – for instance being able to keep a setting open for particular types of person (r.5(3)). In such case, a child care provider must take reasonable steps to ensure that persons do not attend premises for purposes connected with child care services (r.5(2)). The Regulation is backed by the power of the DHSC to apply for an junction to enforce its order (r.5(4)), and a criminal offence where a person fails without reasonable excuse to comply with the order (r.6). The Educational Institutions Regulations make similar provision for schools and colleges, superceding the Schools Regulations discussed in an earlier blog (r.8), and never put before Tynwald for approval. As well as giving similar powers to the DESC as the DHSC has over child care service providers (r.5), the Regulations retain the modification of normal requirements in relation to school attendance from the earlier Regulations (r.6).

The final Regulation amends the Prohibition on Movement Regulations discussed in an earlier blog. The definition of emergency or necessary voluntary service was expanded to include the Isle of Man Coastguard and Isle of Man Civil Defence Corps (r.3).

In a previous blog entry I summarised Regulations made under the Emergency Powers Act 1936, outlined here, which were made between the 19^th and 24^th of March. In this blog I do the same for one further Regulation made later on the 24^th of March, and 8 regulations made on the 25^th, 26^th and 27^th of March as of 12 noon. Similarly to the previous blog, I will cover these 9 regulations in six categories.

Firstly, the general restrictions on movement and physical distancing. An amendment was made to the Potentially Infectious Person Regulations. When created on the 24^th of March, this amending Regulation created a restricted right to exercise for those in self-isolation; but this was right was removed by a further Regulation created on the 27^th of March – an illustration of just how fast moving the legislative scene is; a point reinforced by the emerging practice of not only dating but timing the signature bringing each Regulation into effect. The remaining provisions of this Regulation are still in effect. The Regulation creates a duty for a self-isolating person to telephone the Department to give them details of every other member of the household (new r.10(4B)). The limits on the power of the Department to require self-isolation in the original Regulation have now been removed, and replaced with a power to allow “a person, or class of persons, who would otherwise be required to self-isolate not to do so if such conditions (if any) as are specified in the permission are met” (new r.11(1)). This gives more flexibility to those administering the Regulations.

The more significant change, however, is made by the Prohibitions on Movement Regulations, created on the 27^th of March, which create a third category of restriction on movement. The earlier Regulations created two categories: individuals who, for want of a clear descriptor in the earlier Regulations, are in quarantine under the Potentially Infectious Person Regulations r.6; and those who are required to self-isolate under r.10. These new regulations impose a, further, general restriction on everyone unless exempted in writing by the Chief Secretary – “No person, other than an exempt person, may leave his or her ordinary place of residence except in accordance with these Regulations” (r.4). A person who leaves or is absent from their ordinary place of residence, except temporary residents in hotels, caravan sites etc. who are unable to move into an ordinary place of residence (r.6), is subject to a fine and imprisonment unless this absence is in accordance with these Regulations (r.7). A constable has the power to enforce these Regulations (r.8).

So when do these Regulations allow a person to leave their ordinary place of residence?

Under r.5, any person, so long as they are asymptomatic, may leave to: provide an emergency or necessary voluntary service; shop for basic necessities; “undertake one form of exercise per day”, alone or with members of their household (r.1(3)); address a medical need in the household; care for a child or adult who would otherwise be harmed; accompany a child to the home of the child’s other parent; attend a funeral of immediate family (although defined in the Regs under r.1(4), this does not refer to a friend of a deceased person, despite this being envisaged in other Regulations discussed below, creating a situation where a funeral may lawfully be carried out with a minister and a friend physically present, but the friend may not travel to it); carry out work in the home of another person so long as appropriate social distancing is observed with the household, and only in the house of a symptomatic person in order to immediately preserve life or property; for work (so long as the place of work is not closed, attendance in person is necessary, and the minimum of staff are present); and to perform the duties of office or employment in the provision of an essential service (r.5(1)).  Ministers of Religion may further leave their house to broadcast a religious service from a place of religious worship to broadcast a religious service, or to conduct a funeral (r.1(2)).

Essential services are given a broad definition. A list of services is given in the Schedule: health and social care (including the supply chain); education and childcare for essential workers; key public services such as the judiciary, Members of Tynwald and Tynwald staff; local government when required to meet a statutory duty or essential during the outbreak; staff working with the Police, Fire and Rescue Service, Isle of Man Ambulance, Prison and Probation services and border security staff (the actual services, along with other key services such as the RNLI, are covered by the definition of “emergency or necessary voluntary service” in r.3.); transport staff; utilities and information technology staff; and those involved in the conduct of any regulated activity under the Financial Services Act 2008 . Additionally, a service provided “at or from” business, government, or charitable premises which has not been required to close under the Closure of Premises Regulations, is defined as an essential service (r.5(5)(b)).

The breadth and power of these Regulations make the Events and Gathering Regulations, made the previous day, look largely unnecessary. These Regulations give the DHSC new powers to support physical distancing by restricting events or gatherings. Restrictions may be general, in which case they must be publicised on the IOMG website (r.4(1)(a)); or addressed at a particular event or gathering (r.4(1)(b)). The DHSC can, “amongst other things”, prohibit the gathering, or require organisers to inform those planning to come to the gathering of any cancelling or restrictions imposed upon it (r.4(2)). The DHSC also has the power to close premises, or impose restrictions on entry into the premises – for instance in relation to the number of persons allowed on the premises, or time of entry (r.5(1)). It may also require “restrictions in relation to the location of persons in the premises” (r.5(3)(c)) – for instance requiring a shop to keep customers a certain distance from each other. As with the Potentially Infectious Person Regulations these provisions are backed by enforcement powers allowing the use of force (r.7), and a criminal offence (r.8). It may be that, if not needed during the current period of home confinement, the Regulations will be available for use if these are eased during the outbreak. A further provision addresses an issue not covered in the other Regulations. The DHSC, with the concurrence of the Treasury, may “pay compensation to a person adversely affected by or in connection with the giving of a direction under these Regulations” (r.9). It is worth noting that although the Regulation talks about “compensation”, the “may”, combined with the requirement for Treasury approval, suggests to me that it is a power vested in the DHSC rather than a duty. The Regulation does not seem to me clearly to create a right to be compensated, let alone a right to be compensated at a level that completely covers any loss. Nor does it seem to cover losses under the Prohibition of Movement Regulations.

On a larger scale, the Entry Restrictions Regulations prohibit entry to the Island (r.5). There are exceptions for persons who are vital to critical national infrastructure, essential medical experts, and persons returning to the Island after essential medical treatment (r.6(1)). The Council of Ministers may further specify that the prohibition does not apply to a particular person (r.6(3)). In either case, exceptions may only be made where the failure to admit the person poses a greater risk to safety and the life of the community than admitting them, and where such measures as are reasonably practicable to mitigate any risks are in place (r.6(4)). Failure to comply is backed by custody or fine (r.8).

Secondly, the Closure of Businesses and Other Premises Regulations supercede the earlier Closure of Premises Regulations (repealed by r.8), by providing powers for closure and restriction of businesses of all sectors. Businesses are divided into two categories. Part 1 businesses must cease operating immediately, and close their premises (r.4). If a business is not covered by Part 2 or Part 3, then even if not specifically listed it falls within Part 1 (Sch, Part 1(22)).  Part 2 businesses may continue to operate only for specified purposes, and only if any conditions imposed on that sort of business are met (r.5(2)). Part 3 businesses may continue to operate (r.5(3)). All businesses that continue  to operate must take reasonably practicable measures to reduce the risk of infection (r.5(3)). As usual with these Regulations, they are supported by enforcement powers (r.6) and criminal offences (r.7).

The Schedule is long, detailed, and drafted for the non-specialist reader, so the different Parts of the Schedule to the Regulations should be consulted directly. Purely for illustrative purposes I will discuss a small selection from each Part.

Part 1 includes amongst many businesses bars, museums, skating rinks, golf courses, and enclosed spaces in parks. These must all close.

Part 2 includes amongst many other businesses places of worship and business by a tradesperson. Places of worship may be open for funeral services, hosting of essential voluntary or public services, and facilitating blood donation sessions. When open for funeral services the operator must make all reasonable steps to ensure that the funeral is not attended by anyone other the officiating minister, members of the deceased’s immediate family or – if no immediate family are attending –a friend of the deceased (but see my comment above). Tradespersons (which the detailed list in the Schedule suggests are those working in building and related trades) are permitted to carry out any emergency work on any premises which is necessary for the preservation of life; even then the work must be carried out 2 metres or more from any other person. On the face of the Regulation, emergency work to preserve life which requires two tradesmen to work closer together than 2 metres is not permitted.

Part 3 includes amongst many other businesses sweet shops, financial services, businesses primarily concerned with information technology, legal and accounting businesses, public toilets, and storage and distribution facilities. These businesses may remain open without specific restrictions, but must meet the general duty to take all practicable measures to reduce the risk of infection.

Thirdly, two Regulations allow greater flexibility in who provides health care. The Sale or Supply of Medicinal Products and Appliances Regulations allows the DHSC to issue a written Protocol allowing medicinal products and appliances to be sold or supplied by a person otherwise than permitted by the misuse of drugs, national health service and medicines legislation (r.5(1), (2)). This written Protocol must be laid before Tynwald, but does not require Tynwald to approve them (r.5(1)). The Health Service Regulations allows the DHSC to indemnify a person or persons who is not already indemnified (r.4(6)), in respect of some liabilities (r.4(1)). The liabilities covered are those in the civil law area of tort – liabilities to pay damages for death, personal injury or loss arising from a breach of a duty of care (r.4(2)). The power to indemnify applies to those providing direct care for those with Coronavirus (r.4(3)(a)) but also those filling a role in treating other patients where the usual worker is unable to do so because they are providing this direct care, or for some other reason related to Coronavirus (r.4(3)(b), (c))). The purpose of this Regulation is to allow the DHSC to secure health care workers from legal liability for, in effect, medical negligence in relation to changes in their working practices, for instance working in a field that they do not normally work in, caused by the crisis. This does not mean that the victim of such negligence would not have a remedy, but makes it clear that it would be against the DHSC rather than the health care worker.

Fourthly, the Enterprise Act Amendment Regulations make one substantive amendment to the Enterprise Act 2008 (r.4(2)). By deleting s.2(b) the Department of Trade and Industry’s power to provide assistance to eligible businesses does not require that “the assistance is likely to encourage sustainable economic growth in the Island”; thus making it clear that assistance to reduce economic decline is lawful. The Regulation also streamlines the process by which Regulations made under the Enterprise Act are considered by Tynwald, no longer requiring approval by Tynwald before they come into effect, but allowing Tynwald to reject them if it chooses (r.4(3) amending s.8). In doing so, the Regulations provide the foundation for part of the IOMG financial response.

Fifthly, the Protection from Evictions Regulations. These provide for a temporary prohibition on evictions in relation to both private residential accommodation, and property used for commercial or social purposes (r.3(2)). This 90 day moratorium (r.4) prohibits a landlord from evicting for failure to pay some or all of the rent (r.5(1), (2)), but does not protect a tenant from eviction on other grounds, or exempt the tenant from paying in full any arrears of rent which build up during the moratorium (r.5(3)). In making arrangements to claim these arrears at the end of the moratorium, however, the landlord “must make reasonable allowances that take into account the financial circumstances of the tenant that are attributable to any income loss experienced by the tenant on account of any of the effects of the pandemic” (r.6).

Finally, and very specifically, the Road Transport Regulations addresses the locations in which taxis may operate. These Regulations make specific changes to an Act of Tynwald without, unusually, identifying what that Act is – contrast the Enterprise Act Amendment Regulations discussed above. From the content of the Regulation, it must be the Road Transport Act 2001. The Regulations extend a taxi license which has been issued under s.29 of the Act to allow operation anywhere in the Island (r.4) – the 2001 Act required applicants for licenses to specify “the area or areas in which the applicant proposes to use the vehicles” (s.30(1)), and provided for licenses to be limited by district (Sch.2, now suspended by r.5).

On the 24^th of March 2020 Tynwald approved the first set of Regulations under the Emergency Powers Act 1936. Such Regulations can have affect before being approved by Tynwald, but must be approved within seven days of being made or cease to have effect. This is reflected in the motion for each, where Tynwald was asked to “approve the continuance of” each Regulation. All are now available on the Statutory Documents page of Tynwald. Including Regulations made, but not yet approved, there are eleven Regulations in all in this first group, which I will group into six broad categories. I will aim to add further explainers on batches of Regulations as they are made.

Firstly, directly concerning potentially infectious persons. The Potentially Infectious Person Regulations provides powers to deal with potentially infectious persons, defined by the Regulation as a person who is or may be infected with coronavirus with a risk that the person might infect others, or a person who has been in an infected area within 14 days (r.4(1)). There are two distinct categories of restriction available to the DHSC (the Department) under this Regulation.

• There are far reaching powers in relation to an individual where there are reasonable grounds to suspect that they are potentially infectious. There are powers to impose “such requirements on the person as the Department considers necessary and proportionate” (r.6). These requirements may not exceed 14 days, but may be renewed for a further 14 days (r.8) The Regulations give broad powers to require a person to remain in a particular place, and provide information (r.7(1)). In creating these requirements, the Department must have regard to a persons wellbeing and personal circumstances (r.7(2)), and must revoke any requirement if it considers the person is no longer potentially infections (r.8(3)). There is also some judicial oversight, as a person subject to a requirement under r.7 may appeal to a summary court (r.9).
• Separate powers apply to persons who are required by the Department to self-isolate, but are not a specific concern as an individual. A person can be required to self-isolate if they are a potentially infectious person referred to in a notice published by the Department as it considers appropriate (r.10). Such a notice may include requirements in respect of such a person, which can cover movement and information (r.10(4)), and explicitly limit movements or travel, activities including work, and contact with other persons (r.10(8)). In creating these requirements, the Department must have regard to a persons wellbeing and personal circumstances (r.10(6)). There are, unlike the r.6 restrictions, a number of categories of person who the Department may not impose a self-isolation requirement upon – broadly – key workers in the current crisis (for a full list see r.11(1)), and Cabinet Office may expressly exclude from self-isolation any other person (r.11(2)). These exceptions to the exceptions do not apply if a person is or may be infected, and there is a risk that the person might infect others (r.11(3)). There is a statutory definition of self-isolation (r.10(9)). It means, so far as a person is reasonably able to do so, “seclusion of segregation from the population at large”, and from other persons in the same household, but “does not exclude contact with the populace at large or other members of the same household where that is facilitated by other persons, and cannot be reasonably avoided”.

To deal with a fast moving crisis, the Regulations are very flexible in terms of how the Department communicates its legally binding requirements to individuals or to the public. As noted above, self-isolation requirements can be published by the Department “in such manner and at such times as it considers appropriate” (r.10(2)). More broadly any restriction or instruction may be given or imposed orally, in written form,, or electronically (r.13(1)), but oral communications should be backed up as soon as reasonably practical with writing or electronically (r.13(2)).

In terms of enforcement, the most striking provisions are those which give the police power to limit a persons movement and ensure requirements under the Regulations are complied with (r.7(3), r.10(7), r.14). They are supported by a number of offences which carry a maximum penalty of £10,000 fine, or 3 months custody (r.18). As may be expected, these mainly concern failing to comply with a requirement, absconding, knowingly providing false information, or obstructing the exercise of powers under the Regulations. Responsible adults are under a duty “so far as reasonably practicable” to ensure that a child complies with any restriction imposed upon them (r.12).  Perhaps less obviously, but importantly, the regulation penalises anyone who “knowingly or recklessly requires or demands or otherwise unduly pressures a person … who is required to comply with any … requirement … to ignore, contravene or otherwise fail to comply with … the requirement” (r.18(e)). Unduly pressuring a person who should be self-isolating to break that self-isolation is a criminal offence.

Secondly, control of ports of entry. The Port Operations Regulations give the Council of Ministers  the power to order a port of entry to suspend such operation as they specify (r.5(1)). This legislation is directed at a very specific group  – “a person concerned in the management of the port” (r.3). The operations are similarly specialist – “any operation or functions carried out by an operator at a port of entry in relation to (a)  the arrival of or departure of any vessel, aircraft, or other conveyance or vehicle; (b) the entry into the Island of persons or things” (r3). It seems likely that these are alternative operations – so the Regulations could allow restrictions on vessels which did not involve entry into the Island. Interestingly, a failure to comply is to be punished by custody or a £10,000 fine. The Emergency Powers Act 1936 would have allowed a forfeiture penalty of property used in the contravention of the Regulations – perhaps more compelling to large commercial concerns. The very specific Home Affairs Staff Regulations prevent a person employed by the Department of Home Affairs, except a  constable , from leaving the Isle of Man without the permission of the Department  (r.4). Doing so can be punished by custody or a fine. The explanatory notes indicate that constables absence from the Isle of Man is already dealt with under the Police Regulations. This is an unusual provision, tied as it is to particular employment, but does not seem to me to contravene the limit in the Emergency Powers Act prohibiting regulations from punishing strikes.

Thirdly, two regulations close specific sectors, and are directed at those running organisations in those sectors rather than the general public. The Closure of Premises Regulations requires the owner, proprietor or manager of a business covered by the two Schedules to the Regulations to close (r4). Part 1 of the Schedule covers restaurants, cafes, bars, and public houses. It does not apply to cafes at a hospital, care home or school; military and prison canteens; and services providing food and drink to the homeless (Sch 1(2)), or room service at hotels (r.4(2)). Such businesses may offer food or drink for consumption off premises, but may not avoid the restriction by having seating adjacent to the business which customers may use (r.4(3)). Part 2 of the Schedule is simpler – business listed must “cease to carry on that business” (r.4(4)). This applies to cinemas, theatres, nightclubs, bingo halls, concert halls, museums and galleries, casinos, betting shops, spas, massage parlours, indoor skating rinks, and indoor gyms and swimming pools (Sch.1(5-16)). The Schools Regulations gives the Department of Education, Sport and Culture the power to give a temporary closure direction to a named educational institution, all education institutions, or educational institutions of a particular description (r.5(1)). Normal laws concerning the duty to ensure a child is educated do not apply during a closure (r.6)).

Fourthly, the Planning and Regulatory Legislation Regulations allow the Council of Ministers to give written consent for the use of a premises for a specified purpose or activity. Such a use does not a violation of specified planning laws (stated in r.5(1)(b)(i)-(iii)). Most interestingly it also creates a similar immunisation for “a breach or contravention of  any regulatory legislation” (r.5(1)(b)(iv)). Regulatory legislation includes the Licensing Act 1995 and Tourism Act 1975, but is specifically not limited to that legislation (r.3(3)), covering legislation “(a) to which the premises were subject immediately before the consent was given; and (b) which relates to the registration or licensing of, or applies standards in connection with, the use of the premises or a person who operates the premises for that use” (r.3(2)). The example given in the explanatory note is allowing a restaurant to supply food and alcohol on a takeaway basis, but there is no reason this Regulation could not apply to very different areas of the law – subject, always, to written consent by the Council of Ministers and so, ultimately, to democratic control by the House of Keys.

Fifthly, the Food and Fuel Regulations create a power for the Department of Environment, Food and Agriculture to make regulations “to regulate the supply and distribution of food and fuel as it appears to the Department to be necessary to do so for the purposes of maintaining public safety and the life of the community” (r.4(1)). Such Regulations impose criminal sanctions similar to the other Regulations, but again do not refer to the forfeiture power under the Emergency Powers Act. Regulations allowing Regulations raise concerns about accountability, but the Regulations require that any regulations made by the Department must be approved by Tynwald within seven days of being made (r.4(4)) – the same democratic oversight as the Emergency Power Regulations.

I have stressed the importance of democratic oversight of potentially very far reaching powers. This makes the final category two Regulations concerning elections, particularly important. The Local Elections Regulations postpone local elections due on 23 April 2020 until 22 April 2021 (r.4)). Current members of local authorities, except the parish districts of Arbory and Rushen, will remain in office until 1 May 2021 unless they vacate office earlier (r.6). There are special provisions for Arbory and Rushen Parish District (r.11). More constitutionally significant are the Keys Elections – Casual Vacancies Regulations. Where the Governor would normally be required to call a by-election to fill a vacancy in the Keys within two months, an extended time limit of six months is permitted (r.4). The immediate effect of this change is to allow the Governor to defer the by-election for South Douglas, vacant on the death of Bill Malarkey, beyond the normal limit of 24 April. It is not, however, limited to this particular vacancy. To editorialise for a moment, given the importance of the House of Keys to democratic oversight of the Emergency Power legislation, and their relatively new monopoly over removal of the Council of Ministers, it may be worth giving some thought to ways to allow Keys elections without traditional physical polling.

 

The state of emergency proclamation is made under the Emergency Powers Act 1936, an Act of Tynwald. The Governor in Council has 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”. The 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 High Baliff or other person appointed by the Governor, with a maximum penalty of a fine, imprisonment for three months, and forfeiture of “any goods or money in respect of which the offence has been committed” (s.4(3). No regulation may alter existing criminal procedure, or impose punishment without trial (s.4(3)). 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.

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)).

In 2011 a report of the Council of Ministers recommended updating the Island’s emergency powers legislation. 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.

In October 2018 Jayne Mitchell was made the subject of a five year exclusion order. Requiring her to leave and remain outside of the Isle of Man for five years, magistrates were acting in line with centuries of Manx criminal practice.

By customary law exile, or abjuration of the Isle, might be offered to a condemned felon as an alternative to execution. This sanction was better developed in the Island than in England, where it was usually applied only to those in sanctuary. The abjured person was required to leave the Island within a specified time and, if they returned without pardon, forfeited life and limb.

By 1674 the English innovation of exile plus mandatory labour in a set place had begun to influence Manx law. For nearly a century this combination of abjuration and transportation co-existed with the older form of abjuration, but from 1741 the older form fell into disuse, except where offered as an alternative to a full trial.

The Code of 1817 placed exile, or rather transportation, on a statutory basis. After a difficult period, during which Manx law allowed the punishment but English law did not, the later Code of 1872 replaced transportation with the more flexible punishment of penal servitude. Both punishments were abolished in 1963, by provisions based on an English model.

The ability of the court to create conditions on discharges, however, allowed for the recreation of this ancient sanction for misconduct. In Daly (1991) a defendant normally resident in the United Kingdom was given a two year conditional discharge – part of the condition being that he leave the Island as soon as possible and not return for at least two years. This judicial creation was given a statutory basis in 1998, with the Criminal Justice (Exclusion of Non-Resident Offenders) Act 1998. Under the Act, the maximum period for an exclusion order is five years – as received by Ms Mitchell. Unlike the historic penalties, however, the modern exclusion order has exemptions for those with strong ties to the Isle of Man. Had Ms Mitchell been in a marriage or civil partnership with a Manx resident, for instance, no exclusion order could have been made.

 

 

On the 21^st of February 2018, Tynwald voted on the Third Report of the Select Committee on the Functioning of Tynwald. This report, discussed elsewhere in this blog, made three recommendations: (1) that the Tynwald Management Committee should be responsible for overseeing the CPD Programme for Members of Tynwald; (2) that the Lord Bishop of Sodor and Man should retain his vote in Tynwald, and have the same rights and duties as to voting as other members; (3) that the Isle of Man Government should establish an independent review to examine and report on emoluments of Members of Tynwald, having regard to a number of foundational principles. This note focusses on the second recommendation.

The recommendation was the subject of extended, and intense, debate. As well as the option put forward by the Select Committee, Mr Shimmins proposed an amendment that would remove the vote of the Bishop in both Legislative Council and Tynwald; and Mr Harmer an amendment that would have the Bishop keep his vote but, uniquely, give him a right to abstain in a vote (although the Lord Bishop had a de facto power, exercised by leaving the chamber before a vote).

Mr Shimmins amendment was lost, with a very close vote in the Keys (11:13), and in the Council (3:5, the Lord Bishop having left the Chamber at the point of voting). The recommendation of the Select Committee was passed with the same ratio – indeed, with exactly the same members losing the vote in both cases.  Mr Harmer’s amendment was lost even more closely, with a 12:12 split in the Keys, and a 3:5 split in the Council, while not mapping exactly onto the main vote. I will summarise the arguments put forward in debate by reference to those who supported, and those who opposed, the Lord Bishop retaining his vote, and consider the important speech of the Lord Bishop separately.

Supporters of the vote.

The Speaker, as Chairman of the Select Committee, introduced the Report. He argued that “whilst the Island continues to identify itself as a Christian nation there is a justification for the Bishop’s role in Tynwald”. He also considered that “it has been made quite apparent that the loss of the Bishop’s vote would mean the loss of the Bishop”, citing the letter from the Archbishop of York.

Mr Robertshaw saw the lack of parallels in other legislatures, highlighted by Mr Shimmins, as an irrelevance: “The last thing we want to do is run around saying ‘Me too’”. He saw the Lord Bishop as representing a moral and ethical dimension – something that could be achieved in other ways, but that traditionally in the Isle of Man was through a Christian representative. He put the Bishop’s vote in the context of the broader Manx constitution, stressing that the Bishop was one vote in LegCo, and that the Keys had primacy.

Mr Baker echoed Mr Roberrtshaws emphasis on Manx distinctiveness – “We need to be proud of the Isle of Man and we need to be confident in ourselves, and actually need to set our own path”. He feared that the voice of the Bishop would be lost if the vote was removed, because the Diocese would cease to exist, and stressed the responsibility of Tynwald if that was the case. He also rejected an argument that the Bishop made Tynwald undemocratic, pointing to the Lord’s Spiritual in Parliament.

Mr Cregeen also rejected, in even stronger terms, any arguments based on parallels with other countries, seeing it as “chipping away at the things that make us special”. He also doubted whether the vote of the Bishop was an important matter to the Manx people.

Mr Cannan took a different tack, suggesting that the debate was a good moment for the new Bishop to reflect on whether “he is best serving the interests of the community, and of the Church and of the respective faiths, by being inside this Court” or from outside. He argued for retention of the status quo, but to return to the issue in 12 months time. Given the closeness of the votes, this is particularly significant.

Mr Malarkey indicated he had been undecided on the vote, but he was not undecided on whether the Isle of Man should have a Bishop. He linked the loss of the vote with the loss of the Bishop, and was concerned that a large section of Tynwald had not had enough experience of the contribution of the Bishop to judge that loss properly. He also rejected comparisons; “Why do we want to be the same as Jersey and Guernsey? We have a history of being different”. He feared the immediate loss of the vote would lead to the loss of the Bishop, and argued that “if you are on the fence, slide off the fence and wait for two or three years”. Again, given the closeness of the votes, if this argument influenced other members, it may have been particularly significant.

Mr Harmer was convinced that the loss of the vote would lead to the loss of the Bishop, and that the Diocese was “fundamental to our sovereignty, it is much more fundamental to our identity and it is much more fundamental to our sense of place that we will lose something of ourselves”. A vote to retain the Bishops’ vote would “support history, support and keep our identity and sovereignty”. Mr Harmer cited Lord Lisvane’s support for the Bishop’s vote.

Mr Boot was unconvinced that the Bishops vote was a significant issue to Manx people. He feared that a loss of the vote would lead to a loss of the Diocese; and rejected what he saw as arguments from Jersey and Guernsey that the Bishops’ vote made the Isle of Man less democratic. He stressed the “tradition and the mythology that goes with it” of Tynwald – “I am not trying to undermine it all the time and [do not] believe that we will be a better democracy if we destroy some of the traditions that we have”. He also cited Lord Lisvane’s view on the Bishop’s vote.

Mr Quayle noted that the appointment process of the Lord Bishop had involved consultation with him as Chief Minister. He stressed that the vote of the Bishop, as part of LegCo, could be overruled, suggesting that this could not happen in the Lords Spiritual (a striking assertion queried by Ms Edge), and echoed suggestions that the Bishop’s vote was not important to Manx people, and read this as “a silent majority who are content”. He also rejected comparisons drawn with other jurisdictions, “We are unique, where we do what we want and where we believe what is right, we do it”.

Mr Cannan saw the loss of the Bishopric following the loss of the vote as crucial: “the loss of the bishopric on the Isle of Man would be too high a price for our cultural, spiritual and historical identity”.

Mr Skelly posed a tension between “evolving democracy or dismantling tradition”, seeing this as the nub of the debate. He also stressed the contribution of the Lord Bishop not only in Tynwald, but also “outside this Court”, clearly fearing that a loss of the vote would lead to the loss of the Diocese, with effects well outside the legislative process.

Opponents of the vote.

Mr Shimmins criticised the Report as under-researched, and had commissioned his own comparative research from Tynwald Library. He referred to the narrowness of ecclesiastical representation in Parliament, and the absence of official religious representation in Ireland, Northern Ireland and Scotland, as well as Canada, Australia, Scandinavian countries, and the other Crown Dependencies. The closest parallel was with the Lords Spiritual, but he stressed the higher proportion of Tynwald’s vote represented by the Lord Bishop.  He also considered the Report to be out of step with “public opinion …. unbalanced”, and referred to “many proud Manx people who find this tradition irksome”. He recognised that the loss of the vote might lead to the loss of the Diocese – he would regret this, but “it is a decision for the Anglican Church; it is not a question for this Hon. Court”. He also stressed the importance of democracy as opposed to “status and hierarchy and rank”, seeing the role of the Keys in electing a normal MLC as essential to democratic legitimacy for “everyone who votes on our laws”.

Mr Hooper took up this last theme, arguing that every voting Member of Tynwald should have been elected either directly or indirectly. He criticised the Report for not discussing this issue. Mr Hooper noted the link between the diocese and Manx status and influence, but criticised the Report for lack of evidence for this point, particularly in comparison with Jersey. Mr Hooper was more sanguine over the loss of the Diocese, but echoed Mr Shimmins in stressing this was a matter for the Church, while the vote was a question for Tynwald. He finished by emphasising the democratic principle, and calling for the removal of the vote as removing “the last vestiges of feudal rule from this Hon. Court”.

Mr Ashford similarly read the letter of the Archbishop of York as not completely categorical on the Bishop losing his diocese along with his vote. He also expanded on a comparison with Jersey in the letter, noting that Jersey had removed the vote of the Dean in 1948, “so you could say we are 70 years behind the curve … it has been tried and tested elsewhere”.

Mrs Caine described the Committee Report as “out of step with the mood of this Hon. Court, or perhaps I should say the mood of this Hon. House”. She did not see the Archbishop of York’s letter as “a clincher”, and objected to the reference in that letter on Manx identity, and “it’s moral and ethical responsibility for the life of its people”. She noted criticisms of the indirect election of MLCs, but thought that “no one on this Island has any say in who is appointed Bishop”. She saw the vote of the Bishop as “patently undemocratic in terms of one unelected person’s influence in this Hon. Court”. She was comparatively unconcerned over the possible loss of the Diocese – “ if the amendment before us today is supported, and the threat carried out to downgrade the Diocese of Sodor and Man, I will experience a very small pang of regret for the loss of tradition, but give a silent whoop of celebration at the evolution and modernisation of this parliament”.

Mr Peake noted that the Lord Bishop was “chosen by one religious organisation with little public influence of accountability”, in contrast to the directly and indirectly elected Members of Tynwald.

Mr Thomas was a strong supporter of the voice of the Lord Bishop, but not the vote. He noted the range of options for the Manx Church even in the event of the loss of the Diocese. He also noted that, given the vote of the Lord Bishop had at times been decisive, “there is a risk involved in that”.

Mrs Poole-Wilson stressed the democratic issue. She noted that the Lord Bishop was a much higher proportion of Tynwald than the Lords Spiritual of Parliament, and that their position as an MLC was more powerful than that of member of the House of Lords. She echoed Mr Hooper’s scepticism that the loss of the Diocese would impact on the Island’s status and influence. She argued that the ability of Tynwald to change “and make decisions about the issues we are debating today speaks powerfully to our status and sense of nationhood. It is this ability that makes us special, that makes us different”.

Mrs Corlett made a brief contribution, where she stressed the importance of an election process to give a voter legitimacy: “This for me is not about religion or faith, but it is about something just as fundamental: it is about democracy”.

Mrs Beecroft identified as a formerly very strong supporter of the vote of the Bishop, but had come to the conclusion that losing the vote would empower the voice, by allowing the Bishop to speak more freely in Tynwald.

Mr Allison noted that the loss of the vote would reduce the power of the Bishop, and may have consequences; but the loss of the Diocese would be a decision for the Church, and “should not necessarily stop us from the right decision today ,in terms of democracy”.

Ms Edge noted that on a number of occasions the vote of the Lord Bishop had been decisive, and found it difficult to comprehend why, given other voting members were elected, this should be the case.

The Lord Bishop

The Lord Bishop did not vote on his own vote; choosing instead to leave the chamber before the vote. He did, however, make an important contribution to the debate, which Members on both sides of the debate valued.

The Lord Bishop emphasised the importance of the Diocese to Christianity –“the diocese is the basic unit the Christian community, not the parish but the Diocese”. He saw Jersey and Guernsey as fragile because they were “geographically distinct but looked after pastorally from somewhere else”. He noted discussions over the continued existence of the Diocese during the creation of the Diocese of Liverpool in 1875, and suggested that if this were the case, a visit by the Bishop every five or six months might be the result.

The Lord Bishop was careful to distance himself from any suggestion that other Members of Tynwalds were unable to contribute a moral dimension, but did stress a special role for the Church: “With the best will in the world the Church has in the past cultivated and always wished to cultivate a moral and ethical understanding that many people do not have time to cultivate for themselves, and I think that is what I would regard myself as bringing to the Legislative Council”. This is not an uncontroversial position, but in constitutional terms it is particularly interesting as the Lord Bishop emphasises a special expertise, and perhaps inadvertently moves the position of the Lord Bishop in Sodor and Man closer to that of the (non-voting) Attorney-General than might have been anticipated.

The Lord Bishop also stressed Manx involvement in his appointment. Although recognising this was not the same as being elected, he emphasised that there had been a lengthy consultation, and that members of the Manx Church had been appointed to the Crown Nominations Commission. He did not, interestingly, mention the discussions with the Chief Minister which the Chief Minister recounted.

He saw a strong link between establishment and his place in Tynwald: “if one has establishment of the Church then a corollary of that is the involvement and engagement of the Church within the everyday processes of legislation and government”. Similarly stressing Anglican distinctiveness, he referred to the importance of the parochial system – “I am interested in everyone who lives on the Isle of Man and any member of my clergy is interested directly and completely in anyon who lives their parish. It has to do with pastoral care which is exemplified, as I say, through representation in the structures of government, of education, which is why we have hospital and university chaplains for example, and health care and elsewhere”. Finally, he saw an organic link between Christianity and the Manx (and UK) states: “the democratic process on which we rightly set so much store has been generated by the Judeo-Christian tradition and for that reason it seems to me that to separate those two things is a complex and complicated thing to do”, referring on a number of occasions to the “spiritual deposit and tradition” of the Manx Church.

First thoughts.

It was a very close vote, particularly in the (dominant) House of Keys. Given a number of suggestions that the issue could be returned to in the near future, we may see this issue returned to in the short term. This may be particularly likely if newly elected members of the Legislative Council favour removal of the vote. The closely divided Keys seems a long way away from the special majority required to over-ride a Legislative Council veto on any legislation required to change the vote.

The detailed arguments on both sides were well discussed in the debate, and the closeness of the vote reflects the difficulty of balancing the different issues in play. Some members of Tynwald who identified legitimacy strongly with election – particularly direct election  – seem to have found the decision easier than their colleagues. If we find the indirect election of most MLCs return as a live issue, the position of the Bishop is likely to be impacted by any significant change in their position.

The approach towards comparative data was interesting. As I have discussed elsewhere, Tynwald has come a long way from the deferential adoption of UK models as “the state of the art” which they should loyally follow. Members of Tynwald using comparative data to inform their argument were, as  Mrs Poole-Wilson made explicit, using it to inform the exercise by Tynwald of national power. A number of members, however, found reference to a range of models from elsewhere as counterproductive and, if I may gloss the debate slightly, unpatriotic. Considering the experience of other jurisdictions can be very useful, particularly where those jurisdictions seem to have gone wrong. The Lord Bishop carried out just this sort of exercise when he referred to the fragility of Jersey and Guernsey which he associated with their lack of a Diocese. It will be interesting to see if his comments are picked up in Jersey and Guernsey debates, particularly in ecclesiastical circles.