In an earlier blog I charted the change in the type of candidate being nominated to, and elected to, Legislative Council by the Keys. It was not until the 1990s that MHKs began to nominate, and elect, “outsiders” to Tynwald, previously having almost exclusively appointed MLCs who had experience of Tynwald either as MHKs or as sitting MLCs. From the 2010s the majority of those nominated to the Legislative Council were these kind of outside nominations.

The process of a lower chamber of a legislature appointing members of the upper chamber appears to be unique in contemporary constitutions; although there are some historic parallels. One significant feature of the process is the relative transparency. I need to stress relative – there is evidence of parts of the process that have not survived (for instance candidate CVs circulated by nominating MHKs in some years; or group meetings with interested MHKs and candidates), and it seems likely that there are other interactions which have not been recorded. We do however have comparatively extensive records of why candidates were put forward by their nominating MHKs, either incorporated into Hansard when nominations were part of Tynwald proceedings, or by Tynwald documents when the process moved onto paper). This includes both successful candidates and – distinctively – unsuccessful candidates.

I have collated information on all 63 outside candidates considered since 1962, and am currently analysing this dataset by reference to a range of characteristics put forward in the process. My focus is on the speeches (later letters) proposing a candidate, rather than carrying out independent research into the biography of each of the 63. This makes the analysis more bounded, but I think can also be justified on quality grounds. Candidate X may have been an official in a youth movement, and a police officer, but the proposers decision to talk only of X’s work as a police officer indicates what the proposer saw as persuasive to fellow MHKs sitting as an electoral college. That is to say, a focus on the proposers choice of characteristics shows us what they regarded as relevant and persuasive to other MHKs.

In this blog I look at the professional, employment, or career background of the candidates. I have classed each candidate by the categories used in the Manx Census 2021, Level 2 (described here). To help ensure consistency of how I class particular professions or careers I have also taken account of the UK NOMIS Employment by Occupation (SOC2010) characteristics, which usefully expand the Tier 2 categories with sub-categories (described here) . I have noted every profession or career mentioned by a proposer, rather than tried to make a judgment as to “primary” career – where the proposer mentioned a number of careers, each was seen as making the nomination more persuasive. So, what professions and careers were seen as persuasive?

Dominating the nominations were the broad category of “Business, Media and Public Service Professionals”. This very broad professional category includes for instance legal professionals including judges, accountants and economists; architects; journalists and PR professions. 35 candidates feel into this category. To break these 35 candidates down a little: 15 were finance sector professionals; 6 accountants; 6 lawyers; 4 media professionals; and a single quantity surveyor, single actuary, single architect, and single economist. The only other categories with 10 or more candidates were Protective Services Occupations (including armed forces, police, and the fire service) with 11, and Corporate Managers and Directors with 10.

55% of the candidates were from the category Business, Media and Public Service Professionals. To put this into context, in the 2021 Manx Census, just under 7% of the Manx working population were classed in this category. Entire categories of occupation have never been mentioned in nominating a candidate – on the Tier 2 table on the Manx Census, from Secretarial and related occupations down (constituting 44% of the Manx working population in 2021), only one person had one of these occupations referred to in their nomination (so less than 2% of all nominations). John LIghtfoot, described as an auto electrician who worked for the bus company for 39 years, was nominated in 2007. He was not elected.

This mismatch should not be seen in itself as a killer fact. Reference to profession or occupation is so ubiquitous in MLC nominations because it can function as short hand for, or evidence of, skills and traits that the proposer sees as useful to an MLC. For instance a lawyer with judicial experience might fairly be represented as able to “provide professional legal and technical opinions on the construction of Bills and various other legal matters” (nomination of Mr Michael Moyle by Mr Houghton in 2015). I will be seeking to unpack these characteristics in future blogs. Nonetheless, that the working life of so much of the Manx population has not been seen as useful preparation for the role of MLC should be food for thought to those seeking a diverse and representative Tynwald.

This is a rather impersonal, technical, blog. I would like to begin by agreeing with those commentators and parliamentarians who have expressed their dismay at how Dr Rosalind Ranson was treated as a result of her efforts to protect the Isle of Man during key phases of the global pandemic. To quote Dr Ranson from the BMA press release on the decision: “As a doctor, my duty is to put patients and public first and this was made almost impossible by the campaign that was waged to make my work life untenable, to undermine my credibility and professionalism and finally force me out of a role I had been so looking forward to making a success”.

The Employment and Equality Tribunal decision, or rather part of it, in Ranson v Department of Health and Social Care was released on the 9th of May; and can be read in full here. It is a lengthy and meticulous report which has largely drawn attention for its findings of the treatment of Dr Rosalind Ranson, who was Medical Director for key periods of the pandemic, when she sought to raise significant concerns over how the Manx response was being formulated. It raises significant issues concerning the governance, and management, of the public health response. After the publication of the decision, the head of the Manx Civil Service has retired and the Treasury Minister, who was Health Minister at the time, has resigned his ministerial post.

On the 17th of May, Tynwald began discussing the case. The President began the discussion by noting “The case is still sub judice and is likely to be so for several weeks to come … in view of the degree of public concern I have allowed the Chief Minister to make a short statement. I have asked the Chief Minister to avoid commenting on the case itself, which is still a matter for the Tribunal, but to concentrate on future government action, which is properly a manner for Tynwald”. The President then enforced this distinction in the debate which followed, for instance not allowing one of two questions from Mrs Caine, one of four from Mrs Christian, two of three from Ms Faragher (although one was on a different ground), one of five from Mr Thomas, and two of two from Mr Moorhouse, The President also requested the Chief Minister to answer some questions generally, rather than specifically.

It is, I think, fair to say that some members of Tynwald found the partial debate, with some topics permitted and others not, frustrating. The Speaker at the end of the debate asked the Chief Minister “to acknowledge today the pent-up frustration of Members with questions that, quite rightly, have been disallowed today and support a general debate on all questions raised … on all the issues … as soon as possible after the sub judice cloak has been lifted”.

The President was in an unenviable position, once he had decided to allow some questions to be asked and disallowed others without setting out why some questions could not be permitted. Proceedings might have gone more smoothly if he had begun the debate by doing so. I should stress here that sub judice does not permanently bar questions from being asked – it merely delays them. What might have been the basis for some questions being delayed?

The Standing Orders of Tynwald dealing with sub judice are not the same as those to be found in the UK Parliament. The current SO were revised in September 2021, and can be found here. A question shall not refer to any matter which is sub judice, subject to the discretion of the president (SO 3.4(10)), nor may a motion (SO 3.11(4)). nor the subject matter of a General Debate (SO 2.20B (8)).

Sub judice was defined by an amendment to SO on 17th November 2009. Under SO 11.4(1) sub judice “includes any civil case in which papers for the commencement of proceedings have been filed in the office of any court or tribunal, whether or not they have been served on or communicated to the other party or any criminal case where a person has been charged or summoned to appear at court. A case will remain sub judice until it is discontinued, or judgment has been or verdict and sentence have been delivered and until the time for appealing has expired; it will continue to be sub judice after papers for the commencement of any appeal have been lodged until judgment or discontinuance”.

Dr Ranson’s case is clearly, under Tynwald SO, capable of making a question sub judice. Unlike the UK Parliament SO, sub judice extends to proceedings before a Tribunal such as the Employment and Equality Tribunal. Although I would note that even the UK Parliament goes beyond the courts simpliciter in defining sub judice, for instance including fatal accident inquiries, the Tynwald SO go considerably wider – 22 tribunals are listed at the Courts website including for instance the Riding Establishments Appeal Tribunal, ,the Independent Schools Tribunal, and the Flood Risks Tribunal

But, given that the Tribunal is covered by the rules, a very lengthy decision has been made on the case, in Dr Ranson’s favour. Why is the case still sub judice?

My reading of the case is that two issues were left outstanding, although there may be a third., and I think we can usefully eliminate a fourth.

Firstly, by agreement between the parties the hearing focussed on liability – whether Dr Ranson had suffered a legal injury entitling her to a remedy from the court. By agreement, “all questions of appropriate remedies were left over to a further hearing” (para 854). One might have anticipated the President allowing questions to be asked about liability, but not the remedies – for instance whether Dr Ranson would be reinstated, the level of damages she should anticipate.

Secondly, and in my view even more importantly, the hearing raised very serious concerns as to how far the government side had met their obligations under the rules of disclosure. Disclosure requires the opposing sides in a court or tribunal action to reveal information to their other side even – it’s fair to say especially – when it weakens their case. These concerns are outlined in paragraphs 791-848 and make disturbing reading. The two sides were ordered to liaise to agree a format for a further hearing purely on the disclosure matters, and agree with the Tribunal a date (para.847).

The concerns raised by the Tribunal are very significant. Under a section headed “Government policy of (potential) Evidence Destruction”, for instance, the Tribunal stressed the further investigation which the Disclosure Hearing will involve “is needed to understand whether there has been material non-disclosure or destruction in this case but importantly to prevent a miscarriage of justice in any future case involving any Government Department” (para. 846, my emphasis). Another section, dealing with emails revealed following a question asked by the Chairman during Closing Submissions, raised concerns over whether processes which had allowed two important emails to “slip the net” might cause problems “in further proceedings in this Tribunal (or the High Court) involving disclosure” (para. 827-828). Another heading is (in quotes) “Concocted documents”, and includes the observation “It is unusual in this Tribunal for any party to have to go to the lengths of seeking affadavits as to the veracity, scope and extent of the disclosure but in this case it was thoroughly justifiable” (para.836).

This really matters. Courts and tribunals need to have evidence before them which will allow them to make just judgments according to the law. So disclosure matters. A Manx Tribunal making rulings critical of the Manx government is – albeit neither painlessly nor desirably – good governance working. A Manx Tribunal unable to do justice because key evidence useful to those taking taking action against the Manx government is not available to it may not be. So the Disclosure Hearing will be crucially important to understanding how Manx government was working in the aftermath to the Ranson affair. Because of the importance of this matter both for this particular set of proceedings, and constitutionally, I can see why the President would seek to apply the sub judice rule until after the Disclosure Hearing has concluded.

A third possibility is that the President was concerned that the government would seek to appeal the existing decision against it on a point of law, by appeal to the High Court (under the Employment Act 2006). The Tribunal works on the basis that the time limit for such an appeal is 42 days. One would hope the President, if informed by government that no appeal was planned, would not feel constrained to wait this time out before allowing questions to be asked. The reference by the President to “several weeks” suggests that this was not on his mind.

Given the seriousness of some explanations for some of the issues raised by the Tribunal around disclosure, it might be thought that a fourth possibility could apply – that the President knows or has reason to believe criminal proceedings are being considered. There is nothing in the debates to hint at this, but in any case it would not justify the President in applying the sub judice rule. Under the SO, sub judice applies to “any criminal case where a person has been charged or summoned to appear in court” – not to where an investigation is under way or is being considered.

I have been looking into gamification in education for a while, and more recently gamification in a physical seminar room. Prompted by a request for a chronology of the Manx constitution, I decided to have a go at putting a simple card game together on key, interesting, or quirky dates in Manx constitutional history. The game involves players placing cards accurately in a chronology – the first to play all their cards successfully wins. Keen gamers will immediately see which game this is based upon, but fortunately it is not possible to copyright a rule …

The plan is to end up with a free, open-access, game that anyone who wants to can download and use how they wish. At the moment, I have just under 60 cards, not all of which have images associated with them. Six of the set here:

If you are interested in playtesting the current deck, suggesting new cards, suggesting new images, or taking on translating the deck into Manx, please drop me an email and we will take it from there! My email is pwedge@brookes.ac.uk

A recent report by the House of Keys Management and Members’ Standards Committee has recommended replacing the current prayers by the Chaplain (or in their absence the Speaker) at the beginning of each meeting.

The first recommendation is that there no longer be a Chaplain of the House, the pastoral care currently offered by the Chaplain being offered by the Lord Bishop, and to allow adoption of one of two replacements to the current prayers (para.14).

If this recommendation is accepted, the second recommendation is for prayer to be replaced, for a trial period of a year, by a “House of Keys Smooinaghtyn”, which could involve a short talk on a philosophical or educational theme by a person nominated by a member. If this second recommendation is not accepted, prayer would be replaced by “a period of silence during which Members could be encouraged to reflect on the oaths or affirmations they had taken” (para.8).

What would a Smooinaghtyn look like? The Report includes draft guidance (Annex Two). A contribution would last no more than 3 minutes (300 words at normal talking speed); would consist of a short narrative “on a philosophical, educational topic or relating to the time of year; and/or a reading or readings from appropriate texts” (para.7). It “may reflect the practice of faith or the belief community to which the orator belongs (if any)” (para.8). It “will not denigrate another faith, belief, or none” (para.9), and “will be consistent with the principles of equal opportunity, dignity and respect for all and should not include remarks or comments that are discriminatory” (para.11). The text of the contribution should be submitted at least 24 hours in advance to the Secretary of the House, and may not deviate from the text (para.13). Although not covered explicitly, I assume that a text which fails to meet the requirements of para.9 and para.11 will be vetoed at this point, or the contributor will be required to make particular amendments. It will be broadcast on Manx Radio, but not transcribed (para. 14, 15).

As I noted in correspondence included in Annex Three, other jurisdictions have wrestled with making prayers around public business more reflective of a diverse population, and more inclusive. A few thoughts reflecting on that issue in particular.

The Smooinaghtyn as set out in Annex Two clearly envisages the possibility of contributors talking from their particular faith position, indeed going so far as to recognise that they may read from “appropriate texts” which I take to include religious texts. There are mechanisms, however, to allow the Secretary of the House to censor these contributions in advance. Policing the boundaries of acceptable contributions could be contentious,.

Who contributes? Contributors must be nominated by an MHK. Neither the Secretary of the House, nor MHKs, are required to take account of the principles of equal opportunity, dignity and respect for all, in the exercise of their functions. What if no MHK was prepared to nominate a member of a stigmatised religious community, even one whose contribution would meet the guidelines? Additionally, there is no suggestion in the documentation as to the criteria on which nominations would be accepted – is demographic representation in the Manx community important? avoiding a succession of contributions from the same or related communities? what about a contribution by someone who does not identify as belonging to any belief community? Issues about who contributes have been explored elsewhere (see Annex 4), but it is not necessarily straightforward.

What if the Secretary has to censor a contribution? As I’ve argued elsewhere, many world faiths contain doctrines, and passages of “scripture” which are profoundly difficult to reconcile with particular contemporary human rights values. Even within “equal opportunity, dignity and respect for all”, there are contemporary debates where both sides of intensely polarised debates identify their stance with equality, dignity and respect for all, and their opponents stance as quite the opposite. A community could have a member’s contribution censored for expression of lawful beliefs, including direct quotations from texts they regard as holy – the limits proposed in the Annex do not, entirely sensibly, limit themselves to criminal speech.

I think the less problematic option would be to trial, for a year, replacing prayer with a brief period of silent contemplation. Although closer to some religious traditions than others (I can but feel that the Manx Quakers punished for their religious practices would rather approve of silent contemplation reaching the legislative chamber), it is sufficiently capacious to address the needs of a diverse chamber and Manx population. It would also avoid the problems, present in the current system, that could be posed by a Speaker who has a conscientious objection to praying being required to lead the House in prayer.

PHR (Amendment) (no.22)  came into operation at 00.01 on 22 January 2022, although I did not find it publicly available until the morning of the 24^th.

The age at which a child travelling with a person covered by the vaccination exemption is required to test in order to leave isolation early is changed from 12 years to 12 years and three months (amended reg.5B).

Reg 6A is revoked. This formerly required wearing of face coverings on vehicles “used to provide a public transport service”. These amending Regulations do not, however, amend Reg 6B, introduced at the same time as Reg 6A, and used to require face coverings in public health settings through a GC (GC 2021/0094). Removing the PHR requirement to wear face coverings in these settings was announced as coming into effect at 00:01 on the 22^nd of January.

A GC has legal effect, so if its provisions are no longer desired, the approach throughout the pandemic has been to repeal them, if they did not contain a built in time limit. A recent example is the GC giving CoMin the power to define countries in different categories (GC 2021/0089) which revoked an early GC setting out a change of category for France (GC 2021/0086).

The face coverings in public health settings GC did not contain a sunset clause, but was revoked by GC 2022/0013, which was not available on the Tynwald website as of noon on the 25^th of January, but which can be found here. The text of GC 2022/0013, as of noon on the 25^th, was not findable by google search, or linked from covid19.gov.im or (according to OpenLinkProfiler) linked to from any webpage anywhere else. As I’ve said before, making legally binding documents available to the public before they come into effect is profoundly important.  More than three days passing before a member of the public can find the law does not reflect this.

Two PHRs covered in this blog.

PHR (Amendment) (no.20) was created on 21 December 2021, and came into effect at 00:01 on 22 December.

The most important substantive change was in relation to persons self-isolating due to a positive test. The default isolation period for Category B persons was changed from 21 days to 10 days (amended reg.5).

The PHR were amended to allow a person who had registered a positive test to be released early (i.e. before the expiry of the normal period of isolation) following registration of two negative home tests separated by at least 24 hours. There is a duty on category B persons who have tested positive through a self-administered test to notify the Director of Public Health (amended reg.14(3)).

Schedule 2 was revoked. This schedule formerly provided, in tabular form, a range of rules for different categories of person in relation to self-isolation. As restrictions have been substantially reduced, this is no longer necessary.

Finally, the PHR now incorporates a number of conditions of self-isolation which were incorporated into individual, standardised, direction notices issued to individuals (see new reg.14A). This is consistent with a general tendency of the new administration to move coronavirus restrictions and rules further up the legal chain in terms of formality and scrutiny – something to be applauded.

PHR Amendment (no.21) was created on the 10^th of January (or Janaury as the text states), and came into effect at 4am on the 11^th. Under this regulation, any person entering the Isle of Man who has not travelled outside the Common Travel area, or a fully vaccinated person who has travelled outside the Common Travel Area but not in a Category 3 country, is no longer required to self-isolate; or to undergo a PCR test within 48 hours of arrival, and self-isolate pending the results. Instead they are required to self-administer a lateral flow test as soon as possible after arrival, and are obliged to report a positive test, becoming a category B person (see the amended reg.11B in particular).

The Chief Secretary has issued a five page guidance in relation to face coverings, under Regulation 6C of the PHR. Under that regulation, a person to whom Regulation 6A or 6B applies “must have regard to that guidance”. This is not the strongest possible phrasing for the effect of Reg 6C guidance – in particular, it does not suggest that the guidance can alter the effect of either Regulation 6A or Regulation 6B. In practice, however, a person who does not wear a face covering because of their having regard to the guidance is likely to be able to claim a reasonable excuse. To me, then, guidance which restricts prima facie liability under Regulation 6A or 6B is more robust than guidance which extends it.

Much of the guidance is a repetition of the content of the PHR. In a number of areas, the guidance usefully makes it clear that particular circumstances would justify a reasonable excuse for not wearing a face covering.

There was already a reasonable excuse for eating and drinking while travelling, and eating and drinking in a premises where food is provided. Paragraph 4.1(e)(ii) explains that this applies “where eating and drinking is an essential element of that journey (i.e. provision of a dining experience…)”.

The guidance, “for the avoidance of doubt” states that a patient undergoing treatment in a health and social care setting who removes their face covering to facilitate treatment or recovery has a reasonable excuse (para.7.2). Similarly, and addressing a concern I raised in my original commentary, “In circumstances where a resident of a Care or Residential Home is alone, and is within the confines of their own room, or is with another person and for reasons of receiving health or care treatment or support does not wear a face covering, this will be considered a reasonable excuse for the purposes of the Regulations” (para.7.3).

The guidance, also, however, seeks to regulate operators of public transport in relation to mask wearing. I am not convinced that the structure of reg.6A-6C supports the use of reg.6C to do this. In particular, reg.6A and reg.6B are phrased as duties on those on public transport or in health case settings to wear face coverings. The guidance suggests a further duty on operators of public transport.

The public transport face covering rule applies to vehicles not operated by Isle of Man Transport – for instance taxis. Paragraph 2.7 states that “passengers who do not wear a face covering because they are exempt or have a reasonable excuse should not be refused access to transport services”. If this “should” is intended to constitute a legal duty on private taxi operators not to operate terms and conditions which differ from the Regulations, it seems good policy, but one right on the edge (or perhaps over it) for the scope of reg.6C – the “person” to whom reg 6A is directed is consistently an occupant of the vehicle, rather than the operator. The operator is only given a duty to inform, under reg. 6A(5), which does not use the language of person used throughout the section to mean occupant of a public transport vehicle. Similarly, a user of public transport who is requested to remove their face covering by the operator has a reasonable excuse under the PHR. In the guidance this is recast as a power by the operator to request removal, and then limited – to an employee removing their face covering subject to certain conditions, or to a brief confirmation of the identity of the user (para.4.2).

I would have preferred to see this regulation of public transport operators dealt with by an amendment to the PHR. Partly this is because of my concerns about whether reg.6C really reaches as far as regulation of operators of public transport, as opposed to guidance on how to comply with duties as an occupant. It is also, however, because of my preference for PHRs over GCs. One of the very positive moves of the new administration was to frame their response to the changing challenges of coronavirus through amendment to the Public Health Regulations, and so subject to scrutiny by Tynwald. This would have been a better way to deal with regulation of non-state public transport operators.

GC 2021/0096 has added Sinovac, Sinopharm Beijing and Covaxin to the list of qualifying vaccinations under reg.5A(2). This is the regulation which creates an exemption to some rules governing entering the Isle of Man for those who have “completed the full course of a qualifying vaccination”.

Given the increased emphasis on booster shots as a response to the Omicron variant, it may be that at some point we will see a redefinition of “a full course of vaccination” to reflect this. The structure of reg.5A does not envisage this being done by GC, and indeed the emphasis on “a qualifying vaccination” may make recognition of combinations of vaccines difficult. If a change was needed, I would expect any formal change to be by a PHR.

The PHR (Amendment) (no.19) came into effect before approval by Tynwald: at 04.00 on 30 November 2021 (having been signed at 22.15 the night before). Assuming they are approved, the principal Regulations will now expire on the 31^st of March 2022, as opposed to the 20^th of January 2022 (amending reg.4).

As would be expected the changes are responding to the potential dangers posed by the  Omicron variant.

Border control.

The vaccination exemption to border control (under reg.5A) and natural immunity exemption (under reg.5C) are now both subject to qualification in (new) regs. 11A and 11B, which as a result apply to both vaccinated and unvaccinated travellers.

Reg.11A applies to persons arriving from outside the Common Travel Area, who must self-isolate, and take a PCR within 48 hours of arrival. Reg.11B apples to persons arriving from within the Common Travel Area. On arrival they must agree in writing to self-administer a lateral flow test within 12 hours, and to share the results of the test with the Chief Secretary.  

The amendment also slightly changes the definition of Category B persons (amending reg.14(1)(a)).  

Face coverings.

A new set of regulations now impose requirements to wear face coverings.

Reg.6A requires a person travelling “on a vehicle used to provide a public transport service” to wear a face covering. A public transport service means the use, for transporting one or more members of the public, of a vessel, motorised vehicle, tram, train, public transport vehicle, aircraft, and “any other conveyance” whether or not for hire (reg.6A(6)). It does not include such a vehicle when being used for private purposes and not at the time transporting a member of the public (reg.6A(7)). This might suggest that “travelling” includes “driving”, so putting PHR face covering duties on bus drivers for instance, but it is phrased as “for the avoidance of doubt” so is ambiguous. Operators of public transport services must provide information about the new requirements on their vehicles (reg.6A(5)).

This duty to wear a face covering is subject to two exceptions – “exemptions” and “reasonable excuses”.

An important exemption is age: a traveller who is a child under 12 is exempt. The other exemptions are based on the nature of the vehicle. Exemptions apply where the vehicle is: a ferry where the part open to passengers is entirely outdoors; a vehicle which does not land, take off, or dock on the Island; a cruise ship; has an allocated cabin where the person is alone or only with members of their household or a carer; or – similarly – is carrying a vehicle within itself where the traveller will remain for the entire journey. The distinction between the cabin and the vehicle-within-a-vehicle rule is that the cabin using traveller is required to wear a mask outside the cabin, but may leave it; while the vehicle-within-a-vehicle traveller must stay within the vehicle. It seems an odd distinction to draw, but follows from the different drafting of reg.6A(3)(d) and reg. 6A(3)(e).

There is a list of reasonable excuses in reg.6A(4). The guidance note to this PHR state that it is not intended to be an exhaustive list. Determining whether a list in a statute is intended to be exhaustive is notoriously difficult, so it might have been useful to state this in a legally binding form in the PHR itself. Reasonable excuses specified include some characteristics of the traveller, but also particular circumstances and activities. They are: the traveller is unable to wear a face covering because of a physical or mental illness, impairment or disability; where the traveller has to remove a face covering to communicate with a person who has difficulty communicating (so covering communicating with a lip reader); where the traveller “has to remove the face covering in order to avoid harm or injury, or the risk of harm or injury, to [themself] or others”; where the traveller “is travelling to avoid injury, or to escape a risk of harm, and does not have a face covering”; where the traveller has to take medication, or eat or drink (if allowed on the vehicle and reasonably necessary); or where asked to remove it by a police officer or the operator of the public transport service.

Reg 6B, on the other hand, requires a person to “wear a face covering in a relevant place”. The Council of Ministers are empowered to issue GCs defining “relevant place” (reg. 6B(4)) – essential as the term is not defined in either the principal PHR, or the amending PHR. Shifting this definition down to GC rather than PHR suggests anticipating a need for rapid flexibility in defining where face coverings must be worn. For the moment GC 2021/0094 has defined relevant place as “health and social care premises”, which “shall include but are not limited to any indoor premises where health or social care services are provided to the public, including a hospital, GP surgery, dental practice, opticians or optometrist practice, pharmacy, residential home, care home, vaccination hub or other premises at which vaccinations are administered, or testing centre for the purpose of administering tests for Coronavirus”.

This is not required for children under 12, or where the person has a reasonable excuse (reg.6B(2)). There then follows a list of reasonable excuses almost identical to those discussed above in relation to travel. There are however two additional grounds here: “where [the person] is undertaking an activity and wearing a face covering during that activity may be considered to be a risk to [the person’s] health”, and “where [the person] is seated in premises where food or drink is sold, or otherwise provided, for consumption on the premises”. Note that the latter is very specific – you must be seated to be allowed to remove your mask. So visitors to Nobles, if the coffee shop is open, may remove their masks when seated for their coffee, but not before.

The inclusion of residential home and care homes is striking, as this part of the Regs do not include a cabin exemption which allows a person to remove a mask when “allocated a cabin, berth or other similar accommodation on the vehicle, at any time where P is in that accommodation — (i) alone; (ii) only with members of P’s household or a member of the household’s carer”. If the intention is not to require care home residents to wear a mask at all times, something like this might usefully be added; although it may be that we will find “reasonable excuse” read as encompassing care home residents alone.  The Chief Secretary has the power to issue guidance relevant to both of these Regulations, and a person to whom the guidance applies “must have regard to that guidance” – this might also deal with this point.

So, what happens if you don’t wear a face covering, and do not qualify under the exemptions or reasonable excuse provisions? The amending Regulations are silent, which means that the general PHR section on offences applies. A person commits an offence if they fail without reasonable excuse – which even if the lists in reg.6A and reg.6B were exhaustive is not limited to the excuses set out there – to comply with the PHR or GCs issued under it (reg.36(1)). Such an offence is punishable by up to three months imprisonment, or a £40,000 fine (reg.36(8)). As an alternative a constable may issue, to an adult, a fixed penalty notice of £150 (rising to £250 if not paid within fourteen days) under reg.37-42.

Personally, I feel that the general upper limit of punishment for offences under the PHR should have been lowered significantly for not wearing a face covering – even for repeat offenders, even when obviously dangerous. On the specific issue of care home residents, I would suggest that being a resident in a care home who does not wish to wear a mask when alone in your residence constitutes a reasonable excuse under reg.36, even if not reg.6B, and so could not be the basis for a prosecution or fixed penalty notice.  

From the February 1962 election on, women were eligible to be elected onto the Legislative Council by the House of Keys. By the end of the 1970s the number of ex officio officers with a vote had sharply dropped, and the appointed members of the Legislative Council had entirely disappeared. Members of Legislative Council elected by the Keys (by this point largely synonymous with MLC) formed the majority, and then overwhelming majority, of Council. How did the Keys use their power to determine the membership of the Council?

Who did the Keys elect as MLCs?

A very significant theme in the pre-1962 era was that MHKs elected MHKs (or less commonly former MHKs), or sitting MLCs (who had normally become MLCs for the first time following being an MHK). How far did this pattern of electing from within Tynwald continue?

As mentioned earlier, there is no moment equivalent to the Keys General Election at which to take stock of the membership of the Legislative Council. It is useful however, to consider the election patterns of the Keys decade by decade.

	Number of seats elected to.	Number of sitting MHKs/MLCs	Number of former MHKS/MLCs.	% of Tynwald or former Tynwald.	% new to Tynwald.
1960s	7	7	0	100%	0%
1970s	12 (excluding 1 ruled invalid)	12	0	100%	0%
1980s	16	13	3	100%	0%
1990s	17	15	2	100%	0%
2000s	18	14	1	84%	16%
2010s	19	12	0	63%	37%
2020s (so far)	6	2	0	33%	67%

	Number of candidates, including being considered on multiple sittings for the same seat.	Number of sitting MHKs/MLCs	Number of former MHKS/MLCs.	% of Tynwald or former Tynwald.	% new to Tynwald.
1960s	14	14	0	100%	0%
1970s	29	28	1	100%	0%
1980s	39	25	11	92%	8%
1990s	41	23	9	78%	22%
2000s	67	31	10	61%	39%
2010s	58	24	0	41%	59%
2020s (so far)	16	2	1	19%	81%

A clear change, then, is the shift, first visible in the 2000s, of MHKs electing from outside of the House of Keys. This was preceded by a sharp increase in the percentage of candidates, albeit usually unsuccessful candidates, from outside Tynwald over the preceding decade. This had itself been modestly prefigured in the 1981 election, where a bye-election was triggered by the resignation of Kneale to join the Keys. No MHK stood, but four ex-MHKs did stand, and one (George Swales) was elected. The seat in Council, however, had very little time left to run, which may have accounted for no MHK wishing to be considered – certainly proposers stressed the short-term nature of the post, and the difficulty of filling it from within the Keys (a situation which, in the past, had justified an understanding that the successful candidate would be re-elected at the next normal election). Ex-MHKs and none-MHKs similarly dominated the 1987 election triggered by the death of Matthew Ward; and the 1988 election triggered by the death of Donald Maddrell. It was not until the 1990s that significant numbers of non-MHKs/MLCs began to be considered in the election process for full-term seats, but from the 2010s the majority of candidates for the Legislative Council had not sat in Tynwald before.

This is a significant change, and may be due to the erosion of two themes that I identified pre-1962.

Firstly, the idea that MLCs should be loyal partisans of the Keys in representing the democratic element in the Manx constitution, and that this was best guaranteed by electing an MHK known well to the House. This idea almost disappeared in the post-1962 era. There are occasional, rare, references to a particular candidate’s democratic legitimacy being derived from former electoral performance in the Keys – for instance the proposer of Mrs Cannell in 2010 indicating that she “still has a political mandate from the people of East Douglas given to her at the last General Election”. There are more common references to success in local government elections for candidates with no Tynwald experience, but these are normally deployed to show experience and therefore appointability, rather than democratic legitimacy (but see the reference to “an electoral mandate, albeit from a different college” in 2005).

Instead, we find repeated references to the Legislative Council having a complementary, secondary, role to the Keys. The distinctive contribution of the Council meant that “it should not be an alternative House of Keys”, and its special role in scrutiny of legislation resulted in particular candidates being endorsed because of their ability to contribute to the technical capacity of the Legislative Council as a scrutiny body. There is sufficient detail in the documentation for each election to allow us to explore what professions and life-experiences were seen as fitting a candidate for the Legislative Council (a project for another time); but loyalty to the Keys ceases to be a prominent theme.

Secondly, the idea that becoming an MLC was a reward for contribution to the life of Tynwald, and a form of semi-retirement, similarly almost entirely evaporated over the period. It can be seen early in the period, but the last flicker seems to be in the election of 1978. Mr Kermeen noted the demands of Tynwald and suggested that “regard should be given to the strain on any member [MHK] who has achieved his three-score-and-ten years”; while Mr Radcliffe noted the desire of two MLCs seeking re-election “to see one more year in this Chamber because of the Millenium”, leading Mrs Quayle to note that one of them “has given very long and very valuable service to this Island, and in my opinion if he wants one more year we should give it to him”.

Women join the Legislative Council.

	Number of candidates.	Number of woman candidates	Number of seats.	Number of women elected.
1960s	14	0	7	0
1970s	29	1	12 (excluding 1 ruled invalid)	0
1980s	39	6	16	1
1990s	41	2	17	2
2000s	67	7	18	3
2010s	58	13	19	6
2020s (so far)	16	8	6	2

As can be seen above, it was some time after the bar on women being elected was lifted before a woman candidate was first put forward. This was Betty Hanson MHK, who was nominated in the 1978 election. She went on, in 1982, to be the first woman to be elected an MLC; to be followed by a small number of other women in the 1990s and 2000s, all of whom had experience as MHKs before joining the Council.

There was a significant change in the 2010s, however, both in terms of the number of women being considered and appointed, and their prior involvement with Tynwald. Women were appointed to seats six times in the 2010s – the appointments between 2017 and 2020 being equal to the number of women appointed before 2010. Jane Poole-Wilson was appointed for a short term in 2017, not having previously  sat in Tynwald. In the 2018 contest, which included both her seat and four others, five women were appointed; with only Poole-Wilson having sat in Tynwald previously.

In conclusion, increased representation of women in the Legislative Council – even when legally possible – did not begin until the 1970s. It gained momentum alongside an erosion of the expectation that MLCs would previously have been in Tynwald as MHKs: an expectation that could have allowed the low levels of membership of women in the Keys in earlier decades to cast a long shadow over women’s membership of the Legislative Council. Although there have only been two processes in the 2020s, a focus on them tentatively suggests that this increase in women being nominated and elected, and in non-MHKs being nominated and elected, is continuing: 50% of the candidates in the 2020s processes were women, and 81% of the candidates had not previously sat in Tynwald.

(This blog also appears on the Women in Manx Politics blog).