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.

 

On the 20th of February, Tynwald will debate the third report of the Select Committee set up primarily to consider recommendations from the Lisvane Report. Earlier reports have been controversial, and that is unlikely to change with this third report. This report considers continuous professional development for Members of Tynwald, Member’s Pay and, most significantly in purely constitutional terms, the work of the Lord Bishop of Sodor and Man in Tynwald.

The remit of the Committee has changed slightly,  and this new report explicitly considers whether the Bishop, while remaining in the Legislative Council, should lose his vote, and become analogous to the Attorney General.

Here, the ecclesiastical position of the Bishop as the head of an Anglican Diocese is key to the reasoning of the Committee. The report emphasises what the Lord Bishop adds to Tynwald – “the combination of the presence of the Lord Bishop on the Island and the continuing existence of the Diocese is a matter of great importance to the Island in general for social and community reasons; the Lord Bishop represents a significant part of our continuing heritage. The existence of the Diocese is … a continuing part of the Island’s cultural heritage”. The report identifies as a “key question” whether the Diocese would cease to exist if the Lord Bishop were to lose his vote but remain in Tynwald. The Committee had written to the Archbishop of York for clarification on this point.

The Archbishop replied on the 14th of November. In this letter the vote is described as:

“a matter of great importance to the Church of England. It mirrors the position of the Diocesan Bishops who site in the House of Lords … and … reflects the nature of the spiritual tradition of the Isle of Man. A voice on the Legislative Council without a vote would seem to me to be a very weak position. It would be akin to the position of the Deans in the Channel Islands, who are allowed to speak but not to vote in the Parliament. You may be aware that the Channel Islands do not form a separate diocese and have no diocesan bishop; instead they are incorporated into an English Diocese.”

The Archbishop had been informed by the Bishop that “the absence of a spiritual vote in Tynwald will cause an issue for many residents of the Island, particularly where voting is required on spiritual issues … The Bishop serves on Tynwald as a focus for all faith groups on the Island and his voting role on the Legislative Council is testimony to the fact that Tynwald takes seriously the spiritual nature of the Island’s identity, and its moral and ethical responsibility for the life of its people”. He concludes: “If the Lord Bishop’s vote were to be removed, in my view this would significantly undermine the case for Sodor and Man being a separate diocese”.

As a result, the Committee concluded that loss of the vote would lead to loss of the Lord Bishop and downgrading of the Diocese to a part of another Diocese based in England: “We believe that this would have a detrimental impact on the Island’s status and influence”. The Committee noted other advantages to the Lord Bishop’s vote, in particular minimising the need for the President to exercise their casting vote, an increase in the ability to meet quoracy during LegCo vacancies. It is clear, however, that this linkage between the vote and the Diocese is crucial to their conclusion that the Lord Bishop should retain his vote.

It will be interesting to see how Tynwald responds to this element of the report. I think there are two, distinct, areas of interest.

Firstly, the Archbishop of York’s view of the Lord Bishop of Sodor and Man:

(i) In constitutional terms, it does not mirror the Lords Spiritual – although it is true to say that they share the extremely uncommon characteristic of being ex officio religious representatives who vote in a European legislature. The work of LegCo is not the same as the work of the House of Lords, even since it lost a role in voting for the Chief Minister. Neither is the impact of the Bishop on their small chamber the same as the impact of the Lords Spiritual – even taken as a group – on their chamber. The discussion of the Select Committee on quoracy makes this clear.

(ii) The “nature of the spiritual tradition of the Isle of Man” is not spelled out. A predominantly Christian tradition may be what is meant, but within that broad theme, there are interesting differences between the Manx and the English context. In particular, the place of Methodism in the Manx scene is important for understanding of that tradition, for instance through the domination of the House of Keys by Methodist members in the second half of the 19th century (in contrast to the Anglican Council of the same period).

(iii) Similarly, the way in which the Lord Bishop serves as “the focus for all faith groups” is not detailed. The work of the Lord Bishop in representing a viewpoint between the Church of England is a recurrent theme in debates over the role, driven in the past by the position of an established Church of England in a majority non-Anglican country. A detailed study of the work of individual Bishops shows, perhaps unsurprisingly, that the way this work is undertaken varies from Bishop to Bishop. Bishop Nicholls in 1980, for instance, was concerned that Jewish and Muslim slaughter methods caused great distress to many people and was “different from the one used in (if I may use the words in the widest terms) a Christian community”. Bishop Attwell in 1986 expressed similar concern that a proposal might create problems “with regard to Muslims and Koranic law, where you can marry a girl at 12 and divorce is simply a male thing”. Bishop Jones in 2000 welcomed a clause exempting Sikhs from motor-cycle helmet rules as respecting them in a very sensitive way – although it may be worth noting that he had been entirely silent on that legislation, and was juxtaposing it with a discussion of summer opening of public houses, a concern closer to the Methodist interests we can see explicitly represented in Tynwald. Bishop Jones in 2000 also took the view that, unlike the UK, the Isle of Man remained a Christian country, rather than a multicultural one. It would be interesting to see if the current Bishop were willing to outline the mechanisms for ensuring he represents all faith groups, particularly those with a tradition of tension with Christianity, such as contemporary paganism; and the extent to which he would be willing to represent a faith-based issue frankly incompatible with Anglican Christianity.

Secondly, the Committee’s view that a potential loss of the Diocese would be sufficient reason to retain the vote is expressed very succinctly. The Committee has gathered clear evidence that the loss of the vote would lead to the loss of the Diocese, but does not flesh out the why this loss of a Church of England Diocese would impact on the Island’s status and influence.

(i) Is there a significant difference in the status and influence of the Isle of Man and Jersey? Jersey, it will be recalled, has already featured in debates about the place of the Lord Bishop in the Legislative Council; and is invoked again by the Archbishop of York. It may be that a reduction from a Bishop to a Dean within the Anglican structures would have a negative impact on the status and influence of the Island, but no evidence is given for this view.

(ii) Is there something special about the status and influence gained from association with the Anglican Church? Manx people are affiliated with a range of religious organisations, with a range of structural solutions to Manx distinctiveness. The Methodist Church, for instance, is structured as a single circuit, and a Methodist District in its own right. The Channel Islands are, similarly, a Methodist District (albeit consisting of a Jersey and a Guernsey Circuit).  The Catholic Church, on the other hand,  treats the Island as part of the Archdiocese of Liverpool; and Jersey as part of the Diocese of Portsmouth. The Latter Day Saints treat the Isle of Man as part of one of the six UK Missions.

(iii) How should the benefits of retaining any such status and influence be weighed against the benefits proponents of the loss of the vote identify?

 

In an earlier blog, I talked about an exceptional decision by the House of Keys to override the objections of the Legislative Council in order to pass an Act of Tynwald without their consent. Chris Thomas raised the issue that this may have been the first time the Keys had used this power

Previous examples were certainly not put before the House during the debate on the motion to over-ride the Council. Has it been used before? If it hasn’t, then its use may be particularly significant of the direction of travel in the relationship between the Keys and the Council.

Before 1961, the consent of the Council was always required for an Act of Tynwald to pass, and indeed government Bills started in the Council, as the Attorney General sat there. The Isle of Man Constitution Act 1961 s.10(1) created a complex system where a majority, or in some cases a special majority of 16, of the Keys could dispense with the consent of the Council to legislation, if it had not been forthcoming for two years. The Constitution (Amendment) Act 1978 changed the period by which the Council could delay the process to one year. In 2006 the process was notably simplified by the Constitution Act 2006 s.1(2), which allows the Keys to override the Council by a motion passed by a special majority of 17, rather than requiring the legislation to go through the legislative process repeatedly. The 2006 legislation will also make it much easier to identify attempts to exercise the over-ride.

The existence of the override process may, of course, have a subtle influence on the Council even when not invoked. But although the process under the 2006 Act has not been used before, it appears that this provision of the 1961 Act was used at least once, and on a further occasion was about to be used before the Council preferred to pass the Bill than have it passed without their involvement.

The first instance to come close to a Council over-ride was, interestingly, a Bill to change the composition of the Legislative Council. The Isle of Man Constitution (Amendment) Bill 1964 was introduced to remove the Second Deemster from the Council. The Bill had been rejected by the Council in two sessions, and was reintroduced to the Keys “pursuant” to s.10. In the third session, it was given all three readings in the Keys on the 27 October 1964, with the express intention that it then either be accepted by the Council, or become law in any case through the override provision. The Council eventually accepted it, but with considerable reluctance – the 5:3 majority included an Attorney-General who finished his contribution with “I heartily disagree with the matters proposed in the Bill. I am nevertheless glad in a way that the Bill has been passed so that it will not become law by default, and I beg to move that the Bill do pass.“. The Bill became the Isle of Man Constitution Amendment Act 1965.

The other example, which did result in a Council override, was in relation to the Licensing (Sunday Opening) Bill 1978, which became law as the Licensing (Sunday Trading) Act 1979. The Legislative Council explicitly took the final vote on the Bill, on 9 January 1979, knowing that if they did not pass it, the Bill would become law in any case. The Bill failed with a 4:5 split. There was an argument put that the Council should accede to the inevitable, but it did not convince, perhaps in part because it concerned the moral issue of drinking on Sunday. Mr Kneale, for instance strongly felt that “even though we know it is an academic exercise now that the Bill will go through, we should, if we feel that our opposition is right and justified, still maintain it”.

It definitely is unusual for the Keys to invoke this power, but it is not unprecedented. For it to be exercised once, albeit on a very significant constitutional issue, is interesting but does not necessarily constitute a trend. If the Keys begin to exercise this power consistently as a way to resolve differences with the Council, such a trend would be important.

On the 21^st of November 2017, Tynwald debated the Second Report of the Select Committee on the Functioning of Tynwald, debate having been delayed by illness. Tynwald was invited to approve a number of important recommendations, which I will strand into a number of categories.

Firstly, the composition and role of the Legislative Council. The Select Committee recommended a specific job description for MLCs (passed); that the President of Tynwald should be tasked with encouraging a wide range of candidates to the Legislative Council (passed); that MHKs should recuse themselves from elections to the Legislative Council if they are candidates (an amendment by Mr Ashford was passed by MHKs, but not by MLCs, so the resolution as a whole was held over to a combined vote in December, being passed at that point with Mr Ashford’s amendment); that any examination of the pay of MLCs should not result in an increase in the overall cost of Member’s remuneration, but should result in a level sufficient to allow everyone to serve, and attract a diverse collection of community members (passed). One issue in the composition of the Council, the role of the Lord Bishop, was left until the new incumbent had settled in, and the Archbishop of York had expressed his view. The Select Committee considered only minor changes to the place of the Bishop, categorised by Mr Skelly as “a bit light”. In response to an amendment from Mr Ashford requiring the Select Committee to make recommendations on the Bishop’s role and ability to vote in Tynwald, Mr Watterson saw this as already planned for the next report from the Select Committee. Despite this support, the amendment failed in the Legislative Council, despite being passed by the Keys.

The Speaker, Mr Watterson, moving the motion, noted that previous debate about the Legislative Council had been negative, and that it was important to focus on what the Legislative Council, particular a more diverse Legislative Council, could do in the future. A duty on the President to encourage diversity was part of this, but it was a theme that also found expression in the emphasis on MLCs being full-time officers whose remuneration should not limit it to the better off, and in consideration of the age requirement of MLC candidates. Diversity in Tynwald was a particular concern of members such as Mrs Poole-Wilson.

Secondly, and again concerning the Legislative Council, the Select Committee made a complex set of recommendations in relation to MLCs in executive roles. The Select Committee recommended that Tynwald should express the opinion that the Chief Minister should only appoint an MLC as a Minister in exceptional circumstances, and that these should be explained to Tynwald – not going as far as members such as Mrs Beecroft would have liked to have seen (passed). In relation to Departmental Members, the Select Committee put a menu of mutually exclusive options to Tynwald, ranging from excluding MLCs from being Departmental Members entirely, to no change to the current practice. Tynwald adopted the last, with the slight clarification proposed by Mr Harmer that MLCs should act as Departmental Members for only one Department.

The Speaker, moving the motion, acknowledged that the retention of Departmental Members was contrary to the recommendations of Lord Lisvane, who he argued had not properly understood the workings of a system which, on its face, raised serious concerns about the separation of powers. He noted that in a small legislature, the Departmental Member scheme could function as “an apprentice scheme where future Minsters can be tested in Government work”.

Thirdly, a number of broader constitutional reforms. This included a principle that the Government should not automatically have a majority in Tynwald or the House of Keys (passed); that the Standing Orders Committee should consider amendments to the Constitution Acts, particularly around the eligibility of candidates to stand for Tynwald (passed); that the method of electing the Chief Minister be referred to the Select Committee for report by February 2018 (passed, but overtaken by events); and that  each appropriation and taxation measure be based on a policy decision taken by Tynwald and the appropriation or taxation decision made by the House of Keys voting alone (failed).

More broadly, this debate had a number of interesting features.

Firstly, the structure of recommendations in relation to MLCs as Departmental Members was intended to simplify a complex decision where the Select Committee had not been clearly able to identify a consensus. As The Speaker said “We agreed that we would recommend the various options in the order of greatest change, taking the option for change which represents the most radical recommendation first, on the basis that if one option succeeds then all others fail immediately. This will reduce the need for tactical voting and reflect more straightforwardly the will of Tynwald”. This is an evolution of the approach the Speaker had taken to the motion which established the Select Committee, and helped structure a wide-ranging and complex debate.

Secondly, the debate made it clear that there were members who were in favour of a substantial, perhaps complete, adoption of the recommendations of the Lisvane Report, and who found the Report disappointing, or as Mr Shimmins, put it “woeful”. The Select Committee choose not to adopt some Lisvane recommendations, and developed recommendations of its own, leading Mr Cannan, as part of strong criticism of lack of change to the Departmental Member system, to categorise a shift of attention from the Lisvane Report to “what I, perhaps maybe slightly unfairly, would term the “Watterson Report””. Equally, other members such as Mr Boot found the Lisvane Report seriously lacking, particularly in relation to detailed understanding of the working of the system as a whole, and clearly welcomed scepticism over its value. Lord Lisvane made it clear that his recommendations could be adopted or rejected wholesale, although as I noted at the time there were considerable synergies between different recommendations. This is clearly the future of the Report – a toolkit for consideration, rather than a manifesto for major constitutional reform.

Thirdly, as the vote over the appointment of Chief Minister’s made clearer still, the focus of the current constitutional debate is on the role of MLCs in relation to the Executive; with the exception of the vote of the Lord Bishop, not in relation to its legislative work.

Responsible government came late to the Isle of Man. The landmark reforms of 1866, linked to the coming of democratic elections to the Isle of Man for the first time, were a long way from responsible government as understood in the British Empire of the mid-19^th century. Responsible government, based on the imperial governor exercising less authority, and a ministry responsible to the elected colonial assembly exercising more, was well established in Canada, New Zealand, and Australia by the mid-19^th century.  The Lieutenant-Governor of the Isle of Man, however, remained the dominant executive officer in the island until well into the 20^th century; only being replaced as chair of the Executive Council by a chairman elected by Tynwald in 1980, and since 1990 by the Chief Minister of the Council of Ministers. Today, the executive arm of the Manx government is led by the Chief Minister, who is elected by Tynwald in an open ballot. As noted elsewhere, the most recent appointment of the Chief Minister was decided by the (unelected) Legislative Council, following a failure to secure a majority for a single candidate in the vote of the House of Keys.

On 19^th December 2017, the House of Keys passed a motion on the Council of Ministers (Amendment) Bill 2016, sending the Bill to Tynwald under the Constitution Act 2006 s.1(2). This section of the Constitution Act allows a special majority of 17 of the 24 MHKs to bypass the Legislative Council, and the motion received exactly 17 votes. Mr Ashford stressed that the motion would allow the Bill to proceed for signature by the Keys in January, but no MHK was then obliged to sign it, raising the possibility that the Bill may fail to secure the 17 signatures needed in January. Given that the motion passed, despite a number of MHKs being absent (categorised by Mr Malarkey as supporters of the Bill), this seems unlikely.

The Bill provides that the Chief Minister can in future be appointed by at least 13 MHKs voting in the House of Keys, rather than by a majority of the members of Tynwald voting in Tynwald; and, as Dr Allinson stressed, allows the Keys alone  to decide whether to dissolve the Council of Ministers through a motion of no confidence.

This shifting of power from a Tynwald Court including Members of the Legislative Council to the directly-elected House of Keys is consistent with the recommendations of the Lisvane Review. Stressing the lack of a direct mandate for MLCs, Lord Lisvane had recommended that “MLCs should not vote on the appointment of the Chief Minister (and, as a corollary, not vote on a motion of no confidence” (p.34). The reform was not, however, portrayed as driven by the Lisvane Review. Mr Thomas, the sponsor of the motion, stressed that this change had already been unanimously passed by the House of Keys “before Lord Lisvane had even arrived in the Isle of Man … this initiative is an Isle of Man initiative initiated by a proud Manxman” (308 K135). Reform as a patriotic measure was also stressed by other supporters, including Mr Malarky and Ms Edge.

That is not to say, however, that the momentum created by the Lisvane Review was not acknowledged. Mr Thomas expressed concern that the recommendations of the Lisvane Report in general were “being strangled slowly”. Mr Thomas minimised the power of appeals to tradition, emphasising that the Council of Ministers system dated back only to 1990 – “it is hardly a longstanding tradition”. True, but the longstanding tradition that is being altered is the emphasis on Tynwald Court, as opposed to the House of Keys. Mrs Caine may have captured it better when, also making explicit reference to the Lisvane Review, she noted that “if approving this motion takes us one step further on the road to reforming the role of the Upper Chamber, that would be a bonus in my mind”. Mr Ashford saw the measure – I think accurately – as consistent with a shift of the members of the Legislative Council to a purely scrutiny role; a view other members echoed. Mr Cannan, who had originally moved the Bill, argued that the change would strengthen the position of the Legislative Council as a revising Chamber, “giving more credibility to their views on legislation unencumbered by any significant role in electing the Chief Minister”.

The current Chief Minister, Mr Quayle, opposed the motion. He felt that the Chief Minister needed to command the support of both the House of Keys and the Legislative Council. “We are not Westminster, we are not Jersey, we are not Ireland, where obviously the House of Commons vote for the chief minister; we are a small jurisdiction. We have been going now for over a thousand years, and I believe having the support of both areas will help a Chief Minister, whoever they are, going forward”. Mr Quayle saw the balance of power as already lying with the Keys, and thought that the Select Committee on the Functioning of Tynwald should report before any change was made. He also stressed that recent changes to the voting process, where the Keys voted first, then the Council, and both votes are public, had dealt with the problem “it is not that the votes of the Legislative Council can overturn the majority because no one knows what they were anymore”. Mr Ashford pointed out that, if the Legislative Council were bound to vote in lines with the majority of the MHKs (clearly not a formal legal rule), “then it makes no difference whether they vote to begin with or not”.

Mr Boot pointed out that the change in appointment of the Chief Minister will result in fewer individuals voting on the appointment of the Chief Minister, which he categorised as “concentrating the power into fewer hands – it does not seem very democratic to me – within our Parliamentary process”. Mr Malarkey robustly rejected this categorisation – “it is 24 votes who have the mandate of the people behind them”.  When, as seems likely, this Bill becomes law, we will have seen a significant constitutional change which emphasises the centrality of the  directly elected House of Keys to the Manx constitution. 2018 is likely to be an exciting year for Manx constitutional reform – given the mood of the Keys in this most recent debate, it may be a year of significant change in relation to the Legislative Council. A key question Tynwald will need to resolve is how to weigh the benefits of shifting power more clearly to democratically elected representatives, and the consequences of focusing power in such representatives.