The Tynwald webpage on Women Members of the Legislature notes that Mrs Marion Shimmin, the first woman to be elected to the Keys, “was elected unopposed”, although her Manx Roll of Honour entry and Culture Vannin’s interesting biographical note from her family simply refer to her having been “duly elected”. There is very little reference to unopposed elections to the Keys elsewhere on the Tynwald site. Without some context on unopposed elections to the Keys, some readers might associate her exceptional status as first woman MHK with her unopposed election. So how unusual was it to be elected unopposed – and so without a poll – to the House of Keys?

My focus is on General Elections, and I am going to consider these across three periods, the separation driven by the unusual nature of the 1986 and 1991 General Elections, where the voting system within constituencies was briefly changed to a form of single transferable vote. So we have the 12 General Elections from 1919 to 1981, which were dealt with under the first past the post system used today (albeit for a variable number of constituencies and with changes in the number of MHKs elected in some constituencies); the two General Elections of 1986 and 1991, which were dealt with under a single transferable vote system; and then the six General Elections from 1996 to 2021, again dealt with under the first past the post system (again, with variations in the number of constituencies and the number of MHKs in some constituencies).

Up until the end of the 1981 General Election, only one seat in the Keys had been filled by a woman unopposed. Over the same period, 16 seats in the Keys had been filled by a man unopposed. Given 552 men stood for the Keys in General Elections during this period, as opposed to 36 women – that is, 15.3 times as many men than women – that Mrs Marion Shimmin was elected unopposed is  not in itself unusual.

The two single transferable vote elections show the continued pattern of unopposed elections being unusual, but not unknown, and men being the beneficiaries. Three seats were taken by men unopposed, none by women; there were a total of 137 men standing, as opposed to 10 women. With so few women standing in just two elections under this system, it is difficult to say much more.

Turning to the most recent set of General Elections, we see six men elected unopposed, and no women. Looking at the period as a whole, we see 292 men standing, and 57 women. With those proportions, it would not have been striking had one of the six people elected  unopposed been a woman; but with such small numbers, it is equally not striking that all were men.

Additionally, it is worth noting a feature across the periods since 1919. The decline in the number of seats taken unopposed has occurred alongside an increase in the proportion of candidates who are women. In particular, the three General Elections from 2011 – which had no unopposed candidates – were contested by 36 women: the same number as the twelve General Elections from 1919-1981. At periods when unopposed elections were less uncommon, women candidates for the Keys were more uncommon: so it is unsurprising that only one woman was elected unopposed at a Manx General Election.

To conclude, I think the fact that Mrs Marion Shimmin was elected unopposed to the Keys is not especially worthy of highlighting without the context I have outlined here. More worthy of highlighting is the Keys career of Joseph David Qualtrough.  Entering the Keys at a by-election in 1919, he was elected as the member for Castletown at every General Election until his death in 1960. At six of these seven elections he was elected unopposed, and in the only contest (in 1946) he secured a comfortable majority. New Manx Worthies notes, in the third-to-last paragraph of a two and half page entry, that six of his elections were unopposed. The same publication’s entry for Marion Shimmin, on the other hand, begins “Marion Shimmin (nee Fallows) was returned, unopposed, in 1933”.

This blog is authored by Peter Edge, as part of a series on Women in Manx Politics, a larger project funded by Culture Vannin. Click on the icon to go to the project page.

The original version of the Public Health Regulations (no.18) specifically added Peel to the entry points permitted. Details of entry via Peel were to be added by CoMin through a Directive (a GC). This was amended during its approval by Tynwald, with the power to specify any Manx port as an entry point for private vessels, as well as the detailed provisions, given to CoMin under the final reg.7(1).

This power has now been exercised in relation to Peel Harbour, under G.C. 2021/0091. A private vessel may dock at Peel Harbour at specified times published by the Chief Secretary, such specified times not being permitted outside 0500 and 2300. Specified times may change daily. so long as such changes are published.

A substantial number of amendments to the Public Health Regulations through the PHR (Amendment) no.18. coming into effect overnight. One unsurprising change is an extension of the PHRs. These were due to expire on the 26^th of October, and will now run until 20 January 2022.

Residents.

The former definition of “registered resident” now becomes “resident” (amended reg.5, amended reg.10, amended reg.12, amended reg.13a, amended Sch.1), defined in Schedule 6, paragraph 1. This is now given a comparatively simple definition. A resident is a person who owns, leases, or occupies a dwelling in the Island as their only or principal home (Sch 1, para.6(2)), or a person aged 12-17 who spends part of their time on the Island living with a parent or guardian (Sch 1, para.6(2A)).

Residents who would otherwise be Category A persons are allowed to enter the Isle of Man without self-isolation or providing a biological sample so long as they have not travelled outside the Common Travel Area in the ten days before returning to the Island (reg. 2A as amended).

Natural immunity exemption.

A new exemption is added to the existing vaccination exemptions, covering persons, including non-residents, with “natural immunity”. As with the vaccination exemptions, a person who qualifies does not need to self-isolate upon entry to the Isle of Man, and does not need to test (new reg.5C(4)). To qualify for this exemption, the person must have had a positive PCR test, taken within the Common Travel Area (CTA), between 11 and 180 days of their arrival in the Isle of Man; and  must not have travelled outside of the CTA within ten days of arrival (new reg.5C(2)). There is one unusual difference between the natural immunity exemption and the primary vaccination exemption (i.e. the exemption for a person who has been vaccinated). The latter requires that the person is not infected or reasonably suspected of being infected (reg.5A(c)), the former does not. This would seem to suggest that a person who has been vaccinated, but is reasonably suspected of being infected, cannot take advantage of that exemption; whereas a person who has tested positive 11 days before entering the Isle of Man, who is reasonably suspected of being infected, can take advantage of this one. Perhaps the clause was omitted on the basis that everyone who can take advantage of the natural immunity clause would be excluded, but I think this would miss the distinction between “is infected” and “has been infected”. Allowing persons with a recent positive test who are reasonably suspected of being infected to enter the Isle of Man would be odd.

Airports and Harbors.

The restriction on private aircraft under Reg.8 is removed (and subsequently removed from the list of offences in reg.36).

The PHR is amended to allow private vessels to dock at Peel as well as Douglas, subject to guidance issued by the Chief Secretary (reg.7(1) as amended).

CoMin has released a summary of their approach to “Learning to Live in a World with Covid-19”. The report stresses that “This document does not create new policy, or a new approach, merely confirming the current approach, much of which has already been discussed through other channels” – an appropriate aspiration in the midst of a general election campaign.

One striking aspect of the report is the level and type of harm required before CoMin considers that legal intervention in the form of mandated, legally backed, mitigation requirements are imposed:

Government will not seek to implement Island wide or society level restrictions other than at the borders, unless the level of threat rises to the extent that there is significant threat to the health and care system of being overwhelmed.

This does not rule out specific restrictions, which may themselves be based on the power of IOMG as a delivery of services rather than specific legal rules (such as visiting of health care settings, and use of public transport). Island wide restrictions in the interests of public health are, however, an ancient part of the Manx legal system, and have been imposed in response to threats considerably below that of overwhelming of health and care systems. Two historical examples first.

Deemster Parr’s Abstract, an authoritative summary of Manx law compiled in the 17^th century, notes that “the killinge and eating of salmon and salmon frea in kipper time was too obnoxious for the endangereing of breeding leprosie and other noysome diseases: it was therefore ordered … that noe salmon or salmon frea should bee killed in any fresh water or salt water in kipper tyme” (para.86). Violations could be punished by destruction of “nets and engines” for a first offence, 3 months imprisonment for a second offence, and 12 months imprisonment for a third.

The Criminal Code 1872 s.342, a section which is still in force, provides:

“Whosoever will wilfully endanger the public personal safety by any unlawful act, or shall do, cause, occasion, promote, maintain, or continue what is noisome and offensive, or manifestly hurtful to the public; or injure or annoy or tend to injure the public in the enjoyment of any public right or privilege, or cause directly, or manifestly tend to cause, any public calamity, mischief, or disorder, or any common injury or damage to the public in respect to their habitations, personal safety, health, or property, the same being without authority or justification by law, shall be guilty of a misdemeanour; and it shall not be essential that any such unlawful act should be to the general injury of all Her Majesty’s subjects, but it shall be held to be sufficient if it injure or prejudice a class only of such subjects; and no act, being a common nuisance within the meaning of this section, shall be deemed justifiable or excusable on the ground that it is productive of some compensating convenience or advantage to the public.”

There are numerous examples of restrictions on individual choice in the interests of public health in current Manx legislation where the harm being averted is considerably less than overwhelming the health and care system. For instance:

• Hygiene and other food safety rules.
• Bans on smoking in private vehicles carrying children, public transport, and in enclosed public places such as pubs and restaurants.
• Restrictions on polluting rivers.

One argument against state intervention in order to protect public health is that it is not practical to enforce every violation of such an intervention. This has not been fatal to the examples noted above. To focus on food safety rules, these are legal rules which can be enforced by the state against food businesses failing to meet the required standard. Two food safety officers investigate complaints about hygiene standards, and carry out food hygiene inspections. They can recommend prosecution or impose prohibitions on a business or equipment, and if there is an imminent risk to consumers, issue an Emergency Prohibition Notice, subject to confirmation by a court. Two food safety officers are clearly not going to be able to check out every shift of every food business on the Island. So, why bother with food safety rules?

Janice Nadler considers the work of law outside of sanctions or direct coercion in this open-access article. She discusses expressive law – “the claim that law influences attitudes and behaviours by what it expresses” – and gives as examples no smoking laws which coordinate expectations (“When law highlights a behavioural choice in a coordination setting, it changes expectations about how others will behave”), and compulsory seat-belt laws which provide additional information (for instance “what legislators collectively know about the risk of not wearing a seat belt”).

Restrictions on individual judgement and choice in the interests of public health are not new to the Isle of Man, and are not restricted to exceptional periods of crisis. What is perhaps exceptional about the use of state sanctions to regulate behaviour during the lockdowns was the severity of the punishment imposed. Mandating mitigations does not, however, necessarily require severe sanctions against individuals. One of my criticisms of the Emergency Powers Regulations, and indeed the Public Health Regulations, was that a single set of maximum penalties was imposed for each type of violation. Failing to obey a mandated mitigation in a vaccinated population would seem closer to established increases of risk to public safety such as a parking violation, than to the pre-vaccination breaches which led to periods of imprisonment. The PHR limits for fixed penalty offences, of £150 rising to £250 if not paid, might serve well.

Living with coronavirus might eventually turn out to be similar to living with dangerous parking, food poisoning, and passive smoking. The next administration might want to begin by looking at the threat of coronavirus in a (thankfully) largely vaccinated population; comparing it with other endemic threats to public health on the Isle of Man, rather than to the level of threat it posed to an entirely unvaccinated population. It may be that the benefits to public health produced by state intervention aimed at this level of harm could justify modest restrictions on behaviour that generates risk, but not prison sentences for breach of these restrictions.

Given that there are, pending the general election, currently no MHKs, it might be a good moment to think about this.

A fundamental challenge for small democracies is striking the balance between democratic legitimacy for all those exercising governance power, avoiding the concentration of power in a small number of hands, and avoiding paying for a disproportionately large number of people to exercise that power.

Sutton has argued that ‘in small societies it is relatively easy for a determined, unscrupulous, individual … to dominate all or most aspects of the country’s life’. With the demise of the plenipotentiary Lieutenant-Governor, the Isle of Man has moved some way from this, but it is clear that constitutional developments have increased the power of the 24 directly
elected members of the House of the Keys.

A comparison with other small democracies suggests that over-concentration may be a genuine problem for Manx democracy. In 2012 Johnston and McLean analysed the population per elected representative in the only or lower houses of all independent and semi-independent territories with a population between 50,000 and 150,000.Of the 22 considered, both the Channel Island jurisdictions analysed were amongst the most generous. Guernsey (1328) and Jersey (1920) were in the most generous five, along with Bermuda (1783), Greenland (1829) and the Marshall Islands (1645). The Isle of Man (3521) was at 13th place of the 22, bracketed by American Samoa (3083), the Cayman Islands (3083), the Federated States of Micronesia (3664), and Tonga (3692). The difference between the other Crown Dependencies and the Isle of Man is striking.

So, to answer the question in the title, I don’t think there are too many MHKs, and indeed there *might* be too few.

One possible way to address this would be to increase the size of the House of Keys. If the Keys was to be returned to its pre-twelfth century size of 32 members, the Manx ratio on Johnson and McLean’s figures would move to 2640, 8th most generous of the 22 small democracies, bracketed by Dominica and the Seychelles. The ratio of representation would remain notably less generous than that of the closest comparators to the Isle of Man – the fellow Crown Dependencies of Jersey and Guernsey. A significant concern over such an expansion of the House of Keys would be cost, both in terms of salary and infrastructure. This could be met by increasing resourcing of Tynwald – a politically sensitive argument, particularly as the Isle of Man continues to deal with very significant economic and fiscal challenges. Reconfiguring the MHK role as part-time, remunerated pro rata, risks, as was discussed during the Lisvane debate, reducing diversity in Tynwald. More significant resources could be freed up by the abolition of the Legislative Council, and a move to a unicameral chamber of the kind already found in Jersey and Guernsey. Unicameralism has been discussed in the Isle of Man for some time, but remains contentious.

Inspired by some great use of Box of Broadcasts in legal teaching, I’ve been looking at suitable “further viewing” for my third year LLB option in Religion and Law. I’ve added a number to this year’s module, but thought it was something that UK law and religion teachers based in the UK (where most of us have access to Box of Broadcasts), might want to share suggestions on!

So my current materials below, by category. Please email me at pwedge@brookes.ac.uk with your suggestions, either in these categories or under new categories, and I will update. If you could keep the same format (so include hyperlink at bob) that would be handy.

Defining Religion.

“Around the World in 80 Faiths” (2019). A TV series exploring a wide range of religious systems around the world. The episodes on the US and Europe are most relevant to the focus of my course.

Freedom of conscience.

“A Man for All Seasons” (1966) Excellent full-length movie around the final years of Thomas More. One of my favourite films, but raises issues of faith in the law, the forum internum, and law and politics.

Equality and inequality.

“Young, Welsh and Pretty Religious” (2019). A 2019 documentary looking at nine young Welsh people of a wide variety of faiths, in this episode looking at their experiences of intolerance. A really thought provoking succession of people talking about a range of inequalities in their lives including a substantial discussion of being LGBT+ Christian; niqab wearing women;  becoming a Hare Krishna monk; and antisemitism (with an interesting point about vegan food and religion). Part of a series of three episodes available on bob.

Marriage.

“The Big Questions”, Episode 8 (2017). A studio discussion show, which at 42 mins in turns to civil partnerships, with an interesting contribution by Peter Tatchell on “Is marriage what you make it?”.  The series covers a lot of religion/society/politics questions.

The formal notice of poll has now been issued for each constituency. I’ve done a quick gender breakdown, and comparison with the notice of poll for the last General Election in 2016.

Constituency	Total 2021	M/W 2021	Total 2016	M/W 2016
Arbory	4	4/0	7	6/1
Ayre	8	6/2	6	5/1
Douglas Cent	4	2/2	6	3/3
Douglas East	7	3/4	8	5/3
Douglas Nor	4	4/0	5	3/2
Douglas Sou	4	2/2	4	3/1
Garff	5	4/1	5	4/1
Glenfaba	7	6/1	3	3/0
Middle	5	3/2	4	4/0
Onchan	5	4/1	5	4/1
Ramsey	8	7/1	5	5/0
Rushen	4	3/1	5	5/0
TOTALS	65	48/17	63	50/13

Compared with the last General Election, nationally, a very similar number of candidates for the 24 seats, with a modestly higher proportion of women candidates (26% as opposed to 21%). Considering conversion from candidates to MHKs, the numbers are very small, and small changes in particular constituencies can have a big effect – for instance, if there had been a 42 vote swing in one constituency in  2011, 12.5% of the Keys would have been women, as opposed to the 8.33% who were elected (against 11% of candidates in that election being women). Nonetheless, the 2016 and 2011 elections had women candidates elected at very much the same rate as men. It will be interesting to see if something similar happens in September.

The elections are resolved in constituencies, rather than nationally, and so it is worth breaking those national figures down a little. The number of constituencies with no women standing has reduced substantially, from 4 to 2. In one constituency (Douglas East) there are more women than men standing. This is, perhaps surprisingly, not the first time this has happened in an election to the Keys. Marion Shimmin, the first woman MHK, was elected unopposed at a by-election in 1933 (so would be 0/1 on my table). In 2001 both candidates for the single seat in Peel were women (so would be 0/2 on my table). In two other Douglas constituencies there are the same number of men and women standing – Douglas Central (which was in this position in 2011) being joined by Douglas South. In both elections, there are 5 constituencies with only one woman on the ballot for the two seats.

The response to a useful Freedom of Information Request has now been published by the Isle of Man Government, on the freedom of information site. This link should lead to the response from the Department of Home Affairs.

The data provided covers March 2020 through to March 2021. In that period there were 215 arrests for coronavirus offences (which from the question asked, means offences under the EPR and PHR), 35 being arrests of juveniles. Seventy-one persons received a custodial sentence for breach of the EPR/PHR. Thirty-seven fixed penalty notices were issued.

The report by the Chief Constable, referred to in the FOI response, provides useful additional data.

• The 215 arrests were clustered, unsurprisingly, around the three lockdowns, with 84 in the first lockdown, 42 in the second, and 27 in the third, for a total of 153, or 70% of the total.
•  Coronavirus arrests outside of lockdowns never reached 9% of the total arrests in non-lockdown months. During lockdown one, nearly 50% of arrests were coronavirus arrests, dropping to under 30% in both lockdown two and lockdown three.
• The 215 arrests represent arrests of 190 different individuals (overwhelmingly, male adults). Seventeen were arrested twice, and four arrested three times (including three juveniles).
• The report includes data on convictions, which puts the seventy-one custodial sentences in context. At the time of the report, 87 offences had resulted in conviction. Although this isn’t broken down into multiple offences prosecuted against the same person, 20 of the 134 offences were part of “multiple cases brought against … 9 individuals”. If we are conservative, and assume that the 87 convictions were all in relation to different individuals, 81% of coronavirus prosecutions resulted in a custodial sentence.
• A total of 2361 reports were made from the public relating to coronavirus incidents. In the lockdown only (which is the focus of the report), there were 1968 reports. In the three lockdowns, 767 individuals were warned for breaching the coronavirus regulations.

A couple of final comments.

Firstly, fixed penalty notices were not available until late in April 2020. The biggest month for coronavirus arrests (April 2020, with 54 of 131 arrests equalling more than 40% of all arrests) had already been and gone. Nonetheless, it is striking how many more people were imprisoned for breaches of the PHR than received fixed penalty notices for these breaches. Not every PHR offence could be dealt with by a fixed penalty notice, but I would still have expected to see them having a bigger role. It may be, however, that the police chose to give warnings rather than fixed penalty notices wherever possible; so that a situation which was viewed as too serious for a warning was often also too serious for a fixed penalty notice. I think fixed penalty notices have an important role to play if we return to more legal intervention in the transmission of coronavirus in the Manx community, but it would be worth reflecting on why did not receive much more significant use in the past.

Secondly, 81% of convictions for a broad category of offences resulting in custodial sentences is striking. If someone has access to the Manx custodial sentences breakdown I would be very grateful for it, and will update the blog accordingly. In the meantime, a comparison with 2020 in England and Wales might be useful. A custody rate of 34% across all indictable offences (i.e. the more serious criminal offences) was noted as “the highest in a decade”. A useful public access overview from 2017, by Civitas, breaks down the percentage of offenders who received a custodial sentence by broad category of offence. The Manx EPR/PHR custodial sentence rate is higher every offence in Graph 2 of the report, which includes robbery (described in the report as having the highest custody rate, but other lawyers, like me, would want to finesse that to take account of the mandatory life sentence for murder), sexual offences, and violence against the person.

That the custody rate for EPR/PHR violations was extraordinarily high will not come as any surprise, and may spark another round of international interest in Manx sentencing policy. One of my ongoing criticisms of the EPR/PHR is that the power to create criminal offences under the Regulations was used too bluntly. Those creating offences under the Regulations invariably set the maximum sentence at the maximum allowed by law. Setting a different range of maximum sentences would have allowed communication to the judiciary of different degrees of seriousness for different violations. If there is a return to more legal intervention to deal with coronavirus, it would be useful for any criminal offences created as part of that intervention to reflect differing degrees of seriousness by differing maximum sentences. Knowingly violating a self-isolation direction following a positive test, for instance, feels to me a different order of magnitude of seriousness from failing to require customers to wear face masks in your shop.

At the end of July a GC moved France out of the standard UK based category, into Category 3 for adults seeking the vaccine exemption, and Category 2 for children using the secondary vaccine exemption.

GC 2021/89 has cancelled this, so that for Manx purposes France is, once again, categorised as decided by the English government.

At the end of July CoMin issued four directions under the new powers under the PHR to specify details for the vaccination exemption.

GC 2021/0084 adds Johnson and Johnson’s Janssen to the list of qualifying vaccination, with a two week period required following the full completion of the course of vaccination.

GC 2021/0086 departs from the English categories 1-3 by classing France as a category 3 country for the purposes of regulation 5A (so making travellers from France unable to use the vaccination exemption; but perhaps not invalidating vaccinations received in France – in any  case see below), and category 2 for the purposes of 5B (allowing children travelling with adults to whom the vaccination exemption applies). My reading of this is that a child who has been in France within ten days of entering the Isle of Man can make use of the secondary vaccination exemption so long as the fully vaccinated parent or guardian with who they travel has not been in France within ten days. So a fully vaccinated parent could travel to the UK to collect a child who has been, say, on a school trip in France; but could not collect them directly from France without losing the vaccination exemption.

GC 2021/0087 adds four clinical trials to the vaccination exemption, allowing those who have completed vaccination with Valneva, Novovax, Com-COV and Com-COV 2 more than 14 days before entering the Isle of Man to make use of the vaccination exemption.

 GC 2021/0088 deals with the issue of where a qualifying vaccination is received. The Regulations limit the vaccination exemption to vaccinations received in “relevant countries”. This direction defines relevant country as “any country”. So, so long as the other requirements for the vaccination exemption are met, the location in which the vaccine was received is no longer significant. This seems sensible, but does mean that vaccinations received in any of the more than 190 countries of the world will satisfy the exemption, which may pose administrative problems. Bhutan for instance, has been very active in providing its population with complete courses of vaccinations accepted by the PHRs. I have no idea what Bhutan’s proof of vaccination looks like.