H O U S E O F K E Y S O F F I C I A L R E P O R T
R E C O R T Y S O I K O I L Y C H I A R E A S F E E D
P R O C E E D I N G S
D A A L T Y N
HANSARD
Douglas, Tuesday, 27th October 2020
All published Official Reports can be found on the Tynwald website:
www.tynwald.org.im/business/hansard
Supplementary material provided subsequent to a sitting is also published to the website as a Hansard Appendix. Reports, maps and other documents referred to in the course of debates may be consulted on application to the Tynwald Library or the Clerk of Tynwald’s Office.
Volume 138, No. 2
ISSN 1742-2264
Published by the Office of the Clerk of Tynwald, Legislative Buildings, Finch Road, Douglas, Isle of Man, IM1 3PW. © Court of Tynwald, 2020 HOUSE OF KEYS, TUESDAY, 27th OCTOBER 2020
Present:
The Speaker (Hon. J P Watterson) (Rushen); The Chief Minister (Hon. R H Quayle) (Middle); Mr J R Moorhouse and Hon. G D Cregeen (Arbory, Castletown and Malew); Hon. A L Cannan and Hon. T S Baker (Ayre and Michael); Mr C C Thomas and Mrs C A Corlett (Douglas Central); Mrs C L Barber and Mr C R Robertshaw (Douglas East); Hon. D J Ashford MBE and Mr G R Peake (Douglas North); Mrs C S B Christian (Douglas South); Mr M J Perkins and Mrs D H P Caine (Garff); Hon. R K Harmer and Hon. G G Boot (Glenfaba and Peel); Mr W C Shimmins (Middle); Mr R E Callister (Onchan); Hon. A J Allinson and Mr L L Hooper (Ramsey); Hon. L D Skelly (Rushen); with Mr R I S Phillips, Secretary of the House.
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Business transacted
Leave of absence granted ...... 105 Question of Urgent Public Importance ...... 105 Suspension of air bridge with Guernsey – Statement by the Chief Minister ...... 105 1. Questions for Oral Answer ...... 111 Questions 1.1, 1.2 and 1.4 deferred to next week’s sitting...... 111 1.3. Minimum unit price for alcohol – Introduction plans ...... 111 1.5. DoI-constructed houses – Maintenance policy ...... 112 1.6. Bus Vannin night owl service – Friday night plans ...... 113 1.7. Gas Regulatory Agreement 2015 – Consumer regulation after termination...... 116 1.8. Production of medical cannabis – Legislative framework ...... 117 1.9. Postgraduate loans – Number of applications ...... 119 1.10. Remote learning – Minimum standards ...... 120 1.11. Mental Health – Waiting times ...... 125 1.12. Manx Gas – Tariff and standing charge ...... 128 Procedural – Questions 1.13-1.14 deferred to next sitting; Question 1.15 to be answered in writing ...... 131 2. Questions for Written Answer ...... 132 1.15. Legal measures for alcohol sales – Introduction of changes ...... 132 2.1. IoM median income – Household composition ...... 133 2.2. July 2020 budget debate – Job support and greener future progress ...... 133 2.3. Gas Regulation Act 1995 – Drafting instructions for amendment ...... 134 2.4. Equality and Road Traffic legislation – Mobility devices on buses ...... 135 2.5. Remote learning provision – Quality assurance work ...... 135 2.6. UCM Employees – Termination details ...... 136 2.7. IoM Constabulary – External inspection ...... 137 2.8. Ronaldsway Airport – Engagement of consultants ...... 137 2.9. Mobility scooter trial – Report ...... 138 2.10. DoI housing – Revenue and expenditure ...... 139 2.11. Public transport and mobility devices – Accessibility of buses ...... 139 2.12. Bus Vannin – Sale and current use of buses ...... 140
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Order of the Day ...... 141 3. Statement ...... 141 Education Bill Committee – Statement by the Chairman ...... 141 4. Bills for Second Reading ...... 141 4.1. Human Tissue and Organ Donation Bill 2020 – Second Reading approved ...... 141 4.2. Medicines (Amendment) Bill 2020 – Second Reading approved ...... 144 5. Leave to Introduce ...... 146 Private Member’s Bill to amend Council of Ministers Act 1990 – Item not moved ...... 146 6. Consideration of Clauses ...... 146 6.1. Courts, Tribunals and Local Authority Procedures and Miscellaneous Provisions Bill 2020 – Consideration of clauses commenced ...... 146 The House adjourned at 1 p.m. and resumed its sitting at 2.30 p.m...... 170 Courts, Tribunals and Local Authority Procedures and Miscellaneous Provisions Bill 2020 – Consideration of clauses concluded ...... 170 Courts, Tribunals and Local Authority Procedures and Miscellaneous Provisions Bill 2020 – Standing Orders suspended to take Third Reading ...... 186 Courts, Tribunals and Local Authority Procedures and Miscellaneous Provisions Bill 2020 – Third Reading approved...... 187 6.2. International Maritime Standards Bill 2020 – Clauses considered ...... 190 6.3. Manx Care Bill 2020 – Clauses considered ...... 198 7. Further Consideration of Council Amendments ...... 222 7.1. Communications Bill 2018 – Council amendments considered ...... 222 The House adjourned at 5.03 p.m...... 226
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House of Keys
The House met at 10 a.m.
[MR SPEAKER in the Chair]
The Speaker: Moghrey mie, good morning, Hon. Members.
Members: Moghrey mie, good morning, Mr Speaker. 5 The Speaker: I call on the Chaplain to lead us in prayer.
PRAYERS The Chaplain of the House
Leave of absence granted
The Speaker: Hon. Members, leave today has been given to Mr Quine and Ms Edge, and accordingly their Questions will be held over.
Question of Urgent Public Importance
CHIEF MINISTER
Suspension of air bridge with Guernsey – Statement by the Chief Minister
Mr Moorhouse to ask the Chief Minister:
If he will make a statement on the suspension of the air bridge with Guernsey?
The Speaker: You have all had notification of an Urgent Question, and I call on Mr Moorhouse, 10 the Member for Arbory, Castletown and Malew, to ask it.
Mr Moorhouse: Thank you, Mr Speaker. I would like to ask the Chief Minister: if he will make a statement on the suspension of the air bridge with Guernsey? 15 The Speaker: I call on the Chief Minister to reply.
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The Chief Minister (Mr Quayle): Thank you, Mr Speaker. It is an Urgent Question, but I have provided my Answer to all Hon. Members. I have had it sent by email, just to help – the statement. 20 As Hon. Members will be aware, the governments of the Isle of Man and Guernsey agreed to form an air bridge, allowing travel between the jurisdictions without the need for self-isolation on arrival. This air bridge is understood to have been the first established by any governments in the British Isles, as well as being the first air bridge between two jurisdictions within the British Isles. The decision to form an air bridge followed talks between the Chief Ministers of the Isle of Man 25 and Guernsey, as well as both governments’ public health teams. The air bridge provided a welcome opportunity for our residents and our friends in Guernsey to travel safely at a time when COVID-19 has put severe limitations on all of us to enjoy holidays that, at any other time, would be taken for granted. The flights have proven extremely popular and have been a welcome source of custom for hospitality businesses in both jurisdictions. However, the air bridge was only 30 possible due to the circumstances that both islands had managed to create through their handling of the pandemic. As we know, the situation is constantly changing and certainty is in short supply whilst the virus continues to spread. At its meeting on 22nd October, the Council of Ministers discussed the situation in Guernsey following a cluster of four cases of COVID-19 being detected on the island in the previous few 35 days. Our Director of Public Health, Dr Henrietta Ewart, is in close and regular contact with her opposite number in Guernsey, so we were quickly able to understand the latest developments there. Guernsey’s index case – that is the first person to test positive for COVID-19 – was detected on Monday, 19th October. As with our recent suspected case, this result came about from an individual who was displaying no symptoms and only sought a test as they were due to travel to 40 a country that requires confirmation of a negative COVID-19 result before entry is granted. Unlike our suspected case the week before last, however, this was not a false positive. This case was made particularly challenging by the fact that the individual had not left Guernsey in the past 14 days, and as Guernsey had no COVID cases in the community, the source of the infection was unknown. Due to the time course of COVID-19 infection, it is often impossible 45 to confirm the source of sporadic community cases. It may be that the infection resulted from contact with someone who had travelled, had a negative test at day seven but was, in fact, infectious after that – either because the test result was a false negative or because they were one of the small proportion of people who do not start shedding virus until later on in the possible incubation period. This is the risk we have sought to avoid by suspending our day seven testing 50 option and going back to the gold standard of 14 days of isolation. Alternatively, it may have been transmitted from someone who had broken self-isolation and who had not been caught. When three close contacts of the index case also tested positive for the virus, it took Guernsey’s number of active cases to four, but as they were all related to the index case, it meant that we were, at least, looking at a single, contained cluster. The Public Health team in Guernsey 55 quickly set to work, carrying out test and trace. When the Council of Ministers met last Thursday there were still around 60 test results of close contacts outstanding. We determined that the results from these tests would be crucial in helping us to fully understand the level of risk that the cases in Guernsey posed. I have often spoken of the balance of risk – the requirement for the Council of Ministers to weigh up costs and benefits of any given scenario. This is no different. 60 Unfortunately, a further three cases were detected in Guernsey last Friday, taking the total to seven. Again, these are all linked to the index case. As a result, the Council of Ministers took the decision that, in order to protect our community, the air bridge – that is self-isolation-free travel between the Isle of Man and Guernsey – would be suspended from Friday, with immediate effect. And I do emphasise the word ‘suspended’, Mr Speaker. This is, I hope, a temporary measure and 65 I would very much like to see the air bridge restored when the longer-term situation in Guernsey is clear. I know this will have been bitterly disappointing for those who had visits to Guernsey booked, and to businesses here on the Island that were looking forward to welcoming our friends from Guernsey. I know it will have been equally disappointing for the people of Guernsey who were
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70 planning to travel here. Following the decision to suspend the air bridge, our teams worked with Aurigny to ensure that residents from both islands could get home. Two repatriation flights were provided by Aurigny over the weekend. As I said when announcing this development on Friday afternoon, this was not an easy decision to make. We took many factors into consideration: half term, returning students, and the 75 approach of a complex Christmas period. It was a difficult decision, but one we feel was right for our Island. The air bridge was established on the understanding that it could only operate while both islands remained free of any significant transmission of the virus. These latest positive test results meant that, sadly, the balance of risk has shifted. Guernsey’s approach to managing the virus is very similar to ours here in the Isle of Man, and so I have every confidence they will quickly 80 bring the virus under control. We will keep the situation under review and I sincerely hope we are able to re-establish the air bridge as soon as possible. I am sure you will all join me in wishing the people of Guernsey all the very best.
Several Members: Hear, hear. 85 The Speaker: Supplementary question, Mr Moorhouse.
Mr Moorhouse: Thank you, Mr Speaker, and thank you, Chief Minister, for that reassuring Answer. 90 Did any of the visitors from Guernsey have any links with the seven positive cases? And what information about each visitor has been collected by the Isle of Man authorities? Thank you.
The Speaker: Chief Minister to reply. 95 The Chief Minister: Thank you very much, Mr Speaker. If you can just bear with me a second. I have copious notes on this; I just want to check … Thank you, Mr Speaker. Regarding the data collected from the people who have returned, arrivals in the Isle of Man from Guernsey were required to complete a landing form which collected personal data to enable 100 contact tracing in the event that this was required. The landing forms were retained for 15 days following arrival, before being destroyed in accordance with the privacy notice. At no time have we been made aware of anyone who has travelled to the Island being in contact with the now eight cases, I think. When we made our decision as the Council of Ministers, there were seven cases of COVID in the community. Since we made that decision, there has been 105 another case, taking it up to eight – and if I could also point out to Hon. Members that it may not stop there. When you look at the experience of New Zealand, you have to allow for a seven-to- eight-day period after you have tested all the people who were in quarantine as a result of the seven tests – and now eight tests – to make sure that it was not a false negative as a result of them not yet shedding the illness. That is why I think the decision we made was correct. 110 The Speaker: Supplementary question, Mr Callister.
Mr Callister: Thank you, Mr Speaker. I thank the Chief Minister for his statement this morning. Can I ask the Chief Minister what 115 financial support and general support is now being offered to the 120 passengers returning from Guernsey, who are now being asked to self-isolate?
The Speaker: Chief Minister to reply.
120 The Chief Minister: Thank you, Mr Speaker.
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At this moment in time, there is no support specific for those 120 people. If anyone feels they are in financial hardship, then obviously the Social Security side of things from our colleagues in Treasury will be there to help. If there is any support needed for the businesses that have lost … Circa 1,000 people were travelling backwards and forwards over this coming half-term period, and 125 if any business has been substantially hit and it has affected their income, and that then takes them above the 25% reduction in the year, that will now entitle them to support from the Department for Enterprise. If any Hon. Member knows of anyone who is struggling as a result of this, who had not planned for the 14 days, maybe living on their own, if they could pass on the contacts to our Department 130 of Health and Social Care, or my own office, I will see that we do our best for them. Thank you.
The Speaker: Supplementary question, Mr Robertshaw.
135 Mr Robertshaw: Thank you, Mr Speaker. I ask this question of the Chief Minister in order to assist my understanding of what his Answer actually articulated. If it is the case that it is perfectly possible to have a negative test at seven days and then still shed live viruses after the seven-day process, what was the advice that the Council of Ministers received when we went into the seven-day measure in the first instance? 140 The second part of my question is: what is the longest time that has been identified that allows negative tests to occur and then live shedding afterwards? Is it eight days? Is that something we can look at? Thank you, Mr Speaker.
145 The Speaker: Chief Minister to reply.
The Chief Minister: Thank you, Mr Speaker. I thank the Hon. Member for the opportunity to give, to the best of my capacity, clarification on this point. The gold standard is 14 days. That is the one where it virtually catches anyone. If 150 you isolate for 14 days and you respect the isolation, which our people on the Isle of Man have been doing in vast numbers, then that will stop people who are maybe asymptomatic, not showing any signs whatsoever, maybe unintentionally passing it on to people. The evidence clearly shows that you will catch the vast majority if you test after day seven and then share the results on day eight. The vast majority of cases will not be shedding after that, and 155 that is why, when infection rates were low in the United Kingdom – or relatively low, compared to where they are now – we thought it was a risk that could be taken, that the seven-day testing for our residents coming back, given that there were maybe 100 cases per 100,000 in the United Kingdom … that when you took everything into consideration it was a safe bet to allow our people not to have the inconvenience of 14 days. However, when they went up to 600 cases per 100,000 – 160 which sadly a chunk of the North West did, and I notice another area in the North is going into stage 3 – we went to the gold standard, which our medics recommend, of 14 days, which hopefully catches … It is never 100%, but it catches nearly everything. That is the best advice that we have been given, and that is why it is currently 14 days, given the situation. I hope we can move back to the seven days testing for our residents, but the North West 165 especially is so significantly high with its infection rate per 100,000 that we feel that we are better off maintaining the gold standard of 14 days of isolation, or quarantine, call it what you like.
The Speaker: Supplementary question, Mr Shimmins.
170 Mr Shimmins: Thank you, Mr Speaker. A few questions from me for the Chief Minister. Perhaps he could confirm that the Guernsey air bridge was a private sector initiative, and also can the Chief Minister tell us what learnings are
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being taken from the Guernsey cases for the Isle of Man? Will these learnings be factored into the updated Council of Ministers testing strategy, which we understand was being worked on last 175 week? And when will this strategy be presented to the Hon. Members of this House?
The Speaker: Chief Minister to reply.
The Chief Minister: Thank you, Mr Speaker. 180 I missed the very first part of the Hon. Member’s question about business. Could he repeat that, please?
Mr Shimmins: Just to confirm that the Guernsey air bridge was a private sector initiative.
185 The Speaker: Chief Minister.
The Chief Minister: Thank you. Yes, I am happy to confirm that it was a private initiative made by a travel agent based on the Isle of Man, as well as in Guernsey, who was able to set this up. I think neither government – 190 though you could argue Guernsey, maybe, because they own Aurigny – had any involvement. On the Isle of Man we were concerned purely from a health and safety point of view and had our Director of Public Health deal with the procedures to ensure that their team was content that we went ahead in the first place. I say to all Hon. Members the Council of Ministers are having a workshop on this very topic on 195 Thursday. We intend to have fortnightly discussions with all Members of Tynwald on the latest thinking on COVID, and when we make decisions such as changes to our border, we expect to have a workshop in the Barrool Suite with all Tynwald Members to discuss how we move forward. Obviously I would hope that Hon. Members will trust the Council of Ministers to deal with the smaller or really quick decisions that need to be made. I hope you can all see the reason why we 200 had to pull the air bridge and we needed to tell our people the minute we knew there were an extra three cases. We only found out at just gone 12 o’clock and we had a presentation from our Director of Public Health on the Friday. We had a briefing at 1.20 telling people. People were packing. There were three flights each way. There were 1,000 people who were going to be travelling between Guernsey and the Isle of Man and we needed to ensure that they were not 205 suddenly finding themselves having to be brought back, etc. That sort of thing we have got to do quickly, but when it comes to our borders policy, as the Council of Ministers we will work on a paper in our workshop and we will then share with all Hon. Members of Tynwald in a workshop going forward, as well as updates on a two-weekly basis on advice that we are receiving. And it is not just from our Public Health, Mr Speaker; there are a 210 multitude of factors when we make these decisions, taken from all angles of Government.
The Speaker: Supplementary question, Mrs Caine.
Mrs Caine: Thank you, Mr Speaker. 215 I thank the Chief Minister for the information he is sharing with us this morning, but I would like to query … He has just mentioned that Hon. Members will be given the chance to workshop the new regime that we have had to move to. Can the Chief Minister tell us, when he says that the Council of Ministers review this every two weeks, who are the advisers they are receiving this advice from? Is that from within Government only, or is it from outside? And would he think that 220 there might be more public engagement and interest in this subject, possibly the most important decisions the Government is going to have to make that will affect a generation …? Can he tell us who are the advisers and what advice is given, and would he look to having it published openly and routinely, so that there can be transparency around the decisions that are made, where the
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advice is coming from and what those decisions are, so that there can be genuine public 225 engagement in the way the Isle of Man manages itself out of this pandemic? Thank you, Mr Speaker.
The Speaker: Before I call on the Chief Minister to reply, I would say we are starting to broaden out the Question, so I am going to allow just one supplementary question after this. 230 Chief Minister to reply.
The Chief Minister: Thank you, Mr Speaker. When the Council of Ministers sits, every Thursday, it has three members, always, of the Gold Committee – which advises the Council of Ministers – sitting there. It then normally will have – 235 not all the time – a further three members of the Gold Committee on a video link, brought in specifically to discuss COVID. So, we have a fair representation of the Gold Committee advising the Council of Ministers when we make our decisions. On top of that, we ask for papers from all of our advisers to be brought to the Council of Ministers, so that we can make decisions. So, we can have up to six members of the Gold 240 Committee for the Council of Ministers to ask further questions based on the information we have received in a paper from the Gold Committee, and that will start off in the Bronze, up to the Silver, up to the Gold. There are circa 20 people who sit on the Gold Committee, and they are made up of representatives from the Department for Enterprise, the Department of Health and Social Care, 245 the Department of Infrastructure, the Department of Home Affairs, anyone we think is able to bring a valued point, and they will have been speaking to people outside of Government on the problems that are being faced etc. All that information is collated from Bronze up to Gold, to the Council of Ministers, and we always have, as I said, a minimum of three, if not six people able to answer questions on anything the Council of Ministers wish to have from a clarification point of 250 view. I have answered before that, whilst I am more than happy to have workshops and give briefings, some of the information … would we get it, if people thought it was going to be shared all over the place? I think not, and therefore, to make sure that people are as frank with us as possible, I will not commit to sharing everything. But I will commit to briefings, where Members 255 can ask whatever they want of the team to get as much information as possible, and a workshop on something like the borders, which is incredibly important and we need as much input as possible from Hon. Members, and where we will be able to explain the problems that maybe not everyone is aware of, and you can all then take it into consideration.
260 The Speaker: Final supplementary, Mr Robertshaw.
Mr Robertshaw: Thank you, Mr Speaker. If I can return to the Chief Minister’s kind answer to my previous question with regard to why the Council of Ministers took the decision to go to 14-day testing as a direct consequence of the 265 level of infection rates in the North West, which I understand – bearing that in mind, did the Council of Ministers consider a more nuanced approach to the Guernsey air bridge? Bearing in mind there are very limited infection rates in Guernsey, did the Council of Ministers consider retaining a seven-day test for those people returning from Guernsey, or did you feel it was absolutely necessary to impose this sudden closure on people’s circumstances, where they had 270 already arranged carefully to travel, both from Guernsey to the Isle of Man and in reverse? Does the Chief Minister think that perhaps the Council of Ministers could have been more nuanced in this regard?
The Speaker: Chief Minister to reply.
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275 The Chief Minister: Thank you, Mr Speaker. I thank the Hon. Member for his question because yes, we did think about that. We did think could we do a seven-day test for those coming back, just from Guernsey, but we moved to 14 days on the advice from our medics. That is the gold standard. There was concern about the increase. The 14 days is seen as the gold standard. Once Guernsey had it in the community, the advice was 280 that we could not treat them separately from UK residents, and therefore it had to be 14 days. All of us were looking at ways of helping those people from the Island who had gone away and then found themselves in the unfortunate position that they have to isolate for 14 days. I am sorry it has happened to them. It could have happened to me when I went there with my wife a few months ago. It was a risk that everyone knew was there. We had said we would have to pull it, if 285 there was a case. We hoped it would never happen. Sadly, it has happened. Fortunately, whilst I feel every disappointment for the circa 120 people affected, because we made the decision the minute we knew the cases had gone over five, we were able to ensure that the large number who would have been affected were not impacted. It was a tough decision, but we were advised that we could not treat one differently from the 290 other, it was better to do the 14 days, and that is the advice that we took, but it was a very difficult decision.
1. Questions for Oral Answer
Questions 1.1, 1.2 and 1.4 deferred to next week’s sitting
The Speaker: Hon. Members, we now turn to our Question Paper. As previously stated, Questions 1, 2 and 4 will be held over to next week.
HOME AFFAIRS
1.3. Minimum unit price for alcohol – Introduction plans
The Hon. Member for Ramsey (Mr Hooper) to ask the Minister for Home Affairs:
What plans he has to introduce a minimum unit price for alcohol?
The Speaker: I therefore call on the Hon. Member for Ramsey, Mr Hooper, to ask Question 3, 295 please.
Mr Hooper: Thank you, Mr Speaker. I would like to ask the Minister for Home Affairs: what plans he has to introduce a minimum unit price for alcohol? 300 The Speaker: I call on the Minister for Home Affairs to reply.
The Minister for Home Affairs (Mr Cregeen): Thank you, Mr Speaker. I am pleased to be able to inform the Hon. Member for Ramsey that a Licensing Bill is currently 305 being drafted and it will include a provision to allow my Department to introduce minimum pricing
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for alcohol. The intention is to consult on the principles of the Bill commencing in November, with the target of introducing the Bill into the House of Keys by January 2021.
The Speaker: A comprehensive Answer, Minister – it stunned everyone. (Laughter)
INFRASTRUCTURE
1.5. DoI-constructed houses – Maintenance policy
The Hon. Member for Arbory, Castletown and Malew (Mr Moorhouse) to ask the Minister for Infrastructure:
What the Department’s policy is for the maintenance and improvement of the houses they have constructed in the last 10 years?
310 The Speaker: Question 5. I call on the Hon. Member for Arbory, Castletown and Malew, Mr Moorhouse.
Mr Moorhouse: Thank you, Mr Speaker. I would like to ask the Minister for Infrastructure: what is the Department’s policy for the 315 maintenance and improvement of houses they have constructed in the last 10 years?
The Speaker: I call on the Minister for Infrastructure to reply.
The Minister for Infrastructure (Mr Baker): Thank you, Mr Speaker. 320 I would like to thank the Hon. Member for Arbory, Castletown and Malew for his Question. I can confirm that all the Department’s public sector homes for rent are the subject of regular stock condition reviews, with older stock being given the most scrutiny in terms of investment needs. Any everyday operational maintenance requirements, i.e. reactive maintenance, are demand 325 led through tenants’ reported faults as when they occur. This reactive maintenance activity, when combined with the planned cyclical and day-to-day asset management requirements, such as gas boiler servicing or repairs identified in relation to stock turnover between tenants, forms the maintenance policy for all the Department’s stock, regardless of age. Should there be more significant repairs identified on newer stock, this will be investigated to ascertain if they are latent 330 defects, contractual liabilities or, in the case of certain first-time buyer homes, whether NHBC warranties apply. Finally, for programmed repairs and maintenance, the Department uses whole-life costing and cyclical replacement frameworks for items such as heating systems, window and door renewals and roof works. These are planned over the projected lifespan of a property. They are collated 335 into future investment programmes and accounted for financially within the Department’s five- year capital programme, which is, in turn, also subject to annual review. Thank you.
The Speaker: Supplementary question, Mr Moorhouse. 340 Mr Moorhouse: Thank you, Mr Speaker, and thank you, Minister. In terms of the current programme, it is interesting that there is the emphasis on older property. Some of the properties, such as those in Janet’s Corner, which are almost 10 years old,
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are starting to look rather tired. When will updates take place to ensure they are returned to the 345 premier standard that they were quite recently? That was a huge investment in the south and they are very visible when passing the houses on that estate. Thank you.
The Speaker: Minister to reply. 350 The Minister: Thank you, Mr Speaker. We do have plans for some of the properties on Janet’s Corner, as some are now older than 10 years. The Hon. Member for the area has indicated his view that the exteriors are starting to look tired. There may be some elements of day-to-day maintenance, cleaning, etc., but looking 355 more widely, the plans for the estate include a rolling programme of capital works, which is planned. Those include exterior decoration and replacement of the timber fencing around the older houses. Because it represents quite a significant capital outlay, the programme has been divided into two separate contracts for improvement. The first is currently out to tender via the Government 360 portal, and the Department anticipates finishing the works in stage one within this current financial year. The second half of the improvements are planned for next year’s Budget and those are known as ‘Janet’s Corner Refurbishment Phases 1 and 2’, which are both in the capital programme.
365 The Speaker: Supplementary question, Mr Hooper.
Mr Hooper: Thank you very much, Mr Speaker. I wonder if the Minister would be able to comment on whether or not the Department of Infrastructure’s housing stock applies the same maintenance allowance in terms of budgetary 370 spend that is applied to local authorities. Local authorities obviously are restricted as to the amount of money that the Department will provide them to help maintain their properties. I am wondering if similar restrictions are in place for the Department itself.
The Speaker: Minister to reply. 375 The Minister: The Hon. Member’s word ‘restriction’ … I presume he is referring to the allowances that are built into the rent payments. I am quite happy to come back and respond to him fully with details of the financial aspects of the Department’s maintenance programme in that respect.
1.6. Bus Vannin night owl service – Friday night plans
The Hon. Member for Ramsey (Mr Hooper) to ask the Minister for Infrastructure:
What plans he has considered for a Friday night owl service (a) from Ramsey to Peel; and (b) from Ramsey to Douglas via Peel?
380 The Speaker: Question 6. I call on the Hon. Member for Ramsey, Mr Hooper.
Mr Hooper: Thank you, Mr Speaker. I would like to ask the Minister for Infrastructure: what plans has he considered for a Friday night owl service from Ramsey to Peel and from Ramsey to Douglas via Peel?
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385 The Speaker: I call on the Minister for Infrastructure to reply.
The Minister for Infrastructure (Mr Baker): Thank you, Mr Speaker. The night owl network has successfully operated since the bus network review in 2012, running on a Friday night/Saturday morning and on a Saturday night/Sunday morning, with departures at 390 approximately 0015 hours on the three principal routes from Douglas to Port Erin, Douglas to Peel, and Douglas to Ramsey. These services are outside the subvention for socially necessary services and must cover their costs, which is why the fare rate of double the normal day fare is charged. It has been considered on several occasions if these routes should be extended to also cover the Peel to Ramsey corridor. If this would require an extension of depot opening hours, it is 395 unlikely the costs would be covered. However, the night-time economy has developed, and at busy times, such as the TT and Christmas periods, later journeys have been provided on the core network. This has allowed the corridor to be tried on an experimental basis. This last summer, a later journey was provided from Douglas and Peel to Ramsey, with encouraging numbers carried north of Peel. The 0115 hours departure has already been advertised in the current timetable for 400 the Christmas period, and the opportunity is being taken to trial a journey from Douglas at 0015 hours – Peel at 0053 hours – to Ramsey, with a return service from Ramsey at 0025 hours to Peel and Douglas.
The Speaker: Supplementary question, Mr Hooper. 405 Mr Hooper: Thank you very much, Mr Speaker. I am not really sure what I heard there; I think the Minister just described the current bus timetable to us. The Question I am really asking the Minister is in terms of supporting the night- time economy in Ramsey, especially during this difficult time, and whether any consideration has 410 been given to extending what he referenced as the December night … [Inaudible] whether he has considered extending that throughout the current period and beyond, to make it actually part of the more regular timetable, as opposed to just something that gets put on every once in a while. Thank you.
415 The Speaker: Minister to reply.
The Minister: Thank you, Mr Speaker. The Hon. Member raises a very interesting point. There is no doubt that the night-time economy has grown in centres such as Peel and Port St Mary. I am aware of the increased 420 passenger numbers Bus Vannin is carrying from Port St Mary back into Douglas, and in Ramsey in particular there is a burgeoning night-time economy. That seems to have been a post-lockdown development, which is very positive, coming out of that situation, and, interestingly, it seems to be more people at that time of the night growing the patronage of these outside-Douglas areas and then potentially travelling back into Douglas. It does seem to be indicative that the pattern of 425 demand is changing. The Department does constantly monitor demand and potentially the success this summer could lead to a repeat next summer, although clearly we need to be cognisant of the border situation, as to whether the pattern that we experienced over the summer was a reflection of the fact that people were not travelling off Island as much as they would have done in previous years. 430 The Hon. Member will be aware that the major timetable rewrite occurs in March, so when that timetable is published the intention is for it to cover the 12-month period from March through to Christmas 2021, and that will be the period when we consider perhaps a more progressive service to be provided at the later times of the evening or early mornings. The service which was reinstated in September, post the end of the COVID period of lockdown, was essentially 435 reverting to the core timetable that had been in place from last March.
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The Hon. Member makes a very good point. It is something that we need to look at, provided that services can be commercially viable given the financial pressures on the bus service. So, we will look at it, and any change would come forward in the March timetable.
440 The Speaker: Supplementary question, Mr Hooper.
Mr Hooper: Thank you, Mr Speaker. I wonder if the Minister would accept that trading conditions are quite difficult right now for a lot of local businesses, especially those in hospitality in the night-time economy. In light of the 445 encouraging numbers that he talks about and the surprising amount of take-up of the service, does he really think that waiting until next March is a sensible decision to make?
The Speaker: Minister to reply.
450 The Minister: I think the Hon. Member for Ramsey makes a fair point. There is a difficult balance to be had, in planning bus services, around the operational implications and the cost of providing additional services. Clearly, there is drivers’ scheduling and bus operational scheduling that need to be brought into the consideration, and we do need to make sure that we are able to deliver the service on a very reliable basis. Clearly, it is something that I am happy to take away 455 and look at again. We are obviously not too far off the Christmas period, so it will be interesting to see what the patronage of those services is over Christmas. I am a passionate believer in the value of a good public bus service, as I know many Members of this Hon. House are, and I would like to see the service developed to better meet the needs of the population of the Isle of Man, not just for the night-time economy but also for our day-to-day 460 commuting, particularly as we grapple with climate change challenges. Public transport is one of the key tools that we have in our armoury to reduce emissions from vehicles and get people travelling in a more climate-friendly way. I am very happy to look for opportunities to develop the service. If we can do that sooner than March, I am very happy to do that as well. 465 The Speaker: Supplementary question, Mr Peake.
Mr Peake: Thank you, Mr Speaker. Would the Minister agree that it would be better to respond to events and to the current 470 climate landscaping of the business and residential needs, rather than just waiting for March to come around, for a calendar event?
The Speaker: Minister to reply.
475 The Minister: Yes, I think I have probably already … That was the impression I was trying to get across in my answer to the Hon. Member for Ramsey, but I will quite happily reiterate, Mr Speaker. Obviously, we have got to go through a structured process to determine what the way forward is. It has to be evidence based. We have some evidence from the patronage of the additional 480 services that worked over the summer period. I am very happy to look to grow the service provision, provided we can make it economically viable for the service to be delivered, and that needs to be firmly looked at because it is a commercial service and it needs to enhance the Department’s financial position, not detract from it. With that proviso, I absolutely agree with what the Hon. Member has said.
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POLICY AND REFORM
1.7. Gas Regulatory Agreement 2015 – Consumer regulation after termination
The Hon. Member for Douglas Central (Mr Thomas) to ask the Minister for Policy and Reform:
What gas consumer regulation will be in place after the termination of the 2015 Gas Regulatory Agreement; and if he will make a statement about the protection (a) afforded in each Manx Gas customer contract; and (b) arising from the 2015 Gas Regulatory Agreement after termination?
485 The Speaker: Question 7. I call on the Hon. Member for Douglas Central, Mr Thomas.
Mr Thomas: Thank you, Mr Speaker. What gas consumer regulation will be in place after the termination of the 2015 Gas Regulatory Agreement, and will the Minister for Policy and Reform make a statement about the protection 490 afforded in each Manx Gas customer contract and arising from the 2015 Gas Regulatory Agreement after termination?
The Speaker: I call on the Minister for Policy and Reform to reply.
495 The Minister for Policy and Reform (Mr Harmer): Thank you, Mr Speaker. I do feel a little like I am haunted by Banquo’s ghost with questions like this from my predecessor, who has been so intrinsically linked with the work done since 2019 on negotiating a new regulatory agreement with Manx Gas and who probably knows more detail than my key officers. 500 Turning to the Question, now that notice of termination has been given on the 2015 Gas Regulatory Agreement, which ceases on 31st December, the Office of Fair Trading may carry out an investigation into gas prices under the Fair Trading Act. The Office of Fair Trading has supplied me with a copy of the Manx Gas customer contract, which I can supply to Hon. Members. Section 3 of the standard terms and conditions covers a consumer’s right to cancel their contract. 505 I did advise in another place that I am pushing hard to bring legislation into the Branches to enable statutory regulation as soon as I am able. Will this be in place for 1st January? Well, I have received a clear message from this House about the need to make a clear and resounding case to seek permission to suspend Standing Orders in order to accelerate any readings. However, I am committed to moving this statutory legislation on as quickly as possible. Hon. Members will also 510 have received, last week, a copy of the heads of terms agreement for a voluntary regulation regime, which, if approved by Tynwald, would come into effect from 1st January 2021. Mr Speaker, the Council of Ministers is committed to ensuring that Manx Gas customers have robust protection in future. Whether that is by a voluntary regime or a statutory regime will ultimately be a decision for Hon. Members. 515 The Speaker: Supplementary question, Mr Thomas.
Mr Thomas: Thank you, Mr Speaker. I appreciate the compliment from the Minister and I also welcome and congratulate the 520 Minister on the successful negotiations, it seems, and also his commitment in respect of statutory regulation. Given that the only obligations the OFT has are the ones he referenced in the Gas Regulatory Agreement, does the Minister agree that the gas consumer has and has always had all the consumer rights under other parts of the legislation – the Fair Trading Act, the Consumer
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525 Protection Act and other legislation which the champion of consumer rights, the Office of Fair Trading, has available to it? Furthermore, does the Minister agree that the fact that Manx Gas has its gas distribution network pursuant to its duty as a public gas supplier under section 1 of the Gas Regulation Act 1995 means that all the rights and obligations arising from this 1995 Act and the Gas Regulations 530 made under it, as well as the Public Gas Supply Code made in it, and Manx Gas’s customer contract documents, whether they are referencing that legislation or otherwise, are and have always been in place, for instance, in support of things like regulating for consumers full statements, tariffs, quality and charging?
535 The Speaker: Minister to reply.
The Minister: Thank you. There is quite a lot in that supplementary question. That is my understanding, but I will come back to Members to clarify.
540 The Speaker: A further supplementary, Mr Thomas.
Mr Thomas: Thank you, I appreciate that, it is really helpful. I am pleased to work with the officers in terms of that answer. Does the Minister agree that the survival clause of the Gas Regulatory Agreement, clause 16, 545 means inter alia clause 8, the change post-procedure clause, survives termination of the gas agreement so that the agreement can be changed? Furthermore, does the Minister agree that under Schedule 4 of the 2015 Gas Regulatory Agreement, any over-recovery which results in a regulatory adjustment should be repaid to customers equally over the following three years by adjusting the standing charges by the 550 variance, with this variance allocated across Manx Gas to Manx Gas’s customer base, even though the 2015 agreement has been terminated?
The Minister: Thank you. You are going into a bit of a technical question. Also, you have used the word ‘over-recovery’ – it can be under-recovery. Obviously I will come back to the Hon. 555 Member with the detail on it.
ENTERPRISE
1.8. Production of medical cannabis – Legislative framework
The Hon. Member for Douglas South (Mrs Christian) to ask the Minister for Enterprise:
If he will make a statement on progress with the legislative framework for production of medical cannabis?
The Speaker: We turn to Question 8, and I call on the Hon. Member for Douglas South, Mrs Christian.
Mrs Christian: Thank you, Mr Speaker. 560 I would like to ask the Minister for Enterprise: if he would make a statement on progress with the legislative framework for production of medical cannabis?
The Speaker: I call on the Minister for Enterprise to reply.
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The Minister for Enterprise (Mr Skelly): Gura mie eu, Loayreyder. 565 I thank the Hon. Member for her Question – actually, her very first Question, so thank you indeed. It is very timely, as last Friday our Department launched a consultation to seek feedback from interested parties on details, standards and regulations that have been drafted in support of a potential framework underpinning cannabis-derived products for export. It is important to stress that the intent of this framework is to facilitate potential opportunities 570 for new economic activity on the Island, and I want to stress that the domestic market for prescribing and any potential recreational use of cannabis are completely separate subjects. We hope to hear from a range of on- and off-Island investors, farmers and businesses interested in this particular sector during the consultation period, as well as other relevant stakeholders involved in the standards applicable to controlled substances. 575 Our objective is to facilitate, through a world-class regulatory structure, a new cannabinoid cultivation and processing industry for export, whilst safeguarding the Island’s reputation, the health and safety of our community and our commitment to encourage sustainable economic activity in harmony with our natural resources. Bringing a brand new sector to the Island does have its challenges, particularly in a market 580 which is highly regulated around the world and is subject to United Nation conventions on what can and cannot be allowed when it comes to controlled substances. Our intention is to bring the necessary regulations to December’s sitting of Tynwald for approval and I look forward to bringing those final proposals in due course and would encourage anyone with specific interests in this area to review the consultation online and provide 585 comments, where appropriate. Gura mie eu.
The Speaker: Supplementary question, Mrs Christian.
590 Mrs Christian: Thank you, Mr Speaker. Thank you for that statement. This consultation addresses only issues related to an export industry, as he said. It does not consider any changes to domestic legality of prescription medicinal cannabis, or the legality of non-medical use of cannabis in the Isle of Man. The consultation does not consider relative activities for the domestic sale or consumption of cannabis-derived products. 595 Can the Minister advise the House if they will start a framework for domestic sale of cannabis?
The Speaker: Minister to reply.
The Minister: Gura mie eu. 600 I thank the Hon. Member for her supplementary question, and yes, our role and responsibility has always been around the creation of the economic activity here. This is a new potential sector that has a significant benefit in terms of investment, in terms of jobs and exchequer benefit. The issues with regard to the local domestic market and recreation are different subjects altogether and therefore are responsible in other colleagues’ Departments. 605 The Speaker: Supplementary question, Mr Perkins.
Mr Perkins: Thank you, Mr Speaker. The Minister is known for his rapid response to various economic opportunities. (Mr Thomas: 610 Hear, hear.) Why has this taken so long? I am aware that this has been raised early in this administration, and the progress seems to be a bit like a tortoise on a Zimmer frame to get this very important medical assistance for people who have … pain relief, the fact that some of them actually go against the law to get this type of relief. Would the Minister care to comment on that?
615 The Speaker: Minister to reply.
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The Minister: Gura mie eu, yes. I thank the Hon. Member for his question and he is absolutely right, we would have liked to have brought this forward much quicker. However, as I highlighted in the original Answer, this actually is quite a complex area, introducing a new sector that requires to be regulated, has UN 620 conventions and the stakeholders are far and wide. We have a number of Departments internally and we have had external interest with regard to the UK Home Office because we are talking about export. Clearly there is a strong interest there, so we have general support from Government, I would say, to bring this forward. We are at the final stages and we hope that now we can accelerate things and bring it forward 625 to December Tynwald, but I will commit to giving Members a briefing in advance of that.
EDUCATION, SPORT AND CULTURE
1.9. Postgraduate loans – Number of applications
The Hon. Member for Arbory, Castletown and Malew (Mr Moorhouse) to ask the Minister for Education, Sport and Culture:
How many students applied for postgraduate loans in each of the last three years?
The Speaker: Question 9. I call the Hon. Member for Arbory, Castletown and Malew, Mr Moorhouse.
Mr Moorhouse: Thank you, Mr Speaker. 630 I would like to ask the Minister for Education, Sport and Culture: how many students applied for postgraduate loans in each of the last three years?
The Speaker: I call on the Minister for Education, Sport and Culture to reply.
635 The Minister for Education, Sport and Culture (Dr Allinson): Thank you, Mr Speaker. There have been 202 postgraduate applications over the past three years: 63 in 2018-19, 57 in 2019-20, and 82 in 2020-21 so far. Of these applications, 178 have applied for tuition fee loans: 52 in 2018-19, 51 in 2019-20, and 75 in 2020-21 so far. Postgraduate students can request a loan from the Department to cover their universal tuition 640 fees contribution, which is payable by all students. This forms part of the application process, and personalised loan agreements are issued to postgraduate students via email. Thank you, Mr Speaker.
The Speaker: Supplementary question, Mr Moorhouse. 645 Mr Moorhouse: Thank you, Mr Speaker, and thank you, Minister. Has the Department the information in terms of how many applicants were successful? And has any research been done into whether the size of the loans limits the number of students applying for postgraduate study and limits their choices? 650 The Speaker: Minister to reply.
The Minister: Thank you, Mr Speaker.
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I do not have any figures in terms of how successful the postgraduate courses were, I am afraid, 655 because we do not normally collect that data. In terms of research into the repayment of the tuition fee loans, we do monitor this quite carefully from the Department and obviously work with Treasury in terms of our budget on this. Thank you.
660 The Speaker: A further supplementary, Mr Moorhouse.
Mr Moorhouse: Thank you, Mr Speaker, and thank you, Minister. Under the current rules, can exceptions be made to enable larger loans to be provided so that entry to better courses and universities is possible, particularly for those wanting to transfer to 665 courses like law?
The Speaker: Minister to reply.
The Minister: Thank you very much, Mr Speaker. 670 At the moment, the tuition fee loan is restricted to cover the universal tuition fee contribution. However, I have asked the Department to review our Student Award Regulations to look at more imaginative ways that we can encourage people either to further take up undergraduate studies or postgraduate studies. Thank you.
1.10. Remote learning – Minimum standards
The Hon. Member for Ramsey (Mr Hooper) to ask the Minister for Education, Sport and Culture:
If he will publish the minimum standards, or the equivalent, which are expected of schools in respect of delivering remote or off-site learning; and if he will make a statement?
675 The Speaker: Question 10. I call the Hon. Member for Ramsey, Mr Hooper.
Mr Hooper: Thank you, Mr Speaker. I would like to ask the Minister for Education, Sport and Culture: if he will publish the minimum standards, or the equivalent, which are expected of schools in respect of delivering remote or off- 680 site learning, and if he will make a statement?
The Speaker: I call on the Minister for Education, Sport and Culture to reply.
The Minister for Education, Sport and Culture (Dr Allinson): Thank you, Mr Speaker. 685 On 23rd March, all schools closed except for vulnerable children and those of key workers. The sudden switch to remote learning required planning and adaptation to a quickly changing situation on our Island and uncertainty about the duration of the lockdown. At the beginning of July, I requested a review be carried out of remote learning and teaching provided by schools during the course of the health emergency. Throughout July and August 2020, 690 the education service undertook surveys and interviews, supported by a range of qualitative and quantitative data and observations of practice during the pandemic. At all stages of this review, views and information were sought from relevant professionals from across the spectrum of education on the Isle of Man, along with the views of key stakeholders, in order to provide a constructive set of recommendations for schools, service providers and the education service.
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695 The 10 recommendations made by this review reflect both the requirement to ensure remote learning provision for pupils is of a consistent high quality, and also to support schools, pupils and parents/carers, should we encounter a similar situation in the future. Responding to both staff and parent feedback, the review and subsequent guidance documents cover the consistency, quality and volume of lessons, consistency of feedback from 700 teachers to pupils, expected levels of pastoral support, consistent procedures all schools will follow in the event of a future full or partial school closure, and clarity over the mediums for delivery of remote learning. The full review into remote learning during COVID-19 was published last week. Responding to review recommendations 1 to 5, the Island guidance and protocols have been developed by 705 Department officers and school leaders, with the involvement of teacher unions. These now ensure parents and school communities know what to expect for their children, should schools be required once again to switch to a blended or fully remote form of provision in the future. Thank you, Mr Speaker.
710 The Speaker: Supplementary question, Mr Hooper.
Mr Hooper: Thank you very much, Mr Speaker. I would like to thank the Minister for undertaking that review and for publishing that document, and for his quite helpful Answer. There is a lot to unpick there, so this might take a bit 715 of time. My first question for the Minister is his remote learning recommendations deal solely with another outbreak of COVID and there is no reference in there to children who, for other reasons, may not be able to attend school, for example if they are self-isolating or if they are off sick or if they are suspended or for whatever reason are unable to physically attend the school building: 720 can he confirm whether this remote or blended learning that is being set out in this review will cover all students who are required to be off-site when they are being educated?
The Speaker: Minister to reply.
725 The Minister: Thank you, Mr Speaker. I thank the Hon. Member for Ramsey for his question, which I think is extremely valid. As I said, this was a review into the provision of remote learning during the COVID pandemic, but I think he is absolutely right that it opens up the opportunity for using remote learning and blended learning in a range of other situations. 730 He is also right that, unfortunately, on our Island there are a small number of pupils who cannot attend school for other reasons, particularly in terms of their own ill health, and we, as an education service, strive to provide education through other means for them. The use of remote learning obviously opens up opportunities to do this in a new and imaginative way and link them into the existing learning structure that would be carried out in their schools, so one of the key 735 points of this review is setting up a forum of remote learning experts who can further develop a range of techniques, a range of provisions that then can be used across the board, because it is important that we use remote learning and we embed information technology in learning in general on our Island. Thank you. 740 The Speaker: Supplementary question, Mr Hooper.
Mr Hooper: Thank you very much, Mr Speaker. I would like to thank the Minister for that helpful answer. The document talks about schools 745 setting clear expectations on how regularly work should be undertaken and what kind of work should be undertaken, and also talks very clearly about schools undertaking monitoring of the
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quality of the remote learning that they themselves provide. I would like to know why the Department is abdicating responsibility for quality assurance and handing it over to the schools to say they will provide the work and they will quality assess the work that they are providing. 750 I would also like to get a better understanding of why there does not appear to be any mention of engaging with students and parents in developing some of these remote learning provisions.
The Speaker: Minister to reply.
755 The Minister: Thank you, Mr Speaker. Again, whether you use remote learning or conventional learning in a classroom, the prime responsibility for the quality of that comes down to the teacher and the head teacher of that school, and what we are trying to do through this review is draw similarities with remote learning and classroom learning and have the same clear criteria for both. 760 In terms of the Hon. Member’s other question, we have tried to take on board the feedback from pupils and parents that we gained through a questionnaire, but we have also made it quite clear that the guidelines in this review are going to be reviewed themselves on a regular basis. As we further develop these over the coming months, we are quite happy to get that feedback from parents, particularly parent governors, because one of the aspects of the education service that I 765 am very keen to try to develop is local governance of schools, increasing the responsibility, autonomy, of governing boards, and so using school governors to key into this whole process will be extremely useful to make sure that all key stakeholders have input into future guidelines. Thank you.
770 The Speaker: Supplementary question, Mrs Barber.
Mrs Barber: Thank you, Mr Speaker. Given that the feedback I have had over the learning for those students who cannot attend school has at best been mixed, I wonder whether the Hon. Minister of the Department of 775 Education, Sport and Culture would undertake to speak to those parents who have been undergoing this for such a long period of time, and the challenges they have had, and talk to them about their feedback to allow that to follow in. There seems to be a very clear similarity in terms of the need for students, whether they be self-isolating for two weeks or whether they be unable to attend for a considerably longer period of time, and I would like his assurance that he will talk 780 directly with that small cohort of parents who have been so directly affected by this.
The Speaker: Minister to reply.
The Minister: Thank you very much, Mr Speaker. 785 In answer to the Hon. Member, I am more than happy to take that feedback. One of the things we try to do through the Inclusion and Safeguarding service is monitor the range of educational opportunities that are provided for those students who cannot make it into the conventional classroom, to try to provide them as much support as possible but also make sure that we have that link with their schools as well. The appointment of a virtual head teacher recently is furthering 790 that development, in terms of those young people who may not be able to re-attend school for a considerable period of time, for whatever reason but particularly in terms of illness. I am more than happy to take that feedback from those parents and pupils and key that into the service to try to create a much better educational service for all our children. Thank you. 795 The Speaker: Supplementary question, Mr Thomas.
Mr Thomas: Thank you, Mr Speaker.
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I thank the Minister for engaging so fully in this very difficult topic of remote learning, which 800 has vexed professionals and everybody for decades. Does the Minister accept that there might be economies of scale in the provision of remote learning, and it might be better, at this stage of considering possibilities, to consider whether the Island opts into the facilities and resources from elsewhere, other than just on the Island, for remote learning, given the economies of scale, because the resources in developing this material 805 are so substantial?
The Speaker: Minister to reply.
The Minister: Thank you very much, Mr Speaker. 810 Again, I would like to thank the Hon. Member for his point, because it is very valid. We need, as an educational community, to look at best practice from around the world. One of the interesting developments during the pandemic was the sharing of best practice, on Island but also from off Island. Certainly we had regular updates for teachers using resources from particularly the United Kingdom, because they often use the same curriculum as us, and things like recorded 815 lessons from other schools in the United Kingdom and using those on the Isle of Man as a resource. What we have tried to do, though, is make absolutely certain that we have a local solution to this issue. One of the parts, in particular in terms of secondary schools, is planning a programme that is of similar proportion to the core teaching pupils would receive in schools, with flexibility for different subjects. Giving the autonomy for teachers and head teachers to select those 820 resources wherever they can find them and then bring those and customised them for teaching their own children is an extremely useful aspect of remote learning and something that certainly we are going to continue to pursue. In terms of the teachers we have, we have some excellent teachers on this Island who deal with remote learning and who have links internationally, whether it be through Google, Apple or 825 other educational programmes, and they have been key in terms of developing this review – and, I hope, key in terms of further developing remote learning and blended learning offerings that we can give to our children. Thank you.
830 The Speaker: Supplementary question, Mr Robertshaw.
Mr Robertshaw: Thank you, Mr Speaker. As other questions have indicated, I appreciate the engagement that the Minister is showing today in pursuing this important subject. 835 I just want to offer a question representing the interests of the class teacher. If it is the case that these matters revert to the individual schools, then it must be the case that it also reverts to the individual class teacher and that what we are talking about here, as opposed to remote learning when all the children are remote … It is a completely different world when a class teacher has to both engage fully and wholly with the physical class in front of him or her, but it is a whole 840 new dynamic to also parallel that for the remote-learning child, because the class teacher will, of course, be concerned that that remote learning parallels as far as possible what is being taught in the classroom. Does the Minister therefore appreciate that this is quite a challenge from the point of view of a class teacher’s ability to provide that degree of resource? Thank you. 845 The Speaker: Minister to reply.
The Minister: Thank you very much, Mr Speaker. Again, thank you for a very interesting contribution. When you look back at what we went 850 through during the lockdown, there were some unfair comparisons between schools that had
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pupils in the classroom and were teaching remotely and those schools that closed down completely and were purely remote. He is quite correct that, as a teacher, it is very hard to do two jobs at once at the best of times, but to do this you need the extra resources and that extra ability to deal with often conflicting demands. 855 On the Isle of Man we were quite clear that we needed hub schools to stay open for our vulnerable children and those of key workers. That system worked incredibly well and teachers showed a remarkable range of adaptations and flexibility to keep it going, but at the same time they could not then be teaching online or doing it remotely, and so what we need to do is develop a far more resilient service which right from the outset has those resources that teachers can use 860 to provide remote learning, but do that in a way that they can also continue to teach physically rather than virtually and develop those skills. But he is quite correct that teachers, during this difficult period, had to rearrange their timetables very quickly and also share responsibilities very quickly to provide what was a very good offering for most children on the Isle of Man. Thank you. 865 The Speaker: Supplementary question, Mrs Barber.
Mrs Barber: Thank you, Mr Speaker. I want to thank the Minister for his commitment to engage with all of the various parties 870 relating to this. He touched before on Inclusion and Safeguarding, and in fact I think they have tried on some occasions to work very closely with the parents to seek solutions. I just wonder what he can do to ensure that schools do not feel that they are put under such intense pressure that, on some occasions that I am aware of, they have tried to abrogate their responsibility for the child by 875 encouraging the parent to withdraw the child from the school roll. How do you prevent that when the schools do not have the ability to deliver this within their current structures and ensure that ultimately the children and the teachers are supported to get this right?
The Speaker: Minister to reply. 880 The Minister: Thank you very much, Mr Speaker. I think the Hon. Member makes a very valid point. When you look, not just on our Island but across the British Isles, at those parents who end up home schooling their children, sometimes it is done for philosophical, religious … or a passionate belief that it is the right thing to do, but in 885 other cases it is education by default because they feel that they have not been supported by the education service properly and therefore have taken it upon themselves, often as a last resort, to home educate their children. I am sorry for that, that we have failed those families and those children as an education service. What we need to do is put the resources into schools and give teachers the resources to be 890 able to support those pupils who may be struggling with coming into school. From an education service point of view we are committed to that through the Inclusion and Safeguarding team, but also, as I said, with the creation of other ways of providing teaching, whether it be remote learning, blended learning or actually the role of the virtual head teacher in terms of co-ordinating that care. I think we can do much better. 895 Thank you, Mr Speaker.
The Speaker: Final supplementary, Mr Hooper.
Mr Hooper: Thank you very much, Mr Speaker. 900 A number of times throughout the document that has been published there are comments along the lines of ‘there is a need for a set of Island minimum expectations for the frequency and volume of remote learning provided … there is a need for a set of Island minimum standards in
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respect of quality’. It then goes on to say that the review recommends this should be established through consultation with school leaders, teacher unions and other relevant stakeholders, by 905 which I assume it means students and parents. I would like to ask the Minister why none of the 10 recommendations that came out of the report actually replicate some of these very clear recommendations that are contained in the text of the report itself.
The Speaker: Minister to reply. 910 The Minister: Thank you very much, Mr Speaker. This review is exactly that, it is a review, and I hope it will be used as a springboard for further development of services. What we are trying to do at the moment is make sure that all schools, all teachers have the 915 resources, the training and the ability to expand how they provide learning, whether that be virtual in the online space, whether it be remotely by using work books for those children who do not have access to the internet or perhaps do not need access to the internet, particularly in primary schools. What we will be doing further to this review is working with teachers, working with parents 920 and pupils to do better, to develop as the use of information technology embedded in learning develops. So, this is not the end of a process, it is just the beginning of a process, and some of those minimum requirements will develop alongside a full consultation with all the people who are expected to provide that learning, and especially those people who receive it. Thank you.
HEALTH AND SOCIAL CARE
1.11. Mental Health – Waiting times
The Hon. Member for Douglas South (Mrs Christian) to ask the Minister for Health and Social Care:
How long a person had to wait from a first appointment with their GP to receiving treatment from a mental health professional in each of the last four years; and how this compares with waiting times in the United Kingdom?
925 The Speaker: We turn to Question 11. I call on the Hon. Member for Douglas South, Mrs Christian.
Mrs Christian: Thank you, Mr Speaker. I would like to ask the Minister for Health and Social Care: how long a person had to wait from 930 a first appointment with their GP to receiving treatment from a mental health professional in each of the last four years, and how this compares with waiting times in the United Kingdom? Thank you.
The Speaker: I call on the Minister for Health and Social Care to reply. 935 The Minister for Health and Social Care (Mr Ashford): Thank you, Mr Speaker. The Department of Health and Social Care has not historically collected waiting time standards from first appointment with their GP to accessing mental health services, so we are not able to compare directly with waiting times in the United Kingdom.
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940 Data relating to maximum waiting time for follow-up post-psychiatric in-patient discharge has, however, been collected on a monthly basis since April 2017. The Isle of Man target has been five days’ maximum waiting time, which was reduced to three days from September 2020, compared to a seven-day target applied by the English NHS. The Isle of Man yearly average percentage compliance since April 2017 has been as follows for post-psychiatric in-patient discharge follow- 945 up: 2017-18, 80.25%; 2018-19, 86.5%; 2019-20, 79.9%; March 2020 to August 2020 98.4%; and since September 2020, when we introduced the three-day follow-up target, it has been 100%.
The Speaker: Supplementary question, Mrs Christian.
950 Mrs Christian: Thank you for those statistics. It is very rewarding and very positive to see that increasing up to 100%. The Chief Minister said in his address to the nation last week that the mental health of our nation has been put under extreme strain. Can the Minister give us assurances on what steps or strategy he has been taking to maintain these waiting times? 955 Also, in light of the Chief Constable’s report, can the Minister comment on persons using the police mental health professionals by being sectioned under the Mental Health Act, possibly as a quicker route, to shortcut waiting times, to see a mental health professional? Thank you, Mr Speaker.
960 The Speaker: Minister to reply.
The Minister: Thank you, Mr Speaker. I would not want people to be sectioned as a way of shortcutting waiting times. Sectioning is a defined legal process and there for a very good reason. I do not think it is there to try and move 965 things along; I think that would be an abuse of process in relation to sectioning. In relation to engagement with the Police, I fully endorse everything that was said in the Chief Constable’s report. I would like to thank the Police for working with us to ensure that this service could be put in place. It has been running for two years now and it has been highly successful having that engagement, and it has actually, in many cases, stopped things escalating and going 970 further, having those mental health professionals on the ground. In relation to access to services and the comments in the Chief Minister’s State of the Nation, it is something that we are acutely aware of, both myself and the Chief Minister – it is a bit of a passion of ours around mental health – and there have been concerns that with people being separated from family, with us having had the lockdown period, people’s mental health will have 975 declined. The Mental Health team, during the pandemic, were geared up to do virtual appointments with people. They were still taking referrals in where it was severe, they were still doing face to face, so Mental Health has been gearing up to be able to deal with this. And of course we must not forget, as well – it is a good chance for me to mention it again – there is also the online mental health support that people can access as well, themselves, to try and help, both for 980 adults and for children.
The Speaker: Supplementary question, Mr Hooper.
Mr Hooper: Thank you very much, Mr Speaker. 985 I am just curious if the Minister would be able to tell us why this waiting time data is not available along with all the other waiting time information that the Department publishes. It is very reassuring to hear that some of the targets he has talked about are being met – quite regularly, by the sound of things – which is in stark contrast to waiting times across the rest of the Health Service on the Isle of Man, so I wonder if the Minister would care to comment on that as 990 well.
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The Speaker: Leaving out the second part – on the first part, Minister to reply.
The Minister: Thank you, Mr Speaker, I will go with your guidance. 995 In relation to this, I have said in this Hon. House, and also in another place, many times that one thing DHSC has not been great at over the years is collecting data. That is something we are now changing, and in fact later on the Order Paper we have the clauses stage of the Manx Care Bill, creating a separate arm’s-length body, and one of the interesting things is Manx Care will be able to collect measurable data. Mental Health has been no different in areas of that. The datasets 1000 collected over the years have changed, which means that they are not necessarily comparable, but we are now building up a bank of data, not just around waiting times but also different elements of service delivery, so that we can have that robustness of data and that transparency for people to be able to see where the services are going forward, and that includes mental health.
1005 The Speaker: Supplementary question, Mr Shimmins.
Mr Shimmins: Thank you, Mr Speaker. I was slightly surprised by the percentages which were quoted by the Health Minister, and of course they do not actually relate to the Question that was put, and so, just to build … because 1010 they are for discharge follow-ups … Many of my constituents are very concerned about the long wait to see a mental health professional in their time of need. So, to build on my hon. friend Mr Hooper’s question, why is the length of time people are waiting for mental health support not being measured? When will this start to be measured, and when will it be published? And why do we have to wait for Manx Care? This should be a key metric for our Health Service. 1015 The Speaker: Minister to reply.
The Minister: Thank you, Mr Speaker. It is a key metric, I fully agree with Mr Shimmins, and that is why the data is starting to be 1020 designed and collected, but the question was about comparison with the United Kingdom, and in order to have something to compare, you have got to have robust, long-term data. That long-term data does not exist at the moment, but that is why, across all of our services – so it is not just Mental Health – we are looking to build that robustness in, so that we do have the transparency, we do have the comparators, and, as I said in my original Answer, we actually will have an 1025 opportunity to be able to compare.
The Speaker: Supplementary, Mr Shimmins.
Mr Shimmins: Thank you, Mr Speaker, and I am grateful for the Health Minister’s response. 1030 I still go back to my original question: why do we have to wait for Manx Care? Why can’t we do this more quickly and start publishing this information monthly, so there is some transparency about the long waiting times in our Mental Health Service? Thank you.
1035 The Speaker: Minister to reply.
The Minister: Thank you, Mr Speaker. I do not recollect saying we did have to wait for Manx Care. I actually stated that the Manx Care Bill is later on the agenda and one of the things that Manx Care will be doing is introducing 1040 systems around that, but we are already, in relation to mental health, looking at what we can do to be able to get those systems in place to be able to record waiting times, so that we can publish them as soon as the data is available.
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Mr Thomas: Hear, hear. 1045 The Speaker: Supplementary question, Mr Peake.
Mr Peake: Thank you, Mr Speaker. Would the Minister agree that there are other alternatives, rather than just going to the Mental 1050 Health Service? I think the term that is used in the Department is ‘community treatment’. There are a number of outlets, and it would be great if the Department would actually work together with these. Would the Minister agree that that is the future?
The Speaker: Minister to reply. 1055 The Minister: Thank you, Mr Speaker. I am most happy to agree with my hon. colleague for Douglas North, Mr Peake. We have some fabulous community organisations out there. I am a very firm believer – and again we will be talking about this, I am sure, when we discuss the clauses of Manx Care – that we should not be 1060 thinking we can do everything from the centre. We should be engaging with community organisations. Many of them are closer to the people on the ground, and they are also able to respond a lot quicker to the needs of individuals as those needs adapt and change. So, I am more than happy to agree with my hon. colleague, and that most definitely is something the Department needs to drive forward. 1065 Mr Thomas: Hear, hear.
The Speaker: Final supplementary, Mr Shimmins.
1070 Mr Shimmins: Thank you, Mr Speaker. I am delighted to hear from the Minister that the Health Service is collecting the data and that we do not need to wait until Manx Care. What I did not hear was when that data will start to be published, and I would be grateful if he could advise that, given the seriousness of the issues that people are facing and the importance that Hon. Members are placing on this matter. 1075 The Speaker: Minister to reply.
The Minister: Thank you, Mr Speaker. As soon as it is in a format that is able to be published, it will be published.
OFFICE OF FAIR TRADING
1.12. Manx Gas – Tariff and standing charge
The Hon. Member for Douglas Central (Mr Thomas) to ask the Chairman of the Office of Fair Trading:
Pursuant to his Answer in August, whether Manx Gas has given written notice under clause 3.2 of the 2015 Gas Regulation Agreement of its intention to reduce either the gas tariff or standing charge?
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1080 The Speaker: We turn to Question 12. I call on the Hon. Member for Douglas Central, Mr Thomas.
Mr Thomas: Thank you, Mr Speaker. I beg leave to ask the Chair of the Office of Fair Trading: pursuant to his Answer in August, 1085 whether Manx Gas has given written notice under clause 3.2 of the 2015 Gas Regulation Agreement of its intention to reduce either the gas tariff or standing charge?
The Speaker: I call on the Chairman of the Office of Fair Trading to reply.
1090 The Chairman of the Office of Fair Trading (Mr Perkins): Thank you, Mr Speaker. The Answer is the same as previously given to the Hon. Member for Douglas Central. Under clause 3.2 of the existing agreement for the regulation of the gas market in the Isle of Man, Manx Gas is obliged to provide written notice to the Office of Fair Trading not less than eight weeks prior to any change in the tariff or standing charges. I can confirm that Manx Gas has not provided 1095 written notice to the Office of Fair Trading, pursuant to clause 3.2 of the agreement, since October 2019.
The Speaker: Supplementary question, Mr Thomas.
1100 Mr Thomas: Thank you, Mr Speaker, and to the Chair for confirming what I believe to be the case. Was the Chair and was the board of the OFT surprised, then, when Manx Gas announced a 13%, or so, reduction in gas tariffs, given that obligation under the 2015 gas agreement? Will the Office of Fair Trading will be in touch with Max Gas to make sure it understands its obligations under paragraph 3.2 of the agreement, because there has been that substantial gas 1105 price reduction, there has been a well-negotiated reduction in the ROCE, and reduced charges from the MUA in process? Does the Chair agree with me that Manx Gas ought to have given notice if it respected at all the Office of Fair Trading as its regulator under the 2015 Gas Regulation Agreement?
1110 The Speaker: I call on the Chairman to reply.
The Chairman: Thank you, Mr Speaker. Yes, the Office of Fair Trading was a bit surprised that we did not hear from Manx Gas. However, they have been – as the Hon. Member is well aware – negotiating directly with the 1115 Cabinet Office and one would assume that that would have been relayed back down the line, but as yet I am not sure whether the Cabinet Office have had confirmation of this. In due course I think it probably will be confirmed, but at the moment we have not had confirmation.
The Speaker: Supplementary question, Mr Thomas. 1120 Mr Thomas: Thank you. Does the Chair agree with me that his officers should be in touch with Manx Gas to remind them of their obligations under the 2015 Gas Regulation Agreement, to try to secure the tariff reduction regardless of what happens next in the negotiations? 1125 Moreover, does the Chair agree with me that it would be good for the Office of Fair Trading to secure, as per the agreement, a description and all the information which can be reasonably required to validate the calculations used by Manx Gas to offer that tariff reduction to the Manx Gas consumers?
1130 The Speaker: Chairman to reply.
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The Chairman: Thank you, Mr Speaker. Yes, I would agree with the Hon. Member. At the present time, of course, we are in a bit of a limbo situation until the new agreement kicks in, and we are still keeping a very close eye on what 1135 Manx Gas are doing in relation to the old agreement by making sure, with Treasury, we validate all their figures that are coming back to us.
The Speaker: Supplementary question, Dr Allinson.
1140 Dr Allinson: Thank you, Mr Speaker. Would the Chair of the Office of Fair Trading agree with me that the remit of the Office of Fair Trading is very much about the way consumers are treated on our Island and is not the full regulation of an international utility company that happens to be providing gas to our customers on the Isle of Man? 1145 The Speaker: Chairman to reply.
The Chairman: I thank the Minister for his question, and I absolutely will agree. One of the problems with the existing agreement is that the Office of Fair Trading was viewed as a regulator 1150 and also as a customer’s champion, and indeed, while the last agreement was in place, part of the agreement was that the Office of Fair Trading could not undertake a price investigation, which shows how flawed the last agreement was. Thank you, Mr Speaker.
1155 The Speaker: Supplementary question, Mr Thomas.
Mr Thomas: Thank you, Mr Speaker. Interestingly, though, the Director of the Office of Fair Trading, in the Annual Report 2016-17, actually described the Office of Fair Trading as ‘the regulator for the supply of gas, which continues 1160 to oversee the operation of Manx Gas Ltd’, so it is helpful clarification that we now have. Primarily the Office of Fair Trading is a customer protection regulator, does the Chair agree, and it was wrong to describe it as the regulator? More importantly, will the Chair accept that we are not in limbo, in terms of the 2015 Gas Regulation Agreement; the Gas Regulation Agreement applies until 31st December 2020? 1165 And would the Chair undertake, in front of the Members of this House, to actually pressure Manx Gas to confirm, with eight weeks’ notice, its intention to reduce the gas tariff?
The Speaker: Chairman to reply.
1170 The Chairman: Yes, I agree with the Hon. Member, and I am happy to confirm that that will be the case.
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Procedural – Questions 1.13-1.14 deferred to next sitting; Question 1.15 to be answered in writing
The Speaker: I think that brings us to the conclusion of Questions for Oral Answer today. I am conscious that people have been looking at me quizzically about 11 o’clock, and I should just remind Hon. Members and others that the hour allotted for Oral Questions starts at the end of 1175 the Urgent Question. The time for Urgent Questions is not included within the hour. Mr Thomas.
Mr Thomas: Thank you, Mr Speaker. Could I carry forward Questions 13 and 14 into the next sitting of the House of Keys, please? 1180 The Speaker: Indeed. Mr Hooper, a Written Answer, or carry over?
Mr Hooper: Written is fine. 1185 The Speaker: We turn to Questions for Written Answer, and those will, of course, be circulated.
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2. Questions for Written Answer
OFFICE OF FAIR TRADING
1.15. Legal measures for alcohol sales – Introduction of changes
The Hon. Member for Ramsey (Mr Hooper) to ask the Chairman of the Office of Fair Trading:
What plans he has to introduce changes to the legal measures for alcohol sales?
The Chairman of the Office of Fair Trading (Mr Perkins): Between 28th February 2017 and 31st March 2017, the OFT held a public consultation on proposals for changes to the legal quantities for sales of intoxicating liquor. 1190 The consultation was driven by repeated concerns about the continued availability of approved (‘stamped’) measuring equipment, which is used to determine measures of gin, rum, vodka, whisky and brandy sold by retail for consumption on the premises at which it is sold, in addition to the need to promote sensible drinking and facilitate events such as wine tastings and beer festivals. 1195 The opportunity was also taken to consider the issue of ‘free pouring’, i.e. pouring into capacity measures that have not been ‘stamped’, which, in the OFT’s opinion, presents a risk of selling inaccurate measures. It is a criminal offence to sell inaccurate measures and, in the OFT’s opinion, the risk of selling short measures or measures in excess through ‘free pouring’ would be significantly reduced by using approved measuring equipment. 1200 This would not only help to ensure that consumers get what they pay for but would also help to avoid instances of consumers having drunk more than they believed they had, for example, in the context of drink-driving. The conclusions reached by the OFT following the consultation included the following. • The OFT is in favour of introducing a new metric quantity, namely 25 ml, to supersede the 1205 current imperial quantity, namely 1/5 gill, for sales of gin, rum, vodka, whisky and brandy, with a lead-in time of at least six months from the date on which the requisite secondary legislation comes into force. • Both of the proposals concerning wine were driven by the need to promote sensible drinking and facilitate events such as wine tastings. The respondents were generally in favour of 1210 the proposals and these will be progressed if the OFT can ensure ‘consistency in respect of the quantity provided’. The said proposals were that fortified wines, e.g. sherry, port and madeira, should be sold in the glass in quantities of 50 ml or 70 ml or multiples of either of those quantities and that sales of wines (other than fortified wines) in the glass in quantities of less than 75 ml should be deregulated. 1215 • Further consideration may need to be given to the issues surrounding ’free pouring’ given the changes in drinking practices, however, it is a criminal offence to sell inaccurate measures and the OFT remains of the opinion that the risk of committing an offence by selling short measures and/or measures in excess is increased where businesses choose to determine measures by ‘free pouring’ rather than by using ‘stamped’ measuring equipment. 1220 These conclusions still frame the position of the OFT but the proposals have not yet been progressed due to competing priorities. An update was given to the Licensing Forum upon request in July 2020. The OFT indicated that there is no timeline in place but it will be carrying out a review of our consumer safety and weights and measures legislation towards the back end of this year or early next year and this matter will 1225 be high on the agenda.
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TREASURY
2.1. IoM median income – Household composition
The Hon. Member for Arbory, Castletown and Malew (Mr Moorhouse) to ask the Minister for the Treasury:
If he will make a statement on the household composition of those households with a collective income below 60% of median income?
The Minister for the Treasury (Mr Cannan): The most comprehensive and up-to-date source of data that Government has regarding the financial circumstances of households is the 2018-19 Household Income and Expenditure Survey, undertaken by the Economic Affairs Section of the Cabinet Office. While the sample this uses is sufficient to meet that survey's primary 1230 requirements, it does not include certain types of households in the numbers necessary to provide reliably precise information on the matter raised in the Hon. Member's Question. For this reason, I regret to say that no such statement can be issued at this time. Furthermore, I would like to draw to the Hon. Member’s attention that the Assessor of Income Tax does not hold income data by household as taxpayers are assessed on an individual basis or 1235 as jointly assessed couples in the case of married couples and civil partners. In addition, non- taxable income sources such as various social security benefits including Employed Person’s Allowance and Attendance Allowance would not be included in any income details and there are also a number of individuals who are not required to submit an annual tax return on the grounds that the Assessor is satisfied their income is consistently below the personal allowance thresholds.
2.2. July 2020 budget debate – Job support and greener future progress
The Hon. Member for Arbory, Castletown and Malew (Mr Moorhouse) to ask the Minister for the Treasury:
Following his commitment to support up to 1,000 jobs and to take the Island forward to a greener, cleaner future in the July 2020 budget debate, how he will achieve this and what progress he has made in the last three months?
1240 The Minister for the Treasury (Mr Cannan): A detailed update on the actions taken to protect our economy was made to Tynwald on 20th October 2020. The immediate focus of the Economic Recovery Programme is a six-to-12-month stimulus programme, which will invest in projects implementing measures to support the Isle of Man’s economy as appropriate to the situation. This includes initiatives to accelerate capital projects, 1245 retraining and upskilling our people and stimulating local demand. There is also a medium-term work stream which focuses on ‘Our Future’, which will work toward creating up to 1,000 new jobs over the next five years. As well as identifying the longer term economic strategy for 2021 and beyond. An Economic Recovery Group, comprised of political Members from the Treasury, the 1250 Department for Enterprise and Cabinet Office, has been formed and reports directly to the Council of Ministers. One of the key workstreams for this group is entitled ‘Our People’ which seeks to create up to 1,000 training, education and work placement opportunities.
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My Statement to Tynwald gave details of the activities currently underway to deliver a strong economic recovery. 1255 The principles of the Economic Recovery Programme are as follows: Principle 1: Protects business and employment where it may otherwise be threatened due to COVID-19 over the next nine months (from July 2020); Principle 2: Provides employment opportunities for those individuals who would otherwise be unemployed due to the impact of COVID-19, for up to 12 months (from July 2020); 1260 Principle 3: Provides meaningful work and training for those individuals who would otherwise be unemployed due to the impact of COVID-19, which promote future employment opportunities befitting the Island’s needs; Principle 4: Provides a significant boost to economic activity where it may otherwise be subdued by COVID-19, which protects business, employment and Government revenues in 1265 the next nine months (from July 2020); Principle 5: Ensures the Island is prepared to take advantage of economic opportunities that present themselves in the short to medium-term as the economy recovers from COVID-19 (nine to 18 months: from July 2020); Principle 6: Helps determine the economic strategy and activity for the longer term 1270 (18 months +: from July 2020). So far we have 21 initiatives either approved, underway or in formation, signalling £12.1 million in additional economic funding. Importantly we also have schemes, support, and further initiatives ready to implement should they be required. 1275 Further information on the Economic Recovery Programme, the work to date and the associated dashboard can be viewed at https://covid19.gov.im/economic-recovery-programme/
POLICY AND REFORM
2.3. Gas Regulation Act 1995 – Drafting instructions for amendment
The Hon. Member for Douglas Central (Mr Thomas) to ask the Minister for Policy and Reform:
What drafting instructions have been issued (a) to amend the Gas Regulation Act 1995 and (b) to provide for statutory gas regulation in any other way; and when these drafting instructions were issued?
The Minister for Policy and Reform (Mr Harmer): The Cabinet Office has worked in partnership with Her Majesty’s Attorney General’s Chambers throughout negotiations on a possible voluntary agreement with Manx Gas Limited. 1280 Consequently and concurrently over the summer, Chambers have been drafting a Bill to amend the Gas Regulation Act 1995. I intend to bring this Bill to the House as soon as I am able.
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2.4. Equality and Road Traffic legislation – Mobility devices on buses
The Hon. Member for Douglas Central (Mr Thomas) to ask the Minister for Policy and Reform:
What primary and secondary legislation under the Equality and Road Traffic legislation covers accessibility and construction and use of vehicles, with special reference to buses; and how the Confederation of Passenger Transport Code of Practice aimed at regularising the carriage of mobility scooters and other mobility devices on buses (a) has been and (b) will be applied on the Island?
The Minister for Policy and Reform (Mr Harmer): The Equality Act 2017 replaced the Disability Discrimination Act 2006, the provisions of which were fully repealed in January 2020 by the Equality Act’s more comprehensive disability provisions. The Road Traffic Legislation 1285 (Amendment) Bill 2020 will contain an enabling power to create accessibility regulations. A commitment was given to Tynwald in July 2020 to bring forward secondary legislation for access to public transport vehicles by way of regulations. The construction and use of various vehicles in the Isle of Man, including buses, is governed through the Road Vehicles (Construction, Equipment and Weights) Regulations 2012 1290 (SD No. 0326/12) and the Road Vehicles (Maintenance and Use) Regulations 2012 (SD No. 0323/12), which also deal with Whole Vehicle Type Approval. All vehicles registered in the Isle of Man need Whole Vehicle Type Approval and a Certificate of Conformity to the required standards. Buses that are registered in the Isle of Man must be certificated as being built to the European Commission for Europe of the United Nations (UN ECE) Regulation No 107. 1295 The UN ECE Regulation provides a fully comprehensive, detailed specification for the production of a vehicle, which includes the technical requirements and test methods for the whole vehicle type approval. Bus Vannin buses are built to UN ECE protocols. The bus companies represented by the Confederation of Passenger Transport operate approximately 21,000 of the 60,000 buses used on local bus and school bus services in the UK. 1300 The Department of Infrastructure is a member of the Association of Local Bus Managers, which has over 160 members, representing 60 companies, a limited number of which have adopted the CPT code. The majority of UK operators have not adopted the CPT Code. The Department has not adopted the code and has no plans to adopt the code until its buses can safely carry mobility scooters.
EDUCATION, SPORT AND CULTURE
2.5. Remote learning provision – Quality assurance work
The Hon. Member for Ramsey (Mr Hooper) to ask the Minister for Education, Sport and Culture:
What quality assurance work (a) is being undertaken; and (b) is proposed in respect of remote learning provision in schools? 1305 The Minister for Education, Sport and Culture (Dr Allinson): All learning provision is firstly quality assured internally through schools’ own self-review and evaluation process. Remote, or distance learning in this regard is no different in that staff are held to account by their line managers for the quality of learning provided.
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1310 As well as school-based quality assurance of learning, all Island schools are subject to section 50 of the Education Act 2001 which empowers the Department to:
cause inspections to be made of every school and college at such intervals and to such standards as appear to it to be appropriate.
Once again, whether remote in nature or not, learning provision in general is quality assured through inspection of schools arranged by the Department. At present, as the Hon. Member will be aware, the Department is implementing some of the 1315 recommendations from the Beamans Report into DESC. One of these recommendations is to conduct a review of the process which supports quality assurance undertaken in the intervening period between statutory inspections, namely the School Self-Review and Evaluation (SSRE). Pending this review, SSRE is currently suspended to allow the review of the process and related procedures. 1320 During this interim period, the Department retains the power to cause inspections of all forms of learning (including remote or distance provision) whilst providing appropriate support and challenge to schools through the work of link advisers and other support services. A review of learning provision during the COVID-19 health emergency was requested and carried out over the summer months, and was published last week.
2.6. UCM Employees – Termination details
The Hon. Member for Douglas Central (Mr Thomas) to ask the Minister for Education, Sport and Culture:
How many staff left University College Isle of Man in each of the last two years, broken down by occupation; what their reasons were for ceasing their employment; and if he will make a statement?
1325 The Minister for Education, Sport and Culture (Dr Allinson): Twenty-six members of staff left UCM in the last two academic years; see reasons below by employment group rather than occupation as this could be identifiable data:
Employment Group Reason for leaving Total Lecturer PSC (Civil Servant, Manx Pay Manual Worker & Terms and Education Conditions Support Staff) Resignation – personal choice 14 7 7 End of Limited Term Appointment 1 1 Retirement (including ill health) 11 6 4 1 Total 26 13 12 1
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HOME AFFAIRS
2.7. IoM Constabulary – External inspection
The Hon. Member for Ramsey (Mr Hooper) to ask the Minister for Home Affairs:
When the last external, independent inspection of the Isle of Man Constabulary took place; who undertook it; and what the policy is on regular external inspection of the Isle of Man Constabulary?
The Minister for Home Affairs (Mr Cregeen): The last external inspection of the Isle of Man Constabulary was carried out in 2007 by Her Majesty’s Inspectorate of Constabularies. 1330 Prior to 2007 more regular inspections of the Constabulary were carried out; these were seen to be less necessary in recent times given the success of the Constabulary in carrying out the duties required of it and, furthermore, that the not inconsiderable cost of carrying out such inspections was seen to be better utilised on operational matters. There is therefore no specific policy on regular inspections. However, it has now been some 13 1335 years since the last inspection and although I am confident that the Isle of Man Constabulary provides an excellent service to our community, it is important to ensure that we have external assurance too. In this connection Hon. Members will be aware, from a recent press release, that the aforementioned inspection is to be undertaken by Her Majesty’s Inspectorate of Constabulary and 1340 Fire and Rescue Services and that the inspection will be carried out into both the Police and Fire and Rescue Services. As the Chief Minister recently indicated in his State of the Nation speech, once completed ‘these reviews will help inform the future structure of the Department of Home Affairs and functions beneath it’.
INFRASTRUCTURE
2.8. Ronaldsway Airport – Engagement of consultants
The Hon. Member for South Douglas (Mr Quine) to ask the Minister for Infrastructure:
How many UK consultants have been engaged by Ronaldsway Airport in the past two years; on what basis they were engaged; and what the scope was of their work?
The Minister for Infrastructure (Mr Baker): Outwith of consultants used within capital projects 1345 that make up part of a design team, please see the following Table 2.8A of UK consultants engaged by the Department at Ronaldsway Airport:
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Table 2.8A
Name of company Basis of engagement Scope Lemaurey Ltd Ad hoc prior to Sept 2020/ > Safety Regulation & Compliance formal basis since > Processes and Policy > Training & Competency > Safety Management System > Airport Publications Birdstrike Management Ltd Annual audit (regulatory) Birdstrike/wildlife risk assessment
APMC Ad hoc Airfield Operations training Total AOC Centrik Ad hoc Aviation Safety Management Pell Fricshmann Ad hoc (regulatory) Aerodrome Survey Guidance
Aerodrome Habitat Engineering Ad hoc Specialist Aerodrome habitat & grass management National Air Traffic Services Ad hoc Navigation Aids Assessment & Study QinetiQ Survey every 2 years Compass Base Assessment & calibration (regulatory)
2.9. Mobility scooter trial – Report
The Hon. Member for Ramsey (Mr Hooper) to ask the Minister for Infrastructure:
If he will publish the report for the recent mobility scooter trial; what it was that enabled the Department (a) to consider the outcomes of the trial and (b) to determine the success or otherwise of the trial; and what steps would be necessary in order for a scheme similar to the CPT Mobility Scooter code to be implemented on the Island?
The Minister for Infrastructure (Mr Baker): The testing of buses by one passenger with a mobility scooter was an informal trial and as such, there is no ‘formal’ report to publish. The outcome of the trial identified that whilst the passenger could get onto the bus, the scooter did 1350 not remain still during the journey. This means that it would have to be restrained. No restraint system is available. Additionally, in static tests, only one of the many Class 2 mobility scooters provided by a local supplier actually fitted on the bus. Even with that one design, use would have involved preventing other passengers using space allocated to them. The lack of restraints is at least in part due to the lack of a common standard across the mobility 1355 industry. For wheelchairs, including powered wheelchairs, a prescribed design for both size and weight is internationally agreed. Buses are manufactured to ensure that wheelchairs meeting this standard fit safely on the bus and are restrained so that the passenger can safely travel. In contrast, there is no equivalent framework for mobility scooters. The Confederation of Passenger Transport Code of Practice for the use and acceptance of 1360 mobility scooters on low floor buses is a voluntary one, which has been adopted by the big five bus operators in the UK. Their risk assessments will have determined that Class 2 mobility scooters can be safely carried on the routes and vehicles that they operate, without the need for a restraint system. The ability to restrain the scooter during the journey would be necessary for a scheme similar 1365 to the code to be adopted on the Island. Industry advice is that buses equipped with such a system are three to five years from production. The Department has already committed to buying buses that are certified to carry the scooters once they are available. In the meantime the Department continues to welcome passengers using the appropriate powered or unpowered wheelchairs.
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2.10. DoI housing – Revenue and expenditure
The Hon. Member for Onchan (Ms Edge) to ask the Minister for Infrastructure:
How much (a) general rates revenue; and b) housing rental income was received; how much was held in (c) general reserve; and (d) housing reserve; and how much was spent on (e) non- housing-related expenditure; and (f) housing-related expenditure; and to what extent housing- related expenditure was based on general rate revenue; each category broken down by local authority for each year between 2015 and 2020?
The Minister for Infrastructure (Mr Baker): The information, both historic and current, that 1370 the Hon. Member seeks is held within the Tynwald Library and is readily available for review.
2.11. Public transport and mobility devices – Accessibility of buses
The Hon. Member for Douglas Central (Mr Thomas) to ask the Minister for Infrastructure:
What is his policy for purchase and adaptation of buses to enable users of mobility devices including mobility scooters to travel by public transport; and if he will make a statement about the accessibility of buses which have been purchased since the Equality Act came into force?
The Minister for Infrastructure (Mr Baker): Bus Vannin vehicles, purchased both before and since the Equality Act came into force, are constructed and certified to UN ECE Regulation 107 standards. This is enshrined in Manx law through Whole Vehicle Type Approval. If an operator seeks to modify a bus, those modifications must be approved before use and the bus must 1375 continue to comply with UN ECE Regulation 107. Current Isle of Man legislation only allows certification and registration of vehicles that meet international standards. UN ECE Regulation 107 standards allow for the safe carriage of prescribed wheelchairs on buses. The prescribed wheelchair has both dimensional and weight limitations which are critical for safe handling and secure and safe travel of the wheelchair user and other passengers. 1380 The standards do not include the carriage of mobility scooters at this time. With no standards regarding their carriage, there is currently no legally safe basis for the carriage of mobility scooters on buses. Research is currently taking place to agree and develop standards for mobility scooters such as those that exist for wheelchairs that are prescribed by size and weight, with common anchor 1385 points that can then be built into vehicles. The Department is committed to ensuring safe accessibility to the bus service for its passengers. It provides seating with extra leg-room for the most common passenger disability, arthritis, and ensures that the placement of hand rails, important for passengers with mobility and/or balance issues, is in accordance with recommended practice. 1390 The Department also ensures that its buses accommodate passengers with mobility aids where its dimensions and weight are prescribed in the standards to which its buses are built and certified. As there are no international standards for the carriage of mobility scooters, buses which comply with the international standards and certifications when carrying mobility scooters are not currently being built. The Department has already committed to purchasing buses that are 1395 certified to carry mobility scooters once they are available. The Department’s buses can readily carry passengers with a range of mobility issues; it merely requires them to select a mobility aid that can safely be used on a bus.
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2.12. Bus Vannin – Sale and current use of buses
The Hon. Member for Douglas Central (Mr Thomas) to ask the Minister for Infrastructure:
To which bus operators Bus Vannin has sold buses in the last five years; whether any of those vehicles are being used to carry any type of mobility scooters; and whether and how the buses have been modified to enable such carriage?
The Minister for Infrastructure (Mr Baker): Bus Vannin has sold buses to the following operators in the past five years: 1400 In 2014 3x VDL East Lancs to Maghull Coaches; In 2014 2x Dennis East Lancs to Ensign Bus; In 2016 5x Dennis East Lancs to Tyrers Travel; In 2019 3 x Mercedes Citaro buses to Centrebus; In 2019 4x Wrights StreetLites to D & G Bus, Stoke on Trent; 1405 In 2019 2x Wrights StreetLites to Centrebus; In 2020 5x Volvo Wrights to Yellow Bus. The Department has been made aware that Centrebus will carry Class 2 mobility scooters, having adopted the Confederation of Passenger Transport voluntary code of practice for the use and acceptance of mobility scooters on low-floor buses. 1410 Bus Vannin vehicles are constructed and certified to UN ECE R107 standards. These standards do not at this time include the carriage of mobility scooters. The Department understands that no modifications have been made to vehicles sold to Centrebus but that is entirely a matter for the operator.
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Order of the Day
3. STATEMENT
Education Bill Committee – Statement by the Chairman
The Speaker: Item 3 is a Statement by the Chairman of the Education Bill Committee. I call on 1415 Mr Moorhouse.
The Chairman of the Education Bill Committee (Mr Moorhouse): Thank you, Mr Speaker. On 30th June 2020, this House referred the Education Bill to a Select Committee consisting of five Members – namely, Mrs Corlett, Mr Hooper, Mr Shimmins, Mr Thomas and myself – to include 1420 a review of the Beamans report, and report by October 2020. I was subsequently appointed Chairman of the Committee at our first meeting. When the Council of Ministers announced they had commissioned the review, it was anticipated that the review would be submitted to the Council in July. In the event, the review was published on 23rd September, leaving a shorter time for the Committee to consider the 1425 implications and take evidence on it. I therefore must apologise to you for being unable to deliver a report today. By way of an update, the Committee has received written evidence from a wide range of stakeholders, and since the review was published we have taken oral evidence from the Department of Education, Sport and Culture. Further, we intend to take evidence from the authors 1430 of the report on Friday. We then intend to review our evidence and work on the report to lay before you, which will be as soon as practically possible. Thank you, Mr Speaker.
The Speaker: Thank you.
4. BILLS FOR SECOND READING
4.1. Human Tissue and Organ Donation Bill 2020 – Second Reading approved
Mr Perkins to move:
That the Human Tissue and Organ Donation Bill 2020 be read a second time.
1435 The Speaker: We turn to Bills for Second Reading, and the first is the Human Tissue and Organ Donation Bill 2020. I call on Mr Perkins to move.
Mr Perkins: Thank you, Mr Speaker. Hon. Members, I have been motivated to bring this Bill before this Hon. House as I am aware 1440 of a number of people on the Island who have had kidney, heart, cornea and other organ transplants and it has completely changed their lives. I am also very much aware of the relatives who have lost loved ones and have had to make the difficult decision to donate their organs at a time of family trauma.
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Daniel Boyde was a young Manx lad who tragically lost his life following a car crash in 2007. His 1445 mum, Diane Taylor, bravely gave permission for his organs to be donated, which helped four other people. Since that time, Diane has worked tirelessly to keep the subject of organ donation in the public mind, raising enough money to fund a memorial garden in Noble’s Hospital which commemorates all donors from the Island, including one of our own, a former colleague, Martyn Quayle. Consequently, with your agreement, I propose the unofficial title of the Bill should be 1450 Daniel’s Law. (A Member: Hear, hear.) The consultation received a total of just under 300 responses. The vast majority of these were very supportive. England changed to an opt-out system last May; Scotland and Wales have also adopted opt-out systems. A couple of years ago, Junior Tynwald voted unanimously for an opt- out system. 1455 The main aims of the Bill are to modernise the law with regard to consent of organ donation, enable more organs to become available to save and improve lives, clarify the process and reduce the stress for donor families, and also facilitate the seamless transfer and use of organs retrieved on the Isle of Man to be used for transplantation in another place. The legislation is known as a ‘soft opt-out’ option: everyone over the age of 18 will be 1460 considered opted in, unless they opt out of organ donation. The UK NHS Organ Donor Database have kindly agreed that they will record Isle of Man residents’ wishes, and, importantly, it will not cost the Isle of Man anything. Vitally, it is a quick and convenient one-stop shop for the medical team to ascertain your wishes. Hon. Members, time is of the essence when organ donation is taking place. 1465 The easiest way of making your wishes known is to go on the UK NHS Organ Donor Database and register your decision. You can opt out with no stigma attached. You can opt in and choose which of your organs you wish to donate, by ticking the relevant boxes. Some people wish all their organs to be donated; other people do not want their eyes donated, so they just do not tick that box. You can also phone in, on the dedicated helpline, if you do not have access to a computer. 1470 In any event, with this legislation, your family will always be involved before donation takes place. Currently, the question that is asked is ‘Will you give permission for your loved one’s organs to be donated?’ If the legislation goes through, Hon. Members, the question will be different. It will be along the lines of ‘Did you ever hear your loved one say they did not wish their organs to be donated?’ as indeed the donor may have changed their mind the week before and told their 1475 relatives, in which case donation would not take place. This takes the stress out of having to give permission at the time of trauma. Rather, it is a confirmation of a loved one’s wishes. It is important to register and discuss what you want to happen with your family, so your decision is clear and so that they and you know that your decision will be honoured. If you have not expressed your decision to opt out of donation and are not in an excluded group, it will be 1480 considered that you consent to donate your organs. So, even if you do not record that you want to be an organ donor, it is important to let your family know what you want. This Bill does not facilitate the donation of what is sometimes termed ‘exotic transplant’, such as faces or whole limbs. That is for another time and another place. As of yesterday, a total of 13,638 Island residents had already logged their decision on the UK 1485 NHS Organ Donor Database, and that is around 15% of the Island’s population. A total of 133 people have completely opted out. Some people have said to me, ‘I’m not going to let the Government snatch my organs!’ Hon. Members, that is just not the case. This Bill will facilitate organs you no longer need going to a worthy recipient and will certainly be life changing or life giving. 1490 The legislation places a requirement on the DHSC to provide Tynwald with an annual report, and also to publicise the benefits of organ donation on or around 15th March each year. Coming on to the human tissue part of the Bill, following discussions with the Isle of Man Health Service professionals in organ donation and retrieval, it became clear that the Isle of Man human tissue legislation is currently sadly lacking. The Health managers, including the mortuary and path 1495 lab managers, were keen to update the legislation, highlighting the need for a legal framework in
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which they can work. So, the Bill, on the human tissue side, modernises all Isle of Man legislation regarding post mortems and tissue retained for other purposes. The legislation is a ‘Manxified’ Scottish version of legislation. Having liaised with the UK Human Tissue Organisation, it was clear that England is moving to the Scottish model, as it is considered 1500 better. The Bill recognises a child can give consent while alive. If not, a person with parental responsibility can give consent – that is for medical research, retention of organs and slides. If parents are not available, or are unwilling to deal with consent, a person who stood in a qualifying relationship with the child may give consent, and that is fully listed in section 5, in complete 1505 priority order. It makes provision for people unable to give consent. If the activity includes research or transplantation purposes, the person is deemed to have consented unless there is evidence to the contrary. It also authorises a qualified person to retain a body while enquiries are made. At present, there is no legislation for this. 1510 Surplus tissue may be disposed of as clinical waste. Urine and faeces contain human cells, and amputated limbs are also considered clinical waste. Hon. Members, we do not wish to go back to ask permission from the relatives to dispose of these things. Disposal of aborted foetuses is dealt with under the abortion legislation. The Bill also permits the analysis of a person’s DNA, if it is necessary for one of the excepted 1515 purposes, for example rape or domestic violence where the perpetrator has been killed and the victim wishes to find out more about the medical situation. This Bill gives the Isle of Man regulatory independence and it enables facility and personnel licensing without UK cost or interference. It authorises ‘the Department’ as the Cabinet Office and Director of Public Health, which all through the Bill are referred to as ‘the Department’, not to be 1520 confused with the Department of Health and Social Care, similar to separation of powers between parliament and the judiciary. Codes of practice will be modelled on the UK, through secondary legislation. Importantly, the Bill deals with religious relics and museum exhibits and also gives powers of search and seizure. 1525 Hon. Members, the Bill is a weighty piece of legislation. I would take this opportunity to thank the drafter and all the people who have given up many hours of their time, and members of the public who have contributed to it. I consider the Bill to be one of the most important pieces of social legislation that this administration will be bringing forward. Thank you, Mr Speaker. 1530 The Speaker: I call on the Hon. Member for Ramsey, Mr Hooper.
Mr Hooper: Thank you, Mr Speaker. I beg to second and reserve my remarks. 1535 The Speaker: Hon. Member for Ramsey, Dr Allinson.
Dr Allinson: Thank you very much, Mr Speaker. I would just like to thank the Hon. Member for bringing this Bill forward. He was quite clear in 1540 terms of its aims. One of those that he mentioned was the sometimes difficult conversations at the time of death of a loved one and having to broach the subject of organ donation with the family, and that is a difficult discussion to have, both from the family’s point of view but also the clinician’s point of view. Some of these people have died quite suddenly in a road traffic accident or similar occurrence, and, after trying to save that person’s life, to then turn round and talk about 1545 organ donation can be extremely difficult. What this Bill does is really champion those tenets of choice, autonomy and, above all, communication, to make sure that individuals have their choice respected, that their autonomy
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to either donate their organs or decide not to donate their organs is clearly stated and respected, but also that we have much clearer communication, not only between the medical profession and 1550 families but perhaps with each other, about what we would like to do if we were to die and what we would like to do to further other people’s lives. Organ donation is a life saver, and I have personally seen the benefits it can have for people on our Island who are struck particularly with liver disease, kidney disease, heart disease or lung disease, so I would just like to thank the Hon. Member for bringing this forward, but also for the 1555 compassionate way he has consulted on what can be quite a difficult subject to talk about. Thank you.
Mr Thomas and another Member: Hear, hear.
1560 The Speaker: I call on the mover to reply.
Mr Perkins: Thank you, Mr Speaker. I thank the Hon. Member for Ramsey for pointing that out. It certainly is the intention of the Bill to make life easier for everybody. We are very lucky on the Island that we do have a special 1565 nurse for organ donation, who is very compassionate. I do thank him for his observations. Hon. Members, I beg to move that the Human Tissue and Organ Donation Bill 2020 be moved.
The Speaker: The question is that the Human Tissue and Organ Donation Bill 2020 be read for a second time. All those in favour, say aye; against, no. The ayes have it. The ayes have it.
4.2. Medicines (Amendment) Bill 2020 – Second Reading approved
Mr Ashford to move:
That the Medicines (Amendment) Bill 2020 be read a second time.
1570 The Speaker: The next Item is the Medicines (Amendment) Bill 2020. I call on Mr Ashford to move.
Mr Ashford: Thank you, Mr Speaker. The purpose of this Bill is to amend the Medicines Act 2003, an Act that, amongst other things, 1575 seeks to regulate the trade in human medicinal products, from the licensing of the product itself so that it can be placed on the market, through to its manufacturing and distribution, including importation and exportation, and the selling or supplying of the product to the end user. In this regard, the Act is essentially enabling rather than prescriptive, with the Department having a statutory duty, under section 2, to make regulations to control, restrict, regulate or prohibit 1580 activities relating to the trade in human medicines. Regarding the sale, supply and administration of prescription-only medicines on Island, the Department has sought to regulate such activities by the Prescription Only Medicines (Human Use) Regulations 2005, which applied certain UK Statutory Instruments to the Island. However, it has come to the attention of the Department that simply applying this UK 1585 legislation does not go far enough to ensure that there are sufficient safeguards in place for the Island. This Bill will therefore take the steps necessary to remedy existing inconsistencies in the Island’s regulation of the retail sale or supply in circumstances corresponding to retail sale of prescription-only medicines and the administering of such medicines. The Bill does so by inserting
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into the Medicines Act provisions to prevent a person from selling by retail, or supplying in 1590 circumstances corresponding to retail sale, a prescription-only medicine, except in accordance with a prescription issued by an appropriate practitioner or a person administering it from doing so other than to themselves without being an appropriate practitioner, or under the direction of an appropriate practitioner. The Bill inserts this prohibition and creates an offence with the penalty being a fine or custody, depending on whether the offence is a summary conviction or a 1595 conviction on information. In summary, Hon. Members, this Bill does not affect any change in Department of Health and Social Care policy; it simply makes technical amendments to the Act to ensure that the regulation of the sale, supply and administering of prescription-only medicines operates in the Island as was originally intended. 1600 Mr Speaker, I beg to move that the Medicines (Amendment) Bill 2020 be read for a second time.
The Speaker: I call on the Hon. Member for Douglas Central, Mrs Corlett.
1605 Mrs Corlett: Thank you, Mr Speaker. I beg to second.
The Speaker: Hon. Member for Ramsey, Mr Hooper.
Mr Hooper: Thank you very much, Mr Speaker. 1610 It is a technical Bill, so a technical question for the Minister, as I know he enjoys these so much. He has just said that the Act prohibits the sale by retail offer or exposing for sale by retail offer and supply in circumstances corresponding to retail sale prescription medicines. Basically, you cannot sell prescription meds. But then the amendment goes on to say ‘but this does not apply to doctors and dentists’, so doctors and dentists can sell prescription medicines without a 1615 prescription. That is my reading of the Act. I hope that my reading of the Act is wrong, but that is what it looks like on the face of it, so I would be very grateful if the Minister could confirm that his intention is not to allow anyone to sell prescription medicines without prescription – and if he could double-check the wording in this Act to make sure that is it right. 1620 The Speaker: Mover to reply.
Mr Ashford: Thank you, Mr Speaker. The Hon. Member for Ramsey knows I love technical questions. My understanding is that it is 1625 not the case that doctors and dentists can sell on prescription medication, but I will guarantee that I will take it away and I will have it checked to be certain, because certainly the intention of this is the exact opposite. It might disappoint some out there, but we have no intention of doctors or dentists being able to sell prescription medication.
1630 A Member: Nearly got away with it!
The Speaker: Indeed. The question is that the Medicines (Amendment) Bill 2020 be read for a second time. Those in favour, please say; those against, no. The ayes have it. The ayes have it.
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5. LEAVE TO INTRODUCE
Private Member’s Bill to amend Council of Ministers Act 1990 – Item not moved
The Hon. Member for Garff (Mrs Caine) to move:
That leave be given to introduce a Private Member’s Bill to amend section 2(3)(b) of the Council of Ministers Act 1990; and for connected purposes.
The Speaker: Hon. Members, turning to Item 5, Mrs Caine has sent round an email to all 1635 Members, saying that, given the weight of other matters on the Order Paper, this Item is not to be moved today.
6. CONSIDERATION OF CLAUSES
6.1. Courts, Tribunals and Local Authority Procedures and Miscellaneous Provisions Bill 2020 – Consideration of clauses commenced
Mr Harmer to move.
The Speaker: We turn to the consideration of clauses of the Courts, Tribunals and Local Authority Procedures and Miscellaneous Provisions Bill 2020. I call on Mr Harmer to move.
1640 Mr Harmer: Thank you, Mr Speaker, and I thank everyone in this House for the Second Reading and First Reading last week. Turning to each of the clauses within the respective Parts of the Bill, with your permission, Mr Speaker, I wish to move clauses 1 and 2 together. Clause 1 of the Bill provides for the short title of the Act, should the Bill be passed. 1645 Clause 2 provides for the commencement of the resulting Act by Appointed Day Order, by the Council of Ministers. I beg to move that clauses 1 and 2 stand part of the Bill.
The Speaker: Mr Hooper. 1650 Mr Hooper: I beg to second and reserve my remarks.
The Speaker: I put the question that clauses 1 and 2 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. 1655 Clause 3, Mr Harmer.
Mr Harmer: Thank you, Mr Speaker. Clause 3 acts as an introduction to the subsequent clauses, which will all make changes to the Criminal Justice, Police and Courts Act 2007. 1660 I beg to move that clause 3 do stand part of the Bill.
The Speaker: Mr Hooper.
Mr Hooper: Thank you, Mr Speaker. 1665 I beg to second and reserve my remarks.
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The Speaker: I put the question that clause 3 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 4, Mr Harmer.
1670 Mr Harmer: Clause 4 repeals section 29 within the Act, as this no longer serves a purpose within the context of the changes being made. I beg to move that clause 4 do stand part of the Bill.
The Speaker: Mr Hooper. 1675 Mr Hooper: Thank you, Mr Speaker. I beg to second and reserve my remarks.
The Speaker: I put the question that clause 4 stand part of the Bill. Those in favour, please say 1680 aye; against, no. The ayes have it. The ayes have it. Clause 5, Mr Harmer.
Mr Harmer: Thank you, Mr Speaker. Clause 5 provides a new section 30, replacing the existing section 30 in its entirety with a more 1685 detailed provision. The new section sets out the manner in which eligible criminal proceedings will be directed to take place either via a live audio or video link, provides the guidance and interpretation connected with this process, and makes various key exemptions to its use – for example, a jury trial may not take place via a live link. 1690 The particular safeguards around the use of the live link relate to such use being in the interests of justice and that the parties to the proceedings are provided with opportunity to make any representations, such as objections to use of the live link. There seems to be a desire to place on a statutory footing a wider range of proceedings, which was also raised in the sitting in relation to children and family hearings. This is a matter which the 1695 Department of Home Affairs is actively working with the Attorney General’s Chambers to address properly by way of a legislative amendment to the Justice Reform Bill 2020, which would provide suitable provisions for this to take place. Whilst it might appear on the surface to be a simple matter to do so, this is not necessarily the case within the wider context of the Island’s existing law, which is why the amendment being devised will be brought once fully formed and robust. 1700 This does not prevent children and family hearings from utilising the live links presently until such a time as the provisions are placed on a statutory footing. I beg to move that clause 5 do stand part of the Bill.
The Speaker: Mr Hooper. 1705 Mr Hooper: Thank you, Mr Speaker. I beg to second and reserve my remarks.
The Speaker: I call on Mr Shimmins to move amendment 1.
1710 Mr Shimmins: Thank you, Mr Speaker. Hon. Members, this amendment underlines the principle of open justice, and open justice is a very important principle. Simply, people have more confidence in justice if it takes place in a public trial. A public trial counters conspiracy theories and concerns about establishment cabals. Open justice helps societal participation and preserves the free press and the independence of the 1715 media. If people read and hear about trials in the media, they are more likely to seek justice for their own tribulations.
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The use of video links in court proceedings is an understandable response to the pandemic, as video links can help courts to proceed whilst also managing infection risks. However, the key point is that expeditious courts should not contravene the principle of open justice. In the United 1720 Kingdom, similar safeguards were inserted into the UK Coronavirus Act 2020, in clause 85. Hon. Members, we must safeguard the open justice principle in the Isle of Man. It may be argued that it is unlikely that this would be compromised here, but we should not be complacent in any way. As such, I would encourage you to support this amendment. I have discussed the amendment with the Chief Registrar. He acknowledges that this is an 1725 important principle. The Chief Registrar also confirmed to me that the judiciary are committed to public hearings. There are some matters, as we have heard, including sensitive family hearings, where there are established protocols in place to safeguard individuals involved, I am not proposing any changes to these protective measures. I am also aware that there are some practical 1730 considerations. Hon. Members, there is a danger that we end up in a debate about how difficult it is to manage technology. We already had that debate on the Planning Committee, if you remember, during the summer. Those resisting change tend to overstate the technology challenges. The reality is that many countries around the world are, of course, facing similar issues. They simply deploy 1735 technology solutions to adapt and make the appropriate changes to regulations, so I do hope that we will not go down the technology deployment rabbit hole, as the amendment is worded ‘may’ rather than ‘must’. ‘May’ means that our Deemsters will be able to take the appropriate action if they need to. They will, I am sure, take account of the circumstances to ensure that the important principle of open justice is maintained. 1740 Hon. Members this is a critical principle, and I hope that it will underline our commitment to an open justice system. I beg to move the amendment standing in my name:
Amendment to clause 5 1. Page 11, after line 2 insert — ‘(21) The court may, in giving a live video link direction under this section direct— (a) that the proceedings are to be broadcast in the manner specified in the direction for the purpose of enabling members of the public to see and hear the proceedings; (b) that a recording of the proceedings is to be made in the manner specified in the direction for the purpose of enabling the court to keep an audio-visual record of the proceedings. (22) The court may, in giving a live audio link direction under this section direct— (a) the proceedings are to be broadcast in the manner specified in the direction for the purpose of enabling members of the public to hear the proceedings; (b) that a recording of the proceedings is to be made in the manner specified in the direction for the purpose of enabling the court to keep an audio record of the proceedings. (23) A direction under subsection (21) and (22) may relate to the whole, or to part, of the proceedings concerned.’
The Speaker: I call on the Hon. Member for Garff, Mrs Caine.
1745 Mrs Caine: Thank you, Mr Speaker. I rise to second the amendment for Mr Shimmins and I would like to commend him for bringing this. The principle of open justice should not be dismissed lightly. Justice has to be seen to be done, and, as the Hon. Member said, reducing that facility for the public to access court hearings results 1750 in conspiracy theories and a suggestion that justice is not being served. I would urge Members to support it. Thank you, Mr Speaker.
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The Speaker: Hon. Member for Arbory, Castletown and Malew, Mr Cregeen.
1755 Mr Cregeen: Thank you, Mr Speaker. As has been noted by the Minister for Policy and Reform in his recent communications to Members, the courts have never been closed. Even during the emergency, where, everywhere else, society was forced to shut down, justice continued and the courts continued to function. They sat with social distancing and live links in place, but access to the physical courtroom for the 1760 public and for the press was not curtailed even during these times. The measures that we are looking at putting in place for live links are still only used at the discretion of the court. They fit into the wider-based mechanism by which justice takes place. Presently, in these times of concern around transmission of viruses, this is an important part, but still just one part of the wider process. 1765 My reservations with the amendment are not in the spirit of it, in allowing an all-encompassing access to justice. It is instead a caution as to the actual substance of the amendment. Presently, the use of live links is a hybrid when individuals cannot or should not be brought before the court – for those who are potentially infected with coronavirus, those who might flee from custody, or those who are not able to travel to the Island, as an example. 1770 When I say ‘hybrid’, it is important to explain what this means. This is still very much a physical process, rather than a wholly video process. It is not an entirely virtual courtroom. All proceedings occur in a physical courtroom, even during the pandemic, and there is no intention or need to operate wholly by video proceedings, which I know was a concern in the UK when their legislation related to live links was enacted. The model on Island is for participants to appear by video link, 1775 rather than the whole matter being conducted virtually. All proceedings take place in a physical courtroom with – and this is an important part for Hon. Members – full access rights to the press and the public, as normal. I am advised the General Registry has also raised concerns in connection with the technological requirements that this amendment calls for. Presently, the live links take place on an embedded 1780 court system, which allows for a full audio recording of proceedings. These audio recordings are available, on application to the court, for participants or perhaps the press, depending on individual circumstances. The court cannot currently broadcast or produce audio-visual recordings of any proceedings, even if they desire to do so. It is likely that significant expenditure would be needed to facilitate any broadcasting. As I have just stated, as public and press are already to 1785 attend the court in person regardless, the expenditure required by this amendment would be surplus to requirements. There are other points that I might raise here about additional safeguards that arguably should be brought to this amendment, if it were to be accepted. It must be noted that safeguards were put in the UK regulations when they brought this through, in particular that care would need to 1790 be taken that such broadcast coverage was not maliciously or improperly replicated by those who have accessed it. These are matters covered in more detail within the UK provisions, on which I believe the amendment was based but without any safeguards. Hon. Members, I will not speak at length here, but suffice to say that we have in place a reliable, dedicated link with the Prison and a further separate link with Police Headquarters that are 1795 allowing for participation of individuals from custody. I agree that as a future direction of travel I would support virtual courts and other digital innovations, but today we are seeking simply to continue with the arrangements that have worked extremely well over the past six months. Other arrangements are made for witnesses as required, but the court is still a physical court and it remains open. As a result, this amendment is not needed 1800 and serves no useful purpose.
The Speaker: I call Mr Thomas.
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Mr Thomas: Just a very small point. The crucial thing for me is that I heard very clearly from the mover of this amendment the word ‘may’. There is a budget issue and there is a technology 1805 issue that have been raised, but the crucial purpose of the clause is that this is ‘may’.
The Speaker: Mr Hooper.
Mr Hooper: Thank you, Mr Speaker. 1810 I think the Hon. Member for Douglas Central has missed the point here. Whether the courts choose to exercise, if this amendment goes through, is entirely up to the court, absolutely. The challenge, though, is, if they do decide to broadcast something entirely virtually, there are no provisions being proposed by Mr Shimmins that will prevent somebody from taking an unauthorised recording of said broadcast and then utilising it for whatever purposes they see fit. 1815 Those safeguards were explicitly built into the UK Bill. When they put this proposal through for entirely virtual courts, the UK very explicitly put in a whole schedule full of safeguards in respect of how they can be used. And so I think we have to be very careful. This amendment … I think the principle behind it makes a lot of sense but I am very nervous about supporting what is essentially half the job. 1820 Thank you, Mr Speaker.
Mr Thomas: Mr Speaker –
The Speaker: I think you were just in the nick of time! 1825 Mr Thomas: A simple question: could those safeguards be introduced in the Justice Reform Bill, which is coming very shortly? For instance, I have an email here from Ms Edge, who could not be with us today, who has been made promises in terms of summary courts in respect of amendments that will be in the Justice Reform Bill, so could the Hon. Member for Ramsey advise 1830 whether or not he believes they could be inserted through that provision?
Mr Hooper: Thank you, Mr Speaker. I am not really in a position to make statements in that respect, but personally I do not see why it could not be, if entirely virtual courts were something the Isle of Man wanted to pursue. I am 1835 not convinced at this time that would be a good idea, but I am sure the Minister for Policy and Reform and the Minister for Home Affairs will take it under advisement.
The Speaker: Mrs Barber.
1840 Mrs Barber: Thank you, Mr Speaker. As the Member moving the Justice Reform Bill, I can confirm I would be happy to work with the Member (Mr Thomas: Hear, hear.) to look at how we could progress this.
The Speaker: Mr Shimmins to reply to the amendment. 1845 Mr Shimmins: Thank you very much, Mr Speaker. May I thank all the Members who have spoken, for their constructive engagement towards the amendment? I very much welcome all the comments that were made. Perhaps if I just cover them in turn – firstly, thank you to Mrs Caine for seconding the amendment. Clearly, as an experienced 1850 journalist prior to joining us in this House, Mrs Caine fully understands the importance of open access to all our courts. Mr Cregeen, the Minister for Home Affairs – or the Minister for Justice in waiting, perhaps; I am not sure … (Mr Cregeen: Home Affairs.) Home Affairs, okay – made some good points. I think he confirmed that, effectively, during the height of the crisis, and indeed perhaps going forward,
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1855 the hybrid model has been operating in our courts. At no point have I suggested that we have been operating secret courts – let me be clear about that – but I guess what I am concerned about is if we bring forward this amending legislation we should also be looking forward to what may happen in the future, and we just do not know what circumstances we may be faced with going forward. 1860 The Minister said he would support digital courts in future, subject to the appropriate safeguards and procedures being put in place, and I think in that case the Minister should really be happy to support the amendment, because it is an amendment really in principle. The key thrust here is that (Interjection and laughter) the Deemster would clearly exercise sensible discretion, should they come across that scenario whereby the court is sitting not in a hybrid 1865 model, as suggested by Mr Cregeen, and I think what this amendment does is provide that option.
Mr Cregeen: Would you give way for a minute, please?
Mr Shimmins: Certainly. 1870 Mr Cregeen: Currently there is no provision in this Bill for virtual courts, and, as we have given an undertaking that we will look at this under the Justice Reform Bill, would he agree that is possibly a better avenue to go, rather than trying to put something that has not got safeguards in the Bill at the moment? 1875 Mr Robertshaw: Principally.
Mr Shimmins: I am grateful for the Minister’s comments there. I take on board his suggestion. On balance, I see the merit of that, but I disagree because I think the amendment actually 1880 establishes the principle, and also bearing in mind the very kind comments made by Mrs Barber, responding to Mr Hooper, that it will be possible to introduce the necessary safeguards in the Justice Reform Bill, that, in my view, is the preferred chain of events here. What I am really pleased about is that there seems to be a consensus (A Member: Hear, hear.) that this is the right thing to do, and what we are now talking about is the most effective way of 1885 doing it. Broadly, I think it is good to set out your principles, which is what this does, and then – (Interjection and laughter) No, because actually there is a principle, and these are principles worth … As I say and as Mr Thomas says, critically the word ‘may’ is important. So, we are not saying ‘must’, we are saying ‘may’. What I heard, in response to Mr Hooper, was actually there are a number of ways of doing this. 1890 The Legislative Council will consider this debate that we have had today, and if there are potentially insertions which could be taken from a UK equivalent piece of legislation, the Legislative Council may decide that is definitely an option. (A Member: Hear, hear.) Alternatively, the Justice Reform Bill provides another option, I think, to provide the detail that some Members have been asking for. 1895 What I would say is, Hon. Members, we have been asked to progress this Bill expeditiously, and I would ask you to consider the amendment in that context. This is an amendment which I do not actually think anyone should object to, because the key word here is ‘may’, and it establishes a very important principle that should be dear to us all. On that basis, Mr Speaker, I am grateful for Members’ consideration and I beg to move. Thank 1900 you.
The Speaker: I call on Mr Harmer to respond to the debate on the clause.
Mr Harmer: Thank you, Mr Speaker. 1905 I am glad that we have just dispelled some of the myths around secret courts. There have not been secret courts. If we get back to the principle of what we were doing, we were allowing virtual links to the Prison and the Police for setting the dates of hearings and so forth.
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But I am also glad that there is an undertaking to look at this issue in fullness. I think this is a separate issue about virtual court hearings in its fullness and in principle in the future. 1910 With that, I beg to move.
The Speaker: I put, first, amendment 1, in the name of Mr Shimmins. Those in favour of the amendment, please say aye; against, no. The noes have it. The noes have it. Putting to you clause 5 without amendment, as printed: those in favour, please say aye; 1915 against, no. The ayes have it. The ayes have it. Clause 6, Mr Harmer.
Mr Harmer: Thank you, Mr Speaker. Clause 6 repeals existing section 3. Again, this is a present provision no longer required and is 1920 effectively replaced by wording contained within the new section 30. I beg to move that clause 6 do stand part of the Bill.
The Speaker: Mr Hooper.
1925 Mr Hooper: Thank you, Mr Speaker. I beg to second and reserve my remarks.
The Speaker: I put the question that clause 6 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. 1930 Clause 7, Mr Harmer.
Mr Harmer: Clause 7 amends the existing section 32 to align with other changes being made within new section 30. I beg to move that clause 7 do stand part of the Bill. 1935 The Speaker: Mr Hooper.
Mr Hooper: Thank you, Mr Speaker. I beg to second and reserve my remarks. 1940 The Speaker: I put the question that clause 7 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 8, Mr Harmer.
1945 Mr Harmer: Clause 8 inserts a new section 32A that makes it clear that attending court virtually via a live or audio link fulfils any requirement placed upon a person to attend court, as if they had attended court and were physically present. This section also makes it explicitly clear that a participant who has attended from outside the Island using a live link and has made a statement on oath is subject to the Perjury Act 1952, 1950 section 1, containing the offence of perjury under Manx law. I beg to move that clause 8 do stand part of the Bill.
The Speaker: Mr Hooper.
1955 Mr Hooper: Thank you, Mr Speaker. I beg to second and reserve my remarks.
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The Speaker: I put the question that clause 8 stand part of the Bill. Those in favour, say aye; against, no. The ayes have it. The ayes have it. 1960 Clause 9, Mr Harmer.
Mr Harmer: Clause 9 amends the existing section 33 of the Criminal Justice, Police and Courts Act 2007 to align the language used to describe the live link, and clause 10 serves a similar purpose within section 35. With your permission, Mr Speaker, I wish to move clauses 9 and 10 together. 1965 I beg to move that clauses 9 and 10 do stand part of the Bill.
The Speaker: Mr Hooper.
Mr Hooper: Thank you, Mr Speaker. 1970 I beg to second and reserve my remarks.
The Speaker: I put the question that clauses 9 and 10 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 11. 1975 Mr Harmer: Clause 11 amends the existing section 38, which provides the interpretation of terms for Part 9 of the Criminal Justice, Police and Courts Act 2007, by inserting two new definitions for ‘bail’ and ‘eligible criminal proceedings’. Such are referenced throughout the changes made to the sections within Part 9. 1980 Subsection (2) of section 38 is substituted with a detailed interpretation of what is meant by taking part in live-link proceedings, what is meant by ‘a live video link’ and ‘a live audio link’, and what is meant by ‘eligible criminal proceedings’ being conducted by live link. Further amendments set out who those taking place in the proceedings are. Finally, amendments are made that make clear certain exceptions to the interpretation within 1985 subsections 2A and 2C concerning proceedings seen and heard in connection with an individual’s eyesight or hearing, or the use of screens where a participant to the proceedings is being deliberately shielded from view. I beg to move that clause 11 stand part of the Bill.
1990 The Speaker: Mr Hooper.
Mr Hooper: Thank you, Mr Speaker. I beg to second and reserve my remarks.
1995 The Speaker: I put the question that clause 11 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 12 and the Schedule, Mr Harmer.
Mr Harmer: Thank you, Mr Speaker. 2000 Clause 12 introduces the new Schedule to be inserted into the Act, that sets out in detail the prohibitions and limitations on the use of live link, including the conditions which must be met in order that an audio or video live link might be used. In addition, there is an exception for contempt proceedings which are to take place face to face, as is customary practice. 2005 I beg to move that clause 12 do stand part of the Bill.
The Speaker: Mr Hooper.
Mr Hooper: Thank you, Mr Speaker. 2010 I beg to second. ______153 K138 HOUSE OF KEYS, TUESDAY, 27th OCTOBER 2020
The Speaker: Now, Minister, I just want to check that you are moving clause 12 and the Schedule.
Mr Harmer: Yes, and the Schedule. 2015 The Speaker: In which case, I put the question that clause 12 and the Schedule stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 13, Mr Harmer.
2020 Mr Harmer: Thank you, Mr Speaker. Clause 13 introduces a new standalone provision that provides for the use of live audio and video links in connection with relevant tribunals, dependent upon circumstances and the interests of justice in doing so. The caveat concerning those with sight or hearing impediments had not been replicated in 2025 connection with tribunals. The Council of Ministers have agreed a Government amendment to strengthen the provision related to tribunals, to ensure that, for those individuals taking part in proceedings via a live link, pre-existing visual or audio impairment is considered when the blanket terms of ‘seeing’ and ‘hearing’ are talked about within those provisions. We should note that during the emergency proclamation, the Mental Health Tribunal, in 2030 accordance with the requirements of the relevant legislation, continued to meet, utilising the live links, ensuring that those who were most vulnerable continued to be protected. Subsection (4) provides further interpretation for this provision, and in particular defines the relevant tribunals, namely those found within Schedule 2 of the Tribunals Act 2006, along with the Advocates Disciplinary Tribunal and the Interception of Communications Tribunal. Thus, all 2035 tribunals constituted in the Isle of Man are subject to the provisions within the Bill. I beg to move.
The Speaker: Mr Hooper.
2040 Mr Hooper: Thank you, Mr Speaker. I beg to second and reserve my remarks.
The Speaker: I call on Mr Shimmins to move amendment 2.
2045 Mr Shimmins: Thank you, Mr Speaker. Just before I move amendment 2, I would like to thank the Minister for taking on board the concerns I raised about those with impairments and their ability to take part in virtual tribunals. I also welcome the fact that he has confirmed a full list of all the tribunals which would be impacted by this legislation, which was also a request when we last looked at this Bill. 2050 In terms of the amendment, the Minister, when moving, talked about ‘depending on circumstances’, and that is again what I would like Hon. Members to consider. I shall not repeat all the remarks I made on my previous amendment, but I would suggest strongly that tribunals should be open, just as we, I think, all agreed that criminal and other trials should also be open. What is different, I believe, about this amendment, Hon. Members – and why I believe that you 2055 should vote in favour of the amendment, even if you did not vote in favour of the first amendment – is actually some tribunals had been conducted virtually, whereas I think we have heard that there were no trials. So, this circumstance is not something that potentially is concerned about the future of trials; we are doing tribunals virtually at the moment anyway. I would strongly suggest to Hon. Members, without repeating all the points that I made earlier, 2060 if you believe that things need to be done openly and transparently for the protection of everyone involved in these processes, to ensure that we get the best possible outcomes, then surely you should support this amendment, which again does include the word ‘may’. So, please can we avoid
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lots of discussions about the technical issues, because we can always overcome technical issues – that is what other jurisdictions are able to do, so please support on that basis. 2065 Thank you, Hon. Members. I beg to move:
Amendment to clause 13 2. Page 15, after line 2, insert — ‘(7) A relevant tribunal may, in deciding to use a live video link in a hearing also decide— (a) that the proceedings are to be broadcast in a manner specified by it for the purpose of enabling members of the public to see and hear the proceedings; (b) that a recording of the proceedings is to be made in the manner specified by it for the purpose of enabling it to keep an audiovisual record of the proceedings. (8) A relevant tribunal may, in deciding to use a live audio link in a hearing also decide— (a) the proceedings are to be broadcast in the manner specified by it for the purpose of enabling members of the public to hear the proceedings; (b) that a recording of the proceedings is to be made in the manner specified by it for the purpose of enabling it to keep an audio record of the proceedings. (9) A decision referred to in subsection (7) and (8) may relate to the whole, or to part, of the proceedings concerned.’
The Speaker: Hon. Member for Garff, Mrs Caine.
Mrs Caine: Thank you, Mr Speaker. I beg to second. 2070 The Speaker: I call on Mr Cregeen to move amendment 3.
Mr Cregeen: Thank you, Mr Speaker. In reviewing the clause that is before the House today, the Hon. Member of Council raised an 2075 issue with us that the Minister for Policy and Reform has alluded to earlier. In clause 11, Members will recall that there is particular provision made in relation to using the live link … who might have a pre-existing hearing or vision impairment in normal circumstances, with the specific condition and understanding that this is disregarded when we are talking about those parties being unable to hear and see proceedings via live links. 2080 I beg to move the amendment standing in my name:
Amendment to clause 13 3. Page 15, after line 2 insert — ‘(7) The following matters are to be disregarded for the purposes of subsections (5) and (6)— (a) the extent (if any) to which a person is unable to— (i) see by reason of any impairment of eyesight, or (ii) hear by reason of any impairment of hearing; (b) the effect of any direction or order which provides for one person taking part in proceedings to be prevented by means of a screen or other arrangement from seeing another person taking part in the proceedings.’
The Speaker: Mrs Barber.
Mrs Barber: I beg to second.
2085 The Speaker: The floor is open for debate.
Mr Cregeen: To the amendment?
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The Speaker: Mr Cregeen, you really should have addressed your comments on the amendment when you were moving your own amendment, but with the leave of the House … Is 2090 that agreed, Hon. Members? (Members: Agreed.) Mr Cregeen.
Mr Cregeen: Thank you, Mr Speaker. Just very briefly, similar concerns as were raised with the previous amendment. There is an item that I would like to try to tackle. The Hon. Member, Mr Shimmins, in moving his amendment, 2095 said he had heard that they were doing virtually … The advice I have been given is that, as I understand it, currently there is no integrated audio-visual system in the tribunals. That is the advice that I have been given, and there would be significant investment required, even above what is in the courts. Thank you, Mr Speaker, and thank you, Hon. Members. 2100 The Speaker: Mr Hooper.
Mr Hooper: Thank you, Mr Speaker. I suppose it is just to reiterate the same points that were made moments ago, that you really 2105 should not be bringing primary legislation through that needs safeguards, without also bringing the safeguards through at the same time. (A Member: Hear, hear.) Trying to push the argument that we can rely on the other place to sort that out for us is a little bit thin, I would argue. That is the only point I have to make, Mr Speaker.
2110 The Speaker: I call Mr Cregeen to respond to his amendment. No? Mr Shimmins, to respond to your amendment.
Mr Shimmins: Thank you, Mr Speaker. I note the comments Mr Cregeen and Mr Hooper made. I shall not repeat the whole debate 2115 again, but I do believe that this situation is different because tribunals are more likely to be the Microsoft Teams system, which we are all very familiar with now. I guess the flipside of Mr Cregeen’s remarks is if they are being used in this way, is it not a concern for us that these tribunals are not being broadcast, that they are not being open? I would suggest that other jurisdictions have found it relatively straightforward to overcome 2120 this without significant expenditure, so I think these concerns are overdone and I would urge Hon. Members to back the amendment, particularly as it is not compulsion, in terms of ‘must’, but says ‘may’, and the openness of our tribunals is really essential to make sure that they operate effectively for all the parties involved.
2125 Mr Cregeen: Mr Speaker, would the Member give way?
Mr Shimmins: I beg to move.
The Speaker: Unfortunately, the Hon. Member cannot give way if he does not have the floor, 2130 but you may have an opportunity yet. Mr Harmer to respond to the clause.
Mr Harmer: Thank you. I think that a lot of – Okay, I give way. (Laughter)
2135 Mr Cregeen: Thank you, Mr Speaker – he read my mind. I have just been advised, Hon. Members, that some of the tribunals have been taken over Teams – just for clarity.
Mr Shimmins: Thank you.
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2140 Mr Harmer: Thank you. I think a lot of the arguments are the same. As was said before, the main issue is around safeguarding, because we would only be bringing part in. If you do not bring something dealing with all of the safeguarding, that could obviously be addressed in the next Bill. With that, I beg to move. 2145 The Speaker: Putting to Hon. Members first amendment 3 in the name of Mr Cregeen: those in favour, please say; against, no. The ayes have it. The ayes have it. Putting next the amendment in the name of Mr Shimmins: those in favour, please say aye; against, no. The noes –
A division was called for and electronic voting resulted as follows:
FOR AGAINST Mrs Caine Mr Ashford Mrs Christian Mr Moorhouse Mr Shimmins Dr Allinson Mr Thomas Mr Baker Mrs Barber Mr Boot Mr Callister Mr Cannan Mrs Corlett Mr Cregeen Mr Harmer Mr Hooper Mr Peake Mr Perkins Mr Quayle Mr Robertshaw Mr Skelly Mr Speaker
2150 The Speaker: With 4 votes for and 18 against, the noes have it. The noes have it. Putting clause 13 as amended by Mr Cregeen: those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 14, Mr Harmer.
2155 Mr Harmer: Thank you. Clause 14 acts as an introduction to the subsequent clauses, which make changes to the Police Powers and Procedure Act 1998. I beg to move that clause 14 do stand part of the Bill.
2160 The Speaker: Mr Hooper.
Mr Hooper: Thank you, Mr Speaker. I beg to second.
2165 The Speaker: I put the question, that clause 14 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 15, Mr Harmer.
Mr Harmer: Thank you. 2170 Clause 15 amends section 20 of the Act with new provisions connected to the arrest of a person who has failed to surrender to custody, failed to attend a police station, or who is believed to have failed to comply with the conditions of their bail. I beg to move that clause 15 do stand part of the Bill. ______157 K138 HOUSE OF KEYS, TUESDAY, 27th OCTOBER 2020
The Speaker: Mr Hooper. 2175 Mr Hooper: Thank you, Mr Speaker. I beg to second and reserve my remarks.
The Speaker: I put the question that clause 15 stand part of the Bill. Those in favour, please 2180 say aye; against, no. The ayes have it. The ayes have it. Clause 16, Mr Harmer.
Mr Harmer: Clause 16 amends section 50 of the Act by inserting a new reference to the new section 50A introduced by clause 17. 2185 I beg to move that clause 16 do stand part of the Bill.
The Speaker: Mr Hooper.
Mr Hooper: Thank you, Mr Speaker. 2190 I beg to second and reserve my remarks.
The Speaker: I put the question that clause 16 stand part of the Bill. Those in favour, please say aye; and against, no. The ayes have it. The ayes have it. Clause 17, Mr Harmer. 2195 Mr Harmer: Clause 17 inserts a new section 50A in the Act relating to bail with conditions, that provides for this process to be undertaken by a police custody officer, where necessary. The subsections set out the purpose for these conditions along with the circumstances in which security might be needed. 2200 This section also provides for the bail to be conditional, either on attendance at a court of summary jurisdiction or a police station. Access to the duty advocate at a police station is available to anyone who has voluntarily or involuntarily – i.e. they have been arrested – attended a police station to assist the Police with their inquiries. The provisions for this service are set out in the Duty Advocate (Police Custody) 2205 Scheme 1998, as amended, made under section 21 of the Legal Aid Act 1998. In practical terms, while the individual is still at the police station, they remain covered by the Duty Advocate Scheme provisions. At this stage, if the defendant wished to seek a review of the conditional bail conditions, they could do so with the advice and assistance of the duty advocate. Under most normal conditions, the custody sergeant would discuss the proposed bail conditions 2210 with the duty advocate, and at this stage consideration would be given by the duty advocate as to whether a review would be requested. In order to provide a further level of comfort, the Council of Ministers intends to bring a Government amendment to clause 17 which brings the new section 50A of the Police Powers and Procedures Act 1998 in line with similar provisions within the Criminal Justice, Police Powers and 2215 Other Amendments Act 2014, to provide for a process to review police bail conditions. This means that a senior officer can be requested to review the bail conditions set by the custody sergeant. If the accused is still not satisfied, they may make written representations to a justice of the peace for a review of their bail conditions. The Department of Home Affairs acknowledges that such an amendment provides an 2220 additional level of oversight in the event that an individual requests a review of the conditions attached to a grant of bail. I beg to move that clause 17 stand part of the Bill.
The Speaker: Mr Hooper. 2225
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Mr Hooper: Thank you, Mr Speaker. I beg to second and reserve my remarks.
The Speaker: I call on Mr Cregeen to move amendment 4. 2230 Mr Cregeen: Thank you, Mr Speaker. Following the useful and thought-provoking discussion around this Bill earlier this month, we have considered carefully the matter of conditional bail and the safeguards in place to ensure that it is proportionately applied. On balance, I am satisfied that the Isle of Man Constabulary have 2235 been and are acting with due care in making proportional conditions for those subject to conditional bail. I am mindful that we are making permanent law here. Therefore, the amendment I bring here today adds a further safeguard of the right of the individual to bring the bail with conditions set by the custody sergeant … to request that a more senior officer reviews these conditions, in 2240 addition to the review by the justice of the peace. Once again, Mr Speaker, I would like to thank you for your advice on this, and I beg to move the amendment to clause 17 be approved:
Amendment to clause 17 4. Page 16, for lines 16 to 19 substitute — ‘(5) A defendant may — (a) request a senior officer to review the conditions attached to bail and such an officer may confirm, revoke, add to or vary those conditions, and (b) if dissatisfied with the decision of a senior officer referred to in paragraph (a), apply in writing to a justice of the peace for a review of such conditions, and the justice of the peace is to decide the matter after seeking the written views of the prosecution on the application.’
The Speaker: Hon. Member, Mrs Barber.
2245 Mrs Barber: Thank you, Mr Speaker. I beg to second.
The Speaker: I call on Mrs Christian, Hon. Member for Douglas South.
2250 Mrs Christian: Thank you, Mr Speaker. I beg to move that the House do resolve itself to a Committee of the Whole House under Standing Order 4.4A.
The Speaker: For the purposes of taking evidence. 2255 Mrs Christian: For the purpose of taking evidence.
The Speaker: Mr Harmer.
2260 Mr Harmer: Thank you, Mr Speaker. I am seconding the motion that is before us in relation to a Committee of the House, because I thought it would be helpful to set out the context in this matter. I would like to again stress to Hon. Members that we have listened to the concerns of the Hon. Member for Douglas South. Even though, in practice, there is very little chance that a person given 2265 police conditional bail will be unable to access legal advice and assistance, we have considered how this issue may be addressed. We must also remember that these provisions have already
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been in place for some months and have been working fine, and there have been no complaints that we have been made aware of. Both the Cabinet Office and Home Affairs are aware that there are potential concerns around 2270 conditional bail. For that reason, I can confirm to the House that we will carefully consider what amendments could be made and to which legislation. The Duty Advocate Scheme within police custody does an excellent job of ensuring that access to representation is open and fair. Finally, I would like to remind Hon. Members that the purpose of bail is to ensure that an individual appears at court or a police station and that any witnesses are not intimidated or 2275 influenced. Giving the Police the powers to do this rather than appear before a court to have the conditions set, will ensure the system is as efficient and effective as possible and the value of the court time is preserved.
The Speaker: The motion being proposed and seconded is that the House resolve itself into 2280 Committee. Does anyone wish to speak to that motion? In which case, I will just put the question. Those in favour, please say aye; against, no. The ayes have it. The ayes have it.
In Committee of the Whole House
The Speaker: Mrs Christian, the purpose is to take evidence, I understand. Would you be proposing that Ms Unsworth be heard?
2285 Mrs Christian: Thank you, Mr Speaker. I ask the House to recognise Ms Vicki Unsworth, who specialises in civil and commercial litigation, including regulatory and data protection, representing both local and international clients. Ms Unsworth has a strong reputation in personal injury and medical negligence work, as well as other civil litigation. Ms Unsworth is a member of the Isle of Man Law Society, but is here 2290 today in a private capacity. Ms Unsworth is a director of advocates Smith, Talbot, Unsworth Ltd, which practice specialises in legal aid work, including criminal. May I welcome Ms Unsworth to today’s session and thank her very much indeed for joining us here today. (A Member: Hear, hear.) I am sure we will all listen carefully to her contribution. I would like to begin by asking a series of questions. 2295 The Speaker: Sorry, can I just interrupt you at that point, before we move on to questions? Again, the motion would be that Ms Unsworth be heard by the House, and look for seconder.
Mr Harmer: I am happy to second. 2300 The Speaker: Thank you. Is that agreed, Hon. Members? (Members: Agreed.) Thank you very much. Please continue, Mrs Christian.
2305 Mrs Christian: Thank you, Mr Speaker. How is legal advice funded for those suspected of criminal offences?
Ms Unsworth: Currently, the system is if you are arrested and brought to the police station or you attend the police station voluntarily to assist the Police with their inquiries, you have free 2310 access to independent legal advice through the Police Duty Advocate Scheme. That means that, regardless of your wealth or your lack thereof, or the merits or lack thereof of the offence, you have access to legal advice as to what the process is at the police station, what the police powers and procedures are and what the facts and circumstances of the case against you are. Currently, that scheme applies through provision of a duty advocate who attends at the police station seven
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2315 days a week, 24 hours a day, 52 weeks of the year, so the police station is covered at all times by a rota of advocates who practise criminal law.
The Speaker: Mrs Christian, this is somewhat like Question Time, inasmuch as Members need to catch my eye in order to ask questions. Also, traditionally, Members will take evidence seated; 2320 they do not stand to ask questions. Mrs Christian, your next question.
Mrs Christian: Thank you, and sorry, Mr Speaker. In your experience, what happens at the police station when a duty advocate is needed? 2325 Ms Unsworth: Ordinarily, the custody sergeant will contact the duty advocate who is listed – if they are not available, a text message goes round the entire membership panel – and the duty advocate will attend to the defendant held at the police station. They will go through an interview process. 2330 If I take it forward to the parts that are relevant for this discussion, once the custody sergeant is in a position to either charge or bail the accused person, representations are made to the custody sergeant as to whether the charge is appropriate – those representations are made by the investigating officer – and also as to whether bail is appropriate, or whether the accused person should be held in custody to appear at the next court. 2335 Where bail is appropriate, the advocate, if they are present … And of course it is worth bearing in mind that not all accused persons must use an advocate – many choose not to, for their own reasons – but when they are ready to charge, the advocate who may have been present during the interview stage may not be available at the charging situation. They may be engaged with another detained person, or in the length of time that has passed the duty advocate may have 2340 been released. So, at the point at which bail representations are made, you may have a duty advocate present to make representations as to bail and what those conditions should be, but you may not have an advocate present at that stage. The custody sergeant will consider those representations made, and in my experience the custody sergeant is very good and there is no complaint by me or anybody that I know of as to the 2345 movement of police bail conditions. Adding in the provision for a review by an inspector, that is already there in respect of many other decisions taken by the Police, and that is a welcome introduction into these provisions. However, regardless of those representations, the custody sergeant and their inspector, if they support those … restrictions will be made and the accused person will be either bailed to appear at a court on a date, or they will be bound to return to the 2350 police station at some date in the future. At that point, there are no representations to a justice of the peace, as they are not present at the police station. The duty advocate, if they are present, may have other people waiting to be seen, if custody is busy – and, of late, custody has been very busy. Also, they may not have access to all of the information that a justice of the peace may need in order to reconsider those bail 2355 conditions and their appropriateness. Therefore, a system needs to be built in to allow that free and independent legal advice to continue beyond the police station.
The Speaker: Mr Robertshaw.
2360 Mr Robertshaw: Thank you, Mr Speaker. My concern, reading the amendment before us in the name of the Minister, relates to that point where police bail is applied with conditions but without charge. Do you think that (b) satisfactorily covers the interests of the person placed on bail, where …? It appears to me that this process is open-ended, time-wise. In other words, that police bail applied with conditions can go 2365 on without restrictions, in terms of time. Are you comfortable with that? It could run for a long
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time. Do you think that (b) is sufficient protection for the individual in those circumstances? I hope I have made that point clear.
The Speaker: Ms Unsworth. 2370 Ms Unsworth: Bail, currently, is without time restriction. Where the Police have an investigation that they are undertaking, they may need a short amount of time for that investigation or they need a long period of time to undertake that investigation. Currently, the position is that the accused person would be bailed without conditions, save during COVID, but 2375 pre-COVID they would be bailed without conditions, to return to the police station at a point in the future. By building in the provision for conditional bail to be granted, it gives protections in order that the Police have sufficient time to undertake their investigation. The risk is if you put time restraints on the Police in that respect, they will rush the investigation and not undertake a thorough 2380 investigation and the matter will be put before a court prematurely or perhaps without the benefit of a full investigation. That incurs costs and could waste police time and court time. So, by putting in protections by way of right on conditional bail at the police end, it gives the Police the ability to thoroughly investigate – which they should – and when they have got to the end of that investigation, they have the ability, armed with all of the information, to make a decision as to 2385 whether a matter should be charged or not. That is important, to ensure that we are not wasting not only court time and money, but also, if a matter reaches the court stage prematurely, legal costs start to be incurred, which could be wasted if the charge later has to be dropped because the Police have missed or not taken the opportunity to undertake a thorough investigation. So, it is important that the provision allows the Police sufficient time, and I am not sure that, given the 2390 vast array of different offences, legislation really can be put in place to say how long that time should be. If, during that period, however, the conditions on the accused person’s bail are becoming too restrictive – for example, they have a condition not to attend a certain part of Douglas because that has a sufficient nexus with the offence or a complainant or a witness, and if, for work 2395 purposes or for other personal reasons, that becomes too restrictive – having the review by a justice of the peace means they can make their application in writing to a justice of the peace in order to have those conditions varied and reviewed, so that they are not overly restrictive on the accused person, who remains innocent until proven guilty, but also ensuring that the Police still have the ability to manage the risk of their investigation not being interfered with. 2400 Mr Robertshaw: So, you are satisfied that a justice of the peace can review the conditions and the actions of the Police, in terms of are they pursuing that investigation in an appropriate way?
Ms Unsworth: No, you have conflated two issues, I am afraid. The justice of the peace can 2405 check the conditions and can review them for their appropriateness and reasonableness in the circumstances of the information known to the justice of the peace. What happens is you make an application in writing to the summary court. The prosecution then, with the assistance of the Police, put in a response in writing. The justice of the peace considers all of that information. So, if the investigation is moved along and there is further information known to the prosecution that 2410 will be before the court – and when I use ‘court’ I am talking in the written sense; there is no hearing held in this process – and the court then decides whether the bail conditions are appropriate and reasonable. The court has no power to check that the Police are doing an investigation and how they are doing it, or why they are doing it. That is entirely a matter for the Police Force and for the Chief Constable.
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2415 Mr Robertshaw: You do understand, though, my anxiety that there is an absolute assumption that the police process is being carried out in an appropriate timescale? There seems to be no opportunity to review that, and yet we are still imposing, upon the individual, bail conditions.
Ms Unsworth: Yes, and I understand your concern that it is a prohibitive position, but I am not 2420 sure how you legislate for an offence that might only take weeks to be investigated, or a very serious offence that might take years to be investigated – and there are some, particularly if we are looking at historical sex-abuse cases or complex fraud or complex financial crime. Those investigations can take a long time, but in order to preserve evidence, and for the Police to investigate, they may need to take steps to interview and charge somebody at an early stage. I 2425 think we have to trust our Police Force. And do not forget there are powers built in, in separate ways, for reviews of the Police Force, and complaints processes in place there if an accused person was concerned … [Inaudible] Also, if the matter does end up in a court system and the Police have done a poor job and they have failed to investigate, in the court system, through the Criminal Procedures and Evidence Act, there are procedures built in for application to be made to remove 2430 evidence from the court process, which protects the accused person. So, I understand your concerns but I do not see a way of legislating for them.
Mr Robertshaw: Thank you, Mr Speaker.
2435 The Speaker: Mrs Christian.
Mrs Christian: Thank you, Mr Speaker. How is bail dealt with at the police station?
2440 Ms Unsworth: Currently, the accused person will attend at the custody desk, and will either be charged and bailed to attend at a court or they will not be charged and will be bailed for a period of time for the Police to investigate. It is at that point that the representations are made as to bail conditions and whether any are needed – in some cases, no bail conditions are required, other than the attendance – and, if there are bail conditions required, what they will be. As I said earlier, 2445 there may or may not be an advocate present during those representations.
Mrs Christian: Fantastic. You mentioned earlier about different scenarios where bail conditions might need to be reviewed. Can you just elaborate more on that?
2450 Ms Unsworth: I am sure none of you have been arrested and detained at a police station – and nor have I; I will just say that clearly! When somebody is arrested and they come to the police station, particularly for the first time in their life, it is a serious matter, or something that they do not understand. Quite understandably, they are going to be highly emotional. They are not necessarily going to follow what is going on. They do not know the process. It is not something 2455 that comes as second nature to them because they are going through it for the first time. As we go through things for the first time, as humans, we are on a learning curve and we do not necessarily understand what the process is. So, quite often, accused people at the police station do not understand the process. Quite often, they do not take into their mindset what has been said to them. They do not hear, and they do not recognise what the process is until much later 2460 down the line when they have got back to the comfort of their own home, they have calmed down, the adrenalin has eased and they start mulling over what has happened. I think we can all recognise those feelings perhaps in a different context. Some defendants may have experience and they may be very well armed to make their own representations as to the conditions being placed upon them by the custody sergeant at the time 2465 it is happening. Others may need time to process things and come to terms with what has been
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said to them, and they may, when they get home, realise ‘Actually, that is going to be difficult for me.’ That is one scenario where bail conditions may need to be reviewed. Another scenario may be that life gets in the way, so if you are bailed with a condition that you cannot enter a particular place because of the nexus of the offence, and let’s say a few weeks or 2470 a few months down the line your work or your personal circumstances require you to be in that place but you cannot be there because you have a bail condition not to be there, you may, at that point, need to review those bail conditions. That is why, as I understand it, there is this built-in provision for a justice of the peace to review the bail conditions, and that is proper; there has to be this review process. 2475 The concern that I have is there is no free legal advice for that process, so if you are not eligible for green form legal assistance, which is means tested, then you would have to pay for an advocate to assist you, or you would have to do it yourself, and that may be problematic for some people.
Mrs Christian: Thank you. How would a person access legal funding and advice? 2480 Ms Unsworth: The only way to access legal funding and advice for this process would be through the green form system, which is provided under legal aid. It is means tested, so you have to have a particular requirement in respect of your means, or be on eligible benefits in order to access free legal advice with the green form system. There is a proportion of the green form 2485 system where, if you are over a certain limit but under another limit, you can access green form legal advice with a small contribution; or, if you have too much by way of means, you have no access. In those circumstances, currently, under the wording of this legislation, you would have to pay to be represented by an advocate to assist you with this process, or you would have to try and do it yourself. 2490 Mrs Christian: Thank you.
The Speaker: How many more do you have before I bring in someone else?
2495 Mrs Christian: Can you just explain: what is the cause of concern for you with regard to the proposed section 50A?
Ms Unsworth: My cause for concern does come down to that lack of free and independent legal advice at the review stage. No concerns whatsoever about what is being proposed and why 2500 it is being proposed. That is all very positive and should go forward, but we need to ensure that these people have access to free and independent legal advice, and under the previous system, where they were bailed without conditions to a court and the court placed the conditions upon their bail, they had access to the Court Duty Advocate Scheme, which is free at the point of service regardless of your means. So, in removing the court from the process, which I have no objection 2505 to, you need to have this ability for people to access free and independent legal advice to assist them. That may be because they cannot afford legal advice but they are not eligible. It may be because they do not have the wherewithal or the ability to make written representations to the court – and that can be a scary and daunting process, particularly if you have difficulties with reading or writing, you may have difficulties with expressing yourself, you may have physical or 2510 mental health. There are many factors that need to be taken into account that do not come into play under the green form system. These people should be given access to free and independent legal advice, and this can be achieved very quickly and very easily by simply extending the Police Station Duty Advocate Scheme, which comes under section 21 of the Legal Aid Act – which is 1986, not 1998, I 2515 am afraid. It is, under that, just a simple amendment to extend that for the sole purpose of seeking a review of the bail conditions from a justice of the peace, then they have this access.
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The Speaker: Mr Hooper.
2520 Mr Hooper: Thank you, Mr Speaker. I am a little confused here because you have started off by saying that everyone who is at a police station is entitled to free and independent legal advice from the duty advocate; that applies to everybody who is at a police station. So, if they want to challenge their review conditions whilst in custody, before accepting the conditions, they will get a duty advocate offered to them. They 2525 do not have to take it – you have made that quite clear; people can refuse the duty advocate – but they do have that free and independent legal advice at that point. And in fact the Duty Advocate Schemes are quite clear that an advocate ‘shall’ attend and they ‘shall’ provide advice – there is no option here – so it was a little concerning when you mentioned that sometimes people cannot access a duty advocate for a variety of reasons. That would seem 2530 to be in complete contravention of the law. So, it is interesting to hear that actually the legal aid and Duty Advocate Scheme, as currently being managed by the Law Society, is not being managed in accordance with the law that requires that these advocates are required to accept these clients and required to provide them with advice. That is a little bit concerning to hear. What I would like to ask you is, in terms of that second-stage review that you have 2535 referenced … I am assuming that the issue is only when people are bailed back to the police station, because if someone is bailed to appear in court they will receive court duty advocate assistance at that point. So, really you are talking about if someone has accepted conditions on a police to police bail and then subsequently changes their mind, so that subsequent ‘Actually, I have had my legal advice, I have gone to the Police, I have accepted my conditions following that 2540 legal advice and I have left; now I cannot get further duty advocate support to challenge those conditions.’ What are the circumstances if someone is bailed to court? They get a duty advocate in court. They then go away from that courtroom and decide, ‘Actually, I do not like these conditions anymore.’ Do they get a duty advocate the second time they go back to court to challenge those conditions, or are they subject to legal aid? 2545 Ms Unsworth: I will take the points in the order that you raise them. Your first issue is in relation to the Duty Advocate Scheme failing in its statutory duties. That is not the case. You have one duty advocate listed for the daytime, between 7 a.m. and 7 p.m., and then you have a duty advocate on duty from 7 p.m. to 7 a.m., plus a senior advocate who is called out if there are too 2550 many cases, conflicts or a grave offence that a junior advocate cannot deal with. The scheme is working. There is a duty advocate available 24/7. However, what sometimes happens is you might have five people sitting in police custody. The duty advocate may be with one person, and another person may be told, ‘You can see the duty advocate, they are available, but they are in an interview with another person and that is going to take two hours, so you are going to have to wait.’ At that 2555 point, that person may decide, ‘I am not waiting, I want to get out of here,’ and they may choose to proceed without a duty advocate. So, I am not saying a duty advocate fails to attend – a duty advocate will always attend – but if they are tied up dealing with somebody else, they cannot be in two places at once. The scheme works and it is working in accordance with statutory obligations.
2560 Mr Hooper: So, you are saying it is about the individual’s choice not to receive legal advice, when actually, in the situation you have outlined, where a person could theoretically – well, not theoretically, it does happen – accept bail conditions from the Police without having taken the legal advice, it will have been their choice to do so?
2565 Ms Unsworth: Yes, of course. (Mr Hooper: Okay.) So, that is the first issue. The second issue is historically what would happen is you would be bailed to appear at the next court. Usually, on a Friday, there would be a lot of people arrested and they would be bailed to appear at court on Saturday. Giving the Police the ability to put conditions on the bail means that Saturday courts should become few and far between and the bail to appear at court can be
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2570 a longer period away. That is fine, provided that nothing happens in the interim period where those bail conditions need to be reviewed; and if something happens in that intervening period where the bail conditions need to be reviewed, then there is, into the legislation, built a provision for a justice of the peace to review. When they get to court they see the court duty advocate, should they wish to do so, or they can have their own advocate, or they can represent themselves. 2575 Once the court takes over, they are listed as reissued by the court, so the minute they arrive at the court the police bail ends and they become subject to the court bail system. If they do not like the conditions that the court imposes, there is an appeal system built into summary courts and they can appeal to the High Court. So, they cannot then use the review, under this legislation, by a justice of the peace to review the bail conditions set by the court; there is a proper appeal 2580 mechanism built in.
Mr Hooper: Yes, apologies, the question I was really asking is when you are in the court bail system and you make an appeal, do you get duty advocate support to make that second appeal, or do you have to go through the legal aid process? 2585 Ms Unsworth: You can get duty advocate assistance, or, depending on the nature of the offence and your legal means, you may have a legal aid certificate in place by that stage in any event, in which case your advocate will deal with it. Coming to the police bail, which is where this is likely to be for a much longer period, firstly 2590 defendants do not accept the bail conditions. Bail conditions are imposed by the custody sergeant; they are imposed by the court. If you say to a police officer or to a court, ‘I absolutely do not accept these bail conditions; I am not going to abide by them,’ you are not going to be given bail. You are going to be held in custody, because if you are giving an indication that you are not going to abide, then they are not going to give you conditions for you to commit another offence by failure to 2595 comply, so –
Mr Hooper: Again, apologies, my understanding is slightly different. My understanding is the court will impose bail conditions, whereas, as a suspect, you have to accept police bail conditions, or you could say, ‘I am not accepting these conditions. Hold me over in custody until I get my day 2600 in court.’ So actually, in the circumstances we are talking about here and police bail, if I do not like those conditions, I am well within my rights to say, ‘No, thank you, I would like to go to court instead and have the court deal with my bail conditions.’
The Speaker: Sorry, before I invite Ms Unsworth to respond to that, I will just say it is important 2605 that all Members and the witness are heard in due turn, rather than talking across each other. Ms Unsworth, please.
Ms Unsworth: The custody sergeant imposes bail conditions. The advocate or the accused person can make representations as to what those conditions might look like, what would be 2610 reasonable, what would be unreasonable, but it is the decision of the custody sergeant, or the inspector on review, as to what those conditions will be. If the defendant says, ‘Absolutely no way – I am not accepting those, I am not going to abide by them,’ then it is incumbent upon the custody officer to hold him in custody, otherwise further offences may be committed and that would be against justice. 2615 So, it is not an acceptance per se in the way that you are looking at it. They can say, ‘Fine, I will take the bail,’ in terms that they want to move forward, and then they may wish to make an immediate review application, or they may accept them and later need a review application, or they may accept them and never need to review. It is not an offer and acceptance in a contractual sense; it is an imposition by the custody officer. That is the system that is in place, and at that 2620 point, once they have left the police station, the Police Duty Advocate Scheme has ended for them.
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If they are brought back at a later date to be further interviewed in relation to the offence for which they were bailed, they will have access again to somebody, on the duty advocate system. You would not turn up at the police station, knock on the door and say, ‘Hi, I’m on police bail. Could I please come in and have a chat with the custody officer? I’m not happy with my bail 2625 conditions and I want access to the duty advocate to review my bail.’ It would be as part of an investigation process where they are being re-interviewed. So, the built-in mechanism for a review by a justice of the peace is what the legislation provides and is appropriate, and that is where it is lacking in terms of the ability to get legal advice. The duty advocate at the police station is not in a position necessarily – they may not have the 2630 technology with them, they may not have the time, they may not have all of the information available – to make the application for a review to the justice of the peace. For example, if somebody were to say to me, ‘The custody sergeant has said on my bail I cannot leave the Isle of Man, but I have to go to a family wedding,’ I am not going to make an application for review to the court until they have given me something to say, ‘The family wedding is on this day, this is 2635 how I intend to travel, this is the date I would travel there, this is the date I would travel back.’ Then I would give all of that information to the court, so that the court is properly armed with all the information it needs to consider the request for a review and a variation of bail conditions. At the police station, the duty advocate may not have access to that information. Or it may be that, several weeks or months down the line, something happens in their life and they need to change 2640 them because they are no longer appropriate. They do not have access, at that stage, to the police duty advocate, and that is where the concern is.
The Speaker: Mr Cregeen.
2645 Mr Cregeen: Thank you. Have any of these issues been raised over the last six months? Has it been an issue for anybody being given bail?
Ms Unsworth: From the day the police bail conditions were introduced there have been 2650 ongoing discussions with the Legal Aid Authority as to how we can build in a funding mechanism for the Legal Aid Committee to fund people who need this assistance. We have not been able to do anything through the Legal Aid Committee because legislation needs to be changed in the form of that section 21 of the Legal Aid Act. There is currently no funding, so that is an issue firstly. Secondly, only from 29th September were accused people at police stations handed a very 2655 short note as to their ability to review bail conditions and how they go about that. I am not criticising the Police. I have absolute assurance that the Police, when they grant bail, have been telling accused people, ‘You can do this by making a written application to the summary court.’ No question over the Police’s integrity in that respect, but if you are in a confused state because you have been arrested and you do not know what is going on, you may not necessarily recall 2660 that; you may not have the wherewithal to be able to use that method.
Mr Cregeen: But is this not an issue, as you have just said, for the Legal Aid Act rather than this part of the Bill? From everything that you have said so far, it is about legal aid and funding, which is not part of this Bill, so is it not something that possibly needs to be referred outside this piece 2665 of legislation?
Ms Unsworth: What this legislation is doing is putting on a permanent footing the police bail conditions and the review process – that is what is happening in this Bill – and in order to do that, it is appropriate and reasonable for the Members to consider how that is accessed and the ability 2670 of the members of the public, many of whom will be vulnerable, to access and utilise the mechanism being put in place. So, yes, in short, it could be looked at through a difference amendment in a different piece of legislation at a different point in time, but during the period
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whilst that is all going ahead there are vulnerable members of society who may not be able to access a review of their bail conditions because there is nothing in place; whereas, actually sitting 2675 here today, you have the ability to make this short amendment to section 21 of the Legal Aid Act to extend the Police Station Duty Advocate Scheme to simply include this section 50A as part of the Police Station Duty Advocate Scheme for the purpose of a review to a justice of the peace.
Mr Cregeen: But is it not the case that, as you have been discussing, currently legal aid is means 2680 tested?
Ms Unsworth: Yes.
Mr Cregeen: And there have not been any issues with bail at the moment? Nobody has had no 2685 representation when requested?
Ms Unsworth: I cannot answer that question. I do not represent every single person on the Island, I am afraid.
2690 Mr Cregeen: But this must have been brought up through the Law Society.
Ms Unsworth: Yes.
Mr Cregeen: And have they raised this issue with anybody outside, are you aware? 2695 Ms Unsworth: Yes, with the Legal Aid Committee. We have been raising this since the bail conditions were brought into play during COVID. We have raised our concerns, and I know some advocates have assisted on a pro bono basis.
2700 Mr Cregeen: So, on the other point that you were making, about the individual who wished to alter the terms of their agreed bail, is it not possible for them to attend the police station and say, ‘I have a wedding somewhere’? The advice I have been given is that they can go to the station and ask for a review of those conditions. You may not get legal aid, but you could still go there and they could review those conditions without a lawyer. 2705 Ms Unsworth: I am not aware of there being a process in place for them to go to the police station and ask for a review –
Mr Cregeen: But they could do? 2710 Ms Unsworth: I am not aware of a provision for that, and if that were the case then I would question why there is a review process built into the legislation. But the issue is over the access to free and independent legal advice. Whether they are doing it themselves in writing to the court or standing at a custody desk in a police station does not remove the concern that they do not 2715 have the access to free and independent legal advice to do that, because either way they are left exposed.
The Speaker: I am conscious, Hon. Members, that there are only a couple of minutes left of our sitting. I have three other Members wishing to ask questions, so I would just like an indication 2720 from the witness whether she is available at half past two, when the House resumes.
Ms Unsworth: Yes.
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The Speaker: Thank you. Mrs Barber. 2725 Mrs Barber: Thank you. I just wanted to clarify … I think you have indicated, but do you undertake legal aid work yourself?
2730 Ms Unsworth: I undertake civil legal aid; my firm undertakes criminal legal aid.
Mrs Barber: Okay, just because I know that obviously within the House we do a lot about declaring pecuniary interest, and I just do not want you to fall into a trap in regard to that, so I do not know whether you would feel it necessary to declare a pecuniary interest against the firm in 2735 this matter.
Ms Unsworth: My firm undertakes criminal legal aid work. If that means that there is a pecuniary interest, then yes, it would need to be declared. I personally do not deal with criminal legal aid. 2740 Mrs Barber: I just wonder how many times you would envisage someone could request a review, therefore looking to access legal aid under the proposed amendment.
Ms Unsworth: I cannot answer that question. Many people will be granted bail over the course 2745 of however long these provisions –
Mrs Barber: Sorry, I do not mean how many people; I mean one person requesting again and again.
2750 Ms Unsworth: There is no limitation built into this. It is not that you are limited to one review of your bail conditions, so presumably people could have multiple reviews. However, the position of somebody being on bail is for a short period of time, although there are risks that they could be on bail for a long period of time. The normal situation would be for a matter of weeks or months, and in that time they are unlikely to need multiple reviews of their bail. And if it is 2755 something that they know is a regular occurrence, then that could be dealt with at one application, as opposed to coming back every single week or every other week for the same thing to happen.
Mrs Barber: Would it not be for the police officers to advise the person, at the time that they are given those additional bail conditions, that obviously if they need a review at that point they 2760 should be seeking advice from a duty advocate?
Ms Unsworth: The Police, firstly, are not there to advise anybody; they are there to do a job as part of the criminal justice system. They do notify them that there is a review process in place, and from 29th October they will hand to every person granted police bail a short note, which is 2765 about five lines long, that says, ‘If you are not happy with your police bail, this is how you can have it reviewed by a justice of the peace, and this is the process.’
Mrs Barber: I think when I said ‘advise’ I meant like you would advise someone of their rights – it is a nuance in terms of the meaning of the word – rather than giving advice per se. 2770 Ms Unsworth: Yes, so the Police would do that, but as I have said, it is not necessarily there in the moment that the review is necessary, and if in the moment they wanted a review of what the custody officer has said, the Minister has put forward a proposal for it to go to an inspector for a
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review. So, there is that review process built in now, but that is different to getting the justice of 2775 the peace to look at it.
The Speaker: Hon. Members, the clock has defeated us at this point. I am conscious that there is a presentation in the Barrool Suite regarding COVID testing, so they will be hoping that Members will be able to attend that. 2780 With that, this sitting is suspended until 2.30, when we will continue in Committee. Thank you.
The House adjourned at 1 p.m. and resumed its sitting at 2.30 p.m.
Courts, Tribunals and Local Authority Procedures and Miscellaneous Provisions Bill 2020 – Consideration of clauses concluded
The Speaker: Fastyr mie, good afternoon, Hon. Members.
Members: Good afternoon, Mr Speaker.
2785 The Speaker: Now, on my list I have Mrs Barber, but that is past, (Laughter) and I have been promised by Mr Thomas that he would like to ask just one question, so Mr Thomas.
Mr Thomas: Thank you very much, Mr Speaker. Just a very brief question, I think you started to say that you were speaking not for yourself, if 2790 you had had longer or for any other reason would you have been able to speak for the Law Society? Are the opinions that you have very helpfully given us today and the facts that you have given us today, would they be shared by more advocates and with the Law Society here that have joined in with you?
2795 Ms Unsworth: So far as I can speak for the advocates that I have spoken to, the criminal bar is very much in favour of the bail conditions being in place by the Police, that goes without question. Certainly the criminal bar and the members that I have spoken to are very much in favour of extending the Police Station Duty Advocate Scheme in order to ensure there is free and independent legal advice available to those who wish to utilise the review option as set out in the 2800 legislation. If I may, Mr Cregeen raised that he had been advised that you could attend at the police station to ask for a review. Over the lunchbreak I spoke with the Police and they said that is not an option. However, if somebody is represented by an advocate, the advocate could send an email to the Police to make a minor change, such as if somebody’s address had changed by way of a bail 2805 address, or something of that nature, but they could not seek a review of their bail conditions as issued by the Police.
The Speaker: Mr Hooper.
2810 Mr Hooper: Thank you, Mr Speaker. I was just going to rise to move that we resolve the Committee back into the full House and then crack on with clauses.
A Member: Hear, hear. 2815 The Speaker: Mr Harmer.
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Mr Harmer: I will second that.
The Speaker: The question is that business be resumed. Those in favour, please say aye; 2820 against, no. The ayes have it. The ayes have it.
The House moved out of Committee and business was resumed.
The Speaker: We pick up then at the point where we left off. I am going to give Mrs Christian the opportunity to make her contribution and then Mr Robertshaw had also indicated … no, okay. Mrs Christian. 2825 Mrs Christian: I thank you, Mr Speaker, I will be very brief. I am very pleased this House got to hear the evidence brought today by Ms Unsworth and thank her for her time. We have heard evidence today that there is potential lack of free and independent legal advice to those who wish to review bail, even though there may be a limited 2830 number of people wishing to do so and therefore consideration needs to be given to amending the Legal Aid Act in order to extend to the Police Duty Advocate Scheme for this purpose. My hon. colleague, Mr Cregeen, said last week in the other place that people do not know what it is like to be an MHK until they are really here; I completely agree with that statement. (Laughter) Being here means many things and we have to make decisions that affect the good people of this 2835 Island. We are all aware the provisions of this Bill need to be in place prior to the end of the Continuation Regulations on 26th December and it is fair to say a lot is riding on this Bill that will affect a lot of people if these provisions are not there. Following conversations with the Minister and Members of his Department, I am in the hope now that we have all heard evidence that this can be addressed in other legislation. I therefore do 2840 not move to seek an adjournment of the clause and thank the House for hearing the evidence for future proofing our legal aid system. Thank you, Mr Speaker.
The Speaker: In which case, I will call on Mr Cregeen if he wishes to say anything in response 2845 to the debate on the amendment.
Mr Cregeen: Thank you, Mr Speaker. I would like to thank Hon. Members for their comments. I will go away and check with the Constabulary on the advice that was given, but the advice I had been given at the time, 2850 Mr Speaker, was that they could attend so I will get clarification on that. Thank you, Hon. Members.
The Speaker: Mr Harmer.
2855 Mr Harmer: Thank you, Mr Speaker. Just to confirm I will be looking to put something in place, if it is either an order or a change to legal aid, to look at this issue, so thank you.
The Speaker: I put then the question firstly that amendment 4, in the name of Mr Cregeen, be 2860 approved. Those in favour, please say aye; those against, no. The ayes have it. The ayes have it. Clause 17 as amended: those in favour, please say aye; against, no. The ayes have it. The ayes have it. I am sure that the House would wish me to thank Ms Unsworth for coming in today and giving evidence. (Members: Hear, hear.) 2865 We turn then to clause 18, Mr Harmer.
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Mr Harmer: Thank you, Mr Speaker. Clause 18 amends section 52, which relates to the power of arrest with regard to failure to answer police bail, by adding a new subsection that provides that where a person is released on police bail, and is believed to have failed to comply, they can be arrested without warrant. 2870 I beg to move that clause 18 do stand part of the Bill.
The Speaker: Mr Hooper.
Mr Hooper: Thank you, Mr Speaker. 2875 I beg to second and reserve my remarks.
The Speaker: I put the question that clause 18 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 19, Mr Harmer. 2880 Mr Harmer: Clause 19 acts as an introduction to the remaining clause within this Part of the Bill which makes changes to the Criminal Law Act 1981. I beg to move that clause 19 do stand part of the Bill.
2885 The Speaker: Mr Hooper.
Mr Hooper: Thank you, Mr Speaker. I beg to second.
The Speaker: I put the question that clause 19 stand part of the Bill. Those in favour, please 2890 say aye; against, no. The ayes have it. The ayes have it. Clause 20, Mr Harmer.
Mr Harmer: Clause 20 amends section 5 of the Act by making several minor amendments to ensure that the language used in this section reads correctly in context with the other 2895 amendments being considered regarding bail. I beg to move that clause 20 stand part of the Bill.
The Speaker: Mr Hooper.
2900 Mr Hooper: Thank you, Mr Speaker. I beg to second.
The Speaker: I put the question that clause 20 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 21, Mr Harmer. 2905 Mr Harmer: Clause 21 provides the definition of certain terms used within Part 4 of the Bill. I beg to move that clause 21 do stand part of the Bill.
The Speaker: Mr Hooper. 2910 Mr Hooper: Thank you, Mr Speaker. I beg to second.
The Speaker: I put that clause 21 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. 2915 Clause 22, Mr Harmer.
Mr Harmer: Clause 22 makes provision in respect of local authority meetings.
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Despite the expiry of the Emergency Powers (Coronavirus) (Local Departmental) Regulations 2020, any acts or omissions under those Regulations remain valid and lawful. This clause also 2920 provides for the continuation of certain appointments until May 2021, if necessary, and for such appointments to continue on the terms on which they were made. I beg to move that clause 22 do stand part of the Bill.
The Speaker: Mr Hooper. 2925 Mr Hooper: Thank you, Mr Speaker. I beg to second and reserve my remarks.
The Speaker: I put the question that clause 22 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. 2930 Clause 23, Mr Harmer.
Mr Harmer: Clause 23 makes provision that any decision taken at a virtual meeting of a local authority and subsequently ratified was, and is, valid. This clause encompasses decisions made before the Regulations came into force, where the 2935 local authority determines that there is a need to put these on a secure legal footing. The current Local Government Act 1985 sets out an implication, in Schedule 1, that meetings of local authorities should happen in a physical place, face-to-face, therefore the provision within the Bill serves to cover those decisions which were made before the Regulations came into force where the local authorities determine that there is a need to put these on a secure legal footing. 2940 I beg to move that clause 23 do stand part of the Bill.
The Speaker: Mr Hooper.
Mr Hooper: Thank you, Mr Speaker. I beg to second and reserve my remarks. 2945 The Speaker: I put the question that clause 23 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 24, Mr Harmer.
2950 Mr Harmer: Thank you. I now move on to the clauses which form Part 5 of the Bill and which deal with miscellaneous provisions, specifically Division 1, Departmental Facilities. Clause 24 provides the definition of certain terms used within this part of the Bill. The Council of Ministers intends to bring a Government amendment to clause 24 which will 2955 provide for clarity the definition of ‘O’s representative’ in relation to Part 5, Division 1, of the Bill, setting out that the representative has a clear and intentional connection with the individual, such as power of attorney, court appointment, involvement in care and treatment, and as such the DHSC is satisfied that the person holds the position of representative of the individual. This brings such definition in line with similar provision within the current National Health and Care Service 2960 Act 2016. I beg to move that clause 24 stand part of the Bill.
The Speaker: Mr Hooper.
2965 Mr Hooper: Thank you, Mr Speaker. I beg to second and reserve my remarks.
The Speaker: I call on Mr Ashford to move amendment 5.
Mr Ashford: Thank you, Mr Speaker.
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2970 The purpose of this amendment is to clarify and provide a greater degree of certainty and assurance as to whom a person’s representative is or might be in the context and for the purposes of clauses 26, Vacation procedure and 27, Occupation fee of this Bill. Essentially to ensure an individual’s interests can be considered with fairness, this amendment will redefine who might be considered as their representative. By doing so, this puts on a statutory basis those persons who 2975 fall within the definition of a representative and thus who is (a) to be informed before an individual is to be removed from a Department facility in accordance with clause 25 application of this Part and (b) where appropriate, to be afforded such time as is reasonable in the circumstances to remove the individual from the facility. The amendment is worded in such a way that it captures the recognised definition of a patient 2980 or service users’ representative, as included in the National Health Services Act 2016. Mr Speaker, I beg to move the amendment standing in my name.
Amendment to clause 24: 5. Page 19, for lines 5 and 6 substitute — “(d) “O’s representative” means any of the following— (a) a donee of a power of attorney; (b) a person appointed by the court to represent the interests of O; (c) any person involved in the care and treatment of O (whether professionally or otherwise and whether or not for remuneration); (d) any person whom the Department is satisfied holds themselves out (with or without the express or implied consent of O) as O’s representative.”
The Speaker: Thank you. Mrs Corlett, Hon. Member for Douglas Central. 2985 Mrs Corlett: Mr Speaker, I beg to second.
The Speaker: Thank you. Mr Robertshaw. 2990 Mr Robertshaw: Thank you, Mr Speaker. I wonder if the Minister would be kind enough to talk through 5(d) in his amendment:
(d) any person whom the Department is satisfied holds themselves out (with or without …
– is the thing I am after there –
… the express or implied consent of O) …
Could you talk to that please? Thank you. 2995 The Speaker: I call on Mr Ashford to respond to his amendment.
Mr Ashford: Yes, thank you, Mr Speaker. It is one I was actually anticipating coming up in fact! (Laughter) If there was going to be one 3000 part of the amendment. This was also anticipated in the National Health Services Act 2016 in the fact that there may be occasions where the patient is not in a position to be able to give their immediate expressed consent. So if you have got a family member who is concerned that you have got someone, for instance, who is due to be maybe vacated out into a residential home but due to medication that person is on or the situation they are currently are in hospital they are safe 3005 to discharge, but they are not able to actually turn round and indicate that person is representative of them. It is to have that ability that if you have got a close family member like a
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son, daughter and so on, they can indicate to the Department they can act on that person’s behalf, as long as the Department is satisfied that they have the right to do so. So the Department must be satisfied in this amendment that that person is acting as their 3010 representative and has the ability to do so. If we do not have that then you are going down the rabbit hole of having to ensure you have to have powers of attorney and everything else in place, so it is just to cover off all the options, Mr Speaker.
Mr Robertshaw: Would he give way? 3015 Mr Ashford: I certainly will give way, as always, to the Hon. Member.
Mr Robertshaw: Thank you. Just in time, thank technology, Mr Speaker. So great care will be taken, will it not, in allocating that sort of authority on behalf of O in the 3020 sense that even in families there are sometimes tensions and could you just clarify that?
Mr Ashford: Happy to, Mr Speaker. Certainly the one thing that DHSC does not want to do is get involved in family relationships and family arguments. It must be absolutely clear that that person is acting as the representative of O. If you have got two family members who are both 3025 saying very different things – and it does happen – about a patient, it is not for DHSC in those circumstances to decide who is acting and who is not acting; that is a matter the family would have to decide or the patient themselves, and if they are not in a position to do so, potentially a court would have to.
3030 Mr Robertshaw: Thank you very much.
The Speaker: I call on Mr Harmer to respond to the debate on the clause.
Mr Harmer: Thank you, I think it has been eloquently answered. 3035 The Speaker: Putting to you first the amendment in the name of Mr Ashford, those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 24, as amended: those in favour, please say aye; against, no. The ayes have it. The ayes have it. 3040 Clause 25, Mr Harmer.
Mr Harmer: Thank you, Mr Speaker. Clause 25 provides the Department of Health and Social Care with a legal basis to remove a person from one of their facilities that is used for, or in connection with, the provision of health 3045 or care services. I must reiterate that no individual is going to be requested to vacate a DHSC facility, be that a hospital bed, a nursing or residential home or a community house, without a formal assessment that they are clinically fit for discharge or have no assessed need to be in such a facility, and without an appropriate care plan for such a discharge, where needed. 3050 The power to do so under this clause is limited by, and subject to, strict checks and balances. Thus, the person that is duly authorised by the Department to move the person must one, have taken and considered the advice of the healthcare professionals involved in the care and treatment of that person; and two, having done so, must be satisfied that one of the following applies: that (a) it is no longer necessary for that person to remain at the facility and he or she can 3055 be removed from the facility without undue risk to their health or wellbeing; or (b) the facility being occupied is needed for someone else who requires care or treatment and, again, that the person can be removed without undue risk to their health or wellbeing.
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For good governance subsection (2) provides a statutory duty as to the records that must be kept where a person has been removed in accordance with this part of the Bill. 3060 Thus, the person duly authorised by the Department, will be required to retain a written record of the advice received from the healthcare professionals involved in the person’s care and detailing the reasons why the authorised person decided that the person can be removed from the facility. I beg to move that clause 25 do stand part of the Bill. 3065 The Speaker: Mr Hooper.
Mr Hooper: Thank you, Mr Speaker. I beg to second and reserve my remarks.
3070 The Speaker: I put the question that clause 25 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 26, Mr Harmer.
Mr Harmer: Thank you, Mr Speaker. 3075 Clause 26 puts on a statutory footing the procedure that the Department must follow before it removes, in accordance with clause 25, a person. Firstly and in accordance with subsection (1), before a person is removed they, or their representative, must be informed of the decision. Secondly, taking into account the circumstances at that time, after being informed of the decision the person must then be given enough time, to vacate or, where appropriate, the Department 3080 must afford the person’s representative the time that they need to remove the patient. Subsection (3) makes it clear that the Department will have a duty, where it is practical, to ensure the person is moved to another departmental facility and if it is not practical, to make sure the person has an appropriate care package in place prior to their removal. Subsection (2) will provide the Department with the ability to take such steps as are necessary to remove a person 3085 in circumstances where they or their representatives refuses, and subsection (6) allows the Department to call upon a constable for such purposes. In respect of the right of appeal, there is no measure within the Bill that overrides the local complaint resolution process for health services or similar for social care services, and should a resolution not be agreed, a petition of doleance could be raised. There remains existing provisions 3090 within section 8 of the Social Services Act 2011 for the assessment of an individual’s need for care and access to services, within this process there is legal provision for the right to make representation to the DHSC in respect of such an assessment. It should be stressed that using these powers would very much be an action of last resort. I beg to move that clause 26 do stand part of the Bill. 3095 The Speaker: Mr Hooper.
Mr Hooper: Thank you, Mr Speaker. I beg to second reserve my remarks.
3100 The Speaker: I put the question that clause 26 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 27, Mr Harmer.
Mr Harmer: Clause 27 of the Bill makes provision to allow the Department to: (a) charge a 3105 person a daily occupation fee in circumstances where they a person, without good reason, refuses to vacate; or (b) in circumstances where it is a representative of that person obstructing the removal, charge the representative instead, as an alternative to charging the person in occupation.
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Subsection (3) limits the daily occupation fee that the Department can charge to the average 3110 daily cost for each occupant of the facility, and of: (a) the maintenance of the facility and its staff; and (b) the maintenance and treatment of the occupants of the facility. I beg to move that clause 27 do stand part of the Bill.
The Speaker: Mr Hooper. 3115 Mr Hooper: Thank you, Mr Speaker. I beg to second and reserve my remarks.
The Speaker: I put the question that clause 27 stand part of the Bill, those in favour, please say aye; against, no. The ayes have it. The ayes have it. 3120 Clause 28, Mr Harmer.
Mr Harmer: Thank you, Mr Speaker. Now turning to Division 2, Public Health. Clause 28 amends the Public Health Act 1990. The subsections amend sections 51C and 51F of 3125 the Act to provide that a penalty of three months’ custody and fixed penalty notices may be enforced for a breach of the Health Protection Regulations. Within the current Public Health Act, section 51F(5) provides that the Health Protection Regulations may create offences punishable on summary conviction with a fine not exceeding four times level five on a standard scale up to £40,000. 3130 As has been seen over recent weeks, the ability to enforce directions made under the current Emergency Powers 1936 Regulations has maintained the low infection rate of the virus on the Island and enabled arrests, charges, custody, court appearances via live links and subsequent sentencing of individuals who have breached such. The Public Health Directorate within the Cabinet Office, together with the Attorney General’s 3135 Chambers, are drafting regulations under the current Public Health Act 1990 for all the necessary measures for the Island’s continued response to the global pandemic, including entry restrictions which will be subject to consideration by the Council of Ministers and will be submitted to the December 2020 sitting of Tynwald. With that, I beg to move that clause 28 stand part of the Bill. 3140 The Speaker: Mr Hooper.
Mr Hooper: Thank you, Mr Speaker. I beg to second and reserve my remarks.
3145 The Speaker: Thank you. I call on Mr Thomas to move amendments 6 and 7.
Mr Thomas: Thank you, Mr Speaker. Firstly, the Minister’s call for expeditious treatment of the Bill is key. Of course, the fact that 3150 the existing Public Health Act 1990 enforcement regime will not be supplemented by the potential for custody or fixed penalties unless the amendments proposed in the Bill before you are brought into force subsequent to Royal Assent is very important. I welcome the Public Health Act amendments here before us today and I will be supporting the call for Third Reading on that basis, clearly. 3155 I thank the Minister and Council for giving Members four working days before the amendment deadline last Monday to draft amendments. In particular, I thank senior officers from the current and former COVID-19 response team, the Public Health Director, as well as a senior legal drafter for a series of very helpful meetings and email exchanges in those four days. I also welcome the Keeling that was very kindly produced by the legal drafters to help us understand the small 3160 amendments that are before you today in the context of section 51 of the Public Health Act 1990.
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But, Mr Speaker, I hope the mover and this House will treat the amendments I have put before you in the spirit of what I have just said because they were worked up very quickly to help evolve the Public Health Act 1990 today, and I think probably in coming months and years. Two things were established in these meetings to aid my understanding and the House’s 3165 understanding, I hope. One is that the COVID-19 Information Centre ambition, which I outlined in the Second Reading, has been realised using regular arrangements and powers, so that is not an issue. And secondly I believe all of the existing regulations made under the Emergency Powers can, it seems, be made under the Public Health Act, as the Minister has just confirmed and as the Chief Minister helpfully announced back on 13th October, and isn’t that great news? 3170 I also welcome the Chief Minister’s announcement this morning that workshops for Tynwald Members about the Borders Framework will be arranged because that is absolutely excellent news to involve us more in this process. Thirdly, although I have no indication of what Ministers intend to advise Members and how they intend to vote, I hope Council and Keys will support at least some of the conservative 3175 amendments that are before you today in my name which go some way – and this is the crucial thing – to replicating procedures which were used during the COVID-19 emergency in respect of regulations. Like Minister Harmer, I hope that the Bill can go forward quickly now to maximise the chance of Royal Assent before 26th December. If the amendments fail they could come back in one of the other Bills, as I have outlined, which 3180 are promised as the arrangements and law for Public Health Protection are perfected. My amendment 6, sub-clauses (2) and (3) give the collective group of Ministers, the Council of Ministers, rather than the Minister for the Cabinet Office, the power to make regulations to deal with the emergency, just as they had that power to recommend these same regulations to His Excellency the Lieutenant Governor during the emergency. The alternative is that the power rests 3185 solely with the one person who is the Cabinet Office Minister, although I acknowledge the Cabinet Office Minister, the Chief Minister, is likely to have consulted lots of other people, including in the departmental meeting. I also note, however, that powers could be delegated from the Cabinet Office, I think that was the point that the Minister for Policy and Reform was making in his email yesterday evening. 3190 So in summary, surely it is better for the Council of Ministers to exercise these powers which involve so many professionals and politicians from across Government in a cross-Government joined-up way, rather than just the Minister of the Cabinet Office arranging for that sort of co-operation. That would be too much of a responsibility for just one person, given the nature of the emergency that we are facing. 3195 Moving on to subparagraph (4), I remind Hon. Members of the ad hoc structure created for the emergency, which changed during the early part of the emergency especially. The power to create a Public Health Protection Body – and I stress it is a power, it is a ‘may’; it is not ‘shall’, it does not look like anything described – the power is a way to make this structure to manage the public health emergency more transparent and better. Nothing is changed in the Public Health 3200 Act by the insertion of this clause, but Council of Ministers would have the chance, they would have the power to come back to Tynwald with a structure, in line with the pandemic plan perhaps or their experience and their learning from the emergency experience. But basically they have the power to come back with an order to make it. One protection for the sense in which I propose this amendment is the fact that it is a ‘may’, 3205 but the second one is that the clause instruction to the drafter was to make it look like the section in the Town and Country Planning Act, which was amended successfully in this House recently, whereby the actual body is created in the law but its structures are set up in orders that would have to come back to the other place. Subparagraph (5) is two small amendments noted quickly and proposed in good faith. Does 3210 the Isle of Man have ‘international travel’ or, as a Crown Dependency, and in line with the description of ourselves in the context of the Borders Framework should perhaps ‘international travel’ not be substituted by ‘travel across borders’? I think I note from the email from the Minister
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of Policy and Reform yesterday evening that international travel might mirror the 2005 World Health Organization convention language or something like that, but wouldn’t it be best to 3215 actually present that in terms of travel across the borders and our Borders Framework rather that pretending that we have international travel out of the Island across? Also, added in the health of others, if only to make the debating point that when we look after our community we are looking after our own health but also the health of the others. I would hope that Keys would consider these changes and any further consideration or refinement can be 3220 undertaken by our legislative expert colleagues in another place or thereafter. Nobody has suggested to me in the last few days that these amendments which were proposed by an expert are in any sense or respect stupid or flawed, or yet at least, and so I hope they are on the table in good faith. Mr Speaker, in the light of the fact that subparagraphs (2), (3), (4) and (5) are slightly different, 3225 I hope that having moved them all together you will let them be voted on separately. (The Speaker: Yes.) Thank you. Amendment 7 is grouped together because it is about the Tynwald approval process and it is an attempt to mimic more or less the Tynwald approval process that was used successfully during the emergency under the Emergency Powers Act. It differs really only in one way which is under 3230 the proposal before you there is no right for Tynwald Court to amend the regulations, as was first used by Ms Edge, I think, and then Mr Hooper used it and several of us used it later during the emergency for the Emergency Powers Regulations. I believe my proposal is conservative, but Legislative Council could usefully consider whether the Public Health Act 1990 in respect of a public health emergency should be amended to give 3235 Tynwald Court the amending power it has in the 1936 Emergency Powers Act. I included 14 days for the action in Tynwald, after discussion with officers, as it seemed reasonable; a week longer than the seven days in the Emergency Powers Act and a fortnight or so shorter than the normal Tynwald procedure although significantly shorter than the current Tynwald procedure in the Public Health Act 1990 at the moment, which can be the following Tynwald. 3240 Subparagraph (7) deals with the consequences of an amendment failing or falling in Tynwald. It is a conservative replication of what appears in more general legislation in the specific context of amendable regulations made under the Public Health Act 1990. The amendment is properly drafted, I am assured, and surely nobody can object to its inclusion. It states that if an amendment fails or falls the existing arrangements provided for in law are preserved. 3245 I beg to move the amendments standing in my name:
Amendments to clause 28: 6. Page 20, after line 23 insert — “(2) In the following provisions, for “Cabinet Office” substitute “Council of Ministers” — (a) section 51B(1); (b) section 51C(1); (c) section 51D(1); (d) section 51G(7); (e) section 51H(6); (f) section 51L(3) and (4); (g) section 51M(2) and (10); (h) section 51N(1); (i) section 51(O)(1)(b), (c) and (d); (j) section 51PA; (k) section 51Q(1). (3) In section 51I(6) for “Department” substitute “Council of Ministers”. (4) After section 51A (infection or contamination), insert — “51AA The Public Health Protection Body
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(1) The Council of Ministers may, by order (“the constitution order”), constitute a body (the “the Public Health Protection Body”) to carry out any of the functions under this Act to which subsection (5) applies. (2) The constitution order may in particular provide for — (a) the constitution of the body and its sub-bodies; (b) the terms of office of members; (c) termination of membership; (d) proceedings and procedure; (e) without limiting paragraph (d) — (i) the appointment of a chairpersons; (ii) voting procedures; and (iii) the quorum of the body and sub-bodies; and (f) such transitional arrangements as the Council of Ministers considers necessary or expedient. (3) The Council of Ministers shall appoint the members of the body. (4) Schedule 2 to the Government Departments Act 1987 applies to the body as it applies to a Department and accordingly references in that Schedule to a Department shall be read as including a reference to the PHPB. (5) This subsection applies to any function — (a) performed by the PHPB and specified in the constitution order; (b) which the Council of Ministers authorises the PHPB to exercise under section 3 of the Government Departments Act 1987; or (c) which is transferred to the body by an order under Schedule 2 to the Government Departments Act 1987. (6) The Council of Ministers shall arrange for the publication of an authorisation referred to in subsection (5)(b) in a manner the Council considers will bring it to the attention of those likely to be affected by it.” (5) In section 51B (health protection regulations: international travel etc) — (a) in the heading, for “international travel etc” substitute “travel across borders”; (b) in subsection (2) (g) after “health” insert “ or the health of others”.” Re-number following subsections accordingly
7. Page 20, after line 35 insert — “(6) In section 51Q (Tynwald control: regulations and orders), for subsection (5) substitute — “(5) A public document to which subsection (3) applies ceases to have effect at the end of the period of 14 days beginning with the day on which it is made unless, before that time, Tynwald has approved it. (5A) If Tynwald is not due to sit during the period referred to in subsection (5) the President of Tynwald must summon Tynwald to meet on a day specified by the President within that period. (5B) Where it is not reasonably practicable for Tynwald to sit within the period referred to in subsection (5A), the President of Tynwald must summon Tynwald to sit on the earliest day it is capable of sitting thereafter. (5C) Where subsection (5B) applies, a public document shall continue in operation pending its approval (or otherwise) by Tynwald.” (7) After subsection (7), insert – “(8) If a public document to which this section applies ceases to have effect as a result of Tynwald’s failing to approve it, any Manx legislation amended or repealed by the document is revived on the passing of the resolution.”
The Speaker: Mr Shimmins.
Mr Shimmins: Thank you, Mr Speaker. I beg to second and reserve my remarks. 3250
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The Speaker: Mr Robertshaw.
Mr Robertshaw: Thank you, Mr Speaker. If I can speak to number (4), the Public Health Protection Body, which I intend to support, but 3255 I draw attention to the fact that it may very well be necessary to consider in greater detail what the body may look like, in terms that as actually proposed in this amendment it could have quite avert political control, which would be a matter of concern. That will, I think, require deliberation and I would invite the mover to comment.
3260 The Speaker: No other Member wishes to speak; I will call on Mr Thomas to respond to Mr Robertshaw’s comment.
Mr Thomas: Thank you very much, Mr Speaker. It is a very pertinent comment. I too have concerns about what it would look like, and that is 3265 why it is drafted in this way. It is ‘may’ set up this body, and everything would need to be considered in consultation. I am sure the order could come back when it is needed and I am sure the Public Health Directorate, the Council of Ministers and all the other professionals involved would contribute to a consultation on exactly how this body would be constituted, if it is needed at all. 3270 The Speaker: Mr Harmer to respond to the debate on the clause.
Mr Harmer: Thank you, Mr Speaker. I shall start on amendment 7, and I would agree with the mover on amendment 7 regarding 3275 coming back to Tynwald and so forth, I see that as a positive addition so I am content with the second of the two. Now, regarding amendment 6, and maybe it is just a case of … I know the mover was talking about looking at public health more in general than in detail, well maybe that is the best opportunity for that. 3280 I think Mr Robertshaw alluded to the main issue as regarding the political nature of such a body. In particular, it is important that we do not lock ourselves into an overall legislative process as part of one specific response. In this instance, our response to a global pandemic, which may then impact or undermine the important work, routine work, and the sizeable routine work in relation to communicable disease control undertaken by the Public Health Directorate and others 3285 across Government. The amendment as drafted obviously does not go into the detail on the role or information on the proposed board, but health protection is only one of the domains of public health professional practice, and no argument has been made as to why only it would require political oversight and/or control. 3290 Health protection comprises far more than response to pandemics, the emergency planning role for which, in any event, sits with the Department of Home Affairs, or even the control of communicable diseases. It includes responses to all biological, chemical, radiation, nuclear and environmental hazards, covered jointly with Environmental Health and DEFA as appropriate and wider health programmes, including vaccination, immunisation and screening for conditions such 3295 as cancer, prenatal or new-born anomalies. The work is delivered within a framework of professional governance and accountability. While public and environmental health functions should be subject to overview and scrutiny, including accountability to Tynwald, the Health Protection Board appears to envisage a role in day-to-day management, which would not be appropriate and so cannot be supported as written. 3300 Obviously, as I said, the Member talked about maybe amendments in the future for other Bills, but I think the time for this is not now. What we do not want to do is create a political board that
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would have undue influence when there is already a structure and already a process that goes into Tynwald. (Interjection by Mr Thomas)
3305 The Speaker: Yes, I think the Hon. Member has given way rather than finished.
Mr Thomas: Thank you. Just to clarify, it is a body, not a board for the deliberate purposes, and I just want him to understand, to make sure I appreciate it, just to know which way to vote myself. (Laughter) 3310 Basically, I think Council of Ministers supports subparagraphs (2) and (3) in changing it to Council of Ministers from Cabinet Office, because the Minister did not cover that in his speech. It is only the one on the Public Health Protection Body that you do not support.
Mr Harmer: I think at the moment, because I have not had, and you said you had not had 3315 enough time, I have not had enough time to adjudicate on that, so, unfortunately, I am going to have to… (Interjection and laughter) I treated amendment 6 as one piece and also that the Public Health Body was one piece, but I am happy with amendment 7. Thank you, Mr Speaker.
3320 The Speaker: Right. Hon. Members, as was requested, I am content that the amendments are sufficiently discrete and separable and that they do not hang on each other so that they can be voted on separately. I will turn to them each in part, and I refer Hon. Members to the Order Paper on page iii which has them set out. Perhaps confusingly, we start in recommendation 6 with part (2), which starts 3325 after page 20, line 23 insert – and replaces for ‘Cabinet Office’ substitute ‘Council of Ministers’. Are we all on the same page? (Members: Yes.) Good. Those in favour, please say aye; against, no. The ayes have it.
A division was called for and electronic voting resulted as follows:
FOR AGAINST Mrs Barber Mr Ashford Mrs Caine Mr Moorhouse Mrs Corlett Dr Allinson Mr Peake Mr Baker Mr Robertshaw Mr Boot Mr Shimmins Mr Callister Mr Speaker Mr Cannan Mr Thomas Mrs Christian Mr Cregeen Mr Harmer Mr Hooper Mr Perkins Mr Quayle Mr Skelly
The Speaker: Now, Hon. Members, 8 for, 14 against, that amendment therefore fails. 3330 Turning to 6(3), for ‘Department’ substitute ‘Council of Ministers’ in 51I(6), those in favour, please say aye; against, no. The noes have it. The noes have it. Part (4), Public Health Protection Body, those in favour, please say aye; against, no. The noes have it. The noes have it. And paragraph (5) over the page, health protection regulations: international travel, those in 3335 favour, please say aye; against, no. The noes have it. The noes have it. Turning then to amendment 7, those in favour, please say aye; against, no. The ayes have it. The ayes have it.
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So, Hon. Members, that brings us to the fact that the only successful amendment was amendment 7, so I put to you clause 28, as amended by amendment 7: those in favour, please say 3340 aye; against, no. The ayes have it. The ayes have it. Now I call on Mr Thomas to move the new Division, amendment 8.
Mr Thomas: Thank you, Mr Speaker. Council of Ministers has quite properly dealt with the local authority meeting issue in its 3345 legislative proposal. The best way forward for all other meetings would have been, and still is, eventually to review every piece of legislation in respect of the holding of virtual meetings. But in the interim, the proposal before you today is a pragmatic and could be a helpful legislative response in the future if any law involving meetings that normally were held physically but has been or might be held virtually if any problems arise. 3350 Specifically, this insertion in the Interpretation Act 2015, and indeed my remarks today, in fact, could be helpful to anyone who needs to construe the law in any situation in the future. The amendment before you merely states that a meeting includes a virtual meeting unless the legislative context provides otherwise. No specific legislative provision in respect of meetings is changed as such, but if this amendment is approved there would be a potentially useful definition 3355 in place, as there is for things like numbers, genders etc. in that same piece of overarching legislation. I note that the Minister for Policy and Reform has written in his email last night, ‘With regard to the application of the clause in a wider context to other meetings taking place with the use of technology, this is not a matter for primary legislation, but rather a matter of process and 3360 procedure within that setting, such as meetings of the Council of Ministers, parliamentary sittings, or operational group meetings across Government and in the private sector.’ Who can disagree with that? But this amendment will not be detrimental to that, it will not change that, and in fact can only be helpful. So I hope this House will support the small insertion of potentially a helpful piece of interpretation in the Interpretation Act. I move:
New Division 8. Page 20, after Division 2 – PUBLIC HEALTH, insert the following new Division — “DIVISION 3 – INTERPRETATION 29 Amendment of the Interpretation Act 2015 (1) The Interpretation Act 2015 is amended as follows. (2) In the Schedule (defined terms), at the appropriate place insert — ““meeting” includes, unless the context otherwise requires, a virtual as well as a physical meeting.”” Re-number following Divisions and clauses accordingly.
3365 The Speaker: Mr Shimmins.
Mr Shimmins: Thank you, Mr Speaker. I rise to second my hon. friend’s amendment. I think it is a practical amendment. I think it modernises the Interpretation Act and I think actually it enables people just to get on with things 3370 when perhaps they are concerned about this issue just because of the way the world has changed. Ultimately, if people who are convening meetings decide actually they must have a physical meeting well clearly they can build that into their governance arrangements for whatever body that they are looking at. So I think it is a very sensible amendment, and I hope Hon. Members will support it. 3375 Thank you.
The Speaker: No Member wishes to speak. I will put the question that the new Division, that is amendment 8, be approved … Mr Harmer.
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Mr Harmer: Yes. 3380 The Chief Minister: No! (Laughter)
Mr Harmer: I wanted to speak to that.
3385 The Speaker: Well, I did try and indicate that everyone had an opportunity.
Mr Harmer: Apologies, it was quicker than I expected, that was all.
The Speaker: Well, it is your big chance, Mr Harmer. (Laughter) 3390 A Member: Not again!
Mr Harmer: I understand the hon. mover’s intent in this, and I understand what is behind it, but there are a number of issues, which I will come on to. 3395 With regard to the application, it is in the wider context of other meetings taking place virtually or remotely, for example, Teams or Zoom, obviously that is a matter not for primary legislation, but a matter of process and procedures within the setting, such as Council of Ministers, parliamentary sittings or operational group meetings across Government and in the private sector. However, anything in the Interpretation Act 2015 is subject to express contrary intention. 3400 So any enactment referring to ‘meeting’ which references ‘in person’ would have a contrary intention and the definition would not bite. The difficulty is that the draft amendment which deploys an ‘unless the context otherwise requires’ device, which is unhelpful and unclear. For example, a number of Manx enactments use phrases which are not a specific contrary intention but leave it unclear whether the circumstances 3405 require ‘personal presence’ – e.g. ‘attendance at’, Police Act 1993; ‘not being present’, Agricultural Marketing Act (No 2) 1948; ‘fails to attend’, Churchwardens Act 2013; ‘absence of’, Advocates Act 1995. In each of those cases, the reader would have to try to work out whether the definition bit or was displaced because of the context. This naturally runs the risk of varying interpretations of the same provision and different interpretations being given to different provisions in the same 3410 Act. So, in essence, it would cause incredible confusion.
Mr Shimmins: No, it wouldn’t! (Laughter)
3415 The Speaker: This is not going to turn into a Punch and Judy show on my watch! (Laughter)
Mr Robertshaw: It is behind you!
The Speaker: If no other Member wishes to speak, I will call on the mover to reply – this is 3420 amendment 8 in principle.
Mr Thomas: Thank you very much. I am delighted that the legislative drafting team has actually got such a comprehensive list of the reference to meetings so there is an alternative approach and I am slightly disappointed that 3425 we could not come forward with the alternative approach, which was actually going through all of the pieces of legislation that is confusing. We had all of the extraordinary meetings of Tynwald which were called by the President in the usual manner in 1919, because that is when the law was written. We have had lots of examples there of other places where there is a slightly confusing thing. That is the first point I want to 3430 make.
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There is perfect way, there is a better way of doing it and in four days and perhaps 15 minutes that the legal drafter – because he is working on some, very professionally, all at once, had to do it – there is a better way and I hope this is helpful. The second point is I think I actually summarised the speech that the hon. mover made and it 3435 might be confusing, it might be helpful, we do not know in which situation this will arise. If the amendment was deliberately drafted in a bad way to help a mover of an amendment, which I do not think it was, but that could have been implied from what the mover said, because I did not give instructions about how to draft it exactly. I just gave the intention of what was required, which was to put something there that could be referred to by somebody when they were 3440 construing the law, I would be disappointed. So with that, I move the amendment and I hope this House will actually support it.
The Speaker: I put the question that amendment 8, that is the new Division 3, be approved in principle. Those in favour, please say aye; against, no. The noes have it.
A division was called for and electronic voting resulted as follows:
FOR AGAINST Mrs Barber Mr Ashford Mrs Caine Mr Moorhouse Mr Peake Dr Allinson Mr Shimmins Mr Baker Mr Thomas Mr Boot Mr Callister Mr Cannan Mrs Christian Mrs Corlett Mr Cregeen Mr Harmer Mr Hooper Mr Perkins Mr Quayle Mr Robertshaw Mr Skelly Mr Speaker
3445 The Speaker: With 5 votes for, 17 against, the noes have it. The noes have it. Clause 29, Mr Harmer to move.
Mr Harmer: Thank you. Clause 29 provides the Council of Ministers with a general regulation making power for the 3450 purpose of giving full effect to the Act. I beg to move that clause 29 do stand part of the Bill.
Mr Speaker: Mr Hooper.
3455 Mr Hooper: Thank you, Mr Speaker. I beg to second and reserve my remarks.
The Speaker: I put the question that clause 29 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. 3460 I call on Mr Harmer to move suspension of Standing Orders.
Mr Harmer: And also the Schedule or have we already done…?
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The Speaker: The Schedule was done in conjunction with clause 12, if you recall, Minister. 3465 Mr Harmer: Thank you for that.
Courts, Tribunals and Local Authority Procedures and Miscellaneous Provisions Bill 2020 – Standing Orders suspended to take Third Reading
The Hon. Member for Glenfaba and Peel (Mr Harmer MHK) to move:
That Standing Orders, in particular Standing Order 4.11(1), be suspended to permit the Third Reading of the Courts, Tribunals and Local Authority Procedures and Miscellaneous Provisions Bill 2020 be taken at this sitting.
Mr Harmer: Thank you, Mr Speaker, and I wish to thank Hon. Members for their support. I beg to move that Standing Orders, and in particular Standing Order 4.11(1), be suspended to permit the Third Reading of the Courts, Tribunals and Local Authority Procedures, and Miscellaneous 3470 Provisions Bill 2020 to be taken at this sitting.
Mr Hooper: Thank you, Mr Speaker. I beg to second and reserve my remarks.
The Speaker: Mr Shimmins. 3475 Mr Shimmins: Thank you, Mr Speaker. I was not going to speak at this stage of the Bill, and I will be supportive of Third Reading, but I rise to my feet really following the Minister’s remarks when considering one of Mr Thomas’s amendments, when he said he had not enough time to consider this amendment. That is despite 3480 his assembled team of experts who are in the Public Gallery, people sending him all sorts of electronic messages to guide him in this matter, and I just feel the way that this is being conducted is rather unsatisfactory. In terms of the previous sitting of this House we were asked to consider all stages of this Bill in one day. This is a very important Bill, which we have discussed at some length today with 3485 individual experts. We have also seen a number of amendments which may not have been possible if that motion had been passed just two weeks ago, which was strongly pressured by the Council of Ministers to do that. So I would suggest, Mr Speaker, a few things that Hon. Members might wish to consider. First of all, we should have sat in September to consider this Bill. We were all here. Why weren’t we 3490 here doing that then? I am really disappointed that Council of Ministers and others involved in that decision-making process did not seize that opportunity. That would have been much more sensible, we could have then given this Bill the appropriate time and attention. In terms of Mr Thomas and I raising amendments, as Mr Thomas said, we had four days to do that. I would not in any way fault the support we were given by the drafter, which was helpful, 3495 but really in terms of the way this process has been tried to be rushed through in one day, I would suggest that learnings need to be taken, and should we find ourselves in this situation, this House should come back and sit earlier in the summer. That is the bottom line. We have the longest summer recess of any parliament in the British Isles, and whatever justification people may wish to make up, I think that is really poor. 3500 So I hope Hon. Members do not mind me speaking my mind, but I think just having heard that the Minister had not enough time to consider an amendment which was submitted in good faith, I would suggest that should be a learning that should be taken on board by everyone in this Hon. House.
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And with that, Mr Speaker, I will support the Third Reading. (Laughter) 3505 Thank you.
Mr Thomas: Well said.
The Speaker: Mover to reply to the motion. 3510 Mr Harmer: Thank you, and absolutely it has always been wanting there to be engagement with Members right the way through the process. Obviously right the way back in August when I wrote, and given four weeks of consultation, we could not have gone any earlier because obviously that consultation process had to go through. But in everything we always learn new 3515 things. My comment about the clauses was the fact that clause 6 as it stood as a whole I could not support. There was then talk about splitting different parts of it and I think the mover at that time talked about actually it was a work in progress, so I am not going to just support a clause on the floor with literally, as we are speaking, talking about splitting parts of the amendment. 3520 Obviously my door is always open to discuss these kind of things and go into great depth. As I say, this is a process that has gone back since June and the Bill has actually been in full consultation since August. So with that, I beg to move.
3525 The Speaker: I put the question that Standing Orders be suspended to permit the Third Reading of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it.
Courts, Tribunals and Local Authority Procedures and Miscellaneous Provisions Bill 2020 – Third Reading approved
The Speaker: Mr Harmer to move Third Reading.
Mr Harmer: Thank you, Mr Speaker, and I would like to thank all Hon. Members for engaging 3530 in this process. As Hon. Members will recall, Parts 2 and 3 of the Bill relate to existing Government policy and would have been brought forward within the Justice Reform Bill were it not for the advent of the emergency. These provisions had origins in the Criminal Justice Strategy and its associated detailed review of the Criminal Justice System, undertaken a number of years ago. 3535 Indeed these provisions were publicly consulted upon in 2018 and would have come before us in much the same form within the Justice Reform Bill. However, with the emergency came a necessity for speed of implementation of these provisions to enhance the safety of the courts process for all and, with regard to the provisions for bail, to limit the time an individual spent in custody before they were released on bail with 3540 conditions that were deemed necessary before their subsequent court appearance. We could not have imagined the changes that society in general would face this year, and only have to look beyond our own shores to see the ongoing battle against coronavirus. An invisible enemy spread by close contact. So, while the live link will never replace face-to-face justice, and nor should it, it is a vital part 3545 of the present ability to ensure that justice may be properly served safely. Furthermore, given the ongoing uncertainty within the United Kingdom and the wider world the present use of the live link provisions are invaluable in allowing the possibility of expert witness participation without unnecessary travel. Sadly, they are also fundamental in enabling remote participation in the court process by those potentially infected with coronavirus who have
______187 K138 HOUSE OF KEYS, TUESDAY, 27th OCTOBER 2020
3550 breached the Island’s self-isolation requirements. That said, I would note that the origins of these provisions were, for the most part, purely practical. The intention was that certain court appearances, in particular those for brief but necessary mentions might instead take place via live link and thus remove the need to transport an individual from the Isle of Man Prison, and the associated discomfort, to the individual, and expense to 3555 society. The requirement for these eligible criminal proceedings to be in the interests of justice and the fact that participants have the opportunity to make representations, that is to object to the use of live link, are inbuilt safeguards to this process. It is also noted anecdotally during recent months with the use of the live link, there has been 3560 a fair level of satisfaction to proceed in this way and participants tend to be, on balance, happy to do so. Conditional bail is another area in which the law of the Island prior to the emergency diverged from that of other jurisdictions. The ability for our Police Force to set conditions when bailing an individual prior to their appearance in court is practical. It saves the need for additional Saturday 3565 court appearances at which conditional bail would likely be the same result and with the same conditions. It also provides a level of safety in the release of an individual from police custody ensuring that they have to abide by those same reasonable conditions. Again, to turn for a moment to the safeguards around this process. The individual may choose not to accept any conditions in which they will be brought before the court, or if they should 3570 accept conditions which they later are dissatisfied then they may request a review by a senior officer and should that not resolve the matter, a written appeal may be made to a justice of the peace. This use of conditional bail has been even handed with little objection to the conditions applied. Finally, with regard to bail, there are certain conditions included that relate to arrest for failure 3575 to surrender to custody, attend a police station or a breach of bail conditions. The remaining amendments made within that Part of the Bill are to ensure that the language works appropriately in each piece of legislation and the power of arrest following any breach of conditions is set out. These are all practical provisions that are part of a wider toolkit that forms the present process 3580 by which justice can take place. The live link is a practical and sensible measure for the present times and for the future. Conditional bail furthers the valuable part played by the Police as first point of contact with the criminal justice system. To recap briefly, this Bill will provide the Department of Health and Social Care with the legal 3585 authority to remove a person from one of its facilities in circumstances where it is no longer necessary for that person to remain or the facility in question is needed for someone else who requires care or treatment. Importantly as to the exercise of this power, i.e. the when and the how, this Bill puts in place necessary statutory safeguards so that: (a) the healthcare professionals involved in that person’s 3590 care and treatment must have been consulted and their advice considered; and (b) having done so, a person can only be removed where there is no undue risk to his or her health or wellbeing. Further, it is a provision under this Bill that a written record of advice of the health care professionals and the reasons why it was considered that a person could be removed from the facility without undue risk of harm to their health or wellbeing must be kept. Keep in mind, that 3595 these powers would only be used by the Department as a last resort. In relation to the clauses to amend the Public Health Act 1990, the Act provides for Regulations to be made in the event of a future need – an upsurge in positive coronavirus cases, a future pandemic of another origin or a future civil contingency situation that threatened the health and wellbeing of our nation. And indeed the Public Health Directorate is drafting such regulations at 3600 this time, in case of need.
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The Public Health Act currently provides that Health Protection Regulations may create offences punishable on summary conviction with a fine, granted that is up to £40,000, but is not the provisions for custody for an offence under such Regulations nor for fixed penalty notices to be issued for such offences which are within this Bill. 3605 The amendments to the Act before us today make for such enforcement. In closing, Mr Speaker, I would like to pay thanks to the public and the Members of this Hon. House and the Legislative Council who have engaged with this Bill in its expedient development. I would also like to thank my colleague in the Cabinet Office, Mr Hooper, for his eye on detail in all things including this Bill, and for seconding me in this House today. 3610 Mr Speaker, I beg to move:
That the Courts, Tribunals and Local Authority Procedures, and Miscellaneous Provisions Bill 2020 be read for a third time.
The Speaker: Mr Hooper.
Mr Hooper: Thank you, Mr Speaker. I beg to second and reserve my remarks.
3615 The Speaker: Mr Cregeen.
Mr Cregeen: Thank you, Mr Speaker. I will not go through my long notes, but all I would say is that I would like to thank Hon. Members for their support regarding the bail and also the live links and how they have proved 3620 valuable over this time. Mr Speaker, I did give an undertaking that I would try and get some clarity on the comment from Ms Unsworth regarding an individual returning to the police station. A response I have got is, ‘Bearing in mind there are two possible scenarios here, for conditional bail being set by the Police the approach that the Chief Constable would expect is that the custody staff would be 3625 pragmatic and even handed. If a person had a valid reason to wish to vary the conditions for a time they would consider this. For conditional bail set by the court it is not a matter for the Police to vary and the person would have to return to court.’ So I thank Hon. Members for their support.
3630 The Speaker: I call on Mr Harmer to reply.
Mr Harmer: Again, I would like to thank my seconder, the Minister and for all those Departments and to Hon. Members for the engagement of this process, I think it has been a really good day how we have explored a number of issues, and I would thank all Members for their 3635 patience and for their support. Thank you, Mr Speaker.
The Speaker: I put the question that the Courts, Tribunals and Local Authority Procedures and Miscellaneous Provisions Bill 2020 be read for a third time. Those in favour, please say aye; 3640 against, no. The ayes have it. The ayes have it. It would have been inappropriate for me to have commented any earlier on this process, lest I be accused of influencing votes, but I should point out that the issues regarding timescales would have been known about when emergency powers ended six months ago, and I do ask the executive to think carefully about rushing legislation because it does have an impact on the quality 3645 of debate and decision-making. It is important to engage early and often with Members to promptly ensure that they get answers to their questions. That said, the speed at which we process legislation to this House is a matter for Members of this House as to whether they acquiesce or not with the suspension of Standing Orders.
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I just wanted to make that point. 3650 Several Member: Hear, hear.
Mr Thomas: Well said.
6.2. International Maritime Standards Bill 2020 – Clauses considered
Mr Baker to move.
The Speaker: We move on then, Hon. Members, to the International Maritime Standards Bill 3655 2020, and I call on Mr Baker to move.
Mr Baker: Thank you, Mr Speaker. I would firstly like to thank Members for supporting this Bill at the Second Reading earlier this month. As I have explained before, this Bill has been prepared as part of the Island’s interpretation 3660 of the International Maritime Organization’s Instruments Implementation Code (III Code). The International Maritime Organization (IMO) formally adopted the III Code in 2013 with the aim of providing a global standard for the implementation of certain IMO conventions. The III Code sets out the responsibilities and obligations of Member States and is broken down into flag state, port state and coastal state responsibilities. 3665 On 1st January 2016 the IMO III Code became mandatory. The aim is to ensure a consistent and auditable standard of safety and marine pollution prevention in International Maritime Organization Member States, which currently number 174. I have previously explained that, as part of the III Code, there is a requirement to ensure that the various conventions to which the contracting governments or parties are signed up to are 3670 included in their national laws and regulations. This Bill will provide for the allocation of specific responsibilities for discharging the Island’s obligations under the international conventions which are relevant to the III Code. The Bill will also provide a mechanism by which the extent of the Island’s compliance with relevant international conventions may be enhanced. This will be achieved by providing the Chief Secretary 3675 with a broad power to assign responsibility for performance specified tasks in respect of flag, port or coastal state obligations. Such tasks must be tasks which the Island is duty bound to perform in fulfilment of its international obligations under the international conventions concerning maritime safety and the prevention and control of marine pollution from ships which we have already committed to observing – 3680 The Speaker: Mr Baker, this is not Second Reading, this is the clauses stage.
Mr Baker: I appreciate that, Mr Speaker, I was just contextualising the clauses for –
3685 The Speaker: Well, I think we do that at Second Reading, Mr Baker.
Mr Baker: Thank you. I will move straight on to the clauses. (The Speaker: Thank you.) Turning to clause 1, this clause gives the Act resulting from the Bill its short title, Mr Speaker. 3690 I beg to move that clause 1 stand part of the Bill.
The Speaker: Thank you.
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Mr Callister.
3695 Mr Callister: Thank you, Mr Speaker. I beg to second and reserve my remarks.
The Speaker: Thank you. I put the question that clause 1 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 2, Mr Baker. 3700 Mr Baker: Thank you, Mr Speaker. Clause 2 introduces the details of when the Act will commence. Mr Speaker, I beg to move that clause 2 stands part of the Bill.
3705 The Speaker: Thank you. Mr Callister.
Mr Callister: Thank you, Mr Speaker. I beg to second.
3710 The Speaker: I put the question that clause 2 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 3 and Schedules 1, 2 and 3, Mr Baker.
Mr Baker: Thank you, Mr Speaker. 3715 Clause 3 sets out the definitions of key terms that are used in the Bill. Schedule 1 sets out the relevant international conventions to which section 3 of the Bill refers. Schedule 2 sets out the form of the non-legislative public document to which the Bill refers, and Schedule 3 sets out the form of written instructions to the Treasury to which the Bill refers. Mr Speaker, I beg to move that clause 3 and Schedules 1, 2 and 3 stand part of the Bill. 3720 The Speaker: Mr Callister.
Mr Callister: Thank you, Mr Speaker. I beg to second.
3725 The Speaker: Mr Thomas.
Mr Thomas: Thank you, Mr Speaker. I really appreciate the work that the Department –
3730 The Speaker: My apologies, I should have asked Mr Skelly to move his amendments before calling on you to speak. Mr Skelly.
Mr Skelly: Gura mie eu, Loayreyder. 3735 I thank my hon. colleague for bringing forward such a crucial piece of legislation to this House, it is one I wholeheartedly support. The Isle of Man Ship Registry, which sits in our Department, is an incredibly important asset to the whole of the lsland. It is well regarded globally as a Category 1 register, and in order to maintain this position it is crucial that the Isle of Man is well prepared for the forthcoming audit. 3740 Performing well at this audit is important, not only for the Island’s maritime industry, but the wider Red Ensign Group, of which we are members, alongside the UK and many others. It is essential that the international obligations contained within the IMO Instruments Implementation Code are met by the Isle of Man. There has been great collaboration between the Department of Infrastructure and our Department in recent years, working to ensure that we can demonstrate
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3745 to an IMO auditor that we are indeed satisfactory in meeting our obligations for flag, port and coastal state. Whilst I am incredibly supportive of this legislation, a number of minor inaccuracies within the Bill have been identified and they should be corrected at this stage. To this end, I am proposing a number of minor amendments to the Bill to rectify what are essentially typographical errors. They 3750 do not change the purpose of the Bill, nor do they fundamentally change any of the provisions within it. The proposed amendment to clause 3 corrects a date referred to in the definition of the relevant international convention. The definition refers to 4th August 2013 as a date on which the IMO resolution was adopted. The date of adoption was in fact 4th December, and this amendment 3755 corrects that inaccuracy. Loayreyder, I beg to move this amendment to the Bill:
Amendment to clause 3: 1. Page 6, line 6, in the definition of “relevant international conventions” in subsection (1), in paragraph (c)(i), for “4 August 2013” substitute «4 December 2013».
Amendments to Schedule 3: 2. Page 16, in the item numbered ‘4.’ in the table, in the second column, for “(in 4)” substitute «(in 3)». 3. Page 16, in the item numbered ‘4.’ in the table, in the third column, for “Attach.” substitute — «Provide brief description here, and attach to this form any necessary supporting document(s).». 4. Page 16, in the item numbered ‘5.’ in the table, in the second column, for “(in 4)” substitute «(in 3)». 5. Page 16, in the item numbered ‘5.’ in the table, in the fourth column, for “(reason to be provided)” substitute «(provide reason here and, if needed, on attached document(s))». 6. Page 16, the item numbered ‘6.’ in the table, in the second column, for “(5)” substitute «(4)». 7. Page 16, in the item numbered ‘7.’ in the table, in the second column, for “(in 4)” substitute «(in 2)». 8. Page 16, in the item numbered ‘8.’ in the table, in the second column, for “(in 1)” substitute «(in 3)». 9. Page 16, in the item numbered ‘9.’ in the table, in the second column, for “(4)” substitute «(3)
The Speaker: Thank you. Mr Hooper. 3760 Mr Hooper: Thank you, Mr Hooper. I beg to second the amendment.
The Speaker: Mr Thomas.
3765 Mr Thomas: Thank you, Mr Speaker. And again, I congratulate and thank the Department for welcoming me into this debate and for arranging for an appointment with the drafter, with the support of departmental officers, to discuss some concerns, which I am now going to put down on the record in case the Legislative Council wants to take them up, or at least they are there in the future if there is any ambiguity. 3770 The first one is that in section 3, definition of interpretation, there is a section on relevant international conventions, and I will not go through how that is defined, but is defined very precisely. I was concerned that in future years it is surely possible that a relevant international convention is extended to the Island before it is included in Schedule 1, if only through error – and errors do happen, as we have seen with the amendment that has just been moved from the 3775 Department for Enterprise – and thus there is a potential difficulty thereafter. However, I have
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been assured that this possibility is contrary to practice, because the UK consistently follows the practice of asking all Crown Dependencies and Overseas Territories if they wish to have any given convention extended to them and, crucially, that is done before extension of the convention to the Crown Dependency or Overseas Territory. 3780 The query is accompanied by a demand for the Crown Dependency or Overseas Territory to demonstrate legislative readiness to have the convention extended in the event that the territory wants it to be extended. A demonstration of legislative readiness also has to be made before extension takes place. So, I am informed and then assured that in reality there is no chance that a convention will be extended before a chance has been given to take the necessary preparatory 3785 steps. And, in any case, even if that were to happen, there would be no issue because nothing would prevent Tynwald from passing an Act to incorporate that convention into domestic law. Alternatively, the convention may well fall within the scope of an existing enabling power for the relevant provision to be made by regulations. The point is that the failure to include a convention in the Schedule to the resulting Act will not 3790 be fatal. There are other perfectly acceptable routes available for ensuring that there is a domestically enforceable duty to comply with the obligations under that convention. So accordingly, once again, I am assured by the drafters that there is absolutely no need for the amendment that I was trying to have drafted. I hope that Legislative Council can review this later, because I only had a chance to discuss the 3795 matter with a few lawyers, who seemed to think my point had at least some merit, and should be considered further. So with that, I will vote for the amendment and call on Legislative Council to review it slightly.
The Speaker: Mr Skelly to respond to the debate on the amendments. 3800 Mr Skelly: Loayreyder, really I have very little to say to that. I fully respect the Hon. Member’s views on investigating that particular issue. He clearly engaged with officers to understand that and that could be explored further by LegCo, and I welcome that opportunity. 3805 The Speaker: Mr Baker, to sum up.
Mr Baker: Thank you very much, Mr Speaker. Whilst I am on my feet could I clarify that the amendments that have been moved have been 3810 both to clause 3 and the Schedule as well?
The Speaker: Yes, that is why it covers all of the amendments because they all relate to either the clause or the Schedules that are moved under that clause.
3815 Mr Baker: Thank you, that has set my mind at rest. I would like to thank Mr Skelly for raising those amendments, which I do support. I would like to thank Mr Thomas for his engagement with the Department and the drafter. His comments are in line with the advice that the Department has received so we concur that no amendments are required but clearly Mr Thomas has lodged his concerns for the benefit of Hansard and they can 3820 be picked up by Legislative Council, should they so wish. With that, Mr Speaker, I beg to move. Thank you.
The Speaker: Putting to Hon. Members first the amendments in the name of Mr Skelly, that is amendments 1 to 9 on the back of the Order Paper. Those in favour, please say aye; against, no. 3825 The ayes have it. The ayes have it. Putting to you then clause 3 and Schedules 1, 2 and 3, as amended, those in favour, please say aye; against, no. The ayes have it. The ayes have it.
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Clause 4, Mr Baker.
3830 Mr Baker: Thank you, Mr Speaker. Clause 4 gives the Chief Secretary broad power to assign responsibility for performance specified tasks. Such tasks must be tasks which the Island is duty bound to perform in fulfilment of its international obligations under any international convention falling within it within a defined group. This group contains solely conventions concerning maritime safety and the prevention and 3835 control of marine pollution from ships. The Chief Secretary may make an assignment to any Department or Statutory Board, any Government company, or any private person who has beforehand indicated a willingness to accept such assignments. Crucially, any assignment made by the Chief Secretary under this clause must be made by 3840 means of a non-legislative public document included in Schedule 1. For completeness, the clause expressly designates compliance with the Island’s obligations under relevant international conventions a corporate matter under the delegated authority of the Chief Secretary. Mr Speaker, I beg to move that clause 4 stands part of the Bill.
3845 The Speaker: Mr Callister.
Mr Callister: Thank you, Mr Speaker. I beg to second.
The Speaker: Mr Thomas. 3850 Mr Thomas: Thank you, Mr Speaker. Again, after very helpful and productive discussions with the Minister and his officers, I talked with legislative drafters and suggested that it might be helpful to amend section 4 so that what is described as a non-legislative public document could be changed in its description so that it can 3855 be laid before Tynwald, as I think it would be in any case if a question was asked to make this happen, as happened during the emergency powers, when I got the public documents laid before Tynwald, I wrote, ‘Okay, this is a document directed to an assignee but surely it affects others given it is to do with standards and regulation, and surely those affected have the right to know the identity of the assignee?’ 3860 I am informed that the focus of this entire Act is the fulfilment of obligations on the international plane. It has to do with international obligations that impose duties solely on the Crown, not on a third party. In the UK, for matters like this they do not even make domestic legislation to transform the obligations into domestic law, given that no third party rights are involved and they have the concept of indivisibility of the Crown. There is therefore little point in 3865 making legislation telling themselves to do what they already know they have to do. Here, we do not have indivisibility, but have several bodies corporate through which the functions of government are carried out. It follows that there needs to be a mechanism for formally assigning responsibilities. However, the fact remains that the international obligations concerned do not confer rights on individuals. They only impose duties on the Crown. My concern therefore, seems 3870 to be lacking in real substance. The second point that was made to me was that the Interpretation Act 2015 makes a distinction between public documents, which may be legislative or non- legislative, and statutory documents, which are closely related to public documents, but are invariably legislative in character. The statutory documents, therefore, are the only ones to which the Tynwald 3875 procedures outlined in Division 2, Part 3 of the Legislation Act 2015 apply. The documents in question in the Bill are clearly stated to be non-legislative public documents, precisely because the intention is that this mechanism be administrative in character. It is therefore not possible for the Tynwald procedure to be applied to a document that patently does not constitute legislation. Therefore there will be no legal basis on which a non-legislative public
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3880 document can be subjected to a procedure that is restricted to legislative instruments. So, like I did last time, I hope Legislative Council will have the time to revisit this matter, I also suggested that it might be helpful to include in section 4, in respect of capacity, something to the effect that the Chief Secretary needs to be cognisant of separating ‘operational’ from ‘regulatory’ responsibility when he is assigning responsibility. 3885 This was not strongly resisted but both the drafter and myself ran out of time, because we did not really have a lot of time, and in submitting drafting instructions I had to clearly define what was operational and what was regulatory. But to me, it is clearly relevant that we would not want the assignment to regulate compliance with the same person that was marketing the Island’s capacity in respect of that function, I feel. 3890 So I hope that Legislative Council can consider this further and can consider whether it would be helpful to put into section 4 something to do with being cognisant of the need to make sure that others when they look in will see operations as being separated from regulations. Finally, Hon. Members should also be cognisant of the fact that it appears that in this clause:
compliance with the Island’s obligations under relevant international conventions is hereby designated a corporate matter under the delegated authority of the Chief Secretary
– appears for the first time, I believe, in Manx legislation and therefore is very important. It is a 3895 move towards a new type of thinking of government, and I wanted to welcome that. And more generally to say that the idea of having a designated corporate matter is very exciting and I want to congratulate the Minister for having put that into this legislation for the first time, I believe.
The Speaker: Mover to reply. 3900 Mr Baker: Thank you very much, Mr Speaker. I am pleased that Mr Thomas has engaged with the Department on this. I thank him for his comments. Again, very similar to the previous clause, his comments that he did not make an amendment 3905 to this is entirely consistent with the advice that the Department received, and with that I beg to move.
The Speaker: I put to you the question that clause 4 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. 3910 Clause 5, Mr Baker.
Mr Baker: Thank you, Mr Speaker. Clause 5 requires the Chief Secretary to seek the advice of the Attorney General before making an assignment under clause 4. The Attorney General is required to, in writing, honour any such 3915 request for advice. In turn, the Chief Secretary is required to have regard to the Attorney General’s advice. Mr Speaker, I beg to move that clause 5 stand part of the Bill.
The Speaker: Mr Callister. 3920 Mr Callister: Thank you, Mr Speaker. I beg to second.
The Speaker: I put the question that clause 5 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. 3925 Clause 6, Mr Baker.
Mr Baker: Thank you, Mr Speaker.
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Clause 6 requires the Chief Secretary to consult and have regard to the advice given to him or her by industry experts. This must be done before an assignment is made and is intended to assist 3930 the Chief Secretary when making a suitable assignment. Mr Speaker, I beg to move that clause 6 stand part of the Bill.
The Speaker: Mr Callister.
3935 Mr Callister: Thank you, Mr Speaker. I beg to second.
The Speaker: I put the question that clause 6 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 7. 3940 Mr Baker: Thank you, Mr Speaker. Clause 7 provides that an assignment made by the Chief Secretary under clause 4 has the force of law. On this basis, clause 7 empowers the Chief Secretary to impose suitable administrative sanctions in the event an assignment is not complied with. 3945 Mr Speaker, I beg to move that clause 7 stand part of the Bill.
The Speaker: Mr Callister.
Mr Callister: Thank you, Mr Speaker. I beg to second. 3950 The Speaker: I put the question that clause 7 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 8, Mr Baker.
3955 Mr Baker: Thank you, Mr Speaker. Clause 8 sets out the duties of an assignee. The assignee must acknowledge the assignment in writing and may not refuse it. The qualification to this stipulation is that where the assignment is made to a private person, that person may at any time determine that they are unwilling to receive an assignment. At this point, the assignment becomes null and void and payment for work 3960 already done must be made to the former assignee. The other categories of assignee, for example, those who do not have the option of revoking an expression of willingness may, in appropriate cases, provide the Chief Secretary with a notification of constraint in which the assignee sets out the constraints that it believes will hamper it in its bid to satisfactorily discharge its responsibilities under this assignment. The assignee must 3965 substantiate any claim it makes to being constrained. Mr Speaker, I beg to move that clause 8 stand part of the Bill.
The Speaker: Mr Callister.
3970 Mr Callister: Thank you, Mr Speaker. I beg to second.
The Speaker: I put the question that clause 8 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 9. 3975 Mr Baker: Clause 9 specifies the steps the Chief Secretary must take upon receipt of a notification of constraint. He or she must have due regard to it and, where necessary, either modify the assignment in consultation with the assignee or revoke the assignment and assign their responsibilities to another person instead. If the constraint is financial, the clause specifies steps
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3980 the Chief Secretary may take to secure the required funding from the Treasury. Steps consist of writing to the Council of Ministers to request that the Council of Ministers, in writing, instruct the Treasury to provide the required funding. Until this funding has been provided by the Treasury, the assignment cannot be enforced. Mr Speaker, I beg to move that clause 9 stand part of the Bill. 3985 The Speaker: Mr Callister.
Mr Callister: Thank you, Mr Speaker. I beg to second.
3990 The Speaker: Mrs Barber.
Mrs Barber: Thank you, Mr Speaker. It is only a very minor typographical error in subsection (3)(a), which I must confess I just forgot to put in as an amendment, but ‘considers’ should be ‘consider’, and I would be grateful if you 3995 could pick it up in Legislative Council.
The Speaker: I call on the mover to reply. You may want to take advice as to whether that might be covered by the slip rule.
4000 Mr Baker: I will take your advice on that, Mr Speaker! (Laughter)
The Speaker: In which case, I put the question that clause 9 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 10, Mr Baker. 4005 Mr Baker: Thank you, Mr Speaker. Clause 10 obliges the Treasury to comply with a written instruction given to it by the Council of Ministers and gives the Treasury options with respect to disbursement of the funds and the imposition of conditions subject to which disbursement will be made. 4010 Mr Speaker, I beg to move that clause 10 stand part of the Bill.
The Speaker: Mr Callister.
Mr Callister: Thank you, Mr Speaker. I beg to second. 4015 The Speaker: I put the question that clause 10 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 11, Mr Baker.
4020 Mr Baker: Thank you, Mr Speaker. Clause 11 requires all parties to which the Bill applies to keep written records of any steps taken under the resulting Act. Mr Speaker, I beg to move that clause 11 stand part of the Bill.
4025 The Speaker: Mr Callister.
Mr Callister: Thank you, Mr Speaker. I beg to second.
The Speaker: I put the question that clause 11 stand part of the Bill. Those in favour, please 4030 say aye; against, no. The ayes have it. The ayes have it. Clause 12, Mr Baker.
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Mr Baker: Thank you, Mr Speaker. Clause 12 makes provision aimed at obviating any conflict between existing legislation and an assignment made by the Chief Secretary under clause 4. Please accept my apologies that there is 4035 a misnumbering identified in the explanatory memorandum and explanatory notes that states clause 3 here, it is in fact clause 4, as I have just advised. The Chief Secretary, is duty bound to, amongst other things, have due regard to existing legislation when making an assignment. It is further provided that an assignment does not affect existing powers legislatively conferred on either the Department of Infrastructure or the 4040 Department for Enterprise. Mr Speaker, I beg to move that clause 12 stand part of the Bill.
The Speaker: Mr Callister.
4045 Mr Callister: Thank you, Mr Speaker. I beg to second.
The Speaker: I put the question that clause 12 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it.
6.3. Manx Care Bill 2020 – Clauses considered
Mr Ashford to move.
The Speaker: That moves us neatly on to the next Item on our agenda, which is the Manx Care 4050 Bill 2020. I call on Mr Ashford to move.
Mr Ashford: Thank you, Mr Speaker. I would like to start, Mr Speaker, by thanking Hon. Members for their helpful suggestions and engagement, both at Second Reading and over the summer period, which have led to some of the 4055 Government amendments that will be put forward today. Turning to each of the clauses within the Bill, with your permission, Mr Speaker, I wish to move clauses 1 to 3 together. Clause 1 gives the short title for the resulting Act. Clause 2 deals with the Bill’s commencement, with the Bill’s provisions to be brought into 4060 operation by the Department in the usual way by Appointed Day Order. To assist with the reading and interpretation of the Bill, clause 3 defines a number of terms used and signposts the location of several other defined terms. I beg to move that clauses 1, 2 and 3 do stand part of the Bill.
4065 The Speaker: Hon. Member, Mr Harmer.
Mr Harmer: I beg to second and reserve my remarks.
The Speaker: Mr Hooper. 4070 Mr Hooper: Thank you very much, Mr Speaker. I just want to ask the Minister in terms of the commencement provisions; obviously this allows the Department to bring in the Act in stages if it so desires.
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The establishment of Manx Care and the establishment of the independent regulatory 4075 framework around Manx Care are two sides of the same coin, and I would very much like the Minister to confirm that one will not be brought in without the other.
The Speaker: Mr Thomas.
4080 Mr Thomas: Thank you. In the interpretation section, the health and social care service – I have absolutely no problem with that, but the health services means the services referred to in the National Health Service Act. There is no mention of the Mental Health Service Act 1998 nor mention of the National Health and Care Act 2016, which are both mentioned later. My understanding of ‘health’ is that it includes 4085 mental health and physical health, and it includes everything like that, but I want the Minister to look again at whether or not the other Acts need to be mentioned at that point in the definition.
The Speaker: Mover to reply.
4090 Mr Ashford: Thank you, Mr Speaker. Taking Mr Thomas first, I am happy to have it looked at again. My understanding is that the definitions do cover across all the services, but I am happy to take it away and look at it, and if necessary, we can have it amended in the Legislative Council. In relation to Mr Hooper, I am happy to confirm that, yes, they are two sides of the same coin 4095 and they need to be brought together.
The Speaker: I put the question that clauses 1, 2 and 3 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 4, Mr Ashford. 4100 Mr Ashford: Thank you, Mr Speaker. Clause 4 requires the Department of Health and Social Care to ensure there was a comprehensive health and social care service in the Island. It also confirms that the Department has the duties conferred on it by the relevant primary legislation as listed within this clause and 4105 the secondary legislation made under those Acts. Subsection (3) of the clause further provides that the Department remains responsible to Tynwald for the provision of the Island’s comprehensive Health and Social Care Service. I beg to move that clause 4 do stand part of the Bill.
4110 The Speaker: Mr Harmer.
Mr Harmer: I beg to second.
The Speaker: Mr Thomas. 4115 Mr Thomas: Thank you. This is a really excellent clause, and I want to applaud it particularly, because it is has got the purpose and the principles of the National Health Service, which are sadly lacking from the National Health and Care Bill, which I queried back in 2015-16. It is great that it is here now. 4120 Two small points: the first one is that the legal reference to the National Health Service Act 2016 should perhaps possibly be the National Health and Care Service Act 2016. Secondly, another thing that was in that Act was the National Health and Care Service charter – about its preparation, its maintenance, its character, its revision and its amendment. So will there be a statutory based charter for Manx Care and the wider Manx Health and Care Service? Perhaps 4125 that is something that will be dealt with in the forthcoming National Health Service Reform Bill.
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The Speaker: Mover to reply.
Mr Ashford: Thank you, Mr Speaker. The Hon. Member has pretty much answered his own question, which is the charter will be 4130 looked at in the subsequent Bill.
The Speaker: I put the question that clause 4 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 5, Mr Ashford. 4135 Mr Ashford: Thank you, Mr Speaker. Clause 5 details the duties of the Department in respect of continuous improvement in the outcome of services, particularly in regard to effectiveness, safety and quality, and this clause requires the Department to have regard to principles of generally accepted evidence-based 4140 practice in doing so. I beg to move that clause 5 do stand part of the Bill.
The Speaker: Mr Harmer.
4145 Mr Harmer: I beg to second.
The Speaker: Mr Thomas.
Mr Thomas: Thank you very much, Mr Speaker. 4150 In the list in subclause (1)(c), there is an assessment included:
the assessment and provision of social care services …
That assessment does not actually appear in that roughly the same list that is in clause 4 and later on, in clause 7, the ones about promotion and the one about obtaining appropriate advice. So I hope the Minister can look into why that assessment is there – or perhaps can advise today why assessment is there, but is not in those other two places. 4155 The Speaker: Mover to reply.
Mr Ashford: Thank you, Mr Speaker. This is obviously a clause in relation to the improvement of quality of services, and if we are 4160 going to move the improvement of quality of services on, then we need to take into account the assessments that are undertaken in the provision of the social care services. There are also, of course, provisions that still are in place from the Social Services Act, if my memory serves me correctly, around actual physical assessments, and those will be remaining in place as far as I am aware, Mr Speaker. 4165 The Speaker: I put the question that clause 5 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 6, Mr Ashford.
4170 Mr Ashford: Thank you, Mr Speaker. Clause 6 imposes a duty on the Department to promote autonomy in any provider of health or social care services and any other person or body that is engaged in exercising functions in relation to the Health and Social Care Service in the Island. That was a key component of the Sir Jonathan
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Michael recommendation that there should be an independent, arm’s-length body set up to 4175 provide separation between the provision of services and the strategic direction setting. I beg to move that clause 6 do stand part of the Bill.
The Speaker: Mr Harmer.
4180 Mr Harmer: I beg to second.
The Speaker: Mr Hooper.
Mr Hooper: Thank you very much, Mr Speaker. 4185 This clause talks about the promotion of autonomy within Manx Care, largely, but if you read the mandate section at the back of Schedule 2, which we will be talking about later, there is an ability in there for the Department to impose requirements on Manx Care to use things like Government shared services. So those two seem to be entirely in conflict with each other. If Manx Care decides the most efficient and effective way of delivering its services, autonomously, might 4190 be to use private sector providers, might be to do something itself, but the Department still retains the power to say, ‘We disagree with you. We are going to tell you to do it our way’, does the Minister not see the inherent conflict there between those two positions and actually, will he take that away and have another think?
4195 The Speaker: Mover to reply.
Mr Ashford: Thank you, Mr Speaker. While I can see where the Member is coming from about there being conflict, I do not necessarily see that. I think it is sensible that if shared services can be used across Government, 4200 the Manx Care should use them, but ultimately, DHSC as a Department is not … although there is a reserve power there, it is highly unlikely DHSC would instruct Manx Care and force them down that route, if they can actually put together a case to show that it is more efficient and it is better value for money than going elsewhere. There is also the provision, of course, as well, Mr Speaker, that if, for whatever reason, shared 4205 services cannot be delivered and there will also need to be service-level agreements between Manx Care and those shared services, that if those service level agreements are not honoured, then Manx Care can step outside and source things themselves. But where there are shared services within Government and where those can actually be delivered in a cost-effective way and are practical to do so, it is right that Manx Care should be using them. 4210 Mr Thomas: Hear, hear.
The Speaker: I put the question that clause 6 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. 4215 Clause 7, Mr Ashford.
Mr Ashford: Thank you, Mr Speaker. In exercising its functions, the Department is given a duty in clause 7 to obtain advice from appropriately qualified persons who have a broad range of relevant professional expertise. 4220 I beg to move that clause 7 do stand part of the Bill.
The Speaker: Mr Harmer.
Mr Harmer: I beg to second.
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4225 The Speaker: I put the question that clause 7 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 8, Mr Ashford.
Mr Ashford: Thank you, Mr Speaker. 4230 Clause 8 places a duty on the Department to involve and consult the public in planning new services or making changes that might impact on existing services. This is to bring in strengthened patient and service user representation in policy-making and strategic planning in relation to service provision for the Island. I beg to move that clause 8 do stand part of the Bill. 4235 The Speaker: Mr Harmer.
Mr Harmer: I beg to second and reserve my remarks.
4240 The Speaker: I put the question that clause 8 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 9, Mr Ashford.
Mr Ashford: Thank you, Mr Speaker. 4245 Clause 9 imposes a duty on the Department to promote the education and training of those employed in connection with the provision of health services or social care services. I beg to move that clause 9 do stand part of the Bill.
The Speaker: Mr Harmer. 4250 Mr Harmer: I beg to second.
The Speaker: I put the question that clause 9 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. 4255 Clause 10, Mr Ashford.
Mr Ashford: Thank you, Mr Speaker. Clause 10 places a duty on the Department to reduce inequalities between service users. This requires the Department to have regard to reducing inequalities with respect to access to health 4260 services and social care services and to the outcomes achieved for service users by the provision of these services. I beg to move that clause 10 do stand part of the Bill.
The Speaker: Mr Harmer. 4265 Mr Harmer: Thank you, Mr Speaker. I beg to second.
The Speaker: I put the question that clause 10 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. 4270 Clause 11, Mr Ashford.
Mr Ashford: Thank you, Mr Speaker. Clause 11 places a duty of candour on the Department, which requires it to be open and transparent in the exercise of its functions.
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4275 This clause also requires that the Department make regulations setting out the circumstances under which information should be given and what information should be given in relation to an incident that has occurred which affects a service user’s safety. The draft duty of candour regulations are being worked on by the Transformation team currently, with the intention that they will be in place when Manx Care goes live. As Hon. Members 4280 will have seen under the Bill a similar duty of candour applies to Manx Care, and I will remove that provision when we come to clause 21. I beg to move that clause 11 do stand part of the Bill.
The Speaker: Mr Harmer. 4285 Mr Harmer: Thank you, Mr Speaker. I beg to second.
The Speaker: Thank you very much. Amendment 1, Mrs Barber. 4290 Mrs Barber: Thank you, Mr Speaker. I beg to move an amendment to clause 11, the purpose of which is to provide that where an apology, offer of additional treatment or other redress is offered to a patient or service user as part of complying with the duty of candour, this will not of itself amount to an admission of 4295 negligence or a breach of a statutory duty by the service provider. This will provide reassurance to the organisations providing health and care services so that they feel able to support their staff to express apologies to a service user when it becomes clear that something has gone wrong which has caused or may cause harm to the individual, but without such a statement later being used against them in a legal claim. Similar legislative 4300 provisions already exist in neighbouring jurisdictions. This provision along with the duty of candour or regulations that are expected to follow shortly are designed to ensure that whenever someone has suffered unintended harm in a health or social care setting that they will always be offered an apology at an early stage. Mr Speaker, I beg to move the amendment standing in my name:
Amendment to clause 11 1. Page 17, after line 5 insert — “(4) Any apology, offer of treatment or redress offered by the Department pursuant to this section or otherwise, shall not of itself amount to an admission of negligence or breach of statutory duty.”
4305 The Speaker: Mr Moorhouse.
Mr Moorhouse: Thank you, Mr Speaker. I beg to second.
The Speaker: Mr Robertshaw. 4310 Mr Robertshaw: Thank you, Mr Speaker. On the basis that the reply, I am sure, will be recognising candour, could the mover of the amendment be kind enough to explain why the Department itself is bringing so many amendments before us after the Bill itself was brought to the floor of the House? It begs the 4315 question, why were most of these not sorted out before it actually got here? One welcomes the fact that the amendments are here but did the process fall down somewhere? Was there some sort of omission? Thank you, Mr Speaker.
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4320 The Speaker: Mrs Barber to reply to the amendment.
Mrs Barber: Thank you, Mr Speaker. In the interests of candour, I would be happy to tell the Hon. Member that it has been a challenge within the Department of Health and Social Care, with the work that we have had 4325 ongoing with creating the move to Manx Care, alongside the business-as-usual work. The amendments that we see before us today are a combined result of work from the Manx Care team, Department of Health and Social Care and the AG’s, some being typographical errors, some being oversights and some areas where the wording simply can be made clearer and improved. So with that, I beg to move. 4330 The Speaker: Mr Ashford.
Mr Ashford: Thank you, Mr Speaker. Could I also add to that, as well, the fact that the Hon. Member for Douglas East, 4335 Mr Robertshaw may well remember that obviously the consultation on Manx Care was affected by the pandemic period and one of the pledges I gave when we brought this Bill in at Second Reading was that over the summer period we would listen to Members, and if Members wished to come forward and discuss the Bill with me, then we would take that on board. Several Members did so and raised certain points, and they have helped result in these amendments now, so part 4340 of this has been listening to Members as well, when the consultation was held on the original Bill.
The Speaker: Putting to Members first amendment number 1 in the name of Mrs Barber. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 11, as amended: those in favour, please say aye; against, no. The ayes have it. The ayes 4345 have it. Clause 12 and Schedule 1, Mr Ashford.
Mr Ashford: Thank you, Mr Speaker. You have pre-empted me: I was just about to ask your permission to move them both together. 4350 Clause 12 provides that Manx Care is established as a Statutory Board, and it gives effect to Schedule 1. Schedule 1 is divided into three parts. Part 1 deals with the membership of Manx Care. It sets out the number of executive and non-executive members, how they are appointed, the length of tenure for non-executive members, what constitutes a quorum in meetings of the board, and how 4355 voting shall be taken on decisions by the board. Part 2 deals with Manx Care’s staff. It provides that Manx Care’s staff may consist of transferred employees of the Public Services Commission, other staff who have been transferred to Manx Care under a staff transfer scheme, new employees, of the Public Services Commission and any direct appointees. 4360 Part 3 deals with inspections of Manx Care and of service providers that have entered into arrangements with Manx Care by independent inspectors, who will inspect and report on the provision of services against quality indicators and agreed requirements. The Department is required each year to draw up a Schedule specifying the services that will be inspected during the year and a list of services which the Department plans to arrange 4365 inspections of in each of the next two years. The Department is required to ensure that every service provided under the mandate is subject to an inspection at least once every five years. Provisions are included for determining the date when scheduled inspections will take place and also for the Department to be able to arrange unscheduled inspections of services, as long as they do not unreasonably impede upon the service itself.
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4370 Manx Care may arrange inspections in addition to those arranged by the Department, and in all cases the service provider, subject to any inspection, is required to assist inspectors and provide any necessary information. Inspectors are required to provide reports on the inspections carried out. These reports are required to be published with the expectation that all or part of the report may be withheld from 4375 publication by the body that commissioned the inspection, where publication would jeopardise the safety of any person or data protection or confidentiality principles. Where a report shows that Manx Care is failing or has failed in carrying out its functions, the Department has the power to issue directions under clause 30. Mr Speaker, I beg to move that clause 12 and Schedule 1 stand part of the Bill. 4380 The Speaker: Mr Harmer.
Mr Harmer: Thank you, Mr Speaker. I beg to second and reserve my remarks.
4385 The Speaker: I call on Mrs Barber to move amendment number 3.
Mrs Barber: Thank you, Mr Speaker. I beg to move an amendment to Schedule 1. During the Second Reading debate on this Bill, there was discussion about the proposed 4390 inspection regime and the ability of the external inspectors to influence what needs inspecting and when. The proposed amendment seeks to achieve the right balance in addressing this matter, whilst ensuring that there is transparency in the arrangements as a conflict could occur here for the independent inspectors, given that we will be paying for the inspections to be carried out. The proposed amendment requires the independent inspectors to report not only on matters 4395 relating to the service that they have been instructed to inspect, but also on other matters of concern that may come to their attention during an inspection and that they believe might benefit from a further inspection. The issues raised by the inspectors may then be inspected as part of a non-scheduled inspection, which is already allowed for under the Bill or within the next year’s schedule of inspections, depending on the severity of the issues raised. 4400 The amendment also sets out that if the Department is made aware of an issue by the independent inspectors, it must publish its response to that. Mr Speaker, I beg to move the amendment standing in my name:
Amendment to Schedule 1 3. Page 35, after line 13 insert — “10 Inspections: additional (1) Where, in carrying out an inspection referred to in paragraph 7 or 8, the inspector identifies a matter which is not within the remit of the inspection being undertaken but which the inspector considers should or could be the subject of an inspection, the inspector must — (a) immediately notify the Department and Manx Care in writing of that fact including the reasons why the inspector considers that matter should or could be the subject of inspection; and (b) make express reference to that matter in the inspector’s report together with the reasons why the inspector considers that matter should or could be the subject of inspection and any recommendations or suggestions in respect of it. (2) Where Manx Care receives such a notification, it must address the matter identified as part of its observations and responses under paragraph 9(5) to the inspector’s report. (3) Where the Department receives such a notification it must – (a) consider what steps are necessary to deal with the matter identified and, in particular, determine whether it should be dealt with as part of the next scheduled inspection or should be the subject of a non-scheduled inspection; and
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(b) publish a response addressing that matter and associated recommendations or suggestions which may be in the form of a separate document or may form part of the publication referred to in paragraph 9(6).” Re-number existing paragraphs 10 and 11 of Schedule 1 as paragraphs 11 and 12 respectively.
The Speaker: Mr Moorhouse.
4405 Mr Moorhouse: Thank you, Mr Speaker. I beg to second.
The Speaker: Mr Hooper.
Mr Hooper: Thank you, Mr Speaker. 4410 I was not sure when to raise this issue because the Schedule references back to other provisions in the Bill in respect of what happens when something goes wrong. I am not overly happy – well, I am not happy at all – with what is in the Bill as drafted. This amendment is an improvement, but I am still not quite sold on this because it talks about the Department still being the body that makes the decisions. So the inspectors can come in and say, ‘We have found a real 4415 problem here; you need to do something about it’, and the Department can just say, ‘Thanks very much. We are deciding not to take action.’ The regulator themselves actually have no power. They cannot say, ‘You must take action.’ The Department is the body that says, ‘Actually, we must take action’. Then, even when the Department says, ‘Yes, we must take action. Manx Care, you must do 4420 this’, Manx Care can say, ‘No, I am not going to do that. Thanks very much’, and the Department can issue them with a direction. ‘You must do this.’ If Manx Care do not do that? Actually, there is not really much in the Bill about what happens next. There is not much in the Bill that talks about what happens when they fail to follow a direction. All it seems to say is, ‘Well, the Department can decide to do it themselves.’ Great okay, but if Manx Care have been provided with funding, 4425 does that funding then get cut? Does that go back to the Department? How do you pay for the services the Department is now providing itself because Manx Care has failed to provide them? There seems to be a bit of a gap here, in terms of actually, how do you make this supposedly arm’s-length body do the things it is supposed to be doing? Everything has been put together in very much a gentlemen’s agreement-style way. It all 4430 works, because everyone is honest and truthful and everything is going to be fine; but actually my concern is that there are currently serious problems in the Health Service. We know there are going to continue to be serious problems in the Health Service and I am not convinced this inspection and regulatory regime the Bill sets out is actually robust enough to help tackle some of those problems that we are facing. 4435 So I would appreciate something from the Minister that gives me some assurances that I am wrong here and that actually this is going to be an absolutely robust mechanism to deal with failures or suspected failures or perceived failures in service delivery.
The Speaker: You will have the opportunity to sum up, Minister. 4440 Mrs Barber to respond to the amendment.
Mrs Barber: Thank you, Mr Speaker. I think one of the key levels of assurance is around the publication of the response, so that will be made in the public domain, which is absolutely where it should be. If something is raised as a 4445 concern from the inspectors, it will then be published. In terms of the way in which those inspection rotas are carried out, it is not just that it can be inspected in a future year; there is also the ability to have those additional inspections at that time, where it is felt it is an appropriate need. So with that, I beg to move the amendment.
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4450 The Speaker: Mr Ashford to sum up.
Mr Ashford: Thank you, Mr Speaker. Hopefully I can address some of the Hon. Member for Ramsey, Mr Hooper’s points, which are very good points that he has raised. 4455 In relation to the inspection regime, the Hon. Member for Douglas East, Mrs Barber, has already touched on this, that if DHSC is going to turn round and say, ‘Well, thank you very much for this issue with us, but we do not believe it is worthy of investigation’, the Department has to publish why it believes it is not worthy of investigation. It is out there in the public. I think what we have to remember as well is that what this Bill is doing is separating out the 4460 delivery from the policy and everything else, so Manx Care becomes the delivery body. I would say there is no incentive in DHSC, if something is actually discovered, to try and say we will not investigate. If anything, the incentive is the other way round for DHSC to actually say, ‘This is a serious matter and it should be investigated. Thank you for raising that.’ That is the whole point of the separation so that we are not trying to be poacher and 4465 gamekeeper, which the Department, let us be frank, is at the moment. It is doing both. It is doing the oversight side and it is doing the delivery of services. This is what is being separated out. What we do not want to go down the route of – myself and Mr Hooper have had conversations about this before and I will be quite frank – is the situation you have in the UK where you have the Care Quality Commission (CQC) or other organisations that can simply go in and do whatever 4470 inspections they want, at whatever level, with penalties in place that they decide to impose that do not actually end up benefiting the system. If you go out there, you can find examples of where that has not worked. So I think that the system we do have in place is robust. The Department can issue direction notices to Manx Care. If Manx Care does not then follow those direction notices, there can be a 4475 direction notice from the Council of Ministers as well, and the ultimate sanction, which hopefully we would never get to, is that services can be removed from Manx Care if necessary. We would hopefully not get to that point, but if necessary there is provision in there. So it is a balance, Mr Speaker, because we have got to balance off the autonomy of Manx Care along with having appropriate sanctions in place. What we do not want to end up doing is treating 4480 Manx Care as just another Statutory Board under the Statutory Boards Act, because this whole thing has been set up deliberately to give Manx Care as much autonomy as possible within the system. What we do not want to do is change that, so that we end up with it just being an offshoot of DHSC, because that would completely unravel the entire thing of what we are trying to achieve here. 4485 The Speaker: Putting to Members first the amendments in the name of Mrs Barber: those in favour, please say aye; against, no. The ayes have it. The ayes have it. Putting clause 12 and Schedule 1, as amended: those in favour, please say aye; against, no. The ayes have it. The ayes have it. 4490 Clause 13, Mr Ashford.
Mr Ashford: Thank you, Mr Speaker. Clause 13 gives Manx Care its function, which is to arrange for the services specified in the mandate to be provided on behalf of the Department. In doing so, it must operate within the 4495 mandate, applicable regulations and directions that are given to it. This clause also clarifies that the Department retains accountability for all its functions, even if these are being discharged by Manx Care. I beg to move that clause 13 do stand part of the Bill.
4500 The Speaker: Mr Harmer.
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Mr Harmer: I beg to second and reserve my remarks.
The Speaker: We turn to amendment 2 in the name of Mrs Barber. 4505 Mrs Barber: Thank you, Mr Speaker. This amendment is required to automatically transfer all arrangements that currently exist between the Department of Health and Social Care and its existing partners who work to provide the Island’s health and social care services to Manx Care. As currently drafted, Schedule 3 of this 4510 Bill allows that the Department may make a scheme providing for the transfer to Manx Care of any interests, rights or liabilities of the Department. However, to be effective, this would require a scheme to be drafted that exhaustively sets out the current arrangements to which it would apply, and the Department does not currently have a comprehensive record of all arrangements that are in place between it and its service providers, 4515 and such a list cannot reasonably be collated between now and 1st April 2021. The amendment is worded in such a way that it only captures arrangements that relate to services to be provided under the mandate and it is needed in order to ensure continuity of arrangements between Manx Care and the existing partners of the Department. The effect of the proposed amendment is that Manx Care takes over the rights and obligations of the Department 4520 under the arrangements. The Department will remain the relevant party in contracts where the context is suited to the Department and its functions as opposed to Manx Care. This is allowable because the financial standing of Manx Care will be equivalent to that of the DHSC and so no contracted party would be disadvantaged by the transfer. Mr Speaker, I now beg to move the amendment standing in my name.
Amendment to clause 13 2. Page 17, after line 24 insert— “(5) Any contracts or agreements entered into by the Department which are connected to, or dependent on, or have as their subject matter a function of the Department which is the subject of the mandate are deemed to be novated to Manx Care and references to the Department in such contracts and agreements are (unless the context otherwise requires) to be read as references to Manx Care.”
4525 The Speaker: Mr Moorhouse.
Mr Moorhouse: Thank you, Mr Speaker. I beg to second.
Mr Hooper: I am sorry, I have just been thrown by something the Hon. Member said. ‘The 4530 Department of Health and Social Care does not know what agreements and contracts are in place with all of its providers.’ I just did not want to let that comment slide by without drawing attention to it, because that is absolutely insane. The comment I was originally going to make about this amendment is the language ‘unless the context otherwise requires’. That language came up in an amendment earlier today and it was 4535 advised that that actually provides for some uncertainty and some potential risk, in that you have two identical provisions being interpreted differently. (Mr Thomas: Hear, hear.) So I am just curious as to why the Department feels that language is appropriate now. Setting aside the fact that it really doesn’t have a clue what it is doing.
4540 The Speaker: Mr Baker.
Mr Baker: Thank you, Mr Speaker. I have been brought to my feet by the comments of my hon. friend from Ramsey. Whilst I understand the sentiments that he is expressing, I think to provide a bit of balance for the
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4545 Department – I am sure they can answer themselves – that must cover a huge range of contracts from the very strategic contracts, which I am sure they probably do know what they have got in terms of contracts with the NHS etc., down to individual contracts around maintenance and cleaning and provisions of all sorts of consumables, etc., which would normally be drawn out in any sort of due diligence exercise. 4550 So to be honest, while the headline is very clear around this, I think the reality is that it is an organisation that has been going for an awful long time. It is very complex. It has probably not got everything as beautifully documented and i’s dotted and t’s crossed across some of these more minor items. It will be interesting to hear the Minister’s comments on that, but I think that is the reality of it, and I suspect it may well apply to many other organisations, not just the Department. 4555 The Speaker: Mrs Barber to respond to the amendment.
Mrs Barber: Thank you. If I can take Mr Hooper’s points in reverse order, the point around the context in which … I 4560 cannot remember the wording now! The context – the one that we mentioned that was discussed earlier in this Hon. House – is because it does not relate to amending of legislation; it is specifically relating to contracts, so there is a comfort that that is appropriate in this regard. In terms of the contracts, I think Mr Baker has touched on an element of it, certainly from my experience of having worked in the Health Service for many years, you end up with contracts 4565 where you are buying one small £20 item once every two years, and the reality is that with the scale of contracts and the level of detail that we have, from the very small to the very big strategic contracts, we simply could not have gone through with the absolute certainty that we had captured all of those. It was felt far better to do a catch-all rather than take the risks that we would inadvertently miss something and therefore cause a difficulty within the way the DHSC are 4570 engaging with Manx Care and therefore with those contractors. So this was felt to be the most appropriate way to manage that. With that, I beg to move the amendment standing in my name.
The Speaker: Mr Ashford. 4575 Mr Ashford: Thank you, Mr Speaker. Yes, there is a wide range of contracts across DHSC and one of the things we have also got to remember, Mr Speaker, is that some of this is going back not just years, but even decades, some of these contracts that are in place, particularly small ones. 4580 And the Department has been in many iterations over the years. The Hon. Member for Douglas East, Mr Robertshaw, was Minister for Social Care when there was the Social Care Department. There has been the Health Department. There has been the Health and Social Security Department. All of this has been pulled together to form what is now DHSC and we are going through – it is a huge amount of work, I do need to point that out – we are going to identify every 4585 single contract, but it is going to take time. What we did not want – again, we talk about duty of candour and we wanted to be perfectly up front with Members – is to actually have a situation where we transfer those we know about, but those that we do not know about end up sticking with the Department because they have not been done under this legislation. So we needed a catch-all to actually capture that. 4590 One thing, Mr Speaker, if you bear with me one moment, that I should have mentioned on the previous clause – because you know me, I always miss a point – is I meant to state to Mr Hooper that, of course, the Council of Ministers also has the ability to dismiss the Manx Care board.
The Speaker: Putting to Hon. Members first the amendment in the name of Mrs Barber: those 4595 in favour, please say aye; against, no. The ayes have it. The ayes have it.
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Putting clause 13, as amended: those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 14 and Schedule 2, Mr Ashford.
4600 Mr Ashford: Thank you, Mr Speaker. The purpose of clause 14 is to require there to be a mandate published each year, which is to be agreed between the Department and Manx Care. This mandate will set out what services should be provided, to what standard and the amount of funding available to provide those services to address the needs of the population. 4605 The Department is required to monitor Manx Care’s performance against the requirements of the mandate. The Department is also required to lay the mandate before Tynwald ahead of the start of each financial year. This mandate must include the matters specified in Schedule 2, which is essentially a list of the information that must be included within the mandate as a minimum for that financial year, and 4610 subsequent financial years if appropriate. With the approval of Tynwald, Schedule 2 can be amended by regulations to add to, omit or vary the matters that must be covered by the mandate. This provides flexibility for the future, while ensuring there is appropriate oversight of any changes. I beg to move that clause 14 and Schedule 2 stand part of the Bill. 4615 The Speaker: Mr Harmer.
Mr Harmer: I beg to second and reserve my remarks.
4620 The Speaker: Mr Hooper.
Mr Hooper: Thank you very much, Mr Speaker. During the Second Reading debate, I raised a concern about the disconnect between having an annual budget process and a multi-year operating plan and a multi-year mandate. That does not 4625 appear to have been resolved. It still seems like the Department can place in the mandate for Manx Care things which will span multiple financial years but obviously will have no funding associated with it because funding is allocated on an annual basis. So we run the risk here of creating an organisation where we are telling you, ‘You must do something next year’ and Treasury saying, ‘Actually, we are not going to give you the money for 4630 that. What are you talking about? Sorry.’ So I would like to get some more clarity from the Minister on exactly what he means by including in the mandate things about subsequent financial years. I am also concerned that the way that we operate on a day-to-day basis in Government is actually going to restrict the intended operation of these provisions. So if the plan is to have a multi-year financing plan, a multi-year mandate, actually Government does not work like that, so 4635 the reality on the ground is you are creating provisions that are never going to be properly effective. I would also like to ask a little bit about some of the requirements that are set out inside Schedule 2. For example, the mandate sets out that it shall include the service and quality standards which Manx Care must comply with while exercising its functions. I would like to get a 4640 better understanding of how the Department is going to set those service and quality standards. Following the debate this morning, where the Minister admitted, quite honestly, the Department simply does not have enough data to collect, to set relevant and appropriate standards, I am just a bit concerned that we are going to end up enshrining the current standards in the mandate, and then they will just roll on forever. 4645 The reason I have a problem with that is actually set out quite clearly on the waiting times website. So the Department’s current standard is that they will try to see 100% of patients within 52 weeks for their first out-patient appointment. They do not hit that target, and that is not
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surprising, but then they have another 52 weeks for you to have your in-patient appointment, following your 52-week wait for your out-patient appointment. So actually, you can be referred 4650 to a service and have two full years of waiting and you are still inside the Department’s current targets. You still get a big green tick in the box. I really do not want to see these … I want to call them targets or standards, because they are not either of those things. They are just nonsense, and I do not want to see these enshrined in the mandate, but equally, I am not convinced the Department has enough data to put proper, 4655 meaningful targets and standards inside the mandate. So if the Minister could talk a little bit about how he sees that process unfolding, that would be greatly appreciated.
The Speaker: Mover to reply. 4660 Mr Ashford: Thank you, Mr Speaker. First of all, can I take the first point that the Hon. Member for Ramsey raised, which is around the multiple years and the financing: we have been having discussions with our Treasury colleagues about that, because I think there has been a recognition that in relation to health 4665 services, there needs to be some sort of certainty over a period of time. We also this year have been drawing up with the Transformation team, going back to the actual cost of services, and that will form the Department’s bid to Treasury this year. So we have been doing a lot of work in that area as to what the true cost of our service provision actually is. I would like to put on record my thanks to the Transformation team, and everyone across the 4670 DHSC has been involved in that piece of work, because it is an absolutely massive one. In relation to standards, I will be perfectly frank: that is something that is going to have to evolve over multiple years. The Hon. Member is right, and as I stated this morning during Question Time, we do not have an awful lot of data. We are starting to rectify that now, but obviously, in order to have data that is useful, you have to have multi-years’ worth of data, realistically. It is not 4675 worth having just 10 months, so in terms of the standards and so on, that will be something that will have to evolve over time. In terms of the mandate, I know at Second Reading the Hon. Member raised the point around the mandate being laid every year. I think it is still important that that actually happens. Even if there have not been any changes to the mandate, it is important that Tynwald each year gets that 4680 mandate back. There will be things in the mandate that may stretch over three, four or five years, but we also know, Mr Speaker, how quickly things change in the health arena. So it is important that we have that annual review to check that what is actually there is still appropriate, even if it is something that may stretch over three or five years. 4685 In terms of the standards, they will have to evolve. It is not the intention, I must say to Mr Hooper though, to simply pick up the standards that are there now and shove them in. There is already work going on within the Transformation team and DHSC wider as an organisation to actually look at the new standards that we will need to bring in, but I have to be honest, it will be something that will evolve over multiple years. 4690 The Speaker: I put the question that clause 14 and Schedule 2 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 15, Mr Ashford.
4695 Mr Ashford: Thank you, Mr Speaker. Clause 15 provides a mechanism for the Department to revise the mandate during the year. Normally this must be done by agreement with Manx Care, but in exceptional circumstances, where considered necessary, may be done by the Department. Any revision must be laid before
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Tynwald, together with an explanation of the reasons for making the revision. The mandate must 4700 also be published in its revised form. I beg to move that clause 15 do stand part of the Bill.
The Speaker: Mr Harmer.
4705 Mr Harmer: Thank you, Mr Speaker. I beg to second.
The Speaker: I put the question that clause 15 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clauses 16 and 17, Mr Ashford. 4710 Mr Ashford: Thank you, Mr Speaker Clause 16 provides that Manx Care has a general power to take actions relevant to carrying out any of its functions under the Act. Clause 17 confirms that this power allows Manx Care to enter into arrangements with other 4715 health and social care providers in order to discharge its functions under the Act. In doing so, this does not take away any liability for Manx Care with respect to those functions. It will allow Manx Care to commission health and social care services that it cannot provide directly. I beg to move that clauses 16 and 17 do stand part of the Bill.
4720 The Speaker: Mr Harmer.
Mr Harmer: Mr Speaker, I beg to second.
The Speaker: I put the question that clauses 16 and 17 stand part of the Bill. Those in favour, 4725 please say aye; against, no. The ayes have it. The ayes have it. Clause 18, Mr Ashford.
Mr Ashford: Thank you, Mr Speaker. Clause 18 allows Manx Care to make private health services available on the Island with written 4730 approval from the Department and providing that such services do not interfere with Manx Care’s functions under the Act or cause any disadvantage to non-private patients. This is similar to the Department’s existing duty in relation to private health services and allows for such services to be contained within the mandate. The clause also stipulates that the Department remain the body that will determine the 4735 charges payable for private patients. I beg to move that clause 18 do stand part of the Bill.
The Speaker: Mr Harmer.
4740 Mr Harmer: Thank you, Mr Speaker, I beg to second.
The Speaker: I put the question that clause 18 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 19, Mr Ashford. 4745 Mr Ashford: Thank you, Mr Speaker. Clause 19 makes provision to allow Manx Care to have facilities within its hospitals that sell refreshments, gifts and similar items. I beg to move clause 19 do stand part of the Bill.
4750 The Speaker: Mr Harmer.
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Mr Harmer: Mr Speaker, I beg to second.
The Speaker: Mr Hooper.
4755 Mr Hooper: Thank you, Mr Speaker. Sorry, the Minister said this is the clause that allows Manx Care to have a shop; actually, it says this is the clause that allows them to run, manage or supervise such a facility. I would have thought that the most appropriate way for a café or whatever, or a shop, to be run on hospital premises would be to lease the space to a private provider. I am not sure that the clause does that. 4760 So I would like the Minister to clarify his remarks.
The Speaker: Mover to reply.
Mr Ashford: Thank you, Mr Speaker. 4765 I will take it away and have it looked at. My understanding was it does allow for them to have lease arrangements. I think people know my personal views on this. I have expressed them in this House when I was a grumpy backbencher in relation to services. So I will have it absolutely checked, but my understanding is it does not prevent them entering into a lease arrangement for those kinds of services. 4770 The Speaker: I put the question that clause 19 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 20, Mr Ashford.
4775 Mr Ashford: Thank you, Mr Speaker. Clause 20 requires Manx Care to be effective, efficient and economical when carrying out its functions. I beg to move that clause 20 do stand part of the Bill.
4780 The Speaker: Mr Harmer.
Mr Harmer: Thank you, Mr Speaker. I beg to second.
The Speaker: I put the question that clause 20 stand part of the Bill. Those in favour, please 4785 say aye; against, no. The ayes have it. The ayes have it. Clause 21, Mr Ashford.
Mr Ashford: Thank you, Mr Speaker. Clause 21 places a duty of candour on Manx Care similar to that placed on the Department 4790 under clause 11 and it also requires Manx Care to comply with any regulations that are made by the Department under that clause. I beg to move that clause 21 do stand part of the Bill.
The Speaker: Mr Harmer. 4795 Mr Harmer: Thank you, Mr Speaker. I beg to second.
The Speaker: I put the question that clause 21 stand part of the Bill. Those in favour, say aye; against, no. The ayes have it. The ayes have it. 4800 Clause 22, Mr Ashford.
Mr Ashford: Thank you, Mr Speaker.
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Clause 22 requires Manx Care to establish, operate and promote such a clinical and social care governance framework and ensure that any other service provider which has made arrangements 4805 with Manx Care is required to operate either that same framework or an equivalent. I beg to move that clause 22 do stand part of the Bill.
The Speaker: Mr Harmer.
4810 Mr Harmer: Thank you, Mr Speaker. I beg to second and reserve my remarks.
The Speaker: I call on Mrs Barber to move her amendment.
Mrs Barber: Thank you, Mr Speaker. 4815 This amendment will correct the terminology used in this instance so that it refers to a clinical and social care governance framework, which ties in with the terminology used in the subsequent subparagraph and defines what is meant by a clinical and social care governance framework. Mr Speaker, I beg to move the amendment standing in my name:
Amendment to clause 22 Page 20, in line 5, after ‘social’ insert ‘care’.
The Speaker: Mr Moorhouse. 4820 Mr Moorhouse: Thank you, Mr Speaker. I beg to second.
The Speaker: I put the amendment first in the name of Mrs Barber. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. 4825 I put the clause as amended. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 23, Mr Ashford.
Mr Ashford: Thank you, Mr Speaker. 4830 Clause 23 deals with a duty placed on Manx Care to improve the quality of services it provides, similar to the duty that is placed on the Department under clause 5. With the approval of Tynwald, the Department may impose requirements and standards in relation to Manx Care’s duty with a view to ensuring that services are of an appropriate quality. I beg to move that clause 23 do stand part of the Bill. 4835 The Speaker: Mr Harmer.
Mr Harmer: Thank you, Mr Speaker. I beg to second and reserve my remarks.
4840 The Speaker: I put the question that clause 23 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 24, Mr Ashford.
Mr Ashford: Thank you, Mr Speaker. 4845 Clause 24 imposes a duty on Manx Care to reduce inequalities, similar to the duty that is placed on the Department under clause 10. I beg to move that clause 24 do stand part of the Bill.
The Speaker: Mr Harmer.
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4850 Mr Harmer: Thank you, Mr Speaker. I beg to second.
The Speaker: I put the question that clause 24 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 25, Mr Ashford. 4855 Mr Ashford: Thank you, Mr Speaker. Clause 25 imposes a duty on Manx Care to promote autonomy as the Department will be required to provide Manx Care with the freedom to deliver services how it sees fit, whilst meeting the stated needs, quality and financial standards. Manx Care will do the same when contracting 4860 with other service providers. I beg to move that clause 25 do stand part of the Bill.
The Speaker: Mr Harmer.
4865 Mr Harmer: Thank you, Mr Speaker. I beg to second.
The Speaker: I put the question that clause 25 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 26, Mr Ashford. 4870 Mr Ashford: Thank you, Mr Speaker. Clause 26 imposes a duty on Manx Care to promote education and training, similar to the duty that is placed on the Department under clause 9. I beg to move that clause 26 do stand part of the Bill. 4875 The Speaker: Mr Harmer.
Mr Harmer: Thank you, Mr Speaker. I beg to second.
4880 The Speaker: I put the question that clause 26 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 27, Mr Ashford.
Mr Ashford: Thank you, Mr Speaker. 4885 Clause 27 places a duty on Manx Care to promote the involvement of service users, their carers and representatives in decisions relating to that person’s diagnosis and treatment. I beg to move that clause 27 do stand part of the Bill.
The Speaker: Mr Harmer. 4890 Mr Harmer: Thank you, Mr Speaker. I beg to second.
The Speaker: I put the question that clause 27 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. 4895 Clause 28, Mr Ashford.
Mr Ashford: Thank you, Mr Speaker. Clause 28 provides Manx Care with flexibility in how it chooses to exercise its functions. This clause allows Manx Care to exercise its functions through its members and staff, jointly with 4900 another service provider or via a joint committee. Manx Care is also allowed to agree the terms and conditions on which it makes such arrangements.
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I beg to move that clause 28 do stand part of the Bill.
The Speaker: Mr Harmer. 4905 Mr Harmer: Thank you, Mr Speaker. I beg to second and reserve my remarks.
The Speaker: Mr Thomas.
4910 Mr Thomas: Thank you, Mr Speaker. Just with respect to subclause (4), why is a joint committee specified? It sounds quite local authority-ish – ‘joint committee’ – (Laughter) and I can imagine … I know some pretty well-functioning Statutory Boards that do all sorts of exciting things with partners and different arrangements than setting up a joint committee, so why is the statute limiting the partnership 4915 arrangement to a joint committee? Also, perhaps the Minister could clarify what he meant by Manx Care is ‘not just another Statutory Board’, when he sums up, because I have been thinking about that ever since. It has been worrying me greatly.
4920 The Speaker: Mover to reply.
Mr Ashford: Well, I am sorry to have worried the Hon. Member for Douglas Central, Mr Speaker. It is never my intention to worry him. In relation to the Manx Care and saying it is not just another Statutory Board, that will be 4925 because – as I am sure Mr Thomas is aware – there are certain provisions that do not necessarily apply to Manx Care. We have done things slightly differently with Manx Care to ensure that things are different in terms of the autonomy and everything else. I can dig my own hole, Mr Thomas, and I will keep going! (Laughter) We have done things slightly differently compared to if it was a pure Statutory Board under 4930 the Statutory Boards Act, and that is what I was actually referring to, Mr Speaker. In relation to Mr Thomas’s other point, which I have now completely forgotten while doing that – (Mr Thomas: Joint committee.) Joint committee: obviously, that is one of the options available. It does sound maybe a bit local authority-ish and maybe they have not got a good history, joint committees, when it comes to local authorities, but certainly in this it is one of the 4935 options available to Manx Care, but obviously there is the ability to do it through another service provider as well, and that is the key point on this. We would expect that joint committees would be used very rarely, in extreme circumstances, Mr Speaker.
The Speaker: I put the question that clause 28 stand part of the Bill. Those in favour, please 4940 say aye; against, no. The ayes have it. The ayes have it. Clause 29, Mr Ashford.
Mr Ashford: Thank you, Mr Speaker. Clause 29 gives the Department power to make regulations for the purpose of conferring 4945 additional functions on Manx Care, so long as the additional function is connected to an existing Manx Care function. This provision is included to future-proof the legislation in case there is a specific function that needs to be placed on Manx Care that has not been considered at this time. Tynwald approval is required for regulations under this clause. I beg to move that clause 29 do stand part of the Bill. 4950 The Speaker: Mr Harmer.
Mr Harmer: Thank you, Mr Speaker. I beg to second.
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The Speaker: I put the question that clause 29 stand part of the Bill. Those in favour, please 4955 say aye; against, no. The ayes have it. The ayes have it. Clause 30, Mr Ashford.
Mr Ashford: Thank you, Mr Speaker. Clause 30 gives the Department powers and a process for acting to ensure that issues are 4960 rectified in situations where the Department considers that Manx Care is failing or has failed to comply with its obligations. In such cases, the Department will direct Manx Care to take steps to rectify that failure and to prevent its recurrence, such as requiring Manx Care to engage experts to assist or to provide periodic reports to the Department. There is an escalation process outlined for cases where the Department believes that Manx 4965 Care has failed in some significant respects to comply with such a direction from the Department. Escalation would be to the Council of Ministers and the Council of Ministers is given the power to direct Manx Care, similar to its powers in relation to other Statutory Boards. If Manx Care fails to comply with a direction from the Council of Ministers, the last resort will be for the Council to require the Department to discharge the relevant function or to make arrangements for another 4970 provider to do so. I beg to move that clause 30 do stand part of the Bill.
The Speaker: Mr Harmer.
4975 Mr Harmer: Thank you, Mr Speaker. I beg to second and reserve my remarks.
The Speaker: I put the question that clause 30 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 31, Mr Ashford. 4980 Mr Ashford: Thank you, Mr Speaker. Clause 31 requires Manx Care to publish an operating plan that sets out how Manx Care proposes to operate and to comply with the mandate in that particular financial year and also set out a forward plan in outline of how it proposes to operate in the subsequent two financial years. 4985 The operating plan must be laid before Tynwald by the Department, along with the mandate before the start of that financial year from its third year of operation and every year thereafter. The clause allows the operating plan to be revised mid-year and requires that any revisions are published and sent to the Department and to other appropriate persons. The clause also allows Manx Care to publish an overview document instead of a full operating plan for each of the first 4990 two years. As a brand new organisation, it would be very difficult for Manx Care to publish a meaningful operating plan from day one. This two-year grace period gives Manx Care the time to consider its medium-term approach and begin to gather the information required to be able to prepare an operating plan from its third year of operation. I beg to move that clause 31 do stand part of the Bill. 4995 The Speaker: Mr Harmer. Mr Harmer: Thank you, Mr Speaker. I beg to second and reserve my remarks.
The Speaker: I put the question that clause 31 stand part of the Bill. Those in favour, please 5000 say aye; against, no. The ayes have it. The ayes have it. Clause 32, Mr Ashford.
Mr Ashford: Thank you, Mr Speaker. Under clause 32, Manx Care is required to publish an annual report within six months after the 5005 end of each financial year, covering how it has discharged its functions in line with any objectives
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or requirements specified in the mandate and the proposals it had set out in its operating plan for that year. The Department is required to provide a letter to Manx Care containing its assessment of Manx Care’s performance over the year in question, to publish the letter of assessment and lay it before Tynwald, along with Manx Care’s annual report. 5010 I beg to move that clause 32 do stand part of the Bill.
The Speaker: Mr Harmer.
Mr Harmer: Thank you, Mr Speaker. I beg to second and reserve my remarks. 5015 The Speaker: Mr Thomas.
Mr Thomas: Thank you, Mr Speaker. Did the Transformation Board consider putting into this clause an annual debate on the annual 5020 report, like there is for the Chief Constable’s report, say; or was the plan something like every time there was a disgruntled group of MHKs we debate the Manx Care situation, every six months or every three months, or something like that? It might be better to go back to Mr Cannan’s idea, which is that we have a structured annual debate on the Manx Care report as preference, (Mr Shimmins: Hear, hear.) rather than a regular 5025 occurrence. So perhaps that is something that the Department, the Council of Ministers, the Transformation Board can think about and then upstairs they can perhaps do some damage to it in the Legislative Council.
The Speaker: Mover to reply. 5030 Mr Ashford: Thank you, Mr Speaker. If Hon. Members want to have an annual debate on Manx Care, personally I do not have a problem with that – debating the annual report. I think, personally, it could be a very good idea.
5035 Several Members: Hear, hear.
The Speaker: I put the question that clause 32 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 33, Mr Ashford. 5040 Mr Ashford: Thank you, Mr Speaker. Clause 33 gives the Department power to require Manx Care to provide it with information relevant to the Department’s functions, and it requires Manx Care to provide that information by the date requested or provide an explanation for not being able to do so. 5045 I beg to move that clause 33 do stand part of the Bill.
The Speaker: Mr Harmer.
Mr Harmer: Thank you, Mr Speaker. I beg to second. 5050 The Speaker: I put the question that clause 33 stand part of the Bill. Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clause 34, Mr Ashford.
5055 Mr Ashford: Thank you, Mr Speaker. Clause 34 brings in the duty to share information specifically recommended by Sir Jonathan Michael, who requires the Department, Manx Care and any service provider with whom Manx
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Care has entered into arrangements to share information about a service user, where the disclosure of information is necessary for the provision of health or social care services to that 5060 service user and is in their best interests. When implementing this requirement, the organisations must give regard to the wishes of the service user in respect of the disclosure of their information as well as data protection principles and the duties of care or confidence that are established in law. I beg to move that clause 34 do stand part of the Bill. 5065 The Speaker: Mr Harmer.
Mr Harmer: Thank you, Mr Speaker. I beg to second and reserve my remarks.
5070 The Speaker: Mr Hooper.
Mr Hooper: Thank you very much, Mr Speaker. On reading this, it is a bit of a convoluted section, but I would just like to draw the Minister’s attention to one particular phrase in here. Subsection (2) deals with ‘a relevant person must 5075 disclose information in an appropriate and timely manner’ – great. Then it has a lot of reasons why you do not have to do that. One of those reasons, which I find particularly entertaining, is that it says:
A relevant person need not comply with subsection (2) if that person reasonably considers that […] (b) for any other reason the relevant person is not reasonably able, or should not be required, to comply …
So if the relevant person reasonably considers they should not have to do it, they do not have to do it. That seems to me to be a gaping hole in the provision of information section, and I wonder 5080 if the Minister would comment on that.
The Speaker: Let’s be reasonable. (Laughter) Mover to reply.
5085 Mr Ashford: Thank you, Mr Speaker. I think what that is getting at in terms of the ‘should not be required’ – although I will have it again clarified for the Hon. Member – I think that there is certain information sometimes that if shared with another thing and then shared back to the service user, it can actually cause more problems and more issues, so it can cause distress to the individual under certain circumstances, 5090 particularly around things such as mental health. I will have that clarified for the Hon. Member, but I assume it is referring to that. It is not a catch-all for someone to turn round and actually say, ‘Well, I do not believe I should have to share information’ about that person, because let’s not forget, the other provisions that have gone into this Bill are all around duty of candour or duty of care and ensuring that the interests of the patient 5095 are at the heart. So if someone, in the Hon. Member’s words, just turned round and said, ‘Well, actually, I am deciding to exempt myself. I do not have to share’, they would be in multiple breach of other parts of this Bill.
The Speaker: I put the question that clause 34 stand part of the Bill. Those in favour, please 5100 say aye; against, no. The ayes have it. The ayes have it. Clause 35 and Schedules 3 and 4. Mr Ashford.
Mr Ashford: Thank you, Mr Speaker. Clause 35 gives effect to Schedules 3 and 4.
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5105 Schedule 3 makes provision for the Department to make a scheme to transfer interests, rights and any liabilities of, or pertaining to, the Department over to Manx Care. This is so that the varied responsibilities that currently lie with the Department and the interests, rights and liabilities that come along with those responsibilities may be retained or otherwise assigned as appropriate to Manx Care to fit in with the functions of the new body. 5110 Schedule 4 makes provision for the Department to make a scheme to transfer staff to Manx Care. The Department currently directly employs much of its front-line staff, and these staff will be formally transferred to Manx Care by such a scheme. I beg to move that clause 35 and Schedules 3 and 4 do stand part of the Bill.
5115 The Speaker: Mr Harmer.
Mr Harmer: Thank you, Mr Speaker. I beg to second.
The Speaker: I put the question that clause 35 and Schedules 3 and 4 stand part of the Bill. 5120 Those in favour, please say aye; against, no. The ayes have it. The ayes have it. Clauses 36, 37, 38 and Schedule 5, Mr Ashford.
Mr Ashford: Thank you, Mr Speaker. Clause 36 allows references to the Department of Health and Social Care and its officers in 5125 written documents, including legislation, to be read as references to Manx Care and its officers, or to a service provider that has entered into arrangements with Manx Care, as the context requires. Clause 37 amends the Statutory Boards Act 1987 to insert Manx Care as a Statutory Board with the effect that the Act applies to it. 5130 Clause 38 gives effect to Schedule 5, which makes several other consequential amendments to existing legislation to allow Manx Care to assume the responsibilities of the Department where it is required to do so under the mandate. Mr Speaker, I beg to move that clauses 36, 37 and 38, along with Schedule 5, do stand part of the Bill. 5135 The Speaker: Mr Harmer.
Mr Harmer: Thank you, Mr Speaker. I beg to second and reserve my remarks.
5140 The Speaker: I call on Mrs Barber to move amendments 4 to 12.
Mrs Barber: Thank you, Mr Speaker. I beg to move amendments 4 to 12 to Schedule 5, which include a few corrections and additions to those consequential amendments that had been identified early on. 5145 Since that time, there has been much ongoing correspondence between the Transformation Programme’s legislation team and Chambers in order to make certain that all of the existing legislation has been captured, with consequential amendments as required, to ensure that legal provisions apply to Manx Care where appropriate, and these changes made to Schedule 5 reflect the amount of work that this has entailed. 5150 Mr Speaker, I now beg to move the amendments standing in my name:
Amendments to Schedule 5 4. Page 42, for lines 7 to 9 substitute — “1 The Local Government Act 1946 is amended as follows. 2 In section 23 (provision for early notification of births) —
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(a) in subsection (1) after “the Department)” insert “or, as the case may be, Manx Care (a Statutory Board established under the Manx Care Act 20XX)”; (b) for subsection (2) substitute — “(2) Notice under this section shall— (a) be given within thirty-six hours of the birth; (b) contain the required information; (c) be given to the Department, or as applicable, Manx Care (“the applicable addressee”) either — (i) by a prepaid letter or postcard addressed to the applicable addressee at its office, or (ii) by delivering a written notice to the applicable addressee at its office. The applicable addressee shall, upon application being made to it, supply without charge to any medical practitioner or midwife residing or practising within this Isle addressed and stamped postcards containing the form of notice”.”. 3 In section 24 (inspection) after “the Department” insert “or, as the case may be, Manx Care (a Statutory Board established under the Manx Care Act 20XX)”. Re-number subsequent provisions accordingly.
5. Page 42, after line 18 insert — “Family Law Reform (Isle of Man) Act 1971 5 In section 14(1) of the Family Law Reform (Isle of Man) Act 1971 (power to provide for manner of giving effect to direction for the use of scientific tests) in paragraph (a) and (e) after “Department of Health and Social Care” insert “or, as the case may be, Manx Care (a Statutory Board established under the Manx Care Act 20XX).”” Re-number subsequent provisions accordingly.
6. Page 43, after line 20 insert — “15 In section 28(12) (anti-social behaviour orders) after “the Department of Health and Social Care,” insert “Manx Care,””. Re-number subsequent provisions accordingly.
7. Page 43, in line 21 for “35(10(b)” substitute “35(10)(b)”.
8. Page 43, line 28, before “Manx Care (a Statutory” insert “or, as the case may be,”.
9. Page 44, for lines 11 to 16 substitute — “(b) for paragraph (b) substitute — “(b) arrangements to be made by the Department for dealing with complaints made by or on behalf of persons who are or have been provided with services under a mandate referred to in the Manx Care Act 20XX; (c) the procedure for the making of a complaint including to whom it may be made and the matters in respect of which it may be made; (d) the steps to be taken by the Department for publicising arrangements under this section.””
10. Page 44, for lines 18 to 25 substitute — “22 The Education Act 2001 is amended as follows. 23 In section 30 (education supervision orders) — (a) in subsection (1) after “DHSC” insert “or, as appropriate, Manx Care”; (b) in subsection (3) after “DHSC” insert “or, as the case may be, Manx Care”; (c) in subsection (4) after “DHSC” insert “or, as the case may be, Manx Care”; (d) after subsection (5) insert — “(6) “Manx Care” means the Statutory Board established under the Manx Care Act 20XX.”
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24 In Schedule 5 (education supervision orders) — (a) in paragraph 1(1) (effect of orders) after “DHSC” and “that Department” insert “or, as the case may be, Manx Care”; (b) in paragraph 3(a) (cancellation of school attendance order) after “DHSC” insert “or, as appropriate, Manx Care”; (c) in paragraph 5(2) (duration of orders) after “DHSC” insert “or, as appropriate, Manx Care”; (d) in paragraph 7(c) (revocation of orders) after “DHSC” insert “or, as appropriate, Manx Care”.” Re-number subsequent provisions accordingly.
11. Page 45, after line 5 insert — “(1B) Notwithstanding subsections (1) and (1A), a person aggrieved by a decision of Manx Care in respect of social care services or carer support provided by it under the Manx Care Act 20XX may complain directly to the Independent Review body constituted under this section without first complaining to the Department. (1C) Notwithstanding subsections (1) and (1A), a person aggrieved by a decision of a person with whom Manx Care has entered into an agreement under section 17 of the Manx Care Act 20XX (a section 17 provider) in respect of social care services or carer support provided by that section 17 provider under that agreement, may complain directly to the Independent Review body constituted under this section without first complaining to Manx Care.”
12. Page 46, insert as new line 1— “36 In section 140(1) (what is “social care work” and who is a “social care worker”) after “Department” insert “or Manx Care”.” Re-number subsequent provisions accordingly.
The Speaker: Mr Moorhouse.
Mr Moorhouse: Thank you, Mr Speaker. I beg to second.
5155 The Speaker: Putting to Hon. Members first the amendments in the name of Mrs Barber, those in favour, please say aye; against, no. The ayes have it. The ayes have it. Putting to you clauses 36, 37, 38 and Schedule 5 as amended, those in favour, please say aye; against, no. The ayes have it. The ayes have it. That concludes consideration of the Manx Care Bill.
7. FURTHER CONSIDERATION OF COUNCIL AMENDMENTS
7.1. Communications Bill 2018 – Council amendments considered
Mr Cregeen to move.
5160 The Speaker: Now we turn to Item 7, further consideration of Council amendments to the Communications Bill 2018 – Mr Cregeen to move.
Mr Cregeen: Thank you again, Mr Speaker.
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Mr Speaker, Hon. Members, prior to the Bill returning to Legislative Council just before the 5165 summer recess, the Commission completed the promised consultation on the scope and structure. To summarise that consultation, the Commission reviewed the various models and proposed that the Commission be chaired by a person who is independent of both the industry and politics, but still retain a political Member on the board to ensure that there is the opportunity for public 5170 scrutiny of the Commission’s work and to ensure that the public interest is retained during discussions and decisions. The responses received were broadly supportive of this position. However, the Council of Ministers has taken this a step further in its amendment to the Bill by removing that Member’s voting privileges to ensure that there can be no hint of political interference. 5175 The compromise accepted by Council is that instead of the Minister of Home Affairs being ex-officio Chair of the Commission, the Chair and all other members bar one should be apolitical. A Member of Tynwald would be a member of the Commission, albeit without a vote but with a voice at Commission meetings. That Member, it is envisaged, could be there to move motions and answer Questions in Tynwald in relation to the Commission’s work but otherwise play a supportive 5180 role in relation to it. Hon. Members will be aware that since I was appointed as Minister for Home Affairs, one of my priorities has been to move this Bill forward. The COVID-19 situation has shown us first-hand how deeply ingrained telecoms are in our daily lives and businesses, and how now more than ever connectivity is a key consideration in people’s lives. 5185 Hon. Members will also have heard at the presentation last week by the Chief Executive Officer of the Commission that the Commission is moving forward on awarding key spectrum to the Island. The next steps in the award are largely dependent on this Bill progressing. This spectrum award is key to ensuring the Island keeps pace with other jurisdictions in terms of telecommunications infrastructure, as well as allowing the community greater connectivity, but 5190 will also future-proof provisions for some years to come. The Bill also provides the opportunity to update the licensing of telecoms services on the Island, which in turn will provide the regulatory certainty needed to encourage investment in our Island’s telecoms infrastructure. Industry has been patiently waiting for the Bill to move forward, but we are now at the point 5195 that the legislative process needs to be concluded to allow the industry to progress with their investment plans. This legislation will give the Commission the teeth to enforce licence conditions by way of penalties and fines, allowing it to better protect the Manx consumer and ensure competition in this vital sector of our economy. Government is currently making a significant investment in ensuring all Manx people have 5200 access to high-quality internet connectivity, through the National Broadband Plan. It is important to ensure that we have a strong and well-equipped regulator to ensure that this investment is protected and that it has the intended effect to ensure that competition in our telecoms sector continues to flourish to the benefit of all. I would like to thank our colleagues in Legislative Council for their support in accepting this 5205 compromise solution and would commend it to Hon. Members. Mr Speaker, I beg to move the motion standing in my name.
The Speaker: I call the Hon. Member for Ayre and Michael, Mr Baker.
5210 Mr Baker: Thank you, Mr Speaker. I beg to second.
The Speaker: Mr Shimmins.
Mr Shimmins: Thank you very much, Mr Speaker.
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5215 Well, what a carry-on this has been, Hon. Members! (A Member: Hear, hear.) If you look back at Hansard, this started in February 2019, and I think we all recognised at time that this was a very important Bill. We have just heard how important the communications infrastructure is to our Island. It has been delayed due to a bit of political status, really, in my view. This Bill has been misreported a number of times as being a spat between the House of Keys 5220 and the Legislative Council. It has not been that. We all know it has not been that. If you look at the voting patterns in the House of Keys, it has previously been rejected or defeated 13:10, with the Council of Ministers and fellow Members of the House of Keys objecting to initially an amendment from my hon. friend, Mrs Caine, who sought to remove the political Chair. It then came back in November 2019 from the Legislative Council, and it was rejected again, 13:10 here, 5225 with the Council of Ministers and a few others, but if you look at the total number of backbenchers who have objected to a political Chair, including Legislative Council, there is a clear majority of Tynwald Members who are not in favour of a political Chair. I guess what is staggering is that this has gone on for so long, and it has held up such an important piece of legislation, so I welcome the fact that we do seem to be nearing the end of this 5230 carry-on. I understand that a compromise has been brokered. I do wonder if it was all worth the delay and the amount of time that has gone into this consultation. There was a clear message from the outside world, outside of this House, that actually we do not need a political Chair, it is inappropriate in 2020. I have a few questions for the Minister, so first of all, will he be the political Member or will 5235 that be another Member for Home Affairs sitting on the board, in terms of the non-voting Member? I guess the whole crux of this is well, we do not have a political Member on the Gambling Supervision Commission; we do not have a political Member on the Financial Services Authority. Really? What a carry-on! Are we now going to get political Members on those bodies, if we think that this is so important in this body? They are also very important parts of the Island’s 5240 infrastructure. So I look forward to the Minister’s comments. Just for the record, I will be voting against, because I object to the fact that we have political Members on regulators. Personally, I think that is wrong in this day and age, but we do need to sort this out once and for all. Thank you. 5245 The Speaker: Mrs Caine.
Mrs Caine: Thank you, Mr Speaker. I am afraid I am going to echo some of my hon. friend for Middle’s comments here. 5250 I am pleased that the Bill has finally returned to this Hon. House, and I completely support the appointment of an independent Chair of the Communications Commission – not surprisingly, seeing that it was my amendment that failed to get support in March 2019. I remember it well, it was my birthday. It was not a very good birthday, I think. (Laughter) I am less convinced of the necessity for a politician to retain a seat at the board meetings – in 5255 fact, membership of the Communication Commission. Why do we need to retain a political link to this regulator? Also, it is very unfortunate that we are here, 18 months down the line. This legislation could be in force now, and it is the Council of Ministers, I think – I agree with Mr Shimmins – that forced this delay. This is not a backbench issue. This was not Members. This is a sensible move that says, 5260 we should not have political membership of a regulator, so why is it so important to retain that on this one? I do note that it would require Tynwald approval. It does not specify that it would be a Minister, so is that person not completely pointless to be on the regulator? That would be my thought. I think what is the point? Why can the ties not be cut completely, and when are we going to allow 5265 all regulators on the Isle of Man to operate effectively and have that separation from Government or any perceived political influence?
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The Minister said, I think, that taking away the voting rights and having this political person would reassure us that there was no hint of political interference, but still there is going to be a suggestion of political influence, and why is that necessary? 5270 Overall I am really pleased to see this legislation before us. It is very much wanted by this industry, and for that reason I will reluctantly support it, but I think the sooner politicians get out of any suggestion that they are on the regulatory side, the better. Thank you, Mr Speaker.
5275 Mr Shimmins: Hear, hear.
The Speaker: Hon. Member, Mr Hooper.
Mr Hooper: Thank you very much, Mr Speaker. 5280 I am not going to reiterate the points that have already been made. I am not going to vote for this. It is absolutely pointless. The arguments that have been put forward: I have not heard a good argument as to why the regulator needs a politician when our other significant regulators function perfectly well, and I would argue better, for the fact they do not have a politician sitting on the board. 5285 The arguments that have been put forward that somehow by removing the politicians’ vote, they will not be able to influence anything – I have never heard a more ridiculous suggestion in my life! It is almost as if people are not familiar with this concept of soft power. I sit in this Hon. House. I have no actual power over most Government Departments and yet somehow I have managed to get the things that I want them to do. I cannot force Government to do things for me. 5290 I cannot vote inside Government Department meetings, and yet somehow policy happens. Actually, this idea that removing a person’s vote is exactly the same as removing their ability to interfere or influence, that is a paper thin argument that belies the reality of what will be happening with a politician being retained on the board. So I cannot support this amendment, Mr Speaker. I appreciate where it has come from and the 5295 urgency to get this through, but, quite frankly, this is not an acceptable compromise.
The Speaker: Mr Thomas.
Mr Thomas: Thank you, Mr Speaker. 5300 Mine are just one simple question and one observation. The question is: what is the role of this political Member? Is the role to be a spy? (Laughter) Or is it to speak for the Council of Ministers surreptitiously? Obviously clause 9 restricts directions from the Council of Ministers, but perhaps you could do it through having a political voice on the board. So that is the question: what is the role of this person? 5305 The second point is that I was actually a bit surprised that the Minister, when moving, talked about scrutiny as the role, because I thought there were so many other ways that we could exercise scrutiny. We could have the Policy Review Committees – the FSA, for instance, comes in annually to talk to the Policy Review Committees. We could have a debate annually on the annual report of the Communications just like we have agreed would be a good idea for the Manx Care 5310 that we could have, that I have proposed, often, for the FSA and other regulators. So that is my observation.
The Speaker: I call Mr Cregeen to reply.
5315 Mr Cregeen: Thank you, Mr Speaker. I know people have got their views that they have carried on for a number of years in this Hon. House. In one way, it is not worth trying to convince you otherwise – you have already announced that you are going to either vote against or reluctantly support it.
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But this is something that we need to bring forward. This is something that the industry needs. 5320 Hon. Members, if this is not passed through, then we will be in another situation where the Bill is still hanging round, we cannot move anything forward. As I have said, Mr Speaker, this will be an appointment by Tynwald. So the appointment will come from Tynwald. We have to be really careful there that it is not something that is taken over by the industry or the politics side of it. 5325 So, Mr Speaker, I beg to move.
The Speaker: The motion is that the Keys concur with the Council on the amendments as set out on the Order Paper. Those in favour, please say aye; against, no. The ayes have it.
A division was called for and electronic voting resulted as follows:
FOR AGAINST Mr Ashford Mr Moorhouse Dr Allinson Mrs Christian Mr Baker Mr Hooper Mrs Barber Mr Peake Mr Boot Mr Robertshaw Mrs Caine Mr Shimmins Mr Callister Mr Thomas Mr Cannan Mrs Corlett Mr Cregeen Mr Harmer Mr Perkins Mr Quayle Mr Skelly Mr Speaker
The Speaker: With 15 for, 7 against, the ayes have it. The ayes have it. 5330 Hon. Members, that brings us to the conclusion of a very busy Order Paper. I thank you all for your consideration and the good humour with which you have dealt with it all. The House stands adjourned until 10 o’clock on 3rd November in our own Chamber.
The House adjourned at 5.03 p.m.
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