Primary Legislation
Primary legislation is the highest form of legislation that applies in the Island. In the Isle of Man there are three types of primary legislation:
Acts of Tynwald are passed by the Branches of Tynwald – the House of Keys and the Legislative Council – and require the Assent of His Majesty in Council, though this is usually given by the Lieutenant Governor on His Majesty’s behalf.
Acts of Parliament that have effect in the Island. There are four ways in which Acts (or certain provisions of Acts) passed in Westminster may apply to the Isle of Man:
1) the Act may be expressed to apply to the Isle of Man (often with a power for an Order in Council to modify it in its application to the Island);[1]
2) the Act may apply to the Island by implication;[2]
3) the Act may apply by virtue of being extended to the Island by Order in Council, where it contains a power to do so;[3]
4) the Act may apply by virtue of being extended to the Island under the authority of an Act of Tynwald.[4]
Church Measures are further type of primary legislation. They make provision with respect to matters concerning the Church of England in the Isle of Man and are not passed or considered by the Branches of Tynwald. Instead, they generally follow the procedures laid out in the Church Legislation Procedure Act 1993. This requires that any Measures be presented to Tynwald Court for approval in draft form with an accompanying report. Tynwald Court may then resolve that the draft Measure be presented to His Majesty for Royal Assent in the same manner as a Bill.[5] Thereafter, Measures are treated in the same manner as an Act of Tynwald.[6]
Within the territory of the Isle of Man, the legislative competence of Tynwald is extensive but not necessarily exclusive. The concept of ‘reserved matters’ familiar in the UK’s devolved parliaments and assemblies does not apply in the Isle of Man. There is no fixed list of policy areas in which the Isle of Man makes its own legislation, rather than relying on UK legislation extended to the Island. This is because the Isle of Man has never been part of England or of the UK. Tynwald and the Parliament at Westminster emerged as law-making bodies at around the same time. Hence the powers of Tynwald are not devolved in the sense of having been passed down from Westminster. Rather, Tynwald’s legislative powers are, and always have been, its own.
In practice, most new primary legislation affecting the Isle of Man is made in Tynwald, and UK legislation is not extended to the Isle of Man without Tynwald’s prior consent.
An Act is a piece of primary legislation that has completed its passage through the relevant legislature and has received Royal Assent. At any time before receiving Royal Assent (e.g. when it is before the House of Keys or Legislative Council for consideration) it is referred to as a Bill.
Reading Primary Legislation
An Act is an expression of Tynwald’s legislative intention that states or alters the law in some respect. For example, an Act of Tynwald may establish rights and responsibilities of Manx residents, it may impose penalties and sanctions, or it may impose taxes. Some Acts are free standing, others amend existing Acts:
- A new principal Act sets up a new legislative scheme and the title will usually reflect the subject matter of the Act.[7]
- An amending Act amends existing Acts. Usually, an amending Act has the word ‘Amendment’ in its title.[8]
However, the absence of the word ‘Amendment’ does not necessarily mean that the Act is not an amending Act.[9] Many new principal Acts also amend existing Acts as a consequence of the new legislative scheme that is established by the new principal Act.[10]
Structure of an Act
There is a standard format for Acts of Tynwald, and conventions as to the structure and order of provisions. The first substantial page of an Act starts with the Isle of Man Coat of Arms, the short title of the Act, the date on which it was signed in Tynwald, the date of Royal Assent, the date on which Royal Assent was announced to Tynwald, the long title of the Act and the enacting words. They are followed by the rest of the text of the Act (which includes any Schedules to the Act).
All Acts are printed with a table of contents which shows the subheadings for each section. This used to be called the Arrangement of Sections; however, it is now referred to as the Index. Some elements of the printed Act, such as the Index and any marginal notes, do not form part of the Act. That means they are not part of the law. However, preambles (a statement of the purposes of an Act) and subheadings in Acts are part of the Act and are intended to assist in ascertaining the meaning of the Act.
In reprints or consolidated versions of Acts prepared by the Attorney General’s Chambers, there are also notes that identify any amendments that have been incorporated in the reprint or consolidated version.[11]
Numbering
An Act may be divided into Parts and the Parts may be divided into Divisions. The purpose of dividing an Act in this way is to group the subject matter so that it is comprehensible. Short Acts, particularly short amending Acts, are often not divided. An Act is generally only divided into Parts and Divisions if the Act deals with a range of subtopics.
Many Acts also include Schedules, which are of no lesser legal significance than the main body of the Act. These appear at the end of an Act and always depend on, or are introduced by, a section. Schedules are frequently used to provide greater detail about how certain provisions of an Act are to be implemented in practice. They can also be used to separate long lists of amendments and repeals from the main body of an Act or to reproduce the text of implemented treaties, agreements or foreign legislation as applied to the Isle of Man.
The text of an Act is contained in individual sections. A section is identified by a bold number and a section heading. Sections can be further divided to assist comprehension:
Subsections – (1), (2) etc.
Paragraphs – (a), (b) etc.
Subparagraphs – (i), (ii) etc.
Schedules are divided into paragraphs (1, 2 etc.). Paragraphs can be grouped together in Partsjust like the body of an Act and can be further divided into various levels of subparagraph following the same pattern as for sections (i.e. 1(1)(a)(i) etc.).
The numbering of the provisions in a Bill takes the same form except that there is one small difference in terminology—the text of a Bill is referred to in clauses. These clauses then become sections on enactment. All other subcategories in a Bill have the same names as in Acts.[12]
Amendments
If a new provision is inserted between two existing provisions, it will be given the number of the first provision, plus a letter of the alphabet.
For example:
a new section between 1 and 2 will be 1A
a new subsection between (1) and (2) will be (1A)
a new paragraph between (b) and (c) will be (ba).
In some cases, when inserting a provision, it is not possible to use the number of the first provision. In this case the letter of the alphabet will appear before the number of the existing provision.[13]
For example:
a new section before section 1 will be A1
a new sub-section before subsection (1) will be (A1)
a new paragraph before (a) will be (Aa).
(Multiple amendments can sometimes mean that the numbering becomes unwieldy.)
Short Title of a Bill/Act
The short title is the key title used to identify a Bill/Act. The short title reflects the Act’s subject matter. For example:
Veterinary Surgeons Act 2005
Race Relations Act 2004
Long Title of a Bill/Act
The long title of sets out the general objectives of a Bill/Act. It needs to be wide enough to embrace everything covered by the Bill/Act. The other importance of the long title is that any amendments to a Bill have to be within the scope of the long title.[14] This is an example of a long title:
AN ACT to make provision for the management of designated coastline zones, to regulate development in such zones; to confer functions on the Department of Transport in respect of such zones; to modify the effect of enactments relating to town and country planning in respect of such zones; and for connected purposes.[15]
Prior to enactment, the long title will begin with “A BILL” instead of “AN ACT”. In most cases the phrase ‘and for connected purposes’ is included to ensure that the scope of the long title is wide enough to enable all ancillary matters to be covered.
Preamble
If an Act contains a preamble, this will appear at the beginning of the Act after the long title but before the first section. The preamble explains the background to the Act or the reasons why its enactment is considered desirable. It forms part of the text of the Act and can be a useful tool for interpreting legislation.[16] However, unless doing so would serve to alter the effect of the respective legislation, a preamble may be omitted in the drafting of Consolidation Acts.[17] A preamble may be compared to the recitals of a contract.
Although more common in older Acts of Tynwald,[18] a preamble is normally now used only in Private Acts. A private Act is limited in its application; it is different from a Private Member’s Bill, which is promoted by a Member as an individual as opposed to on behalf of the Government. The following example is a short extract from the preamble of a Private Act in 2010:
WHEREAS:
(1) Bank of Scotland plc (hereinafter referred to as the “Transferor Company”) is a public limited company incorporated in Scotland which carries on, inter alia, deposit taking business through a branch in the Island, where it is licensed to do so under the Financial Services Act 2008.
(2) Lloyds TSB Offshore Limited (hereinafter referred to as the “Company”) is a private limited company incorporated in Jersey which carries on, inter alia, deposit taking and investment businesses through a branch in the Island, where it is licensed to do so under the Financial Services Act 2008.
(3) The Transferor Company and the Company are both subsidiaries of Lloyds Banking Group plc, a public limited company incorporated in Scotland.[19]
Enacting words
These words appear in every Bill/Act after the long title or, if there is one, the preamble. The words are:
BE IT ENACTED by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Council and Keys in Tynwald assembled, and by the authority of the same, as follows:
Commencement
The Legislation Act 2015provides that an Act is enacted and commences when Royal Assent is announced to Tynwald.[20] However, many Acts will specify a particular day on which the whole Act is to commence, or particular days on which specific provisions are to commence. Where this is the case, the Act or provision will commence at the start of that particular day.[21] A common provision in many recent Acts is that an Act or provision is to commence on such day or days as specified by the responsible Department in an ‘Appointed Day Order’.[22] Retrospective commencement of primary legislation is generally rare; however, certain provisions may occasionally be granted retrospective application (for example, offences relating to crimes against humanity, war crime, etc.).[23]
Definitions
Definitions and other interpretative provisions that are to apply across an Act are usually located together in a section entitled ‘Interpretation’. Sometimes a definition is only applicable to specific provisions of an Act, in which case the definition will usually be located at the end of the relevant section or Part, rather than in the main definition section.
Transitional provisions
An amendment (or repeal) may create a need to deal with the changeover from the old position to the amended position. This sort of issue is dealt with in provisions known as transitional provisions. The section on transitional provisions is often followed by one on consequential amendments.
The Explanatory Memorandum - Bill
An Explanatory Memorandum appears at the front of all Bills that are introduced into the Branches; however, it is not ultimately printed with the Act. An Explanatory Memorandum should identify the promoter of the Bill, outline the general scope and specify the financial effect of the Bill.[24]
The Explanatory Memorandum must also include a statement in respect of the Bill’s compatibility with the European Convention on Human Rights. This must either state that it is the view of the mover that the Bill is compatible with the Convention Rights, or that the mover is unable to make such a statement but nevertheless wishes to proceed with moving the Bill.[25]
In practice, the Explanatory Memorandum also tends to include commentary on each individual clause, as is provided in the separate Explanatory Notes (see below).
Explanatory Notes
Explanatory Notes for each Bill are produced for Members of Tynwald. The notes set out the contents and effect of the Bill on a clause by clause basis. The following information is frequently also included in the notes:
- the background, scope and purpose of the Bill;
- an explanation of any statutory repeals or amendments;
- reasons and justifications for the inclusion of retrospective commencement dates (if any);
- explanations of clauses that amend disciplinary processes and powers;
- reasons and justifications for empowering the making of subordinate instruments that have retrospective effect (if any);
- material to assist a person reading the Bill to understand what the Bill does;
- if a clause of a Bill contains a cross reference to another clause or to a section of another Act, an explanation is sometimes included where the reason for making the cross reference is not immediately obvious;
- examples of how a clause will operate (particularly if the clause includes a formula); and
- information on any Human Rights implications of the Bill.
Finding the current text of an Act
Acts of Tynwald are published both in hard copy and electronically.
The hard copy, which is published by authority, is the only official version that may be used in court. Each Act is published in hard copy soon after it has been passed. It is published on white paper (Bills are printed on green paper).
HM Attorney General’s Chambers maintain the Government legislation website. The website offers access to all current Acts, along with a point-in-time functionality. It also publishes Acts of Tynwald as enacted (from 2001 onwards), repealed Acts (from September 2012 onwards), and substantive Acts (from 1920 onwards). Further services available on the website include lists of recent changes to primary legislation, copies of Bills (from 2016 onwards), the Isle of Man Legislation Newsletters and informative posts about Manx legislation. The website also includes a list of revoked secondary legislation and offers copies of consolidated secondary legislation under certain items of primary legislation. It should be noted that the latter is an ongoing project and that not all items of secondary legislation can yet be found in consolidated form on the website. Copies of secondary legislation as made can be found on the Tynwald website.
Electronic copies of Bills being considered in the Branches can be found on the Tynwald website along with a progress summary.
[1] For example: Trade Marks Act 1994
[2] For example: Armed Forces Act 1991
[3] For example: Communications Act 2003
[4] For example: Social Security Administration Act 1992
[5] Church Legislation Procedure Act 1993, Schedule 1
[6] Legislation Act 2015, s.23A
[7] For example: Manx Care Act 2021.
[8] For example: Emergency Powers (Amendment) Act 2020.
[9] For example: Elections and Meetings (Local Authorities) Act 2021.
[10] For example: Divorce, Dissolution and Separation (Isle of Man) Act 2020.
[11] See Part 5 of the Legislation Act 2015 which makes provisions regarding reprinting legislation.
[12] It is not correct to refer to sub-clauses although the expression is used colloquially.
[13] Examples of both styles of numbering can be found in the Income Tax Act 1970 (e.g. sections 107A and 107B, A108 to J108).
[14] Standing Order 4.7(3)(a) of the Standing Orders of the House of Keys requires an amendment in a Bill to be “within the long title of the Bill”.
[15] Coastline Management Act 2005.
[16] Interpretation Act 2015: section 21(a).
[17] Legislation Act 2015: section 84(1)(h)(ii).
[18] See e.g. Derby Square Act 1945.
[19] Lloyds TSB Offshore Limited Banking Business Act 2010.
[20] Legislation Act 2015: section 17(1).
[21] Legislation Act 2015: section 17(2).
[22] For example: Manx Care Act 2021.
[23] For example: International Criminal Court Act 2003.
[24] Standing Order 4.1 of the Standing Orders of the House of Keys requires a Bill that is to be introduced into the House to have a ”memorandum stating the objects and financial implications of the Bill”.
[25] Human Rights Act 2001, s.16.