A senior advocate has said that the ongoing row over the state owned Steam Packet and isolation rules for its crew raises issues around the separation of powers and possible breaches of the Government Code.
Ian Kermode, who is the sole practitioner from his Court View Chambers, has also written an open letter to chief secretary Will Greenhow with a list of questions relating to the issuing of directives for crew members and the investigation whether or not crews should have been isolated.
He says either a Tynwald committee or an independent off-island legal counsel should be brought in to explore the matters.
The issue of the Steam Packet crews came to light after a member of the crew tested positive for Covid-19. Then during a covid briefing earlier this year when Dr Henrietta Ewart said crews were isolating at home when off shift. However Gef and other media companies were contacted during that briefing by crews to say that was not the case.
The Steam Packet has always said its crews have acted according to the regulations.
In his letters, Mr Kermode asks who was supposed to be ensuring that the Steam Packet crew if, as the gov believed they were isolating when off shift, why it took 11 months for the error to come to light and whether it was realistic the crews could have lived under those conditions for 11 months anyway.
Chief Minister Howard Quayle later said he was ‘having it investigated’. Then on March 1, he announced: ‘I have taken advice on whether there is any prosecution that can be made on this and the answer is no.’
Mr Kermode said this ‘raises a number of significant constitutional issues’.
He added: ‘Under the important principle of the Separation of Powers, the functions and responsibilities of the Police, Prosecution, Parliament, Executive and the Judiciary are necessarily distinct and independent.
‘A breach of Coronavirus Regulations is a criminal offence. Only the Police should investigate such offences and only Prosecutors of the Attorney General’s Chambers should advise on whether there ought to be a prosecution in Court against an individual or company.
‘Instead, it appears that the Chief Minister has conveniently by-passed such bodies and asked other persons to investigate possible criminal offences and advise on breach of Covid Regulations.
‘If that is what has happened then both the investigation and advice could potentially be unconstitutional and ultra vires [beyond the powers].’
He goes on to say that if Mr Quayle asked the Steam Packet to carry out an investigation into whether or not criminal offences had been committed this too would be ‘wholly inappropriate’ and could lead to a ‘corporate whitewash’.
‘It is simply unacceptable for the Chief Minister to sit as judge and jury on potential criminal matters.’
The advocate also explores issues of whether the Ministerial Code (known as the Government Code on the Isle of Man) may have been broken. The code says this an ‘overarching duty on ministers to comply with the law, including international obligations, to uphold the administration of justice and protect the integrity of public life’. In addition it also says that ‘holders of public office should be as open as possible about the decisions and actions they take’.
Mr Kermode added: ‘In such context, it can legitimately be asked whether the Chief Minister will confirm who carried out the investigation, who gave the advice not to prosecute and why he has not freely divulged and published the findings of such investigation.
‘There is also critical consideration of confidence in the Administration of Justice. Central to this concept is that the law must be applied fairly and equally to everyone.’
‘No one is above the law. No person. No company. No Government Department. Public faith in the criminal process also requires that justice is not only done but is seen to be done; in the eyes of the Manx public but also in the perception of those looking at the island from countries abroad.
‘Any cabinet minister found to have acted unconstitutionally or significantly breached the Ministerial Code or damaged confidence in the administration of justice would be expected to consider resignation. As yet we do not know whether any of these things have happened.’
Mr Kermode then turns his attention to the way the pandemic has been handled by the Council of Ministers, saying some people might argue that the handling of the Steam Packet issue ‘has been an accident waiting to happen.’
He adds: ‘For too long during this pandemic it has appeared that we have been governed by an elite cocooned in a bubble of self-congratulation and mutual back slapping, detached from the emotional suffering, financial hardship and enormous disruption their decisions have caused to ordinary people.
‘The conspicuous context of these constitutional breaches is that to date at least 60 people have been jailed on the Isle of Man for breach of Covid Regulations; 48 in 2020 and 12 in 2021.’
Mr Kermode said in these instances there was ‘no misunderstanding’ and ‘no mercy’, instead ‘it was black and white’. He added that many of these people will now be wondering they were jailed but the Steam Packet crew haven’t.
However, far from blaming the crews themselves, he says ‘we are left with the uneasy feelings that the decent men and women of the Steam Packet are being used as scapegoats for government failings’.
He added: ‘We are left sceptical that the current lockdown was delayed in an attempt to save face and avoid any admission of border failure. And we are left with more than a whiff of abuse of power.’
The Situation Remains the Same
Gef contacted the gov for a response to Mr Kermode’s letters. A spokesman said the situation remains the same and the Chief Minister has asked Mr Greenhow to organise a review into the matter.