Sir Michael Birt gave the 2016 Caroline Weatherill Memorial Lecture in October 2016 (available at http://www.iomlawsociety.co.im/wp-content/uploads/2014/02/2016-Sir-Michael-Birt.pdf). He took as his topic “The power of the UK to legislate for the Crown Dependencies without consent – fact or fiction?”. His fascinating discussion of the position of the Crown Dependences had a centre of gravity in the position of the Channel Islands, but cautiously extends the themes to the rather different constitutional history of the Isle of Man.
Sir Michael takes a fairly high view of the importance of constitutional conventions, at times seeming to be part of a strong tradition that sees constitutional conventions as significantly different from mere constitutional understandings or political practices, and mentions Sir Ivor Jennings view that constitutional conventions could crystalise into law. The clear evidence of constitutional conventions hedging around the legislative authority of the UK over the Crown Dependencies, on that view, forms important evidence as to the de jure extent of the authority of the UK – it goes not only to the should question, but the can question of the exercise of Parliamentary authority, especially when that exercise is against the wishes of the authorities within the Crown Dependency. Naturally linked to this is the clear democratic deficit in a situation where the UK Parliament has a power to legislate for the Crown Dependencies when they, or rather their citizens, are unrepresented in that Parliament.
One does not need to accept quite the same view of the importance of constitutional conventions, and of underlying justifications for legal authority, to take from his discussion the power of constitutional silence in the constitutions of the Crown Dependences. If a Crown Dependency such as the Isle of Man had had a clear, formal, legally binding constitution drafted at any time before the 1980s, it would not have allowed anywhere near the same level of legal autonomy as is accepted today. To quote Lord Bach from 2002, “It is unhelpful to the relationship between Her Majesty’s Government and the Islands to speculate about the hypothetical and highly unlikely circumstances in which such intervention might take place”. Such speculation, if given concrete form in an instrument of government, might have acted as a brake on constitutional development in, at least, the Isle of Man.
Sir Michael’s approach to the Manx position in particular is tentative, giving full weight to the historical and so constitutional differences between the Channel Islands and the Isle of Man. He touches briefly on the question of how the Island entered the dominions of the Crown, but I think the case for such entry having been by conquest at the end of the 14th century is a strong one. Assuming – and in the 21st century it is much more daring an assumption than it would have been in say the mid-20th century – that the Imperial law concerning conquered territories applied to the Isle of Man, that puts the Island in a rather different constitutional position from the Channel Islands. A sharp distinction between the two sets of legal systems, however, is much less justifiable if our focus is on the constitutional relationship to the UK now, and in particular to the democratic deficit in the relationship of the Crown Dependencies to a UK legislature.
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