In an earlier blog, I talked about an exceptional decision by the House of Keys to override the objections of the Legislative Council in order to pass an Act of Tynwald without their consent. Chris Thomas raised the issue that this may have been the first time the Keys had used this power

Previous examples were certainly not put before the House during the debate on the motion to over-ride the Council. Has it been used before? If it hasn’t, then its use may be particularly significant of the direction of travel in the relationship between the Keys and the Council.

Before 1961, the consent of the Council was always required for an Act of Tynwald to pass, and indeed government Bills started in the Council, as the Attorney General sat there. The Isle of Man Constitution Act 1961 s.10(1) created a complex system where a majority, or in some cases a special majority of 16, of the Keys could dispense with the consent of the Council to legislation, if it had not been forthcoming for two years. The Constitution (Amendment) Act 1978 changed the period by which the Council could delay the process to one year. In 2006 the process was notably simplified by the Constitution Act 2006 s.1(2), which allows the Keys to override the Council by a motion passed by a special majority of 17, rather than requiring the legislation to go through the legislative process repeatedly. The 2006 legislation will also make it much easier to identify attempts to exercise the over-ride.

The existence of the override process may, of course, have a subtle influence on the Council even when not invoked. But although the process under the 2006 Act has not been used before, it appears that this provision of the 1961 Act was used at least once, and on a further occasion was about to be used before the Council preferred to pass the Bill than have it passed without their involvement.

The first instance to come close to a Council over-ride was, interestingly, a Bill to change the composition of the Legislative Council. The Isle of Man Constitution (Amendment) Bill 1964 was introduced to remove the Second Deemster from the Council. The Bill had been rejected by the Council in two sessions, and was reintroduced to the Keys “pursuant” to s.10. In the third session, it was given all three readings in the Keys on the 27 October 1964, with the express intention that it then either be accepted by the Council, or become law in any case through the override provision. The Council eventually accepted it, but with considerable reluctance – the 5:3 majority included an Attorney-General who finished his contribution with “I heartily disagree with the matters proposed in the Bill. I am nevertheless glad in a way that the Bill has been passed so that it will not become law by default, and I beg to move that the Bill do pass.“. The Bill became the Isle of Man Constitution Amendment Act 1965.

The other example, which did result in a Council override, was in relation to the Licensing (Sunday Opening) Bill 1978, which became law as the Licensing (Sunday Trading) Act 1979. The Legislative Council explicitly took the final vote on the Bill, on 9 January 1979, knowing that if they did not pass it, the Bill would become law in any case. The Bill failed with a 4:5 split. There was an argument put that the Council should accede to the inevitable, but it did not convince, perhaps in part because it concerned the moral issue of drinking on Sunday. Mr Kneale, for instance strongly felt that “even though we know it is an academic exercise now that the Bill will go through, we should, if we feel that our opposition is right and justified, still maintain it”.

It definitely is unusual for the Keys to invoke this power, but it is not unprecedented. For it to be exercised once, albeit on a very significant constitutional issue, is interesting but does not necessarily constitute a trend. If the Keys begin to exercise this power consistently as a way to resolve differences with the Council, such a trend would be important.

On the 21^st of November 2017, Tynwald debated the Second Report of the Select Committee on the Functioning of Tynwald, debate having been delayed by illness. Tynwald was invited to approve a number of important recommendations, which I will strand into a number of categories.

Firstly, the composition and role of the Legislative Council. The Select Committee recommended a specific job description for MLCs (passed); that the President of Tynwald should be tasked with encouraging a wide range of candidates to the Legislative Council (passed); that MHKs should recuse themselves from elections to the Legislative Council if they are candidates (an amendment by Mr Ashford was passed by MHKs, but not by MLCs, so the resolution as a whole was held over to a combined vote in December, being passed at that point with Mr Ashford’s amendment); that any examination of the pay of MLCs should not result in an increase in the overall cost of Member’s remuneration, but should result in a level sufficient to allow everyone to serve, and attract a diverse collection of community members (passed). One issue in the composition of the Council, the role of the Lord Bishop, was left until the new incumbent had settled in, and the Archbishop of York had expressed his view. The Select Committee considered only minor changes to the place of the Bishop, categorised by Mr Skelly as “a bit light”. In response to an amendment from Mr Ashford requiring the Select Committee to make recommendations on the Bishop’s role and ability to vote in Tynwald, Mr Watterson saw this as already planned for the next report from the Select Committee. Despite this support, the amendment failed in the Legislative Council, despite being passed by the Keys.

The Speaker, Mr Watterson, moving the motion, noted that previous debate about the Legislative Council had been negative, and that it was important to focus on what the Legislative Council, particular a more diverse Legislative Council, could do in the future. A duty on the President to encourage diversity was part of this, but it was a theme that also found expression in the emphasis on MLCs being full-time officers whose remuneration should not limit it to the better off, and in consideration of the age requirement of MLC candidates. Diversity in Tynwald was a particular concern of members such as Mrs Poole-Wilson.

Secondly, and again concerning the Legislative Council, the Select Committee made a complex set of recommendations in relation to MLCs in executive roles. The Select Committee recommended that Tynwald should express the opinion that the Chief Minister should only appoint an MLC as a Minister in exceptional circumstances, and that these should be explained to Tynwald – not going as far as members such as Mrs Beecroft would have liked to have seen (passed). In relation to Departmental Members, the Select Committee put a menu of mutually exclusive options to Tynwald, ranging from excluding MLCs from being Departmental Members entirely, to no change to the current practice. Tynwald adopted the last, with the slight clarification proposed by Mr Harmer that MLCs should act as Departmental Members for only one Department.

The Speaker, moving the motion, acknowledged that the retention of Departmental Members was contrary to the recommendations of Lord Lisvane, who he argued had not properly understood the workings of a system which, on its face, raised serious concerns about the separation of powers. He noted that in a small legislature, the Departmental Member scheme could function as “an apprentice scheme where future Minsters can be tested in Government work”.

Thirdly, a number of broader constitutional reforms. This included a principle that the Government should not automatically have a majority in Tynwald or the House of Keys (passed); that the Standing Orders Committee should consider amendments to the Constitution Acts, particularly around the eligibility of candidates to stand for Tynwald (passed); that the method of electing the Chief Minister be referred to the Select Committee for report by February 2018 (passed, but overtaken by events); and that  each appropriation and taxation measure be based on a policy decision taken by Tynwald and the appropriation or taxation decision made by the House of Keys voting alone (failed).

More broadly, this debate had a number of interesting features.

Firstly, the structure of recommendations in relation to MLCs as Departmental Members was intended to simplify a complex decision where the Select Committee had not been clearly able to identify a consensus. As The Speaker said “We agreed that we would recommend the various options in the order of greatest change, taking the option for change which represents the most radical recommendation first, on the basis that if one option succeeds then all others fail immediately. This will reduce the need for tactical voting and reflect more straightforwardly the will of Tynwald”. This is an evolution of the approach the Speaker had taken to the motion which established the Select Committee, and helped structure a wide-ranging and complex debate.

Secondly, the debate made it clear that there were members who were in favour of a substantial, perhaps complete, adoption of the recommendations of the Lisvane Report, and who found the Report disappointing, or as Mr Shimmins, put it “woeful”. The Select Committee choose not to adopt some Lisvane recommendations, and developed recommendations of its own, leading Mr Cannan, as part of strong criticism of lack of change to the Departmental Member system, to categorise a shift of attention from the Lisvane Report to “what I, perhaps maybe slightly unfairly, would term the “Watterson Report””. Equally, other members such as Mr Boot found the Lisvane Report seriously lacking, particularly in relation to detailed understanding of the working of the system as a whole, and clearly welcomed scepticism over its value. Lord Lisvane made it clear that his recommendations could be adopted or rejected wholesale, although as I noted at the time there were considerable synergies between different recommendations. This is clearly the future of the Report – a toolkit for consideration, rather than a manifesto for major constitutional reform.

Thirdly, as the vote over the appointment of Chief Minister’s made clearer still, the focus of the current constitutional debate is on the role of MLCs in relation to the Executive; with the exception of the vote of the Lord Bishop, not in relation to its legislative work.

Responsible government came late to the Isle of Man. The landmark reforms of 1866, linked to the coming of democratic elections to the Isle of Man for the first time, were a long way from responsible government as understood in the British Empire of the mid-19^th century. Responsible government, based on the imperial governor exercising less authority, and a ministry responsible to the elected colonial assembly exercising more, was well established in Canada, New Zealand, and Australia by the mid-19^th century.  The Lieutenant-Governor of the Isle of Man, however, remained the dominant executive officer in the island until well into the 20^th century; only being replaced as chair of the Executive Council by a chairman elected by Tynwald in 1980, and since 1990 by the Chief Minister of the Council of Ministers. Today, the executive arm of the Manx government is led by the Chief Minister, who is elected by Tynwald in an open ballot. As noted elsewhere, the most recent appointment of the Chief Minister was decided by the (unelected) Legislative Council, following a failure to secure a majority for a single candidate in the vote of the House of Keys.

On 19^th December 2017, the House of Keys passed a motion on the Council of Ministers (Amendment) Bill 2016, sending the Bill to Tynwald under the Constitution Act 2006 s.1(2). This section of the Constitution Act allows a special majority of 17 of the 24 MHKs to bypass the Legislative Council, and the motion received exactly 17 votes. Mr Ashford stressed that the motion would allow the Bill to proceed for signature by the Keys in January, but no MHK was then obliged to sign it, raising the possibility that the Bill may fail to secure the 17 signatures needed in January. Given that the motion passed, despite a number of MHKs being absent (categorised by Mr Malarkey as supporters of the Bill), this seems unlikely.

The Bill provides that the Chief Minister can in future be appointed by at least 13 MHKs voting in the House of Keys, rather than by a majority of the members of Tynwald voting in Tynwald; and, as Dr Allinson stressed, allows the Keys alone  to decide whether to dissolve the Council of Ministers through a motion of no confidence.

This shifting of power from a Tynwald Court including Members of the Legislative Council to the directly-elected House of Keys is consistent with the recommendations of the Lisvane Review. Stressing the lack of a direct mandate for MLCs, Lord Lisvane had recommended that “MLCs should not vote on the appointment of the Chief Minister (and, as a corollary, not vote on a motion of no confidence” (p.34). The reform was not, however, portrayed as driven by the Lisvane Review. Mr Thomas, the sponsor of the motion, stressed that this change had already been unanimously passed by the House of Keys “before Lord Lisvane had even arrived in the Isle of Man … this initiative is an Isle of Man initiative initiated by a proud Manxman” (308 K135). Reform as a patriotic measure was also stressed by other supporters, including Mr Malarky and Ms Edge.

That is not to say, however, that the momentum created by the Lisvane Review was not acknowledged. Mr Thomas expressed concern that the recommendations of the Lisvane Report in general were “being strangled slowly”. Mr Thomas minimised the power of appeals to tradition, emphasising that the Council of Ministers system dated back only to 1990 – “it is hardly a longstanding tradition”. True, but the longstanding tradition that is being altered is the emphasis on Tynwald Court, as opposed to the House of Keys. Mrs Caine may have captured it better when, also making explicit reference to the Lisvane Review, she noted that “if approving this motion takes us one step further on the road to reforming the role of the Upper Chamber, that would be a bonus in my mind”. Mr Ashford saw the measure – I think accurately – as consistent with a shift of the members of the Legislative Council to a purely scrutiny role; a view other members echoed. Mr Cannan, who had originally moved the Bill, argued that the change would strengthen the position of the Legislative Council as a revising Chamber, “giving more credibility to their views on legislation unencumbered by any significant role in electing the Chief Minister”.

The current Chief Minister, Mr Quayle, opposed the motion. He felt that the Chief Minister needed to command the support of both the House of Keys and the Legislative Council. “We are not Westminster, we are not Jersey, we are not Ireland, where obviously the House of Commons vote for the chief minister; we are a small jurisdiction. We have been going now for over a thousand years, and I believe having the support of both areas will help a Chief Minister, whoever they are, going forward”. Mr Quayle saw the balance of power as already lying with the Keys, and thought that the Select Committee on the Functioning of Tynwald should report before any change was made. He also stressed that recent changes to the voting process, where the Keys voted first, then the Council, and both votes are public, had dealt with the problem “it is not that the votes of the Legislative Council can overturn the majority because no one knows what they were anymore”. Mr Ashford pointed out that, if the Legislative Council were bound to vote in lines with the majority of the MHKs (clearly not a formal legal rule), “then it makes no difference whether they vote to begin with or not”.

Mr Boot pointed out that the change in appointment of the Chief Minister will result in fewer individuals voting on the appointment of the Chief Minister, which he categorised as “concentrating the power into fewer hands – it does not seem very democratic to me – within our Parliamentary process”. Mr Malarkey robustly rejected this categorisation – “it is 24 votes who have the mandate of the people behind them”.  When, as seems likely, this Bill becomes law, we will have seen a significant constitutional change which emphasises the centrality of the  directly elected House of Keys to the Manx constitution. 2018 is likely to be an exciting year for Manx constitutional reform – given the mood of the Keys in this most recent debate, it may be a year of significant change in relation to the Legislative Council. A key question Tynwald will need to resolve is how to weigh the benefits of shifting power more clearly to democratically elected representatives, and the consequences of focusing power in such representatives.