In an earlier blog I charted the change in the type of candidate being nominated to, and elected to, Legislative Council by the Keys. It was not until the 1990s that MHKs began to nominate, and elect, “outsiders” to Tynwald, previously having almost exclusively appointed MLCs who had experience of Tynwald either as MHKs or as sitting MLCs. From the 2010s the majority of those nominated to the Legislative Council were these kind of outside nominations.

The process of a lower chamber of a legislature appointing members of the upper chamber appears to be unique in contemporary constitutions; although there are some historic parallels. One significant feature of the process is the relative transparency. I need to stress relative – there is evidence of parts of the process that have not survived (for instance candidate CVs circulated by nominating MHKs in some years; or group meetings with interested MHKs and candidates), and it seems likely that there are other interactions which have not been recorded. We do however have comparatively extensive records of why candidates were put forward by their nominating MHKs, either incorporated into Hansard when nominations were part of Tynwald proceedings, or by Tynwald documents when the process moved onto paper). This includes both successful candidates and – distinctively – unsuccessful candidates.

I have collated information on all 63 outside candidates considered since 1962, and am currently analysing this dataset by reference to a range of characteristics put forward in the process. My focus is on the speeches (later letters) proposing a candidate, rather than carrying out independent research into the biography of each of the 63. This makes the analysis more bounded, but I think can also be justified on quality grounds. Candidate X may have been an official in a youth movement, and a police officer, but the proposers decision to talk only of X’s work as a police officer indicates what the proposer saw as persuasive to fellow MHKs sitting as an electoral college. That is to say, a focus on the proposers choice of characteristics shows us what they regarded as relevant and persuasive to other MHKs.

In this blog I look at the professional, employment, or career background of the candidates. I have classed each candidate by the categories used in the Manx Census 2021, Level 2 (described here). To help ensure consistency of how I class particular professions or careers I have also taken account of the UK NOMIS Employment by Occupation (SOC2010) characteristics, which usefully expand the Tier 2 categories with sub-categories (described here) . I have noted every profession or career mentioned by a proposer, rather than tried to make a judgment as to “primary” career – where the proposer mentioned a number of careers, each was seen as making the nomination more persuasive. So, what professions and careers were seen as persuasive?

Dominating the nominations were the broad category of “Business, Media and Public Service Professionals”. This very broad professional category includes for instance legal professionals including judges, accountants and economists; architects; journalists and PR professions. 35 candidates feel into this category. To break these 35 candidates down a little: 15 were finance sector professionals; 6 accountants; 6 lawyers; 4 media professionals; and a single quantity surveyor, single actuary, single architect, and single economist. The only other categories with 10 or more candidates were Protective Services Occupations (including armed forces, police, and the fire service) with 11, and Corporate Managers and Directors with 10.

55% of the candidates were from the category Business, Media and Public Service Professionals. To put this into context, in the 2021 Manx Census, just under 7% of the Manx working population were classed in this category. Entire categories of occupation have never been mentioned in nominating a candidate – on the Tier 2 table on the Manx Census, from Secretarial and related occupations down (constituting 44% of the Manx working population in 2021), only one person had one of these occupations referred to in their nomination (so less than 2% of all nominations). John LIghtfoot, described as an auto electrician who worked for the bus company for 39 years, was nominated in 2007. He was not elected.

This mismatch should not be seen in itself as a killer fact. Reference to profession or occupation is so ubiquitous in MLC nominations because it can function as short hand for, or evidence of, skills and traits that the proposer sees as useful to an MLC. For instance a lawyer with judicial experience might fairly be represented as able to “provide professional legal and technical opinions on the construction of Bills and various other legal matters” (nomination of Mr Michael Moyle by Mr Houghton in 2015). I will be seeking to unpack these characteristics in future blogs. Nonetheless, that the working life of so much of the Manx population has not been seen as useful preparation for the role of MLC should be food for thought to those seeking a diverse and representative Tynwald.

This is a rather impersonal, technical, blog. I would like to begin by agreeing with those commentators and parliamentarians who have expressed their dismay at how Dr Rosalind Ranson was treated as a result of her efforts to protect the Isle of Man during key phases of the global pandemic. To quote Dr Ranson from the BMA press release on the decision: “As a doctor, my duty is to put patients and public first and this was made almost impossible by the campaign that was waged to make my work life untenable, to undermine my credibility and professionalism and finally force me out of a role I had been so looking forward to making a success”.

The Employment and Equality Tribunal decision, or rather part of it, in Ranson v Department of Health and Social Care was released on the 9th of May; and can be read in full here. It is a lengthy and meticulous report which has largely drawn attention for its findings of the treatment of Dr Rosalind Ranson, who was Medical Director for key periods of the pandemic, when she sought to raise significant concerns over how the Manx response was being formulated. It raises significant issues concerning the governance, and management, of the public health response. After the publication of the decision, the head of the Manx Civil Service has retired and the Treasury Minister, who was Health Minister at the time, has resigned his ministerial post.

On the 17th of May, Tynwald began discussing the case. The President began the discussion by noting “The case is still sub judice and is likely to be so for several weeks to come … in view of the degree of public concern I have allowed the Chief Minister to make a short statement. I have asked the Chief Minister to avoid commenting on the case itself, which is still a matter for the Tribunal, but to concentrate on future government action, which is properly a manner for Tynwald”. The President then enforced this distinction in the debate which followed, for instance not allowing one of two questions from Mrs Caine, one of four from Mrs Christian, two of three from Ms Faragher (although one was on a different ground), one of five from Mr Thomas, and two of two from Mr Moorhouse, The President also requested the Chief Minister to answer some questions generally, rather than specifically.

It is, I think, fair to say that some members of Tynwald found the partial debate, with some topics permitted and others not, frustrating. The Speaker at the end of the debate asked the Chief Minister “to acknowledge today the pent-up frustration of Members with questions that, quite rightly, have been disallowed today and support a general debate on all questions raised … on all the issues … as soon as possible after the sub judice cloak has been lifted”.

The President was in an unenviable position, once he had decided to allow some questions to be asked and disallowed others without setting out why some questions could not be permitted. Proceedings might have gone more smoothly if he had begun the debate by doing so. I should stress here that sub judice does not permanently bar questions from being asked – it merely delays them. What might have been the basis for some questions being delayed?

The Standing Orders of Tynwald dealing with sub judice are not the same as those to be found in the UK Parliament. The current SO were revised in September 2021, and can be found here. A question shall not refer to any matter which is sub judice, subject to the discretion of the president (SO 3.4(10)), nor may a motion (SO 3.11(4)). nor the subject matter of a General Debate (SO 2.20B (8)).

Sub judice was defined by an amendment to SO on 17th November 2009. Under SO 11.4(1) sub judice “includes any civil case in which papers for the commencement of proceedings have been filed in the office of any court or tribunal, whether or not they have been served on or communicated to the other party or any criminal case where a person has been charged or summoned to appear at court. A case will remain sub judice until it is discontinued, or judgment has been or verdict and sentence have been delivered and until the time for appealing has expired; it will continue to be sub judice after papers for the commencement of any appeal have been lodged until judgment or discontinuance”.

Dr Ranson’s case is clearly, under Tynwald SO, capable of making a question sub judice. Unlike the UK Parliament SO, sub judice extends to proceedings before a Tribunal such as the Employment and Equality Tribunal. Although I would note that even the UK Parliament goes beyond the courts simpliciter in defining sub judice, for instance including fatal accident inquiries, the Tynwald SO go considerably wider – 22 tribunals are listed at the Courts website including for instance the Riding Establishments Appeal Tribunal, ,the Independent Schools Tribunal, and the Flood Risks Tribunal

But, given that the Tribunal is covered by the rules, a very lengthy decision has been made on the case, in Dr Ranson’s favour. Why is the case still sub judice?

My reading of the case is that two issues were left outstanding, although there may be a third., and I think we can usefully eliminate a fourth.

Firstly, by agreement between the parties the hearing focussed on liability – whether Dr Ranson had suffered a legal injury entitling her to a remedy from the court. By agreement, “all questions of appropriate remedies were left over to a further hearing” (para 854). One might have anticipated the President allowing questions to be asked about liability, but not the remedies – for instance whether Dr Ranson would be reinstated, the level of damages she should anticipate.

Secondly, and in my view even more importantly, the hearing raised very serious concerns as to how far the government side had met their obligations under the rules of disclosure. Disclosure requires the opposing sides in a court or tribunal action to reveal information to their other side even – it’s fair to say especially – when it weakens their case. These concerns are outlined in paragraphs 791-848 and make disturbing reading. The two sides were ordered to liaise to agree a format for a further hearing purely on the disclosure matters, and agree with the Tribunal a date (para.847).

The concerns raised by the Tribunal are very significant. Under a section headed “Government policy of (potential) Evidence Destruction”, for instance, the Tribunal stressed the further investigation which the Disclosure Hearing will involve “is needed to understand whether there has been material non-disclosure or destruction in this case but importantly to prevent a miscarriage of justice in any future case involving any Government Department” (para. 846, my emphasis). Another section, dealing with emails revealed following a question asked by the Chairman during Closing Submissions, raised concerns over whether processes which had allowed two important emails to “slip the net” might cause problems “in further proceedings in this Tribunal (or the High Court) involving disclosure” (para. 827-828). Another heading is (in quotes) “Concocted documents”, and includes the observation “It is unusual in this Tribunal for any party to have to go to the lengths of seeking affadavits as to the veracity, scope and extent of the disclosure but in this case it was thoroughly justifiable” (para.836).

This really matters. Courts and tribunals need to have evidence before them which will allow them to make just judgments according to the law. So disclosure matters. A Manx Tribunal making rulings critical of the Manx government is – albeit neither painlessly nor desirably – good governance working. A Manx Tribunal unable to do justice because key evidence useful to those taking taking action against the Manx government is not available to it may not be. So the Disclosure Hearing will be crucially important to understanding how Manx government was working in the aftermath to the Ranson affair. Because of the importance of this matter both for this particular set of proceedings, and constitutionally, I can see why the President would seek to apply the sub judice rule until after the Disclosure Hearing has concluded.

A third possibility is that the President was concerned that the government would seek to appeal the existing decision against it on a point of law, by appeal to the High Court (under the Employment Act 2006). The Tribunal works on the basis that the time limit for such an appeal is 42 days. One would hope the President, if informed by government that no appeal was planned, would not feel constrained to wait this time out before allowing questions to be asked. The reference by the President to “several weeks” suggests that this was not on his mind.

Given the seriousness of some explanations for some of the issues raised by the Tribunal around disclosure, it might be thought that a fourth possibility could apply – that the President knows or has reason to believe criminal proceedings are being considered. There is nothing in the debates to hint at this, but in any case it would not justify the President in applying the sub judice rule. Under the SO, sub judice applies to “any criminal case where a person has been charged or summoned to appear in court” – not to where an investigation is under way or is being considered.