At 6pm on Wednesday 17 May 2023, Dr Catrona Mackie will be giving a #UCMTalks paper on behalf of the project team introducing some of the preliminary findings of the project.

The Women in Manx Politics project combines historical, legal, and interview data to understand the experience of women in Manx politics, principally in the House of Keys, from 1919 to the present. Our preliminary findings suggest that this experience can only be understood in the context of the Isle of Man as a small democracy, and in particular as one in which party institutionalisation has never taken place. The understanding of women in public life has changed considerably since 1919, as we demonstrate through public domain discussion of the ongoing battle to allow women to serve in Manx juries (only finally resolved in 1980), and interviews with Manx women MHKs from the late twentieth century on. This has contributed to, and been driven by, increased numbers of women in the House of Keys. There remain distinctive features of the Manx political scene which are crucial to understanding the experiences of women MHKs, four of which we cover in this paper: the nature of campaigning in the Isle of Man; the architecture of Tynwald, the “always on” culture of Manx politics; and the collective dimension of substantial numbers of women in the Keys. 

Attending this online paper is free, but you do need to register. You can register via this link.

In small democracies without strongly established political parties, one of the significant challenges facing candidates for elected office is how to raise a significant profile with the electorate. One way to develop a high profile for public office is to be seeking re-election having just held the office: one manifestation of a complex phenomenon discussed globally as “the incumbency effect”. How far does this play out in the Manx context? Do sitting MHKs have a greater chance of being elected than their opponents?

The short answer is yes, to an important degree, demonstrated in every General Election for a hundred years.

Although there is a sustained difference between the two success rates, it has fluctuated over the years. The smallest difference was in 1976, when there was a significant rejection of incumbents: 17 MHKs of 24 sought to retain their seats, and 9 were rejected by the electorate. Even that year incumbents were re-elected at a 47% rate, while 33% of candidates generally were elected. The twenty-first century started with a singularly stable House of Keys: the 95% success rate for incumbents was with a very high number of incumbents standing. 18 of 24 Keys retained their seats, with only one who sought to be elected being rejected by the electorate. From that exceptionally high level, however, the success rate of incumbents has decreased in every 21^st century General Election, while the success rate of candidates generally has dropped much less dramatically.

Nonetheless, despite these fluctuations, there is a consistent pattern of sitting MHKs having a better chance of being elected than their non-sitting peers. If we average the success rates across all the General Elections, we find 78% for incumbents, and 46% for candidates as a whole. This difference is not dissimilar from the 20 percentage point advantage estimated for UK elections, and the 18 percentage point advantage described for Irish elections. Studies of larger democracies, however, tend to identify incumbency as party retention of a seat, not individual retention of a seat. The “personal incumbency advantage” may be low in party systems, but will often constitute the entire incumbency advantage in the Manx system.

This differential success rate operates in a context where significant numbers of incumbents stand for re-election. It is useful to depict this in both absolute numbers (so how many incumbents stood), and percentage terms (so what percentage of candidates were incumbents).

A consistently high proportion of candidates are incumbents. Two General Elections stand out as having a much lower proportion than normal. In 1946, only 13% of candidates were incumbents. The previous General Election had been held in 1934, and most of the Keys had served for eight years, including six years of global war. Incumbents may have chosen not to stand because they did not wish to continue this form of public service even longer, or because of their assessment of the electorate’s desire for change.  The proportion in 1986 was even lower, with only 9% of the candidates under the new electoral system being incumbents, and their success rate being comparatively close to non-incumbents (57% vs 32%). Incumbents may have considered that changes to the electoral system made it more difficult to assess their chances of success, or to manage their campaigns. There is a – less pronounced – drop in the percentage of candidates who are incumbents in other General Elections where there have been changes in the electoral system (for instance 2016).

One point to bring out is how often the electorate have been offered the option to have a House of Keys composed of a majority of incumbents, and the times that has actually materialised. A majority of Keys seats were contested by an incumbent (interpreting the term widely when there has been a change of the number of seats or the voting system, discussed more fully below) in every General Election except 1946 (when only 7 incumbents of the long House of Keys which had been elected in the pre-war election of 1934 contested the election), 1986 (when in a radically different electoral system only 7 incumbents contested the election), and 2016 (when in the first elections to 12 two member constituents, 12 incumbents stood). Half or more of the Keys consisted of incumbents following every General Election except 1946, 1976, 1986 (the first election under a very different electoral system), 1996 (the first election after the return to first past the post), and 2016 (the first election under the 12 2 seat constituency system).  

That sounds like a very significant number of seats held by incumbents across the century. We can, however, easily compare the proportion of new MPs in the UK Parliament and new MHKs in Tynwald for  1979-2019. Mapping the UK General Election onto the closest Manx General Election we find:

When contrasted with the larger, party institutionalised, neighbouring system, it is striking how much more volatile membership of the House of Keys is compared with the House of Commons. Only in 2011 (Keys) and 2010 (Commons) do we find a similar proportion of new members to the House: 33% in the Keys compared to 35% in the Commons. This was an exceptional point however – overwhelmingly, a higher percentage of the Keys are sitting for the first time as opposed to the Commons. In the period 1976-2021, in 5 of the 10 comparator points, more than half of the Keys were sitting for the first time; the highest percentage of new MPs sitting was 37% in 1997, followed by 35% in 2010 – in both cases, reflecting a change of the majority party in the Commons. Widening the scope slightly, the record number of new MPs elected in the 1945 election, 51%, would be completely unexceptional on the Manx scene since 1924.

The judgement of the EET in the Ranson case is now available. The Tribunal has awarded Dr Ranson a total of £3,198,754 damages, plus 70% of her costs at the liability stage (it should be noted that normally parties in Tribunals do not receive any costs). This breaks down into a number of different elements (summarised at para 346-347).

Injury to feelings. There was a detailed discussion as to what the maximum amount that could be awarded was, and how to apply English cases to the Manx situation. The EET took the approach that “The award should be compensatory with no element of punishing the wrongdoer. Feelings of indignation ought not to inflate the award yet neither should the award be too low because that would diminish respect for the policy …. The award must ensure that such misconduct is seen to be wrong. Additionally, the award should bear some broad general similarity to those awarded in personal injury cases” (para.130). The EET considered that “During the Liability Hearing process ( including disclosure of
documents), besides in her evidence on oath, there was also an attempt by Miss Magson to cover-up her misconduct. This was bound to inflame justified injured feelings” (para. 132).. She was awarded £40,000 for injury to feelings,

Aggravated damages. These are damages which may be awarded “when the Respondent has acted in a high-handed, malicious, insulting or oppressive manner” (para.137). The Tribunal considered this to be beyond argument, and no contrary view as put forward by the DHSC. The Tribunal explicitly found that that the wrong was committed in a “demeaning and spiteful way”, motivated by “animosity and spiteful misconduct”, with subsequent misconduct in the way the DHSC opposed Dr Ranson’s action (para.140) She was awarded £20,000 of aggravated damages.

Personal injury. These are damages to reflect personal injury suffered because of the wrong committed by the other party. The Tribunal noted that there were no known Manx High Court authorities on personal injury awards following whistleblowing, and drew on the English approach. The Tribunal did not completely accept Dr Ranson’s case as to the personal injury suffered, and was not happy with the level of disclosure by Dr Ranson as to her previous medical history, “particularly after her many complaints about non-disclosure by the DHSC relating to the Liability Hearing” (para.161). It was, however, much more critical of the medical expert called by the DHSC (para.174). The two parties had proposed either £56,000 or £30,000 damages. She was awarded £40,000 of damages for personal injury.

Medical expenses. These are expenses reasonably necessary to ensure the best chance of recovery. The Tribunal accepted most of the treatments Dr Ranson’s medical expert suggested, and awarded her £6000 for medical expenses.

Exemplary damagaes. These can be awarded where conduct is “oppressive, arbitrary or unconstitutional” (para.176), and are awarded not to compensate the complainant, but to show that the governmental misconduct had to be punished. It was agreed that the DHSC was a public body against which such damages could be made. The Tribunal found that the rulings in the Liability Decision “amply justified Miss Magson’s misconduct (and to a lesser extent that of others) as being oppressive and arbitrary” (para.181), justified on the basis of unreasonable conduct and false evidence (para.187). The two parties had proposed either £100,000 or around £4,000. She was awarded £10,000 for exemplary damages. The Tribunal saw “The very fact of making the award at all demonstrates that the Tribunal considered punishment was warranted for the oppressive, arbitrary or unconstitutional behaviour – amounting to gross misconduct” (para.185). This was to be punished through the award of costs (discussed below), and adding a substantial exemplary damages head “plus a very large costs burden which is also awarded (this being, in effect, a punishment) would impact not just the DHSC but, in reality, Manx taxpayers and, in all probability, persons on hospital waiting-lists.” (para. 186).

Compensatory award. This is the amount awarded to compensate for financial losses caused by the wrong – in particular, loss of salary. As the Tribunal notes “this is not an exact science. Fortunately, there is abundant legal precedent about how to approach something which is, inevitably, unpredictable.” (para 213). I will gloss over the abundant legal principles and approach. The analysis of Dr Ranson’s future career prospects is also – in contrast to the other heads – very personal (as illustrated by the list of questions about Dr Ranson the Tribunal felt it needed to address, para.323). The Tribunal awarded £185,670.64 for past loss (i.e. loss before the date of the judgment), and £1,464,118.08 for future loss of earnings (a higher number is given earlier in the judgment, and then reduced by 25% to reflect “non-exhaustive uncertainties” (para. 334). Additionally, future pension loss was calculated at £749, 718.15, plus £8062.60 for the Manx state pension.

.Interest on some elements of these awards totalled a further £ 8,994.95 (para. 345).

It is striking to find aggravated and, especially, exemplary damages, awarded against the DHSC in this case. The concerns over the way in which the defence of the action was conducted are returned to in the, exceptional, award of costs for the Liability Decision. The Tribunal notes that “In effect, when an order for costs is made, it is because of gross misconduct” (p348). The Tribunal considered that the proceedings were conducted unreasonably, and “involved a false allegation (and indeed, more than one)” (para. 351). This is discussed at length from para. 352-

In particular, at para 363-4 the Tribunal said: “It is however inexcusable for a Chief Executive such as Miss Magson to mislead both the Tribunal and Dr Ranson. The case on liability was fought tooth and nail by the DHSC on a false basis to the substantial detriment of Dr Ranson and at the expense of taxpayers on the Isle of Man … Miss Magson knew that the denials of liability in the Response contained assertions and allegations that were untrue. She knew or should have known and understood that the way she had drafted the Response was unsustainable. She knew or should have known that her pleaded arguments could never survive scrutiny once the documents which needed to be revealed were in fact disclosed”.

The Tribunal did not award full costs to Dr Ranson for the Liability Decision, on the basis that “Even if the DHSC case had contained bona fide but ultimately unsuccessful cornerstones, Dr Ranson would have had to incur quite considerable costs which, as a norm, would not be recoverable at all.” (para. 366) – reducing recovery to 70% of the legal costs once assessed or agreed.

It did not, however, make the same order in relation to the costs of the Disclosure Proceedings. As part of explaining this decision making, the Tribunal discuss the EXPOL report seeking to resolve whether there were concocted documents. To quote at length:

From almost as soon the EXPOL report became available, the Tribunal was informed
that Dr Ranson did not agree with the conclusions. Thereafter, it was apparent from
her evidence in this Tribunal in January 2023 that she did not agree with the outcome,
at least to some extent. Inter alia, she did not consider EXPOL to be independent.
However, her witness statement never set out any reasoned attack on the
conclusions. It did not point out why she stood by her allegations that all or some of
the documents were concocted. She gave no evidence to expand on her rejection of
any of the conclusions.

371. Because of the influence on potential issues of Exemplary Damages and costs, the
     Tribunal had anticipated that, because the conclusions of the EXPOL report were
     controversial or disputed, there would have been a request on Dr Ranson’s behalf for
     a Witness Order (or Orders) for cross-examination of EXPOL officers at the Remedy
     Hearing. That did not happen.
372. The appeal process last year regarding documentation issues was heard by the learned
     First Deemster. He rejected the appeal but in his judgment, he had cautioned against
     the Tribunal taking on too much of an investigatory role. It was therefore not
     considered to be the role of the Tribunal of its own initiative to require attendance of
     the personnel behind the EXPOL Report, even though the Tribunal had expected this
     to happen.
373. In the event, Dr Ranson’s team did not seek to call anybody involved with preparation
     of the EXPOL report. However, in his Closing Submissions, Mr Segal alleged quite
     detailed and serious shortcomings about the conclusions of no improper concoction.
     Mr Segal still maintained that some of the documents were concocted – to the extent
     that he encouraged this Tribunal to refer the allegations of concocted documents to
     the Isle of Man Constabulary for further investigation.
374. While the Tribunal had hoped and expected to have the issue of the alleged
     concoctions tested and resolved, this was not possible. Without questioning the
     appropriate witnesses, as Mr Segal had the chance to do by seeking witness orders
     against the authors of the EXPOL report, it would be quite wrong for this Tribunal to
     come to any conclusions one way or the other – let alone to refer the matter to the
     Isle of Man Constabulary. There remains nothing to stop Dr Ranson referring the
     matter to the Constabulary herself.

The award of the Tribunal in relation to exemplary damages, and costs, although a relatively small part of the overall award, are sobering. The DHSC has been found by the Tribunal to have acted in a high-handed, malicious, insulting or oppressive manner; in a way which was “oppressive, arbitrary or unconstitutional”; and in a way which involved gross misconduct.