Richard Wright KC has now published his report to Tynwald, which is available in full here.

Some of the report is scaffolding – the terms of reference (pp.21-24), methodology (pp.25-29), and background to the case (pp.30-33). The findings of the report are detailed in the very substantial “Part Five: Narrative Analysis” (pp.34-173). Conclusions and recommendations are at pp174-182, and a substantial Executive Summary is at pp.3-20.

Key findings.

The Review summarises the “ten core conclusions”, that is findings as to fact, at p.174-175.

(i) As an overarching conclusion I am satisfied that the defence of
the litigation by the DHSC was conducted in good faith.
(ii) The decision to defend the claim was taken in accordance with
established procedure, was legally justifiable and was an
appropriate decision for the DHSC to make at the time that it was
made.
(iii) There was a clear conflict in the role of Kathryn Magson as Chief
Executive with responsibility for providing instructions to the
Attorney General’s Chambers in defence of the claim and her role
as the principal witness to the events at the heart of the litigation.
The failure to identify that conflict and take steps to mitigate its
effect contributed to the loss of the litigation and was a serious
error.
(iv) The Attorney General’s Chambers failed to appreciate the
significance and complexity of this Claim from the outset. They
also failed to grasp the potential for significant reputational
damage arising from these proceedings for both the DHSC and
the wider Isle of Man Government. In consequence the defence of
the Claim was under resourced throughout and that lack of
resource was a major contributory factor to the loss of the
litigation.
(v) The management of disclosure by the Attorney General’s
Chambers fell far below the standards required. The failures in
disclosure were the single most significant factor in the negative
outcome of the litigation from the perspective of the DHSC. The
disclosure failings also had a significant effect upon Dr Ranson
and her mental health.
(vi) Both of the appeals to the High Court pursued by the DHSC were
properly brought in good faith and each identified properly
arguable issues for the High Court to determine.
(vii) The Paragraph 33 Appeal exposed a conflict between the narrow
interests of the DHSC and the wider interests of the Government
of the Isle of Man. The decision making surrounding the decision
to pursue this appeal lacked clarity and openness. Further, the
manner in which the decision was taken to lodge the skeleton
arguments reveals that good governance had broken down in the
DHSC at that time.
(viii) There is no evidence that any documents were submitted to the
Tribunal that were modified, false or deliberately misleading. I am
sure that this allegation, made in the course of the litigation but
undetermined by the Tribunal, was entirely unfounded.
(ix) I am sure that the DHSC did not deliberately withhold documents
or make selective disclosures for an improper purpose when
conducting the disclosure exercise.
(x) There was a failure by both the DHSC and the Attorney General’s
Chambers to conduct regular strategic reviews of the litigation as
it developed;

A key finding for me is in relation to disclosure. As the Review notes, “The importance of the disclosure process and the need for it to be conducted with the appearance of impartiality cannot be overstated. It is essential to the integrity of the Tribunal process and the efficient conduct of litigation that the parties and the Tribunal are satisfied that it has been conducted effectively” (p.77).

As I have noted earlier, a deliberate failure by government to provide the other side in a legal case with information to which is it is entitled would be a very serious cause for concern. Findings (v), (viii), and (ix) read together confirm that there were serious failures in disclosure, but that these were not deliberate. Differing from the Tribunal, the Review considers that Kathryn Magson had not been selective in terms of disclosure (pp.121-122). The Review discusses, and rejects, allegations of concocted documents at length (pp.110-115). Overall, and to take a phrase slightly out of context, the Review sees “that the shambolic manner of the conduct of the litigation by the DHSC was not borne out of malice but rather was a consequence of a lack of resource and late preparation” (p.125). Allegations of malicious conduct were found by the Review to be “wholly misplaced” with “profound consequences for those Civil Servants who were closely involved in the disclosure process” (p.127). The Review also emphasises that “It is important that I state that I am satisfied that I have been given access by all Government Departments to every document that I have needed to consider and review for the purposes of producing this report. There is no sense in which I have any concern that material may have been withheld from me” (p.27).

Although much of the responsibility for the failures around disclosure is placed with the Attorney General’s Chambers, in the body of the Review the time allowed for disclosure by the Tribunal is criticised as “an unrealistically short timescale that quite frankly could not possibly have been complied with to a satisfactory standard. It should not have been made in the terms that it was without fierce resistance from the DHSC” (p.71).

Recommendations.

The Review makes 24 recommendations, which can be clustered into a set of themes.

Firstly, the resourcing of work by the Attorney General’s Chambers. The Review considers that the importance of the case was not understood: “a surprising lack of appreciation and a complacency of approach” (p.48). The Review recommends a formal system for ensuring that an appropriate level of resource and expertise is allocated to each case, with particular attention paid to high risk and high value litigation (p.16). The narrative part of the Review sees failures in preliminary work resulting from a failure to prioritise and resource as leading to a cascade of failures as the process continued. As well as requiring that the Chambers is “properly resourced and able to provide high quality legal advice and services”, this may require instructing external litigators (p.16). The problem of capacity, and in particular the ability to deal with unusual demands on a limited team, is a pervasive one for small democracies.

Secondly, the management of disclosure and of litigation generally. A number of recommendations aim to have a more formal, better documented, decision making process for managing disclosure (p.16-17). The management of the disclosure process must not be delegated to the client, and “The management of the disclosure process from a Departmental perspective should never be performed by an individual who is a disputed witness of fact in the litigation” (p.17). More broadly, the Review recommends regular reviews of litigation which has been identified as high risk or high value (pp.17).

Thirdly, liaison between the Attorney General’s Chambers and government. The Review recommends clearer lines of authority which emphasise decisions being taken by suitably senior persons (p.19). The Review recommends “Compulsory training in disclosure obligations and functions … for all politicians and Civil Servants who may find themselves engaged in the disclosure process” (p.17). The Review is critical of induction generally, calling for standardised induction “across the entire Government for all Ministers and political members of Departments”, and for all senior members of each Government Department (p.19).

Fourth, dealing with conflicts of interest. The Review considers two distinct types of conflict. The first is where a civil servant “is a disputed witness of fact” – as noted above, they should never then manage disclosure, but the Review goes further and recommends: “Where the Chief Officer is a disputed witness of fact in the litigation their functions as aqccountable officer in the context of that litigation should be delegated to another Civil Servant of equivalent rank outside their own Department” (p.18). The second is where there is a conflict between the interests of a Department, and “the wider interests of Government” – in such a case this should be resolved by the Council of Ministers through a formal and transparent mechanism (p.18). The Review mentions the balance between Department and Government in a way supportive of a single entity: “The limited concept of Government as a single entity across Departments results in employment disputes – even at a senior level as in this case – being viewed as a Departmental problem and not an issue for wider Government. In fact, and as this litigation demonstrated, an employment dispute can have far reaching consequences for not only the individual Department concerned but also for the wider Government” (p.38; see also p.149).

Fifth, formal communication. One of the distinctive features of a small democracy like the Isle of Man is intimacy, which frequently works against the formality and structure found in larger democracies. The Review calls for greater formality – all business by members of CoMin qua their ministerial role should be from “a dedicated Ministerial email account that is held by the office of the Minister” (p19). More broadly, “High level decision making should be formally recorded at the time that decisions are made. The informality of email is not conducive to a transparent audit trail of the type required for high level Governmental decisions”.

Finally, the work of Employment Tribunals. The Review suggests giving consideration to appointing a Deemster “to serve as Head of the Equality and Employment Tribunal on a full time basis” (p.20), supporting evidence of Deemster Corlett in Tynwald (pp.172-3). This is a much more tentative recommendation than the other twenty-three, and this may be a recognition that it is hard to bring within the Terms of Reference of the Review, which did not include the work of the Tribunal itself, not being one of the parts of government covered by 2(a) of the Terms of Reference, nor the conduct of the DHSC in 2(b), not part of “the Isle of Man government as a whole during the litigation process” in 2(c). There are however, a number of criticisms of the way the Tribunal conducted the case – most notably the period for disclosure noted above, but also allowing the hearing to be “highly personalised … combative and confrontational from the outset” (p.93), and the “recitation of criticisms of the DHSC in the liabilty judgment that had not been fully litigated and were, at least in some respects, peripheral at best to the core decisions that the Tribunal was required to make” (p.132).

Final thoughts.

This Review will be uncomfortable reading for those responsible for the working, and resourcing, of the Attorney General’s Chambers. More widely, it rejects very firmly accusations of deliberate wrongdoing by any part of the Manx government, and stresses the integrity and hard work of a number of civil servants, including a significant number by name – perhaps most notably Paul Edge (no relation).

Even in relation to the Attorney General’s Chambers, however, the Review does not focus on individuals. Instead, the Review focuses on failures of structures and procedures, with concrete proposals for how to improve. It will be interesting to see the future impact of the Review, and in particular how the concrete proposals are received.

Why consult?

As the legislation to remove the vote of the Lord Bishop of Sodor and Man in Tynwald and the Legislative Council proceeded through Tynwald, the House of Keys added an additional requirement if the proposer of this private Bill was to proceed. During consideration of the clauses of the Bills, the Keys passed a resolution (by 13 to 11), that “The consideration of this Bill be adjourned until the mover has consulted the public and has submitted a report to the House a report on the consultation”.

Consultation on a Bill is not unique to the Bill under consideration, nor is Mr Hooper the only MHK to undertake it as a private member – that is, without the resources of the government underpinning the exercise. Recent examples include the Bills on abortion reform, where Dr Allinson indicated that he would carry out a consultation were he to be granted leave to proceed with the Bill; divorce, where Mrs Caine indicated the same; and assisted dying, where Dr Allinson, despite referring to a substantial body of Manx work exploring the issues, indicated “If successful today, I would intend to organise a full public consultation on the principles of future legislation”. The absence of public consultation in relation to this Bill was flagged by Mrs Christian, for instance, during the Second Reading of the Bill.

What was the basis for this requirement before the Bill could proceed? Some of the arguments supporting adjournment were simply arguments against the Bill; but two additional themes emerged.

Firstly, an important theme from the debate, was that, in the words of the Mr Callister, we should consider “the removal of the Lord Bishop’s vote to be a major constitutional and historical change in respect of the workings of our Manx parliament and I would argue strongly that the people of this Island, whether they are in favour or against this draft legislation, should be given a fair opportunity to have their say”.  Mrs Christian also developed this theme, arguing that constitutional reform without public consultation was “an alarming deviation from the principles of democratic governance”.

A second, also from Mr Callister, was that the pace of the legislation made it a challenge for MHKs to understand the impact of their decision – a delay would contribute to “Hon. Members fully understanding and appreciating the unknown consequences for taking this legislation forward”. One of the advantages argued for by supporters of bicameralism is that the duplication inherent in the system allows this sort of reflection by legislators, and a similar argument can be put forward for multiple readings and Standing Orders which structure when these normally take place (for instance 4.7(1) of the Standing Orders of the House of Keys). Building in additional delays for a particular piece of legislation is not a good way forward.

Taking the importance of public consultation as the driver for the adjournment – which may well be to understate the tenacity of those with substantive opposition to the Bill – requiring a member of the legislature to consult the public is an interesting half-way house. MHKs are much more accessible to the public than, say, MPs in the UK system, and would be anticipated to keep a certain level of informal consultation with at least their constituents on legislative business – during the adjournment debate a number of MHKs made this point. This resolution requires something wider and more formal – a consultation moment (which Mr Hooper has set at eight weeks) leading to a formal report; and a consultation of “the public” which should be read as meaning the Manx public, rather than simply the proposers constituents. It does not, however, go so far as to require a referendum under the Referendum Act 1979 – a very formal process which requires approval by Tynwald, rather than simply the House of Keys; although Mrs Edge did raise the possibility of a formal referendum, at some time in the future when costs could be limited.

How should the public be consulted?

One of the unusual aspects of this adjournment consultation is that is addressing a binary question. The Bill being considered is very short, and addresses a single point – the power of the Lord Bishop to vote in the Legislative Council and in Tynwald. As Mr Ashford, opposing the motion, argued, public consultations normally involved shaping and influencing decisions, as opposed to the binary here: “when you are faced with a binary choice, it is not something that actually you will get any clarity on by going out to consultation. All you will get is a number, depending on how many people were interested in responding, of whether they are for or against and that sounds more like a referendum to me than a consultation”. Certainly that is the way Mr Hooper has implemented it, with forced yes/no questions without options for indicating indifference or uncertainty.

Another is that, although Mr Hooper is obliged to consult the public, the way in which he did so was left open to him. The proposer of the adjournment motion fleshed out this concept a little. Mr Callister called for Mr Hooper to use the Isle of Man Government hub for carrying out his consultation, as had been permitted for other consultations by private members, and to comply with the Public Engagement and Consultation Principles published in October 2017; so that “Anything less than a full public consultation, then I hope Hon. Members of this House will hold the [proposer] for Ramsey to account”. As it turned out, Mr Hooper was not permitted to use this hub, and did not refer to the 2017 principles, published by the Council of Ministers and, per 1.5 of the document, explicitly setting out “the principles for consultation by Government Departments, Boards and Offices and other public bodies”, rather than individual MHKs.

Mr Hooper pointed out the adjournment motion gave him considerable freedom in how he consult: “Mr Callister’s motion does not specify in any way the form any consultation should take; does not stipulate how it should be undertaken; where; how long it should be done for. It is just a requirement on me, as the mover of the Bill, to consult. It gives me a lot of freedom as to how I might go about that consultation, despite Mr Callister’s remarks”. Dr Haywood referred to the complexity of a private member carrying out a consultation: “whatever consultation is run, it is going to be contentious. I only have to refer Members back to the number of questions that were asked about the assisted dying consultation. It is a private Member’s Bill, and as we know there is no support via the Consultation Hub. There is no back office support to do that. It is really down to the private Member how to frame that consultation and how to run it. So notwithstanding any veiled threats about being able to hold him to account afterwards, it does not matter because we will have gone out to the public with that. We are going to allow him to set it up and run the consultation in a way that he chooses. Will that keep everyone happy? Of course it will not”.

Dr Haywood’s comments raise the third unusual feature. This public consultation, mandated by Tynwald, is not resourced in the way a government consultation would be. Unsurprisingly, Mr Hooper has opted for a primarily online consultation; although there is provision for respondents to print off the form and send it by mail (which would provide some indication of the jurisdiction from which it was sent). For on-line responses, the consultation relies upon self-identification by the respondent. Q1 asks for the respondents name, “as an identifier only, no names will be published and all responses will be treated as anonymous”. Q2 asks for a simply yes or no to the question “Are you a Manx resident? (Required)”.

This raises a general problem – how is a private member to ensure that responses are from the Manx public, and not from members of other polities? This problem has most salience when the issue is one which may interest people outside the Isle of Man with strong views. The issue of the Bishop’s vote has already engaged figures within the Anglican Communion more broadly, which raises at least the potential of contributions from a small number of the tens of millions of members of the 42 “autonomous and independent-yet-interdependent, national, pan-national and regional churches in communion with the see of Canterbury”.

Here we hit a potential problem. With what elsewhere is called a “town hall” style meeting, or a physical road show across the sheadings, people present at the meeting might misrepresent their residency, but at least they are physically present in the jurisdiction at the time of the meeting. A keen supporter of reciprocal cooperation between a Christian church and any state, living in Liverpool, may visit the Isle of Man just to have their say – but the effort involved is considerable. An online process is easily accessible from across the world, and the temptation to lie about residency status in order to express a view on an important issue may be too much for some. If knowledge of the opportunity reaches enough people, a miniscule proportion of them willing to lie about their residency status may represent a significant number of people in Manx terms.

An on-line problem cries out for an on-line solution. This is well beyond my expertise, but I am very lucky in being able to turn the blog over to the Reverend Roger Bell-West for the section that follows.

Identifying on-line responses as being from the Manx public.

The usual approach to geolocation of a web user is to check their IP address, the connection to which web content is being sent, against a list such as those published by the regional Internet Registries (in this case the RIPE NCC). The addresses reserved by Manx Telecom and other ISPs will appear as “Isle of Man”; others will not. This is indicative but not probative; there are many reasons why an address might appear as Manx when the user is not, or vice versa. Even without any deliberate attempt to mislead:

•  They might be using a fixed network other than Manx Telecoms;
•  They might be using a mobile signal from the other side of the Irish Sea (entirely possible in clement weather);
•  They might be using a satellite system such as Starlink;
•  They might be a resident temporarily away, or an outsider temporarily on the island;
•  They might be using any of several sorts of VPN, an L2TP service provided by their ISP, or other privacy-enhancing measures;
•  They might be using a web proxy (for content or malware filtering), in which case the address of the proxy will be the one that’s recorded.

Some of these things may happen without a non-technical user’s knowledge; any of them could also be arranged deliberately. In any individual case, it would be impossible from IP address evidence alone to determine that this responder is, or is not, a resident; simply throwing away any data not geolocated to Manx IP addresses would risk ignoring genuine responses. A serious effort would need to identify individuals and confirm appropriate residency status, which of course removes any possibility of anonymity from a consultation.

The BBC faced a similar problem with a desire to serve advertisements to non-UK users of its website. Given the huge penalty that would be levied if they did show an advertisement to a UK user, after several years it gave up the attempt at geolocation; its ultimate solution was to place forward cache servers within foreign ISPs, so that e.g. an American user would receive content from the American cache (with advertisements, but without the delay of a round trip to the main server in England).

Concluding thoughts.

Requiring an MHK to consult with the Manx Public on a private member’s Bill can be seen in several ways.

The most negative is that it provides another hurdle to a private member seeking to bring forward legislation without the support of the Council of Ministers, providing another mechanism for the Council of Ministers to dominate public life.

More positive is that it requires a member to reflect more widely on their ideas – a process which hopefully the natural history of a government Bill will already have encouraged. As I have noted above, legislative procedures, and bicameralism, already seek to provide this space for all legislation. A classic argument for bicameralism is that it allows problematic legislation to be identified, and civil society mobilised, during the legislative process. I am unconvinced that adding this delay to legislation on an ad hoc basis is a good way forward.

Most positively is the idea that a particular class of legislation requires reaching out of Tynwald to consult the public in a way that goes beyond the – literally – day to day work of MHKs and MLCs. Multiple MHKs stressed the importance of doing this for constitutional measures. Let us leave aside what that might mean for the moment, and agree that changing who votes in Tynwald and the Legislative Council counts as a constitutional measure. Given the lack of constitutional entrenchment in the Manx constitution, a legislative process which requires public consultation on constitutional measures has much to be said for it.

If that is the case, however, it would be useful to have this applicable generally, perhaps through Standing Orders. Standing Orders currently have different procedural rules for different types of Bill, of which the closest analogy may be in 4.31, where a Bill may adversely impact on a private interest “distinct from the interests of the general public, or that section of the general public with which the Bill deals”. A pathway for constitutional measures would not be unreasonable.

If one of the constituent chambers of Tynwald is to regularly impose this requirement on private members, it would be worthwhile thinking through exactly what this means, how it is to implemented, and how – if at all – it is to be resourced. Mr Hooper, for instance, was not permitted to use the Isle of Man Government hub for carrying out his consultation, although this had been permitted for other consultations by private members, and was envisaged by Mr Callister in calling for adjournment to allow consultation. Mr Thomas referred to the importance in significant constitutional reform of making sure the Keys “capture the mandate, the popular will”. Discussing how this should be done in the abstract, rather than in relation to a particular Bill, would be valuable. Such a discussion could usefully consider not only data collection, but also the challenges of data analysis.