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.
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