Referendums in the Isle of Man.

In a discussion of the requirement for public consultation which has been seen in recent Private Bills introduced into the House of Keys, I suggested that consultation of Manx residents was difficult to do in a robust way on a matter which may be of interest outside of the Isle of Man, and mentioned the referendum process. Since then, the possibility of a referendum as a limit on the coming into effect of the Assisted Dying Bill was proposed in the Keys by the Chief Minister. What are the Manx provisions for a referendum?

The Referendum Act 1979 is based on a UK Act of 1975. It is triggered by a resolution of Tynwald that a referendum shall be held on a specific matter, whereupon the Deemsters in consultation with the Attorney General draft the questions and ballot paper, make provision for the conduct of the referendum, and apply  “the provisions of any enactment for the time being in force relating to elections of the House of Keys” (s.2(1)). This order is then laid before Tynwald, and the Council of Ministers appoint a day for the holding of the referendum (s.2(2)-(3)). The expenses of the referendum will be paid out of money provided by Tynwald (s.5). The process would almost certainly fall within the ambit of the Crown Division of Cabinet Office, and so be the responsibility of the Minister for the Cabinet Office.

Votes are counted by House of Keys constituency (s.3). Entitlement to vote in the referendum is the same as that to vote as electors at a House of Keys election in any constituency (s.2(4)). This was usefully summarised in guidance to voters for the 2021 General Election. Broadly, residents aged over 16 are entitled to vote. There is provision for voting by service personnel, students studying off-Island, and those temporarily working overseas, and proxy voting in limited circumstances. Since 2021 there has also been provision for postal voting.

The 1979 legislation is not very detailed, and has had only minor amendments since it was passed. There are no instances of it being used which could be drawn upon in developing the Deemsters’ Order for a referendum. A motion to use the legislation was first brought in relation to redistribution of Keys seats,  and most recently in relation to the voting powers of members of the Legislative Council, and   in relation to direct election of MLCs. None have succeeded.

The 1975 UK legislation was used once, for the 1975 European Communities membership referendum. The subsequent UK wide referendums (fans of the plural form “referenda”, like me, should click this link) of 2011 (on the alternative vote), and 2016 (on Brexit) both required a distinct Act of Parliament. Although each UK wide referendum requires primary legislation, since 2000 there has been an overarching framework for referenda, set out by the Political Parties, Elections and Referendums Act 2000. In the wake of the Brexit referendum there was a useful Briefing by the Commons Library on the UK referendums scene, available here. 

Both Jersey and Guernsey have carried out referendums, exclusively on constitutional issues. In Guernsey, a referendum on the electoral system was held in 2018, under the Electoral System Referendum (Guernsey) Law 2018 as amended, and regulations made under the Law.   In Jersey, referendums on constitutional issues were held in 2008, 2013 and 2014. After these referendums were carried out, the 2002 legislation which underpinned them was replaced with the Referendums (Jersey) Law 2017, which was amended in 2021. The Referendum Commission set up under the 2017 legislation has reflected at length on referendums in Jersey, in a valuable 2019 report which is available online.Referendums are central to neither the UK, Jersey, nor Guernsey constitutions, but all three have significantly more experience  in national referendums than the Isle of Man. This has led to legislative change and development since the 1975 Act upon which the current Manx legislation is based. If referendums are to become a live part of the Manx constitutional scene, then, as Ms Maltby MHK suggests, reviewing the 1979 legislation before it is used would be worthwhile.