The European Convention on Human Rights established a system of regional human rights protection between states which, at the time of inception, shared relatively homogenous values and traditions. As well as covering a range of fundamental rights, the Convention included provision for enforcement of those rights through the right of individual application.
The United Kingdom’s ratification of the Convention, acceptance of the compulsory jurisdiction of the Court, and the later acceptance of the right of individual application all expressly included the Island. Although I think not a part of the metropolitan territory of the United Kingdom, the rights and obligations of the Convention could be extended to dependencies like the Isle of Man under Article 63 (now Article 56).
In Tyrer v United Kingdom (1978) the applicant had been sentenced to corporal punishment by a Manx court under a Manx statute. He queried the validity of this under the Convention, and the United Kingdom government, with its responsibility for Manx international relations, was brought before the European Court of Human Rights to defend the case. The Court held that judicial birching of juveniles was a violation of Article 3 of the ECHR. It is particularly worth noting that an attempt was made to gain recognition for the Islands special status. Under Article 63(3), where the Convention extended to dependencies, “the provisions of [the] Convention shall be applied in such territories with due regard … to local requirements”. It was suggested that Manx requirements justified an application allowing the birching of Tyrer. This argument failed, perhaps because of the rigour of the obligation under Article 3, but the judgment of the Court makes it doubtful whether Article 63(3) would ever be applied to differentiate between the interpretation of a substantive Convention right in the Island and the United Kingdom.
At this point, a number of options were open to the Manx and British governments. The United Kingdom could have decided that it no longer wished to be a contracting party to the European Convention on Human Rights, and effectively departed from regional human rights norms. Parliament, well within the conventional restraints on its legislative coordinancy, could have repealed the Act of Tynwald itself, regardless of the wishes of Tynwald, to bring Manx law into alignment with the ECHR. Tynwald could have repealed the offending Act itself. None of these routes were taken.
Instead, the British and Manx authorities took steps to prevent a reoccurence of the Tyrer case. One of these was the decision not to renew the right of individual application for the inhabitants of the Isle of Man in 1981. The people of the Isle of Man, unlike those of the United Kingdom, were not to be allowed to bring any violations of the Convention to the attention of the institutions of the ECHR. This allowed the Isle of Man to retain corporal punishment on the statute books, and even to briefly pass a sentence of corporal punishment (overturned on appeal to the Staff of Government). The UK remained in violation of its international obligations under the European Convention on Human Rights, but the person whose rights were infringed could not bring this to the attention of the European Court of Human Rights. It provided similar insulation from obligations to secure other rights guaranteed under the ECHR, for instance the right to privacy as it applied to sex between men, which remained illegal in the Isle of Man for decades after decriminalisation in England.
Eventually, in 1993, as part of a programme of law reform intended to bring Manx law into line with European human rights norms, Tynwald both liberalised restrictions on sex between men and abolished corporal punishment. Before the legislation received Royal Assent the Manx government, with its laws seen as ECHR compliant, indicated that it wished the right of individual application to be returned. The British government acceded to the request, and the right was restored on June 3, 1993 for a five year period.
So much for the first lapse, a deliberate strategy by the UK government and Manx government to manage the tension between the international obligations of the UK in relation to the Isle of Man, and the autonomy of the Isle of Man. The second lapse, on the other hand, was accidental.
In 1994, Protocol 11 to the ECHR was opened for signature by member states, coming into force in 1998. Protocol 11 made substantial changes to the institutions, and procedure, of the European Convention on Human Rights. The original text of the ECHR created the right of an individual to complain to ECHR institutions under Article 25, but this depended upon the country being complained against having made a declaration allowing such applications. The UK renewed this application on a five-yearly basis, starting in 1966, but was not obliged to do so. This optionality was removed, with the right of individual application, now under Article 34, being mandatory and not be hindered in any way by the state.
Although it would be compulsory to allow appeals in relation to UK violations in the UK, the UK Government had successfully argued that for dependent territories, such as the Isle of Man, the right would remain optional and renewable for such territories. In May 1994 the Home Office contacted the Manx Government to see if it wished to allow such a right. By October 1998 the Manx Government had decided it wished to do so, and in January 1999 the UK contacted the Council of Europe to inform it that it wished the right to extend to the Isle of Man for five years from 1st of June 1998. Why did the UK ask for a renewal starting in the past?
The renewal of the right of individual application from the Isle of Man which had begun on 3 June 1993 had expired on the 3rd of June 1998. This had not been noticed by anyone in either the Home Office, or the Manx Government. When the Home Office realised this, they contacted the Isle of Man Government and asked if they would like the right backdated to 3 June 1998 “to avoid criticism” (HO 284/456). The Manx Government was very concerned to discover the lapse, and would be very pleased to have access to the right backdated. Foreign Office policy was to make renewals on the first of a month, accounting for the slight overlap between the two.
In the 1998 file, there is some evidence that the Isle of Man Government wished the right of individual application to be permanent, rather than subject to periodic renewal. When renewed in 2003, the right was made permanent. Less information is currently available on the 2003 process, but it appears that there was another – very short – lapse. The UK government renewed the right for the Isle of Man on 29 August 2003, with the right once again backdated, this time to 1 June 2003.
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