The short answer is no. But this is because of the basis for the refusal, and exactly what has been done by the UK government, so it is worth giving the long answer.
Why does an Act of Tynwald need Royal Assent, and who gives it?
Historically, every Act of Tynwald needed the support of Tynwald (in some centuries, a fairly amorphous concept), and the assent of the King, later Lord, of Mann. With the vesting of the rights of the Lord of Mann in the UK Crown, this came to be exercised by the sovereign of the UK – whether by virtue of their title as Lord of Mann or as UK sovereign is a matter that need not delay us. In practice, since 1981 many Acts of Tynwald receive Royal Assent from the Lieutenant-Governor, rather than directly from the UK Crown.
In the UK, Royal Assent to an Act of Parliament is formally by Charles III as a “personal prerogative”, but in constitutional practice he will always do so. In the UK context, there has been controversy over whether the Crown could refuse assent when required to by the UK Government – rather than their own judgment – but the consensus is probably that expressed by Paul Evans in 2019:
“in all foreseeable circumstances short of a revolution (or counter-revolution perhaps) there is no executive veto in the British constitution over legislation after it has been agreed by parliament”.
The Manx position is very different. There is no internal executive veto. The Council of Ministers has no authority to direct the Lieutenant-Governor, or the Crown, to give or withhold consent to an Act of Tynwald. Instead, there is an extremely long history of Bills passed by Tynwald being refused Royal Assent by the Crown acting on the advice of their United Kingdom ministers.
When can UK ministers withhold Royal Assent?
As with many constitutional issues, there is a difference between the legal rule, and the constitutional rule. The legal rule is that the Crown may withhold Royal Assent upon any ground, and the UK Government may advise the Crown to do so on any grounds. The constitutional rule, however, is rather narrower. As with many issues touching on Manx autonomy, the further back you go, the more willing the English/British/UK authorities were to intervene in Manx affairs.
There are numerous examples from the 19th century of a prospective Act of Tynwald being refused Royal Assent simply because the UK government thought it should not become law. This might be because the Bill was seen as badly drafted (such as the Petty Sessions Bill 1864), or because it introduced rules different from English law. My favourite example is the 1849 Bill to reduce the scope of capital punishment, which was rejected because “it [was] an important departure from the law of England”.
With the changing understanding of the relationship between the Isle of Man and the UK, and in particular of the autonomy of a democratic Tynwald, this and other grounds have fallen away. Today, the “strong presumption” (Barclay v Secretary of State for Justice [2014] UKSC 54 para.16) and almost invariable practice is that a Bill passed by Tynwald should receive Royal Assent – the Manx Attorney General advises the (UK) Ministry of Justice they have no objection to the Bill being passed into law, the Ministry of Justice then advises the Lieutenant-Governor that they may use their powers to grant Royal Assent. Two grounds for exceptional intervention seem to have survived – “fundamental constitutional principles” and compliance with international law.
The “fundamental constitutional principle” ground risks being interpreted very broadly. In 1855 a Bill to provide for the speedy capture of sheep stealers was refused Assent “in consequence of their Lordships having been advised that its leading principle was contrary to the tenets of British jurisprudence”. Today, it is likely to be interpreted narrowly. An extremely rare example, from the Channel Islands, concerned constitutional reform in Sark. In 2008 Royal Assent for a measure to create a new democratic legislature for Sark was refused on the basis that it was “inconsistent with basic democratic principles, some of which were set out in the European Convention on Human Rights”. When a revised law was resubmitted by Sark, the Lord Chancellor judged it to be acceptable and recommended it for Royal Assent, which it duly received. As with other aspects of the ultimate responsibility of the UK Crown for good government in the Isle of Man, it is likely only to refer to extreme situations such as “a fundamental breakdown in public order or of the rule of law, endemic corruption in the government or the judiciary or other extreme circumstance”
The other ground, and the one upon which I read Royal Assent being refused here, is that the legislation would put the UK in violation of its international legal obligations. The Isle of Man, although increasingly active on the international legal stage in the 21st century, is not a sovereign state. International obligations applicable to the territory of the Isle of Man are obligations of the UK. So, for instance, when Tyrer was judicially birched in the Isle of Man this was by Manx officials executing a sentence passed by a Manx court under a Manx statute – but the violation of international law was by the UK.
When would withholding Royal Assent have been a constitutional crisis?
As I say, in law, the Crown could withhold Assent for any reason. If Royal Assent had been withheld simply because the UK Government did not share the view of Tynwald as to what an assisted dying law should consist of, however, that would have been such a substantial reversal of the growth of Manx autonomy as to trigger a constitutional crisis. Given that the UK has been wrestling with assisted dying legislation at the same time as Royal Assent was being considered, it was reasonable to worry that this was the basis for the drawn out process of giving Royal Assent, signalling an approach to Manx legislation which was “paternalistic and unnecessary” .
From the limited data currently in the public domain, as indicated by the Chief Minister in March, that has not happened here. Instead, Royal Assent has been withheld under the international obligations ground. The Cabinet Office press release stresses this basis for refusal of assent:
“The Ministry of Justice duly consulted with the Isle of Man Government, seeking clarity on the proposed arrangements for the independent monitoring of assisted deaths, safeguards against coercion, and ensuring that individuals have the capacity to make informed decisions regarding assisted dying.
The consultation culminated in the Isle of Man Government providing comprehensive assurances outlining a number of commitments intended to address the issues raised. While these commitments would, if fully implemented, mitigate the legal risk significantly, they do not form part of the Bill.
It is therefore the UK Government’s view that these matters must be addressed directly on the face of the Bill to comply with the European Convention on Human Rights.
It is on this basis that the Ministry of Justice is unable to recommend the Bill for Royal Assent at this time”.
Royal Assent, then, has been withheld on the basis of the need to meet the international legal obligations of the UK under the European Convention on Human Rights. From earlier discussions shared by the Minister for Health and Social Care, a particular concern is to ensure that the obligations under the ECHR as interpreted in Mortier v Belgium are met. These same obligations were considered by the UK DHSC in relation to the English Bill to allow assisted dying, which discussed the safeguards in the English Bill at length, concluding that the English Bill met ECHR obligations.
Although this sort of issue is normally dealt with before a Bill is considered for Royal Assent, it is not a constitutional innovation, nor the basis for a constitutional crisis, for a Bill passed by Tynwald to be refused Royal Assent because it is incompatible with the international legal obligations of the UK. So long as the UK is responsible for Manx violations of international law, this ground for refusing Royal Assent seems inevitable. To quote Lady Hale from Barclay (para. 48):
“It is the clear responsibility of the United Kingdom government in international law to ensure that the Islands comply with such international obligations as apply to them. Just as the United Kingdom Parliament has the constitutional right to legislate for the Islands, even without their consent, on such matters, so must the United Kingdom executive have the constitutional power to ensure that proposed Island legislation is also compliant. As was pointed out in evidence to the Kilbrandon Commission, to hold otherwise would be to assign responsibility to the United Kingdom without the power to put that responsibility into effect”.
Bonus constitutional crisis averted: A disallowance power?
The actual correspondence from the Ministry of Justice is not available, but it is referred to in the Cabinet Office press release which announced the withholding of Assent. There it was said:
“This should not be interpreted as disallowing Royal Assent; nor does it prejudge the policy merits of assisted dying. It reflects solely the need to ensure that the legislation once enacted contains the necessary protections required under the European Convention on Human Rights”.
My best guess is that the reference to “disallowing” here is to make the objection to the legislation as it currently stands, rather than all assisted dying legislation, clear. As with Sark in 2008, a Bill which addresses the concerns of the Ministry of Justice would receive Assent. Unfortunately, “disallowance” has a very specific technical meaning which it would be unfortunate to see become a live part of the Manx constitutional landscape.
As a general rule of Imperial constitutional law, the Crown was able to disallow the legislation of dominion legislatures, other than the Imperial Parliament. Because Acts of Tynwald after 1765 required the assent of the British Crown, refusal of Royal Assent was occasionally referred to, inaccurately, as disallowance. Disallowance proper, by which is meant the negation of an Act of the national legislature by a later Order in Council deriving authority from the prerogative, rather than an Act of Parliament, is very different. When Royal Assent is refused, a key part of the legislative process has not been completed – there is no national law. A disallowance power, on the other hand, is exercised to negate a piece of national law which has been passed – as we find, for instance, in the Australian Constitution s.59.
I am aware of only one example of a disallowance power being exercised in relation to the Isle of Man, and it is both elderly – dating to 1900 – and ambiguous. The Companies Act 1900 had passed all stages of legislation “and the Order in Council [had] actually been made approving it, and … [was] … lying in the [Home Office]” when objections were first raised. These were sufficiently persuasive to render the Act undesirable, and the question arose as to whether it could be annulled. K. Digby noted: “We can find no precedents of a revocation of an Order in Council with reference to Isle of Man legislation but there are abundant cases of alteration and variation of other Orders in Council”. The Manx and English Law Officers agreed that the Act could properly be dealt with, since it had not been promulgated and so was not law, by the Order granting assent being repealed by another Order. Even this single precedent leaves open the question of whether an Act of Tynwald could be disallowed after it had become law which, given the changes in the law relating to promulgation, now means after Royal Assent has been granted.
If disallowance is being used in the broad sense, it is not describing anything objectionable. If it is being used in this more technical sense – suggesting that reassurance was needed that an Order in Council, as opposed to an Act of Parliament, would not in this case be used to repeal an Act of Tynwald – then it is much more problematic.
So what next with the Assisted Dying Bill?
The proposer, Alex Allinson, has already begun work to bring forward amendments to the Bill to address the points raised by the Ministry of Justice. There is one, calendar driven, problem here.
Refusal of Royal Assent is not unheard of, and so the Manx legislative process specifically accommodates changes of Bills to make “such amendments … as the House [of Keys] may consider desirable in respect of such suggestions” (House of Keys Standing Orders, 4.16). The amended Bill then needs to be considered by the Legislative Council, as normal. The General Election to the House of Keys this September means there is a time constraint on getting this done. When the House of Keys is dissolved – on the 13th of August 2026 – all Bills before the House lapse (House of Keys Standing Orders 4.26(3)). If a Bill awaiting Royal Assent has been passed by the House of Keys, and the Legislative Council, and signed in Tynwald, it may receive Royal Assent after the dissolution of the House. If it has not, it will lapse, and must be reintroduced to the House of Keys as if it were a new Bill (House of Keys Standing Orders 2.26(5)). If a Bill has passed the Branches, it would be normal to sign it in the last sitting of Tynwald Court before the General Election, so that if Royal Assent is given, it will become law without further action by Tynwald.
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