On the 21^st of February 2018, Tynwald voted on the Third Report of the Select Committee on the Functioning of Tynwald. This report, discussed elsewhere in this blog, made three recommendations: (1) that the Tynwald Management Committee should be responsible for overseeing the CPD Programme for Members of Tynwald; (2) that the Lord Bishop of Sodor and Man should retain his vote in Tynwald, and have the same rights and duties as to voting as other members; (3) that the Isle of Man Government should establish an independent review to examine and report on emoluments of Members of Tynwald, having regard to a number of foundational principles. This note focusses on the second recommendation.

The recommendation was the subject of extended, and intense, debate. As well as the option put forward by the Select Committee, Mr Shimmins proposed an amendment that would remove the vote of the Bishop in both Legislative Council and Tynwald; and Mr Harmer an amendment that would have the Bishop keep his vote but, uniquely, give him a right to abstain in a vote (although the Lord Bishop had a de facto power, exercised by leaving the chamber before a vote).

Mr Shimmins amendment was lost, with a very close vote in the Keys (11:13), and in the Council (3:5, the Lord Bishop having left the Chamber at the point of voting). The recommendation of the Select Committee was passed with the same ratio – indeed, with exactly the same members losing the vote in both cases.  Mr Harmer’s amendment was lost even more closely, with a 12:12 split in the Keys, and a 3:5 split in the Council, while not mapping exactly onto the main vote. I will summarise the arguments put forward in debate by reference to those who supported, and those who opposed, the Lord Bishop retaining his vote, and consider the important speech of the Lord Bishop separately.

Supporters of the vote.

The Speaker, as Chairman of the Select Committee, introduced the Report. He argued that “whilst the Island continues to identify itself as a Christian nation there is a justification for the Bishop’s role in Tynwald”. He also considered that “it has been made quite apparent that the loss of the Bishop’s vote would mean the loss of the Bishop”, citing the letter from the Archbishop of York.

Mr Robertshaw saw the lack of parallels in other legislatures, highlighted by Mr Shimmins, as an irrelevance: “The last thing we want to do is run around saying ‘Me too’”. He saw the Lord Bishop as representing a moral and ethical dimension – something that could be achieved in other ways, but that traditionally in the Isle of Man was through a Christian representative. He put the Bishop’s vote in the context of the broader Manx constitution, stressing that the Bishop was one vote in LegCo, and that the Keys had primacy.

Mr Baker echoed Mr Roberrtshaws emphasis on Manx distinctiveness – “We need to be proud of the Isle of Man and we need to be confident in ourselves, and actually need to set our own path”. He feared that the voice of the Bishop would be lost if the vote was removed, because the Diocese would cease to exist, and stressed the responsibility of Tynwald if that was the case. He also rejected an argument that the Bishop made Tynwald undemocratic, pointing to the Lord’s Spiritual in Parliament.

Mr Cregeen also rejected, in even stronger terms, any arguments based on parallels with other countries, seeing it as “chipping away at the things that make us special”. He also doubted whether the vote of the Bishop was an important matter to the Manx people.

Mr Cannan took a different tack, suggesting that the debate was a good moment for the new Bishop to reflect on whether “he is best serving the interests of the community, and of the Church and of the respective faiths, by being inside this Court” or from outside. He argued for retention of the status quo, but to return to the issue in 12 months time. Given the closeness of the votes, this is particularly significant.

Mr Malarkey indicated he had been undecided on the vote, but he was not undecided on whether the Isle of Man should have a Bishop. He linked the loss of the vote with the loss of the Bishop, and was concerned that a large section of Tynwald had not had enough experience of the contribution of the Bishop to judge that loss properly. He also rejected comparisons; “Why do we want to be the same as Jersey and Guernsey? We have a history of being different”. He feared the immediate loss of the vote would lead to the loss of the Bishop, and argued that “if you are on the fence, slide off the fence and wait for two or three years”. Again, given the closeness of the votes, if this argument influenced other members, it may have been particularly significant.

Mr Harmer was convinced that the loss of the vote would lead to the loss of the Bishop, and that the Diocese was “fundamental to our sovereignty, it is much more fundamental to our identity and it is much more fundamental to our sense of place that we will lose something of ourselves”. A vote to retain the Bishops’ vote would “support history, support and keep our identity and sovereignty”. Mr Harmer cited Lord Lisvane’s support for the Bishop’s vote.

Mr Boot was unconvinced that the Bishops vote was a significant issue to Manx people. He feared that a loss of the vote would lead to a loss of the Diocese; and rejected what he saw as arguments from Jersey and Guernsey that the Bishops’ vote made the Isle of Man less democratic. He stressed the “tradition and the mythology that goes with it” of Tynwald – “I am not trying to undermine it all the time and [do not] believe that we will be a better democracy if we destroy some of the traditions that we have”. He also cited Lord Lisvane’s view on the Bishop’s vote.

Mr Quayle noted that the appointment process of the Lord Bishop had involved consultation with him as Chief Minister. He stressed that the vote of the Bishop, as part of LegCo, could be overruled, suggesting that this could not happen in the Lords Spiritual (a striking assertion queried by Ms Edge), and echoed suggestions that the Bishop’s vote was not important to Manx people, and read this as “a silent majority who are content”. He also rejected comparisons drawn with other jurisdictions, “We are unique, where we do what we want and where we believe what is right, we do it”.

Mr Cannan saw the loss of the Bishopric following the loss of the vote as crucial: “the loss of the bishopric on the Isle of Man would be too high a price for our cultural, spiritual and historical identity”.

Mr Skelly posed a tension between “evolving democracy or dismantling tradition”, seeing this as the nub of the debate. He also stressed the contribution of the Lord Bishop not only in Tynwald, but also “outside this Court”, clearly fearing that a loss of the vote would lead to the loss of the Diocese, with effects well outside the legislative process.

Opponents of the vote.

Mr Shimmins criticised the Report as under-researched, and had commissioned his own comparative research from Tynwald Library. He referred to the narrowness of ecclesiastical representation in Parliament, and the absence of official religious representation in Ireland, Northern Ireland and Scotland, as well as Canada, Australia, Scandinavian countries, and the other Crown Dependencies. The closest parallel was with the Lords Spiritual, but he stressed the higher proportion of Tynwald’s vote represented by the Lord Bishop.  He also considered the Report to be out of step with “public opinion …. unbalanced”, and referred to “many proud Manx people who find this tradition irksome”. He recognised that the loss of the vote might lead to the loss of the Diocese – he would regret this, but “it is a decision for the Anglican Church; it is not a question for this Hon. Court”. He also stressed the importance of democracy as opposed to “status and hierarchy and rank”, seeing the role of the Keys in electing a normal MLC as essential to democratic legitimacy for “everyone who votes on our laws”.

Mr Hooper took up this last theme, arguing that every voting Member of Tynwald should have been elected either directly or indirectly. He criticised the Report for not discussing this issue. Mr Hooper noted the link between the diocese and Manx status and influence, but criticised the Report for lack of evidence for this point, particularly in comparison with Jersey. Mr Hooper was more sanguine over the loss of the Diocese, but echoed Mr Shimmins in stressing this was a matter for the Church, while the vote was a question for Tynwald. He finished by emphasising the democratic principle, and calling for the removal of the vote as removing “the last vestiges of feudal rule from this Hon. Court”.

Mr Ashford similarly read the letter of the Archbishop of York as not completely categorical on the Bishop losing his diocese along with his vote. He also expanded on a comparison with Jersey in the letter, noting that Jersey had removed the vote of the Dean in 1948, “so you could say we are 70 years behind the curve … it has been tried and tested elsewhere”.

Mrs Caine described the Committee Report as “out of step with the mood of this Hon. Court, or perhaps I should say the mood of this Hon. House”. She did not see the Archbishop of York’s letter as “a clincher”, and objected to the reference in that letter on Manx identity, and “it’s moral and ethical responsibility for the life of its people”. She noted criticisms of the indirect election of MLCs, but thought that “no one on this Island has any say in who is appointed Bishop”. She saw the vote of the Bishop as “patently undemocratic in terms of one unelected person’s influence in this Hon. Court”. She was comparatively unconcerned over the possible loss of the Diocese – “ if the amendment before us today is supported, and the threat carried out to downgrade the Diocese of Sodor and Man, I will experience a very small pang of regret for the loss of tradition, but give a silent whoop of celebration at the evolution and modernisation of this parliament”.

Mr Peake noted that the Lord Bishop was “chosen by one religious organisation with little public influence of accountability”, in contrast to the directly and indirectly elected Members of Tynwald.

Mr Thomas was a strong supporter of the voice of the Lord Bishop, but not the vote. He noted the range of options for the Manx Church even in the event of the loss of the Diocese. He also noted that, given the vote of the Lord Bishop had at times been decisive, “there is a risk involved in that”.

Mrs Poole-Wilson stressed the democratic issue. She noted that the Lord Bishop was a much higher proportion of Tynwald than the Lords Spiritual of Parliament, and that their position as an MLC was more powerful than that of member of the House of Lords. She echoed Mr Hooper’s scepticism that the loss of the Diocese would impact on the Island’s status and influence. She argued that the ability of Tynwald to change “and make decisions about the issues we are debating today speaks powerfully to our status and sense of nationhood. It is this ability that makes us special, that makes us different”.

Mrs Corlett made a brief contribution, where she stressed the importance of an election process to give a voter legitimacy: “This for me is not about religion or faith, but it is about something just as fundamental: it is about democracy”.

Mrs Beecroft identified as a formerly very strong supporter of the vote of the Bishop, but had come to the conclusion that losing the vote would empower the voice, by allowing the Bishop to speak more freely in Tynwald.

Mr Allison noted that the loss of the vote would reduce the power of the Bishop, and may have consequences; but the loss of the Diocese would be a decision for the Church, and “should not necessarily stop us from the right decision today ,in terms of democracy”.

Ms Edge noted that on a number of occasions the vote of the Lord Bishop had been decisive, and found it difficult to comprehend why, given other voting members were elected, this should be the case.

The Lord Bishop

The Lord Bishop did not vote on his own vote; choosing instead to leave the chamber before the vote. He did, however, make an important contribution to the debate, which Members on both sides of the debate valued.

The Lord Bishop emphasised the importance of the Diocese to Christianity –“the diocese is the basic unit the Christian community, not the parish but the Diocese”. He saw Jersey and Guernsey as fragile because they were “geographically distinct but looked after pastorally from somewhere else”. He noted discussions over the continued existence of the Diocese during the creation of the Diocese of Liverpool in 1875, and suggested that if this were the case, a visit by the Bishop every five or six months might be the result.

The Lord Bishop was careful to distance himself from any suggestion that other Members of Tynwalds were unable to contribute a moral dimension, but did stress a special role for the Church: “With the best will in the world the Church has in the past cultivated and always wished to cultivate a moral and ethical understanding that many people do not have time to cultivate for themselves, and I think that is what I would regard myself as bringing to the Legislative Council”. This is not an uncontroversial position, but in constitutional terms it is particularly interesting as the Lord Bishop emphasises a special expertise, and perhaps inadvertently moves the position of the Lord Bishop in Sodor and Man closer to that of the (non-voting) Attorney-General than might have been anticipated.

The Lord Bishop also stressed Manx involvement in his appointment. Although recognising this was not the same as being elected, he emphasised that there had been a lengthy consultation, and that members of the Manx Church had been appointed to the Crown Nominations Commission. He did not, interestingly, mention the discussions with the Chief Minister which the Chief Minister recounted.

He saw a strong link between establishment and his place in Tynwald: “if one has establishment of the Church then a corollary of that is the involvement and engagement of the Church within the everyday processes of legislation and government”. Similarly stressing Anglican distinctiveness, he referred to the importance of the parochial system – “I am interested in everyone who lives on the Isle of Man and any member of my clergy is interested directly and completely in anyon who lives their parish. It has to do with pastoral care which is exemplified, as I say, through representation in the structures of government, of education, which is why we have hospital and university chaplains for example, and health care and elsewhere”. Finally, he saw an organic link between Christianity and the Manx (and UK) states: “the democratic process on which we rightly set so much store has been generated by the Judeo-Christian tradition and for that reason it seems to me that to separate those two things is a complex and complicated thing to do”, referring on a number of occasions to the “spiritual deposit and tradition” of the Manx Church.

First thoughts.

It was a very close vote, particularly in the (dominant) House of Keys. Given a number of suggestions that the issue could be returned to in the near future, we may see this issue returned to in the short term. This may be particularly likely if newly elected members of the Legislative Council favour removal of the vote. The closely divided Keys seems a long way away from the special majority required to over-ride a Legislative Council veto on any legislation required to change the vote.

The detailed arguments on both sides were well discussed in the debate, and the closeness of the vote reflects the difficulty of balancing the different issues in play. Some members of Tynwald who identified legitimacy strongly with election – particularly direct election  – seem to have found the decision easier than their colleagues. If we find the indirect election of most MLCs return as a live issue, the position of the Bishop is likely to be impacted by any significant change in their position.

The approach towards comparative data was interesting. As I have discussed elsewhere, Tynwald has come a long way from the deferential adoption of UK models as “the state of the art” which they should loyally follow. Members of Tynwald using comparative data to inform their argument were, as  Mrs Poole-Wilson made explicit, using it to inform the exercise by Tynwald of national power. A number of members, however, found reference to a range of models from elsewhere as counterproductive and, if I may gloss the debate slightly, unpatriotic. Considering the experience of other jurisdictions can be very useful, particularly where those jurisdictions seem to have gone wrong. The Lord Bishop carried out just this sort of exercise when he referred to the fragility of Jersey and Guernsey which he associated with their lack of a Diocese. It will be interesting to see if his comments are picked up in Jersey and Guernsey debates, particularly in ecclesiastical circles.

 

On the 20th of February, Tynwald will debate the third report of the Select Committee set up primarily to consider recommendations from the Lisvane Report. Earlier reports have been controversial, and that is unlikely to change with this third report. This report considers continuous professional development for Members of Tynwald, Member’s Pay and, most significantly in purely constitutional terms, the work of the Lord Bishop of Sodor and Man in Tynwald.

The remit of the Committee has changed slightly,  and this new report explicitly considers whether the Bishop, while remaining in the Legislative Council, should lose his vote, and become analogous to the Attorney General.

Here, the ecclesiastical position of the Bishop as the head of an Anglican Diocese is key to the reasoning of the Committee. The report emphasises what the Lord Bishop adds to Tynwald – “the combination of the presence of the Lord Bishop on the Island and the continuing existence of the Diocese is a matter of great importance to the Island in general for social and community reasons; the Lord Bishop represents a significant part of our continuing heritage. The existence of the Diocese is … a continuing part of the Island’s cultural heritage”. The report identifies as a “key question” whether the Diocese would cease to exist if the Lord Bishop were to lose his vote but remain in Tynwald. The Committee had written to the Archbishop of York for clarification on this point.

The Archbishop replied on the 14th of November. In this letter the vote is described as:

“a matter of great importance to the Church of England. It mirrors the position of the Diocesan Bishops who site in the House of Lords … and … reflects the nature of the spiritual tradition of the Isle of Man. A voice on the Legislative Council without a vote would seem to me to be a very weak position. It would be akin to the position of the Deans in the Channel Islands, who are allowed to speak but not to vote in the Parliament. You may be aware that the Channel Islands do not form a separate diocese and have no diocesan bishop; instead they are incorporated into an English Diocese.”

The Archbishop had been informed by the Bishop that “the absence of a spiritual vote in Tynwald will cause an issue for many residents of the Island, particularly where voting is required on spiritual issues … The Bishop serves on Tynwald as a focus for all faith groups on the Island and his voting role on the Legislative Council is testimony to the fact that Tynwald takes seriously the spiritual nature of the Island’s identity, and its moral and ethical responsibility for the life of its people”. He concludes: “If the Lord Bishop’s vote were to be removed, in my view this would significantly undermine the case for Sodor and Man being a separate diocese”.

As a result, the Committee concluded that loss of the vote would lead to loss of the Lord Bishop and downgrading of the Diocese to a part of another Diocese based in England: “We believe that this would have a detrimental impact on the Island’s status and influence”. The Committee noted other advantages to the Lord Bishop’s vote, in particular minimising the need for the President to exercise their casting vote, an increase in the ability to meet quoracy during LegCo vacancies. It is clear, however, that this linkage between the vote and the Diocese is crucial to their conclusion that the Lord Bishop should retain his vote.

It will be interesting to see how Tynwald responds to this element of the report. I think there are two, distinct, areas of interest.

Firstly, the Archbishop of York’s view of the Lord Bishop of Sodor and Man:

(i) In constitutional terms, it does not mirror the Lords Spiritual – although it is true to say that they share the extremely uncommon characteristic of being ex officio religious representatives who vote in a European legislature. The work of LegCo is not the same as the work of the House of Lords, even since it lost a role in voting for the Chief Minister. Neither is the impact of the Bishop on their small chamber the same as the impact of the Lords Spiritual – even taken as a group – on their chamber. The discussion of the Select Committee on quoracy makes this clear.

(ii) The “nature of the spiritual tradition of the Isle of Man” is not spelled out. A predominantly Christian tradition may be what is meant, but within that broad theme, there are interesting differences between the Manx and the English context. In particular, the place of Methodism in the Manx scene is important for understanding of that tradition, for instance through the domination of the House of Keys by Methodist members in the second half of the 19th century (in contrast to the Anglican Council of the same period).

(iii) Similarly, the way in which the Lord Bishop serves as “the focus for all faith groups” is not detailed. The work of the Lord Bishop in representing a viewpoint between the Church of England is a recurrent theme in debates over the role, driven in the past by the position of an established Church of England in a majority non-Anglican country. A detailed study of the work of individual Bishops shows, perhaps unsurprisingly, that the way this work is undertaken varies from Bishop to Bishop. Bishop Nicholls in 1980, for instance, was concerned that Jewish and Muslim slaughter methods caused great distress to many people and was “different from the one used in (if I may use the words in the widest terms) a Christian community”. Bishop Attwell in 1986 expressed similar concern that a proposal might create problems “with regard to Muslims and Koranic law, where you can marry a girl at 12 and divorce is simply a male thing”. Bishop Jones in 2000 welcomed a clause exempting Sikhs from motor-cycle helmet rules as respecting them in a very sensitive way – although it may be worth noting that he had been entirely silent on that legislation, and was juxtaposing it with a discussion of summer opening of public houses, a concern closer to the Methodist interests we can see explicitly represented in Tynwald. Bishop Jones in 2000 also took the view that, unlike the UK, the Isle of Man remained a Christian country, rather than a multicultural one. It would be interesting to see if the current Bishop were willing to outline the mechanisms for ensuring he represents all faith groups, particularly those with a tradition of tension with Christianity, such as contemporary paganism; and the extent to which he would be willing to represent a faith-based issue frankly incompatible with Anglican Christianity.

Secondly, the Committee’s view that a potential loss of the Diocese would be sufficient reason to retain the vote is expressed very succinctly. The Committee has gathered clear evidence that the loss of the vote would lead to the loss of the Diocese, but does not flesh out the why this loss of a Church of England Diocese would impact on the Island’s status and influence.

(i) Is there a significant difference in the status and influence of the Isle of Man and Jersey? Jersey, it will be recalled, has already featured in debates about the place of the Lord Bishop in the Legislative Council; and is invoked again by the Archbishop of York. It may be that a reduction from a Bishop to a Dean within the Anglican structures would have a negative impact on the status and influence of the Island, but no evidence is given for this view.

(ii) Is there something special about the status and influence gained from association with the Anglican Church? Manx people are affiliated with a range of religious organisations, with a range of structural solutions to Manx distinctiveness. The Methodist Church, for instance, is structured as a single circuit, and a Methodist District in its own right. The Channel Islands are, similarly, a Methodist District (albeit consisting of a Jersey and a Guernsey Circuit).  The Catholic Church, on the other hand,  treats the Island as part of the Archdiocese of Liverpool; and Jersey as part of the Diocese of Portsmouth. The Latter Day Saints treat the Isle of Man as part of one of the six UK Missions.

(iii) How should the benefits of retaining any such status and influence be weighed against the benefits proponents of the loss of the vote identify?

 

In an earlier blog, I talked about an exceptional decision by the House of Keys to override the objections of the Legislative Council in order to pass an Act of Tynwald without their consent. Chris Thomas raised the issue that this may have been the first time the Keys had used this power

Previous examples were certainly not put before the House during the debate on the motion to over-ride the Council. Has it been used before? If it hasn’t, then its use may be particularly significant of the direction of travel in the relationship between the Keys and the Council.

Before 1961, the consent of the Council was always required for an Act of Tynwald to pass, and indeed government Bills started in the Council, as the Attorney General sat there. The Isle of Man Constitution Act 1961 s.10(1) created a complex system where a majority, or in some cases a special majority of 16, of the Keys could dispense with the consent of the Council to legislation, if it had not been forthcoming for two years. The Constitution (Amendment) Act 1978 changed the period by which the Council could delay the process to one year. In 2006 the process was notably simplified by the Constitution Act 2006 s.1(2), which allows the Keys to override the Council by a motion passed by a special majority of 17, rather than requiring the legislation to go through the legislative process repeatedly. The 2006 legislation will also make it much easier to identify attempts to exercise the over-ride.

The existence of the override process may, of course, have a subtle influence on the Council even when not invoked. But although the process under the 2006 Act has not been used before, it appears that this provision of the 1961 Act was used at least once, and on a further occasion was about to be used before the Council preferred to pass the Bill than have it passed without their involvement.

The first instance to come close to a Council over-ride was, interestingly, a Bill to change the composition of the Legislative Council. The Isle of Man Constitution (Amendment) Bill 1964 was introduced to remove the Second Deemster from the Council. The Bill had been rejected by the Council in two sessions, and was reintroduced to the Keys “pursuant” to s.10. In the third session, it was given all three readings in the Keys on the 27 October 1964, with the express intention that it then either be accepted by the Council, or become law in any case through the override provision. The Council eventually accepted it, but with considerable reluctance – the 5:3 majority included an Attorney-General who finished his contribution with “I heartily disagree with the matters proposed in the Bill. I am nevertheless glad in a way that the Bill has been passed so that it will not become law by default, and I beg to move that the Bill do pass.“. The Bill became the Isle of Man Constitution Amendment Act 1965.

The other example, which did result in a Council override, was in relation to the Licensing (Sunday Opening) Bill 1978, which became law as the Licensing (Sunday Trading) Act 1979. The Legislative Council explicitly took the final vote on the Bill, on 9 January 1979, knowing that if they did not pass it, the Bill would become law in any case. The Bill failed with a 4:5 split. There was an argument put that the Council should accede to the inevitable, but it did not convince, perhaps in part because it concerned the moral issue of drinking on Sunday. Mr Kneale, for instance strongly felt that “even though we know it is an academic exercise now that the Bill will go through, we should, if we feel that our opposition is right and justified, still maintain it”.

It definitely is unusual for the Keys to invoke this power, but it is not unprecedented. For it to be exercised once, albeit on a very significant constitutional issue, is interesting but does not necessarily constitute a trend. If the Keys begin to exercise this power consistently as a way to resolve differences with the Council, such a trend would be important.

On the 21^st of November 2017, Tynwald debated the Second Report of the Select Committee on the Functioning of Tynwald, debate having been delayed by illness. Tynwald was invited to approve a number of important recommendations, which I will strand into a number of categories.

Firstly, the composition and role of the Legislative Council. The Select Committee recommended a specific job description for MLCs (passed); that the President of Tynwald should be tasked with encouraging a wide range of candidates to the Legislative Council (passed); that MHKs should recuse themselves from elections to the Legislative Council if they are candidates (an amendment by Mr Ashford was passed by MHKs, but not by MLCs, so the resolution as a whole was held over to a combined vote in December, being passed at that point with Mr Ashford’s amendment); that any examination of the pay of MLCs should not result in an increase in the overall cost of Member’s remuneration, but should result in a level sufficient to allow everyone to serve, and attract a diverse collection of community members (passed). One issue in the composition of the Council, the role of the Lord Bishop, was left until the new incumbent had settled in, and the Archbishop of York had expressed his view. The Select Committee considered only minor changes to the place of the Bishop, categorised by Mr Skelly as “a bit light”. In response to an amendment from Mr Ashford requiring the Select Committee to make recommendations on the Bishop’s role and ability to vote in Tynwald, Mr Watterson saw this as already planned for the next report from the Select Committee. Despite this support, the amendment failed in the Legislative Council, despite being passed by the Keys.

The Speaker, Mr Watterson, moving the motion, noted that previous debate about the Legislative Council had been negative, and that it was important to focus on what the Legislative Council, particular a more diverse Legislative Council, could do in the future. A duty on the President to encourage diversity was part of this, but it was a theme that also found expression in the emphasis on MLCs being full-time officers whose remuneration should not limit it to the better off, and in consideration of the age requirement of MLC candidates. Diversity in Tynwald was a particular concern of members such as Mrs Poole-Wilson.

Secondly, and again concerning the Legislative Council, the Select Committee made a complex set of recommendations in relation to MLCs in executive roles. The Select Committee recommended that Tynwald should express the opinion that the Chief Minister should only appoint an MLC as a Minister in exceptional circumstances, and that these should be explained to Tynwald – not going as far as members such as Mrs Beecroft would have liked to have seen (passed). In relation to Departmental Members, the Select Committee put a menu of mutually exclusive options to Tynwald, ranging from excluding MLCs from being Departmental Members entirely, to no change to the current practice. Tynwald adopted the last, with the slight clarification proposed by Mr Harmer that MLCs should act as Departmental Members for only one Department.

The Speaker, moving the motion, acknowledged that the retention of Departmental Members was contrary to the recommendations of Lord Lisvane, who he argued had not properly understood the workings of a system which, on its face, raised serious concerns about the separation of powers. He noted that in a small legislature, the Departmental Member scheme could function as “an apprentice scheme where future Minsters can be tested in Government work”.

Thirdly, a number of broader constitutional reforms. This included a principle that the Government should not automatically have a majority in Tynwald or the House of Keys (passed); that the Standing Orders Committee should consider amendments to the Constitution Acts, particularly around the eligibility of candidates to stand for Tynwald (passed); that the method of electing the Chief Minister be referred to the Select Committee for report by February 2018 (passed, but overtaken by events); and that  each appropriation and taxation measure be based on a policy decision taken by Tynwald and the appropriation or taxation decision made by the House of Keys voting alone (failed).

More broadly, this debate had a number of interesting features.

Firstly, the structure of recommendations in relation to MLCs as Departmental Members was intended to simplify a complex decision where the Select Committee had not been clearly able to identify a consensus. As The Speaker said “We agreed that we would recommend the various options in the order of greatest change, taking the option for change which represents the most radical recommendation first, on the basis that if one option succeeds then all others fail immediately. This will reduce the need for tactical voting and reflect more straightforwardly the will of Tynwald”. This is an evolution of the approach the Speaker had taken to the motion which established the Select Committee, and helped structure a wide-ranging and complex debate.

Secondly, the debate made it clear that there were members who were in favour of a substantial, perhaps complete, adoption of the recommendations of the Lisvane Report, and who found the Report disappointing, or as Mr Shimmins, put it “woeful”. The Select Committee choose not to adopt some Lisvane recommendations, and developed recommendations of its own, leading Mr Cannan, as part of strong criticism of lack of change to the Departmental Member system, to categorise a shift of attention from the Lisvane Report to “what I, perhaps maybe slightly unfairly, would term the “Watterson Report””. Equally, other members such as Mr Boot found the Lisvane Report seriously lacking, particularly in relation to detailed understanding of the working of the system as a whole, and clearly welcomed scepticism over its value. Lord Lisvane made it clear that his recommendations could be adopted or rejected wholesale, although as I noted at the time there were considerable synergies between different recommendations. This is clearly the future of the Report – a toolkit for consideration, rather than a manifesto for major constitutional reform.

Thirdly, as the vote over the appointment of Chief Minister’s made clearer still, the focus of the current constitutional debate is on the role of MLCs in relation to the Executive; with the exception of the vote of the Lord Bishop, not in relation to its legislative work.

Responsible government came late to the Isle of Man. The landmark reforms of 1866, linked to the coming of democratic elections to the Isle of Man for the first time, were a long way from responsible government as understood in the British Empire of the mid-19^th century. Responsible government, based on the imperial governor exercising less authority, and a ministry responsible to the elected colonial assembly exercising more, was well established in Canada, New Zealand, and Australia by the mid-19^th century.  The Lieutenant-Governor of the Isle of Man, however, remained the dominant executive officer in the island until well into the 20^th century; only being replaced as chair of the Executive Council by a chairman elected by Tynwald in 1980, and since 1990 by the Chief Minister of the Council of Ministers. Today, the executive arm of the Manx government is led by the Chief Minister, who is elected by Tynwald in an open ballot. As noted elsewhere, the most recent appointment of the Chief Minister was decided by the (unelected) Legislative Council, following a failure to secure a majority for a single candidate in the vote of the House of Keys.

On 19^th December 2017, the House of Keys passed a motion on the Council of Ministers (Amendment) Bill 2016, sending the Bill to Tynwald under the Constitution Act 2006 s.1(2). This section of the Constitution Act allows a special majority of 17 of the 24 MHKs to bypass the Legislative Council, and the motion received exactly 17 votes. Mr Ashford stressed that the motion would allow the Bill to proceed for signature by the Keys in January, but no MHK was then obliged to sign it, raising the possibility that the Bill may fail to secure the 17 signatures needed in January. Given that the motion passed, despite a number of MHKs being absent (categorised by Mr Malarkey as supporters of the Bill), this seems unlikely.

The Bill provides that the Chief Minister can in future be appointed by at least 13 MHKs voting in the House of Keys, rather than by a majority of the members of Tynwald voting in Tynwald; and, as Dr Allinson stressed, allows the Keys alone  to decide whether to dissolve the Council of Ministers through a motion of no confidence.

This shifting of power from a Tynwald Court including Members of the Legislative Council to the directly-elected House of Keys is consistent with the recommendations of the Lisvane Review. Stressing the lack of a direct mandate for MLCs, Lord Lisvane had recommended that “MLCs should not vote on the appointment of the Chief Minister (and, as a corollary, not vote on a motion of no confidence” (p.34). The reform was not, however, portrayed as driven by the Lisvane Review. Mr Thomas, the sponsor of the motion, stressed that this change had already been unanimously passed by the House of Keys “before Lord Lisvane had even arrived in the Isle of Man … this initiative is an Isle of Man initiative initiated by a proud Manxman” (308 K135). Reform as a patriotic measure was also stressed by other supporters, including Mr Malarky and Ms Edge.

That is not to say, however, that the momentum created by the Lisvane Review was not acknowledged. Mr Thomas expressed concern that the recommendations of the Lisvane Report in general were “being strangled slowly”. Mr Thomas minimised the power of appeals to tradition, emphasising that the Council of Ministers system dated back only to 1990 – “it is hardly a longstanding tradition”. True, but the longstanding tradition that is being altered is the emphasis on Tynwald Court, as opposed to the House of Keys. Mrs Caine may have captured it better when, also making explicit reference to the Lisvane Review, she noted that “if approving this motion takes us one step further on the road to reforming the role of the Upper Chamber, that would be a bonus in my mind”. Mr Ashford saw the measure – I think accurately – as consistent with a shift of the members of the Legislative Council to a purely scrutiny role; a view other members echoed. Mr Cannan, who had originally moved the Bill, argued that the change would strengthen the position of the Legislative Council as a revising Chamber, “giving more credibility to their views on legislation unencumbered by any significant role in electing the Chief Minister”.

The current Chief Minister, Mr Quayle, opposed the motion. He felt that the Chief Minister needed to command the support of both the House of Keys and the Legislative Council. “We are not Westminster, we are not Jersey, we are not Ireland, where obviously the House of Commons vote for the chief minister; we are a small jurisdiction. We have been going now for over a thousand years, and I believe having the support of both areas will help a Chief Minister, whoever they are, going forward”. Mr Quayle saw the balance of power as already lying with the Keys, and thought that the Select Committee on the Functioning of Tynwald should report before any change was made. He also stressed that recent changes to the voting process, where the Keys voted first, then the Council, and both votes are public, had dealt with the problem “it is not that the votes of the Legislative Council can overturn the majority because no one knows what they were anymore”. Mr Ashford pointed out that, if the Legislative Council were bound to vote in lines with the majority of the MHKs (clearly not a formal legal rule), “then it makes no difference whether they vote to begin with or not”.

Mr Boot pointed out that the change in appointment of the Chief Minister will result in fewer individuals voting on the appointment of the Chief Minister, which he categorised as “concentrating the power into fewer hands – it does not seem very democratic to me – within our Parliamentary process”. Mr Malarkey robustly rejected this categorisation – “it is 24 votes who have the mandate of the people behind them”.  When, as seems likely, this Bill becomes law, we will have seen a significant constitutional change which emphasises the centrality of the  directly elected House of Keys to the Manx constitution. 2018 is likely to be an exciting year for Manx constitutional reform – given the mood of the Keys in this most recent debate, it may be a year of significant change in relation to the Legislative Council. A key question Tynwald will need to resolve is how to weigh the benefits of shifting power more clearly to democratically elected representatives, and the consequences of focusing power in such representatives.

 

 

In Fortean Times 359, Dr Jacob Middleton discusses the lingering impact of belief in witchcraft into the 19th century. In particular, he discusses witch-bleeding: “This practice involved drawing the blood of a supposed witch as a means of dispelling her magical power”.  In the Isle of Man before the first Criminal Code of 1817, this belief had legal potency.

Manx customary law had the doctrine of “bloodwipe” (earlier bloodwite), where drawing blood from a victim was punished by a set fine. The Bystander’s Case of 1581 is recorded in Liber Placitorum (one of the sets of court records of the Manx courts). In that case it was found that bloodwipe was to be excused if the victim had used witchcraft against the defendant, and had spilt their blood in order to cancel the enchantment.

Bloodwipe, and its witch bleeding defence, survived until the first Manx Criminal Code of 1817.

In another very long session, Tynwald Court returned to the process of considering matters raised by the Lisvane Review on 18 July 2017, now available on rolling hansard.

The most significant development was discussion of the First Interim Report of the Select Committee on the Functioning of Tynwald – Remit and Work Plan. This report sought to inform Tynwald and members of the remit of the Select Committee, set out a general plan of work, and request “a modest change to our remit”. In particular the Select Committee asked for the authority to consider whether MLCs should be able to vote on the appointment of the Chief Minister, whether the Lord Bishop should retain his vote, whether a sitting MHK should be eligible to be nominated as an MLC, and a number of changes to the draft Bill procedure. The Select Committee took as part of its remit that they should accept in principle that MLCs should not vote on measures exclusively on taxation or appropriation, that MLCs should not be Ministers other than in exceptional circumstances, and that the Bishop should remain a MLC.

The report was only briefly debated. Mr Hooper focussed on two points where he felt that a majority of members of Tynwald were in agreement: that the Bishop should lose his vote, and that MLCs should be prohibited from voting on the Chief Minister. Mr Robertshaw, who had supported the loss of the Bishop’s vote, on reflection felt that the issue needed to go to the Committee. The motion was accepted by 23 to 1 in the Keys, and unanimously by the Council.

Debate may have been so brief because of two very specific motions moved by Mr Hooper further down the agenda.

He moved that Tynwald direct the Select Committee that the Bishop should not retain his vote, and that the Select Committee should consider ways to implement this change: in other words, moving the issue of the loss of the vote from the consider in principle, to the consider implementation section of the Select Committee remit (see my earlier post). Mr Hooper’s principal argument was that the Keys were already convinced that the Bishop should no longer vote, and that as the democratically elected chamber, their judgment should prevail. Mr Malarkey countered that it had been made very clear to past Chief Ministers that if the Bishop lost his vote, the Bishopric would be abolished. Mr Corkish agreed, but further reemphasised his view of the distinctive voice of the Bishop in Tynwald (“and the Bishop cometh free”). Mr Shimmins reemphasised the parallel with the Attorney General as a non-voting member, and was prepared to accept the loss of the Bishopric if that followed from the loss of the vote. Mrs Beecroft drew a sharp distinction between the Bishop’s voice – which she valued – and his vote, which she thought was inappropriate. The Chief Minister, and Mr Cregeen, both emphasised the value of religion and morality in Tynwald.

Mr Hooper then quoted my Law and Religion blog entry on last months debate, and in particular the possible parallels with Jersey, as indicating that losing the vote would not necessarily result in losing the ecclesiastical officer, although Mr Corkish interjected that “No, it is different”, perhaps giving more emphasis to the difference between a Bishopric and a Deanery. The motion was lost in both the Keys (10 to 13) and the Council (2 to 6).

His second motion would have made a similar change in relation to the Legislative Council voting for the Chief Minister – again, moving it from discussion of principal to implementation. Debate was briefer, and the motion was firmly passed by the Keys (17 to 6), but not by the Council (2 to 6), so the motion failed to carry.

So the Select Committee remit will now extend to whether the Bishop should retain his vote, but not whether he should retain his seat. The Select Committee will report back on this as a matter of principle. Additionally, the Select Committee will report back on the principle of MLCs involvement in appointment of a Chief Minister – despite a clear majority of MHKs clearly supporting the principle, and wishing the Select Committee to move to implementation.

Tynwald had its first debate of the Lisvane Review last week, on the 20^th of June 2017. It was a long debate, culminating in a long sequence of formal votes and divisions. The end result is that some Lisvane proposals have been left in abeyance, with others to be considered by a Select Committee tasked to report on changes required for their implementation (Part A); or to give further consideration as to their merits (Part B). The Committee will be reporting back on the Legislative Council by October 2017, and other elements by December 2017. Tynwald has now made the first transcript of the debate available through their invaluable Rolling Hansard, and I had five initial thoughts on rereading the debate.

First, constitution making, or extensive revision, is really, really, difficult. It is a common courtesy for legislators to praise the standard of a debate, but having studied Manx legislative debates back some way, I was struck by the quality of this debate. In particular, there was a marked absence of the deference towards UK models sometimes found in Tynwald debates in the past. Approaches drawn from Westminster to common problems are of interest, but first there needs to be an agreement that the problems are common, and even then a Westminster solution is only one of a number that Tynwald might choose to follow. Some commentators have seen the outcome of the debate as a classic way to kill reform: my view is that this was a sensible way to progress reform, but of course we will have to see what comes out of the debates later in the year.

Second, the idea of having a Nominations Commission with a strong role in the appointment to the Legislative Council in future proved very controversial. It appealed neither to supporters of radical reform such as some form of direct election to the Council, nor to more conservative members who would look for a modest refinement of a system which kept the authority in the hands of the (elected) MHKs. The Nominations Commission was put forward to Part B of the remit of the Select Committee, but  failed to secure a majority in either the Keys or the Council, although it did tie in the Keys. Neither did the idea of such a Commission being under a duty to increase diversity in the Legislative Council make it into Part B. It is of course possible that this part of Lisvane will be returned to, but at the moment it seems unlikely that a Nominations Commission approach to the Council has any real traction. At most, it may end up being considered as a non-exclusive way of bringing more candidates forward for consideration by the Keys.

Third, the place of the Lord Bishop also came into question, with a number of members supporting a voice not a vote, drawing an analogy with the Attorney but not, although it is perhaps more apt, the Dean of Jersey. This is a topic I have a particular interest in, and a guest blog on Law & Religion will be appearing this week.  In formal terms, the outcome of the debate was that a statement that the Bishop should remain in the Council was put into Part A, while a proposal that “the Bishop should not retain his vote” failed to be referred to the Select Committee.  The latter was carried by the Keys by a majority of 15 to 9, but rejected by the Council by a majority of 5 to 2. Given the dominance of the elected Keys in Tynwald, there is a real medium-term possibility of the Bishop remaining on the Legislative Council, but losing his vote.

Fourth, the dominant theme emerging from the debate – with more focus I felt than from Lisvane itself – was the position of the Council. What is it for, how is it composed, how does it interact with the Keys, how does it relate to the executive? In particular, the debate (and indeed recent events in the Island) highlight the important ways that MLCs have power beyond being part of a revising chamber.  It would not be surprising to see this become the centre of gravity of any immediate proposals for reform, with other reforms being consequent to changes or clarifications of the Legislative Council’s place in the Manx Constitution. This is very much a continuance of a national discussion dating back to before 1917.

Finally, the call for Tynwald to address the need to make its membership more diverse was put into Part A by a considerable majority, despite limited discussion. There was recognition of how difficult it was to identify concrete steps towards this desired goal, although a number of members made it clear that they rejected positive discrimination (which was not, interestingly, at any point proposed by Lord Lisvane). Along with some members of Tynwald, I think that diversity is the area where Lord Lisvane had the least to say about means rather than end. The Select Committee could look to measures being discussed in neighbouring islands, but will face the fundamental challenge that some of the mechanisms adopted elsewhere depend upon a party system, a mechanism which has much less traction on the Island.

Oxford Brookes University is pleased to offer a full-time PhD Studentship in the Faculty of Humanities and Social Sciences, starting in September 2017.  Applications are invited for a PhD Studentship in Regulating the financial abuse of religious capital. The supervisory team will be led by Prof Peter Edge. This proposed PhD project seeks to address the application of general criminal and civil law doctrines of fraud, and civil law doctrines of undue influence, to the exercise of religious power.  A full project description will be included in the application pack.

The successful candidate will receive an annual payment of £16,000 as a stipend towards living expenses for a maximum of three years.

Home/EU fees will be covered by the School for a maximum of three years. The studentships are open to both Home/EU and International students. However, owing to the funding available, awards will be funded at the level of Home/EU research degree fees. Therefore International applicants should be aware that they would need to fund the difference between the Home/EU and International research degree fees each year. Please note that all fees rise by approximately 4% each year.

Please see this page for information on current International fees: http://www.brookes.ac.uk/studying-at-brookes/finance/postgraduate-finance—international-students/research-degree-fees-for-international-students/

Information on current Home/EU fees: http://www.brookes.ac.uk/studying-at-brookes/finance/postgraduate-finance—uk-and-eu-students/research-degree-fees/

As a successful applicant, you will join a supportive and research-active Department.  For more information on the School of Law visit http://www.brookes.ac.uk/school-of-law/

 

Eligibility: We are looking to recruit a candidate of the highest quality and who is capable of submitting a Ph.D. thesis within 3 years. Applicants are expected to have completed a relevant Masters degree prior to the Studentship start date. The Studentship holder may also be required to complete supplementary research methods training in their first year of study. Applicants should also be able to demonstrate strong research capabilities and be fluent in spoken and written English.

 

Applicants are strongly encouraged to contact the Director of Studies (pwedge@brookes.ac.uk) prior to making an application.

 

Deadline: The closing date for applications is 13.00 on Tuesday 21^st February 2017.

 

Interview date: Interviews will be held as soon as possible after the deadline.

 

Start date: 18^th September 2017

 

How to apply: To request an application pack, a project description and for further details of how to apply, please contact hss-researchdegrees@brookes.ac.uk

 

Please specify which studentship you are applying for by quoting the following in the subject heading:  HSS001, Edge/Vickers

Turkey’s Prime Minister has today withdrawn legislation which would have pardoned men convicted of sex with underage girls if they married them. The Manx penal code, for at least two hundred and fifty years, took an even more controversial stance.

As in England, Manx customary law defined rape as the ravishment of a female against her will. Rape was felony, and so would have been expected to carry the penalty of death by hanging. The punishment, and the procedure by which punishment was determined, was, however, unique. Where both the offender and the victim were unmarried (Whaltrough (1552) Q.P.), and presumably not barred from marriage by consanguinity,  punishment was chosen by the victim. She was presented by the judge of the court with a sword, a rope, and a ring. These items were passed to her by the state official normally responsible for passing sentence, and with them passed the power to dispose of the felon. She could choose whether to hang him with the rope, cut off his head with the sword, or marry him with the ring (Customary Laws (no.2) 1577 s.15). To gloss slightly, this procedure carried with it two forms of capital punishment, and decapitation was unusual in Manx law. It may be we are seeing a remnant of an execution, castration, marriage choice.

Although the concept of marriage as a punishment for rape can be found in the practice of early English and European courts, and in particular in the Scots Statute of Keneth of 834, the implementation was uniquely Manx. The customary procedure survived very late, until the modernisation of Manx law carried out by the Criminal Code 1817 replaced it with a felony punishment in line with English law.

I am not aware of any instance when the victim chose so that their rapist suffered the normal penalties for felony. Given the small size of the Manx community, the pressure on the victim to spare the life of their attacker must have been very considerable.