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 Parliament, well within the conventional restraints on its legislative coordinancy, could have repealed the Act of Tynwald itself, regardless of the wishes of Tynwald, to bring Manx law into alignment with the ECHR. Tynwald could have repealed the offending Act itself.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.

Every six months I check the UK National Archives for newly released files on the Isle of Man, and post a list of potentially interesting new releases. Many are not digitised, which can be frustrating for Isle of Man readers who cannot easily access the NRO at Kew. So my reading of HO/44/23331 was by special request!

In 1947 the Lieutenant-Governor of Jersey raised with the Home Office the signage for his official car, and as an aside, his letter heads. This was because in the aftermath of World War Two the Lieutenant-Governors of Jersey and Guernsey represented the War Office in the Channel Islands as Commander-in-Chief, and so had been entitled to a military car. It had “not been the practice in the Isle of Man to use a representation of the Royal Crown on the Lieutenant-Governors letter paper and official car”.(Lieutenant-Governor Bromet to Strutt, 10/2/1947).

All three Islands sought guidance on how to proceed. Interestingly, in seeking to advise the Islands’ Lieutenant-Governors on the signage and heraldry issues, the Home Office looked to Northern Ireland. The Governor of Northern Ireland, the 4th Earl Granville, had a car with a disc affixed to it with the Royal Crown, illuminated at night; the Governor’s standard on the bonnet, and no number plates. The Islands were happy to have models of the stationery used in Northern Ireland, but were less convinced by the official car. The Lieutenant-Governor of Jersey dryly declined a crest illuminated at night: “I am very doubtful I could live up an illuminated Crown over the car at night, and this might terrify the natives” (Lieutenant-Governor Grasett to Strutte, 12/2/1947).

In the end, the Home Office decided that there was no universal practice in relation to the use by Lieutenant-Governors, of the Royal Crown on cars and stationery and left it to individual discretion.

When I carry out archival work into Manx constitutional issues at the National Archives in Kew, I normally have a fair idea what I might find. In my latest visit, there was a surprise waiting for me.

PRO 85/2426, which was opened in May 2024, is described in the National Archives catalog as “Records administration policy: relations with outside bodies and persons, United Kingdom; Isle of Man Public Records Office”. Given the dates of the file, I was anticipating some reflection on how the Public Records Act 1999, then at a draft stage, would interact with the UK Public Records Office. There was some discussion of this, but the file began with Lieutenant Governor Sir Timothy Daunt reaching out to the PRO with some concerns, in a letter dated 19/11/1997. This resulted in irritation by the Home Office, who did not appreciate the Lieutenant-Governor dealing directly with other parts of the UK administration, and eventually some reflections on the Bill.

What was a surprise, however. was a list that Sir Timothy had attached to his letter to the PRO. One of his concerns at the Manx Bill was that documents in his keeping might thereby enter the public domain. He sought guidance from the PRO on this, and to help them think through the issues attached a list of “potentially sensitive papers” held in Government House. The complete list is:

• Home Office War Book.
• Report on the Operation of the Prevention of Terrorism (Temporary Provisions) Act 1993 by JJ Rowe QC. [I would note that this appears to be in relation to the UK level Prevention of Terrorism reviews carried out annually, some of which were carried out by JJ Rowe. His name does not appear in Tynwald Hansard.]
• Correspondence with the Home Office on arrangements for positive vetting.
• Notes fo the Chief Officers of Police on Personnel Security, issued by the Home Office in 1986.
• Home Office briefs for visits by Home Office Ministers to the Isle of Man.
• Correspondence 1986-1988 between the Home Secretary and the Lieutenant-Governor about particular intercepts [under what I assume to be the UK Interception of Communications Act 1985, .as the Manx equivalent (which gave the main role to the Chief Minister) was not passed until 1988].
• Correspondence between the Home Office and the Lieutenant-Governor on “nationalist” issues. Sir Timothy gives as an example, “Anthems”., with a Home Office reference of CIM/881/1/1 of 14 August 1995).
• Correspondence (some manuscript) 1982-1990 on the liquidation of the Savings and Investment Bank Ltd and appointment of a Commission of inquiry. Sir Timothy notes “some evidently not also in IOM Government Dept papers”.
• Correspondence on the Royal Warrant, May 1981 (with a Home Office reference of CIM 415/2/1). [My assumption is that this is discussion of the Royal Warrant of Appointment, granted as a mark of recognition of people or companies who have regularly supplied goods or services to the Royal Household].
• Correspondence on the exercise of the prerogative of mercy, January to April 1983 (with a Home Office reference of CIM/81 430/15/1). [Stephen Moore was convicted of murder and sentenced to death on 1st December 1982, and had his appeal dismissed on 18th February 1983, so it would seem likely the correspondence concerned his case].
• Correspondence on fisheries jurisdiction from 1983 (e.g. Home Office reference CIM/82 451/1/6), of which Sir Timothy notes “much but not all passed on to Executive Council”.
• Correspondence on payment of costs of an anti-PIRA operation between July and October 1988. [This was a period of substantial PIRA activity in both Northern Ireland and Britain, but I was unaware of any Manx operation]
• Correspondence including the Lieutenant-Governor’s views on politics and personalities. Sir Timothy gives as an example a letter from Sir Laurence New to the Secretary of State, 25 July 1990.
• Reports and recommendations on constitutional and political matters. He cites as an example his own letter of 30 July 1997.
• Correspondence concerning honors and awards which included “recommendations, confidential assessments (some negative”).
• Correspondence concerning “possible liability (and reputations) of Parliamentarians and officials in the collapse of the Savings and Investment Bank Limited”.

Although not his intention, Sir Timothy has provided a number of leads for future research. If you may be interested in carrying out Master’s level research on any of these, please drop me a line.

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.

After debating the Bill on the 23^rd and 30^th April 2024, the Bill to remove the vote from the Lord Bishop, while retaining her place on the Legislative Council in Tynwald, passed the third reading in the House of Keys by 14 votes to 9. It will begin its consideration by the Legislative Council on the 11^th of June 2024.

It is not necessarily going to be passed by the Council. The view of the Keys was to some extent presaged by the grant of permission to initiate this Private Bill – a consent required only by the chamber in which the Bill is introduced. In that vote, a bare majority of 13 MHKs gave permission for the Bill to be introduced, with 11 against. As might be expected, changes in position on this simply drafted Bill were marginal. Mr Cannan, who had voted against introducing the Bill, was absent for the third reading vote. Mr Johnston, who had voted against introducing the Bill, supported it at the third reading.

The closest presaging for the Legislative Council is the 2018 vote in Tynwald on the Third Report of the Select Committee of Tynwald. This Report recommended that the Lord Bishop should retain both a seat, and a vote, in the Legislative Council and Tynwald. An amendment which would have proposed removing the vote, but not the seat, was rejected 11 to 13 by the Keys, and 3 to 5 by the Council. In the 2018 Council, Mr Cretney, Mrs Poole-Wilson and Mr Turner supported removing the vote; while Mr Anderson, Mr Coleman, Mr Corkish, Mr Crookall and Mr Henderson did not. The Lord Bishop was present at the sitting, voted on earlier business, and spoke on this issue; but had left the chamber before this vote was called. Apart from perhaps setting a precedent for the conduct of the new Lord Bishop, if a member of the Legislative Council while removal of her vote is under consideration, this is not very useful. Of the 2018 Council, none of those who supported removing the vote remain in June 2024; while only Mr Henderson remains of those who opposed this change.

Nonetheless, the Council may reject this change. Can the House of Keys override such a rejection?

The short answer is yes. If the Legislative Council has not passed a Bill within 12 sitting months of it being sent to the Keys (for the details of the timing, see the Constitution Act 2006 s.1(1)), the Keys may pass a motion by a special majority of 17 of the 24, which means that the consent of the Legislative Council is not needed for the Bill, either as a separate Branch or in Tynwald Court.

It is striking that, since 1961, the legal powers of the Keys to override the Council and have legislation passed without the Council’s consent have tended to focus on constitutional issues. Before 2006, the Council would make a final vote on a piece of legislation knowing that the Keys had overridden it, and we see this knowledge leading the Council to pass legislation it did not support – most clearly in relation to the Isle of Man Constitution Amendment Act 1965. In 2017 the post-2006 override, which did not allow this, was used to pass the Council of Ministers (Amendment) Act 2018, which removed the Legislative Council from the appointment and removal of the Council of Ministers.

So we have precedents of the Council refusing to pass a piece of legislation affecting the composition and powers of itself, and then the override being either used or bound to be used, by the Keys to override this objection. I think this has two implications.

Firstly, the way the override works gives priority to the directly elected Keys, but allows the Council both to delay (for around 12 months) and to require a special majority to proceed without their consent. Members of the Council who objected to the content of this Bill might, if the Council had an absolute veto, have acquiesced to it rather than block the democratically elected Keys. They may feel more justified in rejecting a constitutional Bill from the Keys on the basis that it should be reflected upon and, given it does not command support in the Council, requires a special majority.

Secondly, if the Bill is rejected, the override allows the Keys, after a statutory period of reflection, to proceed with the legislation alone, following a motion with the support of 17 MHKs. The 14 MHKs who voted in favour of the Bill passing the Keys is some way short of this supermajority. Does this mean the Bill will fail if rejected by the Council? Possibly, but another possibility is that three MHKs who were against the Bill might support the override on constitutional grounds: that is, thinking it right that the Council should be able to delay and demand further reflection by the Keys on this sort of legislation, but also thinking that the will of the majority of the Keys should prevail.

It is not perhaps the most likely outcome, but if we do have the Bill become law through use of the Keys’ override, it should be viewed as bicameralism working through different parts of Tynwald exercising their duties conscientiously; rather than as conflict and a failure in the legislative process.

Introduction.

The report of the House of Keys Committee on the Assisted Dying Bill has been published, before its consideration in the Keys. The Committee takes the principles of the Bill as set, but then considers whether the clauses might be changed in order to better embody those principles.

This blog has covered the progress of the Assisted Dying Bill through Tynwald a number of times.

In December 2023, I summarised the key provisions of the Bill, noting the provision against forfeiture and the reach of the current criminal offences; the prohibition on medical professionals initiating discussion of assisted dying; the role of Tynwald; and the strong medicalisation, rather than legislation of the process putting doctors at the centre of the regime. These are all returned to in the evidence considered by the Committee. In the same blog, I suggested three issues that needed to be considered in relation to the Isle of Man as a small democracy – death tourism and death residency; the capacity of the Manx health care system, particularly in the context of what may be a high rate of conscientious objection; and the UK regulation of professionals operating in the Manx jurisdiction.   

In this blog, I am joined by Brookes colleague Dr Achas Burin, whose research interests include medical law. Together, we are commenting on four particularly significant aspects of the Committee Report: the residency requirement; assisted dying as healthcare; conscientious objection; and the place of terminal illness in the proposed regime.

Residency requirement.

One of the concerns over access to assisted dying in the Isle of Man when it was not available in large neighbours was “death tourism”, or perhaps more accurately “suicide travel” – that is, would-be users of this form of healthcare travelling to the Isle of Man purely in order to become eligible to access it.

Why, given the Isle of Man welcomes other forms of tourism, is death tourism a problem? We think there are four, interconnected, reasons why this has been an unusually  significant concern in Manx debates. Firstly, travel to the Isle of Man is unusually easy for residents of jurisdictions covered by the Common Travel Area Agreement. The combined population of the rest of the Common Travel Area is substantially more than 70 million people, as opposed to the Manx population of substantially under 100,000. A Manx service could easily become one whose principal users were non-Manx residents. Secondly, because the Bill is not a government Bill – indeed is one which the Chief Minister is opposed to, for instance voting against it receiving a Second Reading in October 2023 – the details of how assisted dying would be resourced are not clear. Would it be provided by the state, or as private health care, or a mix? How would it be accommodated by reciprocal health care arrangements, particularly that with the UK? Even if assisted dying was not covered by Manx public revenues, would non-assisted dying treatment of terminally ill people become a significant burden on the limited capacity of Manx health care? Thirdly, the Isle of Man could develop an international brand as a “death island”. This is perhaps a bigger concern in a small democracy than in a larger one. Switzerland is known for its assisted dying regime, but it is known for many other things besides. The Isle of Man brand may be more fragile. Finally, opponents of assisted dying per se may be particularly disturbed to see the Isle of Man acting as an exporter of assisted dying services.  Someone who is opposed to assisted dying because they are concerned that vulnerable people could be pressured into it, for instance, may see assisted dying as something the Isle of Man should not be involved in.

If the mischief is people coming to the Isle of Man in order to access the assisted dying regime, then this is a demanding thing to determine for a particular terminally ill individual. This is particularly so under the Manx model, where the decisions as to eligibility to access the regime are made by doctors, rather than by say judicial figures. The Isle of Man Medical Society suggested that this was “definitely not a doctor’s role”, although status is already being determined for non-emergency treatment. The Bill does not mention intention in becoming resident, but instead requires that the patient be ordinarily resident for one year before they apply to access assisted dying. Doctors would still need to determine when the patient had become ordinarily resident in the Isle of Man, but once this was done, the rest of assessing the patient against the residency requirement is straightforward.

As Peter suggested earlier, the term “ordinarily resident” would not be an innovation of this Bill. It is the language used in the Abortion Reform Act 2019, which limits abortion services to patients who are ordinarily resident, except in case of emergency. It has been subject to interpretation by the Manx courts, and Peter argued earlier that it would not exclude those moving to the Isle of Man intending to live on the Isle of Man until death, even those whose move is motivated by wishing to access assisted dying. For doctors, the clock is likely to begin ticking when the patient takes up “abode in [the Isle of Man] which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being”. The Committee has, however, suggested that a further definition of “ordinarily resident” could be added, perhaps in the secondary legislation following the Bill (para.29). 

“Ordinarily resident” may be a way of avoiding death tourism, but this in itself does not prevent individuals becoming resident in the Isle of Man in order to access assisted dying – what Kate Lord-Brennan MHK described as “death residency”. This is addressed by the requirement of a period of residency before the assisted dying regime can be accessed.

The original Bill had a residency period of one year, but the Committee has recommended that this should be increased to five years. The Committee referred to reservations around the one-year period, and noted that a five-year period would be in line with other residency requirements, “such as the Isle of Man residential condition regarding Social Security” (para.28). Five years was proposed by a number of those giving evidence to the Committee (for instance Rob Callister MHK, pp.57-59; Andrew Smith MHK, pp.81-85), and the Speaker questioned whether the residency period should be aligned with the five year requirement for Social Care (pp.105-108). Unfortunately, however, the Committee is not explicit on why one year is insufficient, but five years would be sufficient.

How does a five-year residency requirement compare with other jurisdictions? In Australia, all six states have passed assisted dying laws, and all have state (rather than national) residency requirements – twelve months for Victoria, Western Australia, South Australia, New South Wales, and Queensland; and twelve “continuous months” for Tasmania. In an excellent open-access article published in 2022, Del Villar and Simpson review residence requirements in the particular context of the cross-state guarantees of the Australian Constitution. They discuss the courts’ approach to residence requirements for assisted dying – although the regimes are new, cases on this issue have already begun to appear. They also review assisted dying regimes outside Australia, concluding that residence requirements are virtually unknown in Europe; while residence requirements are the norm in North America. In neither group, however, is there a requirement for a minimum period of residence. The nearest is Spain, where although Spanish nationals and legal residents have no minimum period of residence, non-nationals who are not legally resident in Spain need to have a certificate of registration in Spanish territory greater than twelve months.

The difficulty with a period of residency as a surrogate for intention when becoming resident is that shorter periods may be planned around by those moving purely to access Manx assisted dying; while longer periods could exclude access to Manx assisted dying for individuals who move to the Isle of Man with no thought of accessing assisted dying, but later become terminally ill. If this occurs say three years after their move, then, although access to assisted dying did not influence their decision to become ordinarily resident, they would be excluded from an assisted dying regime requiring five years residence. One of the Australian regimes, that of Queensland, has an exemption to the requirement to be “ordinarily resident in Queensland for at least 12 months immediately before the person makes the first request” (Voluntary Assisted Dying Act 2021, 11(1)). Under section 12, a person may apply to the chief executive for an exemption, and it must be granted if “the person has a substantial connection to Queensland” and “there are compassionate grounds for granting the exemption”.

Assisted Dying as Healthcare.

The Bill adopts a framing through which assisted dying is “medicalised.” Some of the ways in which it does this have been outlined in a previous blog post. This post will not repeat those points but rather analyse how respondents perceived the Bill’s framing. The contrasting viewpoints are well illustrated by comparing two quotations:

“At the outset, a question we would raise is why the Bill has medicalised the ultimate mechanism for determining whether the conditions are met, for registered medical practitioners to provide assistance to a patient to end their own life.” (p.200)

versus

“I feel strongly the autonomy of the individual, appropriately attended, advised by health professionals, witnessed etc., should be adequate. It is a health not a legal matter.” (p.63)

First off, let us contextualise these complaints. This is not the first time that concerns about “medicalisation” have been raised in the context of decriminalising controversial medical procedures. Similar concerns were raised about abortion in the context of the English Abortion Act 1967, which also started life as a Private Members Bill.

Like the Assisted Dying Bill, the English abortion legislation proceeded by establishing that no criminal offence is committed when abortions are provided after two doctors conclude that the patient falls within eligibility criteria laid down by the Act. (The Manx Abortion Reform Act 2019 requires just one, not two, doctors.) This approach has been criticised as placing too much decision-making power in the hands of doctors, and failing adequately to protect mother and/or foetus. On the other hand, the English approach has been praised for privatising a highly sensitive personal decision that should not be subject to public scrutiny in an adversarial forum, such as a court or legislative debating chamber, on an issue that is societally very divisive. The English approach “de-politicises” the issue compared to other jurisdictions like the United States of America – at least until new ground has been broken and the practice has become accepted within society.

If we reject “medicalisation”, we must ask a follow-up question of who should ultimately make decisions, if not doctors acting in concert with patients. Rob Callister MHK put forward a draft amendment whereby assisted dying would be subject to first obtaining the consent of the High Court (p.59; see also the submissions of the Medical Defence Union and contrast the views of Daphne Caine MHK, both quoted immediately above). The Committee rejected this as impractical bearing in mind the effect it would have on the workings of the court and the distress to patients who are already terminally ill. The Committee envisaged that disagreements as to eligibility should not come before a court unless there was concern that a criminal offence were being committed. It said that: “Where a family member does not concur with the decision of the individual […] the Committee considers that this a matter of personal autonomy, and it would be inappropriate for one person to be able to control the decision of another.” (p.24)

It would not be better to “judicialise” rather than “medicalise” assisted dying, given attendant risks of adversarialism and the burden on patients and courts. Furthermore, much like “medicalisation”, “judicialisation” tends to be a transitional measure – i.e. adopted until new practices become accepted and entrenched in society. To support this point, consider the analogous experience of families in England who wished to discontinue the life support treatment provided to their loved one. Unlike assisted dying, withdrawal of treatment is not unlawful provided that the patient wants it or a best interests assessment supports it (for those who lack capacity), and proper procedures and professional guidance are followed. Withdrawal of treatment can include removing artificial ventilation and/or clinically assisted nutrition and hydration and/or medication such as antibiotics. 

Initially, it was common practice to apply to court before discontinuing treatment. In the case of Bland [1993] AC 789, which authorised the cessation of treatment to a patient in a persistent vegetative state, the House of Lords ruling suggested that it was good practice to apply to court beforehand. However, the requirement was expressed to be transitional. It was:

“​​directed to the protection of patients, the protection of doctors, the reassurance of patients’ families and the reassurance of the public. […] It may very well be that with the passage of time a body of experience and practice will build up which will obviate the need for application in every case…” (pp.859, 873)

However, in the present day, the UK Supreme Court has confirmed that that body of experience has built up. It is lawful without a court order to withdraw life-prolonging treatment from patients despite their lacking capacity either where they have made an advance decision or where this is in their best interests (e.g. they are unlikely to regain consciousness). The patient themselves may have specified this in an advance decision (known colloquially as a ‘living will’), at a prior point in time before they lost capacity, which bears similarity to a declaration under the Assisted Dying Bill. Alternatively, a physician may have made a determination in their best interests. The Supreme Court has clarified that there is no need for doctors to obtain a court order before withdrawing treatment, unless there is some uncertainty or disagreement among family members or between family members and doctors (see the case of An NHS Trust v Y; Re Y [2018] UKSC 46). Thus, as things stand, it is no longer routine in England & Wales to apply to court before withdrawing treatment – and it never has been the practice where there exists a valid advance decision. Given this, it is perhaps anomalous that recent Westminster debates on assisted dying (which closely resemble the Manx Bill) proposed judicial oversight.

What about the Committee’s objection about the distress that the court process might engender? Empirical research carried out by Kitzinger and Kitzinger, now available open access, captures families’ experiences of using the court process for approving withdrawal of treatment. They recommended that court approval should no longer be required, after interviewing families who had been through the process. Whilst some people experienced the input of the court as a helpful sharing of “the ‘momentous’ life-and-death decision” (ibid, p.10), there were also negative emotions associated with the court’s involvement. Among these were anger and exhaustion “at the amount of time and effort” that goes into preparing for litigation, delays in the court process, and anxiety at the adversarial nature of the court process (ibid, p.11). Given this, there is merit in the Committee’s rejection of “judicialisation” on the grounds of impact on patients and the courts. Further, it might well be argued that assisted dying declarations are more like ‘living wills’ where, even under present practice, judicial oversight is normally absent.

This research also casts doubt on the wisdom of prohibiting doctors from initiating discussion of assisted dying. All the research participants had had to instigate the discussion themselves, with one mother complaining that it took several months for her letter to even be acknowledged (ibid, p.13). It is noteworthy that the Royal College of Nursing, the BMA and the IOMMS objected to the prohibition in their submissions (see pp. 111, 20, 52). The Committee recommended that cl.9 be redrafted, and that the DHSC should provide guidance and training to all healthcare professionals so that they are able to discuss the entire range of palliative care options with a patient including the provision of assisted dying (p.54). This brings assisted dying into line with other types of medical treatments. If assisted dying is to be “medicalised”, it is at least worth doing so consistently.

Conscientious objection.

One issue that arises across different areas of law is whether, and how, to accommodate objections by individuals who would otherwise be required to act in a particular way. The relevant clause here was cl.8 of the Bill: “A person shall not be under any duty (whether by contract or arising from any statutory or other legal requirement) to participate in anything authorised by this Act to which that person has a conscientious objection”. Peter covered the proposed conscientious objection clause in an earlier blog post. To begin by recapping points made in the earlier blog post, but revisited in evidence before the Committee:

This clause is not limited to medical professionals, or to direct delivery of healthcare. The Committee noted a submission by the Royal College of Nursing that the Bill should give nursing staff a right to object to exercising functions associated with assisted dying (para.48). The RCN was, however comfortable that the current clause “would give nursing staff the right to object to taking part in any activities related to assisted dying” (Appendix 13). It is notably wider in terms of who can claim conscientious objection than other conscientious objection clauses such as that in the Abortion Act.

The clause does not create a duty to refer the patient elsewhere. In Manx abortion law, a conscientiously objecting medical professional is required to “without delay inform the woman who requests abortion services that she has a right to see another relevant professional or pharmacist (as the case requires); and … ensure she has sufficient information to enable her to exercise [this] right” (Abortion Reform Act 2019 s.8(5)). In her evidence, Jane Poole-Wilson MHK, writing in support of BMA evidence which stressed the need of patients to be able to access information about assisted dying regardless of their doctor’s views,  recommended “that all health professionals, irrespective of personal belief/willingness to participate should inform patients who approach them about assisted dying, where they can access information” (Appendix 10). The Committee noted this, but neither adopted it nor rejected it. It seems likely to be returned to in the full debate.

The clause protects those in employment from being dismissed, by redefining their duties as an employee to exclude activities covered by their conscientious objection. It does not, however, protect objecting individuals during the recruitment process. As Peter discussed earlier, it is open to an employer to select a candidate who does not anticipate using this clause over a candidate who does. The Medical and Dental Defence Union Scotland (MDDUS) was “pleased to note that the bill includes the opportunity for individuals to exercise conscientious objection. We would be further reassured if there were additional provisions to ensure that the exercise of the right cannot be considered in employment, recruitment, or disciplinary contexts” (Appendix 24). The extension to recruitment would be a significant change, and this part of the MDDUS submission was not referred to by the Committee. Extending the clause to recruitment could produce a system wide problem – if there were insufficient non-objecting doctors to deliver this aspect of healthcare, a health care employer could not respond to this by seeking to appoint a doctor who would work in this area. A post whose duties, because of existing conscientious objections, was specifically to deliver assisted dying could not exclude from appointment a doctor who was unwilling to be involved in assisted dying.

The Committee, and those giving evidence to it, raised two new, related, points in relation to conscientious objection, the first of which reflects the special challenges of assisted dying in a small democracy.

Firstly, there were suggestions that the protection of cl.8 should not be limited to “conscientious” objection, but include within the protection of the clause those objecting on other grounds. Jane Poole-Wilson MHK supported a point raised by the BMA, and recommended “allowing for those health professionals who do not oppose assisted dying on conscientious grounds, but nonetheless would not wish to participate, to be able to opt out”. The BMA had recommended a specialist service in part because it would “help to reassure those doctors who did not want to participate that there would be no pressure on them to do so”.  The Medical Defence Union argued for objections, rather than conscientious objections to be protected: “we can readily envisage a scenario where a doctor faces one instance where they are confident to proceed under the terms of ‘the Act’ to assist a terminally ill patient to end their own life (and duly does so), and another instance where that same doctor – despite on the face of it all criteria being met – has a remaining concern as to their potential exposure to criminal or other liabilities … In such a scenario, we would be concerned that doctors may not be able to rely on the conscientious objection clause”. The Committee did not discuss these arguments, and uses the language of “conscientious objection” throughout, but this may in part be because of their recommendation for an additional “opt-in” provision. Depending on how the conscientious objection clause interacted with an additional opt-in provision, those objecting on non-conscientious grounds might be protected.

Allowing a person to object to involvement in delivering this form of healthcare on any ground, rather than because of “conscientious objection” would be a departure from the closest Manx model, the conscientious objection clause in abortion law. That clause applies only to “conscientious objection”, but specifies how this is to be determined: “In any legal proceedings, a statement in writing and on oath or affirmation by a person that he or she has a conscientious objection …  is conclusive evidence of that objection” (Abortion Reform Act 2019 s.8(3)). If a doctor is prepared to affirm or swear that they have a conscientious objection, then they have a conscientious objection. Evidence from elsewhere shows the breadth of factors that may lead a doctor to conclude that they have a conscientious objection to involvement in assisted dying. In their study of conscientious objection to voluntary assisted dying (VAD) in Victoria, which unfortunately is not currently open access, Haning, Keogh and Gillam, found that the conscientious objections of their participants “were based on some combination of: the impact they anticipated VAD would have on them personally; the impact VAD would have on the patient; the impact of VAD on the medical profession and society’s view of life and death more generally; and the nature of the legislation. All participants identified multiple reasons for their CO.”

Why the suggestion that doctors should be able to raise objections that they do not themselves see as conscientious objections?

One of the key features of small democracies, which needs to be taken account of in constitutional and legal design, is intimacy. The Women in Manx Politics project explored this in relation to elected representatives, and it was particularly striking how MHKs were “always on”. Intimacy in a small democracy means that office-holders interact in a myriad of other ways with fellow citizens – your MHK may be a parent of a child at the same school, someone else who is excited to shop in Tesco, someone who drinks in the same pub. Office-holders in a small democracy are often aware that they will be interacting with the same people, in different ways, indefinitely. One possibility is that a non-conscientious opt-out would be used to manage intimacy between a doctor and other members of their community. There is a theme – rejected by the Committee on the grounds of individual autonomy – in evidence to the Committee that relatives have an interest in assisted dying, rather than just the person accessing this form of healthcare. It is easy to imagine a scenario where a Manx doctor provides assisted dying over the (legally irrelevant) objections of a friend or family member of the patient, and then needs to manage that relationship in informal interactions for decades to come.

Returning to the study by Haining et al, they note: “Some participants felt that participating in VAD would be detrimental to their reputation and had reservations about being labelled the “death doctor” in the community, which they believed would ultimately compromise the therapeutic relationship … Such concerns were particularly problematic for regional doctors who practice in the same community they live in. “I’m a rural and regional [health professional]. I walk down the street … I live in the town that I work in and I’ve had people stop me down the street and say, “you’re not going to do that death thing are you?””.

Secondly, as part of its discussion of the conscientious objection clause, the Committee recommended “in addition to conscientious objection ‘opt-outs’, there should also be an ‘opt-in’ provision, and the Committee would be supportive of any amendment around this” (Conclusion 8). The Committee itself did not go into more detail, but it did refer to evidence which explored the idea in more detail.

Mr Hooper MHK proposed an amendment to the Clause that would require a subset of those able to rely upon the clause – essentially, those in health care professions – to notify the Department of Health and Social Care “of their intention to do so”. What the Department would then do with this information is not specified, but one might anticipate an internal, or perhaps even public, register of those who have indicated an intention to participate in the assisted dying regime. This would not replace the conscientious objection clause, and so might create a category of healthcare professional who did not “intend to exercise the functions under this Act”, but who also did not conscientiously object to doing so.  The Isle of Man Medical Society strongly supported an opt-in which would make involvement in assisted dying a free choice for doctors:  “There are a whole variety of valid reasons why doctors would not want to be involved in assisted dying/euthanasia under any  circumstances and this in no way should impact on their ability to practice medicine on the IOM. Opting in to assisted dying/euthanasia should be associated with rigorous training and assessment of competence to carry out the tasks required. There should also be monitoring of individual doctor’s involvement by the body set up to monitor this Act”.

The idea of an “opt-in” is a complex one to introduce in discussion of clauses. It is closely entwined with the practicalities of delivering assisted dying which are addressed by stakeholders such as the BMA but, because this is scrutiny of a private member’s Bill rather than consultation on government plans, was beyond the remit of the Committee. The interaction with a conscientious objection clause, or a reformed free objection clause, could usefully be addressed in the Bill if it is adopted.

“Terminal illness” as the criterion for eligibility and fear of legal challenge.

The Committee supported amending the life expectancy criterion in cl.5, extending the period from six to twelve months within which death is reasonably expected (pp.12-13). This extension was proposed by Daphne Caine MHK and Lawrie Hooper MHK, the Minister of Health and Social Care. These Members also suggested further additional requirements that the terminal illness had to meet, namely that the terminal illness was causing “unbearable suffering” or had led to “an advanced state of decline in physical capability”.

These additional qualifications on the definition of terminal illness were not taken up. Although the Committee did not specify its reasons, many of the submissions it received voiced fears of what they termed “a slippery slope” or a later judge-made extension to eligibility. Perhaps a cut-and-dried rule was therefore preferred by the Committee, one which left the patient to seek assisted death for their own reasons (whether that be suffering, physical decline, or something else) and left inscrutable the views of the legislators themselves on what sorts of lives are worth living. If so, there is much to commend the Committee’s approach.

The extension of the period from six to twelve months appears to be responding to worries that predictions of life expectancy are difficult to make with certainty. The Isle of Man Medical Society (IOMMS) stated that only ten percent (10%) of its surveyed members felt confident making such a prognosis even at six months projected life expectancy (p.48). Although extending this period might initially appear to make predictions even more difficult, the extension also allows for a margin of error to protect those making such judgements – the Committee noting that more patients are living longer with terminal illnesses (pp.11-12). The word “reasonably” in cl.5(1)(b), which states that death must be “reasonably expected” within the stipulated time period, also may have the effect of protecting those who make prognoses in good faith. Whilst some submitting evidence wished this phrase to be replaced with “on the balance of probabilities” (Medical Defence Union, p.200), retention of “reasonably expected” protects any reasonable judgement with a sound basis. The Committee noted in Conclusion 5 that medical practitioners routinely make life expectancy predictions for other purposes, and that appropriate training should be provided to those who elect to provide assisted dying (p.13).

The Committee thus retained a bright-line rule that eligibility is determined by terminal illness and life expectancy alone. However, it is worth dwelling on the expressed fears that a court may widen eligibility. These concerns were raised by the Speaker of the House of Keys (p.107), John Wannenburgh MHK (p.173), Jason Moorhouse MHK (p.89), and the IOMMS (p.47). It is notable that the fear was shared among those who supported the policy of the Bill, as well as those who opposed it.

In UK courts, as would be the case in Manx courts, the legal vehicle for challenge is most likely to be via the Human Rights Act (1998 in the case of the UK, and 2001 in the case of the Isle of Man). To date, neither the UK Supreme Court nor the European Court of Human Rights in Strasbourg has been particularly receptive when petitioners have challenged primary legislation.

In 2014, the UK Supreme Court rejected a challenge to UK law brought by three men “each of whom was suffering such a distressing and undignified life that he had long wished to end it, but could not do so himself because of his acute physical incapacity” (and one of whom died in the course of proceedings) [2]. The Court noted that the human rights to life and to respect for one’s private life (including one’s autonomous choices about how to live central aspects of life) are protected by the European Convention on Human Rights, Articles 2 and 8. However, neither of these rights was capable of sustaining a challenge to the criminal laws of murder, manslaughter or assisting suicide – none of these offences in Great Britain and Northern Ireland have an exception for medically assisted dying, although Scotland may introduce such an exemption.

The Supreme Court stated that it had the jurisdiction (even under a system of parliamentary supremacy) to consider the challenge [76-77, 100], and indeed it had a great deal of sympathy for the plight of the applicants. However, the majority opinion stressed that the Court would not exercise its jurisdiction without giving Parliament the opportunity to amend the law first of its own accord [113]. Among the reasons for this were that assisted dying is “a difficult, controversial and sensitive issue, with moral and religious dimensions, which undoubtedly justifies a relatively cautious approach from the courts.” [116] This case, known as Nicklinson (after the deceased applicant), then progressed to the European Court of Human Rights but fared no better there. The European Court has also rejected other cases brought against the UK, such as Pretty v UK.

The European Court of Human Rights, for its part, is aware that the laws of different member states who are signatories to the European Convention reflect a diversity of positions on emotive subjects such as assisted dying. As a result, the court gives each state leeway to maintain its own favoured laws (a doctrine known as ‘the margin of appreciation’). In a case brought against Switzerland, by an applicant Mr Haas, the European Court observed that “the vast majority of member states seem to attach more weight to the protection of the individual’s life than to his or her right to terminate it”, and therefore “the states enjoy a considerable margin of appreciation in this area” [55]. In that case, Mr Haas was unable to obtain prescription medicine to end his own life, which had been blighted by bipolar disorder but not by any terminal illness. The European Court denied that there had been any infringement of his human rights, partly because there is already “relatively easy access to assisted suicide” in Switzerland [57]. This case should give comfort to those in the Isle of Man who fear an extension of the eligibility criteria in a jurisdiction that allows some, but not others, to access such medication.

To wrap up, whilst the judiciary is independent and the outcome of litigation carries an element of unpredictability, the constitutional arrangements governing the Isle of Man are very different to those jurisdictions, such as Canada, that were mentioned in submissions to the Committee (p.47). In Canada, the Supreme Court triggered the passing of legislation that permitted medically assisted dying. (This legislation, following another ruling of a state court, was extended to those who are not terminally ill.) Canada is a federal jurisdiction, with a codified constitution that permits its courts to declare primary legislation invalid. The Human Rights Act, by contrast, does not permit courts to declare primary legislation invalid.

A declaration of incompatibility under section 4 of the Human Rights Act 2001 is unlike a Canadian declaration of invalidity because it does not affect the validity or ongoing operation of the law. The law remains unaltered and can still be applied by officials – for example, prosecutions under that law can still go ahead. (A declaration of incompatibility, as discussed in Alder v Lloyds Bank before the Staff of Government, is a politically charged signal that Tynwald is unlikely to ignore. It is only in extremely unusual cases where the UK Parliament has chosen not to amend the law following a declaration of incompatibility – but that is always a course open to that parliament. The petitioner still has recourse to the European Court, as occurred with the prisoners’ voting saga in the UK.) What a court is empowered to do under the Human Rights Act, section 3, is to interpret legislation so as to make it compatible with human rights. The resulting interpretation may strain natural language if that is what is needed to render the legislation compatible. The Bill’s bright line rule about terminal illness (which makes no reference to any additional criteria, nor underlying rationale like suffering or incapacity) is much less amenable to such interpretation and so is more likely to require a section 4 declaration if a court finds that it breaches human rights.

In 1982 Ian McEwan wrote a scene in which two characters discuss the ploughman’s lunch. Suggesting that it is “traditional English fare”, one character then reveals “In fact it’s the invention of an advertising campaign they ran in the early sixties to encourage people to eat in pubs. A completely successful fabrication of the past, the Ploughman’s Lunch was”. The story is much more complex, and probably more one of revival and fine-tuning than fabrication, but the fundamental tension remains: an expression which feels ancient, but is much more recent than it seems. Similarly, “Crown Dependency”, despite feeling an ancient anachronism, is a late 20th century conceptualisation; and like the Ploughman’s Lunch, one which has become increasingly established.

The Kilbrandon Report of 1973 reviewed the relationship of the Channel Islands and the Isle of Man with the United Kingdom, but makes no mention of Crown Dependencies. Instead, when it uses a collective term for the Channel Islands and the Isle of Man, it refers to “the Islands” (for instance para. 1469). The term “Crown dependency” had been used in UK Parliamentary debates from 1970, where it appeared in relation to Guernsey, but not in a way which clearly has a narrower meaning than dependent territory of the Crown, being used to refer to the Turks and Caicos in 1986 for instance. It was first used in the modern sense in Parliament in 1987; and in Tynwald not until 1998.

The term makes its first judicial appearance in an unexpected court. In twentieth century decisions under the European Convention on Human Rights, the term is absent – for instance in the famous Manx birching case of Tyrer v UK. In 2001, however, the European Court of Human Rights uses it, albeit in a footnote, in Bankovic v Belgium. The UK government had made a series of derogations (opt-outs) to the ECHR in relation to counter-terrorism. In 1998 a derogation explaining the position in the Channel Islands and the Isle of Man had not used the term “Crown Dependencies”, but in February 2001 (just before Bankovic), the UK government used the term in the continuing derogation referred to in Bankovic. The first judicial appearance of the term, then, was a result of post-1998 change in UK practice under the ECHR. Having been used by the European Court of Human Rights, we then find the term appearing in court judgements from 2005 (UK), 2012 (Guernsey), and 2014 (Isle of Man and Jersey).

The first use of the term in legislation similarly appears this century, rather than last. It is used in explanatory notes to UK legislation – rather than legislation itself – three times in the 20th century. It makes its first appearance in UK secondary legislation in 2005, and in primary legislation in 2009. It then appears in an Act of Tynwald in 2015; and in Jersey and Guernsey legislation only after Brexit; when the term was given new legal significance in the reformulation of relationships that followed from the decision to leave the European Union.

A Tynwald Select Committee in 2024 recommended “that the word “dependency” does not reflect clearly the constitutional status of the Isle of Man; and that Tynwald calls on the Isle of Man Government to engage in discussion with the Manx public and with the Governments of the Channel Islands and the UK with the aim of finding a better term”. It drew on evidence from Jersey and Guernsey, as well as the Isle of Man. Perhaps the Channel Islands, the Isle of Man, and the United Kingdom will agree to replace Crown Dependency with a new term. If they do, it will not be discarding a long Manx tradition.

In a gradual process from the end of World War Two, culminating in a significant set of constitutional changes in the 1980s, executive government of the Isle of Man passed from the Lieutenant-Governor, who was responsible to the Crown, to the Council of Ministers, who were responsible initially to Tynwald, and later to the House of Keys. How do votes of no confidence fit into this?

Non-statutory votes of confidence and no confidence.

Members of Tynwald may propose, and then vote upon, votes of no confidence in a range of different office holders and bodies. In 2013, for instance, Mr Skelly moved a motion “That Tynwald has no confidence in Hon. David Anderson MHK as Minister for Health“. The motion was debated at length in Tynwald, and lost 7 to 17 in the Keys, but passed 8 to 1 in the Council. As the Branches were in disagreement, the motion failed. Had the motion been passed, Mr Anderson would not have lost office, as the decision as to who is a minister is made (formally) by the Lieutenant-Governor and (actually) by the Chief Minister. We can find unsuccessful motions of no confidence in individual ministers not only in Tynwald, but in the Keys alone – for instance Mr David Cannan’s 2006 no confidence vote in Mr Braidwood in relation to decisions made as Home Affairs Minister, put forward as an amendment to a resolution on a report including discussion of his role. This vote was also lost, 14 to 9. We can also find non-parliamentarians subject to these motions. A motion of no confidence in the Manx Electricity Authority was tabled for the Tynwald of May 2005, then withdrawn, followed immediately afterwards by the resignation of all members of the MEA (discussed fully in DG Kermode’s excellent book on Ministerial Government in the Isle of Man).

These votes are potentially powerful political blows, and may lead to political consequences. As well as the mass resignation of the MEA in 2005, Kermode sees the resignation of Allan Bell as DTLT Minister in 1994 as forestalling a motion of no confidence; and we might also consider the resignation of Richard Corkill as Chief Minister following concerns after his arrest as happening in the shadow of a vote of no confidence. We can also see votes of confidence deployed as political tools. In 1998 Edgar Quine put forward a vote of confidence in CoMin, which passed and so showed confidence in Donald Gelling’s CoMin.

These are clearly important politically, but they do not have the statutory force of a vote of no confidence under the Council of Ministers Act 1990.

The statutory vote of no confidence.

Under the 1990 Act, one of the ways in which a Chief Minister can lose that office is if there should be “a sitting of the House of Keys at which a resolution is passed by the affirmative vote of at least 13 members of the House of Keys, that it has no confidence in the Council of Ministers” (s.2(3)(b)). If the Chief Minister goes out of office as a result of such a vote being passed, then every Minister also goes out of office (s.3(3)). It is worth stressing that while individual ministers may retain the confidence of the Keys, the statutory vote is an all-or-nothing process: There is no statutory power to remove just the Chief Minister, or just an individual Minister.

Section 2(3) has undergone some significant changes in recent years. In 2018 the power to remove a Council of Ministers by a vote of no confidence was removed from Tynwald as a body, and transferred to the House of Keys only. In 2018, however, there was an unusually high special majority required, providing far greater protection for the executive than in other small democracies I studied at the time. Concerns that the balance between stability and accountability had been struck at the wrong place led in 2021 to a change in the rules, from a special majority of 16 to 13. It should be noted however that a vote of no confidence requires 13 MHKs to support it, rather than a majority of the MHKs who vote. So it is only a simple majority if all 24 MHKs are present at the sitting.

If a vote of no confidence secures 13 or more votes, then the Chief Minister and Council of Ministers remain in post until they are replaced (s.4(4), 4(5)).

A sitting of the Keys must be held between 17 and 21 days after the vote of no confidence, at which a Chief Minister is appointed by the Keys, and the Chief Minister then goes on to appoint their Ministers. In the same way as after a General Election, nominations for the office of Chief Minister are put to the House of Keys not less than seven days before this sitting, with a written statement on the policies the candidate intends to pursue being submitted not less than five days before the sitting (see Standing Orders of the House of Keys, section 12). There is no legal bar on the same Chief Minister being reappointed, and then going on to appoint the same Ministers (s.4(6)).

Richard Wright KC has now published his report to Tynwald, which is available in full here.

Some of the report is scaffolding – the terms of reference (pp.21-24), methodology (pp.25-29), and background to the case (pp.30-33). The findings of the report are detailed in the very substantial “Part Five: Narrative Analysis” (pp.34-173). Conclusions and recommendations are at pp174-182, and a substantial Executive Summary is at pp.3-20.

Key findings.

The Review summarises the “ten core conclusions”, that is findings as to fact, at p.174-175.

(i) As an overarching conclusion I am satisfied that the defence of
the litigation by the DHSC was conducted in good faith.
(ii) The decision to defend the claim was taken in accordance with
established procedure, was legally justifiable and was an
appropriate decision for the DHSC to make at the time that it was
made.
(iii) There was a clear conflict in the role of Kathryn Magson as Chief
Executive with responsibility for providing instructions to the
Attorney General’s Chambers in defence of the claim and her role
as the principal witness to the events at the heart of the litigation.
The failure to identify that conflict and take steps to mitigate its
effect contributed to the loss of the litigation and was a serious
error.
(iv) The Attorney General’s Chambers failed to appreciate the
significance and complexity of this Claim from the outset. They
also failed to grasp the potential for significant reputational
damage arising from these proceedings for both the DHSC and
the wider Isle of Man Government. In consequence the defence of
the Claim was under resourced throughout and that lack of
resource was a major contributory factor to the loss of the
litigation.
(v) The management of disclosure by the Attorney General’s
Chambers fell far below the standards required. The failures in
disclosure were the single most significant factor in the negative
outcome of the litigation from the perspective of the DHSC. The
disclosure failings also had a significant effect upon Dr Ranson
and her mental health.
(vi) Both of the appeals to the High Court pursued by the DHSC were
properly brought in good faith and each identified properly
arguable issues for the High Court to determine.
(vii) The Paragraph 33 Appeal exposed a conflict between the narrow
interests of the DHSC and the wider interests of the Government
of the Isle of Man. The decision making surrounding the decision
to pursue this appeal lacked clarity and openness. Further, the
manner in which the decision was taken to lodge the skeleton
arguments reveals that good governance had broken down in the
DHSC at that time.
(viii) There is no evidence that any documents were submitted to the
Tribunal that were modified, false or deliberately misleading. I am
sure that this allegation, made in the course of the litigation but
undetermined by the Tribunal, was entirely unfounded.
(ix) I am sure that the DHSC did not deliberately withhold documents
or make selective disclosures for an improper purpose when
conducting the disclosure exercise.
(x) There was a failure by both the DHSC and the Attorney General’s
Chambers to conduct regular strategic reviews of the litigation as
it developed;

A key finding for me is in relation to disclosure. As the Review notes, “The importance of the disclosure process and the need for it to be conducted with the appearance of impartiality cannot be overstated. It is essential to the integrity of the Tribunal process and the efficient conduct of litigation that the parties and the Tribunal are satisfied that it has been conducted effectively” (p.77).

As I have noted earlier, a deliberate failure by government to provide the other side in a legal case with information to which is it is entitled would be a very serious cause for concern. Findings (v), (viii), and (ix) read together confirm that there were serious failures in disclosure, but that these were not deliberate. Differing from the Tribunal, the Review considers that Kathryn Magson had not been selective in terms of disclosure (pp.121-122). The Review discusses, and rejects, allegations of concocted documents at length (pp.110-115). Overall, and to take a phrase slightly out of context, the Review sees “that the shambolic manner of the conduct of the litigation by the DHSC was not borne out of malice but rather was a consequence of a lack of resource and late preparation” (p.125). Allegations of malicious conduct were found by the Review to be “wholly misplaced” with “profound consequences for those Civil Servants who were closely involved in the disclosure process” (p.127). The Review also emphasises that “It is important that I state that I am satisfied that I have been given access by all Government Departments to every document that I have needed to consider and review for the purposes of producing this report. There is no sense in which I have any concern that material may have been withheld from me” (p.27).

Although much of the responsibility for the failures around disclosure is placed with the Attorney General’s Chambers, in the body of the Review the time allowed for disclosure by the Tribunal is criticised as “an unrealistically short timescale that quite frankly could not possibly have been complied with to a satisfactory standard. It should not have been made in the terms that it was without fierce resistance from the DHSC” (p.71).

Recommendations.

The Review makes 24 recommendations, which can be clustered into a set of themes.

Firstly, the resourcing of work by the Attorney General’s Chambers. The Review considers that the importance of the case was not understood: “a surprising lack of appreciation and a complacency of approach” (p.48). The Review recommends a formal system for ensuring that an appropriate level of resource and expertise is allocated to each case, with particular attention paid to high risk and high value litigation (p.16). The narrative part of the Review sees failures in preliminary work resulting from a failure to prioritise and resource as leading to a cascade of failures as the process continued. As well as requiring that the Chambers is “properly resourced and able to provide high quality legal advice and services”, this may require instructing external litigators (p.16). The problem of capacity, and in particular the ability to deal with unusual demands on a limited team, is a pervasive one for small democracies.

Secondly, the management of disclosure and of litigation generally. A number of recommendations aim to have a more formal, better documented, decision making process for managing disclosure (p.16-17). The management of the disclosure process must not be delegated to the client, and “The management of the disclosure process from a Departmental perspective should never be performed by an individual who is a disputed witness of fact in the litigation” (p.17). More broadly, the Review recommends regular reviews of litigation which has been identified as high risk or high value (pp.17).

Thirdly, liaison between the Attorney General’s Chambers and government. The Review recommends clearer lines of authority which emphasise decisions being taken by suitably senior persons (p.19). The Review recommends “Compulsory training in disclosure obligations and functions … for all politicians and Civil Servants who may find themselves engaged in the disclosure process” (p.17). The Review is critical of induction generally, calling for standardised induction “across the entire Government for all Ministers and political members of Departments”, and for all senior members of each Government Department (p.19).

Fourth, dealing with conflicts of interest. The Review considers two distinct types of conflict. The first is where a civil servant “is a disputed witness of fact” – as noted above, they should never then manage disclosure, but the Review goes further and recommends: “Where the Chief Officer is a disputed witness of fact in the litigation their functions as aqccountable officer in the context of that litigation should be delegated to another Civil Servant of equivalent rank outside their own Department” (p.18). The second is where there is a conflict between the interests of a Department, and “the wider interests of Government” – in such a case this should be resolved by the Council of Ministers through a formal and transparent mechanism (p.18). The Review mentions the balance between Department and Government in a way supportive of a single entity: “The limited concept of Government as a single entity across Departments results in employment disputes – even at a senior level as in this case – being viewed as a Departmental problem and not an issue for wider Government. In fact, and as this litigation demonstrated, an employment dispute can have far reaching consequences for not only the individual Department concerned but also for the wider Government” (p.38; see also p.149).

Fifth, formal communication. One of the distinctive features of a small democracy like the Isle of Man is intimacy, which frequently works against the formality and structure found in larger democracies. The Review calls for greater formality – all business by members of CoMin qua their ministerial role should be from “a dedicated Ministerial email account that is held by the office of the Minister” (p19). More broadly, “High level decision making should be formally recorded at the time that decisions are made. The informality of email is not conducive to a transparent audit trail of the type required for high level Governmental decisions”.

Finally, the work of Employment Tribunals. The Review suggests giving consideration to appointing a Deemster “to serve as Head of the Equality and Employment Tribunal on a full time basis” (p.20), supporting evidence of Deemster Corlett in Tynwald (pp.172-3). This is a much more tentative recommendation than the other twenty-three, and this may be a recognition that it is hard to bring within the Terms of Reference of the Review, which did not include the work of the Tribunal itself, not being one of the parts of government covered by 2(a) of the Terms of Reference, nor the conduct of the DHSC in 2(b), not part of “the Isle of Man government as a whole during the litigation process” in 2(c). There are however, a number of criticisms of the way the Tribunal conducted the case – most notably the period for disclosure noted above, but also allowing the hearing to be “highly personalised … combative and confrontational from the outset” (p.93), and the “recitation of criticisms of the DHSC in the liabilty judgment that had not been fully litigated and were, at least in some respects, peripheral at best to the core decisions that the Tribunal was required to make” (p.132).

Final thoughts.

This Review will be uncomfortable reading for those responsible for the working, and resourcing, of the Attorney General’s Chambers. More widely, it rejects very firmly accusations of deliberate wrongdoing by any part of the Manx government, and stresses the integrity and hard work of a number of civil servants, including a significant number by name – perhaps most notably Paul Edge (no relation).

Even in relation to the Attorney General’s Chambers, however, the Review does not focus on individuals. Instead, the Review focuses on failures of structures and procedures, with concrete proposals for how to improve. It will be interesting to see the future impact of the Review, and in particular how the concrete proposals are received.

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.