A very brief blog here. Today Deemster Corlett gave judgment in the issue which remained to be resolved from his quick rejection of the earlier DHSC appeal against the conduct of the Ranson tribunal in relation to professional privilege. Had the Tribunal exceeded its powers in calling for evidence from a solicitor working in the Attorney General’s Chambers?

There was no discussion of whether the Tribunal could order a violation of legal professional privilege, both parties agreeing it could not (para.5). Instead, the decision turned on the duties which the solicitor was under in respect of their own conduct.

As Mr Halsall, arguing for Dr Ranson, put it: “The EET was however entitled to receive evidence as to how the Department’s solicitor had, as a matter of fact, discharged her onerous duties to ensure that disclosure was properly achieved. This would not involve disclosing legal advice but would relate to how, as a matter of fact, she had discharged her personal, professional obligations. Ms Heeley had in fact already provided a statement to the EET on 14 September 2022. This had dealt with factual issues and had clearly assisted the EET but without breaching LPP” (summarised, para.23).

.In relation to these onerous duties, Deemster Corlett noted: “It is clear from the authorities that a failure by a solicitor or an advocate to discharge his or her duties in relation to disclosure can lead not only to adverse inferences being drawn against the client, but also to wasted costs orders against the lawyer and/or a contempt finding. The extent to which our system of civil justice depends on the integrity of advocates in this respect (for example in ensuring disclosure of relevant documents which are unfavourable to the client) cannot be overemphasized”. (para.27)

Deemster Corlett interpreted the actions of the EET as compatible with determining these facts without violating legal professional privilege (para.32(1)). While it was unusual to seek evidence from a legal professional for one party: “They were entitled to come to the view that, the key witness Miss Magson being out of the jurisdiction and seemingly reluctant to provide information voluntarily, their best hope of getting near to the truth about disclosure was to require Ms Heeley to provide information about how she personally had approached disclosure. The EET were entitled to conclude that other avenues were closed to them. They knew that they should not bring about a breach of LPP and did not at any time intend to do so” (para.32(2)).

On the 16th of September 2022 Charles III was proclaimed in Tynwald in a special sitting. Hansard is not yet available – and given the ceremonial nature of the sitting may not be a priority as Tynwald debates wrestle with crucial issues – but the order of proceedings, interestingly titled “Proclamation of the Lord of Mann at St.John’s”, is available on-line here.

The Office of the Clerk of Tynwald has usefully summarised the proclamations of previous new monarchs from 1765-1952, available on-line here. Comparing the current proclamation with that of Elizabeth II shows some interesting differences. Apart from the obvious His/Her and Queen/King changes and name changes, I have marked the formal proclamation of Charles III in bold where text has been added or replaced, and in italics where it has been deleted.

WHEREAS it hath pleased Almighty God to call to His mercy our late Sovereign Lady Queen
Elizabeth II, of blessed and glorious memory, by whose decease the Crown of the United Kingdom
of Great Britain and Northern Ireland is solely and rightfully come to the High and Mighty Prince Charles Philip Arthur
George: We, therefore, the Lieutenant Governor, the Deemsters, and the Council and Keys, in the
presence of other office holders, do now hereby with one voice and consent of tongue and heart
publish and proclaim that the High and Mighty Prince Charles Philip Arthur George is now, by the death of our
late Sovereign, of happy memory, become our only lawful and rightful liege Lord Charles III, by
the grace of God Queen of this Realm of the United Kingdom of Great Britain and Northern Ireland and of his other
realms and territories King, Lord of Mann, Head of the Commonwealth, Defender of the Faith, to
whom we do acknowledge all faith and constant obedience with hearty and humble affection beseeching God, by whom Kings and Queens do reign to bless His Majesty with long and happy years to reign over us. God save the King, Lord of Mann.

A few minor points first. There is a distinct change of tone in the proclamation of Charles III. As the deleted text shows, there is less emphasis on his being High and Mighty. At the same time, the latest Proclamation focuses on the institutional acceptance of the rights of Charles III by focussing on Tynwald “in the presence of other office holders”, while that of Elizabeth II focussed on Tynwald “being here assisted with other officers and the principal inhabitants of the Isle of Man”. The reference to the principal inhabitants of the Island may, however, have been more than replaced by a new element, added after the final proclamation:

Gheiney as vraane seyrey Vannin, ayns y
chenn whaiyl eu er nyn jaglym cooidjagh,
ta mee geamagh erriu, myr cowrey yn
leighaltys eu, dy hassoo as three eamynmoyllee y chur son E Ard-Ooashley Smoo
Graysoil y Ree, Chiarn Vannin.

Free men and women of Mann, in your
ancient parliament assembled, I call on you,
as an expression of your loyalty, to stand
and give three cheers for His Most Gracious
Majesty the King, Lord of Mann.

To me the most interesting element is the shift from an emphasis on a unitary reference to “the Crown” to be found in the Proclamation of Elizabeth II, as “Queen of this Realm and of all her other realms and territories”. Instead, in a sharp departure, we find Charles III being proclaimed with equal emphasis as King of Great Britain and Northern Ireland (the suzerain of the feudatory monarch, the Lord of Mann), and Lord of Mann. The Proclamation of Elizabeth II does not refer, even in passing, to her being Lord of Mann. The term is similarly absent from the earlier Proclamations dating back to 1765 – the older are less well documented by the Clerk’s Office, but there is nothing to suggest that the Lord of Mann was emphasised in this period, and then removed at the same time as proper transcriptions were easily available.

The obvious question is why the constitutional innovation of a dual Proclamation? I have discussed the relationship between Sovereign and Lord at some length in this open-access article. An important change that happened between the two most recent Proclamations is decisions of Manx courts, and legislative practice, giving a new legal significance to the Lordship in relation to the relative authorities of Tynwald and Parliament. Similarly, the degree of autonomy possessed by the Isle of Man increased very significantly during the reign of Elizabeth II. In the context of a constitutional monarchy, a public discourse which emphasises the existence, and authority of the constitutional monarch as Lord of Mann is one which emphasises Manx autonomy. So the dual Proclamation can, I think, be seen as a constitutional innovation that recognises, and in a minor way reinforces, the increased autonomy of the Isle of Man.

I will conclude with a final nerdy point on numbering. Arguably Elizabeth I was briefly Lord of Mann at the end of her reign; meaning that Elizabeth II was an accurate description whether we focus on Lord or Queen. Neither Charles I nor Charles II were Lord of Mann during their reigns. So should Charles be referred to as Charles II (recognising the Lordship of Charles Stanley) when being referred to as Lord of Man, and Charles III when being referred to as King of the United Kingdom? In other words, is the dual Proclamation sufficiently dual? There is a precedent, albeit in relation to the Union of England and Scotland. In 1953 McCormick v Lord Advocate 1953 SLT 255 (summarised here) involved a challenge to the use of Elizabeth II as the regnal number in Scotland, as there had never been an earlier Elizabeth reigning in Scotland. The Inner House found that choice as to numbering was a part of the royal prerogative. Charles could choose his regnal number as freely as his name – if he had wished to be Charles X that would have been, literally, his prerogative. Winston Churchill pragmatically suggested that the tension between Scottish and English numbering was likely to be resolved by British sovereigns using whichever was the highest number. This appears to have been adopted for resolving the Lord and Sovereign numbering problem.

Two important decisions concerning the ongoing hearings of the Ranson Tribunal became available on the Manx courts judgment database this week – the judgment of Deemster Corlett on an appeal on points concerning the management of the case (delivered last week), and a direction with explanation issued this week by the Tribunal itself following hearings earlier in the week. The latter contains some very detailed discussion of sources of evidence provided to the EET, and cooperation or otherwise of potential witnesses, which I will not discuss in this blog (but are discussed in some detail in the EET direction para. 19-44).

Deemster Corlett usefully begins his judgment with a summary of developments since the decision by the EET of the 9^th of May. As part of the decision of the 9^th of May, the EET ordered that there would be a Disclosure Hearing, and that the parties were required to work together to agree the format for this hearing. On 22 June Dr Ranson applied for twenty-five persons to swear affadavits for the three day hearing due to commence on 30 August 2022. On 12 July the DHSC submitted a response to this application, and on 29 July there was a hearing by the EET, leading to two orders by the EET.

The business before the Deemster was an appeal from aspects of the decisions of the EET arising from this hearing.

Privilege.

One issue was whether Ms Heeley, a lawyer in the Attorney General’s Chambers, should be obliged to provide evidence to the Tribunal; or whether requiring her to do so violated privilege – that is, the zone for confidential discussion between a client and an advocate. Deemster Corlett did not decide this issue at the end of August, but instead adjourned it to another day. Given the length and complexity of privilege cases before the Manx courts such as Bitel LLC v Kyrgyz Mobil, one can see why.

The EET briefly reflected on this later, arguing that while it had required Ms Heeley to “provide details of the entire approach she adopted to ensure proper disclosure and highlighting and explaining where and how matters had gone wrong”, this was not seen as a breach of legal privilege by the parties in the hearing, and that there was not a conflict between this requirement and duties concerning advocate-client privilege (para.33-36). The EET also noted the possibility that the Attorney General’s Chambers might cooperate with the EET in providing information relevant to understanding the nature of any disclosure failings (para.37).

The power of the EET.

The second issue, which was resolved, was whether the EET had the power to convene a Disclosure Hearing at all. This was a new argument by the DHSC, which had previously been complying with the process (see para. 30-35). So Deemster Corlett had to consider whether, procedurally, it was too late to raise this issue – was this an exceptional case in which the Deemster should allow the new point on jurisdiction to be raised on appeal? Deemster Corlett reviewed the case law, including a Manx decision from last year (para. 42-52), and concluded after “a difficult balancing exercise” that the new point should not be allowed (para.52).

Deemster Corlett could have stopped there, but he moved on to consider the merits of the point the DHSC wished to raise; in case he had struck the balance in the wrong place. He was critical of the way in which the EET had expressed itself on the 9^th of May, in particular comments of the EET around miscarriages of justice and the danger of disclosure failings in the High Court, and the description of the disclosure hearing as “special” (para.54); and language used on the 1 August (para.60). In the actual conduct of the case since the 9^th of May, however, Deemster Corlett emphasised the EET’s focus on matters pertaining to the case before it – excluding, for instance, some causes of action between the parties (para.55-6) – as ensuring that “the issue of disclosure is tied to the issue of damages and costs” (para. 54). As part of this, the EET, in responding to the initial requests of Dr Ranson, had focussed on “system failures within the Department”, rather than across government (para.66).

Deemster Corlett found that the EET had, as the form and content of the Disclosure Hearing developed, focussed on matters of direct and pressing importance for the case before them (for his review of relevant authorities, see para.38-41). In particular, he found that the EET did not have “a free-standing jurisdiction to hold a disclosure hearing” (para.30), but was entitled to resolve issues relevant to the allocation of costs between the parties (para.31), and the remedy to be given to Dr Ranson: in particular whether aggravated damages should be awarded (para.33). The orders made by the EET after the July hearing was “far more constrained that that which Dr Ranson was seeking” (para.35).

As a result, Deemster Corlett concluded:

“In summary I consider that there is no sustainable foundation for Mr Callin’s submission that the Employment and Equality Tribunal are engaged on a “frolic of their own” as he put it, which is a phrase familiar to lawyers, akin to a public enquiry. The disclosure hearing in my judgment is plainly to be limited to the relevant remaining issues, namely compensation, particularly the issue of aggravated damages, and costs. Any sensible interpretation of the Tribunal’s order and its judgment of 1 August 2022 supports this interpretation.” (para.73).

Following the decision of the High Court, the EET was able to proceed with the disclosure hearing. It had originally been planned to publish “a definitive decision on deficiencies in the disclosure process” (para.3), but this was no longer practical. One reason was the decision of the DHSC to seek representation from outside the Attorney General’s Chambers, to avoid a possible conflict of interests (para.8, 31-37), but there were also issues with possible witnesses not having contributed, and a technical report not being available. As a result, the EET will continue the process in November.

The EET explicit state the reason for an investigation of “how and why there had been a serious risk of a miscarriage of justice” as being “essential” (para.17) to resolve claims for aggravated damages, and for exemplary damages, and the possibility of costs being awarded to Dr Ranson (para.13).

Damages.

A key, and legitimate, function of the disclosure hearing, then, concerns damages. Deemster Corlett noted that there had been some suggestion in oral argument that aggravated damages could not be awarded by an EET, but the point had not been argued, and “I do not think it is a very good point anyway because having read the Sutton v Creechurch [2019 MLR 172] authority it seems that that is certainly just not right” (para.28).

Sutton v Creechurch is a long running case, but the key judgment can be found here. It is particularly interesting for the Ranson proceedings because it involves a decision by the Employment Tribunal which discussed aggravated and exemplary damages. In this particular case, the High Court struck down the aggravated and exemplary damages awards, but in doing so reviewed with approval a significant body of English case law. Deemster Rosen explained the distinction between the two: “The question of exemplary damages was to be distinguished from aggravated damages; where the damage to be awarded at compensation may be aggravated by the particular way in which the defendant had behaved towards the plaintiff. Exemplary damages is not compensation, it is a form of punishment made in favour of the victim to mark the misconduct as falling within the established categories for such an award” (para.54).

It should be stressed that these proceedings are civil ones, intended not to punish the party being sued, but to secure compensation for the loss of the party suing, in this case Dr Ranson. Civil remedies, unlike criminal sentences, do not take as a starting point punishment of wrongdoing. This is the case even for aggravated damages awarded for heinous conduct by a state body (see Commissioner of Police of the Metropolis v Shaw [2012] IRLR 291). There is, however, an exceptional category of “exemplary damages”, and in Sutton v Creechurch Deemster Rosen cited approvingly decisions of the English House of Lords on aggravated and exemplary damages. The leading English case is Kuddus v Chief Constable of Leicestershire Constabulary [2001] UKHL. There are a number of different speeches from the Law Lords, but from that of Lord Nicholls:

“The availability of exemplary damages has played a significant role in buttressing civil liberties, in claims for false imprisonment and wrongful arrest. From time to time cases do arise where awards of compensatory damages are perceived as inadequate to achieve a just result between the parties. The nature of the defendant’s conduct calls for a further response from the courts. On occasion conscious wrongdoing by a defendant is so outrageous, his disregard of the claimant’s rights so contumelious, that something more is needed to show that the law will not tolerate such behaviour. Without an award of exemplary damages, justice will not have been done. Exemplary damages, as a remedy of last resort, fill what otherwise would be a regrettable lacuna.” (para.63).

 The scope of exemplary damages is contested, but even the narrow view based on the House of Lords decision in Rookes v Barnard (no.1) would make exemplary damages potentially suitable in the case of “oppressive, arbitrary or unconstitutional action by the servants of government”.

Costs.

The disclosure hearing can also go to decisions as to costs. How do costs work in proceedings before an EET? Normally, the EET must not make a costs order (EET Rules 2018 as amended, rule 40(2)), but it may do so if the EET finds that one of a number of conditions has been met. These include if the other party has “acted vexatiously, abusively, disruptively or otherwise unreasonably”, or “has made a false or exaggerated allegation in his or her complaint or response or in evidence in support of it”, or “has been in breach of any order” (rule 40(3)). The EET can also make a wasted costs order against a party’s representative (which includes an advocate) where costs were incurred “as a result of any improper, unreasonable, or negligent act or omission on the part of any representative” (rule 41(3)).

The broader implications.

One of the key themes in Deemster Corlett’s judgement was that the EET needed to do all that was needed to run its case properly, but no more. I think it is fair to say that he sees the EET as refining its approach – and its expression –  over the summer to do just that, and the EET stresses that is the function of its current hearings. Does this mean the case is only important to the parties?

Given that Dr Ranson is seeking, as part of the remedy in a case where liability has already been found, exemplary damages and a cost order, it seems likely that the EET will need to express a finding on significant issues of governance – not as a quasi-public inquiry, but to resolve the case before it. I am not going to seek to predict the finding of facts by the EET, but because of the way the action is structured particular findings of fact may be framed as showing or not showing “oppressive, arbitrary or unconstitutional action by the servants of government” (in relation to exemplary damages) or that the DHSC “acted vexatiously, abusively, disruptively” (in relation to costs), or that their legal representatives committed an “improper, unreasonable, or negligent act or omission” (in relation to wasted costs, which may not be a live issue in the case). It is possible to imagine a set of findings of fact which was reassuring as to broader governance issues. It is also possible to imagine a set of findings of fact which were not.

In this series of blogs on nominations of outsiders to the Legislative Council I focussed, respectively, on profession, public service, Manxness and regionality and personality traits.  In this final blog I will seek to bring these threads together.

The paradigm nominee.

Firstly, what is the paradigm nominee? It should be stressed that the survey has considered all non-MHKs/sitting MLCs nominated for the Legislative Council since 1962. Combining these nominees gives us a decent amount of data to look at, but inevitably will be focussed on the long term picture, rather than current trends.

That reservation made, the paradigm nominee for Legislative Council would be:

• A man, although this is much less paradigmatic as we get nearer to the present. Over the entire period, only 18 of the 63 nominees, or a little under 30%, have been women.
• A professional, or retired professional, working in “Business, Media, and Public Service”.
• A person with a record of public service, typically including a career in the public sector, service in local government, or work for a charity.
• A long term resident of the Isle of Man, ideally having been raised on the Isle of Man, or raising their own children on the Island.
• An extrovert engaged with the external world, with a breadth of interests, high group visibility, and enthusiasm; ideally combined with a passion for the proposed role, or work that they could do in the role.
• A conscientious and honest person of integrity.
• A team player able to challenge members of the team.
• An intelligent person with the ability to carry out critical analysis.

Focussing on successful nominees.

Would this paradigm change if we focussed on successful nominees? This is a much smaller group – 13 have been appointed to the Legislative Council from outside Tynwald, so a little over 20% of all such candidates who have been nominated. Care needs to be taken in giving too much weight to what appear to be differences between two small groups.

The paradigm above is largely a good description of successful nominees too. Successful nominees are similarly described as from a professional career background, similarly extroverts with passion, similarly conscientious and honest, similarly team players able to challenge the team, and similarly intelligent and critical.

While successful nominees remained mainly men, the gap between men and women is much smaller when we focus on successful nominees. At 5 of the 13 (or a little under 40%), this gap is half the size of that for nominees; and, as with the nominees, has seen significant improvement over time. So, given the changes I have already identified over time in the nomination pool, if we look at successful nomination to refine the paradigm, I think it would be fair to replace “A man” with “A person”.

Turning to public service, the paradigm successful nominee looks a little different from the nominee pool more broadly, more like a person with a record of public service, typically involving work with or for a charity or other civil society organisation, or work with a government agency. 12 of the 13 successful nominations included reference to public service, a theme which we have already seen as very common in nominations generally.  The basis for a public service claim was very varied, but the most common claims were around involvement with governmental agencies including tribunals (5), charities (4), sports or hobby clubs (3), and Manx cultural associations (3).  In contrast with nominations as a whole, reference to careers in the public sector were comparatively less common than in nominations generally – 2 of the 13, so 15%, as opposed to 33% of the nominations generally. Also much less well represented in successful nominations was involvement in local government – 1 of the 13, so 8%, as opposed to 28% of the nominations generally.

Finally, turning to Manxness, I suggested that nominations seemed to emphasise a civic nationalism view of Manxness, with long-term residence being key. For successful nominees, long term residence remained a common marker, but descriptions as of Manx ancestry or Manx birth were substantially more common in successful nominees (7 of 13, or 54%) than nominees generally (14 of 63, or 22%).

Causes for concern?

It is easy to see why most of the elements of this paradigm are in play, but it does raise three possible areas of concern.

Firstly, I flagged earlier the mismatch between the proportion of the Manx workforce working as professionals in Business, Media and Public Service, and their representation in nominations to the Legislative Council. If we were to ignore the professional part of the paradigm, and focus on the other elements, would much be lost? In other words, is the nomination pool making enough use of people who otherwise fit the paradigm but are from other work backgrounds?  Sustained experience, and leadership of, civil society organisations such as charities, pressure groups, and trade unions might provide strong evidence of other aspects of the paradigm.

Secondly, the dual deployment of a career in the public sector as both professional background and public service could be seen as privileging those with public sector careers over those with private sector careers. Looking at the admittedly small number of successful nominees, however, it seems that MHKs are less accepting of the link between public sector careers and public service when voting than when making nominations.

Finally, there does seem to be a difference between the paradigm nominee’s Manxness (which is mainly based on long-term residence), and the successful nominee’s Manxness (which although substantially based on long-term residence, has a larger element of ancestry or birth). Generally, an emphasis on ancestry or place of birth is seen as problematic – for instance race, which includes ethnic or national origins, is a protected characteristic under the Equality Act 2017 (see Equality Act 2017 s.10). It should be reiterated, however, that the pool of successful nominees is so small, and the importance of individual personality and characteristics so obvious, that any difference in ideas of Manxness between nomination and vote may well be illusory.

The next round of MLC elections.

Looking forward, what sort of people might we expect to see being put forward for the Legislative Council? I would anticipate seeing substantial number of women and men described in their nominations as:

• People with a record of public service, typically including a career in the public sector, service in local government, or work for a charity or community group; perhaps with an increased emphasis on the latter.
• Long term residents of the Isle of Man.
• Passionate extroverts.
• Conscientious and honest people.
• Team players able to challenge members of the team.
• Intelligent persons with the ability to carry out critical analysis.

I also anticipate significant numbers of professionals, or retired professionals, especially those working in “Business, Media and Public Service”. It would be good to see them joined in the process by those from other work backgrounds.

In my earlier blogs on nominations of outsider to the Legislative Council I focussed, respectively, on profession, public service, and Manxness and regionality. A fair criticism is that these categories are only indicators that the nominee possesses traits which make them suitable to be an MLC – that is, that their personality and experience shows they are the right person for the job.

Experience is, I think, entirely subsumed in the earlier discussions – a nominee whose profession is referred to is not being nominated because they are an advocate, for instance, but because of the experience that has given them, and the skills they have developed. Personality, however, is more complex.

Personality is an area of increasing academic study, and within that a thriving subfield is the personality (and perceived personality) of politicians. Scholars have argued that personality – as opposed to ideology – is becoming more important even countries with an entrenched system of party politics. Aicholzer and Willman, for instance, suggest in their open access journal article that:

“Just as ideology represents the long-term and stable underpinnings of parties, personality traits are long-term and stable psychological characteristics that govern individuals’ and politicians’ consistent patterns of values, attitudes, and ultimately behavior (Caprara & Vecchione, 2017). A candidate’s personality traits can therefore be used as a short-cut by voters to assess what candidates are going to do during their term in office (i.e., ideological leanings) and how they are going to do it (i.e., conduct in office)”

If personality, or rather voters’ perception of personality, is becoming more important in large democracies, it has always been central to small democracies such as the Isle of Man. In a very useful comparative study of four such democracies, Veenendaal, again in an open journal access article, concludes that even in the three case-study countries which have an established party system, they “appear[ed] to exist as vehicles in support of individual politicians”. He argues that “the existence of parties conceals and misrepresents the genuine nature of political contestation in microstates, which is essentially based on personal instead of ideological premises”. So, personality is well worth looking at.

Aicholzer and Willman use six categories of personality traits in their analysis – what are commonly referred to as the Big Five (openness to experience, conscientiousness, extraversion, agreeableness, neuroticism), supplemented by a trait from an alternative taxonomy, that of “honesty-humility”. They find that, at least in the groups they studied, voters preferred candidates with high levels of openness, conscientiousness, extraversion and honesty, but low levels of agreeableness and neuroticism.

We can take these six traits as categories for nominations to the Legislative Council, and map onto them every explicit reference to a personality trait (as opposing to subtler messages about personality traits that a nominator may be putting forward by referring to say a career in the police). Not every nomination makes reference to such a trait, but the majority do (only 8 not referring to a personality trait of some kind).

The most common traits identified fell within “extraversion”, which we can very roughly describe as pronounced engagement with the external world, which can involve enjoying interacting with people, having a breadth of interests, high group visibility, and enthusiasm. 26 nominations referred to this in one way or another.

The next most common traits identified fell within conscientiousness, with exactly that word frequently being adopted. 23 nominations referred to this.

The next most common traits identified fell within honesty-humility, frequently being described as integrity. 22 nominations referred to this.

The last category I want to talk about using Aicholzer and Willman’s six traits is agreeableness. Broadly speaking, agreeable individuals value getting along with others, while low agreeableness individuals are often competitive or challenging people. 26 nominations described the nominee in ways consistent with high agreeableness, while 11 described the nominee in ways consistent with low agreeableness. At times the nominating MHK described the same nominee in both ways – for instance the nomination of Paul Beckett. What is going on?

I think the best explanation is that nominations reflect the complexity of the role of MLC. If I may steal a phrase, being part of “Team Tynwald” requires an ability to work constructively as part of a team for common goals; and being a member of the national legislature requires an ability to recognise the importance of the nation, and of society. At the same time, being an MLC – particular when the emphasis is on the Legislative Council as a scrutiny body at times challenging an established point of view – requires scepticism, a willingness to challenge, and at times a willingness to challenge without substantial support from others. Nominations seek to portray the candidate as agreeable, but not too agreeable; as disagreeable, but not too disagreeable. If agreeableness is rated more highly by MHKs than by the voters in elections studied by Aicholzer and Willman, this could be seen as a pragmatic response to members of “Team Tynwald” appointing new members to their team; members with whom they will have to work.

Using this established set of traits is interesting. I was a little surprised to find honesty-humility was not even more broadly deployed in nominations.  Perhaps, like lack of neuroticism (no mentions), it was something that was often taken as read. We should, however, recognise that any attempt to map the range of human personality traits onto a small number of discrete categories is going to lose something – perhaps much – in translation. Gorbaniuk and his colleagues question the value of the Big Five, and instead argue that “research on the structure of politicians’ perceived personality traits should be conducted for each country separately. The specificity of a particular country, its culture, and its political scence may plan an important role in this respect”. The psycholexical method they use for their study of the Ukraine is extremely impressive, and could work well in the unique context of the Manx MLC process, but is not something for a lone scholar to attempt. Nonetheless, their scepticism about their general, and their interest in the particular, led me to keep an eye open for traits which were commonly mentioned, but which did not necessarily fit easily or transparently into a six trait model. Two additional traits are worth mentioning.

Firstly, intelligence (24) and the ability to be critical (19) were frequently mentioned by nominators. Given the emphasis on the Legislative Council as a scrutiny chamber preceded the move towards appointing outsiders as MLCs, this is unsurprising.

Secondly, and something more of a surprise, passion was a recurring theme in a minority of nominations, appearing 18 times. Sometimes this was in the abstract, at other times it was associated with passion for the role, or as passion for a particular agenda (for instance preservation of the Manx environment, or equality, or human rights).

In the next blog, I will bring the different threads in these blogs together to identify the paradigm nominee for the Legislative Council and – more of a reach – the paradigm successful nominee.

Together with Teale Phelps Bondaroff, I wrote a long blog post on the changes to prayers in the House of Keys. Available on the excellent Law & Religion UK blog here .

Manxness.

As might be anticipated in appointment to the Manx legislature, the overwhelming majority of nominations had some argument put forward by the proposer to demonstrate the Manxness of the nominee. Only five nominees did not have an explicit point made about their Manx connections, and of these only one does not have quickly identifiable Manx connections of the type discussed below. The exception is Christine Wheeler. Her proposer in 2018 described her as “a relative newcomer to the Island but she has already demonstrated her commitment to preserving what we have building on that and successfully meeting the challenges ahead. Mrs Wheeler has familiarised herself with how our Island’s Tynwald works and has immersed herself in politics, including researching the background to a number of the
issues we are currently facing”. She was unsuccessful.

So, what sort of Manx connections are seen as persuasive by MHKs in putting forward their nominations? In order of chronological depth we find Manx ancestry (11), Manx birth (9), Manx education (11), raising children in the Isle of Man (11), and long term Manx residence (48). Obviously many of these overlap – “born and bred” is an expression used of some candidates for instance – but what is striking to me is how much emphasis is given to long term Manx residency. For a significant number of nominees (31) this is the only marker of Manxness brought out in their nomination. This suggests that nominating MHKs are working on a conception of Manxness which bears something of a resemblance to the Scottish National Party’s emphasis on civic nationalism (discussed further in an open access article here) – being part of the community on the Isle of Man, whatever one’s origins.

Regionality.

Recently, a number of MLCs have described themselves as “Southern”, in a statement on the future of a publicly owned southern community pool which begins “The Southern Tynwald members”. MLCs are not elected on a constituency basis, but on a national one. Nonetheless, this does raise the question of how far regionality is stressed when nominating prospective MLCs.

When MLCs were overwhelmingly elected from sitting members of the House of Keys, there were frequent references to geographical balance in the Council – in particular a concern that MHKs representing Douglas constituencies should not be overrepresented, reflecting the other members of the Council being officials primarily resident in Douglas. With the growing shift to outside nominations, however, this has become a very much less significant theme. Only 26 of the nominations were associated with a particular region (of which 7 were associated with Rushen sheading, and 5 with Douglas). In the majority even of these nominations, regionality was associated with a particular activity – for instance specifying which part of local government the nominee had experience of (for instance Michelle Haywood in 2020). Of these 26, in only one nomination was there an echo of the former emphasis on regional representation. In 1987 Alan Killip was proposed partly on the basis that he was a Douglas resident who would be taking a seat held by a Douglas resident. He was unsuccessful.

Regionality is clearly not built into constitutional law for MLCs – they are elected on a national basis by the national legislature. Neither, in relation to the more recent pattern of appointing MLCs from outside Tynwald, is regionality an expectation emphasised in the appointment process.

A recurrent theme in nominations to the Legislative Council is that the nominee has a history of public service. Often the term itself is used in nominations, but it is worth expanding. Public service is seen as about societal rather than self-interest, and close to civic mindedness. It is not, however, seen as incompatible with being paid for the activity – although not seen as synonymous with public sector employment, it is not seen as incompatible. So we find the case for a nominee as a public servant built on a career as a police officer, for instance.

An overwhelming majority of nominations referred to the public service of the nominee: all but 8 of the 63. The 87% of nominees whose nomination referred to public service had the case made through involvement in a wide range of activities, and it was common for a single nominee to be associated with multiple types of public service – .for instance Barbara Brereton’s nomination in 2010 referred to her public sector work in a protective service, her other public sector work, her local government roles, her work as a school governor, her work in a religious organisation, and her work in a Manx charity.

As mentioned above, public sector employment was often represented as public service: 10 by reference to a protective service such as the police or the military, and 21 by reference to other public sector careers. Taken together, this was by some distance the most common way of making a public service case, at nearly 50% of all nominations.

Beyond employment, involvement in Local Government, almost always as a repeatedly elected Commissioner, was referred to for 18 nominees. We also find extensive reference to involvement of varying degrees with Manx charities – 17, as opposed to 3 references to involvement in non-Manx charities. The only other activities mentioned for 10 or more nominees were work with government agencies (13), work with Manx cultural associations (12; 13 if you include the Southern Agricultural Show, which perhaps controversially I have classed as a business association rather than a cultural association) and involvement with sports and hobby clubs (11, primarily Manx football and motorsports).

Focussing on the three biggest categories (public sector employment, local government, and charities), 44 of the 63 nominees had at least one of these categories in the case for their public service (just under 70% of all nominees). A significant number of nominees had two or even all three (14 and 1 respectively), but 29 of them had only of the three factors (.just over 45%).

The significant place of public sector employment as evidence of public service is interesting. As paid employment, it might be seen as in tension with the idea of service, and the prioritisation of the public interest over the private interest, I mentioned at the start. It suggests to me that a public sector ethic, making public sector careers different from private sector careers, has been taken as read by at least some MHKs during the process. We see this most strongly in relation to the protective services, but the significant place of public sector careers in many nominations suggests this assumption goes beyond those services.

In an earlier blog I charted the change in the type of candidate being nominated to, and elected to, Legislative Council by the Keys. It was not until the 1990s that MHKs began to nominate, and elect, “outsiders” to Tynwald, previously having almost exclusively appointed MLCs who had experience of Tynwald either as MHKs or as sitting MLCs. From the 2010s the majority of those nominated to the Legislative Council were these kind of outside nominations.

The process of a lower chamber of a legislature appointing members of the upper chamber appears to be unique in contemporary constitutions; although there are some historic parallels. One significant feature of the process is the relative transparency. I need to stress relative – there is evidence of parts of the process that have not survived (for instance candidate CVs circulated by nominating MHKs in some years; or group meetings with interested MHKs and candidates), and it seems likely that there are other interactions which have not been recorded. We do however have comparatively extensive records of why candidates were put forward by their nominating MHKs, either incorporated into Hansard when nominations were part of Tynwald proceedings, or by Tynwald documents when the process moved onto paper). This includes both successful candidates and – distinctively – unsuccessful candidates.

I have collated information on all 63 outside candidates considered since 1962, and am currently analysing this dataset by reference to a range of characteristics put forward in the process. My focus is on the speeches (later letters) proposing a candidate, rather than carrying out independent research into the biography of each of the 63. This makes the analysis more bounded, but I think can also be justified on quality grounds. Candidate X may have been an official in a youth movement, and a police officer, but the proposers decision to talk only of X’s work as a police officer indicates what the proposer saw as persuasive to fellow MHKs sitting as an electoral college. That is to say, a focus on the proposers choice of characteristics shows us what they regarded as relevant and persuasive to other MHKs.

In this blog I look at the professional, employment, or career background of the candidates. I have classed each candidate by the categories used in the Manx Census 2021, Level 2 (described here). To help ensure consistency of how I class particular professions or careers I have also taken account of the UK NOMIS Employment by Occupation (SOC2010) characteristics, which usefully expand the Tier 2 categories with sub-categories (described here) . I have noted every profession or career mentioned by a proposer, rather than tried to make a judgment as to “primary” career – where the proposer mentioned a number of careers, each was seen as making the nomination more persuasive. So, what professions and careers were seen as persuasive?

Dominating the nominations were the broad category of “Business, Media and Public Service Professionals”. This very broad professional category includes for instance legal professionals including judges, accountants and economists; architects; journalists and PR professions. 35 candidates feel into this category. To break these 35 candidates down a little: 15 were finance sector professionals; 6 accountants; 6 lawyers; 4 media professionals; and a single quantity surveyor, single actuary, single architect, and single economist. The only other categories with 10 or more candidates were Protective Services Occupations (including armed forces, police, and the fire service) with 11, and Corporate Managers and Directors with 10.

55% of the candidates were from the category Business, Media and Public Service Professionals. To put this into context, in the 2021 Manx Census, just under 7% of the Manx working population were classed in this category. Entire categories of occupation have never been mentioned in nominating a candidate – on the Tier 2 table on the Manx Census, from Secretarial and related occupations down (constituting 44% of the Manx working population in 2021), only one person had one of these occupations referred to in their nomination (so less than 2% of all nominations). John LIghtfoot, described as an auto electrician who worked for the bus company for 39 years, was nominated in 2007. He was not elected.

This mismatch should not be seen in itself as a killer fact. Reference to profession or occupation is so ubiquitous in MLC nominations because it can function as short hand for, or evidence of, skills and traits that the proposer sees as useful to an MLC. For instance a lawyer with judicial experience might fairly be represented as able to “provide professional legal and technical opinions on the construction of Bills and various other legal matters” (nomination of Mr Michael Moyle by Mr Houghton in 2015). I will be seeking to unpack these characteristics in future blogs. Nonetheless, that the working life of so much of the Manx population has not been seen as useful preparation for the role of MLC should be food for thought to those seeking a diverse and representative Tynwald.

This is a rather impersonal, technical, blog. I would like to begin by agreeing with those commentators and parliamentarians who have expressed their dismay at how Dr Rosalind Ranson was treated as a result of her efforts to protect the Isle of Man during key phases of the global pandemic. To quote Dr Ranson from the BMA press release on the decision: “As a doctor, my duty is to put patients and public first and this was made almost impossible by the campaign that was waged to make my work life untenable, to undermine my credibility and professionalism and finally force me out of a role I had been so looking forward to making a success”.

The Employment and Equality Tribunal decision, or rather part of it, in Ranson v Department of Health and Social Care was released on the 9th of May; and can be read in full here. It is a lengthy and meticulous report which has largely drawn attention for its findings of the treatment of Dr Rosalind Ranson, who was Medical Director for key periods of the pandemic, when she sought to raise significant concerns over how the Manx response was being formulated. It raises significant issues concerning the governance, and management, of the public health response. After the publication of the decision, the head of the Manx Civil Service has retired and the Treasury Minister, who was Health Minister at the time, has resigned his ministerial post.

On the 17th of May, Tynwald began discussing the case. The President began the discussion by noting “The case is still sub judice and is likely to be so for several weeks to come … in view of the degree of public concern I have allowed the Chief Minister to make a short statement. I have asked the Chief Minister to avoid commenting on the case itself, which is still a matter for the Tribunal, but to concentrate on future government action, which is properly a manner for Tynwald”. The President then enforced this distinction in the debate which followed, for instance not allowing one of two questions from Mrs Caine, one of four from Mrs Christian, two of three from Ms Faragher (although one was on a different ground), one of five from Mr Thomas, and two of two from Mr Moorhouse, The President also requested the Chief Minister to answer some questions generally, rather than specifically.

It is, I think, fair to say that some members of Tynwald found the partial debate, with some topics permitted and others not, frustrating. The Speaker at the end of the debate asked the Chief Minister “to acknowledge today the pent-up frustration of Members with questions that, quite rightly, have been disallowed today and support a general debate on all questions raised … on all the issues … as soon as possible after the sub judice cloak has been lifted”.

The President was in an unenviable position, once he had decided to allow some questions to be asked and disallowed others without setting out why some questions could not be permitted. Proceedings might have gone more smoothly if he had begun the debate by doing so. I should stress here that sub judice does not permanently bar questions from being asked – it merely delays them. What might have been the basis for some questions being delayed?

The Standing Orders of Tynwald dealing with sub judice are not the same as those to be found in the UK Parliament. The current SO were revised in September 2021, and can be found here. A question shall not refer to any matter which is sub judice, subject to the discretion of the president (SO 3.4(10)), nor may a motion (SO 3.11(4)). nor the subject matter of a General Debate (SO 2.20B (8)).

Sub judice was defined by an amendment to SO on 17th November 2009. Under SO 11.4(1) sub judice “includes any civil case in which papers for the commencement of proceedings have been filed in the office of any court or tribunal, whether or not they have been served on or communicated to the other party or any criminal case where a person has been charged or summoned to appear at court. A case will remain sub judice until it is discontinued, or judgment has been or verdict and sentence have been delivered and until the time for appealing has expired; it will continue to be sub judice after papers for the commencement of any appeal have been lodged until judgment or discontinuance”.

Dr Ranson’s case is clearly, under Tynwald SO, capable of making a question sub judice. Unlike the UK Parliament SO, sub judice extends to proceedings before a Tribunal such as the Employment and Equality Tribunal. Although I would note that even the UK Parliament goes beyond the courts simpliciter in defining sub judice, for instance including fatal accident inquiries, the Tynwald SO go considerably wider – 22 tribunals are listed at the Courts website including for instance the Riding Establishments Appeal Tribunal, ,the Independent Schools Tribunal, and the Flood Risks Tribunal

But, given that the Tribunal is covered by the rules, a very lengthy decision has been made on the case, in Dr Ranson’s favour. Why is the case still sub judice?

My reading of the case is that two issues were left outstanding, although there may be a third., and I think we can usefully eliminate a fourth.

Firstly, by agreement between the parties the hearing focussed on liability – whether Dr Ranson had suffered a legal injury entitling her to a remedy from the court. By agreement, “all questions of appropriate remedies were left over to a further hearing” (para 854). One might have anticipated the President allowing questions to be asked about liability, but not the remedies – for instance whether Dr Ranson would be reinstated, the level of damages she should anticipate.

Secondly, and in my view even more importantly, the hearing raised very serious concerns as to how far the government side had met their obligations under the rules of disclosure. Disclosure requires the opposing sides in a court or tribunal action to reveal information to their other side even – it’s fair to say especially – when it weakens their case. These concerns are outlined in paragraphs 791-848 and make disturbing reading. The two sides were ordered to liaise to agree a format for a further hearing purely on the disclosure matters, and agree with the Tribunal a date (para.847).

The concerns raised by the Tribunal are very significant. Under a section headed “Government policy of (potential) Evidence Destruction”, for instance, the Tribunal stressed the further investigation which the Disclosure Hearing will involve “is needed to understand whether there has been material non-disclosure or destruction in this case but importantly to prevent a miscarriage of justice in any future case involving any Government Department” (para. 846, my emphasis). Another section, dealing with emails revealed following a question asked by the Chairman during Closing Submissions, raised concerns over whether processes which had allowed two important emails to “slip the net” might cause problems “in further proceedings in this Tribunal (or the High Court) involving disclosure” (para. 827-828). Another heading is (in quotes) “Concocted documents”, and includes the observation “It is unusual in this Tribunal for any party to have to go to the lengths of seeking affadavits as to the veracity, scope and extent of the disclosure but in this case it was thoroughly justifiable” (para.836).

This really matters. Courts and tribunals need to have evidence before them which will allow them to make just judgments according to the law. So disclosure matters. A Manx Tribunal making rulings critical of the Manx government is – albeit neither painlessly nor desirably – good governance working. A Manx Tribunal unable to do justice because key evidence useful to those taking taking action against the Manx government is not available to it may not be. So the Disclosure Hearing will be crucially important to understanding how Manx government was working in the aftermath to the Ranson affair. Because of the importance of this matter both for this particular set of proceedings, and constitutionally, I can see why the President would seek to apply the sub judice rule until after the Disclosure Hearing has concluded.

A third possibility is that the President was concerned that the government would seek to appeal the existing decision against it on a point of law, by appeal to the High Court (under the Employment Act 2006). The Tribunal works on the basis that the time limit for such an appeal is 42 days. One would hope the President, if informed by government that no appeal was planned, would not feel constrained to wait this time out before allowing questions to be asked. The reference by the President to “several weeks” suggests that this was not on his mind.

Given the seriousness of some explanations for some of the issues raised by the Tribunal around disclosure, it might be thought that a fourth possibility could apply – that the President knows or has reason to believe criminal proceedings are being considered. There is nothing in the debates to hint at this, but in any case it would not justify the President in applying the sub judice rule. Under the SO, sub judice applies to “any criminal case where a person has been charged or summoned to appear in court” – not to where an investigation is under way or is being considered.