Before it goes to Tynwald next week we wanted to take a moment to reflect on the Constitution Legal Affairs and Justice Committee’s First Report on The Constitution of the Isle of Man: Internal Self-Government and External Self-Determination.
You may recall that we gave evidence to this Committee back in 2023 and published a report about their inquiry - it was one of the first things we did as Reayrtys.
This review was the first time that Tynwald had looked into the constitutional status of the Isle of Man in 20 years and for us was an opportunity to have an adult conversation about our constitution and status as a Crown Dependency.
Our status and set-up may seem at first glance to be abstract distractions, distanced from actual policy but in actuality, a lot of what the Committee was looking at had the potential to have a real impact on our direction as a country.
Our position was, and is, centred on a pragmatic desire to ensure that the current constitutional setup is best placed to serve the Manx public, to safeguard its self-determination and to make the most of its current status, to ensure that we aren’t left behind by our cousins in other countries.
The committee’s report contains eight recommendations and these will be voted on in Tynwald at the end of the month.
The TL;DR is that we agree with a lot of what is in the report. It’s maybe not as bold or broad as we would have liked to see but we believe that many of the recommendations are a step in the right direction and we are glad the committee has looked into this topic in such detail. What follows is our commentary on the Committee's recommendations. We have also made some suggestions for any MHKs reading who may want to beef things up further.
Recommendation 1
That Tynwald is of the opinion that any Order in Council which extends to the Island provisions of any Act of the UK Parliament, should be laid before Tynwald at the earliest opportunity after it has been made; and that the Standing Orders Committee of Tynwald should consider and report on how such laying might be guaranteed.
What this means:
Ok, so once again we’re going to provide a brief explainer of how UK legislation is extended to the Isle of Man. UK legislation doesn’t ordinarily apply to the Crown Dependencies.
However, UK legislation can be extended to them should a Government wish. This is done by including a ‘Permissive Extent Clause (PEC)’ in the UK’s bill allowing for certain parts of, or the entire, bill to apply to the Islands.
Ordinarily, it takes place following consultation between the UK Government and the Governments of the Isle of Man, Jersey and Guernsey. Once the bill becomes law in the UK, in order for the bit of legislation applying to the Isle of Man to take effect it requires an Order in Council which is made by the Privy Council in the UK.
Convention says that this OIC is then presented to CoMin for approval and CoMin then brings it to Tynwald.
The Committee's recommendation is calling for a commitment from CoMin to present that Order to Tynwald.
Our thoughts:
We agree with this recommendation however it could be argued (and the Council of Ministers does in their response) that this is already the practice for OICs, so it’s somewhat moot.
However, laying something before Tynwald and Tynwald voting on it are two different things, and this is the important bit. OICs are laid for information, not for a vote. We believe that it’s right that any legislation which has the potential to affect the Isle of Man should be voted on by the Island’s parliament.
We’re not saying that it needs to be bespoke Manx legislation but simply that it shouldn’t be technically possible for legislation which is meant to be the purview of Tynwald to never have been voted on or debated by Tynwald before it becomes active.
Mr Speaker in his submission to the CLAJ committee flagged that the power to request the initial extension of Legislation (a PEC) is held entirely by the Council of Ministers and the UK Government - in short Tywnald plays no part in it.
Whilst CoMin may be keen to stress that asking for a Permissive Extent Clause is very different to the legislation becoming active, which requires an OIC. Technically the UK has the ability to draft and approve the Order in Council without Manx political approval or input. Formal UK Gov guidance does say that the normal process requires this to be in partnership with the Island Government which put in the request. However, as this process is based on convention it's maybe not as concrete as we would like to see and once the Order is drafted it can't be countermanded by Tynwald (that's according to at least once legislative drafter).
Importantly, Jersey and Guernsey have a protection against this in place, meaning that before any legislation from the UK can take effect it needs to be approved by the relevant Island’s Assembly. If a conflict arose, however, it almost certainly would create a constitutional crisis.
Whilst we believe that PECs can be useful, we suggest that this recommendation be amended to ensure that Tynwald has a say in what will eventually become the law of the land. We recommend that Tynwald be consulted and be required to approve any PEC before it is included in UK legislation and that Tynwald is given the opportunity to vote on a request for an OIC before it is drafted (before it is drafted).
Recommendation 2
That Tynwald is of the opinion that legislation made by the UK Parliament at Westminster should not be extended to the Isle of Man without the consent of Tynwald; and that where international issues arise upon which the UK may have a legitimate interest in Manx legislation, the Isle of Man Government should continue working constructively with the UK Government to resolve these by other means.
What this means:
That UK law shouldn’t apply to the Isle of Man except when we ask for it or when it falls under a reserved policy area and the Isle of Man shouldn’t roll over if international pressure is applied by the UK to intervene in Manx affairs but should instead work with the UK to resolve the issue and ensure the independence of its policy-making process is respected.
Our thoughts:
It should go without saying that we agree with this recommendation - it would be very strange if we didn’t. As we have set out above, there is an un-codified but fairly well-established process around the extension of UK Legislation to the Isle of Man.
However, despite what the Council of Ministers’s response may say, there have been a number of notable attempts (accidental and intentional) to legislate for the Crown Dependencies in recent years, which are ‘outwith’ the established process.
These have included Beneficial Ownership, Fishing Rights and Immigration. The UK Justice Committee in their own report agreed with the CLAJ and Channel Island’s assessment of this and called for the process to be reviewed and tightened up in order to prevent a potential constitutional crisis.
Whilst fortunately, we haven’t gotten into any ‘tricky situations’ that doesn’t mean that it won’t happen in future, particularly if we choose a path which diverges from the UK.
We agree that the Isle of Man should continue to work closely with the UK government to monitor for potential flare-ups and also believe that there should be more done to educate and link up with UK Departments and MPs/Peers to help them understand the policy reality of the Isle of Man and what their responsibilities for the Crown Dependencies are.
Recommendation 3
That the Isle of Man Government and the Isle of Man Branch of the Commonwealth Parliamentary Association should seek opportunities to discuss with colleagues at Westminster the possibility of codifying, as a matter of Westminster practice and procedure, a convention that legislation for the Crown Dependencies should not be introduced except on the initiative of the Crown.
What this means:
Like so many other things related to the UK Constitution, the process of extending legislation to the Crown Dependencies is based on convention - it’s not set in stone. We rely on the UK Parliament and Government to follow a set process but there really isn’t anything to make them do so. As the UK Parliament has ‘supreme legislative power’, technically it has the authority to legislate for the Isle of Man on whatever it wants.
This recommendation wants to see the criteria and process for extending UK legislation or legislating for the Crown Dependencies written down and restricted so that only the UK Government (on behalf of the Crown) can initiate that process.
Our thoughts:
As above, we agree with this recommendation but we believe that it should be undertaken in partnership with the UK MOJ and our colleagues in the Channel Islands.
Although attempts to extend legislation to the Crown Dependencies without our consent are rare, they have happened in the recent past - both as a result of UK Government oversight and by UK lawmakers who do not fully understand or care about the Island’s domestic policy-making independence.
The UK Justice Committee in their own report agreed with the CLAJ and Channel Island’s assessment of this and called for the process to be reviewed and tightened up.
Whilst the Isle of Man Government believes the current set-up has its merits, allowing for ‘flexibility’, we don’t share that opinion. The current set-up is based on the ‘good chaps’ theory that those in power will follow the rules and do the right thing. However, when the rules are simply based on convention, bad actors can chose to try to ignore them. We should seek to limit opportunities for this.
We agree with CoMin in their assumption the parliamentarians may resist having its ability to legislate for the Isle of Man curtailed by an Act outlining how and when it should carry out this process.
However, we think that there is value in ensuring that a constitutional safeguard is in place, one which recognises the maturity of our country and the independence of our policymaking and would hope that our friends in the UK parliament would respect our nation’s autonomy as well - given we’re all such great friends. Such a safeguard would head off any potential misunderstandings which could turn into full-blown constitutional crises.
It should be noted that:
1) The recommendation does not specifically call for an Act.
2) Regardless, such an Act is not without precedent for the UK and has previously been applied in various forms to its former colonies as they moved on their path towards full self-determination.
As above we believe that more work should be done to educate MPs and Peers about the Isle of Man’s constitutional status by both the Isle of Man Government and the Ministry of Justice through their role as representative for the Island’s interests across the UK Government.
Recommendation 4
That Tynwald is of the opinion that the Island needs to deploy a permanent representative to Westminster who is accountable to the democratically elected Government of the Isle of Man; that Tynwald calls on the Council of Ministers to investigate how this opinion could be put into practice and to report to Tynwald with recommendations; and that as part of its investigation the Council of Ministers should explore the possibilities of sharing expertise and resources with Jersey and Guernsey.
What this means:
That the Isle of Man Government put a staff member in London to represent the Isle of Man's interests. Currently, this role is jointly served by the Cabinet Office's External Relations team who take periodic trips to London with ministers, and Lexington, which is a UK-based consultancy which the Government has a contract to public affairs support and monitoring. This is in contrast to Jersey which has an office in London staffed by four civil servants.
Note: The Isle of Man does technically have an overseas office in Brussels, however, it's not very big and it's role is limited.
Our thoughts:
We were asked about this during our evidence session and our response hasn’t changed since then.
We believe that there is value in having representation in other countries in order to foster relations, allow for regular engagement with business and government and quickly and discreetly allow for face-to-face advocacy.
Evidence given by Jersey and Guernsey to both the CLAJ Committee and the UK’s Justice Select Committee reinforced the value which comes from having representation over simply relying on a Zoom call.
However, the deployment of staff should not be done before an international relations strategy is in place. Plopping someone down and telling them to ‘represent’ is unlikely to be a success and Jersey and Guernsey have opened offices as part of a broader external relations push (note the fact that they both have External Relations Ministers) centred in a strategy.
Currently, the Island’s External Relations Strategy (and the Director of External Relations) are both MIA, with the strategy so late that it’s even missed its extended deadline and no Director being in post for the last 10 months. This is frankly, unacceptable.
At a time when our cousins in the Channel Islands and Overseas Territories are adopting proactive external relations strategies, we remain seemingly adrift. CoMin’s suggested amendment simply will kick the can down the road to the next administration.
There are a number of models which the Isle of Man can take with regard to a proactive ‘small state’ external relations strategy and we firmly believe that the recommendation should be amended to include a binding commitment to produce a strategy within the next 6 months. We do not think that any deployment of staff (to any location) should come before that strategy is in place.
We should note that whilst it is important to have a strong connection with London, we shouldn't put all of our eggs in one basket. The Channel Islands have offices in France and Belgium and have worked with the UK Foreign Office to get representation in UK embassies where those Island's have potential business interests.
Recommendation 5
That the recommendations made within the Transfer of Governor’s Functions Report 2011 should be expedited and implemented as soon as possible.
What this means:
Whilst the Governor’s role has been gradually transitioned to a ‘ceremonial’ post since the 1990s, they still hold some substantive powers, a legacy of when they were functionally the externally appointed ‘President’ of the Isle of Man.
A number of these are powers which in the UK are held by the Monarch (such as them being the person who receives resignations from the CM) or are ‘reserved powers.’
A few, however, are operational outliers, whose responsibility was never transferred to the relevant Isle of Man Government Department or Minister. In 2011 the Isle of Man Government produced a report setting out the current powers and functions of the Governor and made recommendations on which ones should be repealed, transferred or remain with them. However, they never implemented it.
Our thoughts:
It’s important to remember that this isn’t about a specific Governor but the role and the maturity of our domestic politics. We agree with the CLAJ that the Isle of Man Government should work to implement the recommendations of this now thirteen-year-old report.
Recommendation 6
That a review should be undertaken of the non-statutory powers of the Governor, and consideration should be given to which of these ought to be transferred to the Council of Ministers or elsewhere.
What this means:
At present, the Governor has both statutory and non-statutory powers. In English, non-statutory powers are functions and responsibilities which are held by the Governor that aren’t set out in law. Some of these powers exist just ‘because’ and almost all are now ceremonial in nature (e.g. being the person who appoints the Captains of Parish). The committee wants to understand exactly what these powers are in order to identify any of those which may be better served by being transferred to another office holder or body.
Our thoughts:
We don’t see this as a huge priority but agree with the Committee that we should have at least somewhat of a detailed list of what our Head of State’s representative has the power to do.
As identified by the Committee some of the non-statutory powers can have indirect implications on things which matter (e.g. The Governor chooses the Captain’s of the Parish - the Captain’s of the Parish have the ability to call and chair requisition meetings when the election comes around). In order to ensure that there aren’t any unwanted surprises we believe that doing some light housekeeping makes sense.
Recommendation 7
That the constitutional statutes of the Isle of Man should be consolidated into one Act of Tynwald; and that to that end the President of Tynwald should convene the Consolidation Board established by Part 6 of the Legislation Act 2015.
What this means:
Much like the UK and unlike the vast majority of other countries, the Isle of Man has an uncodified constitution. This basically means that there is no single document setting out the law of the land, instead it’s made up of various Acts, secondary legislation, court rulings, expert opinion and text and treaties. In short, if you’re looking for a quick read - this isn’t it.
The committee believes that this current system is disjointed, and confusing and can make it hard to access or understand exactly what is going on. The recommendation does not want to see the creation of a codified constitution though (akin to the US or Irish Constitution). Instead, it's calling for the laws which currently make up the ‘constitution’ to be consolidated into one document where possible.
Our thoughts:
We agree with the recommendation and the opinion of Dr O’Brien and Dr Edge who also gave evidence to the committee on the Manx constitution.
Anything that we can do to improve and increase the accessibility of the Manx political system should be welcomed.
Even we find current Manx legislation relating to the constitution difficult to find, hard to read and near impossible to understand how all the pieces interact with one another.
Whilst we agree with the Attorney General that it may be difficult to incorporate all the sources into this consolidated document, we think it’s a good start.
We are slightly less convinced by the opposition to the creation of a codified constitution.
The Manx Constitution is a continually evolving and renewing document. However, that evolution has at times been extremely ad-hoc with little consideration given to how different parts of it interact. This has caused conflicts, and confusion and in our opinion is not good for policy making or democracy.
We believe that the Isle of Man would be well served by exploring ways for us to mitigate these issues and see value in the exploration of developing a codified Constitution.
We do however recognise the challenges that may exist with this given our current constitutional set-up (e.g. how do you incorporate expert opinion? How does it interact with the UK’s uncodified constitution).
Recommendation 8
That Tynwald is of the opinion 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.
What this means:
Pretty much what it says on the tin.
Our thoughts:
Ok, buckle up. First thing’s first, we support this recommendation but we don’t think this is the most important recommendation from the Committee and we understand why some may view it as a waste of time to consider it when we have a huge number of issues facing the Isle of Man.
As we have previously stated, we maintain that how we represent ourselves to the world is important for our own national identity, independence and investment. We also believe that we are in good company, as along with the Committee, senior politicians from Jersey and Guernsey, have also called for a name change.
To us though, what’s most telling is the Council of Minister’s response to this recommendation, which we believe is inaccurate and frankly does the Isle of Man down.
Despite what the Council of Ministers may say, the term ‘Crown Dependency’ is not particularly well understood or especially well established.
As we covered in our blog post, the phrase first became popular within Westminster circles in the latter part of the 20th Century, prior to that we were known by multiple names including, shockingly, the Isle of Man and Channel Islands.
Various evidence submissions to the CLAJ highlighted the fact that the term can be confusing when attempting to explain our status to lawmakers in the UK and around the world.
This often leaves us incorrectly lumped in with the Overseas Territories, which have a very different constitutional status. We don’t believe that this is helpful when you’re trying to prevent UK parliamentarians from legislating for you.
CoMin’s assertion that we depend on the UK should also be challenged. Given the Isle of Man pays for the services provided by the UK which it references (defence, consular support and nationality), can we really say we ‘depend’ on them or are we simply ‘Crown Customers’? (thanks to Dr Edge for that one).
CoMin’s argument that “ a most important element of a nation’s ability to direct its own affairs, the adoption of primary legislation, “depends” on the Crown (or its delegated representative in the Island in most cases) for Royal Assent – without which an Act of Tynwald cannot become law.” as a rationale for the use of the term also makes little sense. Technically you could make the same point for the UK, which also depends on the same Crown for Royal Assent.
And let’s not forget the Overseas Territories. CoMin’s response seems to conveniently ignore the fact that they were known as ‘Dependent Territories’ until 2002. The name change was done in consultation with the territories, recognising that the term ‘Dependent’ was outdated and no longer fit for purpose.
Despite the change in name, very little else did. There wasn’t some great transfer of power to the territories to merit the switch - it was done because ‘Dependent’ no longer accurately reflected their status.
It’s important to note that whilst geographically the OTs are further away from the UK, they are constitutionally closer and less independent than the Isle of Man or the Channel Islands.
Now you may think we’re getting in a tizz with this and to some extent we are; however, their response exemplifies an overarching issue with the Isle of Man Government’s current attitude to constitutional reform and external relations.
Whilst our Channel Island cousins are storming ahead and calling out issues with the current setup when they take place, time and again our government is lagging behind and using the UK as constitutional cover as an excuse not to do things.
Rant over.
And finally,
Moving back to CLAJ report, overall we think there is some good stuff in here and we are grateful to have been able to take part in the Committee’s review. That being said we would have liked to have seen more on:
The Bigger Picture: We felt the report and its recommendations were somewhat ad hoc. The report is very different from that of the 2000 Report which kicked this whole conversation off. The new report failed to cover core parts of the discussion from 2000 such as citizenship models, alternative constitutional status or independence. We feel that further exploration of these issues is warranted given the scope of the Committee’s review and the time which has passed.
Where’s the framework: We believe there is more to be done in addressing the broader external relations deficit that the Isle of Man is facing. We welcome the recommendation around placing a representative in London however as we have covered this must fit within an external relations strategy. We would have liked to see a push by the committee for the Isle of Man to take a proactive approach to external relations work centred in a long term plan.
What’s External Relations up to? The evidence provided by the External Relations team clearly highlighted issues around a lack of systematic tracking of UK and European policy and an approach to relationship building which are entirely dependent on individual officers. We believe that given Recommendation 4, more focus should have been placed on ensuring that the broader External Relations team is well positioned to support it.
Ongoing monitoring and evaluation: In our committee submission we recommended that Tynwald undertake a constitutional review more often than once every quarter century but there was no recommendation for further reviews or engagement on this topic. We can only hope that given this is the ‘first’ report, more will follow before 2048.
The Report will be laid before Tynwald and its recommendations voted upon next week and we will be following the debate with interest - so be on the lookout for our thoughts!
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