In our first in a series of blogs ahead of the 2023 Legislative Council Elections, we explore the history, function and form of our second chamber as well as some of the key arguments for and against reform.
It may often seem hard to find many supporters of our second chamber. Born out of a time when the Governor held executive power, the Legislative Council is often seen as a sticking point for politicians and the public across the Isle of Man.
In its current form, it is supposed to serve as a revising chamber, with its members there to scrutinise legislation, public policy and the Government itself. Despite a number of supporters, to many LegCo has come to be seen as a totemic symbol of the perceived issues with the Manx constitution and political system and an ‘in your face’ example of the democratic deficit which exists within Tynwald.
Whether it’s the role of the Bishop, the indirect election system or its failure to shake the ‘jobs for the boys’ reputation which sees so many former and failed members of the House of Keys get a second chance in our parliament free from a direct public mandate, LegCo is a seemingly everpresent issue, constantly simmering in the background.
Whether it be its role, size or election system is not a particular outlier when compared to other second chambers of similar-sized countries and when placed next to the House of Lords appears as a bastion of democracy.
But are those criticisms fair? Whether it be its role, size or election system is not a particular outlier when compared to other second chambers of similar-sized countries and when placed next to the House of Lords, appears as a bastion of democracy. Proponents are quick to point out that it has been on a long process of reform since its inception and that the modern LegCo provides an essential and often overlooked scrutiny function, as well as a necessary block-on-the-bloc vote of CoMin.
With the approach of this year’s Legislative Council elections and 11 candidates looking to fill 4 seats in our upper house, at a cost of £1.3 million over the next 5 years, the value of the Council is once again being called into question. So do we need a Legislative Council? Is it still fit for purpose and what could we replace it with if we were to get rid of it?
The History of LegCo
Originally, and like in so many other parliaments, the Legislative or Lord’s Council laid down the law, serving as the informal executive - through which the Governor, governed. Its membership was relatively fluid, with law officers and representatives of the church holding positions periodically. Revestement didn't change much and it wasn’t until the restoration of limited autonomy and the introduction of an elected Keys in the 19th Century that real change for LegCo came a’ calling.
The modern Legislative Council which we know and love is a product of the 20th Century.
The modern Legislative Council which we know and love is a product of the 20th Century. Fuelled by Manx domestic pressure, the UK Home Office recommended major changes which were enacted in 1919. These saw the introduction of limited indirect elections to LegCo for the first time. This process accelerated rapidly post-WW2, with a second report seeing the creation of an Executive Council, removal of the LegCo veto on legislation and increasing limits on the power and role of the governor. Reform stopped short of direct election for LegCo, although it was mulled with the 1911 Home Office report suggesting that if a party system were to develop.
Throughout the latter half of the 20th century, the role of LegCo changed further. Shifting from a home for the executive, to a revising chamber. Further moves towards self-government saw more power transferred away from the Council and its Chair, the Governor, to an Executive Council and then to the modern Council of Ministers. The Governor, now consigned to a predominantly ceremonial role was removed (not by force) from the legislature in 1990, with the creation of the Tynwald Presidency.
Periodic Tynwald debates and Select Committees explored the role of LegCo and options for change however, post-1990, significant reform stalled.
Much of the discussion of change in recent years was born of a review initiated in 2015 by Tynwald and conducted by Robert Rogers or Lord Lisvane, (former Clerk of the House of Commons in the UK). The review, whilst comprehensive was not widely supported in Tynwald and whilst some recommendations were adopted it was argued by some that ‘Lord Lisvane had not understood the Manx constitution’.
More recent reforms include the removal of the Legislative Council in the Royal Assent process (2006), the election from a piece of Legislation to Standing Orders (Parliamentary Rules) (2017) and the removal of their role in the vote on the Chief Minister (2018).
Proposals from 2019 which would see the chamber reduced in size from eight to six elected MLCs, designed to deal with public disaffection have also appear to have been put on hold.
What does LegCo do?
That brings us to the Legislative Council of 2024. Compared to the Keys the roles and responsibilities of the LegCo aren’t enormously well known by the general public. Many, perhaps due to the colour scheme, see it as an equivalent to the House of Lords in the UK.
In terms of function, there are definitely parallels. Many post-colonial Westminister-style parliaments maintain a bicameral, appointed second chamber, which primarily serves to revise and scrutinise law - born out of the House of Lords. LegCo is no different and through committee sessions, LegCo meetings and Tynwald, MLCs take part in debates, influence legislation and are supposed to provide direct advocacy for members of the public and utilising specialist knowledge based on their background. MLCs can, and do, become members of Government, with many serving in Departments and some even serving as ministers.
In terms of form, the differences are more pronounced. Rather than the over 1000-strong second chamber of the UK, LegCo has 11 members, 8 nominated and elected by Keys for 5-year terms and 3 ex-offio members, the President, Bishop and the Attorney General. There is no term limit and prospective candidates need only to be over 18 and a resident of the Isle of Man. To apply there’s no appointment commission and no formal job application form, all you need is the support of four MHKs to be considered and a simple majority of MHKs to support you to be elected.
Is reform necessary?
So where does Legislative Council reform fit in the context of present political priorities? Bill Henderson MLC, in the 2015 debate which led to the Lisvane review said, “in the near 20 years I have served the people of North Douglas in the Isle of Man in this place, not once has a constituent made a special point to nail me to the wall with a policy for Legislative Council reform as one of their big issues.”
At the last election, only 8 elected members made reference to Legislative Council reform in their manifestos.
At the last election, only 8 elected members made reference to Legislative Council reform in their manifestos, and of those, only 4 explicitly committed to the delivery of a publically elected chamber. Other suggestions included the removal of the Bishop’s vote, the reduction in the number of MLCs and a forced break between MHKs moving to the red and gold semi-circle.
A review of its powers appears to be even less of a priority for the public or politicians, with very few discussions on changes to the function of LegCo, even within conversations around reforms to its composition. Much more attention is instead paid to the ‘how’ of getting people into the chairs rather than ‘what’ they do when they are sat in them.
Whilst it’s important to note that manifestos are only one metric to measure political pressures, the ‘uninterested public’ argument is often used by opponents of reform, who accuse supporters of ‘naval gazing’. Wasting parliamentary time, resources and money looking for new information on questions which have already been answered and don’t register on the public radar.
When public services are stretched and interest in Tynwald is low, it’s not unreasonable to assume that people do not see reform as a priority. It is understandable that politicians don’t want to rock the boat if it’s sailing steady or risk it tipping over if caught in a wave with a wholesale transformation of their legislative process which very few are asking for.
We are often told that whilst ‘Legislative Council is not perfect, it works’ and to some extent this is true. Tynwald doesn’t suffer the same issues as other parliaments, there are no double dissolutions, we generally have a government and LegCo seems to strike a balance between performing its scrutiny function and not engaging in open hostility with the Keys.
But the statement, aside from being somewhat defeatist, is also highly subjective.
The metrics used to judge whether or not the chamber ‘works’ vary depending on who is asking the question. Does it represent the public? Does it amplify minority voices? Is it independent of influence? Does it provide effective scrutiny? Does it challenge the Government?
Whilst the quality of LegCo’s work is often commended, diversity (at least in terms of gender and age) has improved in recent years and when compared to other appointed second chambers the process for election, MLC’s responsibilities and limits are clearer and more transparent; can one really argue that these, often unentrenched, aspects warrant a free pass from the question of reform.
Clearly, issues exist for some members of the public that the current form of Legislative Council does not address.
“What really matters is the effectiveness and efficiency of this parliament, in all its functions.”
As Chris Thomas MHK said in a 2015 debate, “What really matters is the effectiveness and efficiency of this parliament, in all its functions.”
It may seem obvious but the quality and effectiveness of legislation is directly related to how Tynwald and Legislative Council operate. One could argue that a disconnect exists for many between Tynwald’s process and the products it produces. If Tynwald is repeatedly failing to create effective or representative policy or a subset of Manx society feels a disconnect, then we need to look inwards to ensure that the institutions which make policy are fit for purpose.
Whilst Reayrtys takes no option at this time on what form LegCo should take or if reform should take place, it is clear that reforming LegCo is not a simple act with no quick fix. There are merits the current system and some evidence to indicate that reform is not a priority for the public. However, the issue of the Legislative Council, its composition and role is clearly a sticking point for many both within and outside of Tynwald and genuine criticisms exist related to democratic accountability. It is evident that unless addressed this issue will not go away.
So if reform is to happen, what should it look like?
Don’t worry, we’re not going to subject you to that now, this blog is already long enough. Over the next few days, we’ll be exploring some of the options for reform, from the restrained to the radical. We’ll be updating this section once we publish them so be sure to keep an eye on our website for more information.
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