Conscientious objection and assisted dying in the Crown Dependencies.

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The Manx Assisted Dying Bill, which has completed its parliamentary journey and is awaiting Royal Assent, is set to make the Isle of Man the first member of the British-Irish Council and the Common Travel Area to establish a legal regime for assisted dying, although it is likely to be some time before the Act is brought into force. This is an area where the Crown Dependencies have led the way. In this blog I will compare one feature of the proposed legislation for the Isle of Man, Jersey, and Guernsey:  how to treat those who conscientiously object to being involved with such a regime.

Of the three, the Isle of Man is most advanced. Jersey, although actively engaged in developing a legal framework since 2021, is on course to have a draft assisted dying bill debated in 2026. Guernsey has, for the moment, turned away from developing such a regime, with a proposal having failed in the States in 2018. Nonetheless, all three have something to offer comparative discussion of the development of conscientious objection to participation in assisted dying. In the discussion that follows I focus on six key questions, the answers to which define the reach of conscientious objection in the different regimes.

Should there be a conscientious objector clause?

As noted above, Guernsey has not developed a full draft law on assisted dying. In 2018, however, a proposal to commission a working party to develop such a draft indicated that they would be required to consider “the numbers and roles of doctors under any proposed assisted dying legislation and whether they would be permitted to have any conscientious objection to an individual’s request”. This was unusually tentative on conscientious objection, and the view of Guernsey parliamentarians was that there had to be a conscientious objection clause, and the proposal was amended accordingly. Even asking the question was seen as crass by some parliamentarians, while others were puzzled that this should be seen as difficult, given existing protection in relation to abortion. As Deputy Brehaut put it: “For many years, some nurses recruited from outside the Island have chosen not to work in the DPU as they are opposed to abortion. Their religious and moral views are respected. We have conscientious objection now; it exists. To imply that this introduces another moral dimension that has not been considered before is incorrect”. He referred here to the Abortion (Guernsey) Law 1997, which provided by section 5 that “no person shall be under any duty … to participate in any treatment authorised by this Law to which he has a conscientious objection”. The current law has been modified by the Abortion (Guernsey) Amendment Law 2021, but this part of the section remains unchanged.

The need for a conscientious objection clause was taken as read even more in the Isle of Man and Jersey, both of which have similar precedents around abortion law to draw upon. Section 8(4) of the Manx Bill, which deals with how an objection is proven, is based on the (Manx) Abortion Reform Act 2019 s.8(3). The Termination of Pregnancy (Jersey) Law 1997 art.5 provides for conscientious objection to participation in treatment under the Law, and has influenced the draft Bill in s.36-39.

This may have been taken as read simply because the arguments to allow some people to be excused from some duties related to assisted dying are seen as compelling. There may also be a parliamentary reason. There is substantial evidence that some legislators across the Crown Dependencies had objections based on religious or philosophical values to the creation of an assisted dying regime. Legislators with these objections may, understandably, be particularly attuned to the impact on those involved in carrying out the regime who share their objections. On occasion, this affinity is made explicit. In the debate over the Guernsey proposal in 2018, for instance, Deputy Kuttelwascher began his list of objections to third party involvement in suicide as  “[m]y first conscientious objection” . More generally, if a legislator believes it is morally or religiously wrong to allow assisted dying, it will be easy for them to imagine the situation faced by a practitioner who has a moral or religious objection to being involved in the process. If we adopt the maxim of Lord Thring, first Head of the UK Parliamentary Counsel Office, that “Bills are made to pass as razors are made to sell”, other legislators may be particularly keen to accommodate this as a concession not simply to the conscientious objectors, but to other legislators with a vote in the process.

What basis for the objection is required?

Abortion law in both Jersey and the Isle of Man has a clause allowing exemption from legal duties on the basis of “conscientious objection” (in the Isle of Man in the Abortion Reform Act 2019 s.9; in Jersey in the Termination of Pregnancy (Jersey) Law 1997 art.5(1)). Both the Manx Bill and the Jersey proposals on assisted dying depart radically from the model of conscientious objection that prevails in their abortion law.  

At first glance, the Manx Bill does not seem a significant departure. Section 8(1) provides that “A person shall not be under any duty (whether by contract or arising from any statutory or other legal requirement) to participate in anything authorised by this Act to which that person has a conscientious objection”. During legislative debate, concerns were expressed that doctors may wish not to be involved in assisted dying for reasons not based on a conscientious objection. This was partly met by providing a very clear mechanism for the objecting person to claim this right without possibility of challenge, adopting the earlier provisions of the Abortion Reform Act 2019 s.8(3) in allowing a sworn statement by the person to be conclusive proof that an objection existed. The section as a whole makes it clear, however, that this goes beyond conscientious objection.

Section 8(2) and 8(5), discussed below, refer to the position of a healthcare professional “who has a conscientious objection under subsection (1) or who otherwise does not intend to exercise functions under this Act”. Section 8(3), discussed below, details the protection available to a person who faces employment sanctions “as a consequence of their having a conscientious objection or otherwise not intending to exercise functions under the Act”.  Section 8(4), the provision allowing an oath to be conclusive evidence of an objection refers to the person having “a conscientious objection to participating in anything authorised by this Act or that they otherwise do not intend to exercise functions under this Act”. 

Thus, despite the familiar wording of s.8(1), with its family resemblance to the Abortion Act, and the section title of “Conscientious objection”, Section 8 goes well beyond conscientious objection, to protect a decision for any reason not to be involved in assisted dying. To borrow from Jersey, this might more aptly be described as a right not to participate clause, rather than a conscientious objection clause.

In Jersey, in 2021, in P95/2021, the States indicated that any assisted dying law should include “a conscientious objection clause”. The principles adopted in 2024 under P.18/2024 were, however, wider: “In accordance with the Assembly’s decision, the Law will explicitly provide that no person can be compelled to directly participate in the assessment, approval or delivery of an assisted death either on the grounds of conscientious objection  or  any  other  grounds  i.e.,  there  is  a  right  to  refuse  to  directly participate on any grounds (for example, emotional impact on the professional or potential impact on the professional’s other patients) not just on the grounds of conscience or belief” (my emphasis added). This appears in the draft Bill, where art 36(1) states “A person acting in a specified capacity may, on any grounds, refuse the specified participation in assisted dying unless an exception applies”.

Does this matter, given that any conscientious objection will, ipso facto, fall within an intention not to exercise a function under Manx law, or an objection on any grounds under Jersey law?

On the positive side, it sidesteps any doubts as to whether particular objections are, or are not, conscientious. An objection to ending life because of a doctor’s beliefs in the teachings of the Catholic Church, for instance, are very likely to be classed as conscientious objection. But what about a belief as to the essential nature of the relationship of a doctor with their patient? This could be a live issue for practitioners, but there could be debate as to whether participation in assisted dying burdens the doctor’s conscience in the same way. 

This approach, however, allows an objecting person completely free judgement as to the basis of their protected objection. I have discussed elsewhere particular concerns about smallness and rurality in relation to assisted dying. A doctor who is concerned that they will be shunned by family members of a person they have assisted to die can refuse on the basis that they wish to avoid social awkwardness in a small community for decades to come. A doctor who is concerned that they may face a reduction in patient lists if they offer the service can refuse on the basis that it damages the sustainability of their practice. A pharmacist who sees the opportunity to renegotiate their remuneration by refusing to follow instructions from their employer to participate without a substantial additional payment each time they do so can refuse as part of their negotiation strategy. 

The point in all these examples is that limiting the right to object to “conscientious objection” included an element of a balance between the harm to the individual who sought to object, and the broader social goods the legislation is intended to secure. Removing this means the balance may be sought elsewhere – in the case of the Jersey principles, as discussed below, by restricting the sort of activity to which a person may object.

More theoretically, does a protection as broad as the Manx law and Jersey principles actually constitute a conscientious objection clause? It undoubtedly provides a framework by which conscientious objectors can seek protection, but it is not limited to them. The same may be said of any law which can be freely opted into or out of. In relation to organ donation for instance, the (Manx) Human Tissue and Organ Donation Act 2021, contains no reference to conscientious objection, but allows a person not to consent to particular use of their corpse (Human Tissue and Organ Donation Act 2021, s.10(6)). A religious objection to being an organ donor will thus be accommodated by treating the person exactly the same as every other person, rather than providing special accommodation for their religion or belief.

What protection should a conscientious objector clause offer?

In  Jersey, the report adopted by P.18/2024 makes a broad, but vague, commitment that “health and care professionals cannot be discriminated against”. The draft Bill is unclear to me – the relevant clause requires “an employer” to “ensure that there is no employment detriment to their employee”, but states that there is an employment detriment if “the employer decides not to employ them or end their employment” (art. 38(2)). These are two very different things. If an organisation decides not to employ me, how am I thereby their employee? 

The protection offered by the Manx Bill, similar in scope to that offered in relation to abortion across the three jurisdictions, clearly relates only to persons already in employment. Section 8 provides that “A person shall not be under any duty (whether by contract or arising from any statutory or other legal requirement) to participate in anything authorised by this Act to which that person has a conscientious objection” (s.8(1)). So a conscientiously objecting person, who would normally be under a duty to be involved in assisted dying because of their employment contract, cannot be required to do so. Neither can this refusal to comply with their contract result in either termination of their employment, or their being “treated less favorably in the course of that employment” (section 8(3)). Nothing in section 8, however, prevents an employer from refusing to employ a person because of their position on participation in assisted dying.  

If the Jersey legislation may go beyond the rights of current employees, it definitely covers an entire area not covered by the Manx legislation. Article 39 provides protection for residential tenancies, including not just current tenants but prospective tenants. It covers not only refusal to agree a tenancy, or termination of a tenancy, because of participation or otherwise in assisted dying; but also prohibits “the landlord of the relevant agreement [preventing] them from having an assisted death in the place they occupy under the residential tenancy” (art 39(2)(b)). 

What sort of person should be able to make use of a conscientious objector clause?

The Manx Bill differentiates only slightly between  different types of worker. The protection noted above applies to “any person” required to “participate in anything authorised by this Act” (s.8(1)). For health care professionals, and only for health care professionals, exercising the right creates a secondary duty under s.8(5): they must “(a) without delay inform the person requesting assistance that they have a right to see another health care professional; and (b) ensure that the person has sufficient information to enable to them to exercise the right mentioned in paragraph (a)”.

The Jersey principles under P.18/2024 were similar, and in particular envisaged a similar duty to refer to another health professional. The 2021 vote had emphasised the need for conscientious objection for “any registered nurse, medical practitioner or other professional”, while the report underpinning P.18/2024 indicates that “no person can be compelled to directly participate”. The draft Bill distinguishes between different rights not to participate based on the person’s role in the assisted dying process (see the detailed table at s.36(1)). In some cases, this completely removes the right to refuse to participate – for instance for an assisted dying practitioner other than the administering practitioner. A health professional who does not give a patient requested information on assisted dying must refer them to the assisted dying service (art. 36(3)). Focussing on the administering practitioner, they may refuse to administer the approved drugs themselves; but this right to refuse does not apply where they had previously agreed to do so in the patient’s care plan; or doing so is required to deal with a medical complication following self-administration (art. 36(1)). 

What sort of activity can they conscientiously object to?

Here we may see an important distinction between the Manx Bill and the Jersey principles.

The Manx Bill applies to “participation in anything authorised by this Act” (s.8(1)). 

Participation is likely to be read in line with Janaway v Salford Health Authority (1988), where the House of Lords considered whether a health authority secretary required to type a letter of referral for an abortion fell within the statutory protection of conscientious objection which allowed her to refuse to “to participate in any treatment authorised by this Act” (Abortion Act 1967 .4(1)). “Participate in” was to be given its natural and ordinary meaning of taking part, and so it could not be said that typing a letter was participation. The secretary was excluded from the protection of the section because of the need for this participation to be with “treatment”. In the later case of Doogan (2014) Lady Hale distinguished between medical treatment and “the host of ancillary, administrative, and managerial tests that might be associated with [treatment]”. 

The Manx Bill, however, is not limited to participation in treatment, but rather “anything authorised by this Act” – wording that Lord Keith, delivering the judgment of the House of Lords in Janaway, felt would have brought the secretary within the protection of the conscientious objection clause (at p.570).  I see two possible readings. The first is that, but for the Bill, the activity which the person is asked to be involved in would carry no authority, and may even be unlawful. The second is that the activity is one which is a sine qua non for the completion of assisted dying under this Bill. Let me give two concrete examples of why this might matter.

Firstly, the Bill only allows the assisted dying regime to be accessed when a person has made and signed a declaration to that effect in the presence of a witness who is not a relative, directly involved in their care or treatment, or who will gain financially in the event of the person’s death (s.6(1)). Consider a scenario where the person’s firm of advocates provides such a witness by sending a paralegal to sign the declaration. If such a paralegal has a conscientious objection to acting as a witness, and is dismissed for refusing to do so, are they protected by s.8? It feels a stretch to say that acting as a witness has authority only because of the Bill; much less of one to say that for someone to act as a witness is a sine qua non for the delivery of assisted dying.

Secondly, the Bill requires that the substance approved to assist dying must be dispensed and delivered to the person seeking assistance, and the assisting health care professional “remain with the person until the person has (a) self-administered the approved substance and died or it is determined by the assisting health professional that the procedure has failed; or (b) decided not to self-administer the approved substance”. Consider a scenario where the person is a tenant in a property, and whose tenancy gives them very broad rights to use the property, and to have guests; or a care-home resident whose agreement with the care home gives similarly broad rights. If the landlord or care-home operator has a conscientious objection to their property being allowed for assisted dying, and violates the lease or contract by preventing the health care professional entering the premises in order to deliver the approved substance and then remain through the death, are they protected by s.8? Again, it feels a stretch to say that the activity has authority only because of the Act – the right of the person to take deliveries and guests at the address is contained in a legal document inter partes. But without the landlord or operator complying with that legal document, the assisted dying would not occur when and where it did – once again, it is a sine qua non for the delivery of assisted dying.

On balance, I am swayed by the obiter dicta of the House of Lords in Janaway to read “participate in anything authorised by this Act” as including everything required by the Act for a lawful assisted dying to take place. Thus, in the examples above the objecting paralegal, and the objecting care-home operator, would both be protected from legal action for their not honouring pre-existing legal obligations which would require their participation in the assisted death.

The Jersey principles took a different approach, driven by a recognition of the breadth of protecting any objection to participation, rather than conscientious objection to participation. The protection would apply only to “direct participation”, and not at all to indirect participation. Protecting indirect participation was seen as potentially having “the effect of negating the underlying policy intent (i.e. the service could not be delivered if ancillary tasks were undertaken)”. The report gives four examples of work duties which would be too indirect to be protected:

  • “providing usual nursing, medical or personal care to a person who happens to have requested an assisted death (for example, a care home could not refuse to care for a resident because that resident wants an assisted death; an ambulance or patient transport driver could not refuse to transport a patient to an assisted dying appointment) 
  • related administrative tasks (for example, providing patient records to an assessing doctor, booking appointments for additional assessments, ordering equipment or undertaking residency checks)
  • related management or governance tasks (for example, refusing to act as a Responsible Officer for an assisted dying doctor, or refusing to undertake financial planning tasks associated with the delivery of the service).
  • delivery of equipment or medical supplies that may be used for the purpose of an assisted dying assessment or the delivery of an assisted death.”

The Jersey principles dealt specifically with landlords and care operators allowing assisted death on their premises. The right to conscientiously object would extend to registered providers of regulated adult care home services, but not “to any Government of Jersey premises or private landlords”. The right would apply only to the provision of an assisted death on the premises: “So, for example a resident of a care home could have an eligibility assessment or assisted death care planning meeting on the premises, but the care home provider may choose not to permit a resident to have an assisted death in their room”. We could query the robustness of the distinction between direct and indirect participation, but even accepting this, it is difficult to see how the nature of the owner or operator alters whether allowing an assisted dying to take place on their premises is direct or indirect participation. 

The distinction between direct and indirect participation has largely been dropped in the draft legislation. Instead we see a statement that “a person who is not acting in a capacity specified in another row [of the table] may refuse any participation in assisted dying” (art. 36(4)(a)), but the meaning of participation in art. 37 is then expanded to effect a distinction between protected and unprotected activities. 

Article 37(1) lists “some activities that are participation in assisted dying”: This includes giving information about assisted dying; acting in the role of an assisted dying practitioner, a certifying doctor or care navigator “if not already in that role”; giving relevant opinions; providing independent advocacy or communication support; preparing or being present during preparation of any equipment used to administer drugs; administering or being present during administration; and “providing a care home whose service is not provided by Health and Care Jersey as the place for an assisted death, despite paragraph (2)”. 

Paragraph 37(2) similarly lists “some activities that are not participation in assisted dying”. The broadest is providing the patient with a service that would be provided to a person who has not requested assisted dying, which is itself expanded with a set of examples such as a care home service or physiotherapy; “driving them somewhere”; reserving an appointment time for them; giving any existing information about them to someone; cleaning a room after their death; or dealing with their body after death. Another example is providing a clinical service not directly related to assisted dying, such as cancer care. The final is “providing management, supervisory, administrative, or other services related to the general provision of assisted dying”, again expanded with the examples of acting as a responsible officer for an assisted dying practitioner, acting as a member of the Committee or Review Panel for the regime; managing, supervising or financially planning the Service; collecting or analysing statistical information about the Service; or cleaning the services offices.

The draft Jersey Bill, then, makes a crucial distinction between activities classed as participation in assisted dying and those which are not. It provides considerably less protection than the Manx law.  Given the importance of the distinction for an individual seeking to exercise a right not to participate – which it will be recalled may thereby be a breach of their employment contract – the approach in the draft Bill is unhelpful. Neither the list of activities protected under art. 37(1), or excluded from protection under art. 37(2) are claimed to be exhaustive, and no overarching principle is included in the legislation for determining whether or not an activity is participation.  

What about conscientious participation?

The Manx Bill provides protection for a health care professional who registers their intention to exercise functions under the Act. Section 9(5) provides that a health care professional must not be subject to having their employment terminated, or being less favorably treated in the course of that employment “as a consequence of their exercising or intending to exercise functions under this Act”. This protection applies only to members of the health care professions listed in section 9(2), and does not apply to decisions to offer employment to such a person. So the Bill does not protect non-health care professionals from dismissal because of their involvement in assisted dying – although it may be possible to draw on broader employment law rules in some cases – or health care professionals from non-appointment. 

The Jersey principles contained a commitment in the report adopted by P.18/2024 to ensure “legal protection so that health and care professionals cannot be discriminated against on the basis of their decision to either participate, or not participate in, assisted dying”.This is covered in the draft Bill, with art.38(1) requiring an employer to ensure no detriment to their employee for “involvement in an assisted dying process or “refusal to participate in assisted dying under article 36”, and similar protection for tenants in article 37.

Concluding thoughts.

Jersey, Guernsey, and the Isle of Man have much in common beyond their position as dependencies of the Crown. In particular, as small island democracies they face practical challenges not shared by their larger neighbours. These similarities do not necessarily lead to identical  laws being passed to deal with these challenges. In the area of assisted dying, we can see important differences in relation to conscientious objection, particularly around what activities are covered by the right not to participate, and coverage of residential tenancies rather than just employment contracts. We also see striking similarities, particularly in the extension of protection beyond conscientious objection to objection on any grounds. As noted earlier, there is a case for arguing that neither regime has a conscientious objection clause per se; but instead seeks to protect conscientious objectors from harm by a much broader right not to participate.

I am grateful for the comments of Dr Achas Burin on an earlier draft of this blog.

Are there fewer new Acts of Tynwald than there used to be?

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With Tynwald Day coming up, the list of Acts to be promulgated on Tynwald Day has now been published. Five Acts will be read.

By customary law, an Act of Tynwald did not become law until after it had been promulgated – that is, read in full in both English and Manx from Tynwald Hill. This was not always on Tynwald Day however – of the 89 Acts promulgated in the 1700s, for instance, only 46 were promulgated on Tynwald Day. The amount of information that had to be read out was reduced by statute during the 19th century. By the late 19th century Lieutenant-Governors had become reluctant to promulgate other than on Tynwald Day; which obviously made the delay between a measure receiving Royal Assent and being capable of becoming law potentially substantial. Initially introduced as an emergency provision during World War One, since 1916 Acts of Tynwald have become law upon receiving Royal Assent, although unless promulgated within 18 months, the Act will later lapse. The detail is now governed by the Legislation Act 2015 s.8-16.

Five Acts for an 18 month period does not seem a very large number, which raises the question – are there fewer new Acts of Tynwald than there used to be? Before answering that, a few caveats.

Firstly, the structure of Acts has changed consideably over the centuries. For instance a single Act promulgated in 1661 covered civil actions for debt, inheritance rights, taking of turf and ling at night, and punishing provoking words and batteries with fines. A modern Act would be unlikely to cover so many unrelated issues in a single piece of legislation. So taking too long a view on this question could be misleading. Secondly, any quantitative approach to legislation, while increasingly seen as useful to understand the work of a legislature, needs to be approached with care. Not all Acts of Tynwald are of equal reach and significance; and the same can be said for each clause within an Act. Thirdly, Tynwald does not legislate in a vacuumn, but frequently is responding to a perceived need. At periods of rapid crisis, for instance war, economic collapse, or pandemic, one would not be surprised to see either very wide ranging legislation, or an increased volume of legislation, as the legislature plays its part.

All of that said, a review of the number of Acts passed each year since 2001 does suggest that the period since the last General Election in September 2021 has been one in which comparatively little primary legislation has been passed.

2021 itself saw a spike, with 24 Acts of Tynwald being passed that year. This reflects, however, the work of the previously constituted House of Keys. Of the 24 Acts, 15 had received Royal Assent before the General Election. The remaining 9 received Royal Assent after the General Election, but had left Tynwald before the General Election. Thus, this 24 was not the product of the House of Keys elected in September 2021.

Newly available in the UK National Archives: June 2025.

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As usual, my six-monthly round up of records newly released by the UK National Archives relevant to the Isle of Man.

A number of files on broadcasting in the Isle of Man: PF 296/628 from what is now the Department for Digiital Culture, Media and Sport from 2000-2002; KS 3/39 and KS 3/36 on the 1998 Wireless Telegraphy Regulations from the Radiocommunications Agency in 1998 and 1999.

Reciprocal agreements relating to National Insurance, described as “negotiation for Channel Islands and Isle of Man”: PIN 34/2099, relating to 1998-2005, with the subject “Europe and Russia”..

A number of files related to sanctions against Iran (PC 2/Z4CLV, 2003), Haiti (PC 2/Z4CTP, 2023; which is rare example of a UK Order for the Isle of Man made under the authority of a UK Act); and Belarus (PC 2/Z4CRL, likewise).

The extension of a Council fo Europe agreement on equivalence of diplomas leading to university admission to the Isle of Man (WRR 281/3, 1994); and an EC regulation on tachographs (MT 174/230, 2000)

The Immigration (Isle of Man) (Amendment) Order 2023, (PC 2/Z4CLV, 2025), again UK law, which was necessary to transfer functions contained in an Order specific to the Isle of Man from the Cabinet Office to the (Manx) Treasury. Interestingly, this Order comes into force by the Minister for the Treasury laying an order under this UK instrument before Tynwald.

A war time file on “removal of bearer bonds from the Isle of Man”, IR 62/1856, from the Inland Revenue in 1940. From other files of around this time that have been closed for an unusually long period, it may contain lists of (for instance) owners of bearer bonds by name,. Nonetheless, on the list for my next visit!

Two prisoners of war records: John Sydney Cringle, born in Castletown on 28/7/1924 and captured at Arnhem in 1944 (his file is at WO 416/82/297 if any relatives are interested); and Albert Cain, born in Lonan on 30/7/1924 and captured at Anzio in 1944 (his file is at WO 416/54/94). I have largely resisted, at least for the moment, the temptation to go down the rabbit hole of the Manxman who fought at Arnhem, but it seems he was one the 1st Border Regiment’s Mortar Platoon who landed via glider.

Finally, an exchange of letters over a proposed visit by the World Affairs Council of Orange County, who wished to meet the Lieutenant-Governor during a planned visit to the Isle of Man in 1994. The Foreign Office Office considered the World Affairs Council to be a prestigious group: “Royalty have spoken from time to time, (but not British Royalty”). (see FCO 82/DJQ/Z and FCO 82/DG7/Z, 1994)). The World Affairs Council is still going strong, and might value this stamp of approval.

Newly available in the UK National Archives: January 2025.

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For some time every six months I have posted information on potentially interesting files newly made available from the UK National Archives, but of relevance to Manx history and politics. With Twitter/X being increasingly replaced by other social media, I am now going to do this via WordPress. Easier to draft too!

Broadcasting. A collection of files from 1994-1997 on “Broadcasting on the Isle of Man”, culminating in discussion of extension of the UK Broadcasting Act 1996 to the Isle of Man. PF 296/176, PF 296/101, PF 296/99, PF 296/157, HO 284/485.

Licensing Acts. Two files on Licensing Bills. PF 317/115, PF 317/138.

Immigration. File on the Immigration (Isle of Man) Order 1991. HO 213/2795. Also meetings between UK and Channel Islands/Manx representatives to discuss immigration issues in 1992-1993. HO 527/17.

Files on UK legislation under “Joint Channel Islands and Isle of Man Matters”. One file on the Antarctic Act 1994 (HO 284/482) and one on the Crime and Disorder Bill (HO 284/475).

Extension of European Community Legislation to the Isle of Man and the Channel Islands. From 1994. FCO 30/113/67 For fisheries in particular, see HO284/472, and HO 284/471.

Customs Information System Convention. Discussion of application of the Convention to the Isle of Man and Channel Islands, 1993-1995. HO 527/28.

Mutual Legal Assistance: Policy development on drug issues. From 1992. HO 634/25.

Financial Regulation and Trade Sanctions. Follow up to the Edwards Report. in 1999. HO 284/474. Trade Sanctions against Ethiopia 1999-2001. HO 284/476.

Removal of bearer bonds from the Isle of Man. An unusually long delay on release of this 1940 file, which means it gets added to my next Kew trip list! IR 62/1956.

Abolition of Capital Punishment in the Channel Islands. From 1965-1968. Not Manx, but an area I am interested in, so another one for the Kew list! HO 284/477.

Appointment of Lieutenant-Governor. A file on the appointment of the successor to Sir Timothy Daunt, 1999-2000. I’ve not come across one of these before, so again goes on the Kew list, HO 284/479.

The Assisted Dying Bill as it enters the Legislative Council.

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The Assisted Dying Bill enters the Legislative Council on 22 October 2024. As I have noted elsewhere, as the second chamber of Tynwald, the Council has the power to reject, or requirement amendments to, draft legislation which has been passed by the democratically elected Keys. The passage through the Legislative Council is not a formality. What does the Bill entering the Council look like – in particular, how does it differ from the Bill first introduced into the Keys?

Clause 4 continues to provide that a person who is terminally ill may request and lawfully be provided with assistance to end their own life.  There are two significant changes. Firstly, the definition of “clear and settled intention” is restricted within the text of this section. The new cl.4(2)(b) now reads “has a clear and settled intention to end their own life reached voluntarily without coercion or duress and having been informed about the person’s diagnosis and prognosis and the treatments available, including pain control and palliative care”. Secondly, the period during which a person must have been ordinarily resident in the Island has increased from one year to five years. The Department is also not only able to, but is required to, specify the meaning of “ordinarily resident”.

Along with Dr Burin, I had raised concerns over the potential impacts of a one year residence requirement, and suggested looking to Australian law, in particular the law of Queensland. The Queensland assisted dying regime has a residency requirement – twelve months – but the ability to issue a formal exemption “if the person has a substantial connection to Queensland” and “there are compassionate grounds for granting the exemption”. The current regime would exclude a person who had become ordinarily resident in the Isle of Man for reasons unconnected with assisted dying, and then three years later discovers they are terminally ill. It would also exclude those with a substantial connection to the Isle of Man, where there are compassionate grounds for granting an exemption. Consider for instance an adult child who had grown up in the Isle of Man, moved to the Isle of Man, and discovers they have a life limiting condition which is likely to lead to their death in four years. They return to the parental home on the Isle of Man for care a year later, and become ordinarily resident at that point. They will not be able to access the assisted dying regime. The Queensland exemption was well worth considering in relation to a one year residency requirement, but even more so for a five year one.

The definition of terminal illness under clause 5 is changed. Formerly, a person reasonably expected to die within six months could make use of the statutory regime; but in the new Bill this entitlement applies to a person who is expected to die within twelve months.

Clause 6 deals with the requirements of the formal declaration that the person wishes to access assisted dying. Formerly, the declaration could not be witnessed by a relative, or a person directly involved in the declarers care or treatment. The broader definition of relative under the current Bill will increase the range of people who cannot act as witnesses: now including “a person living together with that person as if they were spouses or civil partners” and stepchildren. There is a new reason for excluding a potential witness: “someone who knows they will gain financially in the event of the person’s death (whether directly or indirectly and whether in money or money’s worth)” (clause 6(1)(a)(iii)). The two doctors countersigning the declaration remain required to be satisfied, inter alia, that the person has reached their decision “voluntarily, on an informed basis and without coercion or duress” (clause 6(7)(c)). They remain able to consult a psychiatrist on the capacity of the declaring person, but no provision is made for support on determining lack of coercion. They are now required to satisfy themselves that the declarer “has been fully informed of the palliative, hospice and other care which is available” (clause 6(11)).

Clause 7 deals with the actual provision of assistance in dying. A requirement has been added that before dispensing and delivering an approved substance to end their life, a doctor must re-examine the person and their medical records and confirm that they continue to wish to end their own life (clause 7(3)(b)).  An important change in clause 7 relates to physician administration of the approved substance. Under the original Bill, a doctor could administer the approved substance if requested (see former clause 7(7)). The current Bill “does not authorise an assisting health professional to administer an approved substance to another person with the intention of causing that person’s death” (clause 7(6)). The current version of the Bill, then, legalises assisted dying through preparing the substance for self-administration, or preparing a medical device which will allow the person to self-administer, or “assist[ing] that person to ingest or otherwise self-administer the approved substance” (clause 7(5)); but does not legalise administration by the doctor themself. This moves the legislation out of the area of murder per se, and the alterations to the criminal code in relation to murder have been removed (formerly in clause 10(2)).

The brief conscientious objection clause in clause 8 has been substantially expanded. Clause 8(2) makes it clear that a conscientious objection to involvement in assisted dying does not exclude referral to another health care professional – clause 8(2) is not well drafted, with an ambiguous “may nevertheless refer” which, in the light of clause 8(5) might have been intended to read as “may nevertheless be required to refer”. Clause 8(4) provides for how a conscientious objection is to be proved – a statement in writing and on oath or affirmation is conclusive evidence of their objection – an adoption of the Manx Abortion Reform Act 2019 s.8(3) that we had recommended.

Clause 9 adds a new “intention to participate” status. A medical professional who intends to exercise functions under the Act must notify the Department of their intention to do so, and ensure they have received all appropriate guidance and training before exercising any such functions (clause 9(1)). The Department must create and maintain a register for those who have this status, and the details of the register (including for instance the content and who can access it) are left to regulations by the Department (clause 9(3-4)). A person who has notified the Department and received the appropriate training is protected by a conscience clause (clause 9(5)). A person who has notified the Department, but not completed the training is not, however, protected. Is this an appropriate distinction – that is, should conscience protection depend upon having taken mandated training?

Clause 10 replaces a former ban on health care professionals initiating discussions on professional dying with a requirement for the Department to provide “such guidance and training to health care professionals as it considers appropriate to assist health care professionals in preparing for  discussions about the range of palliative, hospice and other care which may be available to a terminally ill person, including the provision of assistance in accordance with this Act” (clause 10(1)).

Monitoring of the new regime has been substantially relaxed. The former clause required an annual report on the operation of the Act, such reports being required annually. The new clause requires the publication of a single “report on the operation of the Act after the Act has been in operation for 2 years” (clause 14(1)(b)). So monitoring has become for a transitional period, rather than an open-ended process. Against that, there is reference to “any independent monitoring panel” which may suggest a different mechanism for monitoring (clause 14(2)(a)).

Clause 15 deals with criminal offences, and expands the ways in which an offence can be committed under the Act from the original two (see original clause 14(1)(a), 14(1)(b) and 14(2)) by adding the following:

Clause 15(3) criminalise any person who wilfully ignores or otherwise conceals knowledge of a revocation of their declaration by a person who had made a declaration under the assisted dying regime. This is the mirror image of the existing offence of concealing or destroying a declaration (which is retained under clause 15(1)(b)).

Clause 15(4) criminalises any person who coerces or pressures (or attempts to coerce or pressure) a terminally ill person into making a declaration under section 6. This offence can be punished by up to 14 years in prison (clause 15(6)), rather than the usual 5 years in relation to most other offences in this section (clause 15(7) but see clause 15(5)). I have two reservations about this offence as it currently stands.

Firstly, it addresses coercion or pressure only one way – there is no offence under the Bill of coercing or pressuring a person not to make a declaration, or to withdraw a declaration once made.

Secondly, there is no explicit limit on how far this serious offence reaches. In particular, there is no discussion of the mental element of the accused. The Domestic Abuse Act 2020 s.36  creates an offence of controlling or coercive behaviour, which requires that “A knows or ought to have known that the behaviour will have a serious effect on B” (s.36(1)(d)). It also provides a defence for conduct where A believed they were acting in B’s best interests, and “the behaviour was in all the circumstances reasonable” (s.36(4)(b)). It may be that Manx courts would read these sorts of issues into their definition of “coerces or pressures”, to exclude reasonable or unthinking conduct from the term, but this might be worth doing in the legislation itself: the mens rea requirement for an offence with a 14 year maximum penalty would be better on the face of the publicly available Act.

The right of individual application under the European Convention on Human Rights: A tale of two and a half lapses.

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The European Convention on Human Rights established a system of regional human rights protection between states which, at the time of inception, shared relatively homogenous values and traditions. As well as covering a range of fundamental rights, the Convention included provision for enforcement of those rights through the right of individual application.

The United Kingdom’s ratification of the Convention, acceptance of the compulsory jurisdiction of the Court, and the later acceptance of the right of individual application all expressly included the Island. Although I think not a part of the metropolitan territory of the United Kingdom, the rights and obligations of the Convention could be extended to dependencies like the Isle of Man under Article 63 (now Article 56).

In Tyrer v United Kingdom (1978) the applicant had been sentenced to corporal punishment by a Manx court under a Manx statute. He queried the validity of this under the Convention, and the United Kingdom government, with its responsibility for Manx international relations, was brought before the European Court of Human Rights to defend the case. The Court held that judicial birching of juveniles was a violation of Article 3 of the ECHR. It is particularly worth noting that an attempt was made to gain recognition for the Islands special status. Under Article 63(3), where the Convention extended to dependencies, “the provisions of [the] Convention shall be applied in such territories with due regard … to local requirements”. It was suggested that Manx requirements justified an application allowing the birching of Tyrer. This argument failed, perhaps because of the rigour of the obligation under Article 3, but the judgment of the Court makes it doubtful whether Article 63(3) would ever be applied to differentiate between the interpretation of a substantive Convention right in the Island and the United Kingdom.

At this point, a number of options were open to the Manx and British governments. The United Kingdom could have decided that it no longer wished to be a contracting party to the European Convention on Human Rights, and effectively departed from regional human rights norms. Parliament, well within the conventional restraints on its legislative coordinancy, could have repealed the Act of Tynwald itself, regardless of the wishes of Tynwald, to bring Manx law into alignment with the ECHR. Tynwald could have repealed the offending Act itself. None of these routes were taken.

Instead, the British and Manx authorities took steps to prevent a reoccurence of the Tyrer case. One of these was the decision not to renew the right of individual application for the inhabitants of the Isle of Man in 1981. The people of the Isle of Man, unlike those of the United Kingdom, were not to be allowed to bring any violations of the Convention to the attention of the institutions of the ECHR. This allowed the Isle of Man to retain corporal punishment on the statute books, and even to briefly pass a sentence of corporal punishment (overturned on appeal to the Staff of Government). The UK remained in violation of its international obligations under the European Convention on Human Rights, but the person whose rights were infringed could not bring this to the attention of the European Court of Human Rights. It provided similar insulation from obligations to secure other rights guaranteed under the ECHR, for instance the right to privacy as it applied to sex between men, which remained illegal in the Isle of Man for decades after decriminalisation in England.

Eventually, in 1993, as part of a programme of law reform intended to bring Manx law into line with European human rights norms, Tynwald both liberalised restrictions on sex between men and abolished corporal punishment. Before the legislation received Royal Assent the Manx government, with its laws seen as ECHR compliant, indicated that it wished the right of individual application to be returned. The British government acceded to the request, and the right was restored on June 3, 1993 for a five year period.

So much for the first lapse, a deliberate strategy by the UK government and Manx government to manage the tension between the international obligations of the UK in relation to the Isle of Man, and the autonomy of the Isle of Man. The second lapse, on the other hand, was accidental.

In 1994, Protocol 11 to the ECHR was opened for signature by member states, coming into force in 1998. Protocol 11 made substantial changes to the institutions, and procedure, of the European Convention on Human Rights. The original text of the ECHR created the right of an individual to complain to ECHR institutions under Article 25, but this depended upon the country being complained against having made a declaration allowing such applications. The UK renewed this application on a five-yearly basis, starting in 1966, but was not obliged to do so. This optionality was removed, with the right of individual application, now under Article 34, being mandatory and not be hindered in any way by the state.

Although it would be compulsory to allow appeals in relation to UK violations in the UK, the UK Government had successfully argued that for dependent territories, such as the Isle of Man, the right would remain optional and renewable for such territories. In May 1994 the Home Office contacted the Manx Government to see if it wished to allow such a right. By October 1998 the Manx Government had decided it wished to do so, and in January 1999 the UK contacted the Council of Europe to inform it that it wished the right to extend to the Isle of Man for five years from 1st of June 1998. Why did the UK ask for a renewal starting in the past?

The renewal of the right of individual application from the Isle of Man which had begun on 3 June 1993 had expired on the 3rd of June 1998. This had not been noticed by anyone in either the Home Office, or the Manx Government. When the Home Office realised this, they contacted the Isle of Man Government and asked if they would like the right backdated to 3 June 1998 “to avoid criticism” (HO 284/456). The Manx Government was very concerned to discover the lapse, and would be very pleased to have access to the right backdated. Foreign Office policy was to make renewals on the first of a month, accounting for the slight overlap between the two.

In the 1998 file, there is some evidence that the Isle of Man Government wished the right of individual application to be permanent, rather than subject to periodic renewal. When renewed in 2003, the right was made permanent. Less information is currently available on the 2003 process, but it appears that there was another – very short – lapse. The UK government renewed the right for the Isle of Man on 29 August 2003, with the right once again backdated, this time to 1 June 2003.

A light for the Lieutenant-Governor’s car?

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

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

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

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

The Secrets list of Sir Timothy Daunt

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

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

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

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

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

Referendums in the Isle of Man.

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In a discussion of the requirement for public consultation which has been seen in recent Private Bills introduced into the House of Keys, I suggested that consultation of Manx residents was difficult to do in a robust way on a matter which may be of interest outside of the Isle of Man, and mentioned the referendum process. Since then, the possibility of a referendum as a limit on the coming into effect of the Assisted Dying Bill was proposed in the Keys by the Chief Minister. What are the Manx provisions for a referendum?

The Referendum Act 1979 is based on a UK Act of 1975. It is triggered by a resolution of Tynwald that a referendum shall be held on a specific matter, whereupon the Deemsters in consultation with the Attorney General draft the questions and ballot paper, make provision for the conduct of the referendum, and apply  “the provisions of any enactment for the time being in force relating to elections of the House of Keys” (s.2(1)). This order is then laid before Tynwald, and the Council of Ministers appoint a day for the holding of the referendum (s.2(2)-(3)). The expenses of the referendum will be paid out of money provided by Tynwald (s.5). The process would almost certainly fall within the ambit of the Crown Division of Cabinet Office, and so be the responsibility of the Minister for the Cabinet Office.

Votes are counted by House of Keys constituency (s.3). Entitlement to vote in the referendum is the same as that to vote as electors at a House of Keys election in any constituency (s.2(4)). This was usefully summarised in guidance to voters for the 2021 General Election. Broadly, residents aged over 16 are entitled to vote. There is provision for voting by service personnel, students studying off-Island, and those temporarily working overseas, and proxy voting in limited circumstances. Since 2021 there has also been provision for postal voting.

The 1979 legislation is not very detailed, and has had only minor amendments since it was passed. There are no instances of it being used which could be drawn upon in developing the Deemsters’ Order for a referendum. A motion to use the legislation was first brought in relation to redistribution of Keys seats,  and most recently in relation to the voting powers of members of the Legislative Council, and   in relation to direct election of MLCs. None have succeeded.

The 1975 UK legislation was used once, for the 1975 European Communities membership referendum. The subsequent UK wide referendums (fans of the plural form “referenda”, like me, should click this link) of 2011 (on the alternative vote), and 2016 (on Brexit) both required a distinct Act of Parliament. Although each UK wide referendum requires primary legislation, since 2000 there has been an overarching framework for referenda, set out by the Political Parties, Elections and Referendums Act 2000. In the wake of the Brexit referendum there was a useful Briefing by the Commons Library on the UK referendums scene, available here. 

Both Jersey and Guernsey have carried out referendums, exclusively on constitutional issues. In Guernsey, a referendum on the electoral system was held in 2018, under the Electoral System Referendum (Guernsey) Law 2018 as amended, and regulations made under the Law.   In Jersey, referendums on constitutional issues were held in 2008, 2013 and 2014. After these referendums were carried out, the 2002 legislation which underpinned them was replaced with the Referendums (Jersey) Law 2017, which was amended in 2021. The Referendum Commission set up under the 2017 legislation has reflected at length on referendums in Jersey, in a valuable 2019 report which is available online.Referendums are central to neither the UK, Jersey, nor Guernsey constitutions, but all three have significantly more experience  in national referendums than the Isle of Man. This has led to legislative change and development since the 1975 Act upon which the current Manx legislation is based. If referendums are to become a live part of the Manx constitutional scene, then, as Ms Maltby MHK suggests, reviewing the 1979 legislation before it is used would be worthwhile.

Bishop’s vote Bill to go to Legislative Council.

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

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

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

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

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

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

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

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

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

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