Dr Catriona Mackie and I ran a session on the Isle of Man in April 2026. A recorded version of teh session is now online on youtube. We cover what being an MHK involves, do some myth busting around who becomes an MHK, discuss factors relevant to a decision to stand, and point to some useful further resources from the Isle of Man, Jersey, and the broader Commonwealth.
Three ideas for a PhD project.
One of the striking things about a UK PhD in an area like law or history is how we look to a candidate to have the fundamental idea for what they want to spend four years becoming a world expert in at the start of their doing so. My doctoral idea changed significantly through the process – most notably having the timescale reduced from “mad” to merely “very challenging” – but the fundamental idea was largely the same. Colleagues supervising students working as teams in labs they supervise find this a big thing to ask of someone at the start of their research life.
So, in case you are at the stage of thinking about doctoral work in law or history, here are three topics which I think are live intellectually, interesting, ambitious, but doable in the confines of a doctoral project. I would be very pleased to supervise a suitable student in any of them but, as they say, other supervisors are available and I will not take umbrage if one of these gives you the start of an idea best pursued elsewhere!
Borders and the Crown Dependencies since Brexit and the Coronavirus Pandemic.
The Isle of Man, Jersey, and Guernsey share both islandness, and a semi-autonomous relationship with the UK. Brexit shifted the wider frame in which this relationship operated, putting a new emphasis on the Common Travel Area. More powerfully, a common response to the global Coronavirus pandemic by all three jurisdictions was to close their borders – with a rigour, and penalties, not seen elsewhere in the British Islands. In the Isle of Man for instance, details of border control were regularly debated throughout the pandemic, with border control against travellers from the UK being seen as self-evidently a concern for Tynwald. Post-pandemic, border control has been given new prominence as part of policing the Islands. How have island attitudes to their borders changed over time? How far have the Islands moved into regulatory space formerly seen as part of the “external” matters in which the UK operated for the islands? What similarities and differences do we see across the three jurisdictions? What accounts for these patterns? What are the policy challenges and opportunities insular border-mindedness pose?
Calls to public attitudes in small democracies.
One of the recognised features of small democracies is the concentration of political power in a small number of individuals, even when the number of elected officials per head is much larger than in larger democracies. Another is the intimacy of small democracies, with unmediated relationships between politicians and individual constituents the norm rather than the exception. This raises some interesting questions around calls for public consultation, particularly when unusually extensive (such as with the Manx and Jersey assisted dying legislation). What role does formal public consultation have in small democracies? How is it carried out? How far, if at all, are those outside of the small democracy excluded from the consultation? How do formal referenda – whether hard or soft – and citizens assembles fit into this landscape? Given their special characteristics, how can small democracies most effectively make use of public consultations?
The Irish influence on Manx Independence and Autonomy in the 20th century.
As an unintegrated possession of the UK crown, most obviously since the Revestment of 1765, the Isle of Man has been the potential locus of a tension between national identity and loyalty to the state. Revestment itself was seen by some as part of a broader rebalancing of the British Empire, one which could be resisted by the (distant) rebels of North America, but not by the Manx. From the late 18th century on links were drawn with experience in Ireland, both by the state, and by those opposed to it. As might be expected, 1916 merits sustained attention: UK troops were deployed at the 1916 Tynwald, and Manx nationalists of Mec Vannin obscurely, but fascinatingly, were guests marching to commemorate the Easter Rising fifty years later. How far were Manx attitudes to their constitutional position shaped by the radically changing position of Ireland throughout the 20th century? How far were UK approaches to Manx autonomy shaped by the UK experience of Ireland?
Is refusing Royal Assent to the Assisted Dying Bill a constitutional crisis?
The short answer is no. But this is because of the basis for the refusal, and exactly what has been done by the UK government, so it is worth giving the long answer.
Why does an Act of Tynwald need Royal Assent, and who gives it?
Historically, every Act of Tynwald needed the support of Tynwald (in some centuries, a fairly amorphous concept), and the assent of the King, later Lord, of Mann. With the vesting of the rights of the Lord of Mann in the UK Crown, this came to be exercised by the sovereign of the UK – whether by virtue of their title as Lord of Mann or as UK sovereign is a matter that need not delay us. In practice, since 1981 many Acts of Tynwald receive Royal Assent from the Lieutenant-Governor, rather than directly from the UK Crown.
In the UK, Royal Assent to an Act of Parliament is formally by Charles III as a “personal prerogative”, but in constitutional practice he will always do so. In the UK context, there has been controversy over whether the Crown could refuse assent when required to by the UK Government – rather than their own judgment – but the consensus is probably that expressed by Paul Evans in 2019:
“in all foreseeable circumstances short of a revolution (or counter-revolution perhaps) there is no executive veto in the British constitution over legislation after it has been agreed by parliament”.
The Manx position is very different. There is no internal executive veto. The Council of Ministers has no authority to direct the Lieutenant-Governor, or the Crown, to give or withhold consent to an Act of Tynwald. Instead, there is an extremely long history of Bills passed by Tynwald being refused Royal Assent by the Crown acting on the advice of their United Kingdom ministers.
When can UK ministers withhold Royal Assent?
As with many constitutional issues, there is a difference between the legal rule, and the constitutional rule. The legal rule is that the Crown may withhold Royal Assent upon any ground, and the UK Government may advise the Crown to do so on any grounds. The constitutional rule, however, is rather narrower. As with many issues touching on Manx autonomy, the further back you go, the more willing the English/British/UK authorities were to intervene in Manx affairs.
There are numerous examples from the 19th century of a prospective Act of Tynwald being refused Royal Assent simply because the UK government thought it should not become law. This might be because the Bill was seen as badly drafted (such as the Petty Sessions Bill 1864), or because it introduced rules different from English law. My favourite example is the 1849 Bill to reduce the scope of capital punishment, which was rejected because “it [was] an important departure from the law of England”.
With the changing understanding of the relationship between the Isle of Man and the UK, and in particular of the autonomy of a democratic Tynwald, this and other grounds have fallen away. Today, the “strong presumption” (Barclay v Secretary of State for Justice [2014] UKSC 54 para.16) and almost invariable practice is that a Bill passed by Tynwald should receive Royal Assent – the Manx Attorney General advises the (UK) Ministry of Justice they have no objection to the Bill being passed into law, the Ministry of Justice then advises the Lieutenant-Governor that they may use their powers to grant Royal Assent. Two grounds for exceptional intervention seem to have survived – “fundamental constitutional principles” and compliance with international law.
The “fundamental constitutional principle” ground risks being interpreted very broadly. In 1855 a Bill to provide for the speedy capture of sheep stealers was refused Assent “in consequence of their Lordships having been advised that its leading principle was contrary to the tenets of British jurisprudence”. Today, it is likely to be interpreted narrowly. An extremely rare example, from the Channel Islands, concerned constitutional reform in Sark. In 2008 Royal Assent for a measure to create a new democratic legislature for Sark was refused on the basis that it was “inconsistent with basic democratic principles, some of which were set out in the European Convention on Human Rights”. When a revised law was resubmitted by Sark, the Lord Chancellor judged it to be acceptable and recommended it for Royal Assent, which it duly received. As with other aspects of the ultimate responsibility of the UK Crown for good government in the Isle of Man, it is likely only to refer to extreme situations such as “a fundamental breakdown in public order or of the rule of law, endemic corruption in the government or the judiciary or other extreme circumstance”
The other ground, and the one upon which I read Royal Assent being refused here, is that the legislation would put the UK in violation of its international legal obligations. The Isle of Man, although increasingly active on the international legal stage in the 21st century, is not a sovereign state. International obligations applicable to the territory of the Isle of Man are obligations of the UK. So, for instance, when Tyrer was judicially birched in the Isle of Man this was by Manx officials executing a sentence passed by a Manx court under a Manx statute – but the violation of international law was by the UK.
When would withholding Royal Assent have been a constitutional crisis?
As I say, in law, the Crown could withhold Assent for any reason. If Royal Assent had been withheld simply because the UK Government did not share the view of Tynwald as to what an assisted dying law should consist of, however, that would have been such a substantial reversal of the growth of Manx autonomy as to trigger a constitutional crisis. Given that the UK has been wrestling with assisted dying legislation at the same time as Royal Assent was being considered, it was reasonable to worry that this was the basis for the drawn out process of giving Royal Assent, signalling an approach to Manx legislation which was “paternalistic and unnecessary” .
From the limited data currently in the public domain, as indicated by the Chief Minister in March, that has not happened here. Instead, Royal Assent has been withheld under the international obligations ground. The Cabinet Office press release stresses this basis for refusal of assent:
“The Ministry of Justice duly consulted with the Isle of Man Government, seeking clarity on the proposed arrangements for the independent monitoring of assisted deaths, safeguards against coercion, and ensuring that individuals have the capacity to make informed decisions regarding assisted dying.
The consultation culminated in the Isle of Man Government providing comprehensive assurances outlining a number of commitments intended to address the issues raised. While these commitments would, if fully implemented, mitigate the legal risk significantly, they do not form part of the Bill.
It is therefore the UK Government’s view that these matters must be addressed directly on the face of the Bill to comply with the European Convention on Human Rights.
It is on this basis that the Ministry of Justice is unable to recommend the Bill for Royal Assent at this time”.
Royal Assent, then, has been withheld on the basis of the need to meet the international legal obligations of the UK under the European Convention on Human Rights. From earlier discussions shared by the Minister for Health and Social Care, a particular concern is to ensure that the obligations under the ECHR as interpreted in Mortier v Belgium are met. These same obligations were considered by the UK DHSC in relation to the English Bill to allow assisted dying, which discussed the safeguards in the English Bill at length, concluding that the English Bill met ECHR obligations.
Although this sort of issue is normally dealt with before a Bill is considered for Royal Assent, it is not a constitutional innovation, nor the basis for a constitutional crisis, for a Bill passed by Tynwald to be refused Royal Assent because it is incompatible with the international legal obligations of the UK. So long as the UK is responsible for Manx violations of international law, this ground for refusing Royal Assent seems inevitable. To quote Lady Hale from Barclay (para. 48):
“It is the clear responsibility of the United Kingdom government in international law to ensure that the Islands comply with such international obligations as apply to them. Just as the United Kingdom Parliament has the constitutional right to legislate for the Islands, even without their consent, on such matters, so must the United Kingdom executive have the constitutional power to ensure that proposed Island legislation is also compliant. As was pointed out in evidence to the Kilbrandon Commission, to hold otherwise would be to assign responsibility to the United Kingdom without the power to put that responsibility into effect”.
Bonus constitutional crisis averted: A disallowance power?
The actual correspondence from the Ministry of Justice is not available, but it is referred to in the Cabinet Office press release which announced the withholding of Assent. There it was said:
“This should not be interpreted as disallowing Royal Assent; nor does it prejudge the policy merits of assisted dying. It reflects solely the need to ensure that the legislation once enacted contains the necessary protections required under the European Convention on Human Rights”.
My best guess is that the reference to “disallowing” here is to make the objection to the legislation as it currently stands, rather than all assisted dying legislation, clear. As with Sark in 2008, a Bill which addresses the concerns of the Ministry of Justice would receive Assent. Unfortunately, “disallowance” has a very specific technical meaning which it would be unfortunate to see become a live part of the Manx constitutional landscape.
As a general rule of Imperial constitutional law, the Crown was able to disallow the legislation of dominion legislatures, other than the Imperial Parliament. Because Acts of Tynwald after 1765 required the assent of the British Crown, refusal of Royal Assent was occasionally referred to, inaccurately, as disallowance. Disallowance proper, by which is meant the negation of an Act of the national legislature by a later Order in Council deriving authority from the prerogative, rather than an Act of Parliament, is very different. When Royal Assent is refused, a key part of the legislative process has not been completed – there is no national law. A disallowance power, on the other hand, is exercised to negate a piece of national law which has been passed – as we find, for instance, in the Australian Constitution s.59.
I am aware of only one example of a disallowance power being exercised in relation to the Isle of Man, and it is both elderly – dating to 1900 – and ambiguous. The Companies Act 1900 had passed all stages of legislation “and the Order in Council [had] actually been made approving it, and … [was] … lying in the [Home Office]” when objections were first raised. These were sufficiently persuasive to render the Act undesirable, and the question arose as to whether it could be annulled. K. Digby noted: “We can find no precedents of a revocation of an Order in Council with reference to Isle of Man legislation but there are abundant cases of alteration and variation of other Orders in Council”. The Manx and English Law Officers agreed that the Act could properly be dealt with, since it had not been promulgated and so was not law, by the Order granting assent being repealed by another Order. Even this single precedent leaves open the question of whether an Act of Tynwald could be disallowed after it had become law which, given the changes in the law relating to promulgation, now means after Royal Assent has been granted.
If disallowance is being used in the broad sense, it is not describing anything objectionable. If it is being used in this more technical sense – suggesting that reassurance was needed that an Order in Council, as opposed to an Act of Parliament, would not in this case be used to repeal an Act of Tynwald – then it is much more problematic.
So what next with the Assisted Dying Bill?
The proposer, Alex Allinson, has already begun work to bring forward amendments to the Bill to address the points raised by the Ministry of Justice. There is one, calendar driven, problem here.
Refusal of Royal Assent is not unheard of, and so the Manx legislative process specifically accommodates changes of Bills to make “such amendments … as the House [of Keys] may consider desirable in respect of such suggestions” (House of Keys Standing Orders, 4.16). The amended Bill then needs to be considered by the Legislative Council, as normal. The General Election to the House of Keys this September means there is a time constraint on getting this done. When the House of Keys is dissolved – on the 13th of August 2026 – all Bills before the House lapse (House of Keys Standing Orders 4.26(3)). If a Bill awaiting Royal Assent has been passed by the House of Keys, and the Legislative Council, and signed in Tynwald, it may receive Royal Assent after the dissolution of the House. If it has not, it will lapse, and must be reintroduced to the House of Keys as if it were a new Bill (House of Keys Standing Orders 2.26(5)). If a Bill has passed the Branches, it would be normal to sign it in the last sitting of Tynwald Court before the General Election, so that if Royal Assent is given, it will become law without further action by Tynwald.
Should I stand for the House of Keys? Free public event, Wednesday 22nd April 2026.
With the General Election to the House of Keys in September 2026 approaching, people across the Isle of Man will be considering whether to stand for election to one of the 24 seats. Manx politics is very different from that of the UK and US. Elections, and the Keys, are dominated by Independent candidates who are not associated with a political party.
This distinctive feature can work in favour of candidates standing for the Keys for the first time. Unlike in larger neighbours, there is no process of party approval. If a legally qualified candidate wishes to stand, and can secure enough signatures from fellow citizens, they will be on the ballot. Our work on Women in Manx Politics showed that while some candidates began their planning an entire General Election in advance, others decided within months of the General Election that they were going to stand.
Deciding to stand for the Keys is a big decision. Our interviews with MHKs, and those who had decided not to stand, found that they drew upon a very disparate range of sources of support in making this decision. Family, naturally; friends, commonly; but in sharp contrast to the UK, members of political parties were not significant. In the absence of the support of political parties, how do potential candidates find out what they need to know to inform this crucial decision?
One way is to come along to our event on “Should I stand for the House of Keys?” at 6pm on 22 April 2026. This will be available live, either by joining us in person at the Studio Theatre at Ballakameen High School; or online via Zoom. We will be covering key issues like:
- What do MHKs do?
- Myths about getting to be an MHK.
- Deciding to run for the Keys.
- Some tips on how to run for the Keys.
For those not able to attend on the day, the presentation will be posted online on the YouTube channel of the Centre for Law, Criminology and Social Justice Research at Oxford Brookes University.
You are welcome to join us in person on the day. If you would like to attend online, please contact pwedge@brookes.ac.uk in advance to receive the Zoom link to the event.
Why you should vote in the 2026 General Election to the House of Keys – particularly if you are a young voter.
This is going to be a lively year for Crown Dependency politics. In Jersey, the General Election of 7 June 2026 will elect the 49 members of the States Assembly, including 9 island-wide Senators abolished for the 2022 general election. In the Isle of Man, the General Election of 24 September 2026 will elect the 24 Members of the House of Keys. In this blog, I am going to put some of the global discussion about voting into the Manx context to argue that you should vote in September.
Why everyone should vote.
Globally, there are significant concerns about voter turn out for national elections. Particular parties, or political perspectives, campaign to bring out “their vote”, but we also find non-partisan campaigns which want to encourage people however they intend to vote.
Some of their arguments are about benefits to the political structure from good voter turn out – for instance increased legitimacy for those elected. Focussing on the interests of the individual voter, there are three important arguments that certainly influence me.
- Shape the future. Voting gives you a say on issues important to you that impact on your life “from roads to recycling, to education and climate change, to housing and employment”
- Protect your interests. If you don’t vote, other people get to choose who represents you.
- Hold elected politicians accountable. Elected politicians serve a term, and can be rejected by the electorate if they are not happy with how they used it. They know this.
Within the Manx context, I want to bring out just how important an individual vote can be.
Most of us absorb a lot of political commentary, and drama, from the UK and the US. Manx constituencies are much smaller than those of the UK or the US. In the Keys, the optimum size for a two-member constitutency is 7k total population. In the House of Commons, the optimum size is 73k electors for a single member constituency. In the US, in the federal House of Representatives, the average size for a single member constituency is 800k total population. So, looking at this in terms of a voters power to get a person into the legislature, the Manx voter is 20 times as powerful as the UK voter; and 200 times as powerful as the US voter.
This means a very small number of votes can make the difference. In the General Election of 2016, Graham Cregeen beat Phil Gawne for Arbory by 19 votes, while Chris Robertshaw beat Jon Joughin for Douglas East by 7 votes.
While the size of Manx constitutencies can make a vote very important in determining who sits in the House of Keys, the absence of a developed party political system can make the contribution of an individual MHK of pivotal importance. Voting records are public domain data, and quantifiable. What they don’t capture is the importance of influence and interaction in a 24 member chamber. MHKs do listen to each other, and exercise individual judgement. So an MHK may only have one vote to cast, but perhaps their influence means two other MHKs cast a vote differently from how they would have done otherwise. So the vote examples I am going to give are, I think, the quantifiable and provable tip of an iceberg!
The Keys is the centre of Manx political life, and has a very wide remit, far beyond any of the devolved assemblies in the UK. I am going to focus on two functions – creating and staffing government, in particular the Council of Ministers; and creating primary legislation in the form of Acts of Tynwald. In both these functions, we can identify events where the 19 voters in Arbory, or the 7 voters in Douglas East, had an obvious impact. Starting with executive government:
- In the election for Chief Minister in 2016, the Keys voted first, and Howard Quayle secured 12 votes. This plurality included Graham Cregeen, but not Chris Robertshaw – Robertshaw voted for the next closest (Cannan, on 9). If someone other than Cregeen had been elected, and they had voted for Cannan too, we would have had an 11 Quayle, 10 Cannan vote from the Keys. The Legislative Council – in the last time they would be able to vote for the Chief Minister – block voted for the candidate who had carried half the Keys. Would they have been willing to do so if Quayle did not have a majority, and was only one vote ahead of the next candidate?
- Staying with Graham Cregeen, who remember was in the Keys because of a 19 vote lead over Phil Gawne, he served as Minister for Justice and Home Affairs from 2020-2021 – a post he could not have held had he not been in Tynwald and, realistically, not been an MHK.
Similarly, we can give concrete examples of the importance of our two closely elected MHKs in relation to primary legislation passed by Tynwald.
- On 9 February 2021, Chris Robertshaw was in the 13/11 majority to pass an amendment to clause 7 of the Competition Bill 2020. The clause sought to make it clear that competition law applied to public sector bodies, as well as the private sector. An amendment was proposed to make it clearer that the law applied to everyone, rather than just those parts of the public sector covered by the Freedom of Information legislation. The amendment was adopted by the Keys, and became the Competition Act 2021 s.7.
- On 2 February 2021, Graham Cregeen was in the 12/11 majority to accept amendments to the Climate Change Bill 2020. As a result, clause 32 was amended. Clause 32 covered powers of entry under the Act, or under regulations made by the Department under the Act. The clause did not require reasonable suspicion of an offence, and the proposed amendment would have required “reasonable grounds for suspecting that an offence has been committed”. The amendment was adopted by the Keys, and became Climate Change Act 2021 s.32(2).
Why young people should vote.
Within the Manx context in particular, it is worth noting that the Isle of Man is very much in the minority in enfranchising 16 and 17 year olds (continuing an honorable tradition for such a young democracy in innovation, being the first to enfranchise women in 1881). All of the arguments .above apply to younger voters, but there is another to consider.
Across the world, older people are much more likely to vote than younger people. Not only are they more likely to turn out, older people as a group may hold different political views than younger people as a group. A robust poll in the UK in January 2026 found that the Green Party was the most popular with 18-24s, Labour with 25-49s, and Reform with 50+. Without getting into policies, and quickly getting partisan; if young people vote at a significantly lower rate than older people, we would expect to see views represented by the Green Party underrepresented, and views represented by Reform overrepresented. So voting by younger voters can help to represent the younger demographics views.
So make sure you can vote, and vote!
The 21st century House of Keys really matters. Since the late 20th century the Legislative Council, although an important part of Tynwald, has been without doubt the subordinate chamber of Tynwald. Around the same time running the Manx government shifted from the Lieutenant-Governor to Manx politicians able to command majority support in Tynwald – and latterly, just the House of Keys. From even earlier, Tynwald had become far more important in Manx life than the UK Parliament. So who is elected into the House of Keys in the General Election really matters for the Isle of Man.
In large democracies with dominant political parties, the feeling that one voters vote is not going to matter is understandable. Large constituencies mean you need to be part of a much broader trend to make a difference in who is elected to represent you; politics dominated by parties mean that your individual decision may not make much of a difference over the next five years. In the Isle of Man, things are very different. If 4 people who voted for Chris Robertshaw had instead voted for Jon Joughin, Douglas East would have had a different MHK. That different MHK would have been one of only 24 people, the vast majority of whom sat as independents, who sat and voted in the Keys; and whose views and discussions shaped national policy.
To be able to vote, you need to make sure you can. There is an excellent elections site, updated for the General Election 2026, maintained by the Crown and Elections Unit in Cabinet Office. Well worth checking out!
Conscientious objection and assisted dying in the Crown Dependencies.
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?
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.
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.
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.
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.
Peter Edge's Law Blog. 