affiliated to the International Association of Constitutional Law
The Isle of Man is an almost entirely self-governing Crown Dependency whose principal constitutional institution is the Tynwald. Tracing its origins to the Norse Kingdom of the Isles, Tynwald primarily as a legislature, but from the 19th century developed an increasing role in the executive. As the British Government relinquished responsibility for increasing areas of government business, the executive role of Tynwald increased. Since 1990 the Council of Ministers, led by a Chief Minister nominated by Tynwald and made up of members of Tynwald, has fulfilled a role similar to that of British Cabinet. Tynwald, therefore, represents the primary organ of government in the Isle of Man, exercising broad legislative powers and providing the Manx executive.
The Lisvane Report (GF No.2016/0047; available online at https://www.gov.im/media/1352029/review-of-the-functioning-of-tynwald-gd-2016-0047.pdf) was published on the 7th of July 2016. It has its origins in a 2015 motion which envisaged a referendum on establishment of a directly elected, unicameral, Tynwald. This specificity did not survive early debates in Tynwald, and the Lisvane Review, formally established on the 26th of April 2016, sought to examine the functioning of the branches of Tynwald, to assess their efficacy, to consider the scrutiny structure, and to make recommendations for reform if necessary.
Lord Lisvane, once appointed, acted with commendable dispatch and openness. He took oral evidence for two weeks at the end of May and beginning of June, with all 33 witnesses livestreamed, recorded in Manx Hansard, and transcribed online. He took a further 51 written submissions, and also made extensive use of Manx primary sources although, with the exception of the position of the Lord Bishop of Sodor and Man, not the academic literature. The Report makes a number of recommendations which Lord Lisvane specifically severs from one another: “implementation of any of my recommendations would result in improvements” (Lisvane, at 7). In fact, many of them interlink so that the Report represents a coherent, and likely to be controversial, vision of a reformed Tynwald.
Lord Lisvane identifies Tynwald as a tricameral legislature. The House of Keys, with its 24 directly elected MHKs (Members of the House of Keys), sits as the dominant Chamber. The Legislative Council (LegCo), with a combination of ex officio and indirectly elected members, sits as the second. When the Keys and LegCo sit together as Tynwald Court, they constitute the third chamber (Lisvane, at 15). Lord Lisvane identified practical bicameralism, with an emphasis on the directly elected chamber, as a strength of the current structures (Lisvane, at 20). He identified a number of areas, however, where “further evolutionary change is needed” (Lisvane, at 22).
Lisvane recognised that one of the Manx drivers for unicameralism was “a dislike of the present status and mandate of Legislative Council” (Lisvane, at 24). Tapping into a well-established thread of critique in the Isle of Man, he considered whether the functions of LegCo required the democratic mandate of direct election. He rejected this proposal, primarily because of the possibility of competing mandates between the two Chambers – in particular, directly elected LegCo members would be likely to have larger constituencies than MHKs, which may make the primacy of the House of Keys problematic (Lisvane, at 28). Having rejected direct election, he turned to consider in more detail the question of membership of LegCo.
LegCo evolved during the 20th century from the Council of the principal officers of the Isle of Man – appointed by the Crown – to a colonial hybrid composed of both these ex officio members, and members appointed by the House of Keys. Since 1961 these “appointed members” have constituted the majority of LegCo, and today only the Lord Bishop of Sodor and Man, and the non-voting Attorney General, sit ex officio, alongside the President of Tynwald and eight appointed members. The consent of LegCo is required to legislation, although in exceptional circumstances the House of Keys may override the consent of LegCo. As discussed below, members of LegCo also have a role in the non-legislative work of Tynwald.
A significant concern with the appointed members was that they were drawn from a small political class (Lisvane, at 29-30), and that the process was often deadlocked in the House of Keys due to an inability to command a simple majority in appointing members (Lisvane, at 30-33). Lord Lisvane’s solution is an independent Nominations Commission, which could accept nominations from the public, MHKs, MLCs, or candidates themselves, although no sitting MHK could be nominated. The Nomination Commission would be independent, consist of people of “standing and authority”, and include in its five person membership people from a range of diverse backgrounds, at least two women, and possibly “a minority of off-Island members” (Lisvane, at 31). The Nominations Commission would then recommend in order of merit a number of candidates – perhaps twice the number of vacancies to be filled – and MHKs would vote on the nominations. A single round of voting would fill the available places by order of the votes secured in a single round of open voting (Lisvane, at 31-33). If LegCo was to be more involved in scrutiny, as Lord Lisvane recommended elsewhere, a modest increase of two members may be necessary (Lisvane, at 34).
There was much less radical consideration of the ex officio members: an interesting reverse of turn of the century debates where the ex officio members were seen as a very significant problem in LegCo. A substantial discussion of the role of the Lord Bishop of Sodor and Man concluded that no serious change was needed – striking given the recurrent calls for the Lord Bishop to lose their place in LegCo or, as a less radical alternative, become like the ex officio Attorney General with a voice but not vote (Lisvane, at 35-37).
He also considered the powers of a LegCo which continued to lack the mandate of direct election. He recommended that LegCo shoud not vote on taxation or appropriation, that members should not normally be part of the executive, and that they should not vote on the appointment of the Chief Minister (Lisvane, at 33-34). Both the appointment of Chief Minister, and other governmental roles for members of Tynwald, were also considered by Lord Lisvane.
Although not agreeing with calls for a directly elected Chief Minister (Lisvane, at 38), he did seek to engage with the problems of a Chief Minister elected by a majority of a chamber in the absence of a party system. His solution is for a new Administration to produce a “Programme for Government” – roughly analogous to the Queen’s speech, but “a much more comprehensive document, with policy objectives, milestones (or at least indications of phasing), and broad intended budget allocations” (Lisvane, at 40). This Programme for Government would then be debated in Tynwald, where the Government would seek approval for the Programme, probably renewed annually as the Programme was refreshed (Lisvane, at 40-41).
Most radically, Lord Lisvane recommended the abolition of the Departmental Member system. The system allows members of Tynwald who are not ministers to be attached to Government Departments by the relevant Minister. Of the 32 eligible members of Tynwald, only 5 did not have a role in a Government Department. Departmental members receive a substantial enhancement of salary (at least 30%). Perhaps a hangover of the 19th century Board system, where every MHK had a role in the (limited) functions of Manx government, the overwhelming predominance of Government members in Tynwald has posed serious challenges for the operating of a ministerial system of government. Lord Lisvane’s conclusions merit full reproduction.
29. I do not believe that the system of Departmental Members is remotely sustainable. The issue of patronage, and the perception or reality that Members are receiving significant salary enhancements for a role that at worst may be unnecessary, is a reputational liability.
30. Perhaps the most difficult element to defend to the wider world is the fact that, whatever may be claimed for the ability of Departmental Members to free themselves of Government responsibilities and criticise other parts of the same Government with true independence, it is the case that 26 out of 30 eligible Members of Tynwald, or 87%, are in Government.
31. This lack of evident separation of roles between Parliament and the Executive means that the Isle of Man may be seen to fall short of the highest standards of parliamentary governance. This has wider reputational risks.
32. I therefore recommend that the present extensive system of Departmental Members should end. Ministers should be capable of running their Departments with significantly less political support, and they should empower and support officers to a much greater extent. There should be no more than one Departmental Member per Department, and an appointment should be made only where it is clear that substantial responsibilities will be assumed in recognition of the salary enhancement. (Lisvane, at 45).
Lord Lisvane anticipates that this change would free up significant resources within Tynwald, which he proposes be used for Tynwald to “raise its game” (Lisvane, at 46) in relation to scrutiny. His substantial recommendations include raising the status of the Chairs of the four principal scrutiny committees (Lisvane, at 50), incorporating them into a standard Draft Bill legislative procedure (Lisvane, at 55-6); limiting scrutiny committee membership to those not involved in Government while ensuring familiarity of members with the work of Departments being scrutinised (Lisvane, at 50-51), and changing the role of Select Committees and the Public Accounts Committee (Lisvane, at 51). He also supports the bringing into force of the Manx legislation which allows for an Auditor General and an Ombudsman (Lisvane, at 51-52).
Finally, Lisvane is concerned – with good cause – at the composition of Tynwald. His proposals for appointment to LegCo included a direction that the new Nominations Commission work to improve diversity, but recognised that the starting point for female membership (with the Isle of Man below Iran, Bahrain and the Democratic Republic of Congo) was “an issue of such importance that both Tynwald and civil society need to address it with energy” (Lisvane, at 65). Gender was the primary focus, but he also recognised that the average age of 57.8 for members of Tynwald was also a concern (Lisvane, at 65).
For a report carried out at such a pace, and with such a broad remit, Lord Lisvane has produced a package of wide-ranging reforms which, taken individually, would represent significant constitutional change in the Isle of Man. Taken together – and the synergies between different parts of his proposals certainly indicate that is how he anticipates them being taken – they could represent the most significant change to the Manx system of government since the 1960s.
Peter W Edge is Professor of Law at Oxford Brookes University, and Chair of the Small Jurisdictions Service.
Suggested citation: P.W. Edge, ‘The Lisvane Report on the Functioning of the Manx Tynwald’, U.K. Const. L. Blog (26th Jul 2016) (available at https://ukconstitutionallaw.org/))