GEORGE JOHNSON LAW PRIZE 2018

2. COULD VALIDLY PASS AN ACT WHICH ABOLISHED DOLEANCE CLAIMS AGAINST THE GOVERNMENT?

“In future, unless precluded by authority, I should allow any person in a proper case seeking redress to present a petition of doleance on his own motion.”

Deemster LaMothe

In re Licensing Appeal Court 1921-51 MLR, 54-55

JUNE 28, 2018 ANDREW NEWTON BA (DUNELM) LLB ADVOCATE

Table of Contents

1.0 Introduction ...... 3

2.0 Petition of Doleance ...... 5

3.0 Parliamentary Sovereignty ...... 8

4.0 The Royal Assent ...... 12

5.0 Judicial Review from Abroad ...... 15

6.0 Conclusion ...... 19

1

“The doleance process is concerned with reviewing not the merits of the decision in respect of which the petition of doleance is filed, but the decision-making process itself. It is not for the judiciary to substitute their own decisions for the decisions of the body constituted by law to decide the issues in question. The concern of the court is with whether the decision-making entity exceeded its powers, committed an error of law, committed a breach of natural justice, reached a decision which no reasonable entity could have reached or abused its powers.”

His Honour Doyle

Now First Deemster and

In The Matter Of MTM (Isle Of Man) Limited 2003 - 05 MLR 415 (CHD) October 7th, 2004

2

1.0 INTRODUCTION

1.1 As enunciated by Lord Lisvane in his Review of the Functioning of Tynwald1, there persists in the Isle of Man “a complete separation of powers between the Judiciary, and the Parliamentary and Executive functions”2 (although, Lord Lisvane made observations as to a perceived curtailment of that end by the existing constitution of the Executive3).

1.2 The doctrine of the separation of powers is an institutional bifurcation and distribution of governance power within the constitution of a society, developed by political philosophers and jurists since Aristotle’s4 elaboration in The Politics:

“There are three elements in each constitution in respect of which every serious lawgiver must look for what is advantageous to it; if these are well arranged, the constitution is bound to be well arranged, and the differences in constitutions are bound to correspond to the differences between each of these elements. The three are, first, the deliberative, which discusses everything of common importance; second, the officials (here we ask what they ought to be, the limits of their sovereign powers, and the methods by which they are selected); and third, the judicial element.”5

1.3 The doctrine of the separation of powers found an exposition in the work of Montesquieu (Baron de Montesquieu)6. In the Spirit of the Laws7, Montesquieu opined that:

“When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no

1 Lord Lisvane KCB, DL. Review of the Functioning of Tynwald. (2016) GD No. 2016/0047 2 Ibid. page 10, paragraph 7. 3 Ibid. see for instance page 45, paragraph 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.” 4 Aristotle, (born 384 bce, Stagira, Chalcidice, Greece—died 322, Chalcis, Euboea), ancient Greek philosopher and scientist 5 Aristotle. The Politics. Book IV Chapter XIV Deliberative Element In The Constitution 6 Charles-Louis de Secondat, Baron de Montesquieu (1689-1755), jurist and political philosopher. 7 De l'esprit des loix (1748; The Spirit of the Laws) 3

liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.”8

1.4 The constitution of the Isle of Man has therefore developed to manifest, at least ostensibly (see 1.1 above: Lord Lisvane’s concerns as to the constitution of the Executive), the tenants of the doctrine of the separation of powers in the constitutional limbs of Tynwald (the tricameral body incorporating the , the Legislative Council, and Tynwald as a general assembly of the former), The (with the Council of Ministers formed by the Chief Minister as its apex), and the Isle of Man Courts of Justice (with the First Deemster/Clerk of the Rolls at its apex).

8 Ibid. Chapter 6, Book 11. 4

2.0 PETITION OF DOLEANCE

2.1 In pursuit of a balanced harmony of separate powers within the constitution of the United Kingdom, the principle of ultra vires developed. That is “beyond powers”, meaning that a public body must act within the constraints ascribed by authority vested from Parliament, the sovereign law making body in the United Kingdom. In the event of perceived trespass or transgression from the ascribed authority, redress can be sought through a request of the court to judicially review the position.

2.2 In the constitution of the Isle of Man, the sovereign law making body is the tricameral assembly of Tynwald. Alleged events of ultra vires by public bodies in the Isle of Man can be challenged through a petition similar to that of judicial review called doleance9.

2.3 The petition of doleance, as a right of the citizens of the Isle of Man to question executive function received definition from Deemster Clerk of the Rolls in Attorney General v Brew et al:

“The petition in this matter is one here technically called a petition of doleance. By such a petition, relief is sought in such cases as those in England which are connected with the prerogative writs of habeas corpus, mandamus, prohibition, certiorari and quo warranto, which are issued to redress grievances of a public character.”10

Further definition has been handed down by Sir Ian Glidwell Judge of Appeal11 and Richard Bingham Judge of Appeal12.

9 ATK Corlett, now Second Deemster, The Petition of Doleance in Manx Law and the Comparable Remedies in England. (1982) George Johnson Law Prize: “In the Isle of Man this intervention is achieved by means of a Petition of Doleance, whereas in England and Wales it is necessary to use the procedure known since 1977 as “an application for judicial review”. 10 Attorney General v. Brew and Four Others 1522 - 1920 MLR 373, 18 November 1903 11 In Re Nicholson (I.O.M.) Ltd. 1978 - 80 MLR at 329, 4 July 1980, Sir Iain Glidwell, J.A. stated: "A petition of doleance is a form of proceeding peculiar to the Isle of Man, which takes the place of the prerogative orders of mandamus and certiorari in England but which also may be brought on the relation of the Attorney General. In essence, by a petition of doleance, a party is entitled to move the court to exercise its equitable jurisdiction to address a wrong for which no other remedy is available. It is obviously a remedy of considerable scope and utility, and is intended to lead to a wrong being righted as soon as possible." 12 In In re Kerruish (17) Bingham J.A. stated (1961–71 MLR 374 at 390): "... within a comparatively compact community a simple and speedy means for the ordinary citizen to obtain redress for injustices which, in England, would be remedied by orders of certiorari, habeas corpus and the like. The essence of the petition of doleance is that it should be simple and, 5

2.4 Deemster Farrant in the case of In Re. Martin (1943)13 identified that Doleance is an obsolete word derived from French, meaning a complaint. Still further back, Johnson's Jurisprudence of the Isle of Man (1811)14, identifies at page 74 that doleance derives from the Latin "dolor", which means pain or grief15. Deemster Doyle in MTM (Isle of Man) Limited16 referred to a use as long ago as 152417, although, Lucy Marsh-Smith indicates in her article A Very Particular Remedy: Doleance In The Crown Dependencies18 that this reference does not appear to be a use in the legal process sense19.

2.5 Deemster Parr’s An Abstract of the Laws, Customs, and Ordinances of the Isle of Man (c.1690) identifies a petition of doleance being filed by an Edward Moore, Vicar of Kirk Patrick against Lord Strange, the Lord of Man, in 162720. However, Dr Darryl Ogier in his article Doléance: a juridical pieuvre?21 identifies that the manuscript record of the petition and Lord Strange’s response contains no use of the word “doleance”, but rather uses terms such as “appeal” and “complaint”22; the inference drawn by the author of this treatise being that “doleance” may have been introduced on Sir James Gell’s editorship of Deemster Parr’s Abstract on its issue in 1867.

therefore, unencumbered by legal formality, and also speedy so that the issues can be tried quickly". 13 In the Matter of Martin 1921 - 51 MLR 317 (CHD) 14 Johnson's Jurisprudence of the Isle of Man (1811). Treatise on Manx law. 15 http://latin-dictionary.net/definition/18369/dolor-doloris 16 In The Matter of MTM (Isle Of Man) Limited 2003 - 05 MLR 415 (CHD) 17 See MTM (Isle of Man) Limited And The Financial Supervision Commission / 07 October 2004 CP 2003 119 (www.judgments.im), Paragraph 25: “The Oxford English Dictionary at page 936 refers to doleance as including “complaining, complaint …1524 St Papers Hen. VIII, iv. 104 Albeit ye make some doleance in your letter. 1524 in Strype Eccl. Mem. 1 App. xii. 30 Any motion, by way of complainte of doliaunce. 1591 Horsey Trav. (Hakl. Soc.) 198 All their dollinces herd and remedied”. The author has identified that this appears to be an extract taken from correspondence from Lord Wolsey to Lord Norfolk (1524): “And, my Lord, albeit ye make some doleance in your letters, aswel for lak of commission, as instructions in this weighty matier, wherunto ye be entred; I suppose it was rather upon some trouble of mynde and success of some contrarious thing, than upon any good cause or grounde.” State Papers Published Under the Authority of His Majesty’s Commission. Volume IV. (1836) 18 Lucy Marsh-Smith. A Very Particular Remedy: Doleance In The . Jersey & Guernsey Law Review – June 2011 19 Ibid. page 2. (footnote 6) 20 Parr’s An Abstract of the Laws, Customs, and Ordinances of the Isle of Man Vol 1. J. Gell, Douglas, 1867, p. 77. Note 20: Petition of Edward Moore, " Vicar of Kirk Patrick at Peele wthin the Isle of Mann," " To the Right Honorable the Lo. Strange." The petition is one of doleance against the Bishop who claimed the whole of the tithes of the parish of Patrick, whereas the petitioner claimed one-third, the vicarage being a vicarage of thirds, and the petitioner alleges in very strong terms the refusal of the Bishop to give redress or a hearing of the cause in the Ecclesiastical Court. 21 Dr Darryl Ogier. Doléance: a juridical pieuvre? Jersey & Guernsey Law Review – October 2011 22 Ibid. page 399. 6

2.6 Dr Ogier and Ms Marsh-Smith in their articles conclude that the earliest use of the petition of doleance in the records of the Isle of Man is a petition submitted by John Stevenson to the Duke of Atholl, Lord of Man, in 175923. As to the provenance of the term for the petition of redress under Manx law, Dr Ogier suggests the adoption by the Privy Council of the term for petitions of redress from the Channel Islands (that records as early as 1545 suggest had adopted the petition of the Normandy Courts that can be traced back to the 14th Century24), ultimately had a similar influence upon the Manx Courts25.

23 Ibid. page 399. A report of a Royal Commission of 1792. 24 Ibid. page 397. 25 Ibid. page 401. 7

3.0 PARLIAMENTARY SOVEREIGNTY

3.1 Unsurprisingly, as a neighbour of the United Kingdom the constitution of the Isle of Man has developed in a similar fashion. That is, the Isle of Man does not have a formal written constitution. A country that this system can be immediately compared to is that of the United States of America. In relation to judicial review, Alexis de Tocqueville26 provided an insight into the fundamental differences engendering from the two systems. On the matter of judicial review as a limb of the separation of powers in the constitution of the United States of America, he said:

“Within its restricted limits, the power granted to American courts to pronounce on the constitutionality of laws remains still one of the most powerful barriers ever erected against the tyranny of political assemblies.”27

However, of the system in the United Kingdom he had this to say:

“It would be even more unreasonable to grant English judges the right to resist the will of the legislature since Parliament, which makes the laws, also shapes the constitution and consequently cannot, under any circumstance, call a law unconstitutional when it stems from the three authorities: King, Lords, and Commons.”28

3.2 The United Kingdom system with the sovereign Parliament is therefore differentiated and its Courts subservient to the final say of that body politic. This doctrine was famously stated by Professor Dicey29 as the aphorism:

“It is a fundamental principle with English lawyers, that Parliament can do everything but make a woman a man, and a man a woman.”30

26 Alexis de Tocqueville, (born July 29, 1805, Paris, France—died April 16, 1859, Cannes), political scientist, historian, and politician. 27 Alexis de Tocqueville. Democracy in America (1835). Chapter 6, Judicial Power in the United States of America. 28 Ibid. Chapter 6. 29 AV dicey (4 February 1835 – 7 April 1922) British Jurist and Constitutional Theorist. 30 A.V. Dicey. An Introduction to the Study of the Law of the Constitution. 10th Ed. (1959), Ed. Wade, p.43. (Macmillan). See also: Lord Bingham of Cornhill, Chapter 12. The Rule of Law (2010). 8

This was identified in a more judicious fashion by the English Court of Queen’s Bench in Ex p. Canon Selwyn:

“There is no judicial body in the country by which the validity of an act of parliament could be questioned. An act of the legislature is superior in authority to any court of law … and no court could pronounce a judgment as to the validity of an act of parliament.’”31

3.3 In view of the apparent position, it would then seem that the Court and judicial review in the United Kingdom would be subservient to the will of Parliament. In such circumstances, judicial review would appear subject to the possibility of an Act of the Westminster Parliament to prohibit its use. As a starting place, such a prohibition would have to be clear and unambiguous32. That having been said, Sir Edward Coke33 in Dr Bonham’s Case34 of 1610 stated that a statute contrary to common right and reason would be void; could this be an authority to justify a Court’s stance to treat an Act of the Westminster Parliament prohibiting judicial review as “unconstitutional” in the style of the Courts of the United States of America?

3.4 Lord Bingham of Cornhill35 considered that there was no record of a case in which the courts, without the authority of the Westminster Parliament, have invalidated or struck down a statute36. However, Lord Steyn has left the door ajar for at least a challenge to the prohibition by Westminster of an entrenched constitutional or natural right such as judicial review, stating:

“In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new may have to consider whether this is [a] constitutional fundamental which even a sovereign Parliament

31 Ex p. Canon Selwyn (1872) 36 JP 54, per Cockburn CJ and Blackburn J. 32 Lord Bingham of Cornhill, Chapter 12. The Rule of Law (2010): “Parliament may therefore legislate in a way which infringes the rule of law; and in which the judges, consistently with their constitutional duty to administer justice according to the laws and usages of the realm, cannot fail to give effect to such legislation if it is clearly and unambiguously expressed.”. See also Lord Steyn in R v Secretary of State for the Home Department, Ex parte Pierson [1998] A.C. 539 “Unless there is the clearest provision to the contrary, Parliament must be presumed not to legislate contrary to the rule of law.” 33 Sir Edward Coke, (born February 1, 1552, Mileham, Norfolk, England—died September 3, 1634, Stoke Poges, Buckinghamshire), British jurist and politician. 34 Dr. Bonham's Case, 8 Co. Rep. 114 (Court of Common Pleas)(1610) 35 Lord Thomas Henry Bingham, Baron Bingham of Cornhill (13 October 1933 – 11 September 2010), British judge and jurist. 36 Lord Bingham of Cornhill, Chapter 12. The Rule of Law (2010). 9

acting at the behest of a complaisant House of Commons cannot abolish””37

3.5 The view that constitutional or natural rights may be implied or adopted into an unwritten constitution by prescription or by the implication of the concept of the rule of law, has found some favour in the Courts of Australia. In the case of Leeth v. Commonwealth, the Australian Supreme Court indicated an implied right of equality before the law38. In the case of Nationwide News Proprietary Ltd. v. Wills39, the Australian Court implied a right of freedom of expression.

3.6 Nevertheless, the conflict between the concept of implied or natural rights and the fundamental doctrine of the sovereignty of Parliament is insurmountable. What can the outcome be but the Parliament seized of the authority to legislate to prohibit the right of judicial review; if the case, is this likewise the case for Tynwald and the petition of doleance?

3.7 Whether or not the means of redress known now as a petition of doleance adopted its name from the Privy Council / Channel Islands influence as opined by Dr Ogier (see 2.6 above), the Manx people were availing themselves of petitions of redress at least as early as 1627 (see 2.5 above). Can it be therefore, that, otherwise than the position in the United Kingdom, the Manx have an inherent right to the petition of redress now known as the petition of doleance; as Deemster Corrin stated in The Matter of Winnell, the petition of doleance is “an ancient and unique Manx remedy … for hundreds of years Manx men and women have had the right to petition the court seeking a remedy”40.

3.8 However, the “Breast Law” of the ancient of the Isle of Man, referred to in Johnson’s Jurisprudence (1811)41, has now been curtailed with the development of the constitution of the Isle of Man, imposing the separation of powers at its heart and the bestowing the sovereign law making function upon Tynwald. As Alexis de Tocqueville had opined (see 3.1

37 R. (Jackson and others) v Attorney General [2005] UKHL 56. (from 102). 38 Leeth v. Commonwealth, (1992) 174 C.L.R. 455. See discussion in declarations of Unconstitutionality. David Jenkins (2009). 39 Nationwide News Proprietary Ltd. v. Wills, (1992) 177 C.L.R. 1. See discussion in Common law declarations of Unconstitutionality. David Jenkins (2009). 40 In The Matter of Winnell 1993 - 95 MLR 285 (CHD) 41 Johnson's Jurisprudence, at 44 (1811): "the great and unparalleled power vested in the Deemsters, by the breast or traditional law, originating with the Druids." 10

above), Deemster Christian cautioned in an exchange with Advocate Corlett in 1847:

Advocate Corlett: “The ancient jurisdiction of the Deemster in this Island was much larger than is generally now admitted, and his functions ought to be carefully preserved”

Deemster Christian: "… we must take care not to transgress the limits of the jurisdiction"42

3.9 With the development of the Isle of Man’s unwritten constitution, the separation of powers and the sovereignty of Tynwald, the inherent right of the petition of doleance has now become a statutory right. As Deemster Corrin referred in The Matter of Winnell:

“Although it has always been accepted that a petition of doleance is a discretionary remedy, the jurisdiction to hear and determine petitions was always uninhibited, that is to say until 1991 when Tynwald, in its wisdom, decided to confer statutory authority for petitions of doleance in ss.10 and 44 of the High Court Act.” 43

Has the act of legislating for the right of redress extinguished an inherent right of the Manx to seek the same?

3.10 Due to two nuances of the constitutional position of the Isle of Man, the conflict does not need to be tackled head-on and subdued in this treatise.

42 Garrett v. Curphey Bluett, Advocate’s Note Book, 1847 at 184. See also: In The Matter of The Petition of Appeal of Hafner (1) 2007 MLR 180 (SGD), paragraph 79. 43 In The Matter of Winnell 1993 - 95 MLR 285 (CHD) 11

4.0 THE ROYAL ASSENT

4.1 Prior to 1765 the legislative power to grant Royal Assent was exercised by the King or Lord of the Isle of Man without reference to the Crown of England44. On this significant point the Staff of Government, the first Appeal Court of the Isle of Man Court (before the Privy Council), stated the following:

“In support of this submission that Parliament must be supreme, Mr Teare postulated the difficulties which would arise if neither legislature were supreme and there were a clear conflict between an Act of Parliament and an Act of Tynwald. We can however see no difficulty at all so long as the Lord of Man remains the same person as the United Kingdom’s sovereign. Since her consent is required before Acts of either legislature become law. It must follow that the later Act (whether of Tynwald or Parliament) must prevail.”45

Therefore, the Royal Prerogative, in the action of Royal Assent, has the authority to block legislation against the will of Tynwald. An example of this taking place in recent times was by the refusal to grant Royal Assent in 1961 to Isle of Man legislation conferring powers to licence broadcasting in the Isle of Man46.

4.2 Therefore, the constitution of the Isle of Man provides that the Royal Assent is a fundamental element of the procedure for the enacting and promulgation of Isle of Man statues. In the context of Tynwald, as sovereign law making body, introducing, passing, and advancing to the crown, a statute for the precluding and prohibiting of petitions of doleance against acts of the Isle of Man Government, the Royal Prerogative has the final say. In such a context, would the Crown furnish its Royal Assent to the Bill?

4.3 The United Kingdom is seized with the responsibility of ensuring the good governance of the Isle of Man47. This is detailed as included the attainment

44 Ring G A The Legislature and Judicature of the Isle of Man (1902) Law Magazine and Review 45 JA Hytner in RE C B Radio (1981-83) MLR 381 46 p.430 Report on the Relationship between the United Kingdom and the Channel Islands and the Isle of Man. (1973) 47 Paragraph 1.11. Independent Review of the British Offshore Financial Centres. M. Foot (2009) 12

of international standards48. The United Kingdom is of course a signatory to the European Convention on Human Rights (ECHR), enacting the Human Rights Act 1998 to that end. In the context where citizens were to be denied such an entrenched and fundamental right as the right of doleance, it would seem there may be conflict with the ECHR provisions49 and be contrary to the good governance of the Isle of Man, ultimately resulting in the refusal of Royal Assent50. The possibility of such an event was considered by the European Court of Human Rights in Tyrer v. United Kingdom51:

“Tynwald legislates in domestic matters, the laws it adopts requiring ratification by the Queen in Council; the Home Secretary is responsible for advising the Privy Council whether or not to recommend that the Royal Assent be given. In strict law, the United Kingdom Parliament has full power to pass laws applicable to the Isle of Man but, by constitutional convention, does not in the ordinary course legislate on the Island's domestic affairs, such as penal policy, without its consent. This convention would be followed unless it were overridden by some other consideration, an example of which would be an international treaty obligation.”

The view was repeated and reaffirmed by the European Court of Justice in DHSS v Barr and Montrose52:

“Tynwald enjoys a substantial degree of autonomy in respect of matters which do not transcend the frontiers of the Island. However, Acts of Tynwald, like Acts of the United Kingdom Parliament, require the Royal Assent before they become law. Moreover, in contrast with the position in respect of United Kingdom legislation, there is no constitutional convention requiring the Sovereign to give the Royal Assent to Isle of Man legislation. The United Kingdom Home Secretary, who is the member of the United Kingdom Government with primary responsibility for relations with the

48 Ibid. paragraph 1.11. 49 For example, the Article 5 right to Liberty. Although, the right may only be invoked once a right is infringed. The fact that the means of redress has been denied in theory, may only be available to be acted upon once the victim has sought to rely on the means of redress and been denied. 50 See Deemster Doyle’s Note on the Constitutional Status of the Isle of Man: “To take an extreme case therefore, if the Isle of Man was openly flouting an international Convention which was applicable to it then it may well be the UK Parliament, which is ultimately responsible for the good government of the Island would take steps to remedy the position. Interesting examples where the UK has interfered would include the Radio Caroline issue, birching and homosexual matters. If, for example, to take an extreme case the Isle of Man Government attempted to provide legislation that all blue eyed babies in Douglas should be shot on sight then it is inconceivable that such legislation would be allowed to go on to the statute book by the UK.” 51 Tyrer v. United Kingdom 1978 - 80 MLR 13 (ECHR) March 17, 1978 52 DHSS v Barr and Montrose 1990 - 92 MLR 243 (ECJ) 13

Island, may therefore advise he Sovereign to withhold the Royal Assent if the measure in question is unacceptable to the United Kingdom Government. Although it appears that the Royal Assent has only rarely been withheld, the result in practice is that the Home Office must approve all bills which come from the Island.”

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5.0 JUDICIAL REVIEW FROM ABROAD

5.1 As expressed above (see 4.2), an imperative in the enacting and promulgation of legislation in the Isle of Man is the action of Royal Assent. In the event of the fulfilment of the notion of the question posited, that Tynwald passes legislation through its chambers that precludes and prohibits the rights of Manx citizens to avail themselves of the petition of doleance as a means of redress, it seems almost certain that the constitutional outcome will be the denial of Royal Assent (see 4.3). On such an outcome, should Tynwald insist on its passing of such legislation, asserts promulgation of such a statute and the Isle of Man Courts of Justice refuse to accept such petitions, will then the petition of doleance be precluded to Manx citizens?

5.2 In Ex parte Brown (1864)53 the Court of Queen's Bench of the English Court took the step of issuing a writ of Habeas Corpus54 to the Isle of Man for the imprisonment of a journalist on the basis of his unlawful imprisonment by the House of Keys. The authority that a writ of Habeas Corpus could be issued by English Courts to the Isle of Man had been indicated previously by the Court of Queen’s Bench in the Matter of Crawford55 in 1849 but not applied in that instance. In circumstances where Tynwald had legislated (without Royal Assent) to preclude the right of Manx citizens to have petitions of doleance heard in Manx Courts as to the actions of the Isle of Man Government, could a writ to review Executive actions issue from an English Court to the Isle of Man?

5.3 In both Crawford and in Brown the crux of the matter before the English Court of Queen’s Bench was whether the Isle of Man fell to be considered a foreign dominion of the English Crown or simply a dominion. In Brown the legislation being considered was section 1 of the Habeas Corpus Act 186256, which precluded the issuing of writs of Habeas Corpus to foreign dominions of the English Crown. As had been indicated in Crawford, the English Court

53 (1864) 5 Best and Smith 280 54Deemster Kneale in In the Matter of M (An Infant) 1952 - 60 MLR 390 (SGD): “is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from unlawful or unjustifiable detention whether in prison or in private custody” 55 In The Matter Of Crawford 1522 - 1920 MLR 63 (CQB) 56 Section 1, Habeas Corpus Act 1862: No writ of habeas corpus shall issue out of England, by authority of any judge or court of justice therein, into any colony or foreign dominion of the Crown where Her Majesty has a lawfully established court or courts of justice having authority to grant and issue the said writ, and to ensure the due execution thereof throughout such colony or dominion. 15

decided that the Isle of Man was not a foreign dominion and was a dominion of the English Crown, giving it a sufficient context so as to justify an English Court issuing a writ of Habeas Corpus to it.

5.4 The writ of Habeas Corpus affords the petitioner only one means of redress, to “bring the body” in order for a Court to adjudicate upon detention. What of the other prerogative writs such as Certiorari57 and Mandamus58? In R v Cowle (1759)59, Lord Mansfield stated:

“Writs, not ministerially directed, (sometimes called prerogative writs, because they are supposed to issue on the part of the King,) such as writs of mandamus, prohibition, habeas corpus, certiorari, are restrained by no clause in the constitution given to Berwick: upon a proper case, they may issue to every dominion of the Crown of England. There is no doubt as to the power of this Court; where the place is under the subjection of the Crown of England; the only question is, as to the propriety. To foreign dominions, which belong to a prince who succeeds to the throne of England, this Court has no power to send any writ of any kind. We cannot send a habeas corpus to Scotland, or to the electorate: but to Ireland, the Isle of Man, the plantations, and, as since the loss of the Dutchy of Normandy, they have been considered as annexed to the Crown,*1 in some respects, to Guernsey and Jersey, we may; and formerly, it lay to Calais; which was a conquest, and yielded to the Crown of England by the treaty of Bretigny.”

Cowle was referred to in both Brown and Crawford. In Carus Wilson’s case of 184560, a case involving the issue of a writ of Habeas Corpus to the Island of Jersey, the English Court of King's Bench stated:

“in Rex v. Cowle (2 Bur. 834, 855), Lord Mansfield treats the question, whether a certiorari could go to Berwick, as analogous to the question whether a habeas corpus could go thither”

5.5 That having been considered, the comments of the Court of Queen’s Bench in Crawford are important reading for this matter:

57 Quashing order. See page 321 In the Matter of Martin 1921 - 51 MLR 317 (CHD) 58 Compelling order. See page 321 In the Matter of Martin 1921 - 51 MLR 317 (CHD) 59 R v Cowle (2 Burr. 834, 856 (1759)) 60 Carus v Wilson (1845) S. C. 14 L. J. Q. B. 105, 201; 9 Jur. 393. 16

“But then, if I understand the affidavits correctly, this is the ordinary form in which the commitments take place in the Isle of Man: and we know that the law of the Isle of Man is not the law of England, but differs from it in some respects. We must leave this to the local law, as we did in Carus Wilson's case (7 Q. B. 984), and Brenan's case (10 Q. B. 492): we cannot disturb what has been done in conformity with the law of the island: we are not a Court of Appeal. Before this writ goes, we must see that the commitment is bad: and I cannot come to the conclusion that it is contrary to the law of the place. The rule must, therefore, be absolute.”

The English Court’s view was that although Cowle provided authority for the writ of Habeas Corpus to run, it would not do so because the imprisonment in the case was compliant with the laws of the Isle of Man. Would the authority of Crawford then stop the prerogative writs running to the Isle of Man? In this respect, an argument may be advanced that the statute of Tynwald to preclude and prohibit petitions of doleance, assuming Royal Assent was not bestowed, would not be considered the law of the Isle of Man, not being seized of the necessary Royal Assent imperative.

5.6 The prerogative writs under the law of England & Wales have now been superseded by judicial review61. This has included the “modernisation” of many of the prerogative writs62. In respect of the dicta of Court of Queen’s Bench in Brown, to this author the position of the Isle of Man as a dominion as opposed to a foreign dominion of the English Crown does not appear to have changed. However, whether the prerogative writs can and will still run to the Isle of Man is a matter of and beyond the scope of this treatise63. Should matters come to pass (to the amazement of this author),

61 See for example: Public law procedures and remedies - do we need them? Dawn Oliver P.L. 2002, Spr, 91-110 (2002). Should we abolish the writ of habeas corpus? A.P. Le Sueur. P.L. 1992, Spr, 13-20 62 Should we abolish the writ of habeas corpus? A.P. Le Sueur. P.L. 1992, Spr, 13-20: “A less radical reform would be to “modernise” the writ of habeas corpus in the same way that the other prerogative writs of certiorari, mandamus and prohibition were reformed in 1933, 1938 and 1977; the application would be for an order of habeas corpus under Order 53.” 63 Consider: Public law procedures and remedies - do we need them? Dawn Oliver P.L. 2002, Spr, 91-110 (2002): “The High Court's jurisdiction to award them is found in section 29 of the Supreme Court Act 1981: “The High Court shall have jurisdiction to make orders of mandamus, prohibition and certiorari in those classes of cases in which it had power to do so immediately before the commencement of this Act”. That provision re-enacts section 1 of the Administration of Justice (Miscellaneous Provisions) Act 1938, which converted what had been writs into orders. But that provision did not affect the substantive law relating to the grounds for the award of these writs or orders or the persons against whom and the circumstances in which they could be awarded.” 17 that necessitate the citizens of the Isle of Man to seek redress in the English Courts for prerogative writs to run to the Isle of Man, Crawford, Cowle, and Brown offer at least some authority of that end being realised.

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6.0 CONCLUSION

6.1 Therefore, to respond to the question posited, in the established constitution of the Isle of Man legislation must be assigned Royal Assent for a statute of Tynwald to be promulgated. As discussed, a Bill prohibiting the petition of doleance to Manx citizens against actions of the Isle of Man Government that receives the patronage of the Tynwald Court, will almost certainly fall at the last hurdle. Is this a curtailment and subjugation of the General Will64 of the Isle of Man people?

In this respect, the author refers to and takes comfort in the words of Deemster Cain:

“At the international level however, the Island’s autonomy vis-à-vis the United Kingdom is going to be tempered, by the ever increasing extent and influence of International Law. This is not something we should fear. The purpose of international law is to prevent friction between states, to prevent war, and to promote the well-being of all countries.”65

64 Concept of collective sovereign powers of citizens of a state as enunciated by Jean Jacques Rousseau in The Social Contract (1762). See for example in Book II: “I hold then that Sovereignty, being nothing less than the exercise of the general will, can never be alienated, and that the Sovereign, who is no less than a collective being, cannot be represented except by himself: the power indeed may be transmitted, but not the will.” 65 Understood to be an address By Deemster T W Cain (then Attorney General)(1979/80) – as referred to in Deemster Doyle’s Note of the Constitutional Status of the Isle of Man (page 29). 19