FIRST REPORT OF THE STANDING COMMITTEE ON CONSTITUTIONAL MATTERS FOR THE SESSION 2005-2006

STANDING COMMITTEE OF ON CONSTITUTIONAL MATTERS

The Hon J A Brown SHK (Castletown)

Hon P A Gawne MHK (Rushen)

Mr Q B Gill MHK (Rushen)

Mrs H Hannan MHK (Peel)

Hon J P Shimmin MHK (Douglas West)

The Standing Committee on Constitutional Matters considers and reports on the Council of Ministers' policy and approach to matters of constitutional importance

The powers, privileges and immunities relating to the work of a committee of Tynwald are those conferred by sections 3 and 4 of the Tynwald Proceedings Act 1876, sections 1 to 4 of the Privileges of Tynwald (Publications) Act 1973 and sections 2 to 4 of the Tynwald Proceedings Act 1984.

Copies of this Report may be obtained from the Tynwald Library, Legislative Buildings, Bucks Road, Douglas IM1 3PW (Tel 01624 685516, Fax 01624 685522) or may be consulted at www. tynwald.org.ini

All correspondence with regard to this Report should be addressed to the Clerk of Tynwald, Legislative Buildings, Bucks Road, Douglas IM1 3PW.

To: The Hon Noel Q Cringle MLC, , and the Hon Council and Keys in Tynwald assembled

FIRST REPORT OF THE STANDING COMMITTEE ON CONSTITUTIONAL MATTERS FOR THE SESSION 2005-2006

The title of the Lieutenant Governor

1 At the sitting of Tynwald in October 2003, your Committee reported on the question whether the time had now come to review the eighteenth century title by which the Queen's representative in the is known the 'Lieutenant-Governor'. The main part of our Report then is reproduced at Annex I.

2 The recommendations in that Report were:-

1 That the Council of Ministers should re-examine the functions remaining to the post of Lieutenant Governor with a view to bringing the statute book up to date and report during the current legislative Session.

2 That Tynwald approves the use of the title 'Barrantagh ny Benrein - Queen's Commissioner" (or, when appropriate 'Barrantagh ny Ree - King's Commissioner') for the person appointed to succeed the present Lieutenant Governor when his term of office expires.

3 That the Government should communicate the wishes of the Court of Tynwald to the United Kingdom Secretary of State for Constitutional Affairs, so that he may bring it forward in the context of making the next appointment of Her Majesty's representative in the Isle of Man.

C/ ConM/ mck 3 Following debate, these recommendations were carried, subject to an amendment moved by the then Chief Minister, so that the final Resolution of the Court was:-

That the First Report of the Standing Committee on Constitutional Matters for the Session 2003-2004 be received and recommendations 37.1 and 37.3 be approved and, in respect of recommendation 37.2, that Tynwald recognises the need for change in the title of the Lieutenant Governor on the Island and authorises the Government to open discussion with the Crown and the Department for Constitutional Affairs in order to seek an appropriate alternative.

4 Your Committee enquired of the Chief Secretary in February 2005 what progress had been made by the Government pursuant to the amended motion. We were informed in reply that discussions had taken place with the Department of Constitutional Affairs in the United Kingdom, in the context of which various possibilities for a new title had been canvassed, including "Queen's Representative' and 'Crown Ambassador'.

5 Later in February 2005, a reply was received from the Department of Constitutional Affairs that, after consultation, they had been advised that "it is matter upon which Her Majesty the Queen will have the ultimate decision" but that "our research indicates that there would be no reason for this matter not to be formally progressed if Tynwald wishes to do so". The DCA indicated that it would be best for a single preferred title to be put forward. The full text of the Chief Secretary's letter of 15th February 2005 conveying this information is at Annex II.

6 Subsequent correspondence between your Committee and the Government then took place, in which it was stated by the Head of the Crown and External Relations Division that "I am advised that, subject to the acceptance and approval of Her Majesty the Queen, the title could be changed during the term of the next Lieutenant-Governor." Meanwhile, the Constitutional and External Relations Committee of the Council of Ministers had suggested a further possible title: 'Crown's Commissioner'.

2 C/ConM/mck 7 Your Committee considered the matter again and reached the conclusion that the title 'Crown Commissioner7 would indeed be the most apt. The Constitutional and External Relations Committee of the Council of Ministers indicated that they were content for this title to be adopted, and requested that your Committee should bring the issue again before Tynwald, commenting :

"If Tynwald endorses the change in title, the would then submit a formal request to the Department for Constitutional Affairs. On receipt of the formal submission, DCA can put the proposal to Her Majesty the Queen for consideration."

8 On 23rd June 2005, the Council of Ministers supported the proposed title 'Crown Commissioner' for the representative of Her Majesty the Queen on the Isle of Man, and agreed that your Committee be advised accordingly.

9 As has been seen, in October 2003, Tynwald endorsed the principle of a change in the title. After careful discussion between the interested parties, a single proposal for a title has now commended itself to both your Committee and to the Council of Ministers. In view of this unanimity, it remains only to seek the approval of the Court to this title being put forward for the Queen's approval in the manner indicated.

Recommendation

10 It is recommended that the title 'Crown Commissioner - Barrantagh y Chrooin' be approved by Tynwald for use as the title of Her Majesty's representative in the Isle of Man, subject to Her Majesty's approval.

J A Brown (Chairman) P A Gawne Q B Gill H Hannan October 2005 J P Shimmin

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ANNEX I

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To: The Hon Noel Q Cringle MLC, President of Tynwald, and the Hon Council and Keys in Tynwald assembled

FIRST REPORT OF THE STANDING COMMITTEE ON CONSTITUTIONAL MATTERS FOR THE SESSION 2003-2004

Introduction

1 The role and functions of the Lieutenant Governor of the Isle of Man are subjects which have attracted attention from time to time in the context of the evolution of the Island's constitutional position, and some comment has been expressed in Tynwald that they should be the subject of reappraisal.

2 In giving consideration to the factors relevant to appointment of the successor to the present Lieutenant Governor, the title itself borne by the holder of this office has emerged as a matter which has significance in indicating the tasks which, in modem constitutional conditions, are expected to be discharged by the holder of the office, and are perceived by external observers as being the role of the Lieutenant Governor.

3 Bearing in mind that the current Lieutenant Governor's term of office will expire during the life of the now sitting, it is of some urgency that signposts are erected in good time before an appointment is made. Your Committee have sought, therefore, to

5 Cl ConM/mck revisit the conceptual basis on which the office now rests and to align that with the public description of the office.

The Role and Functions of the Lieutenant Governor

4 Following the Revestment Act of 1765 the British Crown appointed a Governor to administer the Island. The officer so appointed had a deputy whose title was 'Lieutenant Governor', though from 1830 onwards the formal title of the Governor himself became 'Lieutenant Governor', which was frequently abbreviated simply to 'Governor'. On appointment, the Governor and the Lieutenant Governor received from the Monarch a commission setting out the nature of the tasks required of them: in general terms, these were to ensure the good government of the island.

5 The Governor, and then the Lieutenant Governor, had extensive powers which, in effect, made the holder of the office the supreme authority in the Isle of Man. For example, the person appointed: - presided over Tynwald Court and was able to veto its decisions; - presided over the Legislative Council; - acted in effect as Chancellor of the Exchequer; - was responsible for law and order, and controlled the police force and prison; - performed the executive duties now associated with the role of a Government Minister; - exercised considerable judicial functions, including that of judge; - made many appointments in the Island; and - acted as military commander in chief of any forces in the Island.

6 The first major and concerted campaign to reduce the powers of the Lieutenant Governor came in 1907 when the House of Keys sent a list of demands to the Home Office. These included: (a) introducing a fixed term of office for any Lieutenant Governor;

6 C/ConM/mck (b) establishing an Executive Council to assist the Lieutenant Governor in all matters relating to the government and finance of the island; and (c) placing the police under the control of Tynwald.

7 Limited reform did subsequently take place, for example the introduction of a fixed seven-year term of office for the Lieutenant Governor, and reform of the composition of the Legislative Council by introducing an element elected by the Keys (which reduced thè Lieutenant Governor's ability to control the Council). However, it was not until the 1960s that really extensive reductions began to occur in the scope of the Lieutenant Governor's powers. These largely resulted from a Commission of Inquiry into the Constitution of the Isle of Man set up by Lieutenant Governor Dundas in 1958.

8 Some of the key reforms of the early 1960s (c.f. paragraph 11 below) were: (a) the Executive Council was given statutory powers to advise the Lieutenant Governor, who could reject such advice only in exceptional circumstances; (b) a Finance Board was established to advise the Lieutenant Governor on all financial matters: (c) a Civil Service Commission was established to appoint all civil servants; (d) some aspects of police administration were handed to a Police Board, although the Lieutenant Governor still determined the role and policy of the police force; and (e) a further extension of elected Legislative Council Members by the House of Keys took place.

9 However, even after these reforms, the Lieutenant Governor still presided over Tynwald, held many executive functions (including financial ones) and the power of patronage over many appointments.

7 C/ConM/mck 10 In 1970 a Committee of Tynwald was established to investigate the rôle of the Lieutenant Governor, and it concluded that the United Kingdom Home Office should consult more fully with the Isle of Man Government over the appointment of a Lieutenant Governor, and that his term of office should be reduced to five years. It also recommended that the Lieutenant Governor should lose all financial functions, and that his executive duties should be handed over to the relevant Boards of Tynwald.

11 These proposals did not immediately lead to change, but a series of reforms reducing the power of the Lieutenant Governor did occur in the late 1970s and early 1980s. Prominent among these were: (a) in 1976, the Lieutenant Governor ceased to have a financial rôle, with all financial matters thenceforth being controlled by the Finance Board; (b) in 1980, the Lieutenant Governor ceased to preside over the Legislative Council; and (c) also in 1980, the Lieutenant Governor ceased to chair the Executive Council, although he could still attend if he wished.

12 Even after these reforms the Lieutenant Governor retained real power: for example he presided over Tynwald Court, made a variety of appointments, had considerable control over the police and was responsible for immigration, passports and nationality.

13 In 1990, following the recent establishment of the ministerial system of government, there was a further reduction in the power and influence of the Lieutenant Governor. The Executive Council, which he was still entitled to attend, was abolished and replaced by the Council of Ministers, which the Lieutenant Governor was not given the right to attend. Also in 1990, the Constitution Act removed his rôle as Presiding Officer at sittings of Tynwald Court held in Douglas, replacing him by a President of Tynwald elected by Tynwald. In 1992, most of the remaining executive rôles of the Lieutenant Governor were transferred to the relevant Government Department, and in 1993 the

8 C/ConM/mck Police Act of that year placed full control of, and responsibility for, the police force in the hands of the Department of Home Affairs.

14 The remaining duties of the Lieutenant Governor, to be performed alone or as 'Governor in Council', are listed at Appendix 1. It will be seen that some of the functions of the Lieutenant Governor are obsolete, while others (especially those in the older statutes) may now be in need of review; typically, they do not involve matters where political controversy is likely. We recommend that a re-examination of the functions remaining to the Lieutenant Governor should noiu be undertaken with a view to bringing the statute book up to date. 15 The 'Governor-in-Council' functions are formally exercisable only in conjunction with the Council of Ministers. The discharge of these 'Governor in Council' functions takes place by the Council of Ministers reaching a conclusion on the matter in question, and then referring it to the Lieutenant Governor for his concurrence; those exercisable by the Lieutenant Governor autonomously will only be used after due consultation, and with regard to elected opinion where relevant.

16 In October 1993 the Constitutional and External Relations Committee of the Council of Ministers produced its Second Interim Report on Future Constitutional Issues and concluded that it was difficult to see what further powers could be transferred from the Lieutenant Governor with any advantage. However, whilst there remain issues relating to the role of Lieutenant Governor, your Committee believe that it is now time to review whether the title of the Lieutenant Governor continues to be appropriate, given the changes that have occurred.

17 In consequence of the changes described above, the functions of the Lieutenant Governor have very largely been reduced to those of a symbolic figurehead, with the powers previously exercised by the office-holder now being exercised by democratically elected Ministers. Moreover, the Lieutenant Governor's functions have long ceased to involve military command, and they require no specific duties in

9 C/ ConM/mck regard to law and order or the command of any police or para-military force.

18 In the important area of the Island's external commercial relations, moreover, the making of policy and its implementation is, subject to the approval of Tynwald, a matter for the Government. The same is, of course, the case in relation to internal policy and practice affecting the various business sectors established here, and the affairs of the Island generally.

The Title now used for the Queen's Representative

19 As will be seen from the comparisons at Appendix 2 and the discussion below, the title 'Lieutenant Governor' has a number of connotations which are not well suited to modern conditions. In particular, the title is becoming archaic and is capable of fostering a perception that the Island is not led by a democratically elected legislature and Government, but is under a system of administrative oversight exercised by the United Kingdom - which is plainly incorrect.

20 As we have seen, that kind of perception, which your Committee believe is still too common outside the Island, had at one time a basis in historical fact. It was also related to constitutional pressures external to the Island. The Revestment Act of 1765 had been preceded by the union of Scotland and England in 1707, and the dissolution of the Scottish parliament. The union of Great Britain and Ireland in 1800 followed, entailing in that case also the extinction of a separate national parliament.

21 After the sale to the Crown of Great Britain and Ireland of the remaining interests of the Duke of Atholl between 1826 and 1829, the Isle of Man repeatedly found itself being drawn towards incorporation into the new unitary state. However, the parliamentary institutions which had characterised the Island's independent existence for so

10 C/ConM/mck many centuries militated against such a development, with the consequence that in the nineteenth century the United Kingdom sought to bring the Island within a common system of governance for the British Isles by adapting the colonial methods then in use.

22 The position of the Lieutenant Governor was central to that endeavour, though it was consistently resisted by the House of Keys - particularly after the House became popularly elected in 1867 - ultimately with success.

23 Although the constitutional changes of the latter part of the twentieth century have now reversed the majority of the developments of the nineteenth century, the forms and nomenclature associated with earlier periods have in some cases remained. In some circles, that might be viewed merely as anachronistic, but it is liable also to mislead external observers in particular and your Committee believe that the title 'Lieutenant Governor', used in the context of the Isle of Man, does so.

24 It is appropriate in the Island's commercial interests that the significance of the change to ministerial government should not be obscured or confused, and that publicly used descriptions of state functions should be transparent. Potential investors in the Island, whether from the public or private sectors abroad, need to know where responsibility for the areas of business they are concerned with resides and who to make contact with.

25 For that purpose, the terms 'Chief Minister' and 'Minister' are well understood generally, particularly in relation to their respective Departments, and they reflect the changes of responsibility and function from the previous title 'Chairman of a Board of Tynwald'. The corresponding change, which has not taken place since 1986, is in the title of 'Lieutenant Governor', which can evidently convey the impression that the post-holder has actual charge of the Government and that he or she is, in some way, its effective head.

11 C/ConM / mck 26 It may be thought that any change in the practice so far would have implications for the Channel Islands, which would prevent separate action being taken with regard to the Isle of Man alone. Although the Isle of Man and the Channel Islands are collectively referred to as "", the description is necessarily a shorthand one which takes no account of the differing legal status of the various islands. In addition to that, the systems of government in the three islands differ - and in the Isle of Man's case, the differences are substantial - with the rôle played by the Lieutenant Governor of each island differing accordingly. The historical and legal backgrounds mean that the relationship of the Isle of Man with the United Kingdom is unique, and must not be confused with that of the Channel Islands and the United Kingdom.

Alternative titles for the Lieutenant Governor

27 Your Committee's conclusion, therefore, is that the Island's essential interests require that we should move into the twenty first century without the badges of arbitrary and undemocratic control which previous eras have left. To this end, we have given careful consideration to the options available and have selected those which appear most relevant. They are as follows.

'Queen's Commissioner'

28 As Appendix 2 shows, a similar title is already used for the Crown Representative in the British Indian Ocean Territories. It has the advantage that it avoids the word 'Governor', and therefore avoids the misleading impressions that title may convey, which have been discussed above.

29 Linguistically, also, it is accurate since a 'commissioner' exercises a commission on behalf of whoever has appointed him or her, and the holder of the office of Lieutenant Governor exercises a commission to represent Her Majesty in the Isle of Man in the way in which

12 C/ ConM/ mck Lieutenant Governors represented the Lord of Man before Revestment. Moreover, in diplomatic usage, it conveys the notion of a representative, which the Lieutenant Governor is. The analogous expression 'High Commissioner' is used to describe representatives exchanged by Commonwealth countries.

30 The term 'commissioner' is of course already used in the Isle of Man to refer to the elected Members of Local Authorities, and therefore to avoid any confusion the prefix 'Crown' or 'Queen's' or 'Lord's' would be required, so that the title would be for example 'Queen's Commissioner'. But the title 'High Commissioner' itself would be inappropriate, given that it is a diplomatic title for the senior diplomat of one fully autonomous Commonwealth country in another such Commonwealth country.

' Queen's Representative'

31 This term has the advantage of linguistic accuracy, given that the function of the Lieutenant Governor is to represent the Queen, but it has the twin disadvantages that it is not an official tide used for any of the territories associated with the Crown, and that it could also be regarded as a title which is insufficiently dignified to describe the person representing Her Majesty.

' Queen's Seneschal'

32 This too has the advantage of being linguistically accurate, since the term means a steward or representative of an absentee landlord: the Queen is both the ultimate Sovereign and the Lord of Man, but is physically absent from her territory. The disadvantages are that it is not a modern title and that its meaning is not likely to be understood by many; it would not convey immediately the role of the person representing the Queen in the Isle of Man. The title is, moreover, used in Sark to refer to the ludge/ Magistrate, who is also president of the Sark Parliament, the Chief Pleas, and he is not the Queen's

13 C/ConM/mck representative on Sark. (The Seigneur acts in that role, under the Lieutenant Governor of Guernsey.)

Use of the Manx language in the title

33 A Manx language title would have the advantage that it would be a Manx title for an office performed in the Isle of Man on behalf of the Lord of Man. Possible Manx versions, with their English language equivalents, are:-

Barrantagh ny Benrein Queen's Commissioner

Reihddagh ny Benrein Queen's Representative

Shennskyl ny Benrein Queen's Seneschal

34 The use of a Manx title alone would have the disadvantage that it would not immediately indicate the role of Her Majesty's representative outside the Island - or, initially, within the Isle of Man for those who have a limited knowledge of the Manx language. It would, however, be very appropriate that whatever title is adopted should be adopted both in Manx and English, in line with the established practice in relation to the titles of other public offices.

35 Of the three titles indicated above as capable of being appropriate, 'Queen's Seneschal' is apt to sound antiquated and inapt to describe a contemporary position. By contrast, 'Queen's Representative' is a businesslike term which suits modem conditions, but it may be seen as unduly pedestrian. Of the three, 'Queen's Commissioner' is both acceptably contemporary and has an appropriately diplomatic connotation. This title reflects, moreover, the reality of the current relationship between the Isle of Man and the Crown, and it articulates that relationship in a modern idiom.

14 C/ ConM/mck 36 Your Committee accordingly consider that, of these possible alternatives considered, the title 'Barrantagh ny Benrein - Queen's Commissioner' (or, when appropriate 'Barrantagh ny Ree - King's Commissioner'), best describes the modern rdle of Her Majesty's representative in the context of the Isle of Man and its recent history.

Recommendations

37.1 That the Council of Ministers should re-examine the functions remaining to the post of Lieutenant Governor with a view to bringing the statute book up to date and report during the current legislative Session - paragraph 14.

37.2 That Tynwald approves the use of the title 'Barrantagh ny Benrein - Queen's Commissioner' (or, when appropriate 'Barrantagh ny Ree - King's Commissioner') for the person appointed to succeed the present Lieutenant Governor when his term of office expires - paragraph 36.

37.3 That the Government should communicate the wishes of the Court of Tynwald to the United Kingdom Secretary of State for Constitutional Affairs, so that he may bring it forward in the context of making the next appointment of Her Majesty's representative in the Isle of Man.

J A Brown (Chairman) Q B Gill H Hannan R E Quine J P Shimmin

October 2003

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ANNEX II

17 C/ConM/ mck isle of Man CHIEF SECRETARY’S OFFICE Government Oikyn Ard-scrudeyr R e /1 I y s { M m V a n n i n Government Office Douglas Isle of Man IM1 3PN Telephone (01624)685200 Alt Correspondence to be addressed to: Fax (01624) 685710 THE CHIEF SECRETARY CHIEF SECRETARY M. Williams, CPFA Our reference: 120.204 Your reference:

15 February 2005

Mr. M. Cornwell-Kelly Clerk of Tynwald Legislative Buildings DOUGLAS Isle of Man

Dear Clerk of Ty nwald:

Standing Committee of Tynwald on Constitutional Matters

I am writing in response to your letter of 8th February 2005, on behalf of the Standing Committee on Constitutional Matters, asking for an update on discussions with the Department for Constitutional Affairs over proposed changes to the title of the Lieutenant Governor.

As you will have been aware from the Chief Minister’s response to a question in Tynwald in May 2004, discussions over the possibility of changing the title, along with other issues relating to the position of Lieutenant Governor, had been opened with the Department, The Head of Crown and External Relations Division, Della Fletcher, followed up those talks with a letter on 24 May 2004 to the Department, outlining the background to the Tynwald resolution and highlighting the points made in the Standing Committee’s First Report for the Session 2003-2004.

In that correspondence, Mrs Fletcher sought an indication from the Department for Constitutional Affairs “on the feasibility of changing the title of “Lieutenant Governor”, with either "Queen’s Representative” or "Crown Ambassador” being offered as alternative titles for comment.”

Although there has been continued discussion between the Department for Constitutional Affairs and this office in the interim, a formal reply was received from the Department on 11 February 2005. In that letter the Department indicated that it had consulted on the question with the Foreign and Commonwealth Office as well as the DCA’s own legal advisors who confirmed that “it is a matter upon which Her Majesty The Queen will have the ultimate decision.”

The letter further indicated that “any new title should reflect the fact that the incumbent is a Crown Appointee rather than a title that could be read as ‘corporate’ ie Chairman. In addition if any change is made to the title of Lieutenant Governor, all relevant Isle of Man legislation will need to reflect this change.”

The letter further explained: “ the FCO did not share the concern about the title ‘ Lieutenant Governor * being misunderstood by foreign governments as overseas governments certainly know that the OT’s et al have their own legislatures - regardless of whether their Governor has any real power or not.”

The Department acknowledged that “our research indicates that there would be no reason for this matter not to be formally progressed if Tynwald wishes to do so.”

However, the letter explained that neither the proposal contained in the first report of the Tynwald Standing Committee on Constitutional Matters for the session 2003-2004 nor Mrs Fletcher’s letter of 24 May 2004 were sufficient to enable the Department to consult the Palace for its view: “Whilst two options have been suggested for a new title, neither is definite and you will understand that it is not feasible for us to propose an alternative option as suggested if neither are satisfactory. The Palace will certainly not choose one option over the other and it is not for the DCA to suggest an alternative to the title already in existence.”

The Department’s response concluded: “If Tynwald wish to change the title of' ‘Lieutenant Governor’ then a decision must be agreed on one alternative title to put forward for consideration in a submission which sets out the Lieutenant Governor’s current role/functions, why the new title is more appropriate than the old, whether it is intended that this title affects the future role of the LG and how it is envisaged the role will develop. The above-mentioned report of the Tynwald Standing Committee on Constitutional Matters could be used as part of the supporting evidence, however, DCA could not use it as a submission to the Palace as it is a recommendation to Tynwald. On receipt of the Isle of Man Government’s formal submission, DCA can put the proposals to Her Majesty for consideration.”

I expect to present the response by the Department for Constitutional Affairs to the next meeting of the Council of Ministers’ Constitutional & External Relations Committee for its consideration.

Yours sincerely,

Mary Williams Chief Secretary

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