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REPORT OF PROCEEDINGS OF TYNWALD COURT
DOUGLAS, Wednesday, 26th February, 1986 at 10.30 a.m.
Present: The Lieutenant-Governor (His Excellency Major General Laurence New, C.B., C.B.E.). In the Council: the Lord Bishop (the Rt. Rev. Arthur Henry Attwell), the Attorney-General (Mr. T.W. Cain), Messrs. R.J.G. Anderson, A.A. Callin, Mrs. B.Q. Hanson, Mr. E.G. Lowey, Dr. E.J. Mann, Messrs. J.N. Radcliffe and E.M. Ward, B.E.M., with Mr. T.A. Bawden, Clerk of the Council.
In the Keys: The Speaker (the Hon. Sir Charles Kerruish, O.B.E.), Messrs. W.K. Quirk, W.A. Gilbey, J.D.Q. Cannan, Mrs. C.M. Christian, Messrs. S.L. Morrey, D.G. Maddrell, R.A. Payne, P. Karran, M.R. Walker, N.Q. Cringle, C.H. Faragher, Dr. D.L. Moore, Messrs. A.R. Bell, B. May, G.V.H. Kneale, E.C. Irving, C.B.E., D.C. Cretney, D.F.K. Delaney, D. Martin, J.A. Brown, with Mr. R.B.M. Quayle, Clerk of Tynwald.
The Lord Bishop took the prayers.
APOLOGIES FOR ABSENCE
The Governor: Hon. members, we have a number of apologies for absence, a consequence of our having decided to take the third day of our business on a Wednesday. All four of these apologies are off the Island. They are Mr. President of the Legislative Council and the hon. member for Michacl, Mr. Cannan, both of whom are on board business; the hon. member for Ramsey, Mr. Cain, who is on a long-planned business trip and I gave him permission to continue with it, and the member for Garff, Mr. J.H. Kneale, who is taking two dependants of his to their father’s funeral across today. We also have, as you will remember, the hon. member for Glenfaba time-sharing between this Court and the Annual General Meeting of the Steam Packet and he will join us later. I am sure that hon. members will agree that it is not a very satisfactory situation and I have it in mind, if you would agree, hon. members, to ask the Standing Orders Committee to give consideration to some plan whereby we might have more predictability about the third day of business, so that we do not clash with the Keys and the Council as they undertake their business but so that we can have some predictability and with your agreement I propose to ask the Standing Orders Committee to look into it for us.
Apologies for Absence TI 222 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986
ANNOUNCEMENT OF ROYAL ASSENT
The Governor: Hon. members, I have to announce that Royal Assent has been given to the following Acts: the Banking (Amendment) Act 1986, 14th February; the Fines Act 1986, also on 14th February; the Congenital Disabilities (Civil Liability) Act, on 14th February; and the Riding Establishments Act 1986.
PROCEDURAL
The Governor: Hon. members, I would remind you that we have agreed that we will not take item 35 until the end of our business and, due to Mr. Cain’s absence, item 39 will be held over till the next meeting of this hon. Court.
COURTHOUSE ACCOMMODATION IN DOUGLAS — MOTION CARRIED
The Governor: We therefore turn to item 34 on the Agenda and I call on the Chairman of the Executive Council, Dr. Mann, to move.
Dr. Mann: Your Excellency, I beg to move:
W H EREAS —
(a) there is insufficient courthouse accommodation in Douglas to enable the administration o f justice to proceed expeditiously; and
(b) it was formerly the practice for the Tynwald Court Chamber to be made available in exceptional circumstances and on rare occasions fo r use by the High Court o f Justice in the Isle o f Man at times when the Tynwald Court Chamber was not required for Tynwald purposes.
NOW THEREFORE Tynwald requests His Excellency the Lieutenant-4 Governor as President o f Tynwald, after consultation with the Speaker o f the House of Keys and the President of the Legislative Council, to give favourable consideration to the reinstatement o f the use o f the Tynwald Court Chamber by the High Court of Justice in the Isle o f Man whenever the Tynwald Court Chamber is not required for Tynwald purposes, such use to include the galleries, stairways and lobby of the Court and that, if such response be in the affirmative, the Management Committee be consulted on the terms and conditions o f use.
The lack of sufficient courthouse accommodation in Douglas has been a problem for many years. The present courthouse building in Athol Street was built between 1840 and 1841 by the Independent Order of Oddfellows as a hall for that society.
Announcement of Royal Assent Procedural Courthouse Accommodation in Douglas — Motion Carried TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1223
In about 1850 the building was converted into the Prince of Wales Theatre. In 1860 the building was purchased by the Manx Government and used as a courthouse, Rolls Office and a meeting place for the Legislature. Subsequently the new Rolls Office and Registry were erected in Finch Road and the present Legislative Buildings erected in Buck’s Road, leaving the courthouse building in Athol Street to be used solely as the courthouse. The building was later used for many years as the Douglas police station and as the headquarters of the Isle of Man Constabulary until the building of the new police headquarters. The attic rooms of the courthouse building were also used for some years as a remand home until the building of Tromode House. From time to time adjoining properties have been used with the original courthouse building to provide additional accommodation, particularly when it was used as a police headquarters. At the present day the building comprises one main courtroom, a very small irregularly shaped room which is used as a court, although it has very limited accommodation and a veritable warren of rooms, passages and staircases, many of which are ill-adapted for any particular purpose. The basement also contains a small cell block. In theory, at any particular time accommodation may be required for five courts, namely, those of the First and Second Deemsters, of the High Bailiff and Deputy High Bailiff and the Douglas Magistrates. Certain courts are regularly held in Ramsey, Peel and Castletown, principally, the monthly Courts of the Magistrates and of the High Bailiff or Deputy High Bailiff and the annual sessions of the Licensing Court. In addition, traditionally the Common Law Division of the High Court also sits in Ramsey, Peel and Castletown as well as Douglas. Nevertheless, the majority of courts should probably be held in Douglas. The recent changes in the Licensing Acts indeed have made it obligatory for all sittings of the Licensing Court, other than the annual sessions, to be held in Douglas. Although there are regular sittings of the High Court of Chancery and Common Law Divisions of the High Bailiff’s and Magistrates, there are many other court sittings which cannot be planned in advance. These include, obviously, inquests, appeals to the Staff of Government Division, sittings of the Court of General Gaol Delivery and contested cases which have been adjourned for hearing.
For several years it has been frequently the case to avoid, as far as possible, any delay in the hearing of cases. Other accommodation has had to be used besides the Douglas courthouse. The High Bailiff and Deputy High Bailiff have regularly used committee rooms in Government Offices for their courts. The Douglas town hall has been used from time to time for the Licensing Court and St. George’s Hall has also been used by the High Court as an improvised courthouse. Most frequently however, courts which should properly be held in Douglas have been transferred to Peel or Castletown. In fact it is not uncommon for the hearing of one case to be moved from Douglas to, say, Peel and back again or Peel to Castletown, depending on the availability of the courthouse accommodation. All this is a severe impediment on the efficiency of the handling of the business of the courts.
The members of the public involved in court hearings vary enormously. The juvenile court is concerned with children and their parents. The magistrates, when
Courthouse Accommodation in Douglas — Motion Carried TI224 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986
dealing with domestic matters, are concerned with husbands and wives and their families who should be provided with proper waiting room accommodation. At inquests the bereaved must themselves by properly looked after. In the criminal courts proper provision has to be made for security. In the High Court much of today’s business relates to company and commercial matters for which accountants, lawyers and personal witnesses may have travelled to the Island. The Island’s image in these circumstances is not enhanced if, as happened in a recent sitting of the High Court in the courthouse in Douglas, a visiting lawyer had to remove all his papers and books from where he was sitting to avoid drips of water from the leaking roof immediately above. Other occasions in recent months the courthouse has been so cold that witnesses have left their overcoats on.
The plans to build a new courthouse were drawn up just before the Second World War but, unfortunately, not proceeded with. While it is now dear that a new modern courthouse accommodation is urgently needed in Douglas, the resolution now before the Court requests His Excellency, after consultation with the hon. Mr. Speaker and the President of the Council, to give favourable consideration to the use of Tynwald Court Chamber by the High Court, and I stress, by the High Court when the Chamber is not required for Tynwald Court purposes. This was the practice until some 20 years ago. While it may not be the best arrangement, it is clearly desirable that additional courthouse accommodation be made available immediately as an interim measure until permanent accommodation can be provided for the courts in Douglas and elsewhere. So I stress that what we are seeking, and it can only be achieved after consultation with the hon. Mr. Speaker and the President of the Council, is the use, when available, of this Chamber as a High Court. Permission is not being sought to have Magistrates’ Court hearings and so on. I think there is a natural resistance to using this accommodation of this Court for a legal purpose but in all honesty, of course, Tynwald is a Court and in view of the difficult financial circumstances I myself cannot see any particular reason why that should not be possible. But this is a declaratory resolution which is, in any case, to be decided by the members of both branches and I wish to move the resolution standing in my name.
Dr. Moore: I beg to second, Your Excellency, and reserve my remarks.
Mr. Maddrell: Your Excellency, in the accommodation report which has been f circulated to us, sir, on page 5 in paragraph 2 it is clearly spelt out to us, the shocking state of affairs relating to the Douglas courthouse. The Government Property Trustees are very busy in many areas. Their capital works are causing revenue problems; where much-needed repair work should have had to be made they cannot do it because they have not the revenue to do it. When I was originally a member of the Government Property Trustees the move of the police headquarters from the courthouse took place and plans for a new courthouse were made. They still exist. They are on the shelf for consideration. But so great was the demand for all the people associated with the courthouse scene for those plans, especially in the criminal case, that a new courthouse needed, in a criminal case, separate rooms, separate entrances for the Deemsters, separate entrances for the police and the prisoners, separate entrances for the witnesses, lawyers and the public and so this
Courthouse Accommodation in Douglas — Motion Carried TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1225 was an enormous building with a lot of different entrances, costing a lot of money. That demand escalated the cost to such proportions as to shelve the proposals as outside our finances during the recession and the whole project is now, I think, at such a cost, at a point of being forgotten.
So from the demise of these proposals for a new courthouse in Douglas there were renewed rumblings to use Government Chambers of the Keys and of Tynwald and of Douglas town hall. Seriously, I would prefer not to, but one must see the problem in all its facets and try to rationalise it for the future and also not to upset the genuine feelings of members who may be against the use of the legislative Chambers. To me I see there is a middle negotiating line necessary.
Undoubtedly there is a demand for proper court facilities in Douglas to support number 1 courtroom. One can only imagine, if you have not served or been summoned to number 2 courtroom, how inadequate it would be. It would be very useful, I think, in a Dickens film. The scenery is just right. Also the approach to the court by the High Bailiffs and the bench members reminds one of climbing a spiral staircase up to the top of a tower. Ally all this to the considerations of light and heat and one can be really ashamed of our courthouse, especially the number 2. So my approach will be to request that there be plans drawn up immediately for the gutting of this courthouse and for the replacement of it by two smaller chambers and I think there will be room for a third smaller chamber which can be used for small cases. It can be used for licensing; it can be used for elections, but it will be a small chamber that will allow the two big ones to ger on with their business. I think there is ample room in the space that will be left. If that could be decided here today I will agree to the use of Tynwald Court only for a period of three years, until the new courthouse is refurbished. The use of the Government committee rooms, St. George’s Hall, the Douglas town hall, the out-of-Douglas courthouses can all continue to be used to fill in the period of time.
Seriously, there is little choice in the use of Douglas courts, listing their problems. I will list the problems to you, hon. members. They are as follows: the courthouse is in very poor condition — these are quoted in the rep off-' they are not just my observations — constant need of attention and constant maintenance and expensive maintenance; structural work is necessary; the roof is prone to leaking; the heating is totally inadequate; the courts, all of them, are inadequate in design, they are inadequate for the conditions, they are inadequate for the numbers of people who go there; the inconvenience of arrangements must cost money; you need people to do the arrangements and puts the problem of extra work on the Registry. In 1978/79 this hon. Court had a problem but I can say now that in this year of 1986 it is the same problem but it has grown quite a lot.
I have attempted to put my views forward and the facts which I consider from the report are indisputable. To that end I propose an amendment, which I have submitted, to ensure something is done for the future. I accept the motion is in good faith and that the Management Committee will be consulted to be authorised in the conditions of its use, but I do not want them to accept the motion so that it will go forward and in time be taken as an accepted thing. The basic argument
Courthouse Accommodation in Douglas — Motion Carried TI226 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 of my amendment is to ensure that at the end of time something is there. If we do not put something there, then I do not consider that anything will really happen and that we will just use the courts and one day we will have forgotten all about it. So I have put an amendment forward:
Add at the end —
AND IT IS FURTHER RESOLVED that the Government Property Trustees be and they are hereby requested to —
(a) cause to be prepared during the financial year 1986/87, plans, specifications and other documents for the complete reconstruction o f the interior o f Douglas courthouse so as to provide two large and one smaller courtrooms, together with robing rooms, jury rooms etc.;
(b) complete such reconstruction works during the financial years 1987/88 and 1988/89.
AND IT IS HEREBY DECLARED that any permission for the use of the Legislative Buildings by the High Court under this resolution shall be conditional upon the progression o f such reconstruction works and shall not be granted or have effect after 5th April 1989.
I would lay that amendment and with that amendment I trust that hon. members will agree that if we do put down an alternative, which it dated, we will not live with it for ever. Your Excellency, I beg to move.
Mr. Brown: Your Excellency, I think from the side of the Government Property Trustees it is important that the hon. Court realise, especially with what has just been said, what implications we are talking about. This problem is nothing new and in my time as Chairman of the Government Property Trustees I have pointed to it, I think, on every occasion that we have done a policy speech and every Budget time.
We have a problem here with, as has been said, a very old building. Over the years this building has been investigated, checked, to see how we can resolve the' problem, accepting that whatever we do could result in considerable expenditure by Government. What is important is that if Government is to expend any money whatever we expend we must make sure we are spending it properly because, if we do not, we could pump many hundreds of thousands of pounds down the drain.
Some time ago the Government purchased a site on Finch Road over there, which is at the moment used as a car parking area, to build a new courthouse. When I became chairman of the Trustees the Trustees at that time re-examined that position and felt that it was the wrong place to build a courthouse and especially at that time and therefore that idea was shelved for some time while we looked at the overall problem.
Courthouse Accommodation in Douglas — Motion Carried TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1227
The whole problem with this is that we have, as we all know, a policy of re-developing what we call ‘the triangle’ and the Trustees favour the idea that all that we can within Government’s needs is provided within that triangle and that includes a courthouse. We have a problem and we have had problems, which we do not make light of, which, the hon. member Mr. Maddrell is only too aware and has said, which are basically revenue problems. The revenue budget of the Govern ment Property Trustees is a very tight and very limited budget with many problems coming up out of the blue which cost many tens of thousands of pounds at some times to repair.
The courthouse building in Athol Street is a very old building. The floor space within that building is very limited because a lot of the walls are two foot six thick or three foot, whatever it is, and a lot of the actual area of the building is taken up by wall space and to do what is envisaged, to make a larger courtroom or what has been suggested, could actually cost us considerably because if you remove those walls they will have to be made safe, you will have to make sure no damage happens to the rest of the building and therefore to do that sort of thing is talking of quite a large amount of money.
In my opinion — and I support the resolution on the Agenda, and I am quite happy if that is reviewed every three years, so that we do not get into a position, like the hon. member has said, where it becomes habit because I am sure that once we get to a position where we provide a new courthouse we can then remove them from within the Chamber — but, quite honestly, to do a total refurbishment of Athol Street courthouse really is a lot of money and not very well spent, I would suggest. It is much better to, even at this moment, pay rental somewhere else, which is what we do with Douglas chambers, and do it in that way. There are also other ideas that could be looked at as well to try and ease some of the problems and, to be fair, we have tried to do that within Douglas, by using committee rooms and other areas within the building.
But the point is we cannot get away from the fact that the present courthouse is inadequate for modern-day standards. The heating is broken down; it works, but it is not very satisfactory. It is a big old building, very difficult to heat. It is very cold. We have constant complaints about it. We have had problems with the roof which we are always having to go back and make repairs to and without renewing the roof possibly it is going to cost us a lot of money and therefore I think the Court here has got to be very careful what it does. We are trying to progress along the road and in fact I made it clear in my policy speech earlier this year, along the road of including the re-development of the triangle, including a courthouse. It has also been suggested that the Registry should come out of the building they are in and go within that area to be near the courts and so on, and I think for us to spend large sums of money in a building that (1) is not linked to this area and is further over the road; that is an old building that is never going to really be adequate no matter what you do to that building, it will never really be adequate as a proper courthouse, we are then being asked to spend or possibly being asked to spend large sums of money in an area I think that is not on.
Courthouse Accommodation in Douglas — Motion Carried T I228 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986
We have a temporary problem where — and it has been there for a while and I accept that — Government expenditure has got to be programmed and planned properly; that is the first priority, where we have already said we are Getting up and have set up an Offices Committee to investigate and look at how we overcome the problems for the future of Government in the next ten years of re-developing the triangle and the one reason that the triangle has slowed down is because this Government does not compulsory purchase. It is very rare that this Government would compulsory purchase. So therefore there is not an aggressive approach to buying out the properties within the triangle and it is a very gradual, as and when the properties become available, so therefore it slows the whole programme down.
I would urge members to support the resolution which is only asking for the people who are responsible for this Chamber to look at that situation, to see if they can help out over this problem and, as the Chairman of Executive Council has made it very clear on how he sees the problem and what he wants to do and how it could be overcome, I think we as a Court should be very careful we do not get ourselves into a situation where we are pumping money down the drain and if we are not careful that is what will happen. We have got to get on with the progression of re-development up the road, which is necessary at some time in the near future, and the sale of the properties in Athol Street will then bring in revenue which will help to offset some of that debt and I hope that members will not support anything other than the resolution in front of us because we could actually regret it at some time. I would just say that the Trustees are very conscious of the situation. We are looking at it and we are trying to resolve it as quickly as possible, although I accept that will take some time.
Mr. Anderson: Your Excellency, one of the few advantages of being here some 20 years is you remember a little bit of the history and I can think of the money that we spent on Murray House for the Local Government Board and we subsequently, within a few years, demolished the whole lot and re-built the whole building and I do not want to see us do that sort of thing again, and I agree with the hon. member for Castletown, the Chairman of the Government Property Trustees, that this a totally unsuitable building'and I think that we have got to tackle this problem in the long-term and there is no doubt about it, that that building is not the sort of building that will eventually resolve the problem. I think it will only postpone it and you could actually end up spending almost as much money in altering that building as what you could do in constructing something from scratch.
The thing as far as the temporary use of these buildings are concerned, I believe it is the prerogative of every member of this Court to seek to utilise our resources to the best advantage and I am pleased to see where the Board of Education allow schools to be used for other activities other than directly education and I believe that is a multiple use of our resources rather than using it for a single purpose. I believe that it is important, in a time when there are financial stringencies, that we do this sort of thing and I support entirely the resolution before the Court today. I honestly do not think, on reflection over my memory in the years I have been here, that the hon. member for Middle’s resolution or proposal is one that should be taken very far. It would possibly be worth having an expert look at it but I think,
Courthouse Accommodation in Douglas — Motion Carried TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1229 when you come to the construction of that building and the nature of that building, that it will not be a cost-effective operation to do that and at the end of the day we will have spent a lot of money and have something which is completely unsatisfactory.
The Speaker: Your Excellency, as a named official in this resolution I find myself in a rather unusual position this morning and I think the Court must be aware of what is being attempted this morning. Here we are in a parliamentary setting with a resolution from Government, Government attempting to remove parliamentary privilege and to undermine parliamentary tradition. Now I have constantly warned this House that in the pattern that lies ahead you must recognise that you are going to be the parliament but somebody else is going to be the Government and no longer will the tradition of this House being Government apply. So parliament must be very jealous of its rights for the future and assure its own privileges, the retention of its own privileges and traditions.
Now in respect of this resolution it has one merit. It recognises the authority of the presiding officer and to that extent it need never have appeared before this Chamber because an approach could have been made to the presiding officer to see whether or not he could make the Chamber available. The necessary consultations would have taken place.
But let us face up to this one fact in relation to the precincts of the Legislature generally: there is no question that His Excellency controls the precincts of Tynwald. There has been, in the past, consultation with the Speaker and I trust in the future, consultation might take place with also the President of the Legislative Council. But as far as the Keys are concerned, the authority in respect of precincts is traditionally lodged with the Speaker and, as far as Council is concerned, control is vested in Mr. President. Now if you want authority for that there is international authority which I have here and there is local authority which I have here from the Attorney-General as far as 1977, confirming the position in relation to control of the precincts of these buildings. Having said that, hon. members, I want you to remember that you are talking about the Tynwald Chamber and its use as a courthouse. Frankly, what are you talking about? — this room, a little lobby out side, the stairway down to the door. That is all.
We have heard this morning of the inability to house courts where there are no reasonable provisions. There are no waiting rooms here, no robing rooms here, no lavatories available, nothing — a totally unworkable proposition. However, that is a matter for His Excellency to decide in the long term, as to whether he grants the facility of this totally unworkable proposition to those who seek it or not. But you might assess it in your own minds as you assess this resolution.
But what has been opened up, Your Excellency, obviously with your approval this morning, is a wider issue and the wider issue is the failure, really, of Govern ment over the years to provide adequate courts. Now this has been referred to and the lack of modernisation of the courts in the reports of a committee that I have chaired, the Advocates’ Fees Committee, the need for modernisation, and I have
Courthouse Accommodation in Douglas — Motion Carried TI230 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 been impressed by both contributions, both seeking to achieve something this morning, the hon. member for Middle, the hon. member the Chairman of the Government Property Trustees, seeking to achieve but probably in different directions. What we have to do is achieve a suitable court pattern in the future and, frankly, I feel that we must in this matter look to the experiences of the past, look to our experience here, when willy-nilly we have bulldozed through with the most remarkable sort of development in relation to this building instead of taking our courage in our hands and going and putting it all on a new site where we could have room, where people would come in their cars and adopt a modern policy, a planning policy. But, no, we were hidebound in our thinking and we held it here in the most inappropriate site and with car parking facilities that are ludicrous.
Now the courts down there are inadequate. We accept that. Honestly I believe that if we were to try and refurbish those courts it would cost a terrific amount of money and it would be an extreme difficulty in making them suitable for what I would call modern practice within the courts. I believe it would be easier in this respect, Your Excellency — and we are now on a debate, really, of the future of the courts — but I am making my point and it is this: if you are going to build new courtrooms, and they are essential, let us get out onto a site up at Glencrutchery at the Grandstand, not too far away from the police station there where we have land available, ours, on a beautiful site, where we can establish our law courts and where they could be produced in a new form and I am not talking of a crazy elaborate provision of law courts either. I am talking of a practical reasonable application of our thinking to a provision which is absolutely necessary.
Your Excellency, I hope the resolution will be turned down this morning on the premise that it is really an intrusion by Government into a parliamentary setting, that if Executive Council wishes to make these approaches to Your Excellency or anybody else they have a perfect right to do so and Your Excellency has the full authority to either grant the request or reject it, but to use us as pawns in the game as parliamentarians is not on.
Mr. Payne: Your Excellency, the hon. member for Castletown, the Chairman of the Government Property Trustees, has proved by his actions in the past that nothing is any use unless it is new, it has got to be a new building.
Mr. Brown: Rubbish!
Mr. Payne: If he wants proof of it I will give it to him now. If he will go down with me at the recess and have a look at Government Office, a deplorable state, that money has not been spent on and money should have been spent on and that people are working in those deplorable conditions. I will give him the proof. Nothing is good, in the view of the Chairman of the Government Property Trustees, unless it is new and we hear from the Vice-Chairman of the Government Property Trustees, in response to my colleague, that it might be worth looking at refurbishment. Why have they not looked at it? That is what they should have done, and said ‘It is not on to do it’. I believe it is on and I have some experience of court procedures. I have sat on the bench. I have sat in the dock with prisoners. I have even acted as
Courthouse Accommodation in Douglas — Motion Carried TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1231 coroner for the court and fenced the court on occasions. So I have some knowledge of the building. There is room down there, in my opinion. It may not be perfect but it should be looked at and we should see if we can fit three courthouses into a building which is centrally placed, which is useful and handy for the Deemsters and the officials of the court to get there, the lawyers; it is in a central position. We have made the mistake once in the past of moving the police station out of the centre of Douglas and what has that cost us? A lot more men, really, that is what it amounts to. We should seriously consider this proposal and not discard it out of hand. When it comes to allowing the court to be housed in this building I must admit to some feelings of this is hallowed ground but on the other hand, when we look at it practically, I feel hard to say, no, we should keep them out. But I do hope that if we do allow this building to be used we will not have General Gaol housed. We are only saying the High Court, Common Law and other divisions of the High Court, yes, but, General Gaol, people who attend those courts tend to scribble on the furniture, cut marks into the desk and there is a certain amount of aggravation attached with the cases even with the public and the supporters of the person that might be in the dock, who will damage the building. So talking about a practical point of view I would hope that we would never have a General Gaol housed in this particular building. Otherwise, Your Excellency, I feel that the line taken by my hon. colleague in proposing this amendment to the main resolution would be acceptable to me, that we could use this building as a temporary measure and a temporary measure only, and I have pleasure in seconding his amendment. Mr. Walker: Your Excellency, I rise to support the resolution as printed on the Agenda Paper but to say quite clearly that I would see it purely as an interim measure and that attention has got to be paid to replacing our courtroom facilities.
I really got to my feet because of the suggestion made by Mr. Speaker, Your Excellency, that we should do the easy thing and move out of Douglas to a green field site. It has a lot of attractions, which I accept. But I do really believe that if we are going to encourage the revitalisation of Douglas itself what we should not be doing is moving our facilities out. I think we have to recognise a problem of development within Douglas and I think really it can be said in two words, it is car parking, and I think that Government has to pay its attention to that particular problem as well. But I think if we did move our courthouse facilities up to perhaps Glencrutchery Road there is no doubt at all we would be faced with many applications from those who are at the moment in Athol Street to move their offices up to Victoria Road, up to the large houses up there that have plenty of car parking and so on to go with them. I think, again, that would be detrimental to Douglas and I would certainly urge that if courthouse facilities are going to be replaced, then they should be replaced within Douglas itself and, hopefully, adjacent in some way or on some side of Athol Street.
For many years the courthouse accommodation has been criticised I have shared in that criticism. I know the heating. I know the inadequacies of the present building.
Courthouse Accommodation in Douglas — Motion Carried TI232 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986
It is something that we have to pay attention to. I do believe, though, it would be wrong of us to support the resolution put forward by Mr. Maddrell because it takes setting the priorities out of the hands of the responsible body which is the Govern ment Property Trustees and it must be up to them to assess whether or not courthouse accommodation has a greater priority than, for instance, the General Registry itself which we know has many shortcomings which we know needs more space in some way if we are going to have a modern and up-to-date land registration system and we are told that that cannot start until the General Registry is changed and altered, and I think we must recognise that the Government Property Trustees have got many demands, they have got many pressures and it must be left to them to come up with the priorities which hopefully they will bring to this hon. Court and have debated in the form of the policy. Thank you, Your Excellency.
Mrs. Christian: Your Excellency, Mr. Speaker has pointed out that this matter could have been referred to yourself, sir, and the other people who are involved without reference to the Court. However, it must be clear to members that it has appeared on the Agenda so that you, sir, and Mr. Speaker and President of Council might get a feel of the view of the members of Tynwald.
I have to say that I have little enthusiasm for the particular proposal embodied in the Agenda. It is certainly my view that the proposals have certain disadvantages, some of which have been pointed out by Mr. Speaker in terms of the actual accommodation which we are talking about. It is, I believe, the thought that perhaps the High Court may be held here and that the courts which are currently used by the Deemsters should then be used by the High Bailiff and the Deputy High Bailiff. That leaves the problem of course of whether that accommodation is in itself main tained to a satisfactory standard and is appropriate accommodation. It would still require to have money spent upon it. In my view I wonder what the priority of the Government Property Trustees is in connection with this. It seems necessary that that building should be appropriately maintained in any case.
Now the alternative to that is one which has been to some degree already exercised, in that the High Bailiff and the Deputy High Bailiff have been holding courts in committee rooms in the adjacent building. This to some extent has been unsatisfactory but I think that there are other alternatives for those particular courts. There is, I understand, accommodation at the police station which is rarely used > and which could quite well accommodate the High Bailiff and Deputy High Bailiff. The argument that the courts should not be held in conjunction with police stations holds little water when this happens already in other parts of the Island, in Ramsey, Castletown and so on. So I think that there is a way round the problem without looking at these Chambers.
I do agree, though, sir, that we ought to utilise the Chambers perhaps more fully. We know there is pressure on the accommodation in Government buildings and I query why we do not use these Chambers for Tynwald Select Committees and the other Chambers for Select Committees with those particular bodies. We could well utilise the accommodation much more fully than we already do ourselves without introducing another aspect to them and it would, in that sense, eliminate some of
Courthouse Accommodation in Douglas — Motion Carried TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1233 the difficulties which might be envisaged if the courts were using Tynwald Chambers and the Chambers of the Legislative Council and the House of Keys, in that we would know that we were the people who were going to be in them all the time. There are bound to be difficulties in planning the occupation of these particular buildings by virtue of the fact that we never quite can predict when we are going to need them. For example, our presence today would not necessarily have been predicted, and it is essential that the Keys Chamber be kept available at the time when Tynwald is sitting for we never know quite whether we are going to have to depart this Chamber for our own Chamber.
Your Excellency, I agree that if this is being used to put pressure on members of this Court to expedite the building of new court rooms it is a very sensible move on the part of those who use the courts and quite a legitimate pressure to apply. I think, sir, it has drawn our attention to the problems which the people using the courts are suffering. However, I am not in support of the principle that these Chambers be used for the High Court. I think there are suitable alternatives. I think members’ attention has been drawn to the difficulty and may heighten their awareness of this when considering overall budgetary expenditure on the point of Government, but I would not support the resolution.
Dr. Moore: Your Excellency, I do find myself in support of the basic principle that these Chambers be used when they are not needed by this hon. Court for the purposes of the Deemsters’ High Court. I would agree with many of the comments that earlier speakers have made, that it should be a temporary measure, and I go along with the suggestion of the hon. member for Middle, Mr. Payne, that we should seek to have a good class of litigant within these walls. (Laughter) But let us face it, the greatest lanket that has been shackled to Government over the past years has been the curse of compartmentalisation, that whatever we did we did in our own little compartments, and here we have Executive Council, I think quite rightly, floating this idea for members to comment on and I thought the idea, the whole purpose of the changes that we have been supporting in the make-up of Executive Council was to achieve co-ordination, so that the needs of the Isle of Man could be met across compartment boundaries and the needs of the Court at this time, I think, can be met by making the best use of Government’s facilities. Mr. Speaker, I think, is in danger of creating fresh compartments when he seeks to create a —
The Speaker: Not fresh, established.
Dr. Moore: Establish new compartments (Interruption and laughter) between parliament and Executive Council, because I believe that this is a very dangerous road to go along, sir. I think that we are singularly fortunate amongst all parliaments in the Commonwealth that we are small enough so that there need not be an artificial barrier between Government and parliament. It used to be thought, in the early days when the changes in Executive Council were discussed, that the real short coming of the proposed system would be that everybody would be Government and there would be no Opposition. Your Excellency, I am sure you have already seen that there is no danger of that.
Courthouse Accommodation in Douglas — Motion Carried T1234 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986
Mr. Delaney: Your Excellency, in brief, I believe, sir, that you rule here. I came in 1976 with a lot of other members on that understanding and it is you who actually rule the precincts of Tynwald Court and Mr. Speaker rules the precincts of the House of Keys and the resolution down today, as Mr. Speaker has said, is to change that ruling in some way. I have no part in it. Someone has to be boss, sir. You have been given boss of this Chamber and I accept that and I hope that if we ever go away with that there is going to be trouble.
I was aware, Your Excellency, Mr. Brown had been given the responsibility by politicians not by the people for the housing of Government departments and what brings me to my feet is to see the true colour of the animal, the true nature of the animal. He wonders why Government do not use more powers in which to compulsory purchase. The real animal is coming to the surface, certainly in relation to the Government triangle which was recently debated in this Chamber. If we are getting to the state where the machine is starting to roll over the people it is supposed to be working for we are in great danger and that came out here this morning. If there is a privilege in this Court that is given to all the members after being elected here it should be looked after, it should be nurtured and kept.
The time where you talk about temporary in this Government is always the long term. ‘Temporary’ here is ten or 20 years minimum because when we came in 1976, over half the House of Keys, we were talking at that time about the new courthouse. We had already allocated a site on Finch Road for the new courthouse. Ten years on we are sitting here today talking about things are so desperate that we are requiring the members to give some sort of credence to using these Chambers which, as has been said, are inadequate for what is being specified.
I say leave things as they are. If we have shown we are incapable of providing for the future in the law, and I do agree that virtually in Chancery, as was written those 90/100 years ago, is probably the reality of today. As somebody said once, the cost of justice is high but the service to justice is poor, and I believe that to be true because the amount of money which it costs people to get justice through the courts, the cost of legal fees and everything else, none of that returns to the system that allows them to operate. The cost of court fees and that which are dragged back through in fines and in services that we give to the people who make the money out of the law has never been high enough to give the services that the people need ; and require for the justice they are looking for. There are buildings other than this courthouse which are totally under-used. There are public buildings totally under used. I can think of one part of the Villa Marina complex which was built at a cost of £40,000 which is hardly ever used except for badminton but has the toilet facilities, it even has the rooms for security, if you want to use. It is down there on the promenade lying there being windswept with sand blowing round it, but because this here is being said this is a court it only gives the impression that you get better justice. You will only get as good justice as the people who are sitting in judgement on you and as far as I am concerned that can be held as was once held for this Court. We had a situation before your time, Your Excellency, your predecessor’s time, when outside this Chamber the alarm bells were ringing because we were the victims of a hoax bomb and a young civil servant came running up the stairs and
Courthouse Accommodation in Douglas — Motion Carried TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1235
I said ‘Hang on, young fellow, what is the problem?’ He said ‘We have got a bomb scare. I have been told to inform people’. I said ‘Are you going in to tell the Govern ment?’ He said ‘No, I have not been told to tell them’. (Laughter) That is true; that happened. Half the public do not know even where we are, sir.
As far as I am concerned, Your Excellency, you should make the decision on this in consultation with the President of the Council and with Mr. Speaker. That is all that should be done. But to say now that we are concerned about the courthouse is nonsense. As I have explained, it was ten years ago when this problem was highlighted. In that ten years, other than play with the problem, we have done nothing; as a Government, whether it be departmentalised or not, we have done nothing. And this is the solution? I doubt it, Your Excellency. I very much doubt it.
Mr. Irving: Your Excellency, I am very glad indeed that we have someone in the parliament of the Isle of Man who protects and fosters so much of our parliamentary life and I refer to Mr. Speaker. I agree with most of what Mr. Speaker has said this morning and I agree with him too on two points: firstly, the use of this Tynwald Court, its galleries, its lobby and so on. It is completely inadequate for the purpose which hon. members are suggesting and what will happen, sir? It means there will be a demand to take over the Chamber of the Legislative Council for some purpose in connection with the Court, the members room will be taken over and, I fear, before long the House of Keys Chamber could be taken over —
The Speaker: It will not. (Laughter)
Mr. Irving: — and there just is deadlock. I might re-phrase that and say (Laughter) — the Speaker is so right — I re-phrase that and say there will be attempts to take over the House of Keys.
Now I do not believe for a moment that this is going to be interim measure; of course it is not, and it is not only going to be the High Court. There will be all sorts of courts held in here and we know, sir. We know there are other buildings in Douglas which could be used. The hon. member who suggested there were other buildings was with me in the police headquarters recently. Now if they can have a meeting there of 140 people there is certainly one big room, which I presume is the major incident room, and there is a small conference room and so on. But I would expect persons who are putting forward this proposal would tell us the sort of places they have looked at in Douglas and why they cannot be used. I have no evidence before me this morning that anybody has made any effort to find other buildings in Douglas except the Tynwald Court.
Your Excellency, I do not think it is good enough. I happen to be the third member of the Management Committee with Mr. Speaker and the President of the Council and I certainly will support them and I will do everything I possibly can to prevent parliamentary Chambers being used for other purposes.
Mr. Morrey: Your Excellency, I am certainly not happy about the use of these Chambers for other purposes. We appear to have what I would call a permanent
Courthouse Accommodation in Douglas — Motion Carried T1236 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 temporary problem. Nobody this morning has talked about the image of Tynwald to the people outside. I feel that Tynwald and the individuals in this Chamber are the focal point of the Island. How many times, as members of this hon. Court, do we get asked by individual members of the public how Government works, the various department et cetera? I believe to use these Chambers for other court purposes would further confuse the issue and certainly would not help matters. I believe that Tynwald Court, together with the members, is actually on a pinnacle and for us to use these buildings for other purposes would be to getting a file to that pinnacle and filing it off a bit.
There is also the problem, if these Chambers were being used, suppose we had an emergency where we needed to meet in Tynwald. We have already had one emergency, oh, not many months ago, when we all had to meet in the other Chamber r because we had a strike on our hands. Suppose we would all need to meet and there < was a court meeting. What would we do? Would we meet in the canteen? That would not look very good as far as I am concerned.
So I am afraid, hon. members, I cannot support this and I shall be voting against it.
Mr. Cringle: Your Excellency, very briefly, I think it has been very worthwhile to have this debate on the courthouse accommodation in Douglas this morning, item 34, on our Agenda. I think it has proven the feeling of members of this hon. Court that (a) we have a problem; and (b) there is the requirement for some protection to parliamentary premises.
But having said that, I think also that we have to be very well aware of the position which the courts of the Isle of Man are finding themselves in and, although I am quite happy that we should look to other public buildings to hold courts in, I think we also want to recognise that there is a requirement whilst you are holding a court for that court also to be in suitable premises. So not every hall which is subject and possibly useful as a badminton court is necessarily useful as a courthouse for court proceedings. There has to be a certain atmosphere, I would suggest, in any court building and so therefore there is a requirement to look carefully at other public buildings to make sure that they meet the requirements of the court.
However, I am drawn to my feet this morning particularly to support the hon; member for Ayre, Mrs. Christian, in her view this morning relative to the other alternative uses which we could possibly put this Chamber to and, with respect to Mr. Speaker, even the House of Keys building to, and I would suggest it is a good and proper use to put that building to use as a Select Committee of the House of Keys. I see no reason at all why our own committees should not sit there or why a committee should not sit in this room and if that does mean that the committee rooms as we know them then become more available for court work, well then that, presumably, would ease some of the pressure.
But I do feel this morning that the debate has been worthwhile. It has shown the two facets of the problem which faces the Tynwald to come and that is the need
Courthouse Accommodation in Douglas — Motion Carried TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1237 for some element of parliamentary privilege and also the requirement, which stares us in the face, for the courthouse accommodation.
The Governor: The chairman to reply.
Mr. Brown: Your Excellency, could I speak to the amendment?
The Governor: Yes, you may, Mr. Brown.
Mr. Brown: I think it is just as well, sir. I would certainly like to just answer the points made by Mr. Payne in seconding the amendment and that was the points made regarding new buildings and could I just say that it is far from the truth to say that the Government Property Trustees are only interested in building new buildings. In fact the only one major building we have built has just come to completion down the road. I would say that I wondered if the hon. member has ever read any of the policy speeches over the last few years of the Government Property Trustees who have made it extremely clear of the difficulties facing Govern ment in maintaining their old buildings, due to lack of funds.
I believe that the amendment in front of us from the hon. member Mr. Maddrell will take us down a road of investing large sums of money in an old building that is not adequate for the requirements of the courts in the long-term future of the Isle of Man, just because of the design of the structure of that building and we have got a report about the courthouse and what can be done and we have ideas on what it is able to have done to it and it is not very practical.
With regard to the accusation about Government Office, my Trustees are only too aware of the state of Government Office and again we raised that point in the policy speech this year.
Mr. Payne: Do something.
Mr. Brown: The hon. member says ‘Do something’. Your Excellency, for the last few years we have had money in to do something but because of the tight budget, as other problems have come up where, for instance —
Mr. Payne: Laxey mines.
Mr. Brown: — heating systems have gone off or whatever, we have had problems. And the hon. member just muttered ‘Laxey mines’ and maybe the hon. member does not realise that is a capital vote and not a revenue vote and therefore —
Mr. Delaney: Hold the courts down there!
Mr. Brown: — there is a difference there and that is an investment, Your Excellency, of trying to get revenue back to the Island and it is a matter of getting priorities and getting them phased in and, whatever we do to the courthouse, hon. members have to realise it is going to cost a considerable amount of money and
Courthouse Accommodation in Douglas — Motion Carried T1238 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 there it is a matter of getting the actual scheme or whatever you are going to do put into the on-going policy of the Trustees. We already have problems, for instance, out of the blue, with regard to —
Mr. Maddrell: We do not want to know your policy statement.
Mr. Brown: — with regard to heating problems, electric et cetera and Mrs. Christian asked the question, which I would like to answer, what are the priorities in maintaining the courthouse at the moment? Well, over the last two years we have spent moneys in putting the walls right, the structure right, re-wiring, just to hold and maintain it so it will last a period of time until we make a decision as to where we are going.
I hope members will reject the amendment because quite honestly it could be a very costly amendment, without knowing exactly where we are going and I think that, if nothing else, this debate has been useful because it has made members think about the problems of the courts and, with respect, most of them have not thought about the problems of the courts. It has been there and this has made them think. There are ideas that have come forward this morning that I am sure we could look at and it has also made many members strengthen their views to the use of this Chamber and the Keys Chamber and that cannot be a bad thing, because in my time I have never had that opportunity. We have never talked about what we feel as members —
Mr. Delaney: It is our prerogative.
Mr. Brown: No, but we have never thought or giving our backing to what we feel about this Chamber or the Keys Chamber and I have very strong views, as a member of the House, of what I feel we should use them for and I do not think we should . . .
The Governor: Mr. Brown, you are stretching the Standing Order considerably.
Mr. Maddrell: Stick to the amendment.
Mr. Brown: Yes, Your Excellency.
Mr. Delaney: You will be building castles in Spain!
Mr. Brown: Anyway, Your Excellency, I would just say I hope hon. members do not support the amendment and I am sure that the vote will show what is to happen.
The Governor: The chairman to reply.
Dr. Mann: Your Excellency, this never was likely to be a very popular resolution and certainly not first thing in the morning of the third day of Tynwald, because nobody likes to think very hard about the legal courts. Nobody voluntarily wishes
Courthouse Accommodation in Douglas — Motion Carried TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1239 to go into them and certainly, when you come to involuntarily having to go into them, you are less than enthusiastic. So the whole resolution was not likely to be very popular. But I must admit that the debate that has followed has been very interesting and I think some of the points mentioned are worthy of repeating and going into a little more thoroughly. But first of all 1 have to state how this resolution arose, because there are all kinds of hints that it either should not have arisen anyway, it should not have come from Executive Council and that the ultimate responsibility of course lay with Your Excellency in consultation with the others named in the resolution. ^
This resolution has come forward from Executive Council on behalf, I suppose, of the pressures being exerted by the Government Property Trustees who themselves have a responsibility to this Court to ensure the adequate accommodation for the courts of justice, and from that point of view I do not think it is incorrect. As far as whether we should seek, as a declaratory resolution, your opinions as individual members I will not argue with at all because I am sure that Your Excellency would value the guidance given by a declaratory vote of this Court as to whether the individual members see this proposal as being valid or not. The reasons for bringing it forward are not those that include pressure from the Deemsters themselves or from the Bailiff or Deputy High Bailiff or the magistrates. It is a practical solution that is being put forward for a problem that is not going to be resolved, however well we deal with it, for some while to come.
If one looks at the real reasons why we are seeking the High Court, not the Court of General Gaol Delivery but the High Court to use these Chambers it is because number 2 court chamber, that number 2 court in Douglas is such an unsatisfactory venue that it is never used by the Deemsters and whenever they require a Douglas court both of them use number 1 court, and that means that whenever the High Court is meeting there is a serious problem and up to now that problem has been met by a high degree of goodwill and co-operation and compromise and even ingenuity, all of which reflects the unsatisfactory situation which prevails. Wherever it is necessary to re-arrange court bookings there is a consequent inconvenience to litigants, witnesses and advocates and this inconvenience also translates itself into increased costs for anybody actually directly involved. So there could be a good reason why moving the High Court out of the court building would considerably improve the efficiency of court hearings.
But we do come to the use of this Chamber and here I think I have to say that obviously it would be highly desirable if this building was never used for any other purpose than a meeting of Tynwald Court. But are we actually hallowing a building rather than its function? Because, as I understand it, Tynwald Court is where the members of Tynwald meet and Tynwald Court is the body of the people who are elected to it and make up its numbers. If, as has happened and has been referred to by at least one hon. member, Tynwald has to meet somewhere else, as it did in St. George’s Hall a few years ago, that suddenly became Tynwald, that was Tynwald Court because it was where the members of Tynwald were meeting, and one can push this hallowed area of ground to its extreme if one wanted to. One could say, for instance, that anywhere that Tynwald has met is suddenly hallowed.
Courthouse Accommodation in Douglas — Motion Carried TI240 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986
What is Tynwald in the past has of course met in Castletown. It has actually for some time and did for some time meet in the courthouse itself. I think one can take the business of hallowing the buildings rather than the people a little too far. But having said that, it is a highly desirable thing that the parliament building, as you might say, should be used for this purpose and no other. But of course plenty of other countries and other islands use their buildings in a multi-purpose way, both Jersey and Guernsey, of course, use their buildings for a High Court and for the States and apparently do not have any problems, but then of course their presiding officers are differently chosen and in some ways I suppose we would consider it a retrograde step to go back to that situation. But there is plenty of evidence in other countries that this can take place.
The Speaker: Would you name them, please.
Dr. Mann: Well, as I say, Jersey and Guernsey are two to start with.
The Speaker: Apart from those.
Dr. Mann: Well, I cannot immediately, no, I will not immediately name them but I am led to believe that in smaller countries there is a use of both buildings, but we have to accept that it is not a desirable situation.
There is, of course, very much merit in the suggestion that there should be a shuffle around, that in fact Select Committees should quite rightly meet in either Tynwald Court itself, in Tynwald Select Committees, or in Select Committees of the branches those buildings should also be used for that purpose, which would release accom modation in the adjacent building. That, I think, is a suggestion that ought to be followed very vigorously and I am surprised in many ways that it has never happened or has not happened in recent years because in every other legislature I believe that the committee stages and committees do actually meet in the actual chambers themselves. But this is certainly a very interesting suggestion that we ought to follow up, but whether that alone would enable the solution to the courthouse problem I would not like to say. I have to therefore come back to the basic resolution that we are having to seek your advice today on whether you think this is a practical solution to a practical problem. Whether common sense rules over sentiment, whether common sense rules over an in many ways accentuated acceptance of the importance of the Chamber rather than the people in it.
I do not, I am afraid, support the amendment. The main reason, I think, is that it will attempt to move this responsibility to upgrade it in the list of priorities. Court house accommodation has to be seen in relation to every other function of Government and to force it into a situation of priority I think may lead to considerable distortion of those priorities in the future.
Your Excellency, I have to leave it to the members of the Court to advise you on how you should proceed from this point and I ask members to support the resolution here before us.
Courthouse Accommodation in Douglas — Motion Carried TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1241
The Governor: Hon. members, I will now put the amendment standing in the name of the hon. member for Middle, Mr. Maddrell. Will those hon. members in favour say aye; against, no.
A division was called for and voting resulted as follows:
In the Keys —
For: Messrs. Maddrell and Payne — 2
Against: Mr. Quirk, Mrs. Christian, Messrs. Morrey, Karran, Walker, Cringle, Faragher, Brown, May, Cretney, Delaney, Martin, G.V.H. Kneale, Irving, Dr. Moore, Mr. Bell and the Speaker v — 17
The Speaker: Your Excellency, the amendment fails to carry in the House of Keys, sir, two votes being cast in favour and 17 votes against.
In the Council —
For: None
Against: The Lord Bishop, Messrs. Lowey, Ward, Dr. Mann, Messrs. Radcliffe, Anderson, Mrs. Hanson and Mr. Callin — 8
The Governor: Hon. members, in the Council eight against and none in favour, the amendment fails to carry.
I will now put to you the substantive motion standing in the name of the Chair man of Executive Council, Dr. Mann. Will those hon. members in favour say aye; those against say no.
A division was called for and voting resulted as follows:
In the Keys —
For: Messrs. Quirk, Karran, Walker, Cringle, Faragher, Brown, May, Cretney, G.V.H. Kneale, Dr. Moore and Mr. Bell — 11
Against: Mrs. Christian, Messrs. Morrey, Maddrell, Payne, Delaney, Martin, Irving and the Speaker — 8
The Speaker: Your Excellency, the resolution carries in the House of Keys, sir, 11 votes being cast in favour and eight votes against.
In the Council —
For: The Lord Bishop, Messrs. Lowey, Ward, Dr. Mann, Messrs. Radcliffe, Anderson and Mr. Callin — 7
Courthouse Accommodation in Douglas — Motion Carried TI242 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986
Against: Mrs. Hanson — 1
The Governor: Hon. members, in the Council seven in favour and one against, the motion therefore carries.
REDUNDANCY — ESTABLISHMENT OF SYSTEM OF PAYMENTS — AMENDED MOTION CARRIED
The Governor: Hon. members, item 37, redundancy payments. Mr. Lowey to move.
Mr. Lowey: Your Excellency, I beg to move:
W H EREAS —
(1) in July 1965 Tynwald resolved that a system o f redundancy payments be established but that “the introduction o f such legislation be deferred until similar legislation has been in operation in the United Kingdom fo r a period of one year”; and
(2) redundancy payments have been payable in the United Kingdom since 1965.
NO W THEREFORE Tynwald reaffirms its policy o f establishing a system of redundancy payments and requests the Governor in Council to bring forward appropriate enabling legislation at an early date.
Your Excellency, as my resolution says, in July 1965 this hon. Court resolved that a system of redundancy payments be established and to that was added an amendment that the introduction of such legislation should be deferred until similar legislation had been in operation in the United Kingdom for a period of one year. Hon. members, who I am quite sure will have looked at the history, it was in effect five years before legislation was introduced into the Keys where it was left on the table eventually. So although there was a resolution passed in this hon. Court it received in effect what I would call the traditional treatment that is offered to anything progressive; nothing changes much in 21 years. The fact that a redundancy scheme has been payable in the United Kingdom since 1965, and I would venture to suggest that in modern terms redundancy payments have allowed a situation to develop — and here I am referring to the United Kingdom for illustrative purposes — three and a half million people to be unemployed and, quite candidly, I think the mere fact that redundancy payments have been in place has prevented a great deal of social unrest.
In an Island that has seen, and I have got to say it, unemployment rise to, in an island terms, very unsatisfactory levels, eight and nine per cent, I believe myself if we are honest we cannot foresee that figure to fall dramatically in the foreseeable
Redundancv — Establishment of System of Payments — Amended Motion Carried TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1243 future. I believe that the redundancy payments scheme must be used as a cushion and in effect as a shield to allow the re-structuring of industry to take place. I believe it is a useful instrument and I believe the Isle of Man should have it for that reason, if no other. However, I do believe this matter deserves and demands immediate attention for a variety of reasons, two, and we have just been talking about courts and justice. I think it is justice. It is required for an equal treatment for all sections of our working people.
Now I would venture to suggest — and, hon. members, I do not intend this morning to go into what I would call a discourse on redundancy schemes as of themselves; I believe we are dealing here with a principle — but, however, I would venture to suggest that people have paid their dues and are paying their dues through the National Insurance Fund and they have been doing that since day one. So in effect the working man and woman has had all the disadvantages of the redundancy through contributing but receiving in effect nothing in return. Now there are rights and there are privileges. Now I believe a simple truth is if you pay a due for a service, then you should be entitled to receive from that. Now there can be no doubt that the working men and women of this island have contributed and Mr. Delaney has already told this Court last week that in excess of £2 million or £2 million has actually been paid in that 21-year period, £2 million, and in this current year, out of the national insurance stamp, the actual contribution part for redundancy pay will be ZVi million and I would draw attention of hon. members that even in the scheme that may be debated later, the one put forward for enhanced unemployment benefit, will actually cost the exchequer, if it is paid out of the National Insurance Fund which is recommended that it may be, it will actually cost about half of that amount so once again the working man is contributing and is receiving less than half of what he is putting in. Now is that really justice? So I believe it is fair for me to say that we do have a palpably unjust situation where people have been paying and not receiving.
We have, and I regret to say it, created a divided working society, anyway, where the Government as an employer gives terms and conditions to some of their employees and yet treats the others less favourably. Now hon. members will forgive me if I state publicly that it is a remarkable coincidence that it is, to use a hackneyed phrase, the low-paid who receive the least favourable terms every time. Now if we are attempting to create a just society, and I believe this Court is doing just that, no matter different routes we may want to take, I believe then we have a duty that we should be addressing our efforts to redressing the balance and a redundancy scheme is one such way.
I will refrain from saying that I have heard and I have heard many hon. members in this Court in the past few months express concern about a well-known shipping company and its attempts to re-structure itself and there we have a situation where the company is able, as a company, to re-structure itself and divest itself of over manning by the use of a redundancy scheme. Now I believe that to be right, proper and just and it is not the only firm, private firm that has in the past few years actually done just that. I can think of an airline, the last airline before Manx Airlines paid its Manx staff redundancy pay. I know of shops in the street who have paid
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redundancy pay and, as I have already mentioned, shipping. I could give you another catalogue of firms that have availed themselves because of their English connections. So there is no doubt at all about it, at this moment in time we do have double standards in various firms on this island for the workforce. It must be crysal clear to most that after 21 years of contributing it is not unreasonable for the workers of the Island to expect a positive response from the Government to implement what is, after all, the normal requirement in most of the western world.
If I was being political, Your Excellency, I would and could point out that even Mrs. Thatcher has managed to repeal many things in her, what is it?, seven years of office but I note that at no time is she attempting to repeal the redundancy scheme, no way. Now that should be telling us something. It does, if I may say so, underline my own view that it is being used as a useful instrument to re-direct and re-structure industry and it is a useful instrument. It is, in my view, an instrument that can be used for the benefit to cushion people and, anyway, I do believe, as I have said before and it is a cardinal point, that if you are paying a due, then I think you have a right to expect the reward from that due.
I am perturbed, and I am sure most members are, about people who have given a lifetime of service to their particular industry and I will just give you one instance to illustrate the point. I know there is no such thing as a standard person who has become redundant. Let me tell you, in the last three weeks I had a person coming to see me, very disillusioned, bitter and angry. After being employed by one Manx firm for 20 years, following 11 years in the Army, this 49-year-old man came into work one Friday to be told that the firm were re-structuring, not going out of business, re-structuring and his services would no longer be required and he was to finish the following week. The letter that he had said that he was made redundant. The following Friday he received eight weeks’ pay as the amount of payment that he was due under the Contracts of Employment. He went to sign on at the labour exchange on the Monday and he was told from the labour exchange no money for eight weeks because he was in receipt of payment from his ex-employer. I put that to you, hon. members, because this gentleman is certainly no hothead, certainly no rebel but I put the question to you. He was full of resentment bordering on bitterness, a sense of being short- changed. That was a genuine feeling of a man that was in the Isle of Man, because if he was in the United Kingdom that would not have applied.
It is no surprise for me to discover that redundancy payments are opposed by a lot of people on the Isle of Man, genuine people, Manx employers in particular. I meet them wearing my Industry Board hat and especially the small employers. I understand their genuine concern and it is mainly based on cost. Now I honestly believe that to be over-stressed and I would urge them to equally recognise that by not implementing a redundancy scheme we shall assuredly create industrial unrest that will be much more expensive in monetary terms, as well as losing a reputation that the Island has for reasonable employment practices and a workforce that is prepared to be flexible. We do have that reputation at the moment, just. I want to do everything I possibly can, like, I am sure, other members of this Court, to maintain employment to the full and that is why I believe that, notwithstanding
Redundancy — Establishment of System of Payments - Amended Motion Carried TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1245 the oft repeated objections by Manx employers through their organisations, this Court, I believe, should emphasise and reiterate and lead, that it has an interest in creating justice and equal treatment to all working people.
This court, and I am one of those supporters, in recent years has seen to it that we have tax exemption schemes for companies and to create a climate where companies can thrive and be profitable and attract them here to the Isle of Man. I think we have an equal duty to be even-handed and to make sure that those who work in industry are treated fairly too. I find it rather strange that in the Isle of Man to those people who are covered by English conditions we tax their redundancy pay, and therefore I see in the Income Tax Bill that is going through in another place that there is an amendment to actually increase or to exempt the first £20,000 or £40,000 from tax. I would prefer to see redundancy pay, as in the United Kingdom, exempt from taxation altogether.
I believe the acceptance of the principle of a redundancy scheme for some while denying it to others is divisive and does breed resentment. It really is not accepted on the shop floor or in industry generally. It is certainly not accepted as just. It does not bear, I suggest, elementary examination and therefore I believe, Your Excellency, the time is now right for this Court to re-emphasise that a system of redundancy payments scheme be established and to request Executive Council to bring forward quickly appropriate enabling legislation whereby there can be some urgent progress, and I will not accept in this instance that the scheme and the payments that have already been paid can be discarded and be told that it is in the general revenue account and therefore it is not earmarked for redundancy payments. I honestly believe the reality is that if we do value good industrial relations, if we do value the workforce and the man is worthy of his hire, then I do believe that the Isle of Man should not be one year behind the times but 21 years in this instance, I believe that to be a black mark. We should accept our responsibilities. We should accept that the word ‘redundancy’, which has slipped into the Manx vocabulary, has a totally different meaning in the Isle of Man than elsewhere. It is not a proud boast to say that to be made redundant in the Isle of Man you are in effect sacked with very little recompense at all. As I have said, I do not wish to see anyone made redundant but in reality there is always a change. I think we have got to make people adaptable and accept change and I would urge hon. members to remember, when you are talking of redundancy payments, it is not a payment that you get every time that you become unemployed. But I do believe that somebody who has given a lifetime of service to a company deserves a little bit better than ‘Here is eight weeks but in the meantime do not go to the Employment Exchange because you are disqualified from benefit’.
Your Excellency, I said I would not make a big discourse on the merits or the mechanics of a redundancy scheme. I believe most members have read and know what a redundancy scheme is about. Today I am asking you to give a direction to Executive Council to say — and I am not pretending it will be easy; I know full well there are genuine fears — but I do believe we need to give a lead if we value industrial relations long term and I believe that justice demands, as the workforce has paid its contributions for 21 years and has been extremely reticent in pushing
Redundancy — Establishment of System of Payments — Amended Motion Carried TI246 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 its case, I believe we as a Court should on this occasion reward that patience by saying ‘Yes, and now is the time to introduce a redundancy scheme’. I beg to move.
Mr. May: I beg to second, sir, and reserve my remarks.
Mr. Anderson: Your Excellency, I think that it is important, if this is actually passed today, that the Court will give an adequate sense of direction as to what we are talking about. I can understand the hon. member’s putting forward this in that this contribution has been made; in that context I can see the justice of that case, but I think we have got to look at what we are trying to achieve here and the objectives of this island. The difficulty is that in fact because of higher electricity charges, higher shipping charges which obviously are going to be increased again it is going to be increasingly difficult to attract industry to this island and this is something that we must not close our eyes to. In the world context I pointed out yesterday in another place that I think we should do well to look at those countries which are being successful on behalf of the working population. In fact the country that I would say is most successful in terms of employment and the level of standard of living that is existing today is Japan, Japan who has actually got no, (Interruption) they have got very little legislation of that sort but they have got a very successful economy; the standard of living is increasing far beyond that of any other.
I think that we must not inhibit the job opportunities coming to this island. There is no doubt about it, we have got to increase those and we have got to work for a climate which is going to be more attractive. Now these two factors of high cost of power and of high cost of shipping in and out of the Island are big contributory factors towards our difficulties. If it is seen that there are no advantages in being in the Island at all, from an industrialist’s point of view, then we are going to become a backwater as far as industry is concerned; that we must recognise, and there is no doubt at all that there are many employers in the United Kingdom who today would be prepared to take on considerable numbers of people and give employ ment to them, albeit sometimes on a short-term basis, if it were not for the restrictive legislation that has come in which runs them into difficulty when in fact they are prepared to do just that. So I have been told by people who are in a position to know know that they believe that probably the number of unemployed persons could be reduced by a million if it were not for all the restrictions in terms of bringing on and taking off people on the unemployment register or giving employment to them. So I think that we can actually defeat our own purpose and be counterproductive in relation to the people we are trying to serve if we do not go along that way. I go along with the hon. member if it is using that resource to help those who, unfortunately, through no fault of their own have come to the end of their employ ment within that situation.
I do not view somebody who has given employment to somebody as 20 years as being terribly guilty if they find at the end of that period they cannot employ that person any longer. In fact very often, as in the case of the shipping company, the result of that would be they would fold altogether and maybe not be in a position to employ anybody at all. So there must be some flexibility to have movement of labour, and I would indicate my support for the hon. member if he is talking about
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using a resource which has been contributed to. I would not go along with the other because I think if you go along that road, where the employer has got a substantial contribution to make, I believe you would have an upsurge in our unemployment figures because people would decide to unload, knowing that this legislation was going to come forward and they would get down to the minimum of employees that they require for their job and they would take that action very quickly. So I believe it could be very detrimental if we were not to indicate precisely the direction in which we were going this morning. I believe that everybody makes an equal contribution to our economy and I want to emphasise, because I started at the very bottom of the ladder and I know what it is when the minimum . . . I worked for £2.10, it was at that time, a week and I know what it is to be on that end of the scale and I know the opportunity ought to be there in the working category to move on from that stage, and I believe that that does exist and I believe that people who do that job, whatever that job may be, whether it is highly skilled, and this is what I think of the educational system, that they look at the academic and give emphasis to that, where the people who are artisans make as great a contribution to society as any other and I think the employer and the employee equally make a contribution to society. What we need to do is to get them in a working frame of mind, that we work together, not against each other, that we try to have a positive approach to society, there is not a ‘them and us’ situation. I doubt whether there are many hon. members who actually have redundancy as part of their policy. I know the hon. member had when they had a manifesto going to their constituency and the hon. members of the House of Keys will again be facing a constituency in the not-too-distant future and I would appeal to them to indicate today the sort of redundancies that we are thinking about which will not be detrimental, hopefully, to the employment opportunies of those who wish to work, and I believe the vast majority of people in the Island wish to work in worthwhile permanent employment. We do not want to debar those people from having that opportunity and I think it is important that this hon. Court today indicate precisely the direction in which they wish to go so that we are not going to jeopardise the future opportunities of employment on this island. Mr. Payne: Your Excellency, the hon. member of Council, the youngest member of the Council, has proved today that he really is an old hand at the job. I came here expecting him to be guns blasting, telling all the capitalists that we are doing a wrong or they are doing a wrong to the working men of this island, but he has not. He has come along and he has said to us that what he is asking for is that part of the National Insurance Fund, to which workers have quite rightly contributed has not been used for the good of those workers. Now if he takes that line I am quite happy to go along with that, but I want him to spell out that that is what he is asking for. He is not asking for a United Kingdom scheme. He is asking for a Manx scheme that will bring in a system of redundancy payments. Now if he is asking for that I can quite happily vote for that, but if he is just using this resolution to get his foot in the door and then come forward with a full United Kingdom scheme, as far as I am concerned, he has got no chance and I think he knows himself that he has got no chance.
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So I am not going to make a long speech about it. The Chairman of the Industry Board has put the other side of the case, that if we do come in with a full United Kingdom scheme we are likely to stop industry investing in here; we are likely to lose jobs as a result of it. I see the Labour members looking and saying words at me but that is what I believe.
So I say to the hon. mover of this resolution, if you are asking for a Manx scheme I can support you, but if you think once a scheme comes forward which really brings in the exact copy of the United Kingdom scheme I doubt very much if you will get the support. I will support the resolution.
Mr. Morrey: Your Excellency, I would support the honourable sentiments of a redundancy scheme. However, before we talk about a redundancy scheme let us know what we are talking about. Who is going to actually pay for it? Is it going to be financed by Government? Is it going to be financed by the employers, or both? The United Kingdom scheme, which started, I think, about 1965, started off where the lion’s share was paid by Government and over the subsequent years it reverted until the employer paid the lion’s share. I am not sure exactly what the situation is at the present moment but throughout industry in the United Kingdom it signalled a sign of horror, and I often wonder whether we will not have a reaction against the people we are actually trying to protect.
I feel that if we have a redundancy scheme which is financed by the employers we will have a situation similar to the Agricultural Holdings Act, where we tried to protect the tenants and now there are no farms available for the young people of the Isle of Man. If you do not believe me all we have to do is to go and count the number of English names on farms in the Isle of Man and you will see it is increasing greatly.
Now I would not like to see a situation like this act against our workforce because what we would be doing, we would be acting against the people who have not got jobs, not the people who have got them or likely to lose them, and I could not support this. But if the hon. member cares to present a system that we know what we are voting for, then he has got a chance but, to vote for the English system, I am afraid I could not support that.
Mr. Brown: Your Excellency, I would just stand up to say that I support the principle of what is being put forward and bringing a system and I would just echo, really, the sentiments that what we need to do is we need a scheme that suits the Isle of Man and I think that is the important thing. We are here as legislators for the Isle of Man and that does not mean we have to copy anybody else and what we should do is pick up, hopefully, the best bits, make sure that we protect our people properly and certainly make sure we do not have a detrimental effect in another area and I am sure that is not the intention at all, and I am sure what we are trying to do is maximise job opportunities but in cases where people are made redundant, that then they are rewarded for their loyalty to a firm for whatever many years that may be by some form or other and, whilst supporting this, of course legislation, if it is passed here, that comes forward will then have to be looked at
Redundancy — Establishment of System of Payments — Amended Motion Carried TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1249 in another place and we will all be able to make very strong views there whether we support that or not. But I do hope that whatever comes forward, if this is successful, does really echo the needs of the people of the Isle of Man and what they require in all sectors of the community, and that does not mean making it that this scheme is worthless and I hope that does not happen.
Mr. May: Your Excellency, when this matter was debated in 1965,1 have studied the Hansard of that debate and some of the comments that were made by hon. members at that time were, to say the least, narrow-minded.
Mr. Brown: Anybody left?
Mr. Delaney: Yes, there is.
Mr. May: I think also, when you look at that debate, a lot of members of the Court seized on the amendment that was moved to the original resolution, that consideration be deferred until after the system had been in operation in the United Kingdom for one year; it was seized on by members of the Court as a way of looking ‘Yes, lads’ we are there. We are supporting this’ but in actual fact they were doing absolutely nothing and they knew they were doing nothing about it. When subsequently the matter was brought before the branches in 1970 in another place it was effectively killed off by being laid on the table for six months, and that was a move that was later described in this Court as being “an effective way of confining it to the Devil” and that is a sentiment that I do not feel expresses great credit on anybody.
Mr. Delaney: Which constituency does he represent? (Laughter)
Mr. Martin: I will tell you afterwards, sir. But today, 21 years later after an original assertion by this Court, my colleague Mr. Lowey is attempting once again to resurrect this issue and to try and get some positive action towards the eventual introduction of a redundancy payments system. Now I have got no doubt and from what I have heard this morning many of the old fears and prejudices that existed 21 years ago are still in existence today. But we all must appreciate that times have greatly altered over the past 21 years. We live in a totally different world. The situation has changed completely, and what my colleague is looking for, in effect, is a positive move to rectify some of the injustices of the past. For far too many people in this island, unfortunately, any move that is made will come too late, with the high unemployment levels that we have today and we all know, we all have our own constituents, instances of people, as the hon. member has pointed out earlier, that have been laid off after many years of loyal and faithful service to one employer with little more than a handshake and ‘Thank you very much’ at the end to show for it and no hope of finding future employment. For those people any move that we take today is too late. Their families have faced the hardship of being forced onto the scrap heap prematurely with no provision, no safeguard or insurance for their future. What we can do today is take a step forward for insuring future generations of Manx workers and that, in effect, is what I think my colleague is looking for. He is asking that we reassert the policy of 1965 and he is asking for
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an instruction for a Bill to be produced to go through the legislative procedure. The hon. member for Castletown, Mr. Brown, has just put his finger on the very fact. When such a Bill is produced, and obviously it will take a great deal of working out, it will have to be worked out in relation to the situation in the Isle of Man. Consideration will no doubt be taken of the £2 million in contributions that have been made already, the £Vi million that will be made over the course of the next year. These are things that have to be looked into but when such a Bill is produced, that is correct procedure and the correct time and place to debate and argue on these issues and express one’s doubts and fears is in the branches. That is the way to do it and I feel that if this House rejects the motion before it this morning it really condones years of inactivity on behalf of this Government and the insecurity that this has brought about amongst the working people of the Isle of Man. To support the resolution, I think it will be seen as an act of a fair-minded Govern ment, that we are prepared to instruct the draftsman to come forward with legislation on this, we are prepared to look at it with an open mind and debate it honestly and let it stand or fall on its merits.
But I would say to the members of this Court this morning, two weeks ago in another place I commented on the inadequacies of the Employment Bill. Today I stand here and criticise the lack of direction over the past 20 years that has led to this social injustice for the working people of the Isle of Man. We have got the opportunity today to start setting the record straight and it certainly will not set it straight overnight; it takes time, but we should all be prepared to give that time and I would ask members of this hon. Court to support the resolution of my colleague Mr. Lowey.
Mr. Walker: Your Excellency, I admit to having fears. I hope, though, that they are not prejudices. In 1981 when we had the last election I stood on the platform in my constituency and I said quite clearly that I would not support a mirror of the United Kingdom redundancy scheme in the Isle of Man. In a few months time I hope to be standing on a platform and I will say the same thing. It would be less than honest of me if I did not stand here this morning and state that.
I think the situation as far as industry is concerned and employment is concerned in the United Kingdom is different to that in the Isle of Man and I think that we have to recognise that. There can be little argument that there was a need for re-structuring, which my hon. friend Mr. Lowey referred to earlier on, in the United Kingdom. There was a great degree of overmanning. There was a need to assist people to move from the service industries into the manufacturing industries so as to try and create wealth. That was necessary. It was a positive move on behalf of the United Kingdom Government for that to happen. There is a need to manufacture to create wealth.
Mr. Lowey: Not in the United Kingdom any more.
Mr. Walker: We are talking about ‘any more’. My hon. colleague was talking about 20 years ago when redundancy was introduced. There was a selective employ ment tax introduced in the United Kingdom, which was on the service industries,
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to try and assist the transition of people out of those industries into manufacturing. That re-structuring had to be done in the United Kingdom, there is no doubt about it, and probably redundancy helped. I do not believe that there is a great deal of re-structuring to be done within the Isle of Man. The re-structuring that has had to happen and has been terribly painful and has seen a rise in the unemployment figures for the Isle of Man is the construction industry and I think that many us accept that the construction industry — we saw it in the 1970’s — was too large for this island and there was a need for a transition. That has happened, though, and the construction industry now is as small as we dare let it go and I would sug gest it needs to be increased once again.
I think we are wrong if we think that terms and conditions for every employee, whatever the industry, should be the same. I think we have to accept that they are different, that employers have different resources, that employees of Government have a different structure behind them to an employee of a very single perhaps one- man firm and I think it is unfair to suggest that every employer has to accept the same terms and conditions as each other.
I think if we look at the United Kingdom and accept that there was re-structuring necessary, I think it is also clear to many of us that the system that was introduced by the United Kingdom has been abused in many ways and it is true to say that redundancy, for many employees, has been looked forward to and in some instances it is true to say that the employees have got their employers into such a situation that redundancies are absolutely necessary and have done very well out of it, thank you very much, to the detriment of the employers. Now that is not in the majority of cases but it has happened, and as far as I am concerned I do not look at the United Kingdom structure and say it has been a great success. It has not. We have seen in the last 20 years shipping almost disappear from the United Kingdom. We have seen motorcycle manufacturing disappearing. We are watching motor cars disappearing, the manufacture of. We only need to pick up^almost any book that is produced and we see it has been printed in Czechoslovakia or Spain or somewhere. Now I am not saying and I am not foolish enough to believe that that is just because of redundancy. It is not. But it is one of the things that has had an effect and I think that in the Isle of Man we are foolish if we disregard those signs and we have to keep one eye on them.
The hon. member for Council, Mr. Anderson, was citing Japan as a place to look for for good example. I would just say that in Japan I know that industry is far more ruthless than in many of the Western European countries. In many instances the employee has no freedom of choice. He is in fact raised by a company, educated by it, employed by it and buried by it, and there is very little choice for the individual there and I would not like to see that happen here. I am absolutely certain in my own mind that the employee’s interests are best served by offering to him as many job opportunities as is possible, and that is difficult. I am not saying it is easy. But this Government should be setting about creating job opportunities so an individual can sell what he has to offer in the best possible way for himself.
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I do recognise that people who are made unemployed, and whether it is they are made redundant, whether it is that the business has gone out of production or for whatever reason, there is a cushion that is necessary for them. They have commitments that they have built up for themselves over a period of time when their income has been at such a level as to afford it and suddenly being on a reduced income has very many problems. I do believe that the scheme for enhanced unemployment, and it is easy to say it does not go far enough and perhaps it does not, but I believe that that is the sort of line we should go along and if we are looking to make an Isle of Man system of redundancy, well, let us do that but let us look at it and let us make sure that it fits the Isle of Man and we should not just say ‘We want the same as our fellows in the United Kingdom’ because that, I do not think, is acceptable; it certainly is not to me.
Your Excellency, I hope, and I am sure he will, when the hon. member replies to this debate he will tell us what is in his mind and whether or not it is to mirror the United Kingdom scheme because, if it is, I cannot support it. If he is talking about looking at something that will fit the bill for the Isle of Man, well then I am right behind the hon. member.
Mrs. Christian: Your Excellency, the mover of the resolution has indicated that he is concerned with a principle in moving his resolution this morning. May I first comment on the example he gave us and I would query whether he is right that in the United Kingdom that gentleman would not have been treated in the same way as he was in the Isle of Man. I think he would have been because it seems to me a matter of the National Insurance Scheme and the reciprocal arrangement applies. However, I am not being absolutely emphatic about that but I do believe that he could well be wrong.
If we are talking about our community, I think we live in a society where still the work ethic is strong, in spite of the fact that over the last decade or so we are told by sociologists and so on that things are changing and that we have got to learn to live with leisure and so on. However much we are told that people still value having a job and a place to go to to affect their daily lives. Where, then, do we get this work? We either get it through self-employment by creating it ourselves or we work as an employee for someone else. Now I feel quite strongly that in the circumstance where we are employees the sort of policy we should be pursuing i' that an employer should pay a fair day’s wage for a fair day’s work and if at the end of a period of employment that employer finds himself no longer able to keep the job available for a person I find it hard to argue a case for there being some sort of compensatory payment made. What I think we ought to be looking at, as the hon. member for Rushen has said, in the first instance is in creating as many jobs as we possibly can so that people have a flexibility in where they can actually seek their employment and Government’s main efforts in the Isle of Man and elsewhere are in trying to create those jobs.
Now the thing I find concerns me about this resolution is that, in looking at a situation where a person is not in employment, we are blinkering ourselves to that situation where they are redundant and not looking at the situation where they may
Redundancy — Establishment of System of Payments — Amended Motion Carried TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1253 be unemployed for some other reason. The resolution deals with one category of unemployed person only, that is, the person who becomes unemployed because the employer no longer has a job there for them; there is no work for them or for anybody else, and that is what redundancy schemes are about or certainly in the way in which they are couched and framed in the United Kingdom that is what they have been about and I think, unless we get mixed up in euphemisms as to what ‘redundancy’ means, that is also what it must be about in the Isle of Man.
My concern, Your Excellency, as, I think, is the hon. member for Council’s concern, is that when a person becomes unemployed their situation is vastly changed, they have not got a regular income and so on. Now this fact has been recognised for a long time, in that many years ago people sought to secure their position against unemployment either through the benevolent societies, which we had founded in the Island and elsewhere, and then followed on with the welfare state which introduced our national insurance system to give people a fall-back position against unemployment. I find it difficult to consider that this Government should be looking only at the unfortunate position of people who are unemployed because of redundancy. I think we should be taking the wider view, as I believe we have done in the Enhanced Unemployment Benefit Scheme and making a provision for people who, after being in work for some time on a regular basis, have established for themselves a certain standard of living and then, becoming unemployed, find that they have a difficulty in adjusting. I believe that difficulty is the same if you are simply fired as it is if you are made redundant and I think that that is the benefit which the Enhanced Unemployment Benefit Scheme offers over and above a redundancy scheme. That scheme, which is on our Agenda but which has been deferred because of this particular issue, gives an element of extra support to people who have become unemployed, for whatever reason, if they have been in that employment for a steady period of time and I believe that we should be looking at all unemployed people in that category through a scheme such as that, rather than simply dealing with the element of those people who are redundant.
The effectiveness or otherwise of redundancy payments in the United Kingdom is a matter of personal opinion. What does concern me is that the position of many companies and businesses in the Isle of Man at the moment is a very difficult one. There are people out there who employ small numbers of people, employees and who, if we had a redundancy scheme, would be put in a position, I believe, of having to dismiss people earlier in order that they could pay lump sum payments, if that is in fact the type of scheme which is envisaged, or keeping them on a little bit longer without the prospect of having to find these lump sums. In view of the fact that, I think, most of us believe that if possible people should be in proper employment I think that the redundancy scheme, if it were to be based on that United Kingdom principle, would be detrimental in the sense that it encouraged, well, it does not encourage it almost forces employers, if there is a difficulty in keeping a job going, to shorten that employment.
The question of redundancies as applied in the Island at the moment on a voluntary basis is another difficult one. The hon. mover has referred to the situation where Government gives many terms and conditions which people outside of the Court
Redundancy — Establishment of System of Payments — Amended Motion Carried TI254 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 and outside of Government find it very hard to match, and I think the argument there should not be necessarily that we should enforce those outside to match but that we should have been a lot more cautious in progressing towards what Govern ment has offered to its own employees in the past. However, once that has been granted I think it very unlikely that there could be any change in those terms and conditions.
Whether redundancy payments in fact are helpful in terms of generating and providing for the continuance of work has a question mark over it too, I believe. We have had reference this morning to one local company which has recently agreed to make redundancy payments but one must query what that must do in terms of its recovery to a proper level of productivity and effective running.
I think that I will not be able to support this resolution, in that it restricts its consideration to only one category of unemployed person and that I think the alternative of the Enhanced Unemployment Benefit Scheme is better. The arguments which have been contributed about employed persons making national insurance contribution payments and so on into the scheme have been gone over many times and would not, in my view, be worth re-considering at this stage, except that if it is to be said that a payment should be made from the National Insurance Fund I believe it should be paid from the time the person is out of work. Is there is a real justification for making a lump sum payment to a person who the following day or week may then obtain another job? I think, if it is to be paid through the National Insurance Fund, that the alternative scheme which is on our Agenda is a preferable one.
The Governor: We have been looking to the East for much of our inspiration and I think it is appropriate that we should call upon the Lord Bishop.
The Lord Bishop: Your Excellency, the thing I want to stress at the very beginning is what one might call the human side of this. Someone who has been in employment for 20 years and then is suddenly made redundant, the effect on him and his family is a crisis and anyone who knows friends, acquaintances and relations who have been made redundant knows this is true, and money is not the only solution. The deep scar sometimes on the family, that the man very often is afraid to go out. In some cases I have known people become ill and in some cases even try and commit suicide because they feel they are on the scrap heap, they feel they are no good, they feel they are useless and, although, as I say, money is not the only solution to the problem, at any rate it is a help and I will support this resolution. It is, as I see it, supporting a principle rather than detail and when the detail comes back, then it will be up to us to see whether we like it or not. But I will certainly support this as a principle and as a way of helping people who are often in great distress and also the fact that they do receive some payment shows, at any rate, somebody is concerned about them.
Mr. Cretney: Your Excellency, I fully support the- resolution before us here today. In 1965 this hon. Court resolved that the idea of redundancy payments then being established in the United Kingdom would be applicable to the Island but the
Redundancy — Establishment of System of Payments — Amended Motion Carried TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1255 introduction of such legislation be deferred for one year, and now here we are, hon. members, in 1986, 21 years on and this particular piece of social legislation is still not enacted.
Since being elected to this hon. Court in April last year at a time of some difficulty, due to the recession and other various factors, I have been most concerned that the Industrial Relations Committee of the Board of Social Security have decided that for the time being it would not be appropriate for the full force employment protection to be enacted on the Island. That answer was the result of a question tabled in June 1985 and again it must be emphasised that employees and employers contribute part of their national insurance contributions towards such payments in the United Kingdom and exactly the same in the Isle of Man. In fact in a further question of the hon. chairman this month it was revealed that the amount of money paid amounts to some £2 million. I would say to this hon. Court, in my opinion, it is entirely appropriate now that this particular form of social legislation or a form of it should be introduced.
Now since being elected I have been approached by many people who for circumstances beyond their control have found themselves out of work, with no cushion to help that particular blow. I was approached by a building worker with 17 years’ service with a local firm and who at the age of 62 had little or no chance of a new opportunity. He had been put out of work by his employer because his employer needed to reduce his workforce. Now I can accept that but at the same time it must be only right, only just that this employee should have been helped at this most difficult time in his life. If this man had received the redundancy pay ment at this time it would have helped him to come to terms with the situation he found himself in.
There have been lots of references to the United Kingdom situation so if I could just clarify one or two points. In the United Kingdom the employee, to become eligible for redundancy pay, must generally have worked for at least two years for 16 hours a week or more or for at least five years for eight hours a week or more. Service before the age of 18 does not count. A payment is only due under the Act if the dismissal is caused by the employer’s need to reduce his workforce. Redundancy may arise because a work place is closing down or because fewer employees of a particular kind are needed.
The cost of shipping and electricity here have been introduced into today’s debate by the hon. member of Council, Mr. Anderson, and I would go along with him on that. Until we do something about the costs you can forget the idea of major investment by people setting up businesses. These costs far outweigh any costs that could be incurred by the introduction of adequate social legislation applicable to the Isle of Man.
I would ask hon. members to support the resolution before us today as another in a series of small steps to benefit those on both sides of industry. We support all moves to help those in businesses on the Island, who have the advantages of our tax system which can be used to help them. Now let us today help not only
Redundancy — Establishment of System of Payments — Amended Motion Carried T1256 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 those who control industries but those who work in them and who, for one reason or another, find themselves in a situation out of their control. Let us assist these people when they need assistance and also help and continue to help those who operate businesses by other means.
I must make one final comment. Mrs. Christian made reference to the Steam Packet situation and I would respectfully suggest to her that the problems there have been caused by inefficient management in the past and it is only right that the employees who find themselves in this situation that they have found themselves down there now should be compensated, because they put long and good service into that particular company and it is not through their fault that the Steam Packet finds itself in the problem it does today. Thank you, Your Excellency.
Mr. Cringle: Your Excellency, I think it is a difficult debate, this one, insofar as it is the question of the principle and the principles show up very starkly and very clearly when, as the hon. member who has just resumed his seat comments, because of bad management these employees, it is not their fault and they should be protected somewhat in relation to the Steam Packet. Now there is the opposing side to the point which he puts which is equally stark and that is the fact that those gentlemen have been paid and well paid to do their job and there is no necessity for any employer to employ anyone. We are all, in those cold terms, equal and, as the hon. member for Ayre said, you can be self-employed or you can be an employee. The choice is each individual’s. You can create employment or you can work for someone. That is the stark choice which everyone who is on the Isle of Man faces. We have the freedom to do so. Introducing into the debate elements such as my colleague referred to in Japan, from the cradle to the grave where you are nurtured within the one family, that family being the business, that is not really the system which we have accepted on the Isle of Man for centuries. We have accepted that we are all free to do what we want to do and the stark choice in employ ment is to work for someone or to create work for yourself.
Then we have the element which the Lord Bishop brings into the debate, which is the human terms, and you have to put it into human terms and then we have to say to ourselves, do we require to be a caring society? And without any shadow of doubt I think we on the Isle of Man wish to establish a caring society. So if you then try to establish a caring society you need to look at what we provide on the Isle of Man at the present time coldly, unemotionally and look at what you provide and you provide a social security system under a Social Security Act and you supply a national insurance system which is reciprocal almost to the United Kingdom system. Now we can very well argue that we do not go far enough and I think there are times when we do not go far enough down that road and I will say to this hon. Court that as far as I am concerned in this resolution this resolution today in front of us has considerable merit and, surprise, surprise to some members, no doubt, I find that we should be supporting the resolution in human terms because we are talking about social legislation and there is a time when Government should consider social legislation. (Interruption and laughter) The late and great Sir John Bolton — members have referred to previous debates — is on record in Hansard as having said that he would support redundancy being introduced into the Isle of Man —
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Mr. May: Not in the copy I have got.
Mr. Cringle: Providing Government was financing it or it was in that form. Now that was the system which was suggested then. What I am saying to this hon. Court is that we should not back off this resolution; we should not back off it. We should be prepared to accept that in social terms there is a need to move for ward.
We have the case which my hon. friend and previous colleague down here now raised about the gentleman who came to him with eight weeks’ and he had been given eight weeks’ pay and the hon. member Mrs. Christian,the member for Ayre, makes the question as to whether or not that person would be treated differently under the National Insurance Fund in the United Kingdom. The subtle difference is not in whether they would be treated differently in England or in the Isle of Man but the subtle difference in that context is whether or not the individual was receiving eight weeks’ pay or whether he was receiving a golden handshake because that is the criteria and if it is eight weeks’ pay, well then he gets nothing. If he was getting it another way round, well then he may very well be looked on in different terms, and I think again we can consider that point on the Isle of Man and we have a position when some employees in the Isle of Man have different terms and conditions, which we accept they have, than what the majority have and therefore I think again we need not back off this one.
In order to arrive at an element of support for my hon. friend and colleague’s resolution I find, listening to the debate, Your Excellency, that we have had the polarised sides being brought to our attention and we have had to some extent the red herring of the £2 million in the National Insurance Fund. I think it is fair to point out that that question has been answered many times in this hon. Court in the last 21 years and the President of Council, when he was then Chairman of the Board of Social Security at the time it was introduced, distinctly and deliberately made the point that they were not introducing the redundancy fund into the Isle of Man but there was still a requirement to fund the national insurance by the same level of contribution. It was a deliberate act of Tynwald at that time that they would not separate into a redundancy fund. So that is somewhat of a red herring though, nevertheless, I have to acknowledge that for mathematical reasons, if you wish to do calculation, you can come out with a figure somewhere around the £2 million.
Looking at the resolution I find that we are faced with Tynwald reaffirming its policy, and that gives me no hardship whatsoever. I am quite happy to go along with Tynwald reaffirming the policy of establishing redundancy payments and will support redundancy payments legislation. I am very well aware that in 1978 the Employment Protection Act of the United Kingdom brought in consolidated legislation and I know the difficulties which have faced the hon. House of Keys and the Legislative Council when we have discussed other social legislation, and I know that in order to establish contracts of employment legislation we first had to start off in a small way and then we had to develop and likely again, the indication is given in this Court this morning, likely again we may have to evolve some form of redundancy but we should not turn away from it. So we are given in this resolution
Redundancy — Establishment of System of Payments — Amended Motion Carried T1258 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 that the Governor in Council to bring forward appropriate legislation at an early date. (Interruption) Now if we are honest we know that an early date is almost an impossibility, though my hon. colleague will accept, no doubt, that if you wished and had the will to do it you could pass legislation in a matter of a couple of weeks. I do not think that there is a possibility of that being achieved and so, Your Excellency, I would like to propose an amendment to the resolution to delete the words “requests the Governor in Council to bring forward appropriate legislation at an early date” and substitute instead of them “and appoints a committee to report to the October sitting and such report to contain enabling draft legislation” , and I do that deliberately because I do not think in this particular instance it is the job of Governor in Council to bring forward the enabling legislation. I think they would possibly have to set up a sub-committee which may very well consist of members of the Board of Social Security and others who would have to consider that draft legislation. I think it would be better done by a committee of this hon. Court and I deliberately put in the words that that report to contain draft legislation so that early in the start of the new House that draft legislation can get started. I beg to move.
The Governor: Hon. members, I propose that we should now break for lunch until half past two. The first to speak after lunch being Dr. Mann. The Court stands adjourned.
The Court adjourned at 1 p.m.
REDUNDANCY PAYMENTS — DEBATE CONCLUDED
The Governor: I call on the Chairman of Executive Council, Dr. Mann.
Dr. Mann: Your Excellency, I think it is first of all important to see the relevance of this resolution. It has been brought before us by an individual member who is also a member of Executive Council, and he is being bold enough to remind Tynwald of its resolution of 1965 with its implication for action in 1966, and one needs to have a fairly long memory to be reminded of a Tynwald resolution. There is also a great danger, if an individual brings forward this type of resolution, that this Court automatically splits into right and left, irrespective of whether there are parties or no parties, and that we have a dogmatic approach rather than a more liberal and more relaxed view of the proposal.
I think that first this Court ought to decide whether it has a corporate conscience about the fact that it took a decision to continue the social security payments of individuals and yet do nothing about redundancy, that it has a corporate conscience compared with those of the Manx people who get true redundancy and those who do not, because, after all, the corporate body of Tynwald is responsible for all of the people in the Isle of Man. I suspect that there is a corporate conscience about the fact that we have allowed the deductions of social security payments without
Redundancy Payments — Debate Concluded TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1259 meeting the demands of those who have made the deductions, and I think the main problem is how we resolve that corporate conscience.
We can resolve it in two ways before the Court in this Agenda. We can either support this resolution and ensure that it actually achieves its ultimate aim or accept that that is not going to happen and support the resolution that has been overstepped, as you might say, which proposes enhanced unemployment pay. I think, in all honesty, the sensible thing is to support this resolution but, having decided to support it, one must also be sure that it actually produces results, and although the hon. member for Rushen has thought of a very ingenious way of appearing to make it look as though it could achieve a positive end I suspect that the actual resolution itself is more likely to do that, and so I think on basis, if we have this corporate responsibility, then we should make sure that this resolution is supported and that we as members see that progress is made, as it could be made, in this House before the end of this session. So I beg to support and will support the resolution.
Mr. G.V.H. Kneale: I rise to support the resolution. I am one that has experienced the shock of being made redundant after 23 years in the firm and received a fortnight’s notice the day I was due to go on holiday and was told I could accept the fortnight’s holiday as my notice. That was when a firm that I worked for, where I thought I had a job for life, was taken over by another firm who did not have the same feelings for the staff and there were several others followed me, so from my own experience I fully support the move and the only thing that has disappointed me is that it has taken us so long; we have talked so long about it and made no real progress except for an increase in the notice that could be given. I think it is time we really settled down to this and got something permanently done.
Mr. Delaney: Your Excellency, because of another subject which has been deferred on the Agenda Paper I was not going to make any remarks on this other than do as an individual — support it, but I must say quite clearly now that in 21 years I see nothing changing. The debate in the Hansards which took place at that time and the debates that are taking place now, even down to the amendments that have been moved, are carbon copies of what occurred in 1965 and then, five years later, having only held over for one year before they got the legislation to the House of Keys, the legislation was laid to rest and died in the House of Keys, and whether >r not, as the hon. member has said, this is a new House of Keys, to me does not matter. Some of the members who were there then are still in this House now, including the last speaker who I was delighted to see was against laying to rest a piece of policy — and this is the place they tell me where the Tynwald Court is the Government and, having gone through here, it was killed off in the branches.
Because we are getting close to an election I feel the same thing is happening again. We are going to con the people of the Isle of Man, we are going to commit the cardinal sin of passing over to the next Government responsibility for something we are responsible for and, at this late stage in the life of the House, that is all we will be doing. If the members . . . and I was sorry to hear the Bishop which, in good grace to himself, wishes to be charitable, to be right and proper, but the ability of politics is the law of the possible — the art of the possible, if you like.
Redundancy Payments - Debate Concluded TI260 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986
We are taking part in that art form now and, sir, I would say to you, just by voting for this resolution will not get the reality of the statutory instruments through the branches that is necessary to implement the redundancy payments, whether it be in the form as it is in Britain or some watered down version. The reality is, it will be killed off in this present system. We can say now, before the general election, ‘Ah, yes, as long as it is going to be in a form that suits the Isle of Man I will go for it’ but as soon as the general election is over I can tell you, hon. members, it is as dead as a duck — dead as a Bombay duck because the simple reason being is that there will not be the heart or the political motivation to do anything about it.
I am in total agreement with the members who said they are not going to support it, like the hon. member for Rushen. I agree with it — that is the principle he stands on. You are either for or against it, but just for political purposes, to turn round and say you are prepared to vote for it here does nothing for the credibility of Tynwald Court if it is the Government. It has been done before, it is a matter of record, and, Your Excellency, as far as this debate is concerned reference has been made to what went on all those years ago and I want to give a clear picture of what the story was up to this date. I will support a member, I will agree with him in his right to be against redundancy, I will be with those who are voting for redundancy, but I do not want the political situation of voting for the principle here knowing full well you will kill it off dead when it gets to legislation, the draftsman situation. I do not want that, and I think we have pulled enough cons on the public not to have another one put on to them.
Your Excellency, just to go through the history of this one so we know where we are — have we have improved in these 20-odd years? — let us find out what happened. In 1965 the United Kingdom Parliament enacted a Redundancy Payments Act providing a statutory right for redundancy payments for employees with a minimum period of continuous employment for two years. The Act came into force on 6th December 1965 and it required employers to make lump sum compensation payments called ‘redundancy payments’ to employees dismissed because of redundancy. It also requires those payments to be made in certain circumstances — I want members to note this, in certain circumstances — to employees who had been laid off or kept on short time for a substantial period. The amount of the payments were to be related to pay, length of service and the employer and to the s age. The Act also established a redundancy fund financed by contributions collected with the employer’s national insurance contribution. Employers required to make a statutory redundancy payment would claim a rebate of half of the cost from the fund. The provisions of the redundancy payments scheme, which is administered by the Department of Employment, have been modified in certain respects over the years, significantly so in relation to the employer’s rebate, and the statutory arrangements are now contained in Part V of the Employers Protection Consolidation Act of 1978.
When the United Kingdom Governments proposals were announced in 1965 Tynwald passed a resolution. I will read that resolution, Your Excellency: ‘That Tynwald approves the introduction of legislation to require employers to make
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payments to employees who have become redundant and to establish a fund under the management control of the Isle of Man Board of Social Services and financed by employers’ contributions from which employers may recover a proportion of such payments provided that the introduction of such legislation be deferred until similar legislation has been in operation in the United Kingdom for a period of one year’. That is all those years ago; we were talking then about the similar resolution we have now. The provision to the resolution was introduced; as we are having amendments now, so an amendment was made in the debate. The Redundancy Payments (Isle of Man) Bill 1970 was eventually introduced, based on the United Kingdom provisions, but at a sitting of the Keys on 3rd November 1970 it was agreed to accept the motion that the Bill be laid on the table, and we know what that means in Parliamentary terms as has been expressed — it was sent to Hell, virtually; it was sent to the incinerator. No legislation has since been introduced into the legislature aimed at providing an Isle of Man redundancy payments scheme, so all those years when members talk either for redundancy or against it — the situation we have let rest sine die; nothing has been done by anybody, by any group of individuals, nobody.
Now we come to the situation where recently questions have started to be asked — how much money was in the fund? On several occasions I and my predecessor of the Board of Social Security have answered these questions. Keep aiming at how much money is in the fund, and the answer is roughly £2 million but, Your Excellency, nothing was done in that time, since 1970. Nobody got up and moved a similar resolution as the hon. member, nobody even went forward to ask for a Private Member’s Bill which they could have done — any member could have done, but the permission of the Finance Board would have been required, but nobody did that, took that action. I cannot find any record of anyone doing that.
The United Kingdom Act in 1965 was seen as part of a wider programme of man power measures established by the Government of the day to make it easier for workers to change their jobs in accordance with the needs of the technical progress that was in being at the time and still is. The Government was endorsing a view which had been put with increasing force by responsible opinion on both sides of industry and which enjoyed wide political support. What adequate financial provisions for redundancy could be made or was necessary to ensure the welfare of the work force from both sides of industry?
We in the Isle of Man only talked about it, we did nothing. Redundancy payments were seen as compensation for the loss of security which redundancy entails, loss of seniority and promotion prospects, loss of pension rights and other fringe benefits, exposure to further redundancy through ‘last-in-first out’ procedures and expenses of moving from the one job to another and separation from your traditional workmates. It has been said that the primary purpose of the Act was to mitigate or reduce the resistance of workers to industrial re-organisation and the re-employment of labour. However, subsequent studies have shown that most redundancies are the consequences of economic causes and not the mobility which would lead to the desired organisational and technical changes.
Redundancy Payments — Debate Concluded TI262 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986
Your Excellency, that is what we must understand; when we vote here today, what are we actually going to get at the end of the day? Is the system that we are talking about or wishing to bring in going to benefit the employees? Are they the same category as their counterparts in Britain? Do they deserve the same rights? And will the changes that have taken place in Britain be mirrored over here with all the problems that have been outlined by members about employers paying their members of staff off so they can avoid paying redundancy ? Is this a possibility? I would suggest in a lot of cases the answer is ‘yes’, but you must accept that when you are voting for redundancy.
In March 1978 the board of which I am now chairman called a meeting of the representatives of the Trades Council, the Employers Federation, the Chamber of Trade, Commerce and Industry for the purpose of reviewing the employment legislation which was then in force in the United Kingdom and for consideration of which aspects of the legislation were desirable for the Island. The general consensus of the meeting was that whereas industrial relations were not then a problem on the Island steps should be taken to set up the necessary legislation to avoid delay should any serious disputes arise. The immediate concern was the introduction of a Contracts of Employment Act followed by other legislation if considered necessary.
Your Excellency, what we have in front of us now is probably the last stage of what has happened in Britain. If this hon. Court is to say today that they support the resolution, let us not kid ourselves, I am certainly not prepared to see a re-run of what happened in 1965 and 1970. I would go from this Court, because one of the reasons this resolution is in front of you today is, after a meeting of the Legislative Council and the letters exchanged between that group, the Executive Council and the Board of Social Security, we were asked to test the water, to test the feeling in this hon. Court on redundancy payments, and as my board felt it was not their job to carry out the opposite of Executive Council, we went back to Executive Council where, having put forward the idea of enhanced unemployment benefit, the hon. member, as was his right, decided he could not support that and from that, his own feelings and his party feelings, has come this resolution which I will stand up and support. He has that right, he is carrying it out, but should this resolution go through, hon. members — and I will be voting for it — it would be a pointless exercise to try and bring in the next resolution which I will be moving in this hon. Court.
But with the time factor involved I do not believe that the workers in the Isle of Man will benefit anything from the debate here today other than to see this hon. Court as passing off another decision to the next House of Keys, whoever they might be. If we honestly believe in redundancy payments, Your Excellency, I would expect from this Court within a matter of weeks — because it can be done that quickly — for a Bill to be on the table in the House of Keys so that this House, these elected members, will have to support the resolution that they are supporting today. They will not be able to leave it until after the election and then change their minds, they will have to support the statutory method of getting it into functioning and operational in the Isle of Man, in their branches, and those who do not, I would
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suggest, will have a lot to answer for on public platforms. That is the decision to be taken — not on the resolution but whether they support the legislation when it gets to the branches. Any member who thinks that they can get through the next election by saying they support enhanced redundancy money here — and they have done in Tynwald — and then come back afterwards and vote against the legislation, I think will be asked to resign from the House because that has been made clear by me, that as far as I am concerned it is redundancy we are talking about, not pieces of paper passing from one branch to another and I hope the Court accepts that because, Your Excellency, if this goes through I will certainly withdraw the resolution in my name as I will take it as a vote from the elected members of the people in this House that they wish that legislation be drafted as quickly as possible and put in front of them so they can complete the functions of the branches and get the legislation working.
The Speaker: Your Excellency, I am pleased that the hon. member who has just resumed his seat has given us something of the background of this resolution, and it is interesting to note that after the contributions that have been made here today Executive Council have not taken up this issue of redundancy payments. They have gone away from it as Government policy and have left it to one of their members to spear-point the issue, if you like, in this House and to bring it to the attention of us all. Now do the Executive Council feel that there is no need for redundancy payments in the Isle of Man at the present time ? Do they feel that there is a modified system necessary? Or do they feel that the system we have, or the system in fact as spoken of by the hon. member for Ayre earlier, would be the proper system to follow? We have no guideline on this at all. Executive have abrogated their responsibilities — not for the first time, I might add — and we come to a stage this afternoon where the hon. member of Council, having put this resolution before . us, has in fact in real terms produced a document that has very little meaning.
Now let us look at it. “Re-affirms its policy of establishing a system of redundancy payments” — what system? “and requests the Governor in Council to bring forward appropriate enabling legislation at an early date”, hon. members. Now if you honestly believe that an early date is going to be this side of the election you have another think coming, because an Executive who has no stomach whatever for this issue is not going to push this stuff along and embarrass itself with this issue at all. What you are going to find — yes, the resolution will carry but there will be no implementation, the early date is pie in the sky.
Now I noticed that hon. members tended to belittle the contribution of the hon. member for Rushen and portray it as being a sidestepping issue; that was the impression I got, but obviously they have failed to realise that what he was doing was in fact portraying a positive way ahead for this Court. He was in essence, as I understand it, saying to the Court, ‘You wish to have redundancy payments, I support redundancy payments but let us, as a Court, put together the machinery that we believe is effective machinery for the Isle of Man and not follow blithely in the United Kingdom footsteps and let us have that portrayed to us at a sitting of this House later in a session so that we in turn can command a form of legislation for our successors, whoever they may be, in this Chamber in the next House’.
Redundancy Payments — Debate Concluded TI264 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986
Now the really positive aspect of this is that it does two things: it has the issue examined on a broad basis by a committee of the House who are interested, obviously, in the subject; it is going from that committee to produce the legislation. The legislation which we have no guarantee will be produced under this resolution is going to be capable of examination here and determination as to whether it can become an election issue. It goes forward as an election issue enabling the people of this Island to determine whether they want or not the proposed pattern. Now my hon. colleague is laughing — I say to you, sir, that means nothing to me, it means nothing, but what the hon. member for Rushen . . . now if you will amend it — and I am prepared to test the House, if you like, and say, ‘within one month produce your legislation’. I am prepared to do that today.
Mr. Delaney: And as Speaker will you put a top priority on the House of Keys Agenda?
The Speaker: The House of Keys Agenda, hon. members — I will just make this point, Your Excellency, which is digressing — is determined in consultation and the viewpoint of Executive Council is taken into account when placing items in priority on that Agenda, and representations made by all members — Executive, Finance Board and everyone else, as they well know — are taken into account.
Now if the House is determined to push this one on, I would say let us have the appropriate enabling legislation within one month. You say it cannot be done possibly; I say it can. We can then consider that legislation and determine whether or not it is appropriate for the Isle of Man, but you either accept it on the basis of going back to another House with time to consider the format or you draft legislation on what is known here now and have it available quickly. If the House is so realistic about this one, it needs to do one of these things and not to accept the resolution as printed; it is not firm enough.
Now, Your Excellency, I find myself in a dilemma in that, as I understand it, the amendment has not been seconded . . . (Interruption) I am perfectly free, Your Excellency, and I do support the sentiment entirely, but if this House wants to respond to the challenge I am also prepared to move a further amendment to see if anyone will second it and take it on that instead of ‘at an early date’ we have ‘within one month’ and that is the legislation here. Now, Your Excellency, with { your permission I will move the amendment:
That for the words ‘at an early date‘ substitute ‘within one month'.
Dr. Mann: I second that.
A Member: You have already spoken!
The Speaker: This, Your Excellency, if it is seconded, would enable hon. members to consider whether or not the legislation that is before them is appropriate
Redundancy Payments — Debate Concluded TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1265 for the Isle of Man, whether it is the sort of legislation that they themselves can justifiably support and take along as part of Government policy. We come back to Tynwald giving a lead to the Executive and showing them how they should perform in the execution of their responsibilities, giving leadership which has not been forthcoming on this issue. There has been leadership from behind in every sense of the word. So, Your Excellency, with your permission I beg to move that amendment and hope that the Court will support it so that the issue will not be deflected but will be capable of consideration and determination within the life of this House. The Governor: Hon. members, just to make a clarification here, it has not been seconded by someone who has not spoken. Mr. Ward: I beg to second, sir.
Mr. Gilbey: Your Excellency, I apologise that I was not in this hon. Court this morning. I am very glad, however, that I have been in time to hear the very interesting speeches on this vital subject this afternoon. I am sure that everyone is united about the appalling effects of both redundancy and unemployment, so there is no need to touch on those. However, I believe that in all things we should deal with the causes where we can, not the effects. The causes of both redundancy, or the bad effects of it, and unemployment are lack of enough good, sound, permanent jobs and I believe we should be concentrating our efforts even more than we are at the moment, although a lot is being done, to deal with this problem to get more jobs rather than thinking of curing the problems caused by lack of jobs. Leading on from this, it is a fact that many forms of redundancy legislation which lead to charges on private employers, far from providing more jobs, actually reduce job opportunities and this is an absolute fact, and to say so does not mean one has no sympathy with the unemployed; it means one wants to use realistic ways for providing more job opportunities. I know of many cases across the water where firms have been forced into final liquidation because they had to pay large redundancy bills on reducing their workforce. But for those redundancy bills they might have been able to continue with a reduced workforce, but the costs of redundancy payments has forced them out of business, and I am glad to see a man who has experience of this nodding his head. Again, one of the great attractions of the Isle of Man to industrialists is that we do not have the welter of United Kingdom employment legislation, and the more of such legislation that we copy and bring in the more difficult we will make the job of the Chairman and members of the Industry Board to include the hon. mover of this resolution.
Finally, it is a fact that many employers are deterred from taking on more people because of the fear they will have to make redundancy payments, and therefore when they could increase their workforce they do not do so for fear of having to make redundancy payments when the cycle turns and people have to lose their employment because of a turn in the manufacturing or economic cycle.
Now all these are economic facts and reasons for not supporting the hon. member of Council’s resolution. A further and equally important reason is that raised by
Redundancy Payments — Debate Concluded TI266 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 the hon. member for East Douglas, Mr. Delaney; it is perfectly clear to me that it would be madness of the worst order to try and rush in legislation of this importance. Whatever our views about the desirability of redundancy legislation, surely we would all be united in agreeing that if there is to be such legislation, we must get it right and we must be sure it is the right kind of legislation for this island, and I do not believe that one can possibly do that if one is talking of rushing forward a Bill in a month, and therefore I agree with the hon. member for East Douglas that there certainly is not time to bring in proper legislation before the next election. If we try, we are in danger, as in too many things, of getting a botched up answer which is not the right one. It is for all these reasons that I support the proposals contained in item 17 of the Agenda, the enhanced unemployment benefit. Now this has many advantages: the cost of it is not met by private employers in any shape or form; furthermore V I have made most careful enquiries and it is not met by the general revenues of this island at a time when they can ill afford extra calls upon it. It is effectively met by reducing the Government’s contribution to the national insurance fund, and this can only be done because there are moneys in that fund that have been paid in respect of redundancy contributions, and therefore economically it is right for the private sector, it is right for the public sector, and I also believe that it is right for the people of this Island because it is a scheme which can be brought in very quickly — I think it is April — very quickly indeed, so therefore it is not jam tomorrow, it is something positive today and I think it is more in the interests of the people of this Island to have Mr. Delaney’s bird-in-hand rather than the hon. member of Council’s bird-in-a-bush. The Governor: Mr.Lowey to reply.
Mr. Martin: Your Excellency —
The Governor: You did not catch my eye in time, Mr. Martin.
Mr. Lowey: Well, Your Excellency, I have been accused of quite a few things today. I was accused . . . I was surprised that an hon. member would think that I would be, if you like, something from John Wayne, shooting from the hip, so to speak — The Speaker: Your Excellency, on a point of order, sir, is the hon. member' replying?
Mr. Lowey: I am, sir.
The Governor: He is, Mr. Speaker.
The Speaker: I understand, sir, one of my hon. members wishes to speak to the resolution.
The Governor: I had already asked Mr. Lowey to reply before he caught my eye, Mr. Speaker. Is that not the Standing Order of this House?
Redundancy Payments — Debate Concluded TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1267
The Speaker: Could I ask for Your Excellency’s generosity in the interpretation of Standing Orders, sir, so that my members on such a vital issue might have the opportunity of speaking?
The Governor: Yes, Mr. Speaker, I will bow to your wish but, hon. members, I do think you would want me to try to enforce Standing Orders as a point of principle in order for us to get through the Agenda we have before us. Mr. Martin, in these exceptional circumstances you may address the Court.
Mr. Martin: I thank you, Your Excellency, for the privilege of speaking when I was ruled out of order. I will be brief. What I wanted to say, Your Excellency, was that I support wholeheartedly the last speaker. I believe that he has weighed up the situation quite correctly, and if this hon. Court has a will and a wish to help the people who are unemployed, who are made redundant or whatever way we want to put it, then the right course of action, I believe, is to support item 17 on the Agenda — that is as it is put forward by the member for East Douglas, Mr. Delaney, the Chairman of the Board of Social Security.
The one thing that has surprised me in the debate today, Your Excellency, is the fact that although we have spoken about the employees and the hardships that they do have to suffer from time to time, the one other aspect that does not come out is the self-employed person. The Isle of Man is built up of a large number of small businesses and self-employed people and these self-employed people, if through lack of trade, lack of business, they are put out of business, cannot even claim unemployment benefit. Here we are trying to give large sums of money to employees — through, maybe, lack of business they have had to be paid off; we have not catered for the self-employed man who, through similar circumstances, has had to forego his business where he has tried to encourage business, to have a number of employees and give work and yet he cannot even get unemployment benefit.
May I suggest to the hon. Court, Your Excellency, just in finishing off, we oppose that both the resolution in front of us and the amendment and go for Item 17 on our Agenda. I think it will come in and be paid on 7th April, I think. Thank you, Your Excellency.
The Governor: The hon. member of Council to reply.
Mr. Lowey: Thank you, Your Excellency. ‘A bird in the hand is worth more than one in the bush’ and ‘we must not rush our fences’ says the hon. member, Mr. Gilbey. Twenty-one year’s waiting is rushing your fences — I would hate to see, in racing parlance, to see what a considered judgement would be if 21 years is not long enough. There is a simple matter which he has overlooked, and that is the people who are contributing and have contributed from day one to a specific fund and it has not been paid out. That is number one.
Can I also say to Mr. Speaker, it was not my intention, sir, when I phrased the resolution for enabling legislation at an early date — I put that in as the best way in which I could .. . I was not putting that in, if you like, as a safeguard for further
Redundancy Payments — Debate Concluded TI268 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 talks. As I said in my opening remarks, what would be fatal in this instance would be once again to practise to deceive, to promise only to let down. I am quite clear in my mind, if this resolution is supported by the Court, that legislation will be introduced. The only thing that will prevent that from being introduced will be the will of this Court. It is the will; if we want it to be done it will be done and I can highlight that by showing how we have got legislation through almost in one day recently — passed in the Keys, up to the Council and passed; it can be done if the will is there.
I have got a feeling . . . and, as I said in my opening remarks, I did not want to be contentious, the main reason why I am asking for this to be dealt with today is for simple justice. All of us are interested in good working relationships and practices and I believe this legislation will assist in that, and I do understand it will be extremely difficult. I understand the fears but, as the hon. member for East Douglas did say, part of the debate today reminded me nothing is new in this Court. It is remarkable how little attitudes have changed, whether it is on my side or on the opposing point of view. All I can tell you is we all have a vested interest in getting the climate right for us to flourish. There is no doubt at all, hon. members, that we have a growing disenchantment with a lot of people that are employed that think they are being short-changed. You may say that is nothing new. All I am telling you, take it from me that you are getting moderate people now thinking along militant lines, and that would be fatal for us, for the image of the Isle of Man, for everyone in it. I am saying, in a positive way, that this particular scheme has positive advantages.
If I may say, Your Excellency — and I am not going to reply to all hon. members because I honestly believe most members will have made their minds up no matter how eloquent a speech that I may make, and I do not make many of them — the reality is that if you take Mr. Walker, it saddened me to hear him say that . . . really his arguments were floored in two respects, if I may say so. First of all he said, if we take the building industry as the major industry that has already re-structured itself without this advantage, well, if that is the case .. . (Interruption) No. Just for the discusssion we now have the situation where it has sorted itself out into a level which both of us agree could afford to be a bit bigger at the moment. If that is the case, then the problem is solved in that industry but I do say to the hon. member, my belief in a changing world that is changing even as we set here the technology and various things in various industries is changing all the time, ana therefore there is a need as a final safeguard. There are many industries that have changed without getting rid or discarding its labour by re-deploying them in various way. There are other industries which that cannot assist and help.
I do believe that we have duty where we have a scheme, as suggested, and I was deliberately vague when I said . . . and again to my friend from Middle, Mr. Payne — he did say, ‘Are we having the United Kingdom in total or are we looking for a Manx system?’ I am quite prepared to look for a Manx system for one very good reason. In the nine European countries — that includes the United Kingdom — the United Kingdom’s systems are the lowest. So if you are asking me to say that I wanted to tack myself onto the lowest, then I would say to you that I am looking
Redundancy Payments — Debate Concluded TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1269 for what is most advantageous to the Isle of Man because I am here legislating for the Isle of Man. Therefore I am saying to you that I am quite happy to bring in a system that is pertinent and relevant to the Isle of Man. That is what is says, that is what it meant.
Please do not look for anything other than what is in the resolution; there is nothing else in the resolution, but what I do say, as a member that decided in Executive Council, I may say, to oppose the proposals from the Board of Social Security — you all know I did and I did so, not because I did not want something done but because I felt it would be wrong again, and in answer to my hon. friend, Mr. Gilbey, who says that this particular scheme that will be debated later that is on offer — again 1 find it amazing that the amount of mohey is only half of the contributions that the workforce are putting in. Is that justice? Is that justice as we see it?
Mr. Gilbey: I do not object to increasing it.
Mr. Lowey: Well, with the greatest of respect to the hon. member, he did not say that. But the reality is that whenever we give the workforce an offer, it is always less than. Therefore, I maintain . . . and as I said in my opening remarks, Your Excellency, I do not want to get sidetracked into what are the terms and conditions, because whoever Executive Council decide to put — and I would urge the Court to accept the resolution, as printed — I will accept Mr. Speaker’s recommendation because that does actually give a time limit to it. It is a bit quicker by a week or two than I would have liked, but that it no mean thing or bad thing either, so I will urge you to support the Speaker’s amendment.
I told my friends on Executive Council that I would be bringing forward this resolution and I apologise to the Court that it was not here two months ago, but then I am sure you all know that we have all got pressure of work and it is because of pressure of work that I have not been able to bring it forward until today. Knowing that, that, I believe, is why Executive Council have not come forward with a resolution, knowing that I was bringing one and laying it before this Court.
I do say again to my good friend, Mr. Walker — and he was absolutely right when he said that he stood at an election and told the people of Rushen that he would not support a redundancy payment scheme, and I would remind my good friend that I too stood in that election to those same people and I was elected along with him, showing the good sense of the voters of Rushen knowing to get their team together! (Laughter)
Mr. Delaney: Or how gullible they are!
Mr. Lowey: Well, gullible or not, sir, I think I managed to top the poll on that occasion. I honestly believe that when I come to Mrs. Christian and her valuable contribution — because I do know what an interest she has taken as a former Chair man of the Board of Social Security in this matter — I disagree with her fundamental approach but I do accept that she has had a lot of experience and looked at it from
Redundancy Payments - Debate Concluded T1270 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 the inside. She says, and I quote, she is ‘much more interested in a fair day’s pay for a fair day’s work and the work ethic’. All of us would agree with that, but again she really dodged the issue because we pay the United Kingdom way but benefits — no way. I am summarising in a sentence, I think, her convictions. She also mentioned that there were some conditions that were offered to people in the public service that perhaps we should not have offered, but I would question, why did we offer those conditions in the first place? I would suggest we offered them because we thought, as an employer, they were both reasonable and fair. If they are reasonable and fair to that section, then all I am saying is, as a Government, we should be seeing ways of extending that fairness and justice to the rest. I would say, as I said, Your Excellency, that a lot of the people who supported the principle need the courage of their convictions to say the principle is right the time is right, and I believe we will not improve the situation in the outside world with employers j or employees if we dally. That is why I am attracted to the Speaker’s amendment that we will, within a month, bring forward schemes for a redundancy scheme for the Isle of Man. Positive, plus.
A Member: Legislation.
Mr. Lowey: Yes, indeed, legislation — I am not dodging that one either; not a scheme, legislation to implement a scheme for the Isle of Man. That way I think it is positive and I again agree with my hon. friend from East Douglas, if the implication was that we were trying to put off a decision until a new House comes in. I do not think that is right, fair and proper, and certainly was not intended by me in moving this resolution. If I had wanted that I think I would have remained silent and gone along with the recommendation of the Board of Social Security.
Your Excellency, I am not going to go on any further. If there are any points, because I think all the points have already been made — I think hon. members have made their minds up which way they are going to vote. My final words to you would be: support the resolution, support the amendment of Mr. Speaker and, when it comes forward next month in the branches, support that legislation.
Mr. Delaney: On a matter of clarification before we vote, Your Excellency, the hon. member in his summing up gave some understanding he would have some other system other than the one we pay for through our national insurance contributions { into the Exchequer which raised the debate in the first place — the £2 million-plus. Are you saying now, sir, is that the objective to get the same for our Manx workers as the British worker enjoys? I need that clear.
Mr. Lowey: I would say that that is a framework. Yes, indeed, the lowest.
Mr. Delaney: That is all I wanted to know.
The Governor: Hon. members, I will first put to you the amendment standing in the name of the hon. Mr. Speaker, to substitute the words ‘within one month’ at the end of the motion for the words ‘at an early date’. Will those hon. members in favour say aye; those against say no.
Redundancy Payments — Debate Concluded TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1271
A division was called for and voting resulted as follows:
In the Keys —
For: Messrs. Maddrell, Payne, Karran, Cringle, Faragher, Brown, May, Cretney, Delaney, G.V.H. Kneale, Irving, Bell and the Speaker — 13
Against: Messrs. Quirk, Gilbey, Mrs. Christian, Messrs. Morrey, Walker, Martin and Dr. Moore — 7
The Speaker: Your Excellency, the amendment carries in the House of Keys with 13 votes being cast in favour and seven votes against.
In the Council —
For: The Lord Bishop, Messrs. Lowey, Ward, Dr. Mann, Mrs. Hanson and Mr. Callin — 6
Against: Messrs. Radcliffe and Anderson — 2
The Governor: Hon. members, in the Council, six votes in favour and two against; the amendment therefore carries. I will now, hon. members, put to you the motion standing in the name of the hon. member for the Legislative Council, Mr. Lowey, as amended by that amendment. Will those hon. members in favour say aye; against, no.
A division was called for and voting resulted as follows:
In the Keys —
For: Messrs. Quirk, Maddrell, Payne, Karran, Cringle, Faragher, Brown, May, Cretney, Delaney, G.V.H. Kneale, Irving, Dr. Moore, Mr. Bell and the Speaker — 15
Against: Mr. Gilbey, Mrs. Christian, Messrs. Morrey, Walker and Martin — 5
The Speaker: Your Excellency, the resolution carries in the House of Keys, sir, with 15 votes being cast in favour and five votes against.
In the Council —
For: The Lord Bishop, Messrs. Lowey, Ward, Dr. Mann, Mr. Anderson, Mrs. Hanson and Mr. Callin — 7
Against: Mr. Radcliffe — 1
The Governor: Hon. members, in the Council, seven in favour and one against; the resolution therefore carries.
Redundancy Payments — Debate Concluded T1272 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986
ENHANCED UNEMPLOYMENT BENEFIT SCHEME 1986 — MOTION WITHDRAWN The Governor: Hon. members, we now require a decision on item 17.
Mr. Delaney: Your Excellency, my board has achieved what it set out to do and it has also achieved the objectives of Legislative Council and I hope the objectives of the hon. members of this Court, and as they are obviously will be now, because of the determination and the majority feeling for redundancy payments, I withdraw item 17 as laid down on the Agenda. Mr. Gilbey: Your Excellency, is it right that this item should be withdrawn? We have often seen motions passed in this hon. Court which, as the hon. member for East Douglas himself has said, never come to fruition. A further point is that with the best will in the world, this cannot come to fruition probably until the end of the summer to get the Royal Assent. Why should people not get the benefit of the scheme put forward by the hon. member for East Douglas in the meantime? After all, if a better scheme is produced, his scheme can always be withdrawn at that stage. Why remove the benefits of his scheme for people in the meantime?
The Governor: Before you answer, I do not want to get involved in a debate now but I want to give the hon. member for Ayre a chance to join in this comment.
Mr. Christian: Your Excellency, my point is similar to that made by the hon. member for Glenfaba. This scheme is not the same as a redundancy scheme. It is one which has been worked on for a very considerable length of time by the Board of Social Security with those participating both from the employers and employees’ side, and if anybody will feel a betrayal it will be those people who do not even see this scheme going through at this stage. I really feel, Your Excellency, it covers a much wider scope than the redundancy scheme does and I would like to see it put to the floor. The Governor: Hon. members, before Mr. Delaney answers I must say to him that he is not obliged to move item 17, and if he decides not to move item 17 there is absolutely nothing this Court can do to oblige him to do so.
Mr. Delaney: Your Excellency, I am the servant of this Court. I was made the Chairman of the Board of Social Security by this Court. I have discussed this matter with my officers; I know the implications. I am aware that the members who voted against redundancy would like to see some alternative; that is why it was put down, in part, as an alternative. Executive Council are aware of the situation as I have brought it to them. I could do nothing other than serve the Court, and to put this forward knowing how strong the feelings are — and the vote reflected that for redundancy payments — I am going to spend my officers’ time now working to make sure redundancy payments as required by this Court, are brought in.
Mr. Gilbey: Your Excellency, though the hon. member says he wishes to serve the Court, would it not be fair if he puts it to the vote at this Court to see whether they would like this matter to proceed or not?
Enhanced Unemployment Benefit Scheme 1986 — Motion Withdrawn TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1273
The Governor: Hon. members, I must insist. The Standing Orders of this hon. Court are that if a member wishes to withdraw a motion and not put it he may do so, and this is the decision that has been taken by the Chairman of the Board of Social Security.
CONSTITUTIONAL ISSUES COMMITTEE - REAFFIRMATION OF 1981 RECOMMENDATIONS — APPROVED
The Governor: Item 38. I call upon the hon. Mr. Spealcer.
The Speaker: Your Excellency, I beg to move:
WHEREAS on 14th July 1981 Tynwald approved the Second Interim Report o f the Select Committee on Constitutional Issues which recommended inter alia —
“Constitutional
(A) That Tynwald reaffirms its constitutional objective namely:—
“The general objective for which Tynwald strives is to promote and continue the evolution o f the constitutional relationship between the Isle of Man and United Kingdom towards ‘more complete self-government’ in accordance with the declared and accepted policy of the United Kingdom for the self- determination of the peoples of dependent territories. This objective thus includes not only the right and the principle o f self- determination, but also, in application o f them, assured autonomy in respect o f the Island’s internal affairs.”.
(B) That in furtherance o f this objective, the Isle o f Man Government should now seek —
(!) recognition as —
(a) a fully self-governing territory, having British Nationality;
(b) a territory for which Her Majesty’s Government in the United Kingdom would undertake responsibility for matters of defence, external affairs and the Royal Succession (the essence o f the relationship being one o f partnership entered into freely, with the acceptance by the United Kingdom of an obligation to consult on those matters wherever possible).
Constitutional Issues Committee — Reaffirmation of 1981 Recommendations — Approved T1274 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986
(ii) increased participation by the Island in the work of appropriate Commonwealth, European and International organisations where such participation may be in the Island’s . best interests.
Financial
Consideration should continue to be given to —
(A) the establishment o f a seperate system of indirect taxation;
(B) further efforts to pursue the Island’s claim for its equitable share of Continental Shelf Revenues;
(C) an alteration in Exchange Control legislation in so far as it affects the Isle o f Man.
Functional
(A) delegation o f licensing powers for wireless telegraphy be sought;
(B) the A irports Board consider whether any functions should be transferred relating to Civil A viation;
(C) territorial waters be extended to 12 miles with control o f sea fisheries vested in Board o f Agriculture and Fisheries, together with any other rights in the appropriate Boards o f Tynwald. ”.
AND WHEREAS at its sitting on 14th October 1981 Tynwald approved immediate action being taken to negotiate the alternative constitutional status recommended by its Constitutional Issues Committee and approved by Tynwald.
NOW THEREFORE Tynwald reaffirms its commitment to the constitutional objectives as approved on 14th July 1981 and confirmed on 14th October 1981 and resolves that Her Majesty’s Government o f the United{ Kingdom and Northern Ireland, as the sovereign territory o f this dependency o f the Isle of Man, be so informed.
This resolution seeks to re-affirm the existing constitutional position and policy of this Government and I regard that as a very essential thing for any Government to do from time to time. As the reasoning for such policy was portrayed in the Second Interim Report of the Constitutional Issues Committee and that committee’s recom mendations were adopted by Tynwald, I have, in order to save the time of the House, asked the learned Clerk of the House to circulate that report and the speech with which I introduced those recommendations when, at that time, I was chairman of that committee. They have been circulated to all members. All members will understand what the policy is about, there are no changes in text and accordingly.
Constitutional Issues Committee — Reaffirmation of 1981 Recommendations — Approved TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1275
The text o f the Speaker’s speech o f 14th July 1981 (Official Report o f Proceedings o f Tynwald p. T1499) is as follows:
Before formally moving the resolution standing in my name, I would ask hon. members to turn to the final page of the report which would normally have been numbered 13, and indicate to them that there has been an error made in relation to the signatures to the report. Mr. G.V.H. Kneale is not a signatory to the report, and although Mr. Kneale on 30th June agreed the text for circulation and subsequently confirmed that afternoon he was entirely happy with the draft agreements, and agreed to the issue of the report, he has not signed it. In moving the resolution which stands in my name, sir, I would say to hon. members that on 19th January 1979 this hon. Court defined its constitutional objective as one which sought the evolution of the constitutional relationship between the Isle of Man and the United Kingdom to a stage where, by the exercise of self-determination, there would be assured autonomy in respect of the Island’s internal affairs. It then, hon. members, became the responsibility of the Select Committee of Tynwald on Constitutional Issues, consisting of Messrs. Christian, Irving, Kermeen, Kerruish, Kneale and Lowey, along with myself, to discharge the responsibility which, since February 1978, you have placed upon us, namely, that of considering and reporting on all matters of constitutional importance. Thus, it has fallen to our lot to give consideration to the manner in which your wish could be fulfilled. It has not been an easy task, as what has been sought and what is recommended represent, I believe, the most significant constitutional advance since the Vikings left our shores some 719 years ago. But, hon. members, significant only because over that period of time Tynwald, despite its maturity, has not been accorded the same recognition as other and far younger institutions in the British Commonwealth. Now, as we examined the alternatives open to us with complete independence as the ultimate possibility, we naturally took into account such factors as the manifest loyalty of the Manx people to the Crown, the attachment of our people to a constitution that continues to reflect the leading features of the old Norse policy, to the threads that bind us by heart and tradition to our neighbours in the United Kingdom. We have come forward with a recommendation which affords the Island the opportunity of adopting a most realistic stance in respect of a relationship to both the Crown and the United Kingdom, while at the same time achieving a status which, though falling short of independence, will, we believe, be acceptable in international law. In proposing today that the objectives you have instructed us to pursue be most appropriately achieved in the form of our recommendation, it is both necessary and helpful to look back and consider the manner in which our constitution has evolved. It is apparent that the origin of the constitutional connection between the Isle of Man and the Crown of England is obscure. We know the Island was, until 1266, under the general suzerainty of the Kings of Norway; that during the four centuries of Norse rule the Celtic and Scandinavian elements of the population became assimilated; that the Celts imposed their language on their conquerors and received from them the Norse system of government; that of this system the chief features were (1) the “Thing” or local assembly for management of local affairs; (2) the Tynwald or general assembly for management of insular affairs; (3) the Deemsters or Judges who were repositories of the law; and (4) the Keys whose province it was at that time to assist and advise the Deemsters. In 1266 the Island
Constitutional Issues Committee — Reaffirmation of 1981 Recommendations — Approved TI276 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 came under Scottish Rule, and after considerable negotiation was transferred to England after the Battle of Neville’s Cross in 1346, although there was no formal annexation by the English Crown and certainly no conquest or cession. The Island was granted to several Royal favourites by English Sovereigns of the 14th century until in the year 1405 Henry IV granted the Island and its regalities to Sir John Stanley, initially for life and later in perpetuity to Sir John and his heirs. The grant was in general terms, and the Stanleys, as Earls of Derby, while holding the Island off the Crown, styled themselves kings and only much later Lords of Man. For the bulk of the period of the Derby Lordship, indeed, from 1405 to 1660, English Sovereigns interfered little in the management of our Island, the Derby family being, after all, one of the most influential in the realm. The administration of justice was left entirely to the Derbys, and in executive government the Crown’s interest in the Island stemmed purely from the need to safeguard the Island’s strategic position which was important as regards the wars in Ireland. In the field of legislation few, if any, early Acts of Parliament referred to the Island, although sometimes such Acts were applied here, as was the case with the legislation of Henry VIII’s reign suppressing the religious houses. There was only one short period of direct administration of the Isle of Man by the Crown when between 1595 and 1609 there was a family dispute about the Derby succession to the Lordship. Otherwise, during this early period the Derby family was virtually the only source of administrative power in the Isle of Man, and Manx legislation required only the approval of the Lord of Man and not that of the English Sovereign. The restoration period, after 1660, shows a marked change in the Crown’s lenient attitude to the Derby Lords of Man. In 1663, for example, the execution by the then Earl of William Christian, better known to us as Illiam Dhone, a Manx official, Your Excellency, and popular leader, for his activities in the Island during the period of the Commonwealth, activities alleged to constitute treason against the Lord, led to a clash between the Crown and the Lord involving the threat by Charles II to recall the franchises of the Island. The Derby family were curbed in other ways by the Crown. In 1716 the Privy Council decided that despite the ample terms of the Stanley grant of 1405, a right of appeal lay to the Crown from the insular courts. The opportunity, hon. members, was taken by the Privy Council to examine closely the whole constitutional basis of Derby power in the Isle of Man, and a bitter dispute in the Island in 1721 and following years between the Church and Civil Government as to the spheres of their respective authority, a clash involving, as you may well remember, Thomas Wilson the famous Bishop of Sodor and Man, also required the mediating influence of the Privy Council. These problems portray the weakness of the Derby Lordship of Man. It was, in fact, beginning to outlive its usefulness, and the ending of the direct link between the Island and the Derby family came in 1736 with the death of the 10th Earl without any male heirs. The Lordship of the Island then passed to the 2nd Duke of Atholl who was descended from a daughter of the 7th Earl of Derby. In 1765, by an Act which is commonly known as the Revestment Act, the Lordship and Customs of the Isle of Man and its dependencies were bought by the Crown from the Duke of Atholl for £70,000, and an annuity of £2,000, incidentally in Irish money. The purchase did not affect the Duke of Atholl’s manorial rights in the Island and he retained his interest in the land revenues, the patronage of the Bishopric, and so on. Revestment, as we all know, has as its objectives the prevention of smuggling, but its immediate effect was to transfer the administration of the
Constitutional Issues Committee — Reaffirmation of 1981 Recommendations — Approved TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1277
Island to the Crown, and so subject the Island to the harassing commercial restrictions which the short-sighted policy of that time imposed on English dependencies. The people of the Island became discontented with the English methods of administration, and to mitigate their discontent as well as to propitiate the 4th Duke of Atholl, who had raised claims to a larger compensation than had been paid his father, the Duke was appointed Governor of the Island. For some time his administration was acceptable to the Islanders but his endeavours to increase his income brought him ultimately into unpopularity with them. His money claims on the Government which were investigated by a Parliamentary Committee in 1805 were met by the grant of an annuity of one-quarter of the Customs revenue of the Island. But still his relations both with the people and the Government were often unsatisfactory. Finally it was decided to buy out his own and his family interests in the Island, and this was effected in 1828, the price fixed being £417,114. It may be added that after the purchase the manorial rights, land revenues, were treated as part of the hereditary revenues of the Crown and placed under the Department of Woods and Forests. Now, from the Revestment until 1866 the Customs of the Isle of Man formed part of the general Customs revenue of the United Kingdom. The gross insular receipts were paid into the Exchequer and the expenses of the Island were defrayed partly by charge on the consolidated fund and partly from moneys voted in supply. Tynwald, however, maintained that the surplus of the insular Customs duties above the expenses of Government should be spent in the Island. The Treasury, on the other hand, claimed the right to use the surplus as they pleased. This subject of controversy, the Act of 1866 set at rest in favour of the Island. Nevertheless, the settlement of 1866, by which the Island recovered something of its self-governing powers, left a lot to be desired as far as the House of Keys was concerned. They claimed they were misled, that the powers granted them were not commensurate with their expectations. This dissatisfaction continued and assumed greater precision and volume in 1903 when a resolution in favour of reform was carried in the House of Keys, and a detailed statement of the changes advocated by the House was delivered to the Home Department by Mr. Hall Caine, member for Ramsey, and, of course, representing this House. A new House of Keys was elected in 1903 and without loss of time addressed itself to the question of constitutional reform. A Committee was appointed and a draft scheme prepared which on its presentation was unanimously adopted by the House. Some piecemeal and infructuous action followed and three years were to pass before all the demands of the reform party were collected into the Petition of 27th February 1907 which was duly presented to the Secretary of State for the Home Department, Hubert John Gladstone. It was not, however, until 1911 that Gladstone’s successor in that office, Winston Churchill, actually appointed the Committee which was to become known as the McDonnell Committee. The resulting report contains clear evidence of Tynwald’s desire to embark on a programme of constitutional reform and of particular interest to the Keys’ consciousness of constitutional advance in the colonies, as the overseas territories were known at that time. Advocating similar proposals they felt, and I quote: “ That the time has now arrived when the Imperial Government may properly give to the Isle of Man a larger and fuller control of insular affairs than they have yet enjoyed.” Interesting, hon. members, that it has taken some 70 years to achieve some of the objectives and only then through the examination, time and time again, of a dissatisfied Tynwald’s complaints by
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Committees or Commissions. The most significant changes, you will appreciate, have followed the recommendations of Committees of Inquiry set up as a result of pressures in the Island. In 1958 we had, as the direct outcome of the House of Keys plea for constitutional reform, the McDermott Commission. Its terms of reference were to inquire into and report upon the constitution of the Isle of Man and its working and to make recommendations for any changes considered desirable or practical. Many of their recommendations in respect of internal operation, such as the removal of the blocking powers of the Legislative Council and the setting up of an Executive Council, have been implemented and are reflected today in the operation of this Government. November 1967 was to witness the setting up of a Standing Committee to examine the constitutional relationship by the then Home Secretary, the Rt. Hon. Roy Jenkins, presently the Social Democratic Party candidate for the Warrington bye-election and the Committee was under the chairmanship of his Minister of State, Lord Stonham. It came into being as a result of a policy rift in the Island’s relationship with Her Majesty’s Government in the United Kingdom, brought about primarily by a remarkable display of prevarication in respect of broadcasting by that Government, coupled with its willingness to relegate our constitutional aspirations as a dependency to what I would describe as the relationship of a Government to a local authority administration. It was, hon. members, at this time that the broad policy of evolution that we continue to pursue today was first formulated. The Stonham working party had scarcely come to grips with the issues before it when it was overtaken by the appointment of the Royal Commission on the Constitution in 1969. Nevertheless, it had sufficient opportunity to comment on the relationship in a manner which made it clear that the hitherto accepted principle of “economy should not eat economy” was a myth as far as the United Kingdom was concerned and the Island could not expect any special special treatment from Her Majesty’s Government in cases where its policies were detrimental to the interests of the Island and that where such situations occurred, and I quote Lord Stonham: “The determinants of these policies and measures are of a different magnitude to any indirect consequences they may have on the Isle of Man or on anyone else.” Now, Stonham also recognised the ambiguous position in which the Island found itself in respect to international agreements, and I quote: “ It has already been demonstrated to my satisfaction and it has been for some time the view of the Home Office that the conflict between the law and practice of Treaty application as it affects the Isle of Man on the one hand and the constitutional relationship between the Isle of Man and the United Kingdom on the other, is ‘ unsatisfactory and should, if at all possible, be resolved.” But overtaken as it was, the Stonham working party, nevertheless, produced two ideas subsequently endorsed by the Royal Commission which could really have proved helpful to our relationship if Her Majesty’s Government had permitted them to function in the spirit in which they were conceived. The first was the Standing Committee on Common Interests designed to consider matters of mutual concern so that difficulties, and again I quote from Stonham, “may be resolved as they arise or if possible, in advance.” Her Majesty’s United Kingdom Government have treated the implementation of this proposal with remarkable lassitude and have, by their failure to maintain the spirit of the agreement, destroyed its credibility. Equally, a suggestion which sought a greater degree of co-ordination has been doomed to failure. Happily, by contrast, Stonham proposals which had had the effect of updating and modernising our form
Constitutional Issues Committee — Reaffirmation of 1981 Recommendations — Approved TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1279 of internal Government have met with a measure of success. However, in 1969, with the demands for evolution in their constitutional relationship growing more pronounced from Scotland and Wales, the Stonham responsibilities were transferred to a Royal Commission whose terms of reference were really to consider what changes might be necessary in the system of Government as a whole if it was to meet the needs and aspirations of the people. As far as the Isle of Man was concerned there was a negative outcome which is, I think, understandable if you examine the memorandum of dissent produced by Lord Crowther and Professor Peacock, who were unwilling to accept the Kilbrandon conclusions because, and again I quote: “Although our terms of reference also requires us to examine the economic relationships between the United Kingdom and the Channel Islands and the Isle of Man, there has, in fact, been no such examination. Without such information we do not believe one can make any worthwhile pronouncements on their future and, in consequence, we therefore make no such prounouncements.” So much for the pattern, hon. members, of evolution. At the end of the day we find ourselves a Crown dependency for which the Crown has the ultimate responsibility for the good government of our Island. The Crown acts through the Privy Council on recommendation of Ministers of the United Kingdom Government in their capacity as Privy Councillors. The Home Secretary is the member of the Council primarily concerned with the affairs of the Isle of Man. The ultimate control of the Crown over the Island at present extends to all matters pertaining to public order and the administration of justice and to ensuring that the public affairs of the Isle of Man should be successfully conducted. Thus, the Parliament at Westminster can, in exceptional circumstances, legislate for the Isle of Man. Now, Your Excellency, over the long years of Manx evolution in association with the Crown, the British, French, Dutch, Belgian, Spanish and Portuguese, all expressing at one time or another expansionist policies, became colonial powers. For Britain the days of empire waxed and as the needs of empire grew in importance a decision was taken in 1801 to separate Government business connected with the Island from Government business connected with the overseas territories. Responsibility for overseas territories was transferred from the Secretary of State for the Home Department to another Secretary of State whose role was eventually to become that of the Head of the Foreign and Commonwealth Office. No change was made in respect of the Island and the position remains unaltered to this day, a point I would emphasise that is of some consequence to us. Under its new department component parts of the empire avidly sought change. The new fledgling territories sought their freedom and the conquered territories demanded theirs and it was against this background that the concept of a Commonwealth based on free association was conceived. Of greater consequence still, Your Excellency, to mankind as a whole was the adoption at the United Nations Conference of International Organisations in San Francisco in 1948 of the Charter of the United Nations. Of particular importance to this Island was the fact that by 1960 there was growing concern amongst its members that the progress towards complete emancipation of many countries and peoples under colonial status was too slow and should be accelerated. The outcome of that concern was their declaration on the granting of independence to colonial countries and peoples adopted in December 1960. Now, Your Excellency, they produced, of course, a declaration, and following the declaration they declared that “the subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of
Constitutional Issues Committee — Reaffirmation of 1981 Recommendations — Approved T1280 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 fundamental human rights, is contrary to the charter of the United Nations, and is an impediment to the promotion of world peace and co-operation. AH peoples have the right to self-determination. By virtue of that right they freely determined their political status and freely pursue their economic, social and cultural develop ment. Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence. All armed action or repressive measures of all kinds directed against independent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence and the integrity of their national territory shall be respected. Immediate steps shall be taken, in trust and non-self-governing territories or all other territories which have not attained independence, to transfer all powers to the people of these territories without any conditions or reservations in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour in order to enable them to enjoy complete independence and freedom. Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the charter of the United Nations. All States shall observe faithfully and strictly the provisions of the charter of the United Nations, the universal declaration of human rights and the present declaration of the basis of equality, non-interference in the internal affairs of all States and respect for the sovereign rights of all peoples and their territorial integrity.” Hon. members, if justification is sought for our wish to advance further on the road of constitutional progress it is to be found in the declared policy of the highest international forum in the world, a forum that has been so intent on securing its objectives that it created a special Committee to implement that declaration, and that Committee, consisting by chance of a similar membership to the House of Keys, is, at the request of the Assembly, continuing to pay particular attention to the small territories and assists them by giving guidance as to the most appropriate ways to exercise the right of self-determination. It is, Your Excellency, against that background that your Committee has produced the report and recom mendations that are the subject of this resolution. We felt that on a matter of such importance as this, a matter of importance not only to this but to future generations of Manx people, you should be given the fullest information, and to this end the Appendices really contain a recital of the events which have preceded today’s consideration of this very important issue. We recount, if you look at the report, in the paragraphs leading up to 2.6, the outcome of your acceptance of our earlier recommendations embodied in our First Interim Report, and in paragraph 3.1 other matters that have fallen within our remit for consideration. We summarise what I would describe as the constitutional flow over the past 15 years, as it has been of great significance, and to facilitate its study we have attached an Appendix which should prove helpful. Moreover, we specifically draw your attention to the factor that has been constant, and that is the general objective of this Government, and I quote: “The general object for which Tynwald strives is to promote and continue the evolution of the constitutional relationship between the Isle of Man and the United Kingdom towards more complete self-government in accordance with the declared and accepted policy of the United Kingdom for the self- determination of the peoples of dependent territories. This objective thus includes not only the right and the principle of self-determination but also, in application of them, assured autonomy in respect of the Island’s internal affairs. Of course,
Constitutional Issues Committee — Reaffirmation of 1981 Recommendations — Approved TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1281
hon. members, if we are to have assured autonomy it rightly assumes increased responsibility, but responsibility is something that we, unlike perhaps some of the newer Member States of the Commonwealth, for instance, are used to shouldering. So if there are changes muted as a result of this resolution it is' right that we should identify them, and in our report we do so, believing that they will emerge in the constitutional, financial and functional aspects of our administration. Now, Your Excellency, I suggest that we look first, appropriately, at the most significant, the constitutional relationship. We believe we echo the sentiments of the Manx people as a whole when we freely opt to continue the cherished links with the Crown. Equally, we feel that complete independence from the sovereign territory would be unrealistic. This tends, you may say, to fly in the face of the declared policy of the United Nations and we accept that it does not fully meet the United Nations objective, but we have satisfied ourselves that a more limited objective is acceptable to the international body and that relationships akin to the one we propose exist, being loosely described as being ones of associated status. In consequence, you will find set out in paragraph 6.13 the constitutional objectives which we believe the Isle of Man Government should now seek and in (a) they are listed as — recognition as a fully self-governing territory, having British nationality, and a territory for which Her Majesty’s Government in the United Kingdom would undertake responsibility for matters of defence, external affairs and the Royal succession. So what we are seeking, Your Excellency, in layman’s terms, is a special relationship, a relationship acknowledging the Queen as Head of State, a relationship which will end the dependent status of the Isle of Man and which will provide for a free association with the United Kingdom, which will not restrict the Island’s powers of self-government, a relationship which will impose no legal fetters of any kind upon the Isle of Man, which, in turn, will make its own laws and control its own constitution. In essence, it would mean a partnership, freely entered into and freely maintained and, in reality, would depend on the will of each of our countries to make it work. An integral part of the proposed arrangement relates to the continuation of the United Kingdom’s responsibility for defence and external relationships. As the Manx people share with the people of the United Kingdom common ideals and, we believe, have a sense of loyalty to each other, it is appropriate that we should seek a continuation of British nationality, and in so doing it is accepted that the Isle of Man will uphold in its law and policies a standard of values acceptable to the British people. For our people, conscious of the fact that Tynwald is the oldest continuing democratic assembly in the world, it is right that the tradition of responsibility and good government should be recognised in this way. Personally, I am encouraged, as I am sure you are, by the many affirmations of goodwill that have stemmed from United Kingdom sources in recent years. At the time of negotiating the Treaty of Rome, the Island was offered its complete independence as the alternative to the acceptance of the terms offered by the European Economic Community. Reporting to the United Nations in 1979, Mr. Cairncross was questioned as to why the Channel Islands and the Isle of Man were still not independent and asked how the United Kingdom interpret the requirement to promote the realisation of the right to self-determination. Did it, he was asked, interpret it in a neutral sense, in other words, did it feel its duty was only to refrain from taking action against the right of self-determination, or did it consider it had a positive obligation to promote independence? Why had so much time elapsed
Constitutional Issues Committee — Reaffirmation of 1981 Recommendations — Approved TI282 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 without those territories choosing independence, and how had the people expressed their desire not to be independent? Mr. Cairncross, replying for the United Kingdom, said: “ The questions raised concerning any movement towards independence in the Islands had created the impression that the United Kingdom was in some way inhibiting such a movement. This was not the case at all. The Islands were very small communities and had always enjoyed a very considerable degree of independence from the United Kingdom. The United Kingdom Government was certainly not opposed in principle to a movement towards even greater autonomy providing its own responsibilities were not put at risk. Furthermore, in the Isle of Man, where that issue had been canvassed to a greater extent than in the Channel Islands, there was a gradual movement, entirely unopposed by the United Kingdom, towards curtailing the powers of the Crown-appointed Lieutenant-Governor and devolving those powers on Tynwald, the Manx Legislative Assembly, thereby bringing the constitutional position of the Isle of Man more closely into line with that of the Channel Islands.” Mr. Richard of the United Kingdom, replying to questions concerning the Channel Islands and the Isle of Man, said: ‘Each of the islands individually had its own institutions of Government with elections and political parties. Regardless of what the united Kingdom’s attitude towards further independence might be, no great political movement with that as the desired objective had been detected in the Islands themselves. If there were to be such a movement the United Kingdom Government would consider it seriously. The Islands and the United Kingdom itself were open societies in the atmosphere and context of which it was perfectly feasible and reasonable for the United Kingdom to judge the wishes of the people of the Channel Islands and the Isle of Man by the way in which they expressed themselves before, during and after their Elections.” The report, incidentally, by the Isle of Man Government, said: “The Isle of Man as a Crown dependency, whilst not at present seeking independence, has over a long number of years evolved towards a greater degree of self-government, now almost complete in all domestic matters including all rules relating to civil and political freedoms and is a civil and political democracy.” I wonder, Your Excellency, who penned that when the Island’s constitutional objectives had been clearly set out and endorsed by this Court? However, the Minister responsible for Manx affairs, Lord Belstead, when he visited the Island in 1980, is on record as saying: “ I can well understand that the government of the Isle of Man, in the safe hands of the present members of the Government of the Isle of Man, is a matter that is very dear to the hearts of people who live here and everything which can be done to see that it is given full scope should be done, but I hope always that the link with the Crown will continue.” I think, Your Excellency, that Belstead’s statement appropriately sums up your Committee’s views and recommendations. Now, if you, hon. members, will turn to the second part of that recommendation, you will find expressed there the belief that, small though it may be, this Island, in common with other island communities, can no longer afford to live in isolation from those forces which will inevitably play an ever increasing part in the future destiny of the Manx people. The Commonwealth relationships that have been forged have proved invaluable, and although a barrier has been erected between the Island and Brussels, those members who have made tentative contacts through organisations such as the Conference of the Peripheral Maritime Regions, dealt with in this Court this morning, realise just how much has been lost by our failure to forge friendships
Constitutional Issues Committee — Reaffirmation of 1981 Recommendations — Approved TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1283 in connection with organisations whose authority can override that of the United Kingdom, even though a sovereign territory, and particularly override the authority of the Isle of Man as a dependency. Contact with many international organisations could have helped us at times when the interpretation of International Conventions was of considerable importance to us and it is clear that for the future the very well-being of Government and people here can be associated to a degree with the building of bridges between this and other communities. As I indicated earlier, related to the constitutional proposals you will find enumerated in paragraph 7.3 the financial links which presently relate to the United Kingdom. Each and every one is capable of change. Similarly, in paragraphs 8.1 to 8.3 we have outlined functional links which are still maintained in whole or part by the United Kingdom. We make this point to indicate the areas in which change or negotiation will be necessary when you reaffirm today, by the adoption of our recommendations, the objectives stressed earlier in this House by you, and in the years preceding them by your predecessors who sat where you sit now. So, Your Excellency, commending these recommendations to the Court this afternoon, I can do no better than quote the words used in Tynwald’s own submission of evidence to Kilbrandon, a submission which sought the same advanced relationship we seek today. It was expressed in these terms: “Let not the expression of this desire be misinterpreted. It is not intended to be, and it is not, in fact, a first ill-considered move in a frantic progress to independence. It is no more and no less than the claim for the only proper basis on which to continue the evolution of the constitutional relationship in the modern world. This right, almost universally accepted among nations, will be seen as supporting the suggestions to be made in this evidence for arrangements in the constitutional relationship whereby Tynwald may be assured of autonomy, already recognised in principle and in somewhat uncertain practice, in respect of the Island’s internal affairs; and this wish for assured autonomy renders intelligible the Manx people’s further desire, reflected in some of the suggestions to be made in this evidence, to reduce the number of aspects of the Island’s government in which reference to Her Majesty in Council, to one of Her Ministers, or to some other authority of the United Kingdom Government is at present necessary. Tynwald does not wish to suggest that there is any urgent desire today onHhe part of the Manx people for complete independence, but their right to decide for themselves to move forward to another stage of more complete self-government is not to be denied them.” I beg to move.
The Speaker: I formally move.
Mrs. Christian: I beg to second and reserve my remarks.
Mr. G.V.H. Kneale: I would just bring one point to the notice of the Court. The documents that have been circulated are inaccurate, sir. If you turn to the page where the signatures . . .The last page, 12, there are no signatures on that at all. If you turn over you will'find seven names type-written in and a date, 30th June 1981. I was a member of this committee, and if you look on earlier remarks of the debate that was circulated by Mr. Speaker, you will see I did not sign. In fact, nobody signed that document on 30th June 1981. Six members signed a blank bit of paper on 14th July, sir.
Constitutional Issues Committee — Reaffirmation of 1981 Recommendations — Approved TI284 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986
The Speaker: Your Excellency, I would like to clear that point. This is the official Government document. I have in no way interfered with it. I asked for it to be circulated as it is presented to any member of the public. If you look at the comments which accompany this, you will find that it is made clear at the outset that Mr. Kneale was not a signatory.
The Governor: Do any other hon. members wish to address the Court? I call upon the hon. Mr. Speaker to reply if he has anything further he wishes to say.
The Speaker: Yes, Your Excellency, I do appreciate the opportunity of replying and really, in taking that opportunity, I would merely say that the constitutional policy of this Government is of real importance because it relates to the future. There are so many items yet unresolved on the periphery of the constitutional policy that this resolution, re-affirming, as it does, our policy, will be of considerable strength, I think, to those who are negotiating on behalf of items such as fishery, telecommunications, wireless, telegraphy and so on, and it was with that idea in mind, Your Excellency, and with also assuring ourselves of the fact that Her Majesty’s Government will be informed of the policy of this Government that I have submitted this resolution to the Court and I hope it will meet with unanimous support.
The Governor: Hon. members, I will now put to you the motion standing in the name of the hon. Mr. Speaker. Will those hon. members in favour say aye; those against say no. The ayes have it. The ayes have it.
HUMAN RIGHTS CONVENTION — MOTION APPROVED
The Governor: Item 35. I call upon the Chairman of Executive Council.
Dr. Mann: Your Excellency, I beg to move:
That Tynwald resolves that Her Majesty‘s Government be requested not to make a declaration in respect o f the Isle o f Man renewing for a further period o f five years the right o f individual petition under Article 25 o f the European Convention for the Protection o f Human Rights and Fundamental Freedoms and the compulsory jurisdiction of European Court of Human Rights under Article 46 thereof
I think, in view of the great importance of this resolution and the fact that people and members of this Court in particular have very strong views on these matters, it is important to retrace the policies and basis for those policies in the last five years or so.
The Home Office at this moment has advised that the United Kingdom Govern ment has decided to renew for a further five-year period until 31st January 1991 the declaration of 12th September 1967 recognising the right of individual petition
Human Rights Convention — Motion Approved TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1285 to the European Commission on Human Rights under Article 25 of the convention and the compulsory jurisdiction of the European Court of Human Rights under Article 46. The Home Office has asked whether the Isle of Man Government would now wish a declaration to be made on both articles in respect of the Isle of Man. In so doing, it points out that of the member countries of the Council of Europe, 17 have accepted the right of individual petition; only Turkey, Greece, Cyprus and Malta have yet to do so. By Article 25 of the Convention, the European Commission of Human Rights may receive petitions addressed to the Secretary General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of violation, by one of the parties to the convention, of the rights set out therein, provided that the party against which the complaint has been lodged has declared that it recognises the competence of the commission to receive such petitions. Unless the party has made such a declaration, the commission is not permitted to receive a petition from an individual person, and it is a matter for each state which is a party to the convention to decide whether its citizens should or should not have such a right of petition.
In 1966 the United Kingdom made a declaration for a limited period of five years, granting to individuals the right to petition. This declaration extended to the Isle of Man. In 1971 the right of individual petition was renewed for a further period of five years both for the United Kingdom and for the Isle of Man. In 1976, when the United Kingdom again renewed the right of individual petition to the United Kingdom for a further five years, Tynwald, in the wake of the effects of the Tyrer case, resolved that Her Majesty’s Government be asked to make the necessary declaration to secure the extension of the right of individual appeal to the Isle of Man, subject to the proviso that rights of appeal against a sentence of corporal punishment by a Manx Court be excluded. Her Majesty’s Government declined to make such a declaration, expressing the belief that it would not be accepted. The nett effect of subsequent communications between the Isle of Man and the United Kingdom authorities was that the declaration was not made, so that the right of individual petition effectively lapsed for Isle of Man residents.
In February 1981, Executive Council considered a further enquiry from Her Majesty’s Government as to whether the Isle of Man wished the right of individiual petition to be renewed for a further period of five years from 1981. Taking into account advice from the Attorney-General and noting that the Island proposed to enact the European Convention into its own domestic law, the council agreed that the Home Office be advised that there was no need to give Manx residents the right of individual petition under Article 25 or the European Court of Human Rights an automatic jurisdiction in the Island. On 6th March 1981, by letter from the Government Secretary to the Under-Secretary of State, the Isle of Man Govern ment advised the United Kingdom that it did not wish declarations to be made in respect of the Island under Articles 25 and 46. Article 25 gives individuals the right to petition the European Commission of Human Rights. If no declaration is made under Article 46, the European Court of Human Rights can only consider a complaint by another state, a party to the convention if the United Kingdom as representing the Isle of Man agreed to the Court exercising jurisdiction in a particular case.
Human Rights Convention — Motion Approved T1286 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986
The reason for the decision of the Isle of Man Government in 1981 to request that no declarations be made in respect of the Isle of Man under Articles 25 and 46 is set out in the Executive Council minute, which says that since the Isle of Man proposes to enact the convention into the Island’s domestic law, thereby giving Manx residents the right to petition the Island’s High Court in respect of alleged breaches of the convention, it is not considered necessary to give Manx residents the right of individual petition under Article 25 or the European Court of Rights an automatic jurisdiction.
The proposed enactment referred to in the letter was the Manx Bill of Rights Bill 1981, which was about to be introduced into the House of Keys. The Bill was given its first reading in the Keys on 11th April 1981 and a second reading on 5th May 1981, but during the consideration of the clauses on 12th May, the Bill was referred to a committee. The committee subsequently recommended that the Bill be discharged and the report of the committee was accepted by the Keys on 6th October 1981. There is now no proposal to enact the Bill of Rights as part of Manx law. The reasons for requesting that the declarations of Articles 25 and 46 really could no longer be sustained by that argument — since 1981, several cases against the United Kingdom have reached the European Court of Human Rights and on several occasions the decisions have gone against the United Kingdom. In each case the United Kingdom has taken steps to change its law so as to be in compliance with the decision of the court while in the United Kingdom and Manx law decisions of the court do not automatically become part of the domestic law. There is a clear obligation on the United Kingdom, as on every other European state which is a party to the convention, to comply with the decisions of the court and to make changes in its domestic law, if necessary.
The Attorney-General has advised that there is only one subject on which Manx law should be amended immediately to comply with a decision of the European Court of Human Rights, and that relates to the law which makes homosexual acts between consenting males over the age of 21, in private, a criminal offence as it is at present under Manx law, although there have been no prosecutions for this offence for very many years. Executive Council has already considered this matter and has authorised the drafting of suitable amending legislation to deal with this matter when a suitable opportunity occurred. It was intended that the necessary amendment would be or could be included in the next Criminal Law Bill. As the Bill only became law in July 1985, it was not thought appropriate to introduce a further Criminal Law Bill into the present programme and it will not now be possible to introduce such a Bill before the next election. However, if declarations are made in respect of the Isle of Man under Articles 25 and 46, it will be necessary to amend Manx law with regard to homosexuality as quickly as possible so that the Island is not faced with an individual petition on that subject.
The Attorney-General has further indicated that with regard to judicial corporal punishment, technically there is no immediate obligation to amend Manx legislation on that subject. The actual imposition of corporal punishment would be a clear and flagrant breach of the European Convention, but the court’s ruling did not require references to corporal punishment to be removed from the statute book
Human Rights Convention — Motion Approved TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1287 forthwith. While it may be regarded as unsatisfactory that the Manx statute book should contain penalties which, if imposed, would amount to a flagrant breach of international law, this is not an issue which need colour the present decision as to whether declarations under Articles 25 and 46 should now be made in respect of the Isle of Man. However, there must be a political acceptance of the fact that future decisions of the European Court will have to be complied with, particularly in the case of individual petitions by Isle of Man residents.
I did, on 15th October 1985 at that sitting of Tynwald Court, give an undertaking that this matter would be referred to Tynwald Court for their consideration and their decision. The recommendation which is incorporated in the resolution before you reflects the majority decision of the members of Executive Council. The issue raised generates, of course, strong feelings of emotion within this Court but that, of course, only reflects the very strong opinions and very strong emotions that are expressed by the Manx people themselves and to their representatives. But we do have to recognise that the civil rights of individuals have become more important as each year goes by and we cannot ignore this fact in accepting the recommendation. Governments become more intervention-minded and the Manx Government cannot escape from that, and therefore the individual rights to an individual person become that much more important but, taking all that into account, we do have to accept that agreeing to this recommendation does deny certain rights to individual Manx people, and therefore, before accepting this recommendation, it is only wise that we all seriously ponder whether the national rights of the Isle of Man overtake the individual rights of an individual Manxman or woman. The majority decision of Executive Council is that the strength of feeling in the Isle of Man is such that that should take place, and therefore this recommendation is here before you today. But, of course, the ultimate and final responsibility and recommendation in this issue, must solely rest with the members of this Court. I move the resolution stan ding in my name.
Mr. Anderson: Your Excellency, I rise to second the motion before the Court and, in support of it, wish to point out that in my view this is one on which I at least get a very clear message from the people of the Isle of Man and have done over a very great number of years. There is no issue which, in our area that. I represented, has been more clear-cut. The people of the Isle of Man, in my view, want the decisions in relation to the Isle of Man to be made within the Isle of Man. That is very clear as far as I am concerned. It is not their wish that they should have somebody from the European Court telling them how they should have discipline in schools and this is where, in my view, the whole of society today is breaking down because we are, as a whole in Western Europe, becoming a society without discipline, and I believe, when other methods have failed, that it should be within the discretion of a headmaster of a school to use corporal punishment if that is necessary. I appreciate that if we were to go in the other direction here today, the time would be not far distant when once again we would be faced with a situation where someone would be taken to the European Court over this issue.
I have no hestitation whatever in saying that there would be an overwhelming support on the Island if a referendum were taken on this issue. I have known that
Human Rights Convention — Motion Approved T1288 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 a very, very strong opinion exists that we want to maintain law and order in our society, a society as we look elsewhere where it would appear there is far more consideration for the criminal than: there is for the victim of crime, and I believe we want to protect the rights of the person who wants to walk the streets and lanes of this community without fear of being molested in any way, and I believe the only way in which that can be protected is that the Manx courts should determine what sentences should be meted out to those who deny the public of the Isle of Man that privilege. I believe that what we have got to do in society today is to protect the law-abiding members of the community. That is the first and foremost duty, in my view, of any Government, and I support wholeheartedly our keeping this protection within the jurisdiction of the Isle of Man.
Mr. Gilbey: Your Excellency, first of all I would like to say how I support every single word that the hon. member for Council, Mr. Anderson, has said. I hope, Your Excellency, the wording in my amendment which has been circulated to all hon. members is clear. I think I should, however, explain one thing: that in this context the word ‘to denounce’ does not mean ‘to run down’ or ‘criticise’ as a common meaning to that word, but it is, in fact, a legal interpretation to mean ‘withdraw the Isle of Man from’ or ‘end the convention on behalf of the Isle of Man’. I think that should be made very clear.
Your Excellency, at the last election many hon. members of this Court, including myself, stated that we believed that this island’s courts should have the right to pass sentences of the birch and that these should be carried out in appropriate cases. Furthermore, I personally pledged myself to take all possible actions to enable the birch to be used again, and I am certain that I am not alone in having done this. I know that many members like me would have not forgotten their policies to the electorate and the people of this island. I personally have been waiting for a suitable time to take steps to redeem my promises. Your Excellency, hon. members, I believe that time is with us today. I know that hon. members will not have forgotten the powerful arguments for the retention of the birch and the reasons which have prevented its use. However, as it is some time since this vital matter was debated, I believe that I should outline the situation. I will, therefore, explain why I believe that the right to use the birch must be retained, and then what steps are necessary to bring this aim about.
Like the hon. member for Council, Mr. Anderson, I believe that the preservation of law and order is the very primary objective of every Government. No amount of economic well-being or prosperity are any good without law and order. What good is prosperity if parents fear for their children being out alone, if young women and old people are afraid to go out after dark, if each one of us returns home in fear of finding our homes ransacked or robbed or we are afraid of being mugged? But law and order is not just essential for all of us in our everyday lives; it is vital if we are to attract new financial businesses, new industry, more tourists and more new residents, because nobody wants to live in a community which does not have law and order. Unfortunately, since 1977 there have been substantial increases in crimes of violence: wounding with intent has gone up from four cases in 1977 to II in 1984, less serious assaults from 24 to 42, robbery and assaults with intent
Human Rights Convention — Motion Approved TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1289 to rob from three to six, assaults on the police from six to 13. Thus crimes of violence have virtually doubled over that period.
I believe there are four main ways of maintaining law and order: firstly, through removing the social causes of crime; secondly, by having a well-equipped and strong police force; thirdly, having sentences that are a real deterrent; and fourthly, by society showing that it will not tolerate lawlessness. I believe that our ability in appropriate cases to pass the sentence of birching is a vital constituent of our armoury of deterrent sentences, and even more important is the resounding affirmation that we, as a society, will not tolerate hooliganism and thuggery. These, Your Excellency, are the reasons for the retention of use of the birch. With such overwhelming reasons for its retention, why then does it remain on our statute book, but unused?
International law is not the law of the United Kingdom or the Isle of Man but it will be taken into account by the judiciaries of both countries’ in their interpretation of these countries domestic laws following rulings of Lords Denning, Diplock and Scarman. This is explained by a comment that Lord Denning made about the European Convention in a case in a court of appeal in England and I quote — this is what Lord Denning said: ‘On such a question I take it that our law should conform as far as possible with the provisions of the European Convention of Human Rights. As Lord Scarman said, if the issue should ultimately be, as I think in this case it is, a question of legal policy, we must have regard to the country’s international obligation to observe the convention as interpreted by the Court of Human Rights.’
Under Manx law, corporal punishment is not a mandatory sentence for any offence. The courts have a choice of ways of dealing with offenders depending on their age. In the most recent case regarding the birch there were nine possible courses of action open to the court, although many of them were inappropriate for the circumstances of that particular case. Nevertheless, the courts always have a wide discretion in determining the punishment for an offence, and it was when exercising this discretion that the courts had regard, in the words of Lord Scarman, ‘to the country’s international obligation to observe the European Convention as inter preted by the European Court of Human Rights.’
It is clear that this approach to the problem was broadly accepted by the Judge of Appeal and the First Deemster who constituted the court in the last appeal when they overthrew a conviction of birching awarded by the magistrates. Deemster Hytner, the Judge of Appeal, in his judgement then gave clear guidance how this policy should be put into effect — and here I will quote again: ‘The Justices should strive in every case to fit one of the other nine methods of disposal — that is, other than whipping — to the case before them. Only if they regard each and every one as unsuitable should they then consider the sentence of whipping. They should then consider whether any of the contra-indications exist. If any does, then they must return to the other nine disposals and choose the least unsuitable one. If no contra indication exists, then and only then may they pass a sentence of whipping.’ Towards the end of his judgement, Deemster Hytner commented — and I quote again: ‘It must be apparent that it is unlikely that in any case all our criteria can be satisfied so as to enable a boy to be birched.’
Human Rights Convention — Motion Approved TI290 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986
Your Excellency, I am deeply indebted to a speech which the learned Attorney made to the Magistrates’ Association in November 1981 for much of the legal case law which I have quoted. I am sure that everyone in this hon. Court will recognise that the learned Attorney is a most .able and dedicated constitutional lawyer. It is therefore interesting that he himself commented to the Magistrates’ Association as follows — and here I quote: ‘Ladies and Gentlemen, if I am asked whether there are any circumstances in the light of the recent decision of our Appeal Court, which, of course, must be followed, in which it would now be right for a court in the Isle of Man to impose the sentence of whipping, my answer is this: having regard, firstly, to the great weight which we must give to the decision of the European Court in the Tyrer case, following the remarks of Lord Scarman and Lord Denning which were adopted by Deemster Hytner in his judgement, and having regard, secondly, to the criteria laid down by Deemster Hytner which must be satisfied that before a sentence of whipping can be imposed, I personally find it extremely difficult, if not impossible, to visualise circumstances under which a birching sentence could now be properly imposed, but what I must not say is that a birching sentence is illegal. It is still a lawful sentence even though, for the reasons I have discussed, I think it is no longer a sentence which in practice can be imposed. In simple terms, the situation is as follows: international law is not the law of the United Kingdom or the Isle of Man but it will be taken into account by the judiciaries of both countries in their interpretation of those countries’ domestic laws following the rulings that I have referred to’.
Quite apart from that, however, and more important, perhaps, Deemster Hytner has now given a ruling and created a legal precedent which effective stops the use of the birch in the Island unless new legislation is passed which makes it the only penalty for certain types of crime, and this, of course, stems from his statement that virtually every alternative there is must be looked at and adopted before birching is chosen as a sentence and, of course, in practical terms that means it never will be chosen.
Accordingly, Your Excellency, it is clear — and I do not think there is any legal controversy about this from a point of view of legal fact — that to have the birch used again, two steps are necessary: new legislation would have to be brought in which overrules the legal precedent set by Deemster Hytner’s judgement. Such legislation would have to make the birch the only sentence available except where the convicted person is medically unfit to receive such a sentence. I know very well that it will be argued that no doctor would examine a young male prior to his being birched and this is yet another reason why birching could not take place. However, Your Excellency — though I naturally will not quote names — I can assure this hon. Court that from my personsal discussions with certain doctors on this island, I am convinced that one could be found who would undertake the necessary ex amination.
I have, for some years, had in readiness what I hope will be suitable wording for a Bill to enable the birch to be used again. Unfortunately, however, as I have said, the mere introduction of such a Bill would not solve the problem. Firstly, the United Kingdom Government might refuse the Royal Assent to it on account of
Human Rights Convention — Motion Approved TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1291 the Island being covered by the convention under the terms of Article 63 of that convention but, equally important, following the rulings that I have mentioned and the views of our learned Attorney, it is likely, even if such a Bill were passed, that the Court of Appeal would allow an appeal against the birching sentence on the grounds that international law had to be taken into account in the interpretation of domestic law.
Accordingly the first step, if we are ever to use the birch again in this island, is the Island’s withdrawal from the convention, and the sebond — the passing of a suitable Bill. This island can be withdrawn from the convention on the United Kingdom giving six months’ notice as is specifically provided for under Article 65, paragraph 4, which reads — and here I quote again: ‘The convention may be denounced in accordance with the provisions of the preceding paragraphs’ — and that tells you how a sovereign high state can withdraw — ‘in respect of any territory to which it has been declared to extend under the terms of Article 63.’
As the United Kingdom has already agreed that the Island should not make declarations under Articles 25 and 46, there is no logical reason why it should object to the Island being withdrawn from the treaty. Indeed, it would be quite illogical for it to do so for many reasons. First of all, as all hon. members knows, at the time of the Common Market negotiations, Jeffrey Rippon, on behalf of the then Conservative Government, stated quite categorically that if it was the wish of the Manx people not to have associate status or to enter the Common Market but to have complete independence, then the Government would not stand in their way. When this is a policy of a far less right-wing Conservative Government than that in power today, why should such a Government refuse to withdraw this island from the convention? There are indeed many members of the United Kingdom Parliament who themselves only wish they could use the birch to control thugs and hooligans in the adjacent isles, and I personally believe that the Prime Minister may well be amongst that number.
Your Excellency, we have also heard from the Chairman of Executive Council and Mr. Speaker that the policy of the United Kingdom Government and the Prime Minister is to give the Isle of Man greater self-determination if that is the wish of the Manx people. We are standing firm on other matters, Your Excellency, quite rightly: Sellafield, the fisheries and others, and I believe that this question should join them. Indeed, I think we should congratulate Mr. Speaker on having obtained the letter he did from the Prime Minister which makes it quite clear that the United Kingdom Government do not wish to stand in the way of the Island’s genuine aspirations.
I, of course, appreciate, Your Excellency, that we have to consider what, if any, adverse effects there would be on leaving the convention. Personally, I believe there would be none. The convention was set up at the behest of European countries, virtually all of whom had experienced the most terrible oppression of human rights and torture during the past and present centuries. All of them had suffered in one form or another from Naziism and the holocaust. There is no wonder that with
Human Rights Convention — Motion Approved TI292 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 this history they wanted a convention of human rights in the hope that it would prevent such horrors happening again.
The position in the Isle of Man is, and has been, by the grace of God, quite different. Our history contains no such horrors and I believe we have no need for such a convention to protect our human rights. Indeed, the very words of our national anthem proclaim and confirm our freedom. On the other hand, if we remain members of this convention, it is absolutely clear that we shall never, be able to use the birch again in this island, however long it may remain on the statute book. It is equally certain that it will not be long before attempts will be made to stop corporal punishment in our schools as has already been threatened across the water and has been alluded to by my hon. friend, the member of Council, Mr. Anderson. And have no doubt, hon. members, that the next step after that, which is already forshadowed in some parts of Europe, is that the right may even be taken away from all of you and everyone else as parents to chastise your own children.
I believe that most Manx people recognise these appalling disadvantages of membership of the convention, and they do not believe that the convention has any advantages which outweigh its clear disadvantages. However, if we do want to protect our human rights — not that I personally think it is necessary — we can always introduce our own Bill on the lines of that referred to by the hon. Chairman of Executive Council.
Accordingly, Your Excellency, I hope that this amendment will be supported and seconded by members of this hon. Court. In doing so, we have nothing to lose but everything to gain. We are merely asking the British Government to do something which we all know the vast majority of the Manx people want. If the British Govern ment see to our request, that is excellent; however, if they do not, the world will know clearly and without argument, once and for all, who is to blame for us not being able to use the birch in this island. Furthermore, hon. members will have done everything in their power to bring about its use. Thus I believe that we have everything to gain through supporting this amendment and nothing at all to lose. I beg to move:
A t the end of the present wording add —
“Furthermore, in order to enable a sentence o f birching to be imposed and acted upon again in appropriate cases, in accordance with the wishes o f the vast majority o f the people o f the Isle o f Man, Tynwald resolves that Her Majesty’s Government be requested to denounce the convention on behalf o f the Isle o f Man, as provided for under article 65, paragraph 4. ”
Mr. Bell: Your Excellency, the United Kingdom Government signed the European Convention for the Protection of Human Rights and Fundamental Freedoms in Rome in 1950 in the wake of a horrendous Second World War. Under Article 63 of the convention any state is given the option to notify the Council of Europe that the convention is to extend to any territory for whose international relation it is responsible. As the Isle of Man falls into the latter category, the United
Human Rights Convention — Motion Approved TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1293
Kingdom gave us the option of joining the European Convention under its auspices. The convention goes on to say that any state which has made a declaration joining in the territory for whom it is responsible, may at any time thereafter declare on behalf of that territory that it accepts the competence of the European Commission to receive petitions from individuals, non-governmental organisations or groups of individuals.
The Isle of Man was asked if it wished to give our people the right of individual petition, and at a sitting of Tynwald in January 1969 Tynwald unanimously approved the resolution to extend that right to the Isle of Man. From that time until 1976, the Isle of Man was a party to that convention, a convention, I might add, that had not changed in any way during that period and without any apparent qualms on the part of Tynwald at that time. The renewal of the right of individual petition in 1976 was far more controversial, in that by this time an individual in the Isle of Man had the audacity to actually exercise his right, given to him by Tynwald, of presenting a petition to the commission with a complaint under Article 3 of the convention.
At this stage, Your Excellency, I think it is worth mentioning that it is no simple matter for the individual to secure a hearing before the European Commission. There is complete protection against frivolous claims. The applicant has to have completely exhausted the domestic remedies, and overriding everything else is the rule that the commission itself has to decide whether the complaint is admissible within the terms of the convention, and I think it is fair to say that because of this procedure, although the commission receives a very great number of applications every year, in fact only a very small number are ever actually heard by it.
However, by 1976 Tynwald had somehow managed to get the authority of the European Commission identified as trying to undermine Manx self-determination in general and Tynwald’s freedom to subvert the civil liberties of individual Manx men in particular. As the birching bandwagon started to roll and gather momentum, so all thoughts of the need to safeguard human rights in the widest sense were sacrificed in a display of sham machismo for the benefit of the electorate. Because of the Tyrer case, Tynwald then decided to withdraw from the convention and after 1976 the right of individual petition lapsed to Isle of Man residents, marking them out as second-class citizens, at the behest of our own Government, in comparison to most of Western Europe.
In 1981, Tynwald adopted a more subtle approach. Members suddenly became very conscious of the need to safeguards human rights in the Island. They were still determined not to give up their right to use the birch even though it had not been used during the preceding five years, and were still determined not to allow Manxmen the right of individual petition in case anyone might want to exercise that right. But, nevertheless, they did want to safeguard human rights on the Island, so much so that the reason that Tynwald gave when again refusing Manx residents equal status to their European neighbours was, ‘Well, since the Isle of Man Govern ment proposes to enact the convention into the Island’s domestic law, thereby giving Manx residents the right to petition the Island’s High Court in respect of alleged
Human Rights Convention — Motion Approved TI294 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 breaches of the convention, it is not considered necessary to give Manx residents the right of individual petition under Article 25 or the European Court of Human Rights an automatic jurisdiction in respect of the Island under Article 46’. Needless to say, Tynwald’s concern for human rights evaporated very rapidly along with the promised Bill of Rights. The convention was never enacted into the Island’s domestic law and our Manx people were betrayed into accepting the continuing status of second-class citizens.
Since 1981 a number of cases against the United Kingdom have actually reached the European Court of Human Rights and several of the decisions have gone against the United Kingdom. While, in United Kingdom and Manx law, decisions of the court do not automatically become part of domestic law, there is a clear obligation on every party state to comply with the decisions of that court and to make changes in its domestic law if necessary. This may, from time to time, be somewhat unpalatable to the countries involved and sometimes certainly to the Governments, but it is a generally accepted implication of acceding to any international treaty. Not every treaty brings solely advantages to the signatories and sometimes concessions are necessary to bring about wider benefits. This is accepted. What is completely unacceptable is for a nation to believe, as the Isle of Man seems to think, it can enter into international agreements on a selected basis, that it can adhere to the parts it likes while side-stepping the parts it dislikes.
This brings me to the curious position of the Isle of Man. Over the years our constitutional position has evolved towards a greater degree of independence. We are moving towards a ministerial system of Government, as much as to tell the out side world that we have come of age as a nation as for purely managerial reasons. We have increasingly considered ourselves to be a mature, civilised, modern state, prepared to take our place on the world stage through our involvement in Commonwealth and other international bodies. When difficulties have arisen between ourselves and the United Kingdom, we have talked about approaching the United Nations. Indeed, only last week, Mr. Speaker suggested this is a course of action we could take to resolve the Sellafield problem. Only recently this hon. Court agreed unanimously, I would remind members, to take our case for increased fishery jurisdiction to the European Court for resolution. Your Excellency, how perverse and contradictory we are then, when on the one hand we are prepared to plead our case for national freedom through the appropriate international authorities while at the same time consciously refusing to allow that same facility to our own people in their pursuit of individual freedom and justice. Can we honestly say that this is the action of a mature, civilised Government? To my mind it certainly is not — indeed, quite the opposite.
So what do we have to fear from becoming a party to this convention? Do members even know what is contained in the convention? As far as the Isle of Man is concerned, I think the best known article is Article 3, which states that no-one shall be subjected to torture or to inhuman or degrading treatment or punishment and this, of course, is the article which was used to restrict corporal punishment on the Island. But what of the rest of the convention? What is so unacceptable to Executive Council? Do they take exception to Article 2: everyone’s right to life shall
Human Rights Convention — Motion Approved TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1295 be protected by law? Or Article 5: everyone has the right to liberty or security of person? Article 6: everyone is entitled to a fair and public hearing by an impartial tribunal established by law? Is this undermining the independence of the Isle of Man? What about Article 9: everyone has the right to freedom of thought, conscience and religion? I wonder what the Lord Bishop would have to say about that! It includes the right to freedom of expression, the right to freedom of peaceful assembly and association with others.
These are a few of the main articles of the convention and one is bound to ask, what is so damaging to Tynwald’s interests in supporting and protecting these rights? Rights, I might add, that millions of people have died to establish and in the pursuit of which thousands of people are present languishing in gaols all around the world. How easy it is to forget! Yet Executive Council, the leaders of the Isle of Man, are prepared to ignore these enormous sacrifices which have been made in the defence of human rights, are prepared to deny Manxmen access to the European Court of Human Rights, and why? To cynically perpetuate the illusion of retaining a form of corporal punishment that has not been used on the Island for at least ten years and which the courts are unable to impose anyway. Or perhaps Executive Council consider this is yet another macho exercise to demonstrate our independence from the rest of civilised Europe. I should have thought by now that even those members blessed with the narrowest of minds must be aware that the world really has become a global village, with most countries tied together by a variety of treaties and agreements, most of which impinge in varying degrees on national sovereignty. It seems very ironic to me, Your Excellency, that a country like the Isle of Man, which allows another country to fix and collect a substantial part of its own taxation, should complain about erosion of independence if an internationally respected institution were to act as ultimate guarantor of the civil liberties of Manx people.
As far as actually having to amend Manx legislation to comply with the terms of the convention — and the hon. Chairman of Executive Council has already touched on this — the Attorney-General himself has stated that in the area that perhaps some members may be concerned, corporal punishment, technically there is no need to amend Manx legislation. In fact, the only legislation which would need amending if the Isle of Man were to become a party to the convention is the law which makes homosexual acts between consenting males over the age of 21, in private, a criminal offence. As has already been stated, there have been no prosecutions for this offence for many years, although quite obviously this offence is still continuing. Being aware of this, it is hypocritical of this Government not to bring this particular legislation into line, not only with the United Kingdom but also with every other country in Western Europe.
Your Excellency, it saddens me to say that at a time when the Isle of Man needs a progressive, far-sighted Government, leading us into the twentieth century, we have a Government hell bent on leading us back into the nineteenth. The proposal put before us today is that of a tired, immature, timid Government that has run its course, a lame duck Government that is now paralysed by the prospect of a general election in November. Of the member countries of this Council of Europe, 17 have accepted the right of individual petition, with only Turkey, Greece, Cyprus and
Human Rights Convention — Motion Approved TI296 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986
Malta refusing to do so. Does Executive Council have such contempt for the good name of the Isle of Man that it is prepared to ally itself with Turkey, Greece, Cyprus and Malta — those paragons in the defence of humans rights as the only countries in Western Europe prepared to deny their people access to the Court of Human Rights? Is Executive Council aware that only last year, a report prepared for the Political Affairs Committee of the European Parliament concluded that respect for human rights in Turkey fell a long way short of complying with even the most elementary standards? This is the sort of international company Executive Council is advocating today that we should rub shoulders with. Is this really the sort of international company that this hon. Court wants our country to be identified with? Is this the sort of image that Executive Council plan to cultivate to attract new investment to the Island?
Your Excellency, as a Manxman and as a member of this hon. Court, I am ashamed that any Government of the Isle of Man could associate itself with this resolution before us today. We are witnessing a high ideal debased and trivialised by political cowardice and electoral opportunism. (A Member: Hear, hear.) I cannot believe, though, having said that, that all members of Executive Council are as reactionary as this resolution suggests, but I am saddened at their unwillingness to stand up and fight for those principles they must know are right. I am even more saddened that those same members are prepared to preserve the image of the Isle of Man as an anachronistic backwater out of touch with the real world, rather than rock the boat of collective responsibility. Of course, it must be very appealing for members to support the resolution as it stands. After all, we take most of these matters for granted in our everyday life and the vast majority of people will probably never feel that their rights were threatened in any way and will probably find it difficult to understand why we are even debating this subject today. And, of course, it is election year and we all know thata few well chosen words in favour of the birch are always good for votes, (Laughter) so why should we do anything to rock the boat?
Mr. Delaney: True words!
Mr. Bell: The point is, Your Excellency, that it is sometimes very easy to forget that we as politicians have a duty to protect the interests of the few every bit as much as the many, sometimes even in the face of opposition from the many, and it is precisely because we as a responsible Government have a specific duty to protect the rights of the individual against oppression by the majority or by the state or from some other source that it is so important that we allow the right of individual petition for the Court of Human Rights today. It is very easy to argue that we are a caring Government and so such action is unnecessary, but we all know that there are time when even though we can identify certain shortcomings in society, we are sometimes reluctant to correct them, either because of a lack of will or time or some other reason and, of course, none of us can predict what action a future Govern ment may take — and quite frankly, Your Excellency, after hearing the speech from the hon. member for Glenfaba, anyone who had any doubts whatsoever about the need to strengthen the protection for the civil rights of Manxmen must now have clearly changed their mind.
Human Rights Convention — Motion Approved TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1297
Your Excellency, I am moving an amendment this afternoon to this resolution: ffwi t A t the end of line 1, insert 'not’.
It is quite a simple amendment; It has been circulated to members, I think. This, in effect, states “That Tynwald resolves that Her Majesty’s Government be requested to make a declaration in respect of the Isle of Man renewing for a further period of five years the right of individual petition under Article 25 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the compulsory jurisdiction of the European Courts of Human Rights under Article 46 thereof” .
Your Excellency, I am quite convinced that there is no good reason, not even the outrageously unfounded case, I believe, put forward by the hon. member for Glenfaba, for not supporting my amendment this afternoon. The only reasons I believe anyone would want to oppose such a move stem from unthinking prejudice or sheer political opportunism. By supporting my amendment today, we have the opportunity of proving that we consider the safeguarding of the fundamental rights and liberties of our people as paramount and equal to those of the rest of Europe. We have the opportunity of showing that we are prepared to protect them from the injustice and over-zealousness of both the state and society. We have the chance today to prove we have matured as a nation and are ready to accept the responsibility that comes with that maturity by taking a stand in defence of civil liberties alongside our European neighbours. If we fail to accept this challenge, not only will we have failed the Manx people of whom we are representatives and guardians, we will have failed ourselves as caring politicians, but most of all, Your Excellency, we will have failed the good name of the Isle of Man. ^
The Governor: Hon. members, before I call upon Mr. Maddrell to speak who had already caught my eye, I sense that there are quite a number of hon. members who wish to speak in this debate and we also have a little Supplementary Agenda, so I propose that we break for 20 minutes for tea, which is ready for us. Is that agreed?
It was agreed, and the Court adjourned at 4.30 p.m.
HUMAN RIGHTS CONVENTION — DEBATE CONCLUDED
The Governor: Hon. members, I call upon Mr. Maddrell, followed by Mr. Speaker.
Mr. Maddrell: Your Excellency, I will be brief and I will not be delivering any lectures to members on their duties as M.H.Ks this afternoon! Today I have twice received such advice and it is now wearing very thin indeed! Could I advise those members, if they want to expound this belief any further and give this advice, that
Human Rights Convention — Debate Concluded T I298 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 they do so first thing in the morning in front of the mirror just prior to shaving? (Laughter.)
Mr. Bell: Your Excellency, on a point of order, I have the same right to express my views in this Court as the hon. member for Middle or anyone else and I take objection to any implication in his remarks to the contrary.
Mr. Maddrell: I take objection to the way he made his remarks — (Interruptions and laughter)
Mr. Maddrell: Your Excellency, I will second the amendment by the hon. member for Glenfaba, Mr. Gilbey and I must congratulate him on an excellent speech and I think it would be remiss of me to repeat the reasons he so amply explained. He said, basically we have everything to gain and nothing to lose. I have heard, I am sure, and will hear every reason for and against the birch, over and over and over. I want the ability to have it, not the hearing of it. I want the ability to be able to give it as a punishment and even to have it as a full deterrent. I refute anyone telling this Manx nation we have no rights to the birch because we are animals. I see the animals, the same as the rest of the hon. members do, on the television screens at night when they are fighting in other countries and I never want to see that happen here. I want the punishment to fit such things as assault and mugging and the knocking down of elderly people. Elaborate speeches will produce very little indeed. It is now the time really to stand up and be counted. You have the ability here to get the birch. You can either support it today or you will lose the opportunity. May I add also that I am also a Manxman.
I have been reminded twice also today that it is election year. Now that, really to me, is news and in the record too — I am amazed! I see no reason why, being for the birch, I should not be allowed regularly to reinstate that fact. Over and over and over I have never changed my mind in all the years that I have wanted it, I will not change it now, I will fight for it in any way that I can possibly do it, whether it is an election year or not. Thank you, sir.
The Speaker: Your Excellency, I rise to second the amendment moved by the hon. member for Ramsey. I do so because I find that this Court is in an untenable position. I would say to the Manx people and members of this Court that your interests in respect of the retention of birching have been betrayed by six members of this Court. The members of the Court concerned are: Mr. Kneale, the hon. member for Ramsey Mr. Cain, Dr. Mann, Mr. Cringle, Dr. Moore and the learned Attorney-General. They have taken upon themselves the right to deprive you of the opportunity to have a different pattern of operation to that prescribed in the Convention of European Rights and Fundamental Freedoms.
I have been totally involved in this issue since it began, since the Tyrer affair. I have tabled every successful amendment until today — and today I will be associated with the successful amendment — which has affected this issue because, like most Manx people, I was affronted when it was felt that the European Court could deprive us of our authority to birch an offender in certain cases, and I can
Human Rights Convention — Debate Concluded TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1299 remember the varying attempts that were made along the line to enable the Island to retain the birch but to hold on to the maximum degree of protection afforded by the rest of the convention.
We sought a fundamental Bill of Human Rights. That Bill was drafted, it went to the Home Office for approval, it was changed so much that in the opinion of one hon. member of this Court at the time, it actually subscribed to the whole principle that we were trying to avoid. And we came, in 1981, to a position where once again we were considering this issue and I am going to inform the Court today, because it is pertinent, of what I said on that occasion and what I moved successfully:
Your Excellency, once again we come to the vexed question of corporal punishment and we have to recognise that the people of the Isle of Man are extremely concerned at the position facing the Island at the moment. We are accused of the judiciary of evading our responsibilities and, frankly, I think that in supporting the resolution or supporting the amendment tabled we would equally be avoiding our responsibilities, because overall we have a responsibility to the people of the Isle of Man on a much broader scale than when we are talking of the little scale of corporal punishment. The human rights scale is of much greater importance as a whole and I do not think anyone here or indeed at a referendum would reveal a wish of the majority of the people of the Isle of Man, as the hon. member for Ramsey has said, to detach themselves from human rights. I appreciate that Mr. Simcocks would intend to follow up with the provision of a Human Rights Bill, but let us take it stage by stage. We may as well, as I know what the outcome will be: the sovereign territory exercising its responsibility as a signatory to the convention will undoubtedly say “We find ourselves unable because of our commitment to do what you ask” . Let us face it, that is the position we would place them in. We would ask them to deliberately abrogate their particular responsibility in our favour. I do not think it is likely to happen, hon. members, and this is a most important and serious matter for us, so we have to consider what the outcome might be. I believe that while the Court is intent on trying to find a way of getting away from the issue, find solutions, if you like, as the hon. member is trying to find a solution today, I am not sure that it is the right way, because what we are doing is abrogating all our human right responsibilities. Taking it on from there, the suggestion of following up or indeed anticipating the viewpoint of the Manx people with a referendum, I think we are going to have difficulty and I do not underestimate the common sense of the people here, but rather, we are going to have difficulty in conveying what our objective is. They too will share with us, I believe, the belief that human rights are much too important for complete abrogation. At the same time, many Manx people believe that the European Economic Community is the Strasbourg Court of Human Rights and we have this conflict of thinking, the public, that we are meeting every day, but underneath it all, hon. members, I have been out on the doorsteps and I am sure you have and what they are saying is, “What are you going to do about restoring to the Isle of Man its authority to govern on our behalf?” Hon. members, I believe that the solution was reached earlier this year, perhaps unconsciously in this Court with Tynwald’s passing of the Constitutional Issues Committee’s resolution. The Constitutional Issues Committee’s resolution sought internal self-government, a new status for the Isle of Man entirely,
Human Rights Convention — Debate Concluded T1300 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 complete internal control. I believe that today we have to seek, through that medium, the answer that we want, and I am convinced that the answer that we want is in the retention of judicial corporal punishment. We want that for the people of the Isle of Man. The way to get it is by negotiating a new relationship. This is not a new idea, it is no new thing but it provides, I believe, the long awaited answer to this particular problem. In consequence, I am going to move the following amendment declaring every word after “Tynwald” to Mr. Simcock’s resolution that the following words be substituted for the existing words: “Tynwald, desirous of maintaining its laws on judicial corporal punishment, approves immediate action being taken to negotiate the alternative constitutional status recommended by its Constitutional Issues Committee and approved by Tynwald as a means of so doing” . Now this, hon. members, means that the Island immediately starts negotiating for its new status, and with that new status there would be left the right to accept that element of the Human Rights Convention that you wish to accept. I am sure that 99 per cent, of human rights appeal to all members of this Court. In consequence, I do not think for one moment that we should go and I think the hon. member, Mr. Simcocks, will probably agree with me. Indulging in exercises of which we can anticipate the outcome, of which we know that England has no alternative but to say to us, “ Sorry, cannot do it” and then we will fulminate here and say, “once again we have been turned down by the Home Office” . I will lead any charge against the Home Office when there is justification, but in this case I can see no justification for pursuing a course that is valueless. Let us go forward with a real intent of affecting change of securing for our people the objectives that we seek jointly, and we can do it through this amendment.’, which I moved, the hon. member, Mr. Delaney, seconded and which was subsequently carried by the Court.
That was the stage reached on this particular issue. What happened after that? The Constitutional Issues Committee in 1983 advised Executive Council that no further action be taken with regard to the proposed alternative constitutional status, and that was done on the advice of the Attorney-General. The Government had not the decency to inform this Court of what was taking place and questions since have failed to illicit the true facts, but I say to you now that your interests were never followed up by the Constitutional Issues Committee as they should have been done, that the Attorney-General was in breach of a court decision in advising them not to continue and that to start today to campaign for this particular element of human rights to be deprived from any petitioner in the Isle of Man would be false in the background of all that has gone on.
Your Excellency, I am saying this afternoon that this Court has reached a position — even this afternoon it has subscribed to constitutional advice. The only way you will ever get the ability now to associate yourselves with conventions in an independent form is to take this Government into another state of constitutional relationship with the United Kingdom. If you do that, Your Excellency, you can then determine what conventions you are going to apply, because you are seeking, as you have said this afternoon, full internal control of Manx affairs.
Let us face it — we are for an ideal, the preservation of the birch, going to deprive rightful petitioners of what I believe is an essential freedom. I am convinced that
Human Rights Convention — Debate Concluded TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1301 the Court was right to try and find alternatives years ago. We failed completely and we have not produced the alternatives, so we are depriving Manx people of a fundamental freedom at this moment. There is another point to bear in mind. That as, I hope now, our Executive Council will try and advance the cause of our constitutional position, the first thing that will be thrown at your negotiators when they seek constitutional advance will in fact be, ‘Ah, but in the Isle of Man you have not subscribed to Human Rights Conventions fully. Do you really believe that you are people who, despite your protestations, are sufficiently developed to be entrusted with a greater degree of authority?’ You have to balance this question of human rights now against the constitutional pattern.
Your Excellency, I make no apology for turning back to the same debate I referred to earlier and this time quote my namesake, the then hon. member of the Council. He said in that same debate ‘Now we have known what we wanted for a very long time but we have not been able to make any headway towards it. The major stoppage so far as I am concerned is this: it is the constitutional position of the Island, and I am amazed to hear hon. members saying you must not mix this particular issue with the constitutional issue. The two things are involved. The fact we have not been able to make headway stems from the constitutional relationship between this island and that of the United Kingdom. I am not saying that in a critical sense. It seems to me that although I do not like the particular wording in which the hon. Mr. Speaker has couched his amendment, insofar that he prefaces it in direct relationship to corporal punishment but I regard that an unimportant. That would be ironed out in the wash. I am still quite satisfied that the solution of the particular issue in one form or another is based upon a constitutional solution to our relationship between ourselves and the United Kingdom, whether we like it or not. We have already adopted a resolution by the adoption of the report to the Constitutional Issues Committee in which we are going to try and advance the Island towards more complete self-government, complete internal independence.’ And he concludes ‘It boils down to this, and if we are going to make any advancement in this matter, whether you hold a referendum or not, you have to come down to those types of negotiations, and the only sensible step to take at this moment to advance the issue is to support the amendment tabled by the hon. Mr. Speaker.’ The Court did, Your Excellency, and as I said earlier, the Court’s interest would never advance — and this is no new thing in this Court. If those interests were to have been advanced, we would have know today whether we would have been — let us remember, this is five years ago — whether we could have been in a position to talk in a different way in respect of this resolution, but I am convinced today the best interests of the Manx people will now be served, after all this time has elapsed, after everything has been tried, by the acceptance of the amendment which places us on a par with other people throughout Britain in respect of human rights.
Mr. Callin'. Your Excellency, I will defend the right of the hon. member of Ramsey to say what he believes, but to suggest that we are not a caring Govern ment or that we would fail the good name of the Isle of Man by not supporting this resolution is an insult of the very worst kind, and to link life in the Isle of Man alongside life in Turkey does not even warrant comment.
Human Rights Convention — Debate Concluded TI302 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986
I fully support the resolution which has been moved by the Chairman of Executive Council: In fact, I will go further by also supporting the amendment which has been moved by the hon. member for Glenfaba, Mr. Gilbey. I certainly believe in the protection of human rights and fundamental freedoms, but I also believe in democracy and I also believe in the safety of the law-abiding people.
I think that we have to ask ourselves, who are the European Court most concerned about? If it is the safety and rights of law-abiding people, then their decisions are sometimes very hard to understand. If we want to talk about freedom, then let us ask ourselves what freedom is. It is certainly not the right to do as you choose, but it is the right to do as you choose so long as you do not infringe on the rights of others. We must also ask ourselves, what is democracy? It is a form of Govern ment in which sovereign power resides in the people as a whole and that is the people we are talking about, the people of the Isle of Man.
I think the hon. member for Glenfaba was quite right to remind those of us who made promises regarding the means of preserving law and order, especially where the safety of the person is concerned. One of the finest assets that we have on this island is the fact that our womenfolk and our children can move about freely and in comparative safety and we should be doing everything possible to make sure it remains that way. I think we would be making the gravest mistake of all if we were to follow the United Kingdom blindly in these matters.
I watched, and I am sure many of you did too, the Panorama programme on television earlier this week. What did we learn from that programme? For those who did not see it, I will tell you: that the United Kingdom is now the most crime- ridden country in Europe - that is what was stated — where in certain areas one in 11 young white women are sexually assaulted, where 14-year-olds turn into armed robbers and the police have had to be armed.
I realise, Your Excellency, that no system is 100 per cent, perfect, but the ‘do-gooders charter’, helped in certain cases by the European Court, is not the answer, so I would hope that we keep full control over our own affairs. I do not believe that any law-abiding citizen of this island would ever be without the means to achieve his or her rights and fundamental freedoms within our old legal and political system which have been established in accordance with the will of our own people over a long period of time. It must not be forgotten that the right of individual petition to the European Court has not applied during the last five years, and I am not aware of any hardship caused in this period. It must also not be forgotten that in the field of human rights and freedom, every citizen here has the right to present to Tynwald, at its annual open air meeting, a petition of redress, and this is a right which is unique and one which is now taken advantage of each year and with a successful outcome for many.
I would say that we do not require the services of the European Court, so let us support the resolution with or without the hon. member for Glenfaba’s amend ment, but with his amendment for preference.
Human Rights Convention — Debate Concluded TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1303
The Speaker: On a point of order, Your Excellency. Would the hon. member make it clear that there was a petition of grievance and that the outcome was a resolution in this Court?
Mr. Callin: I could not dispute that, Your Excellency.
The Speaker: Thank you.
Mr. Quirk: Your Excellency, I think there is one overriding principle in this Court, there is no doubt about that; no matter how we disagree on how it is to be achieved, I think we are all absolutely determined that law and order in this island of ours will be maintained. That is one thing that we are absolutely determined on, and I feel that that is essential not only for our own people but for the thousands that come over and visit us each year. We are an island which has been a family island for many, many years and we are seeing this gradual erosion of the power and the togetherness of families, and yet I think in the future we will be depending more and more on families visiting the Isle of Man. So as I have said, it is important that we should be seen today as a Court which is determined that we will not allow violence and that sort of character to become prevalent in our Island.
Since we spoke about this birching issue, there have been, I believe, several changes and it is on these that my decision here will depend. I am not supporting the amend ment at the moment because I believe at the present time there is no requirement on a person to exhaust domestic remedies in their particular area before they can make a petition to the court of Strasbourg. I believe that is so, and I therefore oppose that amendment because really we have the basis in this island at this moment on which the convention was almost founded; we have the basis where and individual can appeal, can make a petition to the highest court in the land at Tynwald, and we have a judiciary system here which is second to none, so I believe that unless we can have a situation where all domestic areas have been exhausted, I cannot vote for the amendment in the name of the hon. member for Ramsey.
We did, really, start to make a weak case for ourselves when this Court decided, as a means of placating the court in Strasbourg, to reduce the age at which a male could be birched for crimes of violence to 2 1 .1 think there is a very weak case here because how can we say that a person under 21 must be birched and a person over 21 must not be birched for the same offence? And I think this is a very important point which I think has been seen to go against us at times. I do believe, too, that a national or a citizen of an assenting country, if he is sentenced to a birching order, can then appeal to his own assenting state, and that again really means that we have no power to birch those who come into this island and visit us. I am only saying I believe that to be the case — I hope that somebody can prove me quite wrong on that.
I do take it, too, that the hon. mover of the withdrawal motion, spoke about the appeal for the particular case in mind, which was the Scottish person who, in a drunken state on a boat, savaged somebody else with a broken glass; I think that was the particular case, if I bear it in mind, and Mr. Hytner, the Appeal Judge,
Human Rights Convention — Debate Concluded TI304 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 did lay it down clearly that if an appeal is accepted, it must be brought forward within a certain time or the charge of birch is negated. He also must be physically and psychiatrically acceptable and also acceptable in an ordinary manner, so really in a way there is no way that I believe that the birch can be sentenced in future if those sort of ideals are going to be relied upon.
The other question I have, sir, is when it comes down to withdrawal itself, I believe that we could only use our own laws if we are completely independent, and there is no way in my mind that the subject of the birch should force us into a situation of complete independence. I believe that if we remain a Crown dependency, as I hope we will do, then the assenting state which has responsibility for our external affairs will be able to say to us, unless we are competely withdrawn, that the Strasbourg law must be acceded to, and I gather that that law is not one of force but is one in which it is stated ‘you will accede to this law’ and eventually the state, which we take it is the United Kingdom at the present time, could really force us to accept a situation of that nature.
Those are the few ponderables that I had, Your Excellency. I can only say that at the present time the birch, to me and to other people, is a token. It is a symbol of justice in this Isle of Man, I think, just as the sword here we have today is a symbol of what we believe in this hon. Court, and I will not move from the present resolution unless some of the ideals that I have at the present time are proved to have feet of clay. I believe, sir, that in our final decision here, we must, no matter what happens, let it go out loud and clear from this hon. Court that law and order in this Isle of Man is the most important thing that we believe in.
Mr. Payne: Your Excellency, hon. members have got a very difficult decision to make in this debate because, as we all know, if we vote against the amendment moved by the hon. member for Ramsey we will be seen as being against human rights. If we vote for the hon. member for Glenfaba’s amendment we obviously will be seen for birching or, if we vote against it, we will be against birching, so we really cannot win. But have we not learnt the lesson? Every one of us wants the birch and it has been taken away from us, and I will accept, although I will be voting for the amendment by the hon. member for Glenfaba, but it has been taken away from us — nothing we can do about it and I doubt if it will ever be used again, I really do.
We must remember what we have been told this afternoon. We have been told by the Chairman of Executive Council that a Bill has to be introduced in order to condone buggery. We have been told that we have got to condone homosexuality. Do we want that? We have been told the Bill has to be introduced. I do not think for one minute it will be passed, but it has to be introduced. If it is not passed, we are against the Convention on Human Rights, and what do we do? In other words, let it go on as we have done with the birch, keep the law as we have it and let it continue without doing anything about it. Do we really want that? I admit, I am a Christian and to me it is a sin — it is as simple as that, and I believe the majority of people in the Isle of Man will feel exactly the same way. Again, we will be told, ‘Whatever you think in the Isle of Man, you have got to allow
Human Rights Convention — Debate Concluded TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1305 homosexuality to occur between consenting adults in private’. Twenty-one is the age now, but the gay community — and I hate that word — but the gay community are campaigning now for human rights that it should be down to 16-year-olds, campaigning and we will no doubt, some time in the future, be told that it has to be law in our island that that should occur. We do not want it but, okay, let us grow up and let us agree with what everybody else says that we have to do. I am against it. Another one too, corporal punishment in schools, we will be told that we cannot do it. Fine. If that is what you want, go along that road. Please do. But I will have nothing to do with it. My way out is to vote for the hon. member for Glenfaba and for the resolution as printed.
Dr. Moore: Your Excellency, on the right of individual petition there are very strong and very sincerely felt feelings on both sides, and I would just like to record my gratitude to the members and Chairman of Executive Council for allowing its members to express their own feelings and not toe a party line on this one. I think that any country will always say ‘There will never be any need for one of our citizens to go outside the boundaries of this Government to seek justice’ and yet, if we look round the world, we can all see other countries which do not have this right which need it. I think, quite honestly, that we do have a right to give our citizens the alternative possibility of, if necessary, seeking justice outside the Isle of Man, and therefore as a matter of principle I will support the amendment of the hon. member for Ramsey, Mr. Bell.
Mr. G.V.H. Kneale: Your Excellency, there are some of us in this Court who went to war to fight for the protection of human rights and fundamental freedoms and I can assure you, from the observations of six years in the army in these areas, that what is passing for human rights now bears no relationship at all (Members: Hear, hear.) to what they were talking about during the war and after the war. The thing now looks to me as if we have got round to some set-up for the protection of the bad guys (Members: Hear, hear.) because that is what is happening.
Now we talk about fundamental freedoms. As far as I am concerned we in the Isle of Man have got the right of fundamental freedoms of making our own laws and refusing to accept laws that we do not agree with, but if you get involved with this European Convention and all these other things there you are bound to introduce laws that you do not want.
We have heard the reference to the homosexuality and that it is all right for consenting adults. If these people kept their perverted ideas to themselves it would be all right but the number of times they involve children, and here now you have got people even advocating in the United Kingdom child prostitution.
•V* I am afraid that we have relaxed far too much on our standards, that we have lowered our standards, we have relaxed on our standards of discipline and it is time we started pulling ourselves together and I do not care if the rest of the world thinks that we are bad guys because we will not agree to what is going on in the rest of the world. Maybe sooner or later there rest of the world will get round to realising that their pussyfooting and their soft approach has not worked and you have only
Human Rights Convention — Debate Concluded TI306 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 got to look at the way the world has developed now and the sooner we get round to a bit of discipline, especially self discipline, the better.
Mr. Ward: Your Excellency, I think that in this case somebody has mentioned the fact of standing up and being counted and quite frankly I am making no difference today than what I have done in any previous vote, I think, on this subject and if Mr. Speaker had not seconded Mr. Bell’s amendment I certainly would have done. I do so because — and I am trying to sort of screen from some of the horrible things that have been said and I do not think that anybody that knows me well could think for one moment that I would be supporting in any way those sort of things — But I do earnestly believe, like Dr. Moore has said, that there may be an occasion there could quite possibly be an occasion. When the fundamental rights Treaty was signed it was for inhumanity to man, it was for cruelty, for torture, everything that had happened dreadfully during the Second World War and I think we were all conscious of the fact that when that treaty was signed there was a real and earnest and honest purpose behind it.
Now I take on board quite frankly some of things that have been said and I agree with the member for Glenfaba very well. We were all, well, I do not think we were a unanimous Tynwald; we were not quite a unanimous Tynwald, but we were certainly a unanimous Tynwald with regard to the issue of the birch, and any way in which it could be brought about or it could be introduced, certainly, I think, most of us would go along with that. But over and above that the overriding factor which influences me in this is that so many people around the world today are denied the ordinary fundamental rights which we kick about as if they were nothing. And that is what worries me to a great extent, a lot of people that cannot say what they want to do, they are not allowed to do what they want to do and certainly they live a very different life to what we have with all the trials and tribulations that we think we have got here. I am not saying for one moment that the Isle of Man should be any different from anywhere else but I do believe that that basic right to apply to some authority outside of this island should be still with us, for the case of fundamental rights. God knows, who knows, in ten or 15 years we may be faced with a Baby Doc situation in the Isle of Man or even a Papa Doc situation. (Laughter and interruption)
Mr. Lowey: W hat is up, doc? (Laughter)
Mr. Ward: It may not be a matter of worrying about the gays et cetera. It may be a matter of worrying about something much more fundamental, that either the system of Government or somebody is going wrong in the Isle of Man with regard to their duties in the Isle of Man and it may be that somebody in the Isle of Man wants to appeal to somebody outside. So for those very reasons, as far as I am concerned and I have been pretty straight through all the way on this, I will still vote for the right for people to appeal to whatever it is and it is a situation we have inherited, whether we like it or not, and I would not change that.
Mr. Irving: Your Excellency, I do not think the question of birching really comes into this debate this afternoon. I do not think it really matters all that much, except
Human Rights Convention — Debate Concluded TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1307 in the case of the amendment by the hon. member for Glenfaba who wants us to put the question of birching above the question of human rights and I doubt if this parliament is prepared to do it. I certainly do not want to be a member of a parliament who, for the hopeless sake of birching, is prepared to say ‘I am against the Court of Human Rights’. If I may begin with the hon. member for Glenfaba, he says the Manx people want the birch. He is quite sure of it. So am I. I believe they do. But I believe a lot of them have decided it is pretty much of a dead duck; I believe they have. As much as they want it, they realise that it will never be re-imposed again in this island. The hon. member is speaking against something, he did not say what it was. Whether it was the amendment of the hon. member for Ramsey that did not come up, I do not know. Yes, indeed, sir, you. Mr. Anderson: I spoke before the hon. member for Ramsey. Mr. Irving: I know you did and therefore I was not quite sure what you were speaking against. The hon. member speaks in favour of the birch. Does he recall what happened last time when the birch was awarded in the Isle of Man? Let us think of the circumstances and those circumstances apply now. However much the Manx people may want the birch I believe it is wicked to give them the impression that it can be restored. (Members: Hear, hear.) I do not think it is right. I am not saying it is electioneering — it is very good stuff for an election (Laughter) — I am not saying it is electioneering — but at all costs we must never give the impression that we could easily restore the birch. We have had debate after debate in this Chamber about birching, all the reasons for, some reasons against and so on and what we have never been able to do is to restore the opportunity to impose it. Now last time it was awarded in the Isle of Man there was an appeal. The person who was sentenced to the birch, it is said, put in an appeal. He was then offered several thousand pounds by two national newspapers to report to them after he had had the birch, what it was all about, and certain people in this Court were quite upset that this man was trying to withdraw his appeal. He was not allowed to withdraw withdraw his appeal and the appeal went on. But what is more important, while that appeal was going on the Secretary of State in the United Kingdom, Mr. Whitelaw, was sitting there with his pen in his hand ready to reprieve this person completely, if the appeal had not been upheld. I know. I was at Government House at the time, sitting there waiting for the result with the thenJJeutenant-Governor; I happened to be Chairman of Executive Council at the time and we knew the moment that it was said this fellow’s appeal would fail and he would be birched the Home Secretary was prepared to reprieve him and, what is more, we were told that in future that would apply and we may be quite sure that if a sentence of birching was given in the Isle of Man now the person would be reprieved by the Home Secretary. So that however much — and he is right people do want it — Mr. Anderson feels that he can retain the birch in the Island, I do not know how. The hon. member for Glenfaba, Mr. Gilbey, he says, I know he said, he was sure Mrs. Thatcher was in favour of judicial corporal punishment. Mr. Gilbey: I said I believe that to be the case, yes.
Mr. Irving: Well, then you do not read the newspapers very well, sir, because she said the other day that it was completely dead and it would never be restored
Human Rights Convention — Debate Concluded TI308 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 in the United Kingdom. (Interruption) The hon. member gives me the impression this afternoon of someone who is starting a preservation society for the dodo. (Laughter) It is just not on, sir.
I believe the United Kingdom would never agree to the Isle of Man coming out of the Human Rights Convention. What is more, they would not agree. But I believe an application from the Isle of Man to the United Kingdom to come out would do us enormous damage. I cannot believe that this Government would dare to send an application to the United Kingdom Government, ‘Please get us out of the Convention on Human Rights’. Impossible, impossible, and I think hon. members who vote for it not only damage our chances of any constitutional advancement but they do enormous damage in the image of the Isle of Man in the United Kingdom and especially in Government circles, which, whether you like or not, is important, not because the Manx people want birching but because of the lengths certain policitians in the Isle of Man may be prepared to go to keep the birch.
I think, as the hon. member for Ramsey, I support him entirely when he says what poor company we are in, with Turkey, Cyprus, Greece and Malta. You might as well add Chile and a few more other places. I believe even if applications, petitions to the Court of Human Rights may not be necessary in the Isle of Man, as some members have said, I believe as a civilised community we have got to back the international effort, as the hon. member of the Council, Mr. Ward, has said. I know we say we have the right to make our own laws. We have the right to make some of our own laws and certain hon. members would like to see that right extended. I would too, but we will not get it by saying we will have nothing more to do with human rights.
The hon. member for Ramsey wants individual application by individuals. How can a community that encourages individuals to come to an open-air meeting of the parliament with petitions, where they feel their rights are involved, how can we as a community like that say ‘We are not going to let any individuals go to the Court of Human Rights’? This is one of the most important things of the Court of Human Rights, that an individual can go against his Government, against his country. Surely this is a major point in favour of individual application. The individual may not have the Government backing him in whatever suffering he has at the hands of a Government. The Government say ‘No’. And what does he do then, try and find another country that might put it forward? And, as the the hon. member said, are we to have second-class citizens in the Isle of Man who have not the right to go to an international court of justice? Good gracious me. It is the amendment of the hon. member for Glenfaba that really shocks me, that wants to pull out of the whole thing. I hope hon. members will reject that.
Mr. Delaney: I will be brief, Your Excellency. I am delighted that the ex-Chairman of Executive Council has tried to get some sense in the debate following the speech by the Speaker. The Speaker put forward and I was delighted and honoured to second the resolution that actually did something and he has been quite correct, there is no gut feeling to do anything really. This is all shouting at the wind virtually. We came in ten years ago, for those members, senior members now they Human Rights Convention — Debate Concluded TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1309
keep referring to them as, on the birching issue which was one of the big things at the time and in ten years what have we got out of it? Nothing, not a thing except every so often they throw it up in the air and everyone stands below hoping to catch a piece of the action because that is exactly what it is.
I must congratulate the member for Ramsey on his speech. While I do not agree with some of the content, the way it was presented, a lot of the detail in it, the reality of it, would have done, I think, the Richard Dimbleby Lecture some pride. I really was pleased that we could produce or a member could produce such a well thought out speech on his beliefs, certainly in support of a subject as human rights, and I am delighted that I will be supporting him, but not for all the reasons he put forward because, like the member for Middle, and I have listened closely and I read very closely the circular put out by the Attorney-General in relation to two issues, in relation to the birching issue and certainly the homosexuality law. Now let members not kid themselves. We are talking about law which was in being, virtually, when Oscar Wilde was tried. Now we have been told in this Court, the Chamber that makes legislation, and there has been no change in that legislation, that there has not been a case brought to court for, how many years? I would ask the Attorney-General, how many years? Yet we know, we are not that stupid, surely, we know that that law has been broken on many occasions, the law of the Isle of Man, not the law of Britain. But like a lot of other things — and I would look at the Chairman of the Police Committee for an answer to this one — have we got a policy of turning a blind eye to laws that we do not like or might upset somebody? Is it only laws we think we can get away with pursuing that we are prepared to let the police pursue? The answer must be ‘Yes’. Laws for some and laws for others. The Homosexuality Act in Britain is quite complete, comprehensive. We have not got it here. We have another set of laws which go back as far as I have indicated but very few cases, if any, in the last 50 or 60, years even though we know that law has broken, have been pursued. Has somebody said to the Chief Constable or to the Attorney-General ‘If a case is brought to your attention you should smother it because we do not want to even admit that it takes place in the Isle of Man’? Is that what has happened? I do not know, but maybe somebody will tell us. If you vote, as I am going to vote, to get the Manx people’s rights back because I think, from what has happened since the Speaker put forward his resolution, there is no gut feeling to do anything about our Bill of rights or about the protection that we would like to give them in this Court to the ordinary Manx person or the Manx resident, if that is the case, I have to give them some other protection and the protection I want to give them, if I cannot give it to them here, is out there in the big wide world. As the hon. has said, I have been stationed in Turkey. I have been stationed in Cyprus. I would not change or swap ten feet of Douglas promenade in the middle of winter for the whole lot of it. That is how I feel about it. I have seen the peasantry. I have seen the way they are treated. As far as I am concerned, as Mr. Ward has said — and I disagree with my colleague behind me — things in the world have not really changed. You have only got to look at what is going on in the Philippines and other places. Papa Doc was mentioned. It is still happening in the world and are we going to be outside the ring shouting advice to the boxers or are we going to be in there trying to support the people who we think are right? We can do that by allying ourselves to those
Human Rights Convention — Debate Concluded T I310 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 people, even with the faults and the mistakes and even with maybe the way they are pursuing homosexuality and other things which we may not personally agree with. The idea was a sound one then and it is still as sound today.
I honestly believe that to try and get the soft way out for political purposes, to try and kid the Manx people that birching in some way, which we keep saying cannot be implemented, will be somehow kept here because we support an amendment which is thrown down. The original resolution you could vote for or against. It was a clear-cut case. You either wanted it or you did not want it. Now we have a new ball game, not a new ball game, I am sorry, that is totally wrong. We have an old broken down football which has been burst on so many occasions nobody can now even pump up, thrown in the circle and we are all chasing it: birching. What a nonsense, with the problems we have got in the Isle of Man, to even consider that that is all we can do for the Manx people. I hope that the members do come down, regardless of how they feel about birching and I continue to support it as a deterrent and I always will do probably, but knowing that I cannot implement it, with the constitutional relationship I have with Britain and other places, does not make it easier for me to support an amendment which will take us no further than the place I am standing now. That is exactly what that amendment does. I would rather achieve something positive, because in my time in this term of Government, four years, I have had two cases to me personally. One, as I have said, I set a series of questions in this Court to the Attorney-General on behalf of one person who wished to go to the Court of Human Rights. That is how close it is to me and it should be to other members. If there is only one person who wants to take up that opportunity, because I cannot protect them here and he wants to get his rights, I should be able to give it to him or support him in getting it and that is what the question comes down to. Forget about whether you can go back to your constituents and say ‘Oh, I am all for birching. I supported the amendment in Tynwald. I supported that. Give me your vote’. That is what it will come down to. Turn round and tell them, yes, you support birching if we could implement it. But to follow some fallacy that you are doing something for the people of the Isle of Man, whether or not we know the majority would vote for keeping birching, I am quite sure they would, but you are not doing anything for them by supporting that amendment. Support what the member for Ramsey has said or support the resolution. That is the only thing in front of us and let us not be kidded and go back to the public again and pretend that we have conned them, because that is exactly what we would be doing if we support that amendment.
Mr. Faragher: Your Excellency, I cannot help but agree with some of the sentiments which were expressed by the hon. member who has just resumed his seat. I too have been waiting for the day to dawn when this old worn-out clapped-out deflated football called the birch would be brought out for a kicking session. It was inevitable that it was going to happen some time between now and November of course. (Laughter) I am saddened, now that I have seen and heard it being dragged out, just how parochial and how entrenched and how unenlightened the arguments that have associated this particular kicking round of the football have been and it would appear to me that many hon. members perhaps have not learned anything over the last few years of the damage that the Isle of Man’s reputation has suffered
Human Rights Convention — Debate Concluded TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1311 in the outside world as a result of this issue and that, as a result, the birch itself has not been placed in the correct perspective. It is the universal panacea still to so many people. It is going to transform Manx society back to its Victorian values. It is going to do wonderful things. I would suggest, hon. members, it would do no such thing and I suspect that there are a lot of things with which it has been credited in the past are ill-founded and would not stand up to close scrutiny.
It has been suggested very clearly here today that we have a choice, that we do not have a choice, really, that in order to have law and order we must have the birch and that we cannot have one without the other. The hon. member for Glenfaba, Mr. Gilbey, said that the preservation of law and order is a paramount concern of the Government. Of course it is. Unfortunately there is some very clear implication here today that anybody who says anything at all against the birch and in favour of us retaining again our links with the European Convention for the Protection of Human Rights, that such people have got scant regard for law and order. Nothing would be further from the truth. But it is for hon. membfcrs to know and fully appreciate that the Isle of Man has got a choice in this world and that it may well have to pay a price, in the form of the birch and one or two other matters, in order to further its aspirations in the international field and I have no doubt whatever which is the more important of the two. Unfortunately, of course, as the hon. member Mr. Delaney has said, we all find ourselves standing on doorsteps having to defend our position on the birch somehow, knowing perfectly well that it will not return. Say what you like about it, it will not return and we know it will not return and we know why it will not return. It is unfortunately the problem of trying to convey that argument across the doorstep, that is where the problems lies.
Now it was said that over recent years there have been increases in crimes of violence in the Island, as indeed there have been elsewhere, and it goes without saying to what cause this has been attributed. But I would suggest, and I think without fear of contradiction, that the social changes that have been thrust upon the Isle of M an in the 1960s and 1970s as a result of rapid and artificial inflation of population, that is the door alongside which you can lay your increase in crime in the Isle of Man over that period, regardless of what punishments you would have had in store for those who committed misdemeanours.
Mr. Gilbey said that there were three possible means of overcoming increase in crime. One was to remove the social causes, perfectly laudable. Secondly was the maintenance of a good and effective police force, for which I put up both hands and I am sure every other hon. member does as well, and third, of course, was adequate sentences. What really went wrong in the Isle of Man at the time when the birch was officially struck off the active book was that it was not replaced with something parallel to it and that where a sentence previously might have been awarded a birching sentence the comparable prison sentence did not equate at all to a sentence for birching, and not only then but things have not changed up until now. A recent case of a policeman who was viciously assaulted, the sentence imposed was pathetic. (Interruption) The maximums are there. It does not do any good.
Mr. Payne: It is nothing to do with us.
Human Rights Convention — Debate Concluded T1312 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986
Mr. Faragher: But at the same time, a few years back, that would have been an occasion on which, I do not have the slightest doubt, the birch would have been awarded. But does birch equate to what is being offered as an alternative? No, it does not. Now what 1 am saying is that the cost that we feel is being imposed upon us, in that we have to forfeit our right to impose the birch, that cost is not as great as we imagine it to be because we still have a whole range of alternatives and I feel perhaps that we are not using those alternatives.
Now as far as other professional attitudes are concerned towards the birch of course, we are fully acquainted with the fact that the medical profession, I think, en bloc, will have nothing whatever to do with any future birching sentence. To that I learn that the hon. member for Glenfaba, Mr. Gilbey, has managed to find a G.P., I understand, who would certify a man fit for sentence, despite the ethical stand which has been taken by his profession and all I can say to that is that it never ceases to amaze me what can be found in Glenfaba. (Laughter)
Mr. Delaney: Is that with the Kerb crawlers as well?
Mr. Faragher: The hon. member for Council, Mr. Callin, made reference to a television programme recently and this again is an illustration of the trap into which I think, we fall so often when we, at the drop of a hat, compare what happens in the Isle of Man to what happens in the United Kingdom. What happens where in the United Kingdom? Not what happens in a rural community, which can be directly compared to the Isle of Man. Because I suspect, hon. members, that if one was to identify sufficient rural areas in the United Kingdom, directly comparable in terms of population and type of population to the Isle of Man, we would find that the Isle of Man does not fare at all well as far as crime rates are concerned, at all well. Of course if you want to compare it with down town in the east end of London you will find all the statistics you like about attacks, muggings, rapes, violence you name it and that is exactly what this very television programme was referring to. But, hon. members, compare yourselves with other offshore islands, compare yourselves with other rural districts with the same thin spread of population and I suspect you will find a few shocks. You will find that the Isle of Man’s crime rate amongst those is amongst the highest, not amongst the lowest, and scan your own newspapers to find out how much crime is going on in the Isle of Man. We are not above or below anybody else. We are just average. We like to think that because of this stretch of sea, for some strange reason, we have absolved ourselves from all the problems of the twentieth century elsewhere in Britain.
As regards reference of matters to Europe for consideration, hon. members have already drawn attention to two areas at the moment where we are only too keen to seek European judgement on matters on which we are not happy, the first being Sellafield and the second being our own fisheries jurisdiction issue. It seems that it is perfectly all right for us to use Europe to criticise others but do not anybody use Europe as a means to criticise us. That is what we are saying. I think it is imperative that we should stand up and be counted, certainly, and that we should permit our individuals in the Isle of Man to stand up and be protected in the same way as we seek that same sort of protection ourselves. What I would say, Your
Human Rights Convention — Debate Concluded TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1313
Excellency, and ask hon. members is that we should not let the birch come between us and international integrity for the Isle of Man, and I would urge hon. members to support the amendment which has been laid down by the hon. member for Ramsey, Mr. Bell.
Mr. Cringle: Your Excellency, I have thoroughly enjoyed this afternoon’s debate. I think that today we have had an excellent debate. We have had two good papers, to put it that way, put by the hon. member for Glenfaba and the hon. member for Ramsey to set the scene following the Chairman of Executive Council’s brief to open the debate. Both, I think, are putting their case in the way in which they feel is right and it has led to a considerable amount of soul-searching which has gone on in members when they in turn have stood to make their contributions. It has been interesting to see how very easily you can become polarised one side or the other yet again in this particular instance and then you have to refer yourself back to what you have said or some of us have said on a number of occasions at various hustings. So we take that right back onto the Floor of this hon. Court and my hon. colleague has just said that he has been waiting and others have said it earlier that this deflated football, he picked up the words from the hon. member for East Douglas, would be kicked around in the Court again. I think what this hon. Court has to realise is the very comment which was made in the first paragraph of the speech which the Chairman of Executive Council gave to us, which I under stand has been circulated to members anyway, where it said ‘The Home Office has advised that the United Kingdom Government has decided to renew for a further period until 31st January 1991, and, as members will very well realise, as Mr. Speaker picked up from five years ago, we are on the five year circle and so inevitably it comes round and it would come or could come again in 1991. We have had these two, as I said, papers one from Glenfaba and one from Ramsey, again going on both sides.
I was very interested in Mr. Speaker’s comment this afternoon when he points out that certain of us members are guilty in his eyes of getting rid of the birch from the Isle of Man. I would say to Mr. Speaker, as one of those guilty members, that if what you are saying is correct it was certainly unwittingly done and I would say to you, sir, that you know better than any other member of this hon. Court that constitutional issues move but very slowly.
The Speaker: They did not move at all.
Mr. Cringle: And because they move very slowly, because they move slowly you have to acknowledge that that is no reason for anyone to jump immediately onto the other side of the fence because he thinks that that side of the fence might be more comfortable. When you are dealing with constitutional issues, as time has proven, they do go slowly and certainly the constitutional issues which have taken place in the Isle of Man in the last ten years have been immense. In the last five years there have equally been considerable constitutional changes. Those constitutional changes, hon. members, might not have been as a direct alteration to the constitution between ourselves and the United Kingdom but I could suggest
Human Rights Convention — Debate Concluded TI314 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 to this hon. Court that we have put considerable input into getting our own house in order ready for the next change, and I think that is what members should bear in mind this afternoon when you come to the voting, because when you come to the vote this afternoon I think you want to bear in mind what Mr. Speaker said about constitutional change, as to where we go in the future. I think you want to bear in mind what has been said on both sides of the fence in relation to the birch, as to whether we can instantly bring it back or whether we should instantly get rid of it. I know that instantly get rid of it is not in the hon. member for Ramsey’s resolution but the word “not” is taken out and the hon. member for Ramsey knows, as every member on the Floor of this Court knows, that at this particular time our own house is not in order and if we follow that line we can be again getting onto a wheel which would be most unsatisfactory.
Now the United Kingdom Government has asked if we would like to be a party to the five-year circle. I would suggest to this hon. Court, bearing in mind what has been said this afternoon, that Executive Council in its recommendation on the Agenda Paper has the right answer. Politics is all, what was said earlier this after noon, the art of the possible and the art of the possible is that you must get your own house in order. You must be ready to play the game because if you are not ready to play the game you will certainly lose. We must have our constitutional house in order here, to take on the United Kingdom Government in further advancement. We equally must have our own laws in order in the Isle of Man before we step off something which we know is instantly wrong. We know now. I would suggest to this hon. Court any time up to 1991 — and the Attorney-General will tell me if I am wrong — but at any time we could ask to pick this up. It has not just got to be now. We can say at this stage the status quo exists and if you want to pick it up in two years’ time or three years’ time the choice will there for whoever is serving in Tynwald Court at the time and I would suggest to this hon. Court that the wise thing to do today is to vote with the resolution on the Agenda Paper.
Mrs. Hanson: Your Excellency, since my election in 1974 to this hon. Court those members who have been here during that time will know of my very strong support of the retention of judicial corporal punishment and I would like to challenge the remarks made by one of the hon. members for Rushen, that we have lost credibility with the outside world because of our attitude as regards human rights. I would like to tell him of an experience I had in New York a few years ago. I went into a shop on Broadway late one night to make a purchase. I handed over a Eurocheque card and, much to my astonishment the people behind the counter, he called them, the gentleman,‘Come over here’, he said, ‘and meet this lady. She is from an island called the Isle of Man’ and he said, ‘You, madam, have you got the birch, judicial corporal punishment?’ I said, ‘Yes, it is on our statute book.’ ‘Madam’, he said, ‘never let it go. I only wish, we had it here? (Interruption) Not only that, I have been away recently on Merseyside (Laughter) You may laugh but it is true. I have been on Merseyside. I have met women who have been knocked about. I have seen women black and blue by muggers breaking into the house. They tell me they are terrified of opening the door. Now do we want a situation to develop
Human Rights Convention — Debate Concluded TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1315 like that here? Birch is a deterrent. I have represented for three elections have been elected to West Douglas, the area which Mr. Irving is now one of the members.
Mr. Anderson: He will be out for November!
Mrs. Hanson: And I can assure this Court that 99.9 per cent, of those constituents want to retain the birch. In fact I am inundated now, since this episode down at the post office lane the other night; that is one occasion; the incident of the policeman being knocked about, kicked down in the South. I have had telephone calls. I have had people stopping me everywhere I go — ‘Mrs. Hanson, when are we going to bring back the birch?’
Mr. Delaney: And did you give an answer?
Mrs. Hanson: I explained the reason why we cannot at the moment. But, having heard the speech given by the hon. member for Glenfaba, I am beginning to wonder whether somehow we have a way of re-introducing the birch and I know people of West Douglas, if I was to tell them that today I would vote and I intend to vote for his amendment, that there is a chance of re-introducing the deterrent of judicial corporal punishment in the Isle of Man I know they will applaud. I can say that with every confidence because every time I have assured them and I have been asked absolutely point blank on every doorstep ‘Do you support the retention of the birch?’ and I have assured them I do and this afternoon I vote for that amendment because I believe that is one way of re-introducing judicial corporal punishment into this island.
Mr. Brown: Your Excellency, I am really brought to my feet a bit by the last speaker and quite honestly —
Mr. Delaney: Were you the shopkeeper in New York? (Laughter)
Mr. Brown: — sometimes it is very easy to stand up and say what the public want to hear and it is very difficult to say what we know as fact. (Interruptions) Let me say from my side, I am a person who supports the birch but there is one thing I have found out being a member of this hon. Court: we will never ever be able to use the birch again. It is as simple as that. Because even if we pass laws, as the hon. member for West Douglas has said, it would be stopped from across. Even if we become independent, doctors here will not do it unless they happen to in private practice or whatever. We are not able to use the birch and it is as simple as that. Jersey have recognised that fact and I remember reading an article, because they have recognised the fact they have actually taken it off their statute book. Now what I really wanted to say is, yes, it is easy to say to people ‘I support the birch’. Then they say ‘Well, what are you going to do to bring it back?’ And quite honestly, from what I see, there is nothing we can do to bring it back to the Isle of Man.
The other important point has to be what, then, can it do for us? The hon. member of Council mentioned about the two people who robbed somebody in Strand Street. They would not get the birch for that.
Human Rights Convention — Debate Concluded TI316 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986
Mrs. Hanson: If they attacked them, if there was violence they would.
Mr. Brown: The chances are they would not get the birch for that. Another member for Council made the point, Mr. Callin, about Britain being the most crime ridden place in Europe and yet the rest of Europe is in this convention. So is it the convention that is wrong or is it the nation that has got a problem? I have stood here on many times when it has been criticised about our problems in the Isle of M an and we need more police and we need more of this, that and the other. I do not believe that is because we are either in or out of this thing. It is about our society and if this hon. Court wants to criticise some of the things that are going on out side that are creating us a problem which there are — violence, on a small scale albeit, robberies which are increasing maybe or whatever — we should look at ourselves as a Government and say ‘Where are we failing?’ Because I can assure you we are failing. There are far more areas where we could invest money in our island that would stop a lot of the problems we have, far more, and we do nothing about it. We let people do it voluntarily. We let people just be ignored. We use policemen to do welfare work. They are called in on family disputes. What rubbish. It goes on all the time. If you talk to the police they tell you it is not their job, yet they have to sit and try and resolve family problems sometimes because there just is not anybody else. So what are we doing about it? If we want to resolve the problems our society has, and there are problems, we have a youth service where the Board of Education cannot get enough money to provide an adequate youth service. We have young people who do not go to the clubs, and the hon. chairman knows my views, but we have young people who will not go to the youth clubs because they say there is nothing to do there.
Mr. Maddrell: There is in ours.
Mr. Brown: Well, maybe Onchan is lucky, but the point is that generally throughout the Isle of Man there is a problem in that service. So do not use this as the excuse, because that is what seems to be coming over to me, and do not think that the birch will save the Isle of Man because that is not so, and I am one who supports the birch but we cannot bring it back; I do not believe that for one minute.
We, because of that, are saying ‘Let us, then, deprive all the other rights that* our people should have’ and we, as has already been said, a place who prides ourself on having a place they can come and petition us once a year. But what happens if they are petitioning the Government that is the very problem they have and they cannot get through to them? Where do they go? They cannot go anywhere except leave the Isle of Man. They cannot now even go to His Excellency in the same way because his powers are so restricted. So they have nowhere to go. Therefore we have to balance up where we go down the road of being part of Europe and I do not believe, in all the work that has gone over the years of getting a health service, getting an education service, getting all the other things that the Isle of Man is proud to boast of, that we are saying that nobody can have the right to complain if they do not agree with the Isle of Man’s Government over a certain matter. I think it is crazy.
Human Rights Convention — Debate Concluded TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1317
I sat here with very mixed feelings when part of the arguments were going and luckily picked up other points that even outweighed some of those arguments. What Mr. Payne said was quite strong and is something I am sure we all are very worried about, but how far does that outweigh the other side of it? It is a problem we have to look at. In fact this has become a birch issue, to a degree, by some members.
Mr. Delaney: It is the birch issue.
Mr. Brown: It has become a birch issue again and it is more than that. It is more than about the birch. It is about the rights of the people of the Isle of Man in a modern society and I think that is what we should keep in our mind and I think the amendment by the member for Ramsey, Mr. Bell, is the one that we should follow and we should go along that road. I really think, by not doing that, regardless of whatever else and regardless that 90-odd per cent, of my people in my area will say they want the birch; they will also say they want their human rights and if I lose them that one for all the rest I do not believe that is really what they want. They may say it, but if they look in detail they will say ‘I want my rights’.
Mr. Karran: Your Excellency, all I would like to say on the issue is I was quite surprised by the hon. member for Council, Mrs. Hanson. If you look at the figures since birching has stopped, since 1976 —
Mr. Brown: Nobody has been birched.
Mr. Karran: — there have been 1,991 cases overall; to 1984 there were 3,475 cases. Of crimes of violence, where the birch could be used as a punishment, there has been in 1976 95 to 121 in 1984. This means that overall crime has gone up by 86 per cent, and yet crimes of violence have only gone up by 21 per cent. So the point is that this idea that just because the birch is not here suddenly crime — I did stand up on a platform at the requisition meeting in 1981 and I said because I saw how other members were shouting, how we want to have internment camps with sergeant majors at Jurby airport and how this was what we want to do and I said then that there is a very good old saying that says the devil finds work for idle hands. If we pursue a policy of mass unemployment, of allowing our youngsters not to have a future, of creating the divided society, then that will do more to create more crimes of violence than birching, even if you brought it every week. This is the thing. If you have mass unemployment and things like this, this is what this hon. Court should be more concerned over if it wants to look after the law and order of this island.
So this is what I would like to say to this hon. Court over this and I think that what the hon. member for West Douglas, Mr. Irving, said and the hon. member for Ramsey has said and the hon. member Mr. Ward has said is very appropriate and I shall be supporting the hon. member for Ramsey’s amendment.
Mr. Walker: Your Excellency, very briefly, I would just align myself with the views of those who have said that the birch is a lost cause. I think it certainly is and I think that we should recognise that and I cannot support the amendment put
Human Rights Convention — Debate Concluded T I318 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 forward by Mr. Gilbey for that reason; I think it would give false hope to those that seek to have it retained. I do, though, think that we have to look to the future and to do that we have to reflect on the past and how often was it said prior to 1981 that people never thought that such a thing as the birching would be brought into the human rights area? I think we have to ask ourselves, what to the future? We have had caning in schools mentioned. We have had homosexuality laws mentioned. Work permits and the right to work are something else which have been mentioned by persons outside this Court and I for one again would not mind if our work permit legislation was gone but, as with our legislation to do with homosexuality, I would like that to be a decision of this hon. Court and the House of Keys because we want to introduce that legislation and not because somebody outside is saying ‘You have got to do it if you are going to comply with what you have signed’. So we are in a changing world and I think we have to recognise that. I certainly will go along with the resolution as printed on the Agenda Paper.
1 think that the contribution that was made by a member today, which has made me think twice, is that of Mr. Speaker where he suggests that perhaps if we do not be a signatory in some way it may mitigate against our constitutional advance. I do not think that that is the case. It may be an argument put but I would agree with my hon. colleague Mr. Cringle, who says that we have made constitutional advance in the last five years and it should be recognised for that, and that has been done in spite of not being signatories. The next steps may be more difficult to attain but they have got to be striven after and I do not think that legitimately it can be used as a reason against us for constitutional advance, the fact that we have not agreed to the petition for the individual to approach Europe.
We must look to the future. At the same time we cannot afford to ignore the past. It has been a difficult time and I certainly do not want to entrench myself in it again. Mr. Cretney: Your Excellency, very briefly, no matter what I or the people I represent feel about the birch I also have come to the opinion that it appears to be a dead issue. I will refer to that in a moment.
Mr. Gilbey, the hon. member for Glenfaba, when speaking of the crimes of violence and how he had figures to prove they had doubled in the period 1977 to 1985,1 presume, he forgot to mention that also in that period there has been social change and one of the most important social changes is that in the period of 1977 the lowest number of unemployed was 449 and in 1985 the lowest number of unemployed in that particular year was 1,913.
Mr. Gilbey: Can I correct the hon. member? I was not referring to 1985, Your Excellency. I was referring to 1984 and therefore the hon. member’s statistics will be wrong. He should refer to unemployment in 1984.
Mr. Cretney: I thank the hon. member for correcting me on that. I would still say that they have increased quite substantially in that period of time. In fact if
Human Rights Convention — Debate Concluded TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1319 it was the 1985 figure it could be seen they have been increased four-fold. 1 just wish to make that point because I think that is a contributory factor towards the problems that exist as regards crimes of violence.
The point I would like to make is to ask — we have a legal man in this hon. Court and up until now he has not been asked for his opinion — and I would like to ask the learned Attorney-General what is his opinion as regards the birching issue? Does he consider it as a dead issue? Does he consider that, as Mr. Gilbey feels, we can continue and get it back? Thank you, Your Excellency.
The Attorney-General: Your Excellency, I have not taken any part in this debate and I would think it is not right that I should express any personal views on this issue.
The legal position that exists at the present time was summarised in my paper to the magistrates which was quoted in some detail by the hon. for Glenfaba and I do not propose to repeat that. The position is, therefore, that at the present time I cannot see any circumstances arising when a court would be able to impose a birching sentence. That is what I said five years ago and the situation has not changed. For that to change there would clearly have to be a change in our relationship to the Council of Europe. I think there would probably also have to be a different judicial approach to the subject which, I think, would probably require a change in our own law. So I think there would certainly need to be two changes before there will be any change in the situation as I described it in 1981.
The Governor: Hon. members, I sense that we are ready to call upon the Chair man of the Executive Council to reply.
Dr. Mann: Your Excellency, this has been a very interesting debate, one which to some extent may have been predictable, some parts of which may be unpredictable. The fact that it is a very serious decision that we have to make here this evening makes it rather strange that we are talking to totally empty seats. I do not know if the lateness of the hour is the reason but if it is a judgement on this Court that we are facing, in the public gallery, totally empty seats, in any case it is a very interesting phenomenon. That, I think, we ought to start by observing.
I thank individual members for their contributions either for or against the resolution. I think we do come down, basically, to the proposals of three people. That is not to insult all those who have taken part in the debate but we shall be here all night if we talk about every individual person.
I think firstly we have to refer to the amendment put forward by the hon. member for Glenfaba, Mr. Gilbey, who not only does not accept the status quo but wishes to pursue a far more radical, if one uses that in its widest sense rather than in its political sense, approach to the subject, going to the ultimate extent of asking the United Kingdom to withdraw us from the convention totally. He is perfectly right that under that particular subsection 4 of 65 it is possible for us to ask the United Kingdom so to do. 1 am sure the United Kingdom would not do it. But that is
Human Rights Convention - Debate Concluded TI320 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 immaterial; at this particular moment it is that we should or should not even ask the question. We will expose ourselves immediately to the attack that we are removing every aspect of individual rights and freedoms in this Isle of Man. Now however much one wants to feel that one is supporting birching or trying to manipulate the Isle of Man into a situation where it can still do that I do not think, in all honesty, that the majority of members would ever take away the total rights of every individual in the Isle of Man.
But apart from that the suggestion that somehow by withdrawing ourselves from the European Convention gives us total freedom to do what we want, it does not, of course, because there is a far greater authority than the European Convention and that is of course the United Nations itself, which we are also party to and extended to us by the United Kingdom the International Covenant on Civil and Political Rights which the United Nations administers. Now that has exactly or almost exactly the same wording as the European Convention. So to do what you suggest is really worthless in the eyes both of Europe and ultimately of the United Nations, and I must come back to what is the question that you are raising because the birch is not the real issue in the convention. It is whether we are treating people in a degrading way. The same word is in the European Convention. The same word is in the United Nations Convention and the courts have ruled that we were treating people in a degrading way and, strangely enough, the United Nations, in the same way as it asks for a report every so often on the political progress of the dependencies of the United Kingdom, also asks the same questions on human rights and in one report that we have seen from the United Nations they asked two questions of the Isle of Man: what progress had been arrived at in getting further self-Government and what progress had been made in removing the degrading punishments? So we cannot on one hand appeal to the United Nations to keep a closer watch on how we are progressing towards independence and at the same time refuse to accept that we should not be criticised for using a particular form of punishment.
What the resolution before you means today is that, if you accept the basic resolution, we are accepting the status quo, the status quo that has existed for the last five years. That advice was given by Executive Council by a majority of the members and, I feel, genuinely reflected, possibly, the majority of members of this Court but we may be entirely wrong; it certainly, by a majority decision, represented the majority opinion in Executive Council. So really the issue here at this moment is whether we allow the status quo that has existed during the last five years to continue for either a further five years or certainly for a length of time that we can determine, because at any time during that five years we can reverse it, or that we entirely change and restore the total right of the individual to make his own petition to the Court, and this is where we come to the amendment from the hon. member for Ramsey, Mr. Bell. Now I entirely accept that there is a very strong feeling amongst a lot of people that the right of the individual must now be para mount, that is, the right of the individual must overcome every other feeling that we have. This is a strong view that we knew existed and which may yet determine the actual decision that this Court makes. I accept that entirely. We do have to recognise the reality that a large majority of ordinary people in the Isle of Man probably want to keep the status quo, but it is a finely balanced decision and in
Human Rights Convention - Debate Concluded TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1321
the end the decision is going to be made here in a very short time. So that was an extremely good speech you made. I am sure you converted a lot of people in this Court who would otherwise have accepted the ordinary status quo as being an acceptable solution. So we do have the two opposites accentuated by the more drastic approach of Mr. Gilbey himself.
But now we come to a very incredible state of affairs because a very experienced and wily politician, the hon. Mr. Speaker, sensing the attractiveness, the impressionable speech that the hon. member for Ramsey has made, decided suddenly to become the upholder, after all these years, of the individual right. (Interruption) That is marvellous; it is marvellous that suddenly the Speaker does accept that there is a different position to occupy. What I totally reject is the reason. If the reason is for political expediency, if the reason is because we are seen to be in a situation that we cannot alter, that it is a fatalistic approach that at last we recognise that nothing can be done, that is fine. But, no, we do not do this. We now blame the situation that enables the Speaker to suddenly be seen in a different light upon the Constitutional Issues Committee. This is quite incredible, sir.
The Speaker: It is quite true.
Dr. Mann: Because if anybody in this Court is scared stiff of independence it is yourself, sir.
The Speaker: I said self-determination. I did not say independence.
Dr. Mann: Yes. Well, I am saying independence because you are misleading the Court, sir, if you think that self-determination, as you suggested, will suddenly give this Government the right to do anything different; you are totally misleading the Court..
The Speaker: What I said was —
Dr. Mann: Because as an entity of self-determination, as a British dependency, because that is what you suggest, then you will be subject in the same way to the United Nations Convention and you will be subject ultimately to the appellate body of the Privy Council. It does not matter one hoot whether you are self-determined under one ministry or under the Home Office. Ultimately your appellate body remains the same. The only way you could escape is to attempt to become truly independent and I would suggest to you, sir, that you study what has been done in the last five years and you will find that those members of the Constitutional Issues Committee, rather than accepting a sham, are actually working towards true and genuine independence. The structure of this Government, when altered, will take those steps and for the first time ever in this Court this Court will be in a position to take them rather than talk about them. If we look back a little bit further than you suggest, sir, to 1971/72 when we were looking at the relationship with Europe, the United Kingdom Government did offer all the things that we could have. It did offer total independence. It did offer independence within the British Commonwealth. (Interruption) It did offer I know there were drawbacks.
Human Rights Convention — Debate Concluded T1322 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986
Mr. Irving: No, it said we could be in the Commonwealth or out.
Dr. Mann: Yes, it gave the choice. However, the issues were that if anybody had had the guts at that point we would be no longer looking at all the items in the Speaker’s long and drawn-out resolution that we all accepted without a debate, because we would have had the ability to have resolved all of them and I know, sir, you felt that there were particular reasons why that should not occur at that time. However, you were a member of the committee and I am not aware that you put in a minority report. (Interruption) I would suggest that true independence would have given us what is required but the sham you are suggesting, sir, will make no difference at all to the issue that is before this Court today. I did not wish, and I am very sorry, that you introduced this red herring of independence as being the solution to this particular problem. This particular problem has got to be decided by this Court on behalf of the Manx people here this evening, irrespective of what the future constitutional relationship is. It has got to be decided on the relationship that exists at this moment. The choice still is before this Court to choose two ways; the status quo which, although it is accepted, probably means that the birch itself cannot be used but it does still have an element of deterrent because while the birch is still on our statute book, although we know it cannot be used, it is a deterrent, I think, to people who come in from outside who feel that there is just that chance that it could and they know it exists and while that chance exists I suggest that the status quo is probably a wise thing to do or wise thing to accept.
As far as the law of homosexuality, this is something that will have to be faced up to very quickly if in fact you immediately go for Mr. Bell’s amendment, because as swiftly as possible we would have to give the right to homosexuals to actually — I do not know the exact words but some of the stronger words I will not use — perform their activities in private over the age of 21. People say this has been going on for years. There is only one way of knowing whether it has been going on for years and that is to invade somebody’s privacy. So unless somebody has invaded somebody’s privacy we have no real means of knowing whether that is true or not.
Mr. Delaney: We have.
Dr. Mann: But we suppose it has been going on. (Interruption) So we do have to face up (Laughter) to the problem of homosexuality. (Interruption and laughter) I am trying, sir, to keep a moral tone to this argument. If you are prepared to accept Mr. Bell’s amendment, then you will be forced to accept very swiftly the legislation passing through the branches and as long as you appreciate that point and do not then place this Government in an unfortunate position of having accepted the rights but then not actually delivering the ability to give those rights a true position.
So the decision ultimately has to be yours. All that Executive Council is doing is to provide a lead based on the majority view of the Council. That view is incorporated in the resolution before you. I think, if you stop and reflect, it is probably the wisest course of action at this particular moment. If the feeling is that we should alter our laws of homosexuality and then accept the right of the individual
Human Rights Convention — Debate Concluded TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1323 petition, that is quite capable of being done. All we have to do at any time is write to the United Kingdom Government and tell them to do it and I am sure they will do it immediately. The Speaker: A point of clarification, Your Excellency. The hon. Chairman of Executive Council has referred to a Tynwald resolution as a sham. Is it not a fact that the Tynwald resolution, which was passed in this Court by both branches, provided that “Tynwald, desirous of maintaining its laws on judicial corporal punish ment, approves immediate action be taken to negotiate the alternative constitutional status recommended by its Constitutional Issues Committee, and approved by Tynwald, as a means of so doing;” that in fact that matter was not progressed by the Constitutional Issues Committee who advised in 1983 that no further action to be taken with regard to any proposed alternative constitutional status and that, further, that advice was given on the advice of the Attorney-General, thereby ignoring completely the wishes of this Court. Dr. Mann: If I could clarify the point at the request of M r.. Speaker. Of course it was the resolution of this Court. Of course it was the action proposed. When we studied the matter we did find it was in fact a sham because it did not enable us to achieve the object that the resolution —
The Speaker: Did you report on the sham?
Dr. Mann: I believe we reported not in such unkind words to you, sir, but in the Attorney’s view we pursued a different course of action.
Mr. Delaney: Before we vote, Your Excellency, could in all seriousness, I ask the Attorney-General have there been any cases brought to him of homosexuality which have not been proceeded with?
The Attorney-General: The answer is very simple: no.
The Governor: Hon. members, I put to you the first of the two amendments that we have to consider, the amendment which was seconded second, that is, the amendment of the hon. member for Ramsey, Mr. Bell. Will hon. members in favour say aye; those against say no.
A division was called for and voting resulted as follows:
In the Keys —
For: Messrs. Karran, Faragher, Brown, May, Cretney, Delaney, Irving, Dr. Moore, Mr. Bell and the Speaker — 10
Against: Messrs. Quirk, Gilbey, Mrs. Christian, Messrs. Morrey, Maddrell, Payne, Walker, Cringle, Martin and G.V.H. Kneale — 10
The Speaker: Your Excellency, the amendment fails to carry in the House of Keys, sir, ten votes being cast in favour and ten votes against.
Human Rights Convention - Debate Concluded TI324 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986
In the Council —
For: Messrs. Lowey and Ward — 2
Against: Dr. Mann, Messrs. Radcliffe and Anderson, Mrs. Hanson and Mr. Callin — 5
The Governor: Hon. members, in the Council two votes in favour and five against, the amendment therefore fails to carry. I will now put to you the second amendment in the name of the hon. member for Glenfaba, Mr. Walter Gilbey. Will those hon. members in favour say aye; those against say no. >! A division was called for and voting resulted as follows:
In the Keys —
For: Messrs. Gilbey, Maddrell, Payne and Martin — 4
Against: Mr. Quirk, Mrs. Christian, Messrs. Morrey, Karran, Walker, Cringle, Faragher, Brown, May, Cretney, Delaney, G.V.H. Kneale, Irving, Dr. Moore, Mr. Bell and the Speaker — 16
The Speaker: That amendment fails to carry, Your Excellency, in the House of Keys, four votes being cast in favour and 16 votes against.
In the Council —
For: Mr. Anderson, Mrs. Hanson and Mr. Callin — 3
Against: Messrs. Lowey, Ward, Dr. Mann and Mr. Radcliffe — 4
The Governor: Hon. members, in the Council three votes in favour and four against, the amendment therefore fails to carry.
1 now put to you the substantive motion in the name of the Chairman of thet Executive Council, Dr. Mann. Will all those in favour say aye; those against say no. A division was called and voting resulted as follows:
In the Keys —
For: Messrs. Quirk, Gilbey, Mrs. Christian, Messrs. Morrey, Maddrell, Payne, Walker, Cringle, Brown, Martin and G.V.H. Kneale — 11
Against: Messrs. Karran, Faragher, May, Cretney, Delaney, Irving, Dr. Moore Mr. Bell and the Speaker — 9
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The Speaker: Your Excellency, the resolution carries in the House of Keys, 11 votes being cast in favour and nine votes against.
In the Council —
For: Dr. Mann, Messrs. Radcliffe and Anderson, Mrs. Hanson and Mr. Callin — 5
Against: Messrs. Lowey and Ward — 2
The Governor: Hon. members, in the Council five votes in favour and two against, the motion therefore carries.
SUPPLEMENTARY AGENDA — SOCIAL SECURITY — APPLICATION OF U.K. PROVISIONS TO THE ISLAND — RESOLUTION APPROVED
The Governor: Hon. members, you will remember that, though this completes the business on the main Agenda, we do have a Supplementary Agenda in front of us and I call upon the Chairman of the Isle of Man Board of Social Security to move that permission be granted under Standing Orders to consider the business.
Mr. Delaney: Your Excellency, I beg to move:
that permission be granted under Standing Order 27(b) for the following business to be considered.
The Governor: Hon. members, are you all agreed? (It was agreed) Then I call upon the chairman to move the Agenda item.
Mr. Delaney: Your Excellency, I beg to move: That Tynwald approves o f the Board o f Social Security —
(a) making orders under Section 1 o f the Social Security Act 1982 applying to the Island subject to such exception, adaptations and modifications as may be specified in the orders —
(i) the provisions of orders to be made under Section 124 and 126A of the Social Security Act 1975 (an Act o f Parliament) adjusting rates o f social security benefits prescribed in that Act;
(ii) the provisions o f regulations to be made under Section 5 o f the Child Benefit Act 1975 (an Act of Parliament) adjusting rates of child benefit; Supplementary Agenda — Social Security — Application of U.K. Provisions to the Island — Resolution Approved T1326 TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986
(iii) the provisions of regulations to be made under Section 33 o f the Supplementary Benefits Act 1976 (an Act o f Parliament) adjusting the rates o f supplementary benefit,
but so that such orders as may be made by the board shall not have effect before 28th July 1986 and shall in any event be subject to Section 1(6) o f the said Act o f 1982 (approval of Tynwald);
(b) commencing now to make the essential preparations for the changes which will result from the making o f the orders by the board pursuant to paragraph (a) o f this resolution.
The hour is late but the matter is important and I do believe that certainly members of the Keys will be getting a lot of phone calls and a lot of comments about the new orders which we wish to put through in relation to the British Government’s policy to increase certain benefits come July and therefore no increase will be coming in November. It already is a matter of controversy on the mainland and as far as I am concerned I believe that members should be armed ready for the pressure that is going to come on them, with due respect to all my colleagues. So what I intend doing is to put through to them exactly what these orders and what the uprating will be as far as benefits are concerned. They are not a lot and I did warn last month on the Fowler Report; these recommendations were there for everyone to see. They are going to affect our constituents a great deal and I believe that members should be put into a position, where they can arm themselves to explain the system and to that idea I will have my department send out to each member exactly what those details are. I do not envy the members having to explain why we have to follow the British Chancellor’s and Mr. Fowler’s recommendations, but that is the game we are in at the moment. I beg to move.
Mr. Lowey: To answer that point, Your Excellency, I will be supporting —
The Governor: Are you standing to second?
Mr. Lowey: I will second, certainly, sir, and in seconding I would like to answer the point that this Government the Isle of Man Government have a Budget coming up too in May and if we have a real concern, which I know the hon. member is, we have it within our own hands to alter benefits which we can provide from within our own taxation, if needs be, as an alternative. But I think the hon. chairman is absolutely right to get these orders placed before us and to tell us exactly what they are and I support them. They are here. They are clear. But, again, if we wish to put any extra support to these vulnerable people in society, then it is up to us to do it.
The Governor: Does any other hon. member wish to speak?
The Speaker: In supporting the resolution, Your Excellency, I would say it would be a shame if there were false hopes held out to anyone in respect of changes in our Budget pattern. The House, I know all too well, has been always keen on holding to a reciprocal pattern with the United Kingdom believing that its strength on the
Supplementary Agenda — Social Security — Application of U.K. Provisions to the Island — Resolution Approved TYNWALD COURT, WEDNESDAY, 26th FEBRUARY, 1986 T1327 part of those people concerned lay in that policy and I cannot see any hope whatever of that policy being changed by this House. So any suggestion of beneficial change at a later stage must be accepted with a great degree of reserve.
The Governor: Does any other hon. member wish to speak? Then I call on the chairman to reply.
Mr. Delaney: A short reply, Your Excellency. Mr. Speaker is quite correct on the main agreement reciprocity. But otherwise I have wasted ten years of my life chasing for small amounts for the people of the Isle of Man. There are areas and certainly since I became chairman of the board, there are areas. In Britain they have a Mickey Mouse scheme, and I use those words advisedly, on cold weather where there is support for the elderly. We have no such scheme. That is a scheme we could well have our own version of it.
We have a situation where our Christmas bonus is coming up outside another fund. I have included in that, I hope with the support of my board, an increase in that and I hope that members will support that. We cannot give them a lot but at least we can show we are a caring society. Thank you, Your Excellency.
Mr. Lowey: Hear, hear.
The Governor: I put the motion to you, hon. members. Will those in favour say aye; those against say no. The ayes have it. The ayes have it.
Hon. members, that concludes the business of this Court. Council will now withdraw and leave the Keys to transact such business as Mr. Speaker may put before them.
The Council withdrew.
The Speaker: Hon. members, the House will adjourn until Tuesday 4th March at 10.30 in its own Chamber. Thank you, hon. members.
The House adjourned at 6.55 p.m.
Supplementary Agenda — Social Security — Application of U.K. Provisions to the Island — Resolution Approved